Toronto Criminal Lawyers Blog

Sexual assault is a criminal offence under s. 271 of the Criminal Code. Sexual assault is defined as any form of sexual contact without the consent of either party involved in the “sexual” activity.

Consent is a defence to sexual assault. If the accused and their criminal defence lawyer can satisfy the court that the complainant actually consented to the sexual act, the accused will not be found guilty of sexual assault.

According to s. 273.1(1), “consent” is defined as the voluntary agreement of the complainant to engage in the sexual activity in question. To constitute consent for legal purposes, the complainant must have consented voluntarily; thus, consent is meaningless if it is obtained through threats. Moreover, the complainant must have consented to the specific sexual activity the court is considering. Thus, it is not a defence that the complainant consented to sexual activity with the accused in the past. He or she must have consented to the specific sexual act that is alleged to be objectionable.

Moreover, there are several situations in which the court deems that consent is “vitiated” – in other words, though it may seem that the complainant consented, his or her consent “doesn’t count” as a defence to sexual assault where the “consent” in not voluntary and with full knowledge of the nature of the sexual act. Under s. 273.2, consent is “vitiated” in a number of ways:

(1)  If the complainant is “incapable” of consenting because he or she is not old enough, or unable to understand due to extreme mental or physical disability, consent is vitiated by law. However, there are other special sections of the Criminal Code dealing with sexual assault against minors or the disabled, so the issue of consent would have to be considered in the context of the special rules associated with those offences, and the specific ages of the alleged offender and the complainant.

According to legal precedent, a complainant is “incapable” of consenting to sex if he or she is so intoxicated that his or her consent is meaningless. Thus, if the Court determines that the complainant was so intoxicated that he or she could not possibly have comprehended the significance of giving consent – even if it seemed to the accused at the time that the complainant was consenting – the consent will not count as a defence to sexual assault. However, where the accused has a mistaken but honest belief in consent and that belief is held on reasonable grounds, they cannot be convicted, since there is a lack of mens rea or criminal intent.

(2)  Consent is also vitiated if the accused is (a) in a position of trust, power, or authority, and (b) he or she uses that position to induce the complainant to perform sexual activity. This section applies to teachers, bosses, psychiatrists, doctors, and other individuals who have a relationship of power, control, or dominance over the complainant. The person must not only be in a position of power, but must abuse that power to convince the complainant to consent to sex.

(3) Consent can also be vitiated by conduct. Thus, even if the complainant says the word “yes”, but expresses somehow by words or actions that he or she actually means “no”, the consent will not count at law. Moreover, if part way through the sexual act, the complainant expresses through words or conduct, that he or she did not wish to continue, any sexual activity after that point will be considered non-consensual.

(4)  The court must also consider the accused’s own mental state to determine whether consent is a valid defence. The defendant cannot claim that the complainant indicated consent through words or actions if the accused’s belief in consent arose from his or her own self-induced intoxication or recklessness or willful blindness. In other words, if the accused went through with the sexual activity without any regard to whether the complainant was consenting (recklessness), or purposefully ignoring any signs that the complainant might not be consenting (willful blindness), then consent is vitiated. Moreover, if the accused was so drunk that they didn’t pay attention to whether the complainant was consenting, this is not a defence to sexual assault. If, however, the accused became intoxicated through no fault of their own, for example, if their drink was drugged at a party, the court may take this into account when deciding whether to accept the defence.

As a general rule, under s. 272.2(b), the accused is under a legal obligation to take steps, in the circumstances known the accused at the time, to ensure that the complainant consents to the sexual act.

Finally, under s. 265(2), consent is vitiated if the complainant only consented to sexual activity because of fraudulent representations made by the accused. Thus, if the accused committed fraud in order to obtain consent, the complainant’s consent would not “count”. However, only certain types of fraud vitiate consent. These are fraud as to the actual nature of the act or any bodily harm that might result from the act.  For example, if a doctor told his patient that he was performing a medical procedure to obtain her consent and then actually committed a sexual assault, that would constitute fraud as to the nature of the act, and the patient’s consent would be vitiated. Or, if the accused told the complainant that the sexual activity they were going to engage in would not be violent, and then proceeded to act violently, the complainant’s consent would be vitiated due to fraud. However, if the accused simply lied about their name, age, marital status, job, or other personal details, this would not constitute fraud for the purpose of vitiating consent.

There is some case law supporting the argument that lying about your HIV status constitutes a form of fraud which can vitiate consent. Thus, if the complainant consented to sex based on the accused’s statement that he or she was not HIV positive, consent would be vitiated due to fraud and the accused would likely be found guilty of sexual assault. Recently, there have been prosecutions of individuals for sexual assault and criminal negligence causing harm or death, where the accused was HIV positive and did not disclose that fact to his partner prior to unprotected sexual activity.

There is confusion amongst members of the public as to whether or not simple possession of marijuana is illegal. This confusion has been caused by various court decisions and a policy of discretionary enforcement by the police. Simple possession of marijuana, possession for the purpose of trafficking, and production of marijuana are illegal in Canada. The law as it relates to simple possession of cannabis (less than 30 grams for personal use) is contentious in some areas. It is important to note that, in 2007 Toronto Police spokesman Mark Pugash said that, despite some discrepancies in the law, nothing will change about how the police deal with marijuana for the time being. Thus, while this article provides a helpful summary of the evolution of the law with regards to marijuana in Canada, we suggest that you do not change your personal practices based on the information contained in this article. One should remember that although even the various police associations have recommended decriminalization, possession is still illegal, and a finding of guilt in relation to simple possession of marijuana can have far reaching consequences.

