Toronto Criminal Lawyers Blog

In Canada, all powers to search and seize are now subject to section 8 of the Canadian Charter of Rights and Freedoms, which articulates the right not to be unreasonably searched or have one’s possessions seized. As a result, sec. 8 requires that an assessment be made in each case of whether the public’s interest in being left alone by the government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals: most notably, those of law enforcement. In the case of Hunter v. Southam, the Supreme Court of Canada held that, save a few exceptions, and as a means of preventing unjustified searches, the requirement of prior authorization, such as a valid warrant, is a pre-condition for a valid search or seizure. The logical extension of this requirement amounts in principle to the rule that warrantless searches that don’t fall into one or more of the exceptions are unreasonable. This means that in most cases, the police will need a Judge or a Justice of the Peace to issue a search warrant before they can search any place or seize any property.

Reasonable Expectation of Privacy in a Motor Vehicle

Not all private property, however, commands the same level of respect for privacy from a sec. 8 perspective. By that it is meant that the courts will determine the individual’s level of expectation of privacy based on the place that is searched or the property that is seized. The higher the expectation of privacy, the more rigorously the courts will enforce the rule of prior authorization. Generally speaking, an individual will have a greater expectation of privacy in their home than they will in their car, a greater expectation of privacy in their car than in their work-locker, etc… It is without a doubt, however, that individuals do have a reasonable expectation of privacy with regard to their own car, and the contents of therein.

However, the same expectation of privacy is not attributable to persons who are not the vehicle’s owner and who are passengers within it. As the Ontario Court of Appeal held in R v Alkins, the already lesser expectation of privacy in a car is further reduced when the vehicle belongs to someone other than you. To illustrate this point, consider for a moment that you are a passenger in a vehicle which is stopped by the police for speeding. After briefly speaking with the driver, the officer believes that a weak scent of marijuana is coming from within the car. Ordinarily, that would not amount to sufficient grounds to search the vehicle, but say for the sake of example that the officer conducts the search anyway and discovers an ounce of marijuana under the passenger’s seat, where you happen to be sitting. As a result, both you and the driver are arrested for constructive possession of a controlled substance. At his trial, the driver’s lawyer brings an application to exclude the marijuana because it was obtained through an unlawful search of his vehicle, and succeeds. At your trial, your lawyer tries to do the same, but the judge dismisses your application. Why? The reason is because you are deemed to have a lesser, or no expectation of privacy in the car of another, and thus, cannot rely on the sec. 8 right not to be unreasonably searched.

Now say that instead of finding the marijuana under the passenger’s seat, the officer searched through a briefcase that was located in the trunk of the car. After asking who it belonged to, you advised the officer that it was yours, and you were not consenting to a search of its contents. Despite your protests, the officer goes ahead and searches it anyway, discovering the marijuana within it and placing both you and the driver under arrest. The situation has now fundamentally changed from when the discovery of the marijuana was found under the passenger’s seat. This is because you are deemed to have an expectation of privacy in the contents of a briefcase, or an opaque bag of any kind. In R v. Mohamad, the Ontario Court of Appeal held that the owners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases. The Court stated that briefcases can often have highly confidential personal and business information and, in a practical sense, can serve as possible portable offices or “keep-safes” for their owners. As a result, when your lawyer files an application to exclude the marijuana at your trial, you will be in a much stronger position and may be successful in having the evidence excluded. The word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.

Exceptions to the Rule of Prior Authorization

At the start, I mentioned that there existed a few exceptions to the rule requiring prior authorization for searches and seizures. One of the most common exceptions to the rule is what is known as the “search incident to arrest” power. A search incident to arrest occurs when the police search your person, objects on your person, your car, and/or the surrounding area as a result of your arrest for an alleged crime. For example, if the police see you engage in a drug transaction from within your motor vehicle, they will have the right to search you and your vehicle for any drugs. Any other unlawful objects, materials or supportive evidence that is found in the process of the search may also be seized.
However, police need to be careful how they use their power to search incident to arrest. A prerequisite to a search incident to arrest is that the arrest itself must be lawful. This means that if the police do not have reasonable and probable grounds to make the arrest in the first place, then the arrest is unlawful. As such, any incriminating evidence that they find on you, or in your car, may be excluded at your trial. Again, the word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.
Moreover, even if the arrest itself is lawful, the search which the police conduct subsequent to your arrest must be connected to the crime you are being arrested for. For example, if you are arrested for driving while impaired, generally speaking, a search of your vehicle would not be connected with what you are being charged with. What reason would the police have to search your car? The crime of driving while impaired has to do with you being impaired by drugs or alcohol while operating a motor vehicle. A search of your car is not required to prove the elements of the crime, and does little to further the police’s investigation. Conversely, in the drug-transaction example above, the search of your car is logically connected to your arrest. Since the police saw you sell drugs out of your car, it is not illogical to believe that there may be more drugs within the car. What constitutes a logical connection between the arrest and the search will be determined by the specific context of each individual case.

Other, less known, exceptions to the rule requiring prior authorization are contained within the Criminal Code itself. The most notable of those exceptions, for present purposes, is located in sec. 487.11, which states the following:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant

In the case of R v. Grant, the Supreme Court held that exigent circumstances exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. Generally speaking, whether exigent circumstances exist on the occasion in question will be a question of law for the judge to decide. The “exigent circumstances” exception is one that is rarely used, since in most cases the police will gain control of the location that they intend to search, and then apply for a search warrant to permit them to enter, if they haven’t already applied for one.

Contact Kostman & Pyzer, Barristers, for your best defence.

Generally speaking, a hearsay statement is an out-of-court statement made by person A to person B (or overheard by person B), which is being tendered in court as evidence of the proof of the statement’s content(s). By necessity, therefore, person A is unavailable, or unwilling to testify to the truth of that statement in court. Thus, the rule against hearsay prohibits the admission of out-of-court statements which are tendered for their truth. For example, a witness says “Harry told me Brian was driving to Toronto”. Since the witness did not see Brian driving himself, the statement would be hearsay evidence to the fact that Brian was driving, and not admissible. However, in certain circumstances, a hearsay statement may be tendered in court as evidence of the fact that it was made, or even as to the declarant’s state-of-mind. For example, a witness testifies that “Carrie said in front of me that she was waiting for a ride from Bob”. While the statement may not be tendered into evidence as proof that Bob drove Carrie on the occasion in question, it may be adduced as proof of Carrie’s intention to locate a ride from someone, for example. The specific circumstances of how a hearsay statement may be adduced for something other than its truth will depend on the context of the case.

