Toronto Criminal Lawyers Blog

The G20 summit has brought our world’s most powerful leaders to Toronto. Discussion topics for the summit relate to international finance and development. Toronto will be hosting leaders from the United States, North Korea, South Korea, France and Germany, and that is just to name a few. Throughout the summit the world will be watching Toronto. The concentration of power and attention creates an ideal platform to advocate for a notable cause.  Many protesters will take the opportunity to amplify their voices and be heard on the world’s stage.  Will Canada’s Charter of Rights of Freedoms serve as a barrier between these protesters and potential criminal charges?

Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees everyone the fundamental freedom of thought, belief, opinion and expression, including the freedom of the press and other media of communication. The purpose of this guarantee was defined by the Supreme Court of Canada in R v Keegstra.  The three core reasons the right to freedom of expression is important are;

1. 1) To ensure the free flow of ideas in a democratic society
2. 2) To ensure free debate in order to allow truth to prevail in the market place of ideas
3. 3) To ensure citizens’ ability to self realize through expression is not restricted

Any expression that furthers the aim of any of these three purposes will be aggressively protected by the Charter. The topics protesters seek to bring attention to are likely to fall under one of the three types of speech listed above. An expression includes any kind of activity that conveys, or attempts to convey meaning. All forms of expression, except for violence, are protected.  The expression of protesters at the G20 summit will only be protected by the Charter if the chosen form of expression is non-violent.  Protesters are not permitted to throw things at passers-by, assault people or damage property.  Protesters who choose to participate in violent forms of expression will not be protected by the charter.

In Reference re Public Service Relations Act, the Supreme Court of Canada stated that although the freedom on peaceful assembly is a separate and distinct right, it is closely related to the freedom of expression.  Sections 2 (c) of the Charter, guarantee everyone the fundamental freedoms of (c) peaceful assembly.  The right to assemble is recognized as a human right, a political freedom and a civil liberty. The freedom allows citizens to assemble in public places in the context of a protest. Gathering together in a large group for a peaceful protest is a protected Charter right.

However, neither of these guaranteed freedoms is absolute.  The limitation on all our rights is set out in Section 1 of the Charter which states; “

The 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.

The scope of a person’s right is limited by the rights of others. The rights of individuals to assemble and express must be balanced against the right of society to peacefully enjoy public places. Before taking the opportunity granted during summit, be sure you know the scope of your rights, and their limits.  For example section 63 (1) of the Criminal code states;

63. (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Lawful assembly becoming unlawful

(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a manner that would have made the assembly unlawful if they had assembled in that manner for that purpose.

This section makes it a criminal offence for people to gathered together to conduct themselves in a way that will cause an atmosphere of violence. An atmosphere of violence can be created by yelling threats, charging or creating loud noises.  Protesters do not have to participate in violent behaviour themselves to cause an atmosphere of violence. Also, the fact a group of protesters intended to lawfully assemble for a peaceful assembly is irrelevant. It is made clear by section 63(2) that a lawful protest can turn into an unlawful protest if three or more people in the group conduct themselves in way that creates an atmosphere of violence.  Regardless of the reason you have gathered together downtown during the G20 you should refrain from yelling threats, charging or pushing others and throwing things. These types of acts are likely to cause a fear of violence in those around you. The freedom of expression guaranteed by the Charter is limited by the right of others not to walk the streets in fear.  Even spectators and innocent bystanders must behave during the G20.  Section 65 of the Criminal Code, states;

Everyone who takes part in a riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

This section makes it a criminal offence to participate in any conduct that will cause an atmosphere of violence. A riot is a disturbance of public peace that is disorderly, noisy, and turbulent.   When a spectator observes protesters throwing rocks, picks one up and joins in, they can be charged under section 65. A spectator can be charged under this section for participating in non-violent activity such as, marching or making loud noises, provided the groups conduct as a whole can be classified as a riot.