Medical Marijuana

In the 2000 decision, R. v. Parker, the Supreme Court of Canada declared that the law against possession of marijuana violated the Canadian Charter of Rights and Freedoms insofar as it failed to create an exception for medicinal marijuana use. The defendant, Terrance Parker, suffered from severe epilepsy. He tried to control his seizures through conventional medicine and surgery but found that neither improved his condition as much as smoking marijuana. He grew his own marijuana plants since there was no place where he could legally obtain the drug. Twice, the police raided his home, confiscated his marijuana and he was charged with production of marijuana. At trial, he argued that the law prohibiting marijuana possession infringed his s. 7 Charter of Rights right to “life, liberty, and security of the person”. The Ontario Court of Appeal considered both the harmful and therapeutic effects of marijuana and came to the conclusion that the law against possession of marijuana for therapeutic/ medical purposes was unconstitutional. The Court declared that Parker should be able to make choices about his medical treatment as those decisions would greatly affect his overall health. The law against possession interfered with Parker’s security of the person by depriving him of the ability to make decisions that would affect his physical and psychological integrity without fear of criminal prosecution. Moreover, the court found that the “blanket provision” on marijuana possession, without an exception for medical use, did not enhance the interests of the state and therefore there was no justification for interfering with Parker’s right to make decisions over his own healthcare. However, the Court also found that the prohibition on marijuana for recreational use did enhance state interests by preventing the harms associated with marijuana. The court concluded that s. 4 of the Controlled Drugs and Substances Act, the prohibition against possession of marijuana, was too broad in that it did not contain an exception for medicinal use of marijuana. The court declared the section invalid, but suspended the declaration of invalidity for one year to allow Parliament an opportunity to draft a new prohibition that included in it an exception for medicinal use.

The government of Canada responded swiftly to the decision in R. v. Parker. In July of 2001, Health Canada issued a set of regulations giving individuals access to marijuana for medical purposes. The Medical Marijuana Access Regulations, which went into effect July 31st, 2002, outlined two categories of individuals who may legally access marijuana prescribed by their doctor. Category 1 patients include:

·      Individuals suffering severe pain from multiple sclerosis, spinal cord injury, or spinal cord disease,

·      Individuals suffering severe pain, cachexia (loss of body mass that cannot be reversed nutritionally), anorexia,            weight loss, and/or severe nausea from AIDS or cancer,

·      Individuals suffering severe pain from arthritis, and

·      Individuals suffering seizures from epilepsy.

Category 2 allows individuals suffering from debilitating symptoms from medical conditions (most commonly severe pain), other than those described in category 1, to apply to Health Canada for access to medicinal marijuana. Category 2 individuals must have the support of a medical practitioner. Individuals who have a condition described in category 1 or who are approved under category 2 can legally obtain medicinal marijuana distributed by the company CannaMed or can grow their own for personal consumption. It is also possible to become a licensed grower for others with medicinal need.

Thus, it is possible to have legal access to marijuana for medical purposes in Canada. More controversial is recent legal opinion on the legality of recreational use of marijuana.

Recreational Use

Ever since marijuana was criminalized in Canada in 1923 there has a strong opposition movement that continuously advocates for legalization or decriminalization of the drug. As early as 1972 Canada’s Le Dain Commission recommended the decriminalization of cannabis. Legalization advocates often point out that the drug is no more harmful than alcohol or tobacco and should therefore be regulated in a similar fashion.

Activists and litigants usually make one of two constitutional arguments in favor of cannabis legalization.  First, many marijuana activists claim that smoking marijuana is not really an act of a criminal nature and as such the federal government does not have the authority to ban it under the criminal law power. The Constitutional Act of 1867, divides law-making power between the federal government and the various provincial governments. The federal government has jurisdiction over all matters of criminal law, whereas the Provincial governments have law-making power over issues dealing with property and civil rights. Many marijuana activists claim that banning marijuana is not actually a matter of criminal law since smoking marijuana is neither harmful nor immoral. They further argue that regulating marijuana is rightly a property issue and that as such only the province has the power to regulate the use, distribution, and sale of marijuana. This argument would equate marijuana with alcohol, which is also regulated independently by the governments of each province.

Courts have, for the most part, rejected this argument and concentrated on the harmful effects of marijuana such as health effects for users, international effects of drug trafficking around the world, and issues with production and trafficking and their relationship to terrorism and organized crime both in and outside of Canada, to continue to view marijuana as a criminal issue.

Nonetheless, there has been some support from government sources for the view that marijuana is not harmful and should be treated on par with tobacco and alcohol, rather than under the matrix of the Controlled Drugs and Substances Act. For example, in September of 2002, the Special Senate Committee on Illegal Drugs reviewed Canada’s anti-drug law and concluded that marijuana is not a gateway drug and should be treated more like tobacco or alcohol than harder drugs such as cocaine or heroin.  Their report stated that, “the continued prohibition of cannabis jeopardizes the health and well-being of Canadians much more than does the substance itself.” In response, the House of Commons Special Committee on the Non-Medical Use of Drugs did an overall audit of Canada’s drug strategy and concluded that though marijuana is unhealthy, the criminal penalties for possession and use of small amounts of cannabis at the time were disproportionately harsh. The Committee recommended that the Canadian Minister of Justice and Minister of Health create a strategy to decriminalize possession and cultivation of a specified amount of marijuana (less than 30 grams for personal use).

