The Police Are At Your Door – Now What? When faced with this scenario, do you allow the police to enter your home? Knowing Your Rights Your rights against unreasonable exercises by the police are enshrined in the Charter of Rights and Freedoms[1]. Many cases have explored these rights. Very recently, in R v. Stairs[2], the Supreme Court of Canada further reiterated that when a home is being entered without a warrant (for the purposes of arrest), the surrounding area of the person being arrested is free for the police to not only search but to seize property. The three-part test permits the police to search the person and the surrounding area when: (1) the arrest is lawful; (2) the search is incidental to the arrest, such that there is some reasonable basis for the search connected to the arrest and the search is for a valid law enforcement purpose, including safety, evidence preservation, or evidence discovery; and (3) the nature and extent of the search are reasonable. When a search is conducted at the time of an arrest (search incident to arrest), the search must be (1) conducted when reasonable grounds exist and (2) justified on the premise that the arrest itself was lawful. The Supreme Court of Canada stated: “where the area searched incident to arrest in a home is outside the arrested person’s physical control at the time of the arrest, the common law standard for a search incident to arrest must be modified in two ways that make the standard stricter. First, the police must have reason to suspect that there is a safety risk to the police, the arrested person, or the public which would be addressed by a search”. It is important to understand when a search violates your rights and when it can be justified. This distinction is not easily assessed and you could benefit from legal advice if you are faced with this situation. Many times, a lawyer is not readily available – but consulting one as soon as possible following the fact is imperative! At what point does a search violate your Charter rights? There needs to be a connection between: location – purpose – grounds for arrest. If this connection does not exist, there is potential for a violation of a s. 8 Charter right. In order to enter a dwelling, the police should obtain a warrant – however, sometimes this doesn’t happen. There are valid exceptions that apply to entering a dwelling without a warrant. What do I do when the Police are at my door? It is important to know that the Police do have a right to approach your door and knock – this is where the rights end! Without a warrant – you are not required to open your door, answer any questions, or to allow entry. With a warrant – you are required to allow them entrance. You do not, however, have to assist them or answer any questions. Contact a lawyer at this stage! Exceptions to entry with no warrant A home is viewed as a sanctum of one’s ultimate model of privacy. While this regard is held to a high standard, so too are the expectations of protecting the police and public safety. Evidence obtained in one’s home, without a warrant (outside these exceptions), can be excluded at trial. Exceptions: In order for the Police to enter without a warrant, the “exigent circumstances” exception was articulated in the Court of Appeal decision, R v Rao[3]: “Exigent” indicates in dictionary usage, the “requiring of immediate action or aid; pressing, urgent” or “[a] state of pressing need; a time of extreme necessity; a critical occasion, or one that requires immediate action or remedy; an emergency, extremity, strait”. If the police have entered your home on the pretense of “exigent circumstances” and have obtained any evidence of an offence while in your home, you will want to contact a lawyer! A lawyer will determine if the search was truly “exigent circumstances”. A court may find that the situation did not warrant “exigent circumstances”; if so, any evidence found by the police may be ruled inadmissible. This can result in the charges being dropped. A lawyer can assess the merits of this entry exception! In R v Van Puyenbroek[4]: “[i]f there are no exigent circumstances, it is difficult to imagine why an officer could not proceed to obtain the warrant, outside of a “classic” situation of hot pursuit, in which the officer is literally on the heels of a suspect at the moment the suspect enters a dwelling-house”. Another exception to not having a warrant is the “hot pursuit” doctrine. In this case, the Police are actively pursuing a suspect and follow them into a dwelling. This exception is premised on the ability of the police to continue pursuing a fleeing suspect, even inside a dwelling, in order to arrest them. In R v Macooh[5] the Supreme Court defined “hot pursuit” as: “continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction.” In Feeney[6], the Supreme Court recognized that: “in cases of hot pursuit, the privacy interest [of the citizen] must give way to the interest of society in ensuring adequate police protection.” The Test for “Hot Pursuit” is: there are reasonable and probable grounds to believe the indictable offence has been committed and that the person sought is within the premises and a proper announcement is made prior to entry. If the Police are claiming they entered while in “hot pursuit”, contact a lawyer to ensure the test has been met! While the common perception is that one should cooperate with the Police – this may not always be a good idea! If you have concerns regarding allowing police entry into your home – call our Criminal Law lawyer to weigh in on your particular situation! If you have more questions related to Criminal Law, please visit our website or contact David Schell at Devry Smith Frank LLP to discuss any questions regarding allowing entry into your home and your options at 416 446-5096 or david.schell@devrylaw.ca. This blog was co-authored by Summer Law Student, Kathleen Judd. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” [1] https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/ [2] R. v. Stairs, 2022 SCC 11 (CanLII) [3] R. v. Rao (1984), 1984 CanLII 2184 (ON CA), 46 O.R. (2d) 80 (C.A.) at 102. [4] R. v. Puyenbroek, 2007 ONCA 824 (CanLII) [5] R. v. Macooh, 1993 CanLII 107 (SCC), [1993] 2 SCR 802 [6] R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13 By Justin DominicBlog, Criminal LawJune 22, 2022June 22, 2022
