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
UPDATE: “Crane Girl” Granted Absolute Discharge If you remember “Crane Girl”, an adventure-seeking woman by the name of Marisa Lazo who scaled a crane in April last year, you may have noticed she is in the news this morning. Back in April, she made her way to the top of a crane which was estimated to be about 12 storeys high and scaled down a cable which allowed her to sit on the hook of the crane. It took police hours to get to her, and at about 8:30a.m. she was put in handcuffs by the police. She was later charged with six counts of public mischief by interfering with property in her first court appearance and released on $500 bail, with a condition that she does not enter construction sites or go on rooftops of buildings. Yesterday, she pleaded guilty to two mischief counts and will pay a victim surcharge. The other charges were withdrawn. At Devry Smith Frank LLP we offer a wide range of legal services and have many experienced lawyers to serve you. If you require our assistance please visit our website for more information, or call us directly at 416-449-1400. “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 11, 2018June 16, 2020
“Defence of Others” Raised In Fatal Hit And Run Case After a number of court appearances there has been a major development in the case involving a man who claims he ran over someone to save a woman’s life. On June 7, 2017, Anthony Kiss made a decision while behind the wheel of his vehicle, that left one person dead, and another woman praising his actions as she believed she was about to be stabbed to death. Mr. Kiss was at a red light in the area of Black Creek Drive and Eglinton Avenue West, when he and his girlfriend noticed a man, Dario Romero, had pulled a knife on Alicia Aquino, at a bus stop and began to try and stab her. Mr. Romero ran after Ms. Aquino onto the roadway. At that moment Mr. Kiss drove forward and struck Romero with his vehicle. Mr. Kiss fled the scene and made his way back to his home in Wasaga Beach until police pulled him over on the highway near Barrie and brought him in custody. Romero was killed after being struck by the vehicle and Kiss was charged with manslaughter, impaired operation of a motor vehicle causing death, over 80mgs operation of a motor vehicle causing death and failure to stop at the scene of an accident causing death. More recently, on Tuesday November 14th, the Crown withdrew the manslaughter charge against Kiss which carried the possibility of life in prison as a penalty. The lawyer for Mr. Kiss outlined that the Crown will be laying new, but less serious charges in relation to the incident. The new charges include the impaired and over 80 offences with the “causing death” element removed and an additional charge of dangerous driving. This case highlights the issue of criminal responsibility in the context of defending another person. The defences of self-defence and defence of others are contained in the Criminal Code under section 34. That section outlines the following: A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances. Section 34 (2) of the Criminal Code outlines a number of factors the court can consider to determine whether the actions of the accused are reasonable in the circumstances. These include the extent to which the use of force was imminent, whether there were other means available to the accused to respond to the potential use of force and whether any party to the incident used or threatened to use a weapon. To put it simply, if someone commits an offence (IE. assault) in self-defence or in defence of another, they will not be guilty of the offence if a court determines their actions were reasonable in the circumstances. In the Kiss case, it appears his claim that he was “defending another” had some legitimacy and likely influenced the decision of the Crown to withdraw the more serious charges. If you require representation for criminal disputes, please contact Devry Smith Frank LLP’s criminal lawyers or contact David Schell directly at 416-446-5096. For all other legal services and inquiries, please visit our website or call us directly at 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, Criminal LawNovember 23, 2017June 17, 2020
Increase in Self-represented Litigants Increases Issues Recent news stories have been buzzing about the implications of Dellen Millard, the person accused of murdering Laura Babcock some years ago, foregoing counsel and choosing to act as a self-represented defendant. Much of the concern over this interesting strategy regards the court process for examining witnesses. In Criminal Court proceedings, an accused is entitled by law to cross-examine any of the witnesses called by the prosecution. For the Laura Babcock case this means the accused has the right to personally question persons such as the victim’s father. While this may cause unease to some for moral reasons, there is a bigger issue at play when self-represented litigants proceed to trials. The proposed advantages of self-representation, namely the decreased cost to the litigant, are at odds with the judicial system as a whole. Costs are actually increased when one party is self-represented. This is due to that person being unaware of the strict procedures that must be followed in litigation. The strict procedures come from legislation, meaning departures from them are rare and require alternative rules to override them. The savings that a self-represented litigant may appreciate in not having to pay for a lawyer to represent themselves are not actually costs eliminated in whole, but rather costs that are avoided by one party only to be borne by the opposing party and the court system. A trial where one party is self-represented will be lengthier and therefore costlier. A self-represented litigant is not going to understand the law and its procedures well enough to understand which material needs to be pleaded and which do not. This results in that litigant over-filing, which forces