Following the Committee’s recommendations, the Chrétien government introduced several versions of a bill to decriminalize simple possession of marijuana from 2002 to 2003. This effort was originally geared towards decriminalization, but as time moved on, the focus shifted to prescribing alternative penalties; fines rather than criminal charges would be prescribed when individuals were found with small amounts of marijuana. To date, the federal government has not followed through with Bill C-17. The current Harper administration has instead proposed Bill C-15, which proposes to create mandatory minimum sentences for production of marijuana. If Bill C-15 passes into law, individuals convicted of growing even one marijuana plant would face a mandatory minimum of six months imprisonment. Bill C-15 has been passed in the House of Commons and is currently under review in the Senate. Bill C-15 seems to indicate a sharp change in the Canadian government’s attitude towards small-scale marijuana use.

The second common argument legalization activists make is that the law against simple possession of marijuana violates the Canadian Charter of Rights and Freedoms in some way. During the last 5-10 years, there have been judicial decision decisions both affirming and rejecting the argument that the law against recreational use of marijuana violates the Charter. This has led to some confusion over the legal status of marijuana.

In January 2003, an Ontario provincial court judge, Justice Douglas Phillips, declared in R. v. J.P. that, based on the ruling in R. v. Parker, s. 4 of the Controlled Drugs and Substances Act [CDSA] dealing with simple possession of marijuana was invalid. As mentioned above, in the Parker case, the Ontario Court of Appeal declared that s. 4 of the CDSA was invalid in that it did not create an exception for medicinal marijuana. The court then suspended the declaration of invalidity for one year to give the government a chance to draft an alternative provision. In response to Parker, the Canadian government enacted the Medicinal Marijuana Access Regulations; however, it never enacted an amended version of s. 4. Justice Phillips concluded that, as of July 31st, 2001 – when the one-year suspension on the declaration of invalidity ended – s. 4 was officially declared invalid and therefore no longer had any legal effect. Just nine months later in October 2003, the Ontario Court of Appeal reversed Justice Phillips decision in R. v. J.P. The court said that, while the medicinal marijuana regime needed to be improved, the law against recreational marijuana was constitutional despite the defendant’s argument that it violated s. 7 of the Charter.

In December 2003 the s. 7 question finally came before the Supreme Court of Canada in R. v. Malmo-Levine. Section 7 of the Charter of Rights declares that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The defence argued that, by attaching a criminal penalty of imprisonment to simple possession of marijuana, s. 4 of the CDSA deprived him of liberty in a manner that is not in accordance with the principles of fundamental justice. The defence suggested that it is a principle of fundamental justice that the criminal law can only prohibit activities that cause some sort of harm. The court disagreed, concluding that while the “harm principle” may be one consideration legislators take into account when enacting laws, it does not constitute a “principle of fundamental justice”. Moreover, the court said that while arbitrary or irrational laws could be quashed under s. 7, the prohibition against simple possession of marijuana was neither irrational nor arbitrary. Malmo-Levine also failed to convince the court that the penalties associated with marijuana were unconstitutional pursuant to s. 12 of the Charter (the prohibition against “cruel and unusual punishment”) or s. 15 of the Charter (the equality provision). The court unanimously ruled that the law against recreational use of marijuana did not violate the Charter in any of the ways suggested by the defence in Malmo-Levine.

Barely four years later, in 2007, the constitutionality of the law against simple possession came before the court again in R. v. Long. A judge of the Ontario Provincial Court found that the law against simple possession was unconstitutional in that it did not contain a specific exemption for medicinal marijuana. Like in R. v. J.P., the judge in Long believed that the policy remedies introduced by the government through the Medical Marijuana Access Regulations, the Interim Supply Policy, and the Policy on the Supply of Marihuana Seeds and Dry Marihuana, did not address the specific problems in the wording of s. 4 of the CDSA. However, in 2008, the Ontario Superior Court of Justice reversed the decision saying that the circumstances resulting in s. 4 being found unconstitutional in Parker had been remedied by the Regulations and Policies mentioned above.  As a result, the Court held, the current s. 4 provision is constitutional.

Thus, the law against simple possession seems to be continuously evolving. Different judges have different interpretations of the law and criminal defence lawyers are constantly advancing new and creative arguments attacking the constitutionality of the law. Nonetheless, for the time being, simple possession of marijuana remains illegal.

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.

Sometimes when an individual is charged with a crime, he or she will be detained in custody pending a bail hearing. At the bail hearing, the Crown Attorney must “show cause” – i.e., show the court why the accused should be kept in custody until his or her trial. If the Crown cannot satisfy a judge that there is cause to keep the accused in custody, he or she will be released into the community on bail while awaiting trial. The Crown can show cause that the accused should be detained only by establishing one of the following grounds:

1. That the accused is likely to fail to appear in court or flee the jurisdiction;

2. That the accused must be detained in order to protect the public; and/or

3. That the accused must be detained to maintain public confidence in the administration of justice.

Criminal defence lawyers and other legal professionals generally refer to the third ground as the tertiary ground.