It is still a criminal offence to cause a disturbance when the nature of disturbance cannot be classified as a riot. 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 creates an offence that further limits the way protesters can lawfully express themselves. During the G20 summit the public’s ability to enjoy peace and tranquillity in public places will limit protesters ability to express their concerns.  A disturbance occurs when the ordinary peace and behaviour that can be expected in a location is disrupted.  When the crowd at the perimeter fence is calmly observing, protesters ought to refrain from trying to get the crowd rowdy. Encouraging others in the crowd to engage in violent behaviour and damage property will cause a disturbance. Protester should refrain from aggressive behaviours, such as yelling obscenities, which may entice those around them to participate in disruptive behaviour.  Peacefully protesting at the G20 summit is lawful and unlikely to cause a disturbance.  Protesters are encouraged to march, hold signs and banners, and sing songs. It is important to remember that your freedom to assemble and express yourselves is not absolute. There are limits on the forms of expression protesters can lawfully engage in. If you or anyone you know has been charged with an offence relating to the G20, contact Kostman and Pyzer to ensure your rights are protected.

On June 2, 2010 through an order-in-council, the Ontario government secretly approved new sweeping powers for the police. Many Toronto criminal lawyers believe that these ‘police state regulations’ have gone too far and are inconsistent with Canadian civil liberties and the rights enshrined by the Canadian Charter of Rights and Freedoms. These new police powers allow the  Toronto Police Service and other police agencies to arrest and even jail individuals who refuse to produce identification or be searched within five metres of the security zone implemented for the G20 Summit being held in Toronto. The new measure carries a penalty of up to two months in jail or a $500 fine upon conviction. These new police powers were enacted without any prior announcement or public consultation. The obvious concern is that many Torontonians could walking the street without identification and unknowingly breaking the law by going within five metres of the newly erected security fence. All Toronto criminal lawyers and civilians should be concerned about secret laws and the government’s changing our rights without even telling its citizens. If you have been charged with an offence as a result of the Ontario government’s new measures, immediately contact a skilled criminal lawyer to find out what your rights are. These new sweeping police powers can, and will be, challenged. Toronto criminal lawyers, Kostman and Pyzer, will defend your rights to be protected from unlawful searches, seizures and arrests. Contact us today at 416-658-1818 for a free consultation.

The police may approach you for questioning in a variety of situations. You may be walking down the street, hanging out at school or even driving in your car. It is important to know when the police can lawfully detain you for questioning. Section 9 of the Charter of Right and Freedoms protects your right to be from arbitrary detention.

Although you may think you’re being detained every time an officer stops you, not every stop will legally amount to a detention. Therefore, it is important to know what constitutes “detention”. The Supreme Court of Canada in 2009 defined detention as a suspension of an individual’s liberty interest by a significant physical or psychological restraint. Psychological detention arises when the individual has or reasonably believes they have the legal obligation to comply with restrictive requests or demands of an officer. In that case, three Toronto police officers were patrolling a high crime school area when they saw Mr. Grant acting suspiciously.  A uniformed officer approached him and asked for identification and what was going on. Mr. Grant continued to behave suspiciously. Worried about their safety the officers asked him to keep his hands in front of him.  Two other officers arrived and obstructed Mr. Grant’s ability to walk forward. The court found Mr. Grant was psychologically detained when he was told to keep his hands in front of him and when the other officers moved into a position preventing him from walking forward. 

What if you are pulled over by the police while driving your car? The police can pull you over for either a routine safety check or for a Highway Traffic Act violation.  These are the types of stops that occur when you are speeding, you have a broken tail light or the police have set up a check-stop to ensure all drivers are licensed and insured.  When you are stopped in this situation the driver must surrender all appropriate documents and identification to the officer.  However, the driver and occupants are not compelled to provide any additional information to help the officers’ investigation. The occupants of the vehicle, including the driver, have the right to refuse to answer any investigative questions. Canadian citizens have no duty to assist the police in their investigation of crime.