The arguments against the admissibility of hearsay statements for proof of their truth are many-fold. First, and foremost, is the lack of opportunity for contemporaneous cross-examination. If the statement is being tendered into evidence as proof of its truth, then surely the person who disputes its validity should have an opportunity to “question” the person in respect to his knowledge of the statement. This is not possible when a statement is tendered into evidence by a person other than its maker. Secondly, the trier of fact, whether it is a judge or jury, cannot observe the declarant’s reaction on cross-examination. This is an important point because the credibility of the witness is often said to be at its most revealing during cross-examination. Thirdly, the person repeating the hearsay statement in court may have been mistaken or confused as to what they have heard. Statements made in one context may be markedly different in meaning if made in another.

This does not mean, however, that all hearsay statements adduced into evidence for their truth are de facto inadmissible. There are certain enumerated exceptions to the rule against hearsay which have developed over the years by way of the common law – otherwise known as “judge made law” – or are provided for by way of statute. Some of the most notable are confessions, business records made in the ordinary course of business, spontaneous utterances, dying declarations, declarations against interest and present sense impression. The most obvious unifying feature of these exceptions is that they are made in circumstances which significantly minimize concerns as to their reliability. Take for instance the exception of a dying declaration. The most famous example of this exception unfolded in an old British case where a woman who had her throat slit ran outside of her house screaming “Look what Patrick did to me” – Patrick being her husband. Any witnesses who may have heard the woman would be barred from was made in circumstances that provide it with a significant degree of reliability and lessen the potential for concoction or misunderstanding.

More recently, the Supreme Court of Canada developed yet another avenue to adduce hearsay statements into evidence as proof of their contents. The “principled approach” to hearsay statements allows the Court to consider the issue of admissibility through an assessment of the factors of necessity and reliability. Thus, hearsay evidence that did not fit into one of the categorical exceptions could now be admitted if the evidence was shown to be both necessary and reliability.

In domestic assault cases, the prosecution will often find itself in a situation in which the Complainant is uncooperative and recants their original version of the event in issue. The principled exception to the hearsay rule allows the prosecution to adduce the Complainant’s original version of events if the prosecution can establish that it is necessary (the witness is absent or recants) and that the original vrepeating that statement in court as proof that Patrick slit her throat. However, under this exception, and many of the others which are predicated on similar reasoning, the courts consider that such a statement ersion is reliable.

World Cup Soccer has hit television screens across the country.  The highly anticipated event causes adrenaline rushes in fans across the globe. Soccer fans should remember that the way they choose to express their jubilation at winning and upset at losing can have criminal law implications. During the World Cup it is common to see people hanging off of cars, waving flags, honking horns, dancing in the streets in an intoxicated state, and, generally, creating a lot of noise. Sometimes the dynamic of a crowd can cause people to forget that the criminal law still applies no matter how many individuals choose the same form of expression. The reality is that some of the gregarious World Cup behavior can attract criminal charges. According to the Canadian Criminal Code, causing a disturbance is a criminal offence. Section 175(1)(a) provides:

175. (1) Everyone who, not being in a dwelling-house, causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

(ii) by being drunk, or

(iii) by impeding or molesting other persons,

is guilty of an offence punishable on summary conviction.

This section of the Criminal Code creates a summary conviction offence.  The matter will be heard before a judge of the Ontario Court of Justice. The accused does not have the option of having a trial by judge and jury.

The word “disturbance” can be given a variety of differing definitions. At one end of the spectrum, “disturbance” means a disruption in the form of an annoyance or irritation. At the more serious end of the spectrum, the word may denote an actual physical disruption which could include violence. In the eyes of the law, not every event that ‘disturbs’ people will constitute an act which “causes a disturbance’. For example, smoking a cigarette or having an inappropriate conversation may disturb some people. However, these acts do not constitute conduct which can “cause a disturbance” according to the criminal law.

The phrase “cause a disturbance” has been definitively interpreted by the Supreme Court of Canada in R v. Lohnes, [1992] S.C.J.No. 6. In that case, the Supreme Court of Canada clarified that for purposes of the criminal law, a “disturbance” must have a secondary impact- i.e. A manifested interference with the ordinary state of affairs. The “disturbance” contemplated by s.175(1)(a) is something more than a mere emotional upset or annoyance.  The offensive conduct must cause an externally manifested disturbance of the public peace. For World Cup fans to run afoul of the criminal law, the celebration of a victory or the anger at defeat must cause an individual to express himself in some way that creates a disturbance of the public peace. The offence has two essential components:

1) The commission of one of the enumerated acts (fighting, screaming, shouting, swearing, singing or using insulting or obscene language, being drunk, impeding or molesting other persons); and,

2) causing a disturbance in or near a public place.

Whether or not the offending conduct has “caused a disturbance”, is a question of fact that will be determined by the court. The Court will consider the degree and intensity of the activity complained of and the degree and nature of the ‘peace’ that can be expected in the particular location at the particular time. The contextual circumstances of the behaviour is a very important consideration.  This means that to a certain extent the bar of appropriate(legal) behaviour may vary depending on the context. The same sentiment which may be expressed legally on College Street after Brazil, Portugal or Italy has scored a goal, may be illegal in a quiet suburb.  Yelling, screaming and swearing in Little Italy, when the Italian soccer team scores a winning goal, is not likely to cause a disturbance. The nature and degree of peace on College Street during the celebration of an Italian win is such that honking your horn and yelling does not cause a disturbance. Loud celebrations during World Cup season on College in the afternoon are markedly different from the same type of celebrations at 4.a.m. in a residential area where everyone is sleeping. The latter is more likely to be viewed by the Courts as the type of behavior that can cause a disturbance. Whether or not the behavior complained of actually constitutes the offence of ‘causing a disturbance’ is dependent on the consequences which arise from the behavior.

When you are celebrating those winning goals it is important to be aware of your surroundings. Living in a multi-cultural city like Toronto creates an intense situation during the World Cup. It is important to be mindful of the variety of cultures and backgrounds present in your environment. Yelling screaming and swearing in celebration with fellow supporters is different from yelling, screaming and swearing at the opposition. Shouting abusive language by itself will not likely create criminal liability. However, even in Little Italy, there is a limit to the type of celebratory behaviour which is tolerated. Starting a fight or a riot in the street is more serious and is likely to give rise to an offence under this section of the Code. The use of insulting or obscene language may initiate a “disturbance”. It is the foreseeable impact of the act which matters. The use of insulting and obscene language is not uncommon during the World Cup. Insulting another person in the street in a loud voice, and thereby attracting a crowd, may have criminal repercussions. When the use of insults or obscene language cause disorder or agitation and interfere with the normal use of the public area, a “disturbance” has been caused, and the perpetrators may be charged.