The tertiary ground may be invoked by a Court to deny bail where public confidence in the judicial system would be damaged if the accused is released. It is generally accepted that a judge should only deny bail on the basis of the tertiary ground alone in exceptional cases involving heinous offences. For example, denying bail based on the tertiary ground was upheld by the Supreme Court of Canada in R. v. Hall, where the deceased was brutally murdered and almost decapitated. However, it is very important that the tertiary ground is not misused by judges caving to irrational public fears.

There are several factors a judge must consider before denying bail based on the tertiary ground. These include (a) the importance of the presumption of innocence, (b) the significance of the accused’s right to liberty and the constitutional right to bail, (c) the granting of bail must be considered on a case-by-case basis and there are no offences for which bail is automatically granted or prohibited, (d) the actual nature of the allegations and the fact that the allegations may or may not be proven at trial, (e) pre-trial custody can last for many months and can be a significant hardship on the accused and his or her family members,  and can complicate the accused’s ability to prepare their defence (f) the bail process should not be used to punish the accused before trial.

Canadian courts have refused to detain accused individuals solely on the basis of the tertiary ground even when they were accused with offences that most people would consider extremely disturbing. For example, the Court released a man accused of beating a robbery victim to death despite the Crown’s argument to detain him based on the tertiary ground, in R. v. Trout. In R. v. Ibrahim, the court released a man accused of deliberately beating a homeless person to death, based on the narrow interpretation of the tertiary ground. However, the court has used the tertiary ground to deny bail for extremely shocking or heinous offences, such as the brutal murder in Hall or the situation in R. v. White where a man was charged with the first-degree murder of his pregnant wife.

The decision to not detain an individual based on the tertiary ground alone requires that the court balance the shocking or egregious nature of the crime against the presumption of innocence and the accused’s Charter of Rights right to reasonable bail. Because of the emphasis on the presumption of innocence, the court is much more reluctant to apply the tertiary ground in situations where the evidence against the accused is weak. The court has indicated that in youth matters, the tertiary ground should be applied extremely rarely.

Recently, Toronto criminal defence lawyers have noticed that judges are more willing to apply the tertiary ground in situations involving guns and gang violence. This is partially explained by the increasing media attention and public awareness of gun and gang violence in the Greater Toronto Area.

Since 1996, judges in Toronto and throughout Canada have been able to sentence those found guilty of a crime to a conditional sentence as an alternative to incarceration. Canada has one of the highest rates of adult incarceration in the world. The conditional sentence was designed to allow some offenders who are sentenced to serve a prison term of less than 2 years to serve their sentence out in the community, under strict conditions and supervision. Conditional sentences are very popular with Toronto judges. Since the introduction of the conditional sentence, Toronto criminal lawyers have seen the rate of incarceration jump from 37% of convicted offenders in 1997 to 42% of convicted offenders in 2000, mainly because judges are granting conditional sentences where in the past they may have imposed a probation order rather than a sentence of incarceration.

Before choosing to impose a conditional sentence, a judge must be satisfied that the appropriate term of imprisonment is less than two years, that the offender does not pose a threat to the community, and that service of the sentence in the community would be consistent with the fundamental principles of sentencing outlined in the Criminal Code. In addition, a judge cannot impose a conditional sentence if the offence for which the offender is convicted carries a minimum sentence. Moreover, in 2007, Bill C-9 was passed, which made it impossible for judges to impose conditional sentences if the offence for which the offender is convicted is punishable by 10 years or more and is classified as a serious personal injury offence (e.g., sexual assault, aggravated assault, assault with a weapon, etc.), a terrorism offence, or an organized crime offence.

A conditional sentence is not the same as probation, though the optics are similar since in both circumstances the offender lives in the community but supervised by a Conditional Sentence supervisor and subject to conditions. However, according to the Supreme Court of Canada, probation is appropriate where the focus is on rehabilitation, whereas a conditional sentence is appropriate where the focus is on both rehabilitating and punishing the offender. A conditional sentence is imprisonment without incarceration in a custodial environment. Therefore, it is only appropriate to impose a conditional sentence in circumstances where imprisonment is warranted. Because of the focus on punishment, the conditions attached to a conditional sentence are often much more restrictive than those attached to a probation order.  According to the Supreme Court, house arrest should be a common requirement of a conditional sentence.

The Criminal Code outlines several mandatory and/or optional conditions of a conditional sentence. Mandatory conditions include keeping the peace and being of good behaviour, reporting to a supervisor, and remaining in the jurisdiction of the court. Optional conditions include a condition to abstain from drugs and/or alcohol, to abstain from owning, possessing or carrying a weapon, to provide support and care for any dependents, or to perform up to 240 hours of community service. The judge also has the power to impose any reasonable condition the court considers desirable in the circumstances. It is by virtue of this authority, that a Court will impose a condition of house arrest.

