from the defence

Toronto Criminal Lawyers | Robichaud's | Criminal Law Firm

2011-10-02T12:50:00.000-04:00

Some new updates to our website. Please take the time to visit it and pass the link on or like it on Facebook. Thank you. Toronto Criminal Lawyers | Robichaud's | Criminal Law Firm

The sound and fury of cross-examination: 10 guidelines

2011-08-04T15:47:00.003-04:00

There are few topics in the law written on as extensively as cross-examination. Cross-examination is to a lawyer as is the breakaway shot is to the hockey player, the Oscar-winning monologue to the actor, or the entrée to a very good meal.

Cross-examination is the climax of any good lawyer movie, and for good reason. It is exciting, dramatic, emotional, intense, and at times stunningly brilliant. We all remember Jack Nicholson in A Few Good Men after being questioned, cornered, and cajoled by Tom Cruise shout "You can't handle the truth!". Metaphorically it is a scene that every lawyer tries to replicate as they approach to dais, hoping for the moment they break the witness down to tears or emotion that solidifies an acquittal or conviction. In reality, this rarely happens; however, it does not take away from the effectiveness of a good cross-examination.

Every litigator has their own style and theories on what makes an effective cross-examination, and no one in particular is categorically right or wrong of how that is defined, or what rules must be followed or avoided. In the end, effectiveness comes down to persuasion, which can be achieved through infinite means and through any individualized style.

Notwithstanding, here are a few observations I have made over the years conducting hundreds of criminal trials that I hope may assist some lawyers in developing the style that they think is most effective.

1. Have a purpose

Throwing muck on the wall and hoping something sticks is a sure way to bore and confuse a judge or jury. Impeaching witness on collateral issues may be impressive and amusing to you, but it does nothing to further the interest of the judge or jury in trying to figure out what happened on the issues that are relevant. Before putting on your menacing glare and unsheathing your Mont Blanc pen, ask yourself what am I attempting to obtain from this witness: Is it damage control? What admissions can I obtain? What admissions do I want? What risks are present? How does their evidence fit into my overall theory? Do I want them credible or incredible, or incredible on certain aspects but believable on others? Have an objective for every witness and an understanding on how they mesh in your overall theory.

2. Sometimes silence is more powerful than words

Although not as entertaining, refraining from asking a witness any questions can be a very powerful statement to a judge or jury. For many litigators, particularly inexperienced ones, there is an insatiable desire to ask questions, no matter how irrelevant, innocuous, or risky those questions may be. If the witness has already testified in a manner that is helpful to you, does not hurt your case or theory, or the risk outweighs any reward, then stand up confidently and state to the Court: “no questions”. It says to the judge or jury that this witness’ evidence is acceptable or does not concern you in the slightest. This comes with the caveat that you must ensure you meet your obligations set out in Browne and Dunn, i.e., confronting relevant witnesses on evidence that you intend to introduce through other means, when they have the ability to do so.

3. Remain professional

Juries, judges, and witnesses can all detect emotion and that is precisely what you are trying to extract in a favourable way from the person sweating in the witness box. Therefore, it is not something that you want to portray as counsel. For a lawyer to show emotion that is beyond what one would expect of a professional is counter-productive. In particular, anger and frustration have no place on counsel’s countenance. If you are justified in your internal anger and frustration with a particular witness, then the jury or judge likely feels the same emotion. Your patience and fairness can even be amplified by their witnesses’ behaviour that may stoke those emotions. Professionalism and patience adds to your credibility as counsel. Emotions also cloud objectivity and your ability to assess whether your examination is having the intended effect.

4. Never interrupt a witness.

Listening to a lawyer and a witness trying to speak over one another is painful to the judge or jury. Whatever points you think you may be scoring, they are either being drowned out by the witness or the jury has tuned out the dissonance. Controlling the witness is important but interrupting them is never the way to obtain that. It may also portray you as being unfair and sharp with a witness if you are not letting them answer the questions fully. If a witness is unnecessarily prolix that it would require some form of intervention, then that direction should be sought from the Court.

5. You must know how to impeach someone properly on prior inconsistent statements.

If you do not know how to hammer a nail, you shouldn’t be building houses. It is the same thing with lawyers. If you cannot understand how to properly impeach someone, what rules of evidence apply, and what fact you are trying to elicit or undermine, then your structure will crumble. There are few things more effective in trial than a powerful impeachment but it must be done properly and a manner that is organized and concise. An entire blog entry, or book, could be written on effective impeachment. Therefore, suffice to say that impeachment requires a proper understanding of the law, practice and purpose. Are you allowed to impeach them? Is there actually an inconsistency? Is that inconsistency important? How is it important? Do you want them to adopt the initial statement or undermine their credibility at large? Where is the inconsistency in the statement? Here is the simplest of examples in trying to have someone adopt a prior statement that you want them to adopt as opposed to undermine:

Q: You just indicated to the court the car was blue?

A: Yes.

Q: Do you remember providing a statement to police on the night of the robbery?

A: Yes.

Q: Were you telling the truth to the police at that time about what you saw?

A: Yes.

Q: You were sober and aware of what had just happened?

A: Of course, I just saw it all clearly.

Q: The statement was immediately after the robbery was it not?

A: It was. About 10 minutes after.

Q: And like all humans, your memory would be better immediately after the event than it would trying to recall things 6 months later, as you are trying to attempt here?
A: Sure. That makes sense.

Q: Can you please look at this?

A: Ok.

Q: And what is that?

A: The statement I provided to police on the night of.

Q: And you would agree that you told the police that the car was yellow?

A: Yes, it appears I did.

Q: You already indicated you were not trying to mislead police that night.

A: Of course not.

Q: And you agreed that your memory would have been better that night, 10 minutes after the event?

A: Yes.

Q: Its fair to say that looking at this now, the car must have been yellow, and you are simply mistaken now, 6 months later trying to remember things as best as you can?

A: I guess so.