In order to secure a conviction on a charge of causing a disturbance the prosecution must show that the resulting disturbance was reasonably foreseeable in the particular circumstances. The person who caused the disturbance must have been able to foresee that such a reaction would result from his/her behavior. It will be up to a court to determine whether or not the perpetrator could have reasonably foreseen the outcome. However, it is important to remember that the Courts assessment of foreseeability is contextual. Therefore, the heightened state of emotions during the World Cup, and the increased parameters of civilized debate, are factors that the Court will ordinarily take into consideration. The Court will determine whether or not it would be reasonable for a person to foresee the “disturbance” quality of their actions. As stated, the same behaviour which may be illegal in the sleeping suburbs may be perfectly legal during a World Cup celebration. Context is everything.

Please don’t get the impression that during the World Cup there are no limits on what a person is legally permitted to do so long as they are celebrating or expressing their disappointment. Although more extreme behaviour may be tolerated, there is a point where outrageous behaviour will give rise to criminal consequences.

So, enjoy the World Cup and celebrate responsibly.  If you have been charged with “causing a disturbance” contact Kostman and Pyzer, Barristers for the best defence.

There are two essential stages to any challenge under the Canadian Charter of Rights and Freedoms. In the first stage, the claimant, working with his or her criminal defence lawyer, must show that it is more likely than not that his or her Charter rights were breached. In the second step the burden of proof switches to the Crown, and the Crown must show that it is more likely than not that the breach was justified under s.1 of the Charter.

Section 1 of the Charter limits all of the other rights in the Charter. It states that “[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” If the government passes a law that breaches the constitution, they can invoke s. 1 to argue that the breach is nonetheless justified in a free and democratic society.

Section 1 contains two requirements that the government must satisfy to show that the Charter breach is justified. In the first step the government must show that the breach is “prescribed by law”. This is a normally straightforward threshold criterion that basically requires that the limit have the “form of law”. In essence, it serves a gatekeeper function, limiting the number of instances where an infringement can be upheld. To be “prescribed by law”, the rule must be accessible and intelligible to the citizen. Both values fall under the more general concept of notice: to be “prescribed by law” the rule must be promulgated. In R. v. Therens, the Supreme Court of Canada explained what is meant by the requirement that the rule be “promulgated”; the rule will be “promulgated” and thus “prescribed by law” within the meaning of s. 1, if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from the application of a common law rule.

To be prescribed by law, the law must be “intelligible”, which means that citizens must be able to understand the effects of the law, including the nature of the behaviour which would constitute a breach of the law. This means that the law cannot be overly vague. However, courts have preferred to deal with the claim that a restriction is too vague or too broad at stage 2 of the s. 1 inquiry. In Osborne v. Canada (Treasury Board), the Supreme Court explained that vagueness has s. 1 significance in two ways: (1) a law may be so uncertain as to be incapable of being interpreted so as to constitute any restrain on government power. In these circumstances there is no “limit prescribed by law” and no s. 1 analysis is necessary because the threshold has not been met and (2) a law which passes the threshold test may, nevertheless, by reasons of imprecision, not qualify as a reasonable limit. This concept will arise under part two of the test.

At stage 2 the government must justify that the breach is “reasonable” and “demonstrably justified in a free and democratic society”. In 1986 in R. v. Oakes the Supreme Court of Canada formulated a test that the government must follow to prove that this requirement is met. At the first step of the Oakes Test, the government must show that there was a “pressing and substantial purpose” behind the law. In other words, the objective of the law must be of sufficient importance considering that the law has the effect of limiting an individual’s Charter rights. Though the court has said that the standard at this first step must be high to ensure that trivial objectives are not protected, in practice, the court rarely finds that the restriction fails the first step.

The second step of the Oakes test is a proportionality test. This step has three substeps – all of which the government must address. First, the government must show that the law was carefully designed to achieve the objective identified in step 1 of the Oakes test. The law must be fair and not arbitrary. The limit it imposes must be “rationally connected” to its objective.  For example, if the government were to make a law against visiting South America, and then identify their objective as “protecting endangered species”, the court would likely find that the law was not rationally connected to its purpose since visiting South America has little to do with the general goal of protecting endangered species. Though the purpose of protecting endangered species would likely be considered “pressing and substantial” under part 1 of Oakes, the law against visiting South America would not be a clear and effective way of protecting that objective. At the second sub- stage of the proportionality test, the government must show that the law is minimally impairing. In other words, the law must be designed to limit the rights and freedoms of Canadians as little as reasonably possible. The law against visiting South America in our example from before would also fail at this stage of Oakes. There are other ways to protect endangered species that limit individual freedom much less than the law proposed in this example. For example, the government could ban imports of goods made using endangered species. Thus, the law against visiting South America would be seen as much to harsh, impairing, or limiting. At the final substep of the proportionality test the government must show that there is proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. Even if the government establishes that there is an important objective, the severity of the limit may be so great as to outweigh the benefit. This test operates on a sliding scale; the more severe the deleterious effects of the measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. In our South America example, it would be clear that the law was extremely limiting on people’s freedom, yet the degree to which it accomplished the purpose of protecting endangered species was small (people, other than Canadians, could still harm endangered species in South America). The law would be seen as disproportionately harsh compared any benefit it could be expected to create.

Know your rights. Contact Kostman and Pyzer, Barristers, if you need a Toronto criminal lawyer or are charged with a criminal offence.

Entrapment

Entrapment is one of the many defences available in the criminal justice system. However, criminal defence lawyers will only pursue a defence of entrapment if the facts suggest that this defence may be successful. Only rarely will the facts of the case support a defence of entrapment.

All defences are split into two categories: excuses and justifications. Justification defences are defences the accused can raise to show that he or she did the right thing in the circumstances and should therefore not be punished. The best example of this is self-defence. Defendants who raise an excuse defence, on the other hand, admit that they committed a crime and acted immorally, but assert that they have an excuse for the way they acted. A good example of an excuse defence is mental illness. Entrapment is also an example of an excuse defence. This means that when a defendant raises a defence of entrapment, they admit to committing the crime in question, however, they argue that they have a reasonable excuse for their conduct.