A condition of house arrest requires that the offender remain within in his home for a prescribed period of time. The conditional sentence order will ordinarily set out specific circumstances in which the offender may leave his or her home, for example, to go to the hospital in case of emergency, to report in with his or her court appointed supervisor, to go to work, or to go to school. At all other times, the offender must remain within the boundaries of his or her property. Often, the Court will allow for a small window of opportunity for the offender to look after their basic needs (for instance to shop for necessities). The Court will also ordinarily allow an exception for religious observation.

Compliance with a term of house arrest is monitored by the police and the conditional sentence supervisor. However, there is a growing trend for judges to enroll offenders in the Electronic Supervision Program as a condition of their conditional sentence.  The Electronic Supervision Program uses electronic monitoring technology to monitor an offender’s compliance with the terms of his or her house arrest. Offenders are fitted with a tamper-resistant, radio frequency based anklet transmitter. The anklet will send radio frequency signals to a receiver device installed in the individual’s residence. The offender’s presence or absence from the home is monitored by the Ontario Ministry’s Monitoring Center, 24 hours a day, seven days a week. Any violation of the individual’s conditional sentence as well as any technical issues with the monitoring equipment (including any attempt to tamper with an anklet or receiving device) will be immediately reported through a central computer to the Ministry’s Monitoring Center.  Registration in the Electronic Supervision Program is only an available condition for adult offenders. To be eligible for the Electronic Supervision Program, the offender must have a residence and a landline telephone. Toronto criminal defence lawyers have struggled with the growing use of electronic monitoring; however, Toronto lawyers have nonetheless noticed an increased use of these devices in recent years.

In Canada, the average length of a conditional sentence is 8 months. All or part of that may be spent under house arrest. As the sentence progresses, the conditions of a conditional sentence can be varied by a judge upon application by the offender and with the support of the conditional sentence supervisor. If the offender fails to comply with his or her conditional sentence, for example by violating his or her house arrest, he or she may be arrested and ordered to appear before a judge at some point in the next 30 days. If the judge is satisfied that the offender breached a condition of his or her conditional sentence, the judge may do nothing, vary the optional conditions, require the offender to serve a portion of the remainder of his or her term in custody, or require that the offender serve the entire remainder of his or her term in custody.

Facing criminal charges can be intimidating and stressful. One of the first obligations the court puts on an individual accused of a crime is to “retain counsel”. In other words, the court hopes that you will find a lawyer as soon as possible to help you with your case. We strongly encourage you avoid representing yourself (see our blog on “The Self-Representing Accused” for more information on the dangers of representing yourself at trial). However, we understand that choosing a lawyer can often seem like a daunting task. There are so many lawyers to choose from and there are so many factors to consider. Here is some advice on how to sort through all the information to choose the ideal lawyer for you.

The first thing to keep in mind is that if you are facing criminal charges you should be looking for a criminal defence lawyer. You may already have a lawyer who looks after your business, taxes, will or other matters. However, finding a lawyer is not like finding a family doctor — one lawyer cannot deal with all your legal problems. The type of lawyer you select should correspond to the problem you are facing. Though there are some lawyers who do not specialize in criminal law who will take criminal law cases, most lawyers only practice in one area of law. When you begin searching for a lawyer to represent you in your criminal charges, you can make your search much easier by limiting it to criminal defence lawyers from the outset. Moreover, it is in your best interest to select a lawyer whose focus is criminal law. Criminal charges can jeopardize your livelihood and liberty, so you want to make sure that the individual who represents you is an expert in criminal matters.

Once you have limited your search to criminal defence lawyers, you will notice that there are a lot of factors which differentiate between individual practitioners of criminal law. People wading through all the information on the different lawyers out there often choose to focus on factors such as age, what law school the lawyer attended, and what firm the lawyer works with. These factors are largely irrelevant. Some young lawyers have excellent success rates — far outshining older lawyers. Some of the best lawyers choose not to work in large firms and prefer to work as sole practitioners for lifestyle reasons that have nothing to do with their legal competence. Finally, excellent criminal defence lawyers, judges and legal scholars have graduated from every Canadian law school. At the end of the day, the most relevant factors when it comes to choosing a criminal defence lawyer are cost, personality and experience.

Your budget will be a major determinant of what lawyer you retain. However, this is not necessarily a bad thing. It is simply not the case that all the good lawyers are incredibly expensive. Moreover, some of the best lawyers in and around Toronto do a great deal of Legal Aid case work. If you do require Legal Aid, you should inquire at the Legal Aid Office closest to you about obtaining a list of lawyers in your area who take Legal Aid cases.

If you do not require Legal Aid, you must decide how much you are willing to pay for a lawyer. Remember that in some cases, a good criminal defence lawyer may be the most important investment you make in your life, as your criminal defence lawyer is the most significant person standing between you and a criminal record, large fine, conditional sentence and/or, most importantly, jail time. With that in mind, make a generous but realistic determination of what you can afford. Try asking yourself two questions: (1) “how much do I want to pay for a lawyer?” and (2) (depending on the type of charges you are facing) “how much can I pay to avoid going to jail?” or “how much can I pay to avoid having a criminal record?” or “how much can I pay to avoid these charges interfering with my ability to see my children on a regular basis?”. You should aim to find a criminal defence lawyer who charges somewhere between the answer to question (1) and the answer to question (2). Most lawyers will want to meet with you before they give you an estimate of how much your matter will cost. This is because they often have to hear the full story before they can estimate how much time and effort your matter will require. This method is in your best interest as well since the best way to learn important information about a potential criminal defence lawyer, most notably their personality, is to meet with the lawyer in person.