The First Steps After Being Criminally Charged During The COVID-19 Pandemic If you have been arrested by the police and are now required to navigate the criminal justice system, it is useful to know in advance what to expect, particularly with an eye to the latest changes to criminal court proceedings amidst the pandemic. A number of things can happen after being arrested and charged. If the allegations are not particularly serious, and the accused does not have a criminal record, the police may release the accused on a “promise to appear” or an “undertaking”. This means that the release is conditional on the accused’s promise that he or she will attend court. An undertaking may also contain various other conditions including no contact with any complainant or a condition that the accused stay within the jurisdiction. Bail Hearing If the alleged offence is more serious, or there are safety or other concerns, the police may not be willing to release the accused. Instead, the accused will be kept in custody until they are brought before a court within 24 hours for a bail hearing. Due to the pandemic, the accused are no longer brought to the physical court but are typically held in custody at the police station or a provincial detention center. They attend court virtually – via either phone or video conference. At court, the Crown Attorney or prosecutor will decide whether they are agreeable to a release of the accused on a consent basis and the terms of that release. If the Crown Attorney is not agreeable to a consent release of the accused, then a Judge or Justice of the Peace will conduct a “show-cause” or bail hearing where the Justice will determine whether the accused will be released and the form of the release, or whether the accused will remain in custody while the trial of the charges is pending. In determining whether to release an accused, the Justice is to impose the least restrictive form of release possible. When making their decision, the Justice is to consider three grounds for detention, which are outlined in the Criminal Code of Canada. The first or primary ground is whether the detention of the accused is necessary to ensure he or she attends court. The secondary ground is whether the detention of the accused is necessary for the protection or safety of the public. The third or tertiary ground is whether the detention of the accused is necessary to maintain confidence in the administration of justice. This final ground typically arises with very serious charges and where the Crown has a strong case. If an accused is released, they may be released with or without a surety. A surety is a person, often a friend or family member of the accused, who will have to promise to the court that they will supervise the accused to ensure he or she will comply with the bail conditions. The promise to supervise the accused often comes with a no deposit pledge of money that could be lost should the surety fail to properly supervise the accused. Prior to the bail hearing, the accused’s counsel and the Crown Attorney are encouraged to discuss the issues that the Justice presiding over the bail hearing will have to decide upon. This includes discussing the form of release and whether a surety is suitable or even required, as well as any proposed conditions of the release. Bail courts in most Ontario courthouses were very busy before the pandemic. That has only intensified. Given the current technological constraints, it is crucial to have the main issues sorted out in advance as much as possible. Disclosure and Case Management The next step after being released, or after a bail hearing, is to obtain disclosure. Disclosure is all of the materials and information the Crown has in relation to the charge(s). Every accused is entitled to receive all the documents the Crown has containing evidence against (or for) the accused, unless the documents are privileged or clearly irrelevant. During the pandemic, the accused should usually not go to the courthouse to obtain disclosure, but rather contact the Crown Attorney’s office that is prosecuting the case to ask them how to obtain their disclosure. Where possible and appropriate, the Crown will typically email or otherwise provide a digital copy of the disclosure via some form of electronic document sharing. Under normal circumstances, disclosure materials would be provided at the first court appearance and additional court appearances thereafter. These appearances are criminal case management dates and they are held after an accused is charged but before the matter proceeds to trial or is resolved. The purpose of these dates is for the Crown and accused to advise the court on the status of the case and ensure that it is moving forward. As a result of the pandemic, these case management court appearances are now held virtually and the accused or their lawyer can attend via ZOOM – either by video conferencing or calling in by phone. The ZOOM coordinates for case management courts in each courthouse in Ontario can be found in the latest notice and practice direction for criminal proceedings issued by the Ontario Court of Justice. Navigating the criminal justice system as an accused is daunting under any circumstances. The ongoing pandemic has changed certain aspects of the system that may at times simplify the process, but may also make navigating the system more difficult. If you need help with your criminal law matter contact David Schell at 416-446-5096 or David.Schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Justin DominicBlog, Criminal LawMarch 8, 2021March 15, 2021