6. The primacy and recency effect

All people, including judges and juries, remember things at the beginning and at the end of a sequence. For example try to remember the following sequence 48390804832098322. As you read on, you most likely remember the numbers 4839 and 322. The number sequence is just an example of how information is retained. Understanding that, putting the most important parts of your cross examination at the beginning and end will assist the jury in remembering the aspects you want them too. Similarly, putting the information that is less favourable in the middle has the psychological effect of having less impact – i.e. examining on a criminal record of your client. One example of this used in practice is an immediate confrontation of a murder weapon of an accused: “Do you recognize this sir?” while holding the bloody knife in your hand.

7. Avoid opinion and submissions to the witness - establish facts, not conjecture.

Opinions are like noses, everyone has one and they are only useful to the person whose face it is attached to. Counsel should never provide opinions on the witness’ evidence, or make sarcastic remarks. If an argument is to be made on the incredulous aspects of a witness’ evidence, save it for your closing submissions. Being sarcastic comes across as abusive and is not helpful to any judge or jury in their roles of fact-finding. If you have established the facts properly there is no need for hyperbole or opinion as you will have already accomplished that. Keep your opinions to yourself and let the facts do the talking.

8. Listen to the answers.

Too often litigators will be so entangled in their meticulous questions that they fail to see manna raining from heaven. It is not uncommon for a witness to offer information that, although is not part of your script, is very favourable to your case. Pay attention to the answers and the side-issues raised by the witness. Asking a few more exploratory questions on a collateral issue may be the very thing you need to win your case. This skill may require some comfort and skill with the unknown but practice and experience will allow you to ask those exploratory questions without creating substantial risk to your case.

9. Save your fury

If every witness is treated like the Colonel who ordered the Code Red, the routine is going to get very tiresome. This is not to say that witnesses should never be approached with all the professional sound and fury you can muster – however, they must deserve it. Some witnesses will never deserve this treatment no matter how much they may be mistaken or lying. For example, making a 10 year old sexual assault complainant cry, rarely gets you very far. Chose your battles wisely and when necessary, and only necessary, lay your vengeance upon thee.

10. Develop your own style.

In the end, cross-examination comes down to a personal style that is developed over the years and crafted to match the strengths and weaknesses of the individual lawyer. One lawyer's effective modus operandi is not easily transferable to another. Effective cross-examination usually many examinations to develop, and many more to master. Hopefully some of the observations I have made over the years in conducting hundreds of criminal trials serve useful in developing and mastering your own style.

Sean Robichaud, Criminal Defence Lawyer

www.robichaudlaw.ca

What's the difference between a indictable and summary conviction offence in Canadian law?

2011-04-18T23:40:00.001-04:00

Under the Criminal Code of Canada, there are three types of offences: summary conviction offences, indictable offences, and those offences where the Crown may elect to proceed by summary conviction or by indictment. Crown-electable offences are often referred to as "hybrid offences". The simplest explanation of the difference between summary conviction offences and indictable offences is that the former is less serious than the latter.

Summary Conviction Offences

Summary conviction offences include the least serious offences under the Criminal Code of Canada. Relatively speaking to the number of offences under the Criminal Code, there are actually very few pure summary conviction offences. Those pure summary conviction offences include: possession of marijuana under 30 grams, solicitation of prostitution, being found in a common bawdy house, etc.

There are unique aspects that apply to summary conviction offences that do not apply to indictable offences. For example, a six month limitation period applies to all summary conviction offences or if the crown choses to proceed by summary conviction. Another unique aspect to summary conviction offences is that a person charged with a pure summary conviction offence (not hybrid) is not required to submit their fingerprints with police upon or after arrest or conviction. Summary conviction offences are appealed in the Superior Court of the relevant jurisdiction, and not directly to the Court of Appeal. In Ontario, those appeals take place in the Ontario Superior Court of Justice. Summary conviction offences generally carry a maximum penalty of six months in jail, although some electable offences have a maximum of eighteen months in jail (e.g. assault causing bodily harm, assault with a weapon, forcible confinement, sexual assault). A person is not entitled to a jury trial or to have their case heard in the Superior Court of Justice, unless it is being heard alongside an indictable offence at the same time.

Indictable Offences

Indictable offences are the most serious of criminal offences and would include murder, acts of terrorism, robbery, drug trafficking, robbery, treason, certain types of sexual assault, and other very serious criminal acts. As one could imagine, the sentences for these types of offences are very serious and often carry a potential maximum penalty of life imprisonment. Anyone charged with these sorts of offences usually has the right to chose their mode of trial: judge alone in Provincial Court without a preliminary hearing, judge alone in Superior Court with or without a preliminary hearing, or a jury trial with or without a preliminary hearing. However, not everyone who is facing an indictable offence is entitled to a preliminary hearing or a judge and jury trial (those exceptions are set out in section 553 of the Criminal Code). Similarly, not every type of offence permits the accused to elect to have a judge without a jury unless the prosecutor consents (for example, in first-degree murder the Crown must consent to have the case heard by a judge alone).

There is no limitation period for indictable offences and a person can be charged, tried, acquitted or convicted at any time the police wish to proceed with the charges provided there is a sufficient basis for doing so.

Usually indictable offences very complicated with serious consequences. Although it is never a wise choice to defend allegations without the assistance of a lawyer, doing so when facing an indictable offence is reckless. Appeals for indictable offences are heard by the Court of Appeal for the Province the case was heard.

Hybrid Offences

Hybrid offences are those offences where the Crown may choose to proceed by either indictment or summary conviction. These types of offences cover the majority of Criminal Code of Canada offences. The include, but are not limited to: assault, sexual assault, fraud under $5000.00, theft under $5000.00, assault with a weapon, assault causing bodily harm, possession of cocaine (simple possession), and many more.

The decision by the Crown to proceed by way of indictment or summary conviction is a discretionary one that is not subject to review by any court (unless there was a deliberate abuse of process which would be exceptionally rare and very difficult to demonstrate). In assessing whether or not to proceed by indictment or summary conviction, a Crown would consider factors that may include: the seriousness of the allegations (for example, "sexual assault" can include either touching or full intercourse), the accused's prior criminal record, the notoriety of the case in the community, the availability of court resources, whether the offence is sworn outside the limitation period for a summary conviction, the complexity of the case, and any other relevant considerations.