The idea behind entrapment is that the individual was enticed or provoked into committing a crime by the police. When the police overstep their duty to investigate crime and instead initiate or create a crime, the defence may arise. The rationale behind the defence is that it constitutes abuse of process on the part of the Crown prosecute an individual, if his or her crime was motivated by police instigation. As a result, if the defence can establish entrapment, the court will stay the proceedings against you. The result of a stay is that the case against you cannot proceed, no guilty conviction is entered against you and the incident will not appear on your criminal record.

A defence of entrapment tends to be available on charges relating to drugs or prostitution. The general scenario is that the police will have an undercover agent approach an individual soliciting sex or trying to buy drugs. If the individual agrees to purchase sex or sell drugs, the police will then arrest them on charges of solicitation for the purposes of prostitution or trafficking in narcotics. If the police conduct reached the point that they are actively encouraging an individual who would not ordinarily have committed a crime to commit an illegal act, the defence of entrapment may become available.

The defence of entrapment was successfully raised in the case of R. v. Mack. Mack was a former drug addict who had reformed and given up drugs with the help of yoga. Nonetheless, police officers decided to target Mack in an undercover operation to search for evidence of drug trafficking. The police enlisted two confidential informants to contact Mack. The informants approached Mack asking for drugs, but he refused to sell them. Later, the informants followed Mack to a yoga retreat while still undercover and harassed him to arrange a drug deal for them. Mack still refused to be involved in any form of drug transaction. Finally, the confidential informants took Mack on a walk in the woods, where they told him that their “people” were coming into town today and needed drugs. The informants told Mack that their people would be very “upset” if Mack could not get them the drugs. Then, the confidential informants showed Mack a pistol and said, “someone could really get lost out here in the woods”. Following that threatening statement, Mack relented and agreed to procure a large amount of cocaine for them. Mack showed up at the arranged transaction spot, was shown a suitcase of money, and made the exchange. Unbeknownst to Mack, the two men he was making the drug exchange with were undercover police officers. Following the exchange, Mack was arrested.

The Supreme Court of Canada allowed the defence of entrapment to succeed in Mack and stayed the proceedings against him. The court emphatically explained that the police should not engage in “random virtue testing” of the population. By this the court meant that the police should not test the virtue of individual citizens by offering them the opportunity to commit a crime at random. When the police do this, they seem to create crime and then arrest people for the crimes they create. The individual arrested may never have committed a crime in his or her life if not for his or her interactions with the police. Such conduct on the part of the police offends our justice system’s fundamental values of justice and fairness.

In Mack the Supreme Court laid down a test to determine when entrapment has occurred. At the first stage of the test, the court asks whether the police have targeted individuals based on a reasonable suspicion that the individual is involved in crime or through involvement in a bona fide investigation. According to the court, anything short of reasonable suspicion or a bona fide investigation would constitute random virtue testing. A bona fide investigation is an authorized investigation in a targeted area. For example, the police can target a particular area if they have reasonable grounds to believe criminal activity is prevalent there; however, they cannot walk the streets at random posing as civilians and trying to encourage individuals to commit crimes. If the police target an individual who they do not have reasonable grounds to suspect is involved in criminal activity or they target random people outside the context of a bona fide investigation, the defence of entrapment will operate to stay the proceedings against the defendant.

Even if the first part of the test is not met, the defence of entrapment may still be available to the defendant under step two of the test from Mack. At step two, the court must consider a number of factors to determine whether the police manipulated or directed the defendant to commit the crime. The court refers to this as “planting the seed of crime” within the individual. The idea is that, by “planting the seed of crime”, the police cause a person who may never have committed a crime to engage in criminal activity. In the case of Mack, the court determined that even though the police had reasonable grounds to suspect that Mack may be involved in criminal activity, they went so far as to “plant the seed of crime within him”; thus, the court allowed the defence of entrapment under the second branch of the test.
In Mack the court lists a number of factors to help determine whether the police crossed the line and “planted the seed of crime”.

The list of factors for the court to consider are as follows:
• the type of crime being investigated and the availability of other techniques for police detection of its commission;
• whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
• the persistence and number of attempts made by the police before the accused agreed to committing the offence;
• the type of inducement used by the police including: deceit, fraud, trickery or reward;
• the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
• whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
• whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
• the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
• the existence of any threats, implied or express, made to the accused by the police or their agents; and
• whether the police conduct is directed at undermining other constitutional values.

The court will look at these factors to determine whether or not to stay the proceedings due to entrapment.

Make sure that you are represented by competent criminal defence lawyers. Call Kostman and Pyzer, Barristers.

During the course of a criminal trial the prosecution may try to lead character evidence about the accused individual. For legal purposes, the word “character” refers to a generalized description of a person’s disposition, or that person’s disposition in respect of a general trait such as honesty, temperance or peacefulness. Character evidence is evidence that indicates that the defendant has acted a specific way before, for example dishonestly or violently, and asks the jury to infer that that prior behaviour allows for a  a negative inference to be drawn in respect to an accused’s character with respect to a particular trait. The jury is then asked to specifically infer that that the defendant acted in accordance with that character trait in the incident before the court.

As a general rule, courts will not allow the prosecution to lead evidence about the character of the defendant during the course of his or her criminal trial. The danger, as the court perceives it, is that the jury will use evidence of the defendant’s bad character to infer that the defendant is guilty. There is no logical connection between a person having a bad character and that same person having committed the particular crime at issue. The truth is that lots of people display negative characteristics such as anger, aggression, sexual deviance, dishonesty or selfishness but never commit crimes. However, it is human nature that a jury presented with evidence that a defendant possesses some of these characteristics may be prejudiced against the defendant. Such prejudice could cloud the jury’s judgment and cause them to enter a guilty verdict where one is unsupported by the facts. Because of this, character evidence is generally inadmissible.

There are, however, four exceptions to the rule that character evidence is inadmissible at trial.

The first exception to the rule against character evidence is that the evidence is relevant to a material issue at trial. If the evidence is relevant to a material issue then the jury is not being asked to use evidence of the defendant’s bad character to infer that the defendant is guilty. Rather, the evidence is being tendered because it does directly support another issue in the case. For example, in R. v. Merz, the accused and his wife were in a heated argument that ended with the wife being shot three times. Merz’s defence was that his son had fired the first fatal shot and that he had picked up the gun and fired the second two shots in an effort to shield his son from criminal prosecution. The prosecution maintained that Merz fired all three shots. As part of their case against him, the prosecution relied on the testimony of two witnesses who stated that the victim told them that the defendant had made death threats against her in the past. The evidence was admitted and Merz was convicted at trial. On appeal, Merz argued that the trial judge should have told the jury that they could not use evidence of the previous threats to infer that the defendant was a violent person and therefore more likely to have murdered the deceased. The judge in the appellate court found that the trial judge was correct in admitting evidence of the statements because those statements were not intended to create an inference that the accused was a bad person. Rather, the more natural and powerful inference to be made from the testimony is that the defendant had motive to kill his wife. Even though such statements may have had a secondary role as character evidence, their more significant role in the trial was to lend support to the material issue of motive and for that reason the court could admit them as an exception to the rule against character evidence.