What can I get ticketed for during the COVID-19 State of Emergency in Ontario? This blog is co-written by our former articling student, Janet Son. There is a growing list of Orders-in-Council being made under the Emergency Management and Civil Protection Act (“EMCPA”), which provides the Ontario government with sweeping powers to put measures in place to contain the COVID-19 pandemic. However, there is a growing concern about excessive ticketing and fining by police and by-law officers. Many seemingly benign activities such as doing a chin up at a soccer net in an empty field, a family rollerblading together or walking your dog through the park have resulted in hefty fines for individuals. During a time of financial strain, these tickets are ranging from $750 to a summons, which upon conviction could result in a $100,000 fine for individuals and $10 million for businesses. Since April 24, 2020 the Toronto Police has issued 185 tickets and 16 summons. A regulation under the EMCPA ordered the closure of outdoor recreational amenities including all playgrounds, play structures, equipment, sports facilities, multi-use fields, off-leash dog areas, portions of park and recreational areas containing fitness equipment, allotment gardens, community gardens, picnic sites, benches and shelters in park and recreational areas. This list also includes outdoor recreational amenities whether or not they are publicly or privately owned. However, individuals are allowed to walk through or use portions of the park and recreational areas that are otherwise not closed or do not contain an outdoor recreational amenity. These over-broad prohibitions have led to individuals worrying about receiving a ticket for sitting on a park bench for too long. Toronto Police has clarified that enforcement officers should be considerate of those who need park benches as “temporary respite” or for those experiencing homelessness. Furthermore, another regulation under the EMCPA requires an individual to identify themselves to police if they have reasonable and probable grounds to believe that an individual has committed an offence under the EMCPA. Toronto Police stated that they are working with the City of Toronto on education and enforcement initiatives that would support public health efforts. However, a constitutional challenge may be mounted about the legality of this type of ticketing. Though we are living through a public health crisis, police measures still need to be proportionate and not arbitrary. If you have been ticketed for violating a regulation under the EMCPA contact criminal lawyer David Schell at david.schell@devrylaw.ca or at 416-446-5096 to learn more about your rights. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Criminal LawApril 30, 2020September 30, 2020
When Does Negligence Become Criminal? The Criminal Code of Canada contains several negligence based criminal offences, including dangerous driving as well as failure to provide the necessaries of life. The broader offence of criminal negligence is contained at section 219 of the Criminal Code. Section 220 is the provision dealing with criminal negligence causing death. They read as follows: 219 (1) Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. (2) For the purposes of this section, duty means duty imposed by law. *** 220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life. In the recent case of R. v. Javanmardi, the Supreme Court of Canada commented on the elements of criminal negligence offences, specifically criminal negligence causing death. In the Javanmardi case, a naturopath in Quebec provided a patient with an intravenous injection of nutrients. The patient ended up suffering endotoxic shock and subsequently died. The naturopath was charged with the offences of criminal negligence causing death and unlawful act manslaughter. At trial the judge acquitted the naturopath of all charges, as they felt the actions of the accused did not show a wanton or reckless disregard. The trial judge felt that the naturopath had the necessary skills to administer injections, had followed sufficient protocols and had taken adequate caution in the case. The Quebec Court of Appeal disagreed and felt that the intravenous injection was inherently dangerous and the conduct of the naturopath was a marked departure from reasonable standards. The Court of Appeal convicted the accused of unlawful act manslaughter and ordered a new trial on the charge of criminal negligence causing death. In their decision, the majority of the Supreme Court of Canada assessed the fault element of the offence of criminal negligence – specifically when does an accused’s act or omission “show wanton or reckless disregard for the lives or safety of other persons”. They confirmed that this offence imposes a modified objective standard of fault. It is the objective reasonable person standard. The Court outlined that, “As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances.” The level of departure may vary with each offence – for criminal negligence causing death it is the elevated standard of marked and substantial. However, these standards all ask “whether the accused’s actions created a risk to others, and whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible”. In this case the Supreme Court upheld the acquittals of the trial judge. The Court felt that the actions of the accused met the reasonableness standard. They concluded that the factual findings of the trial judge supported the conclusions that an intravenous injection, performed properly by a naturopath qualified to administer such injections, did not pose an objectively foreseeable risk of bodily harm in the circumstances. Of note, particularly for naturopaths and other professionals, the Supreme Court of Canada outlined that the professional training and qualifications of an accused were factors to be considered in assessing the applicable standard of care for criminal negligence. The Court viewed these factors as particularly relevant considerations in assessing whether the conduct of an accused departed from that of a reasonable person in similar circumstances. If you have been charged with a criminal offence, or have questions pertaining to a similar situation, contact criminal defence lawyer David M. Schell of Devry Smith Frank LLP directly at (416) 446-5096, or alternatively, at david.schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawNovember 28, 2019September 30, 2020