If you wish to lean more, please visit www.criminallawyerintoronto.ca or call (416) 220-0413 to discuss these or any other issues relating to criminal law.

What happens on the first day of criminal court in the Ontario Court of Justice?

2011-04-08T19:31:00.005-04:00

Old City Hall, Toronto

Generally speaking, the first day in the Ontario Court of Justice is not your trial date - it is an administrative appearance for the purposes of understanding what the charges are, to obtain disclosure, and to advise the Court of your intentions in retaining a lawyer.

After a person is charged with a criminal offence, a person is either released by police unconditionally, released by police with conditions (an undertaking to a peace officer or officer in charge) or they are taken for a bail hearing where the person is released by the Court or held in custody. After this has taken place, an accused person is provided a date in Court, typically known as a "first appearance" court date.

On this initial appearance there are a number of events that are expected to happen: First, the Crown is expected to provide "disclosure" to the accused. "Disclosure" is the evidence the Crown and police have in their possession that they intend to rely upon to prosecute the case. This assists the accused and the accused's lawyer in better understanding the case against them so that they make informed decisions about how to proceed with the case. Second, if the accused has retained a lawyer, that lawyer should attend to inform the Court that they are now prepared to go "on the record" as the individual's counsel. If the person does not have a lawyer, they are expected to advise the Court of their intentions to do so, or whether they wish to represent themselves.

Although unusual, and likely an unwise decision at this early stage, It is possible that a person could have their charges traversed before a judge on the first appearance in Court to plead guilty if they so wished. The reason that this would be unusual is because a person would typically want the assistance of counsel to thoroughly reviewed the disclosure, advise the client on the merits and weaknesses of the case, and to negotiate with the Crown to obtain the best possible resolution in the circumstances (often referred to as a "plea bargain"). Since all of these steps would be difficult to achieve on the first appearance, most counsel will seek to adjourn the matter to complete all these steps diligently and to obtain materials (such as job, reference, or doctors letters) that may assist in mitigating the sentence against the individual who wishes to plead guilty. In Ontario, a person is not expected to enter a plea of "not-guilty" on the first appearance and is typically is not asked to do so until that individual is arraigned at the trial date. It is very easy to change a plea of not-guilty to guilty; the converse is very difficult.

After the Court addresses the matter, and assuming the person does not want to plead guilty at this early stage, the case will be adjourned for several weeks so that the person charged may: a) review disclosure, or obtain disclosure on the next occasion if not already provided, b) retain and obtain advice from counsel, c) apply for Legal Aid if necessary, d) have their lawyer speak to the Crown Attorney about the case for the purpose of resolution or trial discussions, or, e) any other purpose that the situation may require.

To recap: unless a person intends to plead guilty immediately, the first day in Court is an administrative appearance - it is not a trial date. No evidence is called, no plea is entered, and there is nothing to be overly concerned about. Although not strictly necessary, obtaining legal counsel prior to this appearance is a very prudent action as they can assist in all aspects described above and can ensure that all of your rights are protected and your questions answered.

Here are a list of many of the "first appearance" Courts in the Greater Toronto area:

60 Queen St. W., Old City Hall, Toronto: Courtroom 111

444 Yonge St., College Park, Toronto: Courtroom 505

1911 Eglinton Avenue, Scarborough: Courtroom 407

1911 Eglinton Avenue, Scarborough (Youth Court): Courtroom 408

311 Jarvis Ave., Toronto (Youth Court): Courtroom 1

2201 Finch Ave. W., Etobicoke: Courtroom 202

2201 Finch Ave. W., Etobicoke: Courtroom 407

Visit our website at www.criminallawyerintoronto.ca or call 416.220.0413 for more information on how to approach criminal charges or to speak to a criminal lawyer.

Election Canada 2011 | Party Policies on Justice and Law

2011-04-01T19:11:00.002-04:00

The 2011 Canadian election is quickly approaching with the race turning into a closer contest day by day. Keeping in line with the theme of this blog, I thought it would make sense to post the head note and link to each party's policy on legal issues surrounding crime and justice. I should add it is also interesting to note how each party titles the issue on each of their websites.

Liberal Party of Canada: "Justice and Public Safety":

The Liberal Party has a strong record on reducing crime. We believe in tough sentences for serious crimes. But unlike the Conservatives, Liberals don’t think the solution is to spend billions on US-style mega-prisons that will only produce more hardened criminals. Meanwhile, the Conservatives have cut funding for crime prevention and victims programs and broken their promise to hire 2500 more police officers.

The New Democratic Party: Not listed in "Platform"

Oddly, there is nothing listed in the NDP platform about this issue. If I come across it, or if someone from the NDP let's me know, I will be sure to update immediately. I do believe that they still support the legalization of marijuana, so that's something relevant I guess.

Conservative Party of Canada: "PM highlights important legislation on becoming law"

Prime Minister Stephen Harper today highlighted new pieces of legislation, which became law.

“Our Government is committed to supporting families and communities,” said the Prime Minister. “Over the past five years, our Government has taken action to make our streets and communities safer and to protect Canadian consumers. We have taken the right action and we have delivered.”

And what would a blog be without an opinion, so here it is:

Keep in mind when voting this year that law and justice is not simply about punishing every offender as harshly as possible and criminalizing immoral, as opposed to harmful activity - i.e. marijuana use, prostitution, etc. It is very easy to implement policies that are "tough on crime" (whatever that means) but is quite difficult to be just, proportionate, and cognizant of what is best for society's long-term benefit.

It is the difference between a parent who lashes out harshly to a child who has done wrong assuming that their punishment will "set them straight", and a parent who understands that there is nothing wrong with punishing wrong doings, but with an intent to learn right from wrong on their own volition. Fear of punishment alone will never stop crime; opportunity, strong morality, and optimism for the future will.