Personality is an important factor to consider when choosing a lawyer. You want someone who you feel comfortable with, as you will have to communicate with your lawyer consistently throughout the trial process. You also want someone who strikes you as being competent and trustworthy. Remember that this lawyer is going to be representing you in court, so if he or she doesn’t make a good first impression when you meet, he or she probably will not make a good first impression on a judge either. Other factors to look for are common sense (as your lawyer will be helping you make important life decisions) and discretion (as you will have to trust your lawyer with some of your most private personal information).

Finally, it is important to look to experience when choosing a criminal defence lawyer. By experience we do not necessarily mean age or even the total number of years the lawyer has been practicing. Rather, we mean the lawyer’s experience dealing with cases similar to your own. A lawyer who has been practicing for five years, but has accepted a high volume of weapons-related cases is far more useful to an individual facing a weapons charge than an individual practicing twenty years but taking mostly impaired driving cases. The lawyers at our offices, for example, specialize in drug-related charges, weapons-related charges, domestic assault charges, drinking and driving charges, theft charges and fraud charges. We also represent a lot of young offenders. If you have outstanding charges in any of these areas, or other similar areas, we invite you to contact our offices by calling 416-658-1818 to arrange a meeting with one of our lawyers.

The Supreme Court of Canada made headlines earlier this year when they released their decision in R. v. Patrick (“Patrick”) which confirmed, for the first time ever, that the police can legally search a suspect’s garbage without a warrant.

Section 8 of the Charter guarantees that every Canadian is free from unreasonable search or seizure. This means that a government agency cannot search an individual’s personal property unless that search is “reasonable”. In most circumstances, before the police search an individual’s property (their home, car, office, or person) they will obtain a warrant. A warrant is like a permission slip that authorizes the search of a place or thing. Without a warrant, it is generally against Canadian law for the police to search any individual’s person (unless incidental to arrest) or property.

However, in Patrick, the Supreme Court of Canada (“SCC”) ruled that the police may legally search an individual’s garbage without a warrant if source of the garbage puts it out to await collection.

The Calgary Police Department suspected Mr. Patrick of producing the drug ecstasy in his home; however, they did not have enough evidence to secure a warrant to search Mr. Patrick’s property. Instead, the police rifled through his garbage on several occasions until they discovered enough incriminating pieces of evidence to obtain a search warrant. They then forcibly entered Mr. Patrick’s home where they found evidence of an ecstasy lab and over 2,500 pills of ecstasy.

At trial, Patrick argued that his constitutional right to be free from unreasonable search and seizure had been violated by the warrantless search of his garbage. The SCC unanimously agreed that his rights had not been violated. The majority stated that when Mr. Patrick placed his garbage by the curb to await collection he had effectively abandoned all reasonable expectation of privacy in the contents of his garbage.

There are several problems with the decision in Patrick.

The first is that the garbage awaiting collection was still situated on Mr. Patrick’s property. Ostensibly, Mr. Patrick has control over who enters and exits his private property. While garbage collectors may have Mr. Patrick’s implicit permission to reach over the property line and collect the garbage he had put out for them, it is safe to say that Mr. Patrick could not reasonably have expected police officers to trespass on his property to obtain the garbage. On the contrary, it seems much more reasonable for Mr. Patrick to assume that police officers would respect the law and refrain from trespassing on private property. In fact, in Calgary, where Mr. Patrick lived, it was against municipal by-laws to scavenge through another individual’s trash. However, the SCC were not convinced that this by-law was sufficient to create a reasonable expectation on the part of a home-owner that the police would not rifle through their garbage — or in other words, the fact that there was a by-law in place does not translate into a reasonable belief that the police would respect that by-law.