Changes to Impaired Driving Laws In 2018, Bill C- 46 was passed and with it came significant changes to impaired driving laws in Canada. Bill C-46 repealed sections 249 to 261 of the Criminal Code and replaced it with Part VIII.1 – sections 320.11 to 320.4 The changes include three new offences referring to a blood drug concentration (BDC) over the legal limit. In addition changes were made to the offences of operating while impaired, operating while “over 80” and refusal to comply with a breath demand. Elements of all other transportation offences appear to be similar to their previous versions although there have been some language changes. The new provisions have also introduced some new and higher mandatory minimum fines and some higher maximum penalties for impaired driving offences. The new Part VIII.1 of the Criminal Code contains 10 basic transportation offences (those relating to impaired driving are highlighted): Dangerous operation of a conveyance (section 320.13); Operating a conveyance while impaired (paragraph 320.14(1)(a)); Having a blood alcohol concentration (BAC) of 80 mg of alcohol in 100 ml of blood or more within two hours of operating a conveyance (paragraph 320.14(1)(b)); Having a blood drug concentration (BDC) over the prescribed legal limit within two hours of operating a conveyance (paragraph 320.14(1)(c)); Having a combined BAC and BDC over the prescribed legal limit within two hours of operating a conveyance (paragraph 320.14 (1)(d)); Having a BDC over a prescribed limit that is lower than the BDC set under paragraph 320.14(1)(c) within two hours of operating a conveyance (subsection 320.14(4)); Refusing to comply with a demand (section 320.15); Failure to stop after an accident (section 320.16); Flight from peace officer (section 320.17); and Driving a conveyance while prohibited (section 320.18). Impaired Operation – s. 320.14(1)(a) While the wording of the offence has changed a bit, this sections remains the same as the previous law. It is an offence to operate a conveyance (vehicle) if a person’s ability is impaired by alcohol or a drug or a combination of alcohol and a drug “to any degree”. Operating with a BAC equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours of driving – s. 320.14 (1) (b) The terms “equal to or exceeding” is a new term that the government has included in response to concerns regarding the practice of truncating blood alcohol concentration (BAC) results (i.e., rounding the test results down to the nearest multiple of 10). The new formulation of the offence “operating at or over 80 within two hours of driving” changes the timeframe within which the offence can be committed and is an attempt by the government to eliminate the bolus drinking defence and the intervening drink defence. The bolus drinking defence arose when a driver claimed to have consumed alcohol just before driving and/or while driving. Although they admitted that their BAC was “over 80” at the time of testing, they would claim that the alcohol was still being absorbed and, at the time of driving, they were not “over 80”. The intervening drink defence would arise when a driver consumed alcohol after driving but before they provided a breath sample. This defence often came up when there had been a motor vehicle collision and the driver claimed that they were settling their nerves post accident. The only situation in which a driver can now rely on intervening consumption to avoid a conviction is captured in subsection 320.14(5) (or subsections (6) & (7) for drug consumption). The offence is not made out if all of the following conditions are met: The person consumed alcohol after ceasing to operate the conveyance; The person had no reasonable expectation that they would be required to provide a sample of breath or blood; and, Their alcohol consumption is consistent with their BAC at the time the samples were taken and with their having had a BAC of less than 80 at the time of operation. Penalties The proposed penalties and prohibitions for impaired driving and over 80 offences have also been changed. The mandatory minimum fines have gone up. A first conviction for impaired driving or having a blood alcohol concentration (BAC) of 80 to 119 is $1,000, which was the previous mandatory minimum for a first offence. However, there are now higher mandatory fines for first offenders with high BAC levels: $1,500 for a BAC of 120 to 159, and $2,000 for a BAC of 160 or more. The mandatory minimum fine for a first refusal to comply with a breath demand conviction has also been increased to $2,000. The current mandatory minimum penalties for repeat offenders remain the same as before: 30 days imprisonment for a second offence and 120 days imprisonment for a third or subsequent offence. The maximum penalty for all the transportation offences has been increased from 18 months to two years less a day on summary conviction, and from 5 years to 10 years on indictment. Operating a Conveyance with a BDC equal to or exceeding the legal limit within two hours of operating a conveyance – sections 320.14(1)(c), (d) and 320.14(4) There are three new criminal offences related to drug-impaired driving or when a motorist is impaired by drugs or a combination of drugs and alcohol. Section 320.14(1)(c) makes it an offence to have a BDC equal to or over the prescribed limit within two hours of operating a conveyance. Section 320.14(1)(d) makes it an offence to have a combined BAC