The societal benefits in spending billions of dollars on jails pales in comparison to the benefits derived from spending that money on things like jobs, programs, and most importantly child care: almost every person who comes before the criminal courts is the product of a neglected childhood. For example, with the benefit of a national child care plan, those parents could be at home teaching their children right from wrong, instead of working to pay for the prisons they may end up in because of neglect.

Providing full due process, meaningful and discretionary sentencing by well trained jurists, and the means for a person to reintegrate into society is not being soft on crime, its being smart. No matter how "tough" one may get on crime, it will never quell irrational fears; however, the smarter we get on crime, the less we have to rationally fear.

Wrongful convictions commissions in Canada

2011-02-28T18:48:00.004-05:00

William Mullins-Johnson:
Wrongfully convicted of a murder
he did not commit.
Picture from www.cbc.ca

A collection of wrongful conviction inquiries in Canada:

Donald Marshall Inquiry Report:

Guy-Paul Morin Inquiry Report:

Thomas Sophonow Inquiry Report:

Parsons, Druken, and Dalton Inquiry:

James Driskell Inquiry Report:

David Milgaard Inquiry Report:

Stephen Truscott Report:

Goudge Inquiry into Pediatric Pathology:

It's important for everyone to remember that wrongful convictions happens, continues to happen, and will always happen - but we can all take active steps to minimize those tragedies. The justice system is a human system and like all human systems, mistakes are made - the more conscious we are of that reality, the less wrongful convictions will happen.

The impact of Charge Approval on the public’s perception of Criminal Charges

2011-02-25T15:10:00.001-05:00

by Anna Stuffco, Student-at-Law

After my second year of law school, I worked for the Federal Crown Prosecutor’s office at Main and Hastings in Vancouver. The epicenter of drug crime in Canada, from street level hand-to-hand transactions to massive importing cases, I was wholly immersed in all aspects of the Criminal Justice system. On the Crown’s side, that is.

During what is colloquially referred to as a “summer article” I was given the opportunity to conduct bail hearings in front of judges and participate in the Charge Approval process. In British Columbia, charge approval is a fundamental aspect of Criminal Procedure. It is the very first step in the criminal process, in that a Crown Attorney decides whether, on the synopsis provided by the arresting officer(s) and their notes, to lay a criminal charge as a result of that arrest. This seemingly simple first step is a pivotal one in the eventual impact the laying of a criminal charge will have on an individual. The reason for this seems obvious: once a criminal charge is laid, it is very difficult to make it go away.

Most Canadian jurisdictions have a threshold to reach before a charge can be laid; in British Columbia, Crown Attorneys exercise a quasi-judicial function when deciding whether to lay a charge. If that threshold is not met, and there is no reasonable prospect of conviction, the charge dissolves and no further action is taken against the arrestee.

Although Criminal Law is under Federal jurisdiction pursuant to s. 91(27) of the Constitution, the provinces have the power to regulate the administration of justice under s. 92 (14). This is how different provinces can administer the same Criminal Code in dissimilar procedural ways.

Another consideration Charge Approval addresses are the implications on the accused. When someone is charged, they may not get bail; if they do, their liberty will be severely restricted. Their reputation can suffer irreparable damage, and perhaps least importantly, the financial aspects of not only retaining a lawyer to fight the charges, but also the loss of earnings whilst on bail and the impact on future earning capacity a criminal charge will make, necessitate a high level of scrutiny when allegations are made.

To me, British Columbia had gotten it right. There, charges are not laid by police but by Government lawyers. This is the most fundamental procedural difference between British Columbia and Ontario and what ultimately leads to a more transparent system of justice. Crown attorneys are not only representatives of the Attorney General but are also members of the Law Society; for these reasons they are bound by a higher ethical and legal standard than Police Officers. Not only are Crowns legally educated, trained and liscenced, but are further bound by the code of ethics mentioned above. This puts Crowns in a better position to approve criminal charges and begin their prosecution than police officers who do not benefit from the same legal education.

Further, Crown counsel are entrusted with “judge-like discretion” in the charge approval process, meaning it is incumbent upon them to maintain very high standards of fairness and impartiality. Their decisions are made in a judge-like atmosphere necessitating independence and neutrality. One must not think of how the decision may be justified, but must make that decision based on fact — absent emotion or partiality toward one side – removed from the usually adversarial trial process.

Crown Attorneys must further consider whether there is a “substantial likelihood of conviction” from the facts of the arrest, and if it is in the interests of society to prosecute the case. The substantial likelihood test is a high one – probable conviction or likely conviction will not suffice – there must be a substantial likelihood the person will be convicted before a charge will be laid. This is a crucial concept in any criminal justice system, and one that British Columbia’s charge approval process adequately addresses.

The final prong of the test as alluded to above is whether the prosecution is in society’s interest. Nebulous in its application, this prong requires Crown Attorneys take into account the larger societal interests engaged by the Criminal Justice System. The rights of both victim and accused are tied into this finding, resulting in an all encompassing consideration that must be made before each and every criminal charge is approved of.

Which brings me to my point: our system of justice guarantees that one will be presumed innocent until proven guilty. What I find irksome about the practise of criminal law thus far is not weekend in-custody visits, the brutally long hours or the perpetual state of argument in which we find ourselves – it is that somehow, Canadians have forgotten our Constitutionally protected presumption of innocence and have decided that everyone who is charged must be guilty. And I haven’t even been called to the bar yet.

Further exacerbated by the media, and society’s seemingly insatiable appetite for salacious fact patterns, when a criminal charge is laid the balance seems to be overwhelmingly tipped against the accused. The rank and file Canadian doesn’t realise that because criminal charges are laid by the Police in Ontario, all that is required before a charge is laid is an allegation. No corroboration or substantiation are required at this stage: just an allegation. And I realise this is a better alternative to the converse: that victims of crime be ignored and charges not laid as a result. That is certainly a result that has been and should be protected against. But at what cost to the one against whom the allegation is made?