The second exception to the rule against character evidence occurs when the accused leads good character evidence that “puts his or her character at issue”.  Usually the defendant would want to refrain from putting his or her character at issue as this opens the door to allow the prosecution to tender negative character evidence. However, if the accused is of particularly good character or reputation, he or she may choose to enter character evidence to suggest either that his or her testimony is credible and reliable or to suggest that it is unlikely that he or she would have committed the crime. When the accused leads good character evidence to support either or these propositions, the court will allow the prosecution to admit negative character evidence in the interest of fairness so that the evidence is not unfairly or inaccurately skewed in favour of the accused.

The third exception to the rule against character evidence is similar act evidence. Similar act evidence is evidence that the defendant has committed a similar crime or acted similarly in the past. For example, if the defendant is on trial for rape, similar act evidence could consist of evidence that the defendant had raped women in the past using the method indicated in the evidence before the court pertaining to the case at hand. Criminal defence lawyers are very wary of similar act evidence. Practitioners will often say that the decision to admit similar act evidence is as close as a judge will usually come to usurping the role of the jury and making a decision on the outcome of the case. This is because similar act evidence is very prejudicial. The judge’s decision to admit similar act evidence will have profound repercussions on the case. If this type of evidence is admitted improperly a serious miscarriage of justice may occur.

In R. v. Handy the Supreme Court of Canada set out clear guidelines to determine when the court should admit similar act evidence. Here the court cautioned that “there being no offence of being a bad person” the criminal justice system does not “try people for who they are but for what they have done”. However, it pointed out, that principle clashes with another common sense proposition, which is that one of the best ways of determining what a person did on one occasion, is to know how he or she has acted on occasions where the circumstances were similar. The test from R. v. Handy asks the court to consider whether the evidence suggests a propensity to act a certain way with sufficient precision to make the evidence worth receiving despite its prejudicial effect. The court starts from the position that the evidence is inadmissible. The court then considers the similar act evidence. Evidence which suggests a general propensity to engage in the behaviour before the court is insufficient to admit the evidence. For example, in a rape case evidence of past sexual deviance or even past rapes would be insufficient. Specific propensity is required. To continue with the rape example, a specific repeated series of actions or a specific victim profile may be sufficiently precise to suggest the evidence should be admitted. In order to determine whether the evidence is precise enough the court will consider “the objective improbability of coincidence”. In other words, the likelihood that the similar act evidence and the evidence in the case at bar could be the same and not have been committed by the same person. For example, in a sexual assault case, the complainant states that she was drugged at a nightclub, raped and then released. The prosecution wants to admit evidence that the accused was convicted in the past of drugging a girl in a nightclub, raping her and then releasing her. This evidence would probably not meet the threshold required to admit similar act evidence because the behaviour is not particularly unique. However, if the same drug was used to subdue the victim in both cases and it was a very rare drug that was difficult to obtain, then the previous incident is more likely to be admissible. On these new facts, it is much more improbable that the connection between the similar act evidence and the facts before the court are simply a coincidence.

In addition to precision, similar act evidence must also have a high degree of probative value in order to offset the prejudicial effect it will have on the jury. In other words, the evidence must be very strong in order for the judge to admit it despite the fact that invites the jury to draw a negative inference from the accused’s history that he or she is more likely to have committed the offence.

The fourth and final exception to the rule against character evidence occurs in situations where the accused leads character evidence to suggest that a third party committed the offence. In general, when the accused and his or her criminal defence lawyer decide to point the finger at someone else using character evidence the defence invites a comparison between the accused’s character and the character of the third party. However, when the defence uses facts to point the finger to a third party, it does not open the door for the prosecution to tender character evidence about the accused. In other words, if the defence leads evidence that a third party has acted a certain way in the past and try to use that evidence to suggest that the third party committed the crime at hand, then the defendant puts his or her character at issue. However, if the accused’s criminal defence lawyer points to facts (such as the location of the crime in relation to the third party, the third party’s lack of an alibi, or the third parties proximity to the events surrounding the crime), the defendant’s character is not put at issue and the prosecution cannot lead character evidence against the accused as a result.

The rule against character evidence is an important tenant of our criminal justice system. Without the rule against character evidence, individuals would continue to be punished for past crimes or past bad behaviour indefinitely. People who have displayed bad character traits in the past or who had engaged in past criminal behaviour but have served their debt to society should not be punished by the criminal justice system for what they did in the past with new criminal sanctions. Individuals should only be punished by the criminal justice system if the prosecution can prove beyond a reasonable doubt on the facts that the defendant committed the crime at question.

Call Kostman and Pyzer, Barristers, Toronto criminal defence lawyers who will defend you aggressively and fight for your rights!

In the controversy surrounding Tiger Wood’s recent driving accident, it has been rumored that Mr. Wood’s blood tests from the hospital revealed that he had consumed alcohol, prescription drugs and sleeping pills before his now-infamous car crash. However, because the police did not request a breathalyzer at the scene of the accident, the media speculates that the blood samples taken from Tiger at the hospital will not be admissible against him in a court of law, should he be charged with an offence arising out of the accident.

If the same thing were to happen in Toronto, would the blood samples be admissible against Tiger Woods assuming he was charged with impaired driving? According to Canadian law, the blood samples obtained from Tiger at the hospital would be admissible in a Canadian court if and only if certain preconditions are met.

Section 8 of the Canadian Charter of Rights and Freedoms guarantees that every individual has the right to be free from unreasonable search and seizure. The testing of an individual’s breath, urine, or blood constitutes “search or seizure” under the law. In order for the police to obtain the sample without violating section 8 of the Charter, they must establish that the search/seizure is reasonable under the law and obtain a search warrant.