the opposing counsel and the court to spend more time sifting through materials that no value to the lawsuit. These litigants continue to cause more delays throughout the actual trial. Not only will a judge have to take time to provide instructions to the litigant throughout the trial, but the litigant themselves will be slower to examine and cross-examine because they will not understand things such as how to phrase questions, how to establish facts, and generally what they need to achieve. They are unable to perform efficiently at trials because they do not have the legal training and experience necessary. Not only does a longer trial increase the lawyer’s fees for the opposing party, but it decreases the amount of cases that a judge can hear. Beyond financial implications of litigation involving a self-represented party, the self-represented litigant is ultimately at a disadvantage when they go to advocate their interests and rights. Not understanding the law and the strict procedures, such litigants are at an exponentially high risk for getting their cases dismissed on summary judgment. Litigants who fail to properly plead materials are at risk for having their cases dismissed given the increase in the availability and the court’s determinations on summary judgment. Further, for cases which are not dismissed on summary judgment, the self-represented litigant is vulnerable because decision-making does depend on whether evidence was adduced and organized alongside arguments on the law. While self-represented litigants, such as Dellen Millard, may appreciate being in control of their trials and advocating their own interests, they have a significant effect on legal proceedings which are not in line with justice. They cause increased expense for the opposing party, take up an increased amount of time and resources of the court which limits the volume of cases the court can hear, and, ultimately, they place the self-represented litigant at risk of having their cases adjudicated without the court having received a well-informed, appropriate legal argument and all its accouterments. By: Samantha Hamilton, Student-at-Law “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 LawOctober 25, 2017June 17, 2020
If My Guests Drive Drunk/Stoned, Am I Responsible? October is here, and over the next few months, there will be a number of family gatherings and work events that may involve the consumption of alcohol/drugs. When your guest leaves your house and drives while impaired, can you be held responsible if they injure themselves or others? Being a host, you should always be concerned about how your guests are getting home, who is the designated driver, and always be ready to offer up your couch or blow-up mattress for the night. Luckily, we have options like Uber, taxis, and even a service called Safe-T-Ride that will pick you up and drive you home (IN YOUR OWN CAR!) so that you and your vehicle arrive home safely. Morally, as responsible and caring hosts, we should ensure the safety of our guests while in our care in or around our home. The case law is fairly clear about that but once your guest leaves your home does that duty end? The short answer is probably (but don’t take chances and keep your guest and the public safe!). The Supreme Court of Canada in Childs v. Desormeaux confirmed that social host liability probably does not exist in Canada. The homeowner that has a party serving alcohol may have no duty of care to members of the public who may be injured by the activities of the impaired guest after they have left the care of the host. This reasoning may also apply with parties where marijuana or other drugs are used. Regrettably we may see an increase in impaired driving with legalization of marijuana use for non-medicinal purposes. According to Marc Spivak, lawyer and managing partner of Devry Smith Frank LLP’s personal injury group, the Supreme Court of Canada decision may leave open liability on the host if: all of the alcohol that was served was supplied by the host and consumed there and there was some sort of relationship between the host of the party and the guest whereby the host would have control over the extent of the alcohol consumption and whether the guest was intoxicated upon leaving the home. Social host liability cases can take years to litigate with appeals to higher courts by the upset loser of the litigation. These cases cost hundreds of thousands of dollars to litigate and reflect the loss of life or loss of enjoyment of life that nobody should have to experience. If you are hosting a party this season, be prudent and take steps to avoid such possible accidents. Plan before your guests arrive and ensure your guests have safe transportation home. Judgment ability may change during your festivities. Make sure that won’t affect your guest’s safety and what happens after leaving your home. “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 Law, Personal InjuryOctober 6, 2017June 18, 2020
Drug Evidence Excluded in Strip Search Case In a recent decision from the Ontario Court of Justice (R. v MacPherson, 2017 ONCJ 615 (CanLII)), an accused was facing charges of possession of crack cocaine for the purpose of trafficking and simple possession of marijuana under the Controlled Drugs and Substances Act. However, Justice Sheila Ray decided to throw out all drug evidence against him. Her ruling comes after a critical review of the events that took place prior to his arrest, the evidence given by the officers involved, and a close look at the right to not be subjected to an unreasonable search under the Canadian Charter of Rights and Freedoms. The lead up to the unreasonable search and seizure began with the police receiving a call regarding a car that had been driving erratically. Justice Ray states in her ruling that, the police “had good reason to speak with MacPherson at that point, in order to check his sobriety and documents, and if there was no issue, to let him continue on his way.” However, after seeing