Most individuals would be shocked to think that nosy neighbors, reporters, private investigators, ex-spouses, and any other member of the public may legally rifle through an individual’s trash as it awaits collection. However, according to the SCC in Patrick garbage awaiting collection at the curb has been abandoned and an individual has no privacy interest in it. This means that any member of the public would be within their rights to snoop through your garbage. Most Canadians would likely be shocked to know that current Canadian law allows this type of behaviour. Though the average Canadian does not object to their trash being collected by garbage collectors or rifled through by bottle-collectors and the like, these activities are less objectionable because they tend to preserve the home-owner’s anonymity. It seems counterintuitive that police officers and private individuals can legally cross the property line to seize trash from an individual’s property in order obtain information about their private and personal habits against a homeowner’s wishes and without a warrant.
Another major problem with the SCC’s decision in Patrick is that it seems to directly contradict their earlier decision in Stillman. In Stillman, Mr. Stillman was accused of murdering a young girl and brought into RCMP headquarters for questioning. Mr. Stillman was seventeen years old and his lawyer provided the RCMP with a fax instructing them that Stillman was not, under any circumstances, to provide any bodily samples to the police. Nonetheless, the RCMP took several samples from him including bodily fluid samples taken from discarded Kleenex he threw out in the bathroom. On the abandonment argument, the SCC concluded that while in custody, providing bodily samples was “simply the inevitable consequence of the normal functioning of the human body”. They conclude that a person in custody cannot reasonably be said to have abandoned the bodily sample because the accused person has no choice other than to discard the samples in proximity of the police. It would be virtually impossible for an accused person in custody to “destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from ‘retrieving’ this ‘potentially useful waste’”. Thus, the SCC concluded that Mr. Stillman retained a privacy interest in his bodily samples even after the Kleenex was thrown out.
On that logic, individuals should retain a privacy interest in the biographical information contained in their garbage after the garbage itself is discarded. As was the case with Mr. Stillman, it would be virtually impossible for an individual out of custody to retain control over all trash to keep from providing possibly incriminating evidence to the police. Individuals living in the city of Toronto and the Greater Toronto Area are prohibited by law from burning their garbage. In Calgary (where Mr. Patrick lived), Toronto and the Greater Toronto Area, it is illegal to dispose of household garbage in any way other than by surrendering it to municipal trash collection. It seems that out-of-custody suspects are as powerless as in-custody suspects when it comes to trying to dispose of garbage in a private manner. According to the principle in Stillman, individuals who put garbage outside for collection should retain some sort of privacy interest in their garbage. However, Patrick tells us that this is not the case.
The major concern for both criminal defence lawyers and the general public post-Patrick is that police officers will be able to search through garbage as it awaits collection in order to obtain DNA, fingerprints, and other biographical information. The SCC in Patrick recognized the vast amount of personal information contained in an individual’s garbage. They acknowledge that “[r]esidential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.)…a garbage bag may more accurately be described as a bag of “information”, and its contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle”. Yet, despite this observation, the SCC rejected the view that household garbage should be considered private until it becomes anonymous, saying it was “too extravagant to contemplate” that an individual should have a privacy interest in their garbage until “the last unpaid bill rots into dust”.
Is it really so far-fetched to suggest that an individual has a privacy interest in their garbage until it becomes anonymous? One of the reasons we throw things out is to have them mixed with other refuse until they become so mixed they can no longer reasonably be connected back to us. Many people go so far as to shred important documents before disposing of them so as to hasten the intermixing process and achieve anonymity. It seems that individuals at least believe that they have a privacy interest in their garbage as it awaits pick-up since this is one of the few occasions where the garbage can properly be identified as belonging to them.
The best course of action for those who are concerned about the decision in Patrick is to store garbage in a locked receptacle, far within the property line until pick-up to clearly indicate your intention to keep the contents of your garbage private. In Patrick the majority notes that “until the garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition and cannot be said to have unequivocally abandoned it, particularly if it is placed on a porch or in a garage or within the immediate vicinity of the dwelling”. Keep your garbage close to your home and only put it out at the time of collection and you may retain some form of privacy interest in any personal information contained therein.

As criminal defence lawyers practicing in a multicultural city like Toronto, we are often asked what effect a criminal conviction may have on a client’s immigration status. If you are a foreign national or permanent resident residing in Canada and you are convicted of a criminal offence, that conviction could have serious repercussions on your ability to legally remain in Canada.

If you a foreign national or permanent resident of Canada and you are charged with a criminal offence under the Criminal Code of Canada, you may be declared inadmissible due to criminality. There are three categories of criminal behaviour that result in this type of inadmissibility.

¥ Serious Criminality  If you are convicted of an indictable offence which carries a minimum sentence of ten years or you are convicted of an indictable offence and sentenced to six months or more in prison, you may be deemed inadmissible due to serious criminality.

¥ Less Serious Criminality  If you are convicted of a summary offence which could have been prosecuted as an indictable offence and as such carries a prison sentence of no more than ten years, you may be deemed inadmissible due to less serious criminality.

¥ Minor Criminality  If you are convicted of two or more summary offences which do not arise out of a single event you may be deemed inadmissible due to minor criminality.

There are exceptions to the laws governing inadmissibility due to criminality. For example, if you are pardoned under the Criminal Records Act you cannot be deemed inadmissible due to serious criminality. The bottom line is that following a conviction for an indictable offence, or a second conviction for a summary offence, you may face immigration proceedings.

If you are a foreign national residing in Canada and find yourself in one of the three situations listed above, you may be declared inadmissible. Following such a declaration, you could be denied permanent resident status and/or issued a removal order. If you are a foreign national and you have already been convicted of a criminal offence, you should contact a Toronto immigration lawyer for more information regarding your immigration status.

If you are a permanent resident of Canada and you find yourself in one of the above situations you may be declared inadmissible due to criminality. If you are declared inadmissible, you could be denied citizenship and/or issued a deportation order. If you are a permanent resident and you have already been convicted of a criminal offence, you should contact a Toronto immigration lawyer for more information regarding your immigration status.

If you are a Canadian foreign national or permanent resident FACING CRIMINAL CHARGES, the best way to ensure you remain in Canada is to avoid a criminal conviction. If you are in this situation, you should contact one of the criminal defence attorneys at Kostman and Pyzer, Barristers, as soon as possible by calling 416-658-1818.

When an individual is arrested, the police will take photographs of the accused and obtain copies of his or her fingerprints to keep on file. In many situations, individuals are able to request that the photographs and fingerprints are destroyed following resolution of their charges. If your charges proceed to trial and you are found guilty you will not be able to have this information destroyed. However, if the charges are withdrawn or resolved by way of a peace bond, it is possible to have the information destroyed. Where an individual receives an absolute or conditional discharge, the records should be sealed or destroyed after a waiting period.