The police would have to obtain a search warrant in order to lawfully obtain the samples. A search warrant must be obtained from a judge. A judge will grant a search warrant if he or she finds that, based on the information contained in an application known as a “sworn information”, the officer has reasonable grounds to believe that the individual was impaired at the time of the accident. Thus, one of officers investigating the Woods collision would have to file a “sworn information” stating that he or she had reasonable grounds to believe that Tiger Woods was impaired at the time of the accident. The officer would also have to include a description of the evidence on which he or she formed that belief. The information cannot be based on the results of the blood, urine or breath test. It would be unfair if the police could use the results of the test in order to obtain permission to obtain those results. Thus, the officer must provide independent grounds on which he or she suspects that alcohol or a drug was involved in the collision. For example, if the officer or any witness smelled alcohol on Mr. Wood’s breath, if the hospital or ambulance staff reported smelling alcohol on Mr. Woods, if empty alcohol containers were found in Mr. Wood’s car, if witnesses described Mr. Wood’s behaviour as indicative of intoxication, etc., these factors would provide evidence to support a search warrant request. The judge would then determine whether the sworn information contained sufficient reliable evidence to issue a warrant.

Even if the officer obtains a warrant, the bodily samples taken from the accused will be inadmissible under s. 8 of the Charter if the defence can prove that they were taken without the accused’s consent, prior to the issuing of the warrant, for no purpose other than evidence collecting. If the samples were taken for legitimate health reasons, the police can obtain them after-the-fact pursuant to a warrant without breaching the Charter. However, the police cannot ask the doctor to take the samples and then go get a warrant. This would constitute a breach of the accused’s Charter rights. In the recent case of R. v. Grant the Supreme Court of Canada explicitly stated that “forcible taking of blood samples” will almost always breach the Charter. If the police were to have a nurse or doctor take the samples from the accused for police purposes, this would likely constitute a forcible taking (as the accused is tricked into giving the sample) and the sample would not be admissible at trial. However, if the samples are taken for legitimate health reasons, there is no reason that they would not be admissible after the fact, so long as the officer can persuade a judge that there are reasonable grounds to believe that the accused was impaired, and obtain a search warrant.

Once the Crown has established that the taking of the samples did not breach section 8 of the Charter, the Crown must prove that the samples are a true representation of Tiger’s Blood Alcohol Concentration (BAC) at the time of the accident. To do this, they must establish timing and continuity of the samples.

Under normal circumstances, the Crown benefits from a presumption that the BAC measured in the samples corresponds to the accused individual’s BAC at the time of the offence. In order to benefit from this presumption, the Crown must prove a number of things. For example, two samples must be taken, they must be taken within two hours of the offence, they must be taken “as soon as practicable”, there must not be any unreasonable time delay between the samples, the samples must have been taken by a qualified medical practitioner or qualified technician under the supervision of a doctor, and the samples must be placed directly in approved containers. A number of these conditions may have been lacking in the Woods case. For example, there may have been unreasonable delay between the accident and the taking of the samples, they may not have been taken within the two-hour window, and they may not have been secured directly into an approved container. For this reason, it is unlikely that the Crown will benefit from the presumption. Therefore, the Crown will have to prove that Mr. Wood’s BAC at the time the samples were taken was the same as Mr. Wood’s BAC at the time of the offence. For example, Tiger Wood’s defence lawyer could argue that Mr. Woods consumed the impairing substances right before driving, and that there was not enough time between consumption and driving for the effects of the substances to set in. The Crown will have the burden of disproving this argument.

Proving continuity means proving that the particular bodily samples being entered into evidence did, in fact, come from Mr. Wood’s body and that they have not been tampered with. Under usual circumstances, continuity is presumed because the samples are taken in the police station and immediately sealed and taken to the Center for Forensic Science where they are tested. However, since hospital samples may not have been officially sealed, continuity will be more difficult to prove. The Crown will have to call every individual who handled the samples prior to their collection by the police, as witnesses. In R. v. Katsigiorgis, the court ruled that it is not a violation of s. 8 for the police to seal the samples prior to obtaining a search warrant, in order to preserve continuity. However, there is no evidence that the police did this in the Tiger Wood’s case.

If the Tiger Woods incident occurred in Toronto and the police were able to prove reasonable grounds, obtain a search warrant, establish that the samples were taken for legitimate medical reasons, and establish timing and continuity, the samples would be admissible in a court of law. As the case played out in Florida, the Florida police released a statement saying that they did not suspect any foul play before the rumors about Tiger’s blood samples began to circulate. Assuming the exact same facts occurred in Toronto, this press release would make it extremely unlikely that the Toronto police could obtain a search warrant and seize the samples. This is because, by admitting that they did not suspect foul play, the police admitted that they did not suspect that Tiger was impaired. In other words, they admitted that they did not have reasonable and probable grounds to obtain a search warrant. Thus, if Tiger was indeed impaired at the time of the accident, the evidence of impairment would not be admissible at trial, whether that trial occurred in Florida or Toronto.

Our clients are often concerned about the effect a criminal conviction could have on their ability to travel to the United States. If you are convicted of a criminal offence in Canada, that conviction could have repercussions on any future plans to enter the United States. The US has strict entrance laws for foreign visitors with criminal records.

Under American law, foreigners may be denied entrance to the United States if they are deemed to be “inadmissible” by the Bureau of Customs and Border Protection. There are three categories of criminal behaviour that render an individual inadmissible.

Categories of Inadmissibility

• Drugs The most common reason Canadians are denied entry to the United States is a prior drug-related conviction. Any violation relating to a controlled substance (even simple possession of marijuana) can be grounds for denying a foreigner entry to the US.
• Crimes Involving Moral Turpitude The term “crimes involving moral turpitude” (CIMTs) refers to a large category of offences which are considered to be contrary to community standards or community morals. Though there is no definitive list of CIMTs, decades of immigration cases have led to the evolution of a non-exhaustive list of crimes which are always considered CIMTs. Some examples are fraud, arson, blackmail, burglary, embezzlement, theft, counterfeiting, perjury, kidnapping, manslaughter, murder, prostitution, and rape. Simple assault or assault with a weapon are not CIMTs. However, assault with intent to kill, rape, commit a robbery, or cause serious bodily harm is a CIMT as is assault with a dangerous weapon. For a good list of crimes that are CIMTs see http://en.wikipedia.org/wiki/Moral_turpitude.
• Multiple Criminal Convictions If you have been convicted of two or more criminal offences you may be denied entry into the United States. This rule encompasses any type of offence regardless of whether it is a CIMT. The only exception to this rule is for political offences. Political offences are offences which an individual commits for a political purpose. Following the decision in Dunlayici, an offence only qualifies as a political offence if it is directed against the government and forms a part of an on-going or contemplated political struggle. This exception also tends to be limited to political offences which do not involve the use of violence.