movement in the vehicle before they made their way to the car, officers believed the accused may have been hiding a weapon. As a result they searched the accused at the scene, pulling back his pants and boxers to expose his skin, where they located drugs stashed near his tailbone. In her decision, Justice Ray concluded that this search was in fact a strip search. She also stated that a simple pat down in the field would have been sufficient to verify if the accused had been hiding a weapon, and that there was no need to conduct a strip search, especially outside of the police station. In her words, “there was no urgency. Nothing in Mr. MacPherson’s pants was running away.” The Toronto Police Service does have a policy with respect to search of persons, and categorizes them as level 1 to level 4. Justice Ray noted that she felt at least one of the officers in the MacPherson case was not aware of the policy and that the officers believed their actions were appropriate at the time, and that the search was not a strip search. Search levels under the policy are defined as: Level 1: Frisk or a pat-down search of clothing, pockets, and does not include the removal of any clothing except outerwear such as jackets, hats and/or gloves/mittens Level 2: More thorough search that involves removing clothing that does not expose a person’s undergarments or the areas of the body covered by them. Removal of belts, footwear, socks, shoes, sweaters, extra layers of clothing, or the shirt of a male are included in Level 2 Level 3: Removal of some or all of a person’s clothing and a visual inspection of the body. More specifically, the removal of clothing that full exposes the undergarments or an area of the body normally covered by undergarments (genitalia, buttocks, women’s breasts) Level 4: Body cavity search conducted by a qualified medical practitioner See the full policy on “Search of Persons” here. In the 2001 case, R v Golden, the Supreme Court of Canada provided guidance with respect to strip searches by police and when they may be appropriate. The Supreme Court ruled that strip searches should only be conducted when there are reasonable grounds, as they are “inherently humiliating and degrading.” Such searches will only be reasonable where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in a detainee’s possession, in order to ensure the safety of the police, the detainee and other persons, or for the purpose of discovering evidence related to the reason for the arrest, in order to preserve it and prevent its disposal by a detainee. Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported there. In the MacPherson case, Justice Ray concluded that the strip search of the accused was an unreasonable search and seizure and that his Charter right had been violated. As a result, she excluded all evidence of the drugs seized by the police. This is one of a number of cases recently reported in the media, where police have been criticized for conducting strip searches. The issue has gotten so serious that the Office of the Independent Police Review Director is conducting a province wide review of police strip search practices. “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 LawOctober 2, 2017June 18, 2020
22-year-old Man Charged in Travel Agent Scam A Toronto man posed as a travel agent and sold fraudulent tickets to travelers last summer, collecting the money via Interac e-Transfer which ranged from $400 – $3,000 each. When purchased, the travelers were able to confirm their bookings on the airline website, but the bookings were cancelled days later because of issues with the credit card that was used. The man charged, 22-year-old Hangfeng Zhang used several aliases including Jack Chen and Jason Wong and has been charged with: Two counts of fraud under $5,000 Two counts of possession of property obtained by crime under $5,000 He is due in court on November 9th. If you require representation for criminal offences, please contact our Criminal Lawyer David Schell, or call Devry Smith Frank LLP at 416-449-1400 today. By: Nicolas Di Nardo “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 LawOctober 2, 2017June 18, 2020
Harsher Penalties Proposed for Distracted Driving Harsher penalties have been proposed for distracted and careless drivers, in an effort to help save the lives of pedestrians and cyclists. The proposed changes introduce a new provincial offence for careless driving causing death or bodily harm, tougher punishments for distracted driving and increased penalties for drivers who fail to yield for pedestrians. The legislation will be introduced this fall, but may take up to two years to come into effect. These changes would amend the Highway Traffic Act, and drivers will see significant penalty increases, such as a licence suspension up to five years, two years in jail, and fines up to $50,000. In addition, fines for using a cellphone behind the wheel and other offences will see stricter and stiffer penalties, and could see distracted driving penalties change to the following: For fully licensed drivers: Current: Fine of $300 – $1,000 Three demerit points Proposed: First conviction: 3 day licence suspension $500 – $1,000 fine Three demerit points Second: 7 day suspension $500 – $2,000 fine 6 demerit points Third: 30 day suspension $500 – $3,000 fine 6 demerit points For novice drivers (G1, G2, M1, M2) will face the same fine structure, but will be given the following: No demerit points First conviction: 30 day licence suspension Second: 90 Day suspension Third: Cancellation of licence For more information on these proposed changes and to see the full list of proposed changes, please visit this link to view the Government of Ontario, Ministry of Transportation’s News release. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions, please feel free to contact one of our lawyers today, or call us directly at 416-449-1400. By: Nicolas Di Nardo “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 LawSeptember 22, 2017June 18, 2020