If you obtain one of the resolutions listed above, the police will not automatically destroy your information. In order to have your photographs and fingerprints destroyed you must fill out and submit a copy of the “Fingerprint and Photograph Destruction – Application Form” to Toronto Police Services. You may obtain a copy of the form by visiting www.torontopolice.on.ca. The form will ask you to provide the following information:

• Your name

• Your name at the time of your arrest (Only fill this out if your name has changed, either through marriage or a legal name change. If your name has not changed you can write “same as above”)

• Your current address,

• Your date of birth,

• The charges against you (for example, “Assault” or “Fraud Under $5000)

• How your matter was resolved (for example, “I was granted an absolute discharge”), and

• The date of completion of your matter. The date of completion is the last day you appeared in court on the matter. You can get that information from your criminal defence lawyer or from the Information counter at the courthouse you attended.

Depending on how the charge against you was resolved, there are different waiting periods which must be exhausted before you can submit an application to have your photographs and fingerprints destroyed.

• Charges Withdrawn → If the charges against you are withdrawn or your charges are withdrawn following your participation in the diversion program, you must wait six months before submitting an application to have your information destroyed.

• Peace Bond → If your charges are resolved by way of a peace bond, you must wait until the peace bond has expired, and then six months later, you may submit an application to have your information destroyed.

• Absolute Discharge → If you are granted an absolute discharge, you must wait one year from the date of the discharge before you can submit an application to have your information destroyed.

• Conditional Discharge → If you are granted a conditional discharge, you must wait three years from the end of the probationary period before you may submit an application to have your information destroyed. Thus, if you receive a conditional discharge on August 1, 2009 with two years of probation, you must wait three years from August 1, 2011, before you may apply to have your information destroyed.

Once the appropriate waiting period has ended, you must complete the form and submit it to the Criminal Records division of Toronto Police Services.

You may submit it electronically by email to: criminalrecords@torontopolice.on.ca.

Or, you may submit it by regular mail to:

40 College Street,

Toronto, Ontario,

M5G 2J3

Attn: Criminal Records.

Or, you may submit it by fax to 416-808-8202.

Receiving one of the resolutions listed above ensures that you may request to have your photographs and fingerprints destroyed by police services but does not ensure that your request will be granted. The police are at liberty to refuse a request based on the nature of the incident including the charge you were facing and the disposition you received. Moreover, if you have been fingerprinted and photographed more than once, Police Services will not approve your application.

Having your fingerprints and photographs destroyed can be a slow process because at any given time the Criminal Records office is dealing with an average 3000 requests. It can take up to 9 months for Police Services to review your application. Around six months from the day your application is reviewed you will be notified whether the police intend to destroy your information. If that is the case, they will notify you at that time that they have commenced the destruction process. About six months later, you will receive a notification confirming that your photographs and fingerprints have been destroyed. Some police forces invite the individual to attend the destruction of the records. However, ordinarily one cannot be present during the process to confirm that your information has been destroyed. However, it is police protocol to destroy this information and it can never be used against you in a court of law, to obtain a warrant, or in the investigation of a future crime.

At the criminal law offices of Kostman & Pyzer, Barristers, we will take care of all applications to have your photographs and fingerprints destroyed as part of our gross fee (also known as a “retainer”). We have extensive experience dealing with Toronto Police Services in matters such as these. This service allows you to rest assured that your application will be made at the appropriate juncture and that these records will not prejudice you in the future.

The PARS Program — which stands for Partner Assault Response Services — is an important component of Ontario’s Domestic Violence prosecution strategy. It consists of a specialized counseling and educational service for those individuals who are found guilty of a domestic violence-related offence. Upon a finding of guilt, the individual will be referred to PARS either by the Domestic Violence co-ordinator or by the Probation and Parole office.

The PARS Program lasts sixteen weeks in total. During those sixteen weeks, participants learn about appropriate behaviour towards their partner and non-violent ways to deal with their anger. Participants are expected to attend the program for one hour each week. The program is available in both English and French, and translator services can be provided for most other languages.

In order to be eligible for the program, the offender must be at least 18 years old, must be referred by a courts or probation office and must agree to participate in the program. Participation in the PARS program is voluntary. However, Toronto courts will often give individuals charged with an offence an incentive to participate in PARS, by offering a reduced sentence or probation if the accused individual agrees to enter the program. In most cases, before an individual is eligible for PARS there must be a finding of guilt against them. In some cases, an individual may participate in the program on the understanding that upon successful completion, they will receive a Peace Bond. As criminal defence lawyers, we always strive to avoid a finding of guilt for our clients and urge them only to enter the PARS program if they understand that although an absolute or conditional discharge does not constitute a criminal record, it is a finding of guilt and will show up as such on CPIC the police database.

Those who live in the Toronto Area and want to learn more about the PARS program can attend an information session on the PARS Domestic Assault Program held at the 1000 Finch courthouse on Tuesdays at 1:00 p.m. in courtroom 303. You may also call 1-888-579-2888 (outside Greater Toronto Area) or 416-314-2447 (inside Greater Toronto Area) to get more information and find the PARS location nearest you.