When you are stopped in this situation the police officers may check the exterior of the vehicle to ensure compliance with the Highway Traffic act. They can check for visual appearance, brake and headlights, signals, meter seal, cleanliness, seat belts, ect.   In the absence of a warrant these types of check do not permit the officers to search the inside of your vehicle. During a traffic violation stop or a routine check the police may only search the inside of your vehicle if they have reasonable and probable grounds to arrest, and the police have a search warrant. 

How can the police form the grounds to arrest you during a routine check or a traffic violation stop? If a prohibited or suspicious item is visible to the officers in their plain view they will form the required grounds to conduct a search of the interior of your vehicle.  Items such as drug paraphernalia, weapons, break and enter tools or anything resembling them may permit the police to search the inside of your vehicle, in the absence of a warrant.  Neutral items, such as pagers and phones or items which could be found in any car for any legitimate reason will not justify a search of your vehicles interior or trunk.

What if you are walking down the street and the police stop you for questioning? The police have a limited power to stop you in this situation. They are allowed to stop you for investigative purposes. However, this is only permitted when an on duty officer can put a reason into words why he/she believes you are implicated in current or recent criminal activity. Discriminatory reasons do not amount to an articulable cause for detention. This means, they may not stop you on the sole reason of your race, gender, or membership in a group. This detention is very limited. The police may ask for your name, identification and reason why you are present at the scene.  The police may only search you in this situation if the officer has reason to believe his safety is at risk. They may not search for evidence or drugs, they may only search for weapons or anything that may jeopardize their safety. The Supreme Court of Canada has directed that one can only be detained for investigative purposes in circumstances wherein the police have a reasonable suspicion that the person is involved in specific criminal activity. A suspicion or hunch is not enough.

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.

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.

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!

A Peacebond is a court order requiring a specific individual to “keep the peace and be of good behaviour”. A peacebond is not a conviction and it will not appear on your criminal record.  However, a peacebond can restrict your liberty. Sometimes, in addition to requiring that the recipient “keep the peace and be of a good behaviour”, a peacebond will also set out specific conditions intended to protect a person or a specific type of property. Generally speaking, a s. 810 peacebond is Canada’s version of a “restraining order”. The most common conditions contained in peacebonds require that the recipient not be within a specific distance of a particular person or that person’s family, refrain from going near a person’s property, not communicate with a specified person or that person’s family, and/or that the recipient not be in possession of any weapons or firearms. A peace bond can be issued either under s. 810 of the Criminal Code or under the common law.

Section 810 Peacebonds

Section 810 allows any individual to apply to the court for a peacebond against any individual whom they reasonably believe poses a threat to their personal safety, the safety of their spouse or child, or their personal property. An application can be made at any time and it is not necessary for the applicant to initiate criminal proceedings against the potential recipient. The main requirement is that the applicant fears, on reasonable grounds, that the potential recipient may hurt the applicant, in some way. This includes not only physical harm but also harm of a sexual nature and damage to property. Section 810 specifically requires that the applicant’s fear be based on “reasonable grounds”. A judge will determine whether the applicant’s fear is reasonable on a case-by-case basis taking into account several factors such as: any threats made by the potential recipient, any past violent behaviour on the part of the potential recipient towards the applicant or others, the relationship between the applicant and the potential recipient, and any other relevant factor. If the judge is satisfied that it is more likely than not that the potential recipient poses a harm to the applicant, the judge will order that the defendant enter into a peacebond to keep the peace and be of good behaviour. Once the judge is satisfied that a s. 810 peacebond should be issued, i.e., that the recipient poses a threat to the applicant in some way, he or she is obligated to consider including conditions limiting the recipients ability to interact with the applicant, communicate with the applicant, or posses any weapons or firearms.

Section 810 also includes special rules for applicants who reasonably fear that another individual may commit an act of terrorism, a sexual offence against the applicant, or inflict serious personal injury to the applicant.