Our current system has created an environment in which new “tough on crime” legislation is being introduced annually, more charges are being laid, requiring more prisons, more Crowns to prosecute these cases, more stress cast upon an already bucking criminal justice system and more people being incarcerated at rates never before seen in Canada. Yet crime rates have been in steady decline since 1973.[1] So why the hysteria?

Charge approval is just one potential solution. But in my very limited experience, it’s one that can simply and effectively be implemented to alleviate the strain on the system. By not laying charges based on unsubstantiated allegations or for minor arrests wrought with constitutional violations, the overall goals of the Criminal Justice System can be better served and society’s interests better protected.

[1] Statistics Canada: http://www.statcan.gc.ca/pub/85-002-x/2010002/article/11292-eng.pdf.

King Law Chambers: Toronto Criminal Defence Lawyers

2011-02-13T18:00:00.003-05:00

King Law Chambers and its website are up and running. Check out www.kinglawchambers.com to see the collection of Toronto criminal defence lawyers practicing out our space at King and Bathurst now. We are all looking forward to working together and sharing our collective and considerable experience to assist out clients charged with criminal offences of all types and degrees of seriousness.

Do you qualify for Ontario Legal Aid Assistance?

2011-02-03T17:09:00.001-05:00

I received an email from Ontario Legal Aid setting the eligibility of people applying for Legal Assistance. If you are curious whether or not you would be eligible for a certificate Legal Aid please read the following:

Dear Panel Member,

On February 1, 2011, Legal Aid Ontario is implementing a new simplified eligibility test for legal aid certificates. Unlike the current needs-based test, the simplified test is based on client income and requires less documentation, which makes it easier for clients to apply for certificates over the phone or in a courthouse.

LAO has been piloting the simplified test in selected locations over the past year, and the pilots have shown that the new test provides a range of benefits to clients, staff and stakeholders. It is a transparent test that is easy to apply and understand, and provides eligible clients with faster and more consistent decisions, enabling them to move forward with their legal matter more quickly.

The new simplified test provides flexibility for vulnerable clients, particularly those with mental health issues or those experiencing domestic violence. Clients receiving social assistance benefits will continue to qualify for a certificate as they did under the previous test. The streamlined financial test for duty counsel services and telephone summary legal advice will remain the same.

We expect that this will mean that applications will be processed more quickly and that duty counsel and staff will be able to easily determine if someone qualifies for a certificate.

The financial eligibility test for duty counsel has not changed.

LAO is in the process of making the public aware of the simplified test criteria and recognizes the importance of informed panel lawyers in this process. Attached is a document that can be used as a reference when meeting with potential clients. Cards with this information will be available through your local Legal Aid District Office. Similar materials have been made available to the Judiciary, duty counsel, MPPs and LAO offices. The simplified eligibility criteria will appear as follows:

Financial Eligibility for a Legal Aid Certificate

Should you wish to discuss these issues any further, please view our website at www.criminallawyerintoronto.ca

Being Charged With a Criminal Offence

2011-01-02T11:15:00.003-05:00

Sean Robichaud, Barrister

Robichaud’s Criminal Defence Litigation, Toronto

Very few individuals expect to be charged with a criminal offence at any point in their lives and most of those people are entirely unprepared for the stressful and perplexing process that lies ahead of them. The two most important details that every individual ought to know is the right to silence, and the right to counsel.

The Right to Silence

Exercising one’s right to silence may seem counterintuitive, especially if that person feels that they are not responsible or involved in the crime alleged. It is human nature to want to explain what did, or did not, happen. Many people who are charged feel that if they simply explain to the police the truth of the allegations, all will be quickly withdrawn with an apology for the misunderstanding. However, that is rarely the case and those few occasions where police may come to terms with their error, are grossly outweighed by the risks one takes on by making statements that may be devastating to their case later on.

Police are not judges; police are investigators. Police gather evidence, they do not make final determinations of the worth of that evidence or who is telling the truth. The role of investigating officers is very simple: once there exists “reasonable and probable grounds” to believe that a criminal offence has taken place, they are obligated to make an arrest or seek a warrant for an individual. Therefore, to provide a statement typically only does one of two things: 1) provides the evidence the investigators need to establish reasonable and probable grounds they may have otherwise lacked, or 2) provide further evidence that strengthens the grounds they already have and intended to act on.

The only safe option before speaking to a lawyer and obtaining specific legal advice is to exercise the right to silence. In criminal law, silence is worth nothing; however, admissions and denials can quickly turn an easily defendable case into a difficult legal challenge. If words are necessary, then experienced counsel can manage that for you at the right time, which brings us to the next point: the right to counsel.

The Right to Counsel

Under section 10(a) and 10(b) the Charter of Rights and Freedoms, an individual has the right on arrest or detention “to be informed promptly of the reasons” and, “to retain and instruct counsel without delay and to be informed of that right”. This latter option is one of the cornerstone’ to our legal system in Canada as it ensures that all individuals have the same benefit under the law of knowledgeable legal assistance – provided one exercises it.

Canadian law also requires that police provide an opportunity for an individual to implement that right to the fullest extent. This means that a person has a right to call a specific lawyer and the police must assist that person in finding counsel through the use of legal directories or whatever means necessary. It is unacceptable for police to refuse a specific lawyer unless all reasonable steps have been exhausted. Researching the name of a trusted lawyer with proven experience ahead of time saves the effort of skimming through legal advertisements or unknown lawyer lists at a police station.

The lawyer an individual chooses when charged with a criminal offence could be the most significant decision in their life and that is why the law mandates police must allow the person to choose. That is why most criminal defence lawyers are available 24 hours a day for emergencies like unexpected arrests or calls from police station.

Being criminally charged is unpleasant; being convicted is devastating – exercising your rights properly may be the only crossroads between those events.

Your first day in Court and meeting with a criminal defence lawyer

It is important to understand that the first appearance in criminal court is not a trial. It is not an opportunity to explain to the Court or Crown what happened and present a defence. Unless you intend to plead guilty or conduct a bail hearing, the first appearance in criminal court is largely administrative in nature. Perhaps the most significant component of that first administrative appearance is receiving “disclosure”.

