Toronto Criminal Lawyers Blog

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

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

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

(ii) by being drunk, or

(iii) by impeding or molesting other persons,

is guilty of an offence punishable on summary conviction.

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

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

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

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

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

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

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

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

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

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

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.