These categories are so comprehensive that, in practice, almost any Canadian with a criminal record is likely ineligible for entry to the United States.

Convictions

A conviction for one of the offences listed above has the ability to render an individual inadmissible to the United States. However, U.S. law uses a very broad definition of the term conviction. U.S. law recognizes that an absolute discharge from a Canadian criminal court does not qualify as a conviction for immigration purposes. However, a Canadian conditional discharge is considered a conviction for US immigration purposes. This means that if you were charged with a criminal offence which falls into one of the categories of inadmissibility and you were granted a conditional discharge you are likely ineligible for entry into the United States. A conviction from a Canadian criminal court likewise qualifies as a conviction under U.S. immigration law and leads to inadmissibility.

Furthermore, under US immigration law, even if you are acquitted at trial or the charges against you are stayed, you may still be deemed inadmissible to the U.S.. This can happen in two different ways. First, if you admit to committing a crime but you are nonetheless acquitted by a Canadian court that acquittal is a deemed conviction for US immigration purposes. This could happen, for example, if you admitted to committing a crime at trial but were acquitted based on a successful claim under the Canadian Charter of Rights and Freedoms. The second way you may be deemed inadmissible, regardless of having been acquitted by a Canadian court, is if you admitted at trial to committing acts which constitute the essential elements of an offence. An acquittal (where you do not admit committing a crime or committing certain acts which constitute all the essential elements of a crime) does not render you inadmissible to the U.S.

Criminal Behaviour

There are some types of criminal behaviour which can render an individual inadmissible even if they have never been convicted of a crime. This occurs when an Immigration Officer knows or has reason to suspect that an individual has engaged in two specific types of criminal behaviour.

• Controlled Substance Trafficking If an immigration officer knows or has reason to believe an individual is or has been trafficking in a controlled substance that person may be excluded under U.S. immigration law. This rule also applies to individuals who assist, abet, conspire or collude with others to engage in trafficking.
• Prostitution and Commercial Vice If an immigration officer knows or has reason to believe that an individual is coming to the United States to engage in prostitution that person can be excluded. This rule also excludes individuals who have engaged in prostitution within the last 10 years. Individuals who attempt to procure or import prostitutes or who receive profits from prostitution (“pimps”) are also deemed inadmissible by this rule. Finally, this rule excludes individuals who an Immigration Officer believes to be traveling to the United States to purchase the services of a prostitute (“johns”).

Exceptions

There are a number of exceptions to the laws which govern this type of inadmissibility. For example, a Canadian conviction which, had it been committed in the U.S., would have been treated as an act of juvenile delinquency under U.S. federal guidelines will not count as a conviction for U.S. immigration purposes. This means that if you are convicted of a crime committed before your eighteenth birthday you likely will not be deemed inadmissible to the United States. There are also some circumstances where a single conviction for a CIMT will be overlooked for immigration purposes. If you have committed a crime and want more information on your eligibility to enter the United States visit the Bureau of Customs and Border Protection website at: http://www.cbp.gov/ or contact a local immigration lawyer.

Pardons

If you have a criminal record which renders you ineligible for entry into the United States, you may be able to enter the U.S. if you obtain an entry waiver or a criminal pardon in Canada. If you are pardoned in Canada, the offence will not appear on your record when you attempt to enter the United States. If however, you have made an unsuccessful attempt to enter the United States, the offence will already be on record with the Bureau of Customs and Border Protection, and you may have to obtain an entry waiver to enter the US.

The best way to make sure you are able to enter the United States is to avoid a criminal conviction. If you are facing criminal charges be sure to contact Kostman & Pyzer, Barristers, to ensure that a criminal accusation does not become an impediment to your ability to travel.

Criminal defence lawyers are often asked to explain the difference between first-degree murder, second-degree murder, and manslaughter. Even though the general public hears these terms all the time – on the news, in the media, and on television crime shows – people are often confused about the difference between the three offences.

First-degree murder, second-degree murder, and manslaughter are all types of homicide. A person commits homicide when, directly or indirectly, by any means, he causes the death of another human being. However, the law recognizes that within the spectrum of possible homicides, there are various different degrees of culpability. Thus, the broad category of homicide has been divided into three subcategories: first-degree murder, second-degree murder, and manslaughter. Each subcategory reflects the level of culpability that we impute to the nature of the homicide.

According to s. 231(2) of the Criminal Code, first-degree murder refers to a murder that is both planned and deliberate. A murder is planned if it was conceived of and thought out before it was carried out. A a murder committed in the heat of an argument, where the murderer had absolutely no intention to kill the victim before the argument began, would not be considered planned. A murder is deliberate if the acts involved were intended and purposeful.  The plan to kill need not be elaborate or complicated and the deliberation need not be lengthy. All that matters is that you planned to kill the person at some point and that you deliberately carried out your plan. Though planning and deliberation usually go hand in hand, this is not always the case. For example, if you planned to kill someone by running them over with your car, and then by coincidence, you accidentally ran over them while you were driving your car to the store one day, the murder would have been planned but not deliberate. Thus, the Supreme Court of Canada has ruled that both planning and deliberation must be present for the murder to be considered first degree. According to the Criminal Code, contract killing is always planned and deliberate.

There are two reasons that a homicide could be categorized as first-degree murder regardless of whether it was planned or deliberate. According to s. 231(4), murdering an officer of the peace is always first-degree murder. For the purposes of this section, “officer of the peace” includes any member of the police force or anyone who works at a prison In addition, a murder is considered first-degree murder if it is committed in the course of the commission of an offence listed in ss. 231(5) or 231(6). The listed offences are hijacking, sexual assault, sexual assault with a weapon, aggravated sexual assault, kidnapping, forcible confinement, hostage taking, terrorism, intimidation, or any offence committed on behalf of a criminal organization.

Second-degree murder is any murder that is not first-degree murder. Section 231(7) of the Code states that any murder that cannot be characterized as first-degree, is considered second-degree murder. However, to be second-degree murder, the homicide must be characterized as “murder” as opposed to “manslaughter”. A homicide is categorized as a murder if the defendant intended to kill the victim. Thus, second-degree murder is a catchall category for all intentional homicides that do not fall under the specific categories of first-degree murder.