“Disclosure” is a collection of items that the Crown Attorney considers relevant to the case. These items may include including include: witness statements, police officer notes, audio or video recordings, 911 calls, banking or business records, and anything the Crown Attorney and police consider relevant to the prosecution of the case. Disclosure is a constitutional right of an accused. Once disclosure is provided, your lawyer can understand the case against you in a meaningful way and provide you with a professional opinion on possible defences, legal fees, and an overview of where the case ought to proceed from that point.

Many criminal lawyers, including myself, will meet with potential clients to provide general information about procedures and estimates on fees at no cost or commitment. In meeting with a lawyer for the first time, you should bring all relevant information with you such as disclosure and witnesses contact information. You should also be prepared to discuss facts relating to your allegations if the lawyer requests.

Being charged with a criminal offence does not need to be a terrifying experience and having sound legal advice through the process ensures that.

Questions from a high school student

2010-12-03T13:43:00.003-05:00

A high school student asked me to answer several questions for one of her classes about my career choice and the profession of law. I thought I might share it with everyone:

1. As a teenager, what did you think your career/job would be as an adult?

There were many things that I hoped to become in my adult years including a professional rock climber, a race car driver, a river guide, and several other aspirations that all seemed much more exciting than working in an office building.

2. What was your first paid work experience? Was it during highs school or afterward? How many hours a week did you work? What did you get paid?

I first worked painting fences and cutting grass at Windfield Farms: a horse breeding ranch in Oshawa. It was horrible: long days, hot sun, little pay, and very little training on how to do anything.

3. What three things did you learn from the job? Did these experiences help shape your career and current job?

The three things I learned are:

a) Being successful at any job, skill, or profession requires hard work - there is no way around that basic fact;

b) A higher education (university, college, etc.) is invaluable when working towards a reasonable income and a higher quality of life; and,

c) Horse manure really smells.

Yes, certainly the former two principles were essential to forming my present success and lifestyle. Without understanding that everything rewarding in life requires hard work, you will forever be in a position of feeling entitled to something that you do not deserve. The smell of horse manure has thankfully not been relevant in my life since then.

4. As you continued on your educational and career path, did you have a mentor who inspired you to approach the working world in a certain way? Please explain.

There were several mentors along the way that inspired me. They included teachers, professors, friends, and even celebrities. Mentors are important because they give you guidance but also tangible goals that you can work towards. Guidance is important and mentors can benefit an individual by showing them options and paths in which way to obtain the protégé’s goals. However, it is important to understand that the ultimate decisions in life will be up to the individual and mentorship should never trump the importance of that decision making process. A good mentor provides a protégé the freedom to decide in an informed manner.

5. Can you please provide a brief description of your current job position and your employer? Did you ever expect to be working in this job?

I am a criminal defence lawyer. I represent individuals who are charged with crimes ranging from possession of marijuana all the way to first degree murder. I do not represent guilty people; I represent people who are accused of crimes and under our law, presumed innocent until a court finds them guilty beyond a reasonable doubt. It is not my role to judge, to determine the innocence or guilt of my client – my role is to assess the evidence, advise the person of the legal principles that relate to his or her case, and then provide a defence that is vigorous and uncompromising.

For several years I worked for, what was at the time, Canada’s largest criminal defence firm. I worked as a student, then as an associate, and then became a partner. In 2009 I left the firm and started my own firm: Robichaud’s Criminal Defence Litigation.

I never expected to be working in this profession. I use the term “profession” instead of “job” as a profession is an integral part of a person’s life that in large part defines who they are, whereas a job implies something that is temporary and done solely for the sake of an income – a person would never survive as a lawyer if they considered their work a job, instead of a profession.

Now that I am doing what I am doing, I cannot imagine doing anything else. I love getting up in the morning and going to court, preparing defences for my client, fighting for society’s civil liberties, and making tangible differences in individuals' lives on a day to day frequency. There are few things more gratifying to me than hearing a “not guilty” verdict being read out in a Courtroom, or to hear back from a youth who turned their life around after facing charges that were managed in a way that allowed them to do so. Every day as a defence lawyer has a different reward in different ways.

6. How many jobs did you have before this one? What were they and how did these experiences prepare you for your current job?

Several jobs have contributed in their own ways to my present life perspective, and my success in my present profession. They include: general labourer, retail salesperson, campus security guard, rock climbing instructor, river guide / trip leader, and bungee jumpmaster. The skills learned include, but are not limited to: work ethic, public speaking, negotiation, psychology of crime, business operation, and most importantly, the ability to put aside one’s fears in any situation to deal with issues in a calm, collected, and professional manner.

7. Did you need any specific education or training in order to qualify for your current job? If so, what was it? If not, what skills or education do you wish you had? How did you get that education and training?

Yes, absolutely. The education for a lawyer is significant and difficult, but very rewarding. To become a lawyer an individual requires:

a) University degree (3 to 4 years);

b) Law degree (3 years);

c) Articling with an accredited principal (1 year); and,

d) Bar admissions exams.

In addition to that education, the Law Society of Upper Canada requires continuing legal education with a minimum amount of professional development each year. In addition to the continuing legal education I am presently enrolled in, I am also working towards obtaining my Masters in Law (LL.M.) through Osgoode Law School.

8. What do you enjoy most about your work and what do you find most challenging?

There are countless reasons I love my profession as a lawyer, and in particular a criminal defence lawyer. Practicing as a lawyer is often described as a “noble profession” as it strives to make a better society for everyone on a day-to-day basis. With law, you can argue against laws that you feel are unjust, uphold rights and liberties, or even seek to modify existing or create laws that ought to be in place. The law applies to all aspects of life from driving to school in the morning, how teachers are allowed to treat the students, how students are required to treat teachers, what televisions stations are permitted to broadcast, what music you are allowed to download or copy, and every corner of our every day living. There is virtually nothing you can think of in our daily living that the law does not apply to in some manner or another. Therefore, no matter what your interests, the law can apply to that and you can always stay intrigued.