and BDC equal to or over the prescribed limit within two hours of operating a conveyance. Section 320.14(4) makes it a less serious offence to operate a conveyance with a lower level of drug impairment than prescribed by s. 320.14(1)(c), but that is equal to or over an amount prescribed by regulation. Penalties The penalties for driving with a BDC over the legal limits depend on the drug type and the levels of drug or the combination of alcohol and drugs. The levels are set by regulation. With some drugs – including LSD, ketamine, PCP and cocaine – it is an offence to have any detectable amount of the substance in your system within two hours of driving. For cannabis and THC (the main psychoactive compound in cannabis), the legal limits and the respective penalties are the following: Under s. 320.14(1)(c), having 5 nanograms (ng) or more of THC per ml of blood within two hours of driving would be a hybrid offence. Hybrid offences are offences that can be prosecuted either by indictment, in more serious cases, or by summary conviction, in less serious cases. Under s. 320.14(1)(d), having a blood alcohol concentration (BAC) of 50 milligrams of alcohol per 100 ml of blood (or more), combined with a THC level of 2.5 ng per ml of blood or higher within two hours of driving is a hybrid offence. The hybrid offences under s. 320.14(1)(c) and (d) would be punishable by mandatory penalties of $1,000 for a first offence and escalating penalties for repeat offenders (as with alcohol impairment and over 80 offences – 30 days imprisonment on a second offence and 120 days on a third or subsequent offence). The maximum penalties are imprisonment for two years less a day on summary conviction (up from 18 months), and to 10 years on indictment (up from 5 years). Under s. 320.14(4), having at least 2 nanograms (ng) of THC but less than 5 ng of THC per millilitre (ml) of blood within two hours of driving would be a less serious summary conviction criminal offence, punishable by a fine of up to $1,000. In addition to the mandatory minimum fines and imprisonment penalties, impaired and over the legal limit offences (for both alcohol and drugs) also continue to carry with them mandatory driving prohibition orders. These penalties are now contained in section 320.24 of the Criminal Code. Charter and other Concerns Numerous aspects of the new impaired driving regime will face scrutiny under the Canadian Charter of Rights and Freedoms. It is anticipated that cases involving these offences will be challenged in the courts and the constitutionality of the new provisions will eventually be decided by the Supreme Court of Canada. Here are several aspects of the new laws that will likely be debated in the courts: Mandatory Alcohol Screening – s.320.27(2) Under the previous law, the police had to have a reasonable suspicion of alcohol in the body to be able to demand a roadside alcohol screening. A significant change with the new law is the introduction of mandatory alcohol screening under s.320.27(2). With this new section, a police officer who has lawfully stopped a driver is able to demand that the driver provide a breath sample into an Approved Screening Device (ASD) without needing to have a reasonable suspicion that the driver has alcohol in the body. This provision has drawn significant criticism from the criminal defence bar and civil liberty advocates. Critics of the provision argue that it amounts to an arbitrary use of police power. Taking away the “reasonable suspicion” previously required by the police will be challenged as a violation of one’s Charter rights, notably their right to be free from unreasonable search and seizure. The New Language “Within Two Hours of Operating a Conveyance” This new provision making it an offence to have a certain BAC and or BDC within two hours of driving has also drawn heavy criticism. It goes without saying that criminalizing drinking after one has been driving will be vigorously challenged in the courts. In attempting to take away previously used defences (such as bolus drinking and the intervening drink defence), the federal government is now potentially criminalizing individuals who have not been drinking and driving. At the very least, the new section appears to put an onus on the public under sections 320.14 (5), (6) and (7) to show several things, including that they started drinking and/or consuming drugs after they drove and that they had no reasonable expectation they would be required to provide a breath sample. Do the new offences of “BDC over a prescribed limit” actually catch those who are impaired as it relates to cannabis? The new prescribed limits for cannabis/THC are controversial. Critics have argued that there is not a clear link between the level of THC in the blood and the degree of impairment, as there is with alcohol. Competing scientific evidence and argument over whether the present prescribed levels of THC blood concentration actually establish “impairment” are likely. If you or someone you know has been charged with impaired driving, or any criminal offence, please contact criminal defence lawyer David Schell at 416-446-5096 or david.schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawMarch 19, 2019June 14, 2020