Common Law Peacebonds

A common law peacebond, on the other hand, can only arise in the context of a criminal trial. Every judge has what is known as a “common law power” to order that a defendant enter into a peacebond. Thus, even if a judge is not satisfied beyond a reasonable doubt that a defendant in a criminal matter is guilty, that judge may issue a peacebond against the defendant to protect the complainant from any future harm or retaliation for laying criminal charges. In situations like this, the peacebond is not a finding of guilt and will not appear on the defendant’s criminal record. In minor cases, the Crown Attorney’s office may withdraw a charge in exchange for the defendant agreeing to enter into a peacebond. However, according to the Crown Policy Manual, the Crown Attorney’s Office will agree to a peacebond as an acceptable remedy for domestic abuse only in “the most unusual of circumstances”.

A section 810 peacebond can be issued for a maximum of one year, while the duration of a common law peacebond is at the discretion of the court. The conditions contained in the peacebond can be relaxed at any time during the life of the peacebond. A criminal defence lawyer can help you to negotiate with the Crown Attorney’s Office to relax the terms of either type of peacebond. If a peacebond is ordered against you and you refuse to enter into the peacebond (by refusing to sign it) you can be charged under the Criminal Code and liable to 12 months imprisonment. Failing to comply with the conditions of a peacebond is also a criminal offence.

One of the first questions a client asks whcn charged with Domestic Assault is if there is any way that they could “get” a Peace Bond. Of course, in most  cases of domestic assault the Peace Bond is a happy ending. The charge is withdrawn. The accused avoids a criminal record. Life returns to normal. In some cases the parties have reconciled. Often, the relationships that gave rise to the allegations, cannot survive the test of bail orders restricting contact and the fact that the complainant made the accusation to the police.

The reality in the present criminal justice system is that Peace Bonds are very hard to obtain in the context of a domestic assault allegation. In some jurisdictions, it is almost impossible to obtain a Peace Bond prior to a trial date. On the trial date, where the prosecutor is of the view that the evidence in support of the allegation is not strong enough for a Court to convict, the client may be offered a Peace Bond. The nastier the allegation, the more likely that the prosecutor is going to let the Court make the call rather that be critized later if the Peace Bond creates a controversy.

Generally speaking, given the current political landscape of the offence of Domestic Assault, a Peace Bond is only available in the most minor cases. Threats of violence without any violence, or history of violence, may qualify,. This is  especially true if the allegation is of a he said she said nature, and unsupported by corroborative evidence. In these cases, the prosecution is aware of the fact that a conviction is unlikely.

A Peace Bond may also be available if the nonconsensual touching is viewed as very minor, and there is no history of violence between the parties. A push. Sometimes a slap. The fact that the accused has some indication of bruising can also be a factor which may influence a prosecutor to exercise their discretion to agree to a Peace Bond. The accused’s bruises would advance his defence that the complainant was the aggressor and he was acting in self-defence.

Most courthouses in the Greater Toronto area have one or two domestic assault court days wherein those individuals charged with domestic assault related offences, appear. In the current prevailing politic individuals charged with domestic assaul are generally offered a quick exit from the justice system. Where there is no history of domestic violence,and so long as there is no significant injury to the complainant, the average accused person is offered a conditional discharge (a guilty plea which is not technically a criminal record). The bail is varied to allow the parties to reconcile (with the complainant’s written consent). After the person completes the four month one night per week Partner Assault Response Spousal programme (anger management in a spousal context), they are placed on Probation.

At Kostman and Pyzer, Barristers, we are well informed, experienced, and familiar with the politic underlying Domestic Assault prosecution policies.  We can’t promise you a Peace Bond, but we can advance a strong argument that one should be available in the particular circumstances of your case.

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.

Usually a trial ends with a finding of either “guilty” or “not guilty”. However, sometimes the court will find an individual “not guilty by reason of mental disorder”. These individuals actually committed the acts they are accused of, but because of some sort of mental disorder are unable of possessing the “guilty mind” the law requires to find an individual guilty. Thus, they are deemed Not Criminally Responsible for their actions, or “NCR”.

Not every person with a mental illness will be able to raise a successful NCR defence. In fact, NCR defences are only available to individuals who have certain forms of mental illness. The requirements an individual must meet to raise a successful NCR defence are outlined in the Criminal Code of Canada.