As a criminal defence lawyer in particular, you are often the last defence between the State and the individual, between rights and tyranny, between what a person is allowed to do within the state, and what the state is allowed to do to that person. What is most challenging is also what is most rewarding and that is every action you do as a lawyer as serious consequences on society in general, your client, the rights we share, and the future for us all. Having a rewarding decision on an important case can be very gratifying, but the converse of losing one can be very disheartening – and therefore I strive to keep those low moments to an absolute minimum (so far, so good).

9. If you could give one piece of advice to high school students about planning their careers, what would it be? Be specific.

Above all, enjoy what you do. It is very difficult to be successful at anything in life if you don’t enjoy it. If you love your profession, hard work is gratifying. With hard work you may become the best in your profession and once that happens you will be live a comfortable life – both financially and as a matter of personal satisfaction.

10. What would you have done differently in high school, knowing what you know now about careers and work experience?

I would have learned another language, particularly our other official language of French. Aside from that, I don’t have many regrets. I didn’t do exceptionally well as a high school student as my interests were more in being a youth and there is nothing wrong with that. As long as you have good enough marks to get into the doors of opportunity you desire, the difference between grades is relatively insignificant in the long run in your career. No judge has ever asked me what I grade I got on my grade 10 chemistry class (thank goodness).

11. What abilities and skills would you give to high school students wanting to become your career? Be specific

The ability to think critically, the ability to challenge and question the accepted norm or rule in an objective and well reasoned manner. A change to the prevailing authority or rule requires more than simply refusing to accept it – it requires persuasion and advocacy. If you wish to be a litigator, public speaking abilities are essential. If you wish to be a solicitor, research skills are required. However, as mentioned, the law applies to all areas of life and therefore almost all skills can be accommodated as a lawyer in one way or another.

12. What inspired you or made you decide to become what you are today? Do you ever regret it?

It’s difficult to reduce significant influences or inspirations to a few areas. Inspiration or influence can come from any source, on any day, and in ways that often go unnoticed. Sometimes the most important decisions we make are made without us realizing how significant they are. However, I can say with certainty that I don’t regret choosing to live my life as a lawyer and will likely continue practicing until the end of my days.

Sean Robichaud

Barrister & Solicitor

416.220.0413

www.robichaudlaw.ca

Fear Mongering in the Legalization of Prostitution in Canada

2010-09-30T17:29:00.001-04:00

- Anna Stuffco, B.A., J.D.

Fear mongering is destructive, misleading and causes unnecessary social hysteria. Certain Canadian media outlets and Members of Parliament are more guilty than others when it comes to drumming up emotion in the court of public opinion. Yesterday’s decision by Ontario Superior Court Justice Himel to strike down provisions of the Criminal Code as unconstitutional unleashed a wave of public madness across the country, fueled in part by fear mongering.

What has been fascinating to observe in this debate is the replacement of sociological evidence with haughty scare tactics used by the media, MPs and the public when discussing this issue and its potential outcomes. For an articulation of my point, see the below quote from today’s Globe and Mail:

The ruling also left police confused and neighbourhoods fortifying to fend off a possible deluge of sex-trade workers.[1]

A possible deluge… really? A deluge? This is precisely the type of journalistic exaggeration that does nothing to foster informed discussion and punctures the veil of civility which ought to protect public discourse on potentially sensitive issues such as this one.

What concerns me, though, is how this brand of illogical approach to the discussion of an issue influences public opinion. People seem to be mistaken about the pragmatic implication of this decision. Reading reader comments on various national media websites, hearing the reaction of certain MPs and listening to the discussions being held by rank and file Canadians has lead me to conclude one major thing: the entire country has constructed a straw man. A logical fallacy is being committed every time this decision is misunderstood and reacted to by those who perceive it as paving the way for Canada’s inclusion in the international ranks of prostitution safe-havens:

“What planet does this judge live on?” asked Lisa Stephens Immen, former chairman [sic.] of an umbrella group of resident associations known as The Neighbourhoods’ Forum. “I hope that all the naive fools who support this ruling will be gifted with the task of picking up the used condoms in their own nice neighbourhoods.”[2]

Again, this line of reasoning is fallacious as it sets up a straw man proposition, and then attacks it. It creates the “illusion of having refuted a proposition by substituting a superficially similar yet unequivalent [sic.] proposition and refuting that one, without ever having actually refuted the original position.”[3] What this decision will actually do is alleviate the impact prostitution has on residential communities by allowing its establishment in protected, private areas. If prostitution is legalized, it is more likely that stray condoms will cease to be found in parks and streets because the sexual acts warranting their use will be taking place in lisenced brothels or homes, and not in public places. The public safety aspect of legalizing prostitution is significant not only for those who are directly involved in the sex trade, but by Canadians as a whole. If members of a community do not like finding needles or used condoms in their neighbourhood, the logical response is to support this decision, not attack it with misguided logic based upon unfounded data and public hysteria.

What is also curious about this issue is the misguided sense of social morality being engaged by opponents of Justice Himel’s decision. Striking down these provisions as unconstitutional has nothing to do with morality, it has to do with the Constitutional validity of laws. It isn’t about whether some Canadians, represented by Justice Himel and her decision, want to open the floodgates and allow prostitution and brothels to permeate every community in Canada and flourish therein. It is about applying a legal standard to a piece of legislation, weighing the merits of each side and holding that the law in question violates the Charter right to life, liberty and security of the person. More importantly, that the law being examined violates Charter rights to such an extent that it is ruled of no force and effect immediately, articulates the severity of the Constitutional breach. Whether that law aims at regulating certain types of speech, the power of the state to search and detain or the ability of a prostitute to solicit business is immaterial to the overarching Constitutional principles that are engaged by all types of laws, and the scrutiny necessitated by their proclamation.