Can I be Criminalized or given a Custodial Sentence for Possessing or Using ‘Legal’ Cannabis? The answer to the above question is really dependent on how someone obtains their cannabis and what one then does with their legal cannabis. Bill C-45 has now become law and in a previous post we spoke about the use of recreational cannabis and its legalization on October 17, 2018, by the federal government. In response, the Ontario Government did enact legislation which put stipulations in place to keep possession of the drug away from children and youth, keep our roads safe and regulate the sale of cannabis. However, a significant amount of time has now passed and there may still be some confusion over what constitutes criminal or illegal activity where cannabis is concerned. For those who choose to possess and/or enjoy what is now their ‘lawful right’, they should be aware that there are still potential criminal and/or quasi-criminal consequences. As we indicated in our earlier post, operating a motor vehicle while impaired by drug or with a certain level of drug within your system is a criminal offence under the Criminal Code. As we also indicated, under the Ontario Cannabis Control Act, it is an offence to sell cannabis unless you are a licensed retailer. However, for cannabis retailers as well as the general public in Ontario, there are a number of other cannabis offences with quasi-criminal consequences under the Cannabis Control Act. These include the following: Section 7(1) of the Cannabis Control Act prohibits any person from knowingly selling or distributing cannabis to a person under 19 years of age. Section 8 of the Act prohibits any person from knowingly selling or distributing cannabis to a person who appears intoxicated. Section 9 (1) prohibits anyone form buying cannabis from anyone or anywhere other than an authorized cannabis retailer. In other words, it is still illegal to buy cannabis if you do not buy it from a retailer authorized and regulated by the Ontario government. Sections 10 (1) and (2) make it illegal for any person under 19 years of age to possess, consume, attempt to purchase, purchase, distribute, cultivate, propagate, harvest or offer to cultivate, propagate or harvest cannabis. Section 12 of the Act prohibits anyone from driving or having care and control of a vehicle or boat while any cannabis is contained in the vehicle or boat. However this section does not apply if the cannabis is packaged and unopened or is otherwise not readily available to any person in the vehicle or boat. In addition, under s. 12, if the police are reasonably suspicious that cannabis is in your vehicle they can stop and search the vehicle, the driver and its passengers, without a warrant. There are various potential consequences if an individual (or corporation) is convicted of an offence under the Cannabis Control Act. Section 23 outlines that an individual convicted of an offence under the Act is liable to a fine of not more than $100,000 or to imprisonment for a term of not more than one year or both. The fines and potential imprisonment penalties go up if an individual (or corporation) is convicted of the unauthorized sale of cannabis (contrary to section 6) or the sale of cannabis to someone under 19 years of age (section 7). So you see, the regulation within Ontario’s Cannabis Control Act certainly restricts and heavily regulates that which has been recently “legalized”. The view that cannabis drug use is now completely legal is inaccurate when one considers the numerous prohibitions contained within this Ontario legislation. Devry Smith Frank LLP has been and will continue to monitor the provinces efforts to enforce the Cannabis Control Act in Ontario. If you have questions about cannabis laws or need advice understanding how the recent legislation will impact you both professionally and personally, please contact criminal defence lawyer, David Schell of Devry Smith Frank LLP directly at (416) 446-5096, or alternatively, at david.schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawFebruary 22, 2019June 14, 2020
What Are the Consequences of Filing a False Police Report In Canada? By now we have all been subjected to the tragic details of television star Jussie Smollett’s alleged attack in Chicago. When the news broke initially, it seemed as though Smollett was a survivor of what appeared to be a hate crime and his colleagues within the entertainment business did not hesitate to express their support and vocalise the need for change. It was and still is a media frenzy. However, as the evidence unfolded, it quickly became apparent that the crime itself could have been fabricated and orchestrated by Smollett himself. Subsequently, the actor now faces charges for filing a false police report and the story has raised an all-important question about the repercussions of such actions. What are the offences someone can be charged with under the Criminal Code of Canada for filing a false police report or lying to the police? The offence under the Criminal Code which would be most applicable is committing public mischief under section 140. That section states: 140 (1) Everyone commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by (a) making a false statement that accuses some other person of having committed an offence; (b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself; (c) reporting that an offence has been committed when it has not been committed; or (d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died. The purpose of the law is to discourage and punish false reporting and of course to prohibit people from falsely accusing others. Making a false statement transpires when the person makes the statement with the intention of misleading justice. One cannot be convicted if it is determined that they genuinely believed the statement to be true at the time it was made. The penalties for committing public mischief are outlined at section 140(2) of the Criminal Code. If the Crown Attorney perceives the case as serious and elects to proceed by indictment, then an accused who is found guilty is potentially liable to imprisonment for a term not exceeding five years. If the Crown decides to proceed summarily (less serious case) and an accused is found guilty then they are liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both. The actual punishment imposed for those convicted will vary according to the facts of each case and the circumstances of each offender. In addition to public mischief, there are several other offences under the Criminal Code that a person could find themselves charged with if they file a false police report or lie to the police. These include the following: Perjury under section 131 of the Code if the person, with intent to mislead, knowingly gives a false statement under oath, affirmation, by affidavit, solemn declaration or deposition; Fabricating Evidence under section 137 of the Code if the person, with intent to mislead, fabricates anything (such as a police report) with the intent that it shall be used as evidence in a judicial proceeding; and Obstructing Justice under section 139 (2) of the Code if the person wilfully attempts to obstruct, pervert or defeat the course of justice. These offences involving the misleading of justice and which include lying to the authorities are taken very seriously. This is clear when looking at the potential and maximum penalties under the Code. Perjury and fabricating evidence are indictable offences with potential prison terms of up to 14 years while obstructing justice under 139 (2) of the Criminal Code is an indictable offence with a maximum sentence of imprisonment for 10 years. If you have been charged with a criminal offence, or have questions pertaining to a similar situation, contact criminal defence lawyer David Schell of Devry Smith Frank LLP directly at (416) 446-5096, or alternatively, at david.schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawFebruary 11, 2019June 13, 2021
Cannabis: Legislation passed For Legalization – But What Happens Next? On October 17, 2018, the historic formation of a new industry was birthed and the decriminalization of cannabis and its recreational use was finally introduced. A day whereby some thought would most certainly never be the case, however, the general perception of liberalism in Ontario may, in actual fact, not be as unrestricted as one may think. So, what does it mean exactly? – Inevitably, despite months of deliberation, the concept of what constitutes full legalization is still lacking clarity and for that reason alone, it should be acknowledged that there are some considerations that one ought to possibly observe when possessing and partaking in recreational use of cannabis legally. Nonetheless, three main issues still seem to be at the forefront of peoples minds: Selling Cannabis Unless you are a licensed retailer, you are prohibited from selling Cannabis to other individuals. As tempting as it may seem to sell a gram or two to a friend, it is strongly advised you obtain the proper licensing beforehand, or you run the risk of a possible custodial sentence and/or a hefty fine. You can, however, give the cannabis away, to an adult friend, without the expectation of remuneration, on the basis that it is less than 30 grams worth. Travelling with Cannabis As a Canadian, you may be able to travel with the stipulated amount of up to 30 grams of cannabis on domestic flights only. Yet, if you intend to cross over into international territory, it is still a criminal offence to have it on your person. – Even if you are intending to end your journey in a legalized US state. Driving It is illegal, under the Criminal Code of Canada , to operate a vehicle while impaired by alcohol or drugs or where you have exceeded a certain level of alcohol or drug concentration in your blood. The legislation, Bill C-45, amended the Criminal Code such that police can now conduct roadside saliva tests on drivers they suspect to be under the influence of drugs and how you are reprimanded depends on the amount of THC detected. – Which can leave a trace for several hours after smoking cannabis? It is recommended that you avoid driving and consuming cannabis altogether to avoid these penalties. That said, indeed you can still be charged if you are found to be in violation of the Cannabis Act However, judging by the vagueness of this legislature, it would be fair to anticipate what might be deemed a few teething problems. Devry Smith Frank LLP will be monitoring the province’s efforts to adhere to and enforce the Cannabis Act in Ontario. If you have questions about cannabis laws or need advice understanding how the recent legislation will impact you both professionally and personally, please contact our office online or directly on (416) 449-1400 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, Criminal LawOctober 20, 2018June 16, 2020
Criminal Record vs. Police Records Those who first come into contact with the criminal justice system often want to know – will I end up having a criminal record? The typical answer has been that you will only have a criminal record if you are convicted of a criminal offence. However, that answer and the definition of a “criminal record” becomes unclear when considering how police and other documents are handled in cases where there is no criminal conviction. People with cases where police did not lay charges, where charges were withdrawn or where a court dismissed charges could still have police records out there that contain negative allegations or information. Depending on the police service involved, these records could be accessed in a variety of scenarios, including cases where people are applying for work. A couple of years ago, the Ontario government seemed to have a solution. The Police Records Check Reform Act was introduced and passed unanimously by the Ontario legislature to ensure that individuals with non-conviction records will not have those records shared with the public and will not have them disclosed unless there are exceptional circumstances. The Police Records Check Reform Act was an attempt to create a standard framework regarding how police background checks are conducted. This new legislation outlines three types of record checks. There is a “Criminal record check” and “Criminal record and judicial matters check” as well as the more comprehensive “Vulnerable sector check”, where non-conviction information can be disclosed only when certain criteria are fulfilled. The Act also requires the consent of the individual or subject being checked in order for the record request to proceed. Despite the Act being