Manslaughter is the final category of homicides. Section 234 of the Criminal Code tells us that any culpable homicide that is not murder is manslaughter. Since “murder” is defined as intentional killing of a human being, any murder committed without intent to kill is manslaughter. The most common types of manslaughter criminal defence lawyers in the Toronto area encounter are unlawful act manslaughter and manslaughter by criminal negligence. The former refers to situations where an individual does something illegal that unintentionally leads to another person’s death. For example, if you were to break the law by carelessly firing your gun in a public place and you unintentionally killed someone, you could be charged with the unlawful act manslaughter. There are various mental states that mitigate in an accused person’s favour in situations where there is less than an actual intent to kill. Criminal negligence requires that the person’s act or omission qualified as a “marked departure” from the standard of behaviour expected of a reasonable person. The offence also requires that death or bodily harm was a foreseeable consequence of the defendant’s act or omission. The foreseeability requirement means that a reasonable person in the defendant’s place would have realized that the actions or omissions perpetrated would put another individual’s life in danger. An omission can only be considered criminal negligence if the defendant had a positive duty to act and failed to do so. The law does not impose a duty on individuals to go to the aid of others in distress. If a passerby failed to act to save a drowning swimmer it would not be viewed as criminally negligent since the passerby has no legal duty to go to the swimmer’s aid.

Under s. 232, if a person commits a murder in a heat of passion caused by provocation, the murder charge will be reduced to manslaughter. Provocation is defined as a wrongful act or insult that would deprive an ordinary person of the power of self-control.  Drunkenness or any drug induced mental state that would affect an individual’s ability to form the requisite intent to kill, would reduce murder to manslaughter.

Though the distinctions between first-degree murder, second-degree murder, and manslaughter are meant to distinguish between more and less blameworthy behaviour, all three offences carry serious penalties. Individuals found guilty of first or second-degree murder will be sentenced to life in prison. A person convicted of first degree murder is only eligible for parole after serving 25 years of their life sentence. A person convicted of second-degree murder will generally be eligible for parole after 10 years imprisonment. An individual convicted of manslaughter, the least “serious” type of homicide, is still liable to a maximum penalty of imprisonment for life. In cases where manslaughter was committed using a firearm, the offence also carries a minimum sentence of four years. In other cases, there is no minimum sentence for manslaughter and the penalty is left to the discretion of the trial judge.

In 1995, despite resistance on the part of criminal defence lawyers and civil rights activists, Bill C-18 was passed, which amended the Criminal Code to create a regime for collecting DNA samples from convicted offenders. Many criminal defence lawyers had argued that requiring offenders to submit bodily samples interfered with their bodily integrity and infringed their right to privacy. Nonetheless, the amendments to the Criminal Code were passed, giving courts the authority to order that offenders give a DNA sample. Samples are stored in a national databank created by the DNA Identification Act for use in investigating unsolved past crimes and future crimes. Under the new regime created by the DNA Identification Act, a judge can make a “DNA order” after convicting an offender of certain proscribed crimes. These orders are legally binding, and the offender must surrender a sample of his or her DNA. The Supreme Court of Canada has declared the DNA order regime constitutional in several cases.

For the purpose of issuing DNA orders, the Criminal Code distinguishes between two types of offences: primary offences and secondary offences. DNA orders may be issued for an individual convicted of a primary or secondary offence. In reality, the two categories cover almost every common offence in the Code.

Primary Designated Offences are listed in s. 487.04 of the Criminal Code. There are over 50 offences designated as primary offences. They are mostly of a violent or sexual nature, but also include especially serious offences such as hijacking, using explosives, endangering the safety of an aircraft, and participating in terrorist activities. If an individual is convicted of a primary offence, the judge must make a DNA order with respect to that person, unless the defendant and his or her criminal defence lawyer are able to satisfy the court that the impact on the defendant’s privacy and bodily integrity significantly outweighs the public interest in protecting society through the early detection, arrest and conviction of offenders. The burden on the accused is particularly high. The defence lawyer must show that the negative effect on the offender would be “grossly disproportionate” to the benefits for society. A DNA order may be avoided for a primary offence if the offence was extremely minor (for example, a sexual assault that consisted of touching another person’s leg or buttocks) and/or the defence can show that there is very little chance of the offender reoffending.

Secondary Designated Offences are also listed in s. 487.04 of the Criminal Code. They include all indictable offence under the Criminal Code for which the maximum sentence is five years or more, and all indictable offences under s. 5 (trafficking), s. 6 (importing and exporting narcotics), and s. 7 (production) of the Controlled Drugs and Substances Act punishable by a maximum sentence of five years or more. Section 487.04 also lists almost 20 additional secondary designated offences, including escaping from custody, assault, arson, criminal harassment or uttering threats. If an individual is found guilty of a secondary offence, the court can make a DNA order if it determines that it is in best interests of the administration of justice to do so.  Often, the Crown Attorney will request a DNA order and make submissions to the judge arguing in favor of the Order, and the accused’s criminal defence lawyer will make submissions against the making of the Order. The court will then weigh a number of factors, including the submissions of counsel, the nature and circumstances of the offence, the criminal record of the accused, and the impact of such a DNA order on the accused’s right to privacy and security of the person, to decide whether a DNA order is warranted.

One of the most controversial aspects of the DNA Order Regime is that it applies retrospectively. According to s. 487.052 of the Criminal Code, the Court may order that DNA samples be taken from certain offenders convicted of committing a crime before Bill C-18 came into force. Retrospective Orders are made by way of an ex parte (without notice to the offender) application. They can be made against an individual who is serving a prison sentence of at least two years on the date of the application, for murder, certain listed sexual offences, or manslaughter, They can also be made against an individuals serving a sentence of at least two years on the date of application who has been declared a “dangerous offender” under the Criminal Code. Generally speaking, as a matter of fairness, laws only apply to actions committed after a law comes into force. However, in R. v. Rodgers, the Supreme Court of Canada declared retrospective DNA orders constitutional.

DNA orders can be issued to young offenders (individuals between the ages of 12 and 17 tried under the Youth Criminal Justice Act). The same rules about primary and secondary offences apply to young offenders. However, in the case of R. v. R. C., the Supreme Court of Canada ruled that it is appropriate to consider the underlying principles and objectives of the Youth Criminal Justice Act when determining whether to a DNA order against a young offender for a primary offence.

DNA orders can also be made when an individual is found “not criminally responsible” by way of insanity or mental illness [NCR] for a designated primary or secondary offence, even though an NCR finding is not technically a finding of guilt. Moreover, when a judge looks at an offender’s criminal record to determine whether to issue of DNA order for a secondary offence, they may consider any previous NCR findings in making their assessment.