According to the Criminal Code, every individual is presumed to be sane under the law, unless proven otherwise. In order to raise a successful NCR defence, one party to the trial must rebut that assumption by showing that the individual’s mental illness has all of the components required by statute to qualify the individual as NCR. The first requirement is the existence of a mental disorder. The second requirement is incapacity on one of two grounds as a result of that disorder.

The meaning of the phrase “existence of a mental disorder” has received a lot of attention from judges and legal scholars. A mental disorder is traditionally defined as a “disease of the mind”. According to the Supreme Court of Canada in the 1980 case Cooper v. The Queen, a “disease of the mind” is any illness, disorder or abnormal condition that impairs the human mind and its functioning. Thus, a disease of the mind is any medically recognized disorder, but does not include self-induced mental states (through drugs or alcohol) or transitory mental states (such as extreme anger which passes).

However, just because an individual possesses a “disease of the mind” does not mean they will necessarily be able to raise a successful NCR defence. In order for the defence to be successful, the court must find that one of two kinds of incapacity defined in the Criminal Code occurred as a result of the disorder and were present at the time of the event in question. The first form of incapacity is an inability to appreciate the nature and quality of the act. In order to understand the nature and quality of an act, an individual must be able to know what he or she is doing and understand the natural consequences of the act. It is not sufficient that the accused does not understand the legal consequences of the act or has an inappropriate emotional reaction to the event. Thus, for example, if the accused was to shoot someone, he could raise a successful defence of NCR if he did not know he was shooting a person or was unable to appreciate that shooting a person could result in that person’s death. However, if the accused simply did not believe that he could be arrested / punished for shooting another person or if he did not feel any guilt or remorse for shooting the person, he would not have a defence of NCR.

The second form of incapacity is that the accused is unable to appreciate that an act is morally wrong. According to the Supreme Court in R. v. Oomen, in order to be considered sane and therefore criminally responsible, the accused must have the capacity to know that the act is wrong according to the ordinary moral standards of a reasonable member of society. In other words, if the accused lacks the basic capacity to understand that society would consider their actions morally wrong, the NCR defence may be available to him. Thus, an individual diagnosed as a psychopath, who does not believe that murder is morally wrong but has the capacity to understand that society believes that murder is morally wrong would not be eligible for this defence. On the other hand, an individual diagnosed with schizophrenia who believes that the individual they killed is the devil and god instructed them to kill that devil, may be able to benefit from the NCR defence, because they believe that what they are doing is actually morally right.

When an individual is found to be Not Criminally Responsible and therefore not guilty by reason of mental disorder they are not necessarily released back into the general population. A Provincial Review Board comprised of experts in the area will review the verdict and determine whether the individual should be put into the NCR stream. Upon determining that an individual is NCR, the Board will decide what action should be taken in response to the individual’s actions. Since the individual is not considered morally to blame for their actions, the Board will try to make the least intrusive recommendation possible.  The Board may choose to grant an absolute discharge, a conditional discharge (psychiatric releases, not sentence dispositions), or may decide to detain the individual in a psychiatric hospital. If the individual is granted an absolute discharge they are free to go; However, all other dispositions require a mandatory review every 12 months by the Board. Individuals detained in psychiatric hospitals are given indeterminate sentences to be reviewed on a regular basis by the Board.

There are several pros and cons to an NCR defence. On one hand, individuals who are truly mentally ill are directed into institutions designed to deal with their medical conditions instead of being placed into the regular jail population. On the other hand, psychiatric hospitals are often overcrowded, under staffed, and unable to provide the proper treatment NCR individuals would benefit from in the long run. The NCR defence can be raised by the by a criminal defence lawyer, however it can also be raised by the Crown or by the court (i.e., by the judge), if any one of them believe the accused individual should be put in the NCR stream. Defence lawyers therefore can be called upon to argue either side of the NCR defence depending on what is in the best interest of their client.