given Royal Assent in December of 2015, it still has not become law. Unfortunately, since it has not yet been enacted, those who have had charges withdrawn can still be at risk when it comes to employment, education, traveling, and volunteering, among other opportunities. The Ministry of Community Safety and Correctional Services has said that it has not become law yet because they are “still designing the regulations.” While they are continuing to design the regulations, a number of Ontarians have become victims of the current situation. In a recent article by The Toronto Star, several examples were highlighted where information in non-conviction cases was disclosed resulting in negative consequences for those involved. A woman was on track to become an RCMP officer when a record check pulled up “three unproven allegations”. She claimed to have not known anything about these allegations and does not know if it was because of mistaken identity, but it drastically changed her life. The other, involved a man that was charged with assaulting his wife. He denied the allegations made by his wife, who suffered from dementia. The Crown did not proceed with the matter and the man was not convicted. However information about the charge remained on his record and was subsequently used to deny him entry to visit his sick daughter in hospital. The above are examples of how under the current state of the law, people with non-conviction records have been treated as if they have been convicted of a crime. For those who have not been charged or those who have had those charges withdrawn, it seems that there are other records that could show up in a criminal background check. This includes records such as whether the individual was part of an investigation, whether the individual was ever a witness or victim to a crime as well as any complaints or allegations that have been made (by or about) the individual. Disclosing police records of those who have not been charged or who have had their charges withdrawn or dismissed runs against the presumption of innocence. Despite no finding of guilt against them, these individuals can end up losing out on employment opportunities or can otherwise have their freedom restricted (IE. to enter hospitals or cross borders). It also appears they are afforded little opportunity to clear their name, as there is no proceeding within which they can defend themselves. The Police Records Check Reform Act appears to be a possible answer to ensure this “innocent” segment of the population is protected from the disclosure of information that should be private. However, we will not know for certain until the Act becomes law and the regulations are enacted. A question still remains as to whether the regulations will adequately protect such non-conviction information. Unfortunately, for those who have already had sensitive and private information improperly disclosed – the damage appears to have already been done. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawMarch 19, 2018June 16, 2020
Failure to Contact Interpreter Critical in Decision to Set Aside Over 80 Conviction In the recent case of R. v. John, a summary conviction appeal court set aside a conviction for Over 80 as a result of the police not contacting an interpreter when they should have done so. In this case the first language of the accused was Tamil. He was arrested and advised of his rights including his section 10 (b) Charter right to counsel. According to the trial judge’s findings, the police noticed the ethnicity of the accused and that he had an accent. Despite being aware of these facts, the police did not ask if he needed an interpreter. The accused exercised his right to counsel and the police put him in contact with duty counsel on four occasions and the accused spoke with English speaking duty counsel on three of those calls. After his last conversation with duty counsel, the accused told the arresting officer that he did not understand duty counsel. Rather than request an interpreter, the arresting officer assumed the accused understood English and took him into the breath room where he was required to blow into the breathalyzer. At trial, the trial judge found that the police had violated the accused’s right to counsel when they failed to obtain the services of an interpreter after he told them he could not understand duty counsel. Despite this finding, the trial judge felt the Charter breach was not serious enough to exclude the breathalyzer evidence under section 24 (2) of the Charter. As a result the accused was convicted of Over 80. The accused appealed the conviction. In the appeal decision Justice Harris of the Ontario Superior Court of Justice took a different view with respect to the seriousness of the Charter breach. In determining whether the trial judge erred in concluding the breach was not serious, Justice Harris stated the following: Boiling down these reasons, I believe one main error is evident. The conclusion that the police believed they had satisfied their obligations after the appellant said he did not understand duty counsel simply endorsed the subjective belief of the police. It failed to consider the critical question of whether, applying the objective perspective, the police acted reasonably. My view of the record is that a finding of police wilful blindness was inescapable. The police were told by the appellant that he had not understood duty counsel and made no efforts to rectify the problem by either offering an interpreter or further exploring the issue with the appellant. Minutes after saying that he did not understand duty counsel, the appellant was whisked into the breath room and was required to give the first breath sample. This was a serious breach. Justice Harris excluded the breath results, allowed the appeal and the Over 80 conviction was set aside and an acquittal entered. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawJanuary 29, 2018June 16, 2020
