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 Fauzan SiddiquiBlog, 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, 2019July 5, 2023
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, 2019May 20, 2023
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
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
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