The public relations campaigns on both sides in this debate are not without their blunders. Framing the decision as a victory for “women’s liberation” by its supporters, and saying it will lead to a rapid influx of human trafficking by those opposed to it, are equally harmful positions to assume. By championing this victory as women being able to choose who they have sex with and when trivializes the actual reasons for the decision. The law was held to be unconstitutional because of the way it forces marginalized, vulnerable women into even more unsafe situations and thus, violates Section 7. By framing the issue in a way that mischaracterizes it as emancipating for women leads one to believe these women have actually had a choice in choosing to prostitute themselves on the street. Sure, some have, but many women working as prostitutes are there because of a culmination of horrible events that have occurred in their lives. It is these lives that are completely under the radar and that s. 213 of the Code aggravates even further. Contouring this decision as a victory for sexual liberation ignores this victimization and marginalization, and is an extremely perilous view to perpetuate. The reality is that if this case fails at the Supreme Court of Canada in x number years, the government will then draft a new law that addresses the s. 7 concerns by not forcing these women into the street. Once that law is challenged, it is very unlikely that any judge in the future is going to overturn it because it violates women's sexual freedom. Sexual freedom, and the Charter right to life, liberty and security of the person are not the same issue.

Justice Himel didn’t impugn this legislation because she wants young women to see prostitution as a desirable “career choice” (yet another straw man that wholly misses the legal points at issue in this case). She did so because people who work in the sex trade need to be protected. All we need to do to see the urgency in this is look to the ease with which serial killer Robert Pickton preyed upon vulnerable women who worked as prostitutes in Vancouver’s downtown Eastside; or, the over 300 missing women in Alberta whose disappearances are still unexplained and who worked and lived on the street.[4] What this decision says is that these lives are important; that the justice system and parliament and Canadians as a whole cannot continue to ignore and marginalize women because they live in absolute poverty and work on the street. By continuing to force them into unsafe situations and unsafe conditions, where their bodies are easily taken, used and abused, seemingly without consequence, Canada has repeatedly affirmed these lives aren’t worth protecting. Well, not anymore.

Analogous to the InSite debate (the safe injection site in Vancouver’s downtown east side), the aim of striking down prostitution legislation is harm reduction. It’s not about sanctioning certain types of conduct that have been historically labeled as amoral or wrong; it’s about realizing the complete impossibility of governments and societies to rid themselves of drugs and people who want to buy sex, and taking the responsible approach of constructing ways to legislate around these social tribulations. Such is the reality of modern society: people are not going to stop using illegal drugs or paying for sexual services, no matter how hard you make it to get, or find, or use, or the penalties you tack on to being caught trying to get, find or use them.

Like InSite, Justice Himel’s ruling has sent conservative-minded Canadians into a blither. Of course one is entitled to their opinion, and certainly no one would ever argue that using intervenes drugs or paying for sex in an alleyway are markers of a good, healthy society. However, the only question I think that is relevant in this debate is, what’s the alternative?

Forcing women onto the margins of society by refusing them access to the protection of the law and society in general does nothing but say certain lives aren’t worth the same as others; that women, often of low socio-economic status, often non-white and Aboriginal, who work in the sex trade don’t deserve our help and protection. At play in this mentality is an overtly patriarchal view of women and a racially intolerant attitude that says these lives aren’t worth protecting because of the discomfort it will cause the hegemonic majority in this country, should we allow prostitutes to operate legally. What, then, do our laws say about how we treat the most vulnerable in our society? How do we begin to fashion our laws in a way that reflects Canadian ideas about equality, justice and social welfare? By having the courage and foresight to strike down legislation that violates our basic ideas of freedom, liberty and equality and by the continued protection of these rights within our just society, as Justice Himel did yesterday.

And further, and without trying to overly simplify the issue, who cares if people want to pay for sex from other people? As long as its regulated and safety standards are imposed, who really cares? The fascination with the sexual behaviour of complete strangers is an explicable phenomenon that does not pertain to most people’s lives directly. Like Civil Unions, I can’t understand why these issues become such hot button pressure points in social discussion. Anyway, perhaps that discussion is best saved for another day.

[1] Makin, Kirk. “Police, communities struggle to grasp prostitution ruling”, The Globe and Mail, September 30, 2010, http://www.theglobeandmail.com/news/politics/police-communities-struggle-to-grasp-prostitution-ruling/article1733812/.

[2] Ibid.

[3] Pirie, Madsen. How to Win Every Argument: The Use and Abuse of Logic. January 2007, UK: Continuum International Publishing Group.

[4]

Bill C-25: “Getting Tough” on Civil Liberties?

2010-09-26T20:41:00.002-04:00

Anna Stuffco, B.A., J.D.

In February of this year, our present government enacted Bill C-25. The bill, which targets pre-sentencing custody, severely impedes the ability of people awaiting trial to seek acknowledgement of their “pre-sentencing” incarceration, vis-à-vis a “time credit” toward their eventual sentence. To put it bluntly: if you are charged with a crime, have a criminal record and are denied bail, the time you will spend awaiting trial will only count at par toward the sentence you are given. Previously, pre-sentence custody time was assigned a premium in recognition of the fact those awaiting trial had not yet been convicted of anything. Under the new legislation, and only in “exceptional cases” will an additional half measure be added to pre-trial custody.

What’s so bad about that? Well for starters, the Canadian Constitution presumes one is innocent until proven guilty. The aims of justice cannot be served in reverse; one cannot be charged with an offence and held in custody as they await trial, only to be found not guilty when that trial date finally comes around, and be released. What, then, happens to the year of one’s life spent in jail for a crime they were acquitted of? If found guilty, any pre-sentence custody time would be doubled and debited from the sentence imposed to reflect this idea. Not anymore. In some cases, bail is justifiably denied and the body of jurisprudence is well established in this area. However, that isn’t the primary concern here. What is alarming about this legislation are the subversive effects its ratification will have upon Aboriginal and disadvantaged accuseds.

The Conservative government has made “getting tough on crime” a pillar of their campaign. Indeed, almost every Canadian would agree that criminal activity is harmful to and undesirable for a western democracy such as ours. However, it is this colloquially termed “Truth in Sentencing Act” that is harmful – not only to those with criminal records who are directly effected by it – to our society as a whole.

Having just graduated from Law School, on the West coast at that, I find these measures completely miss the mark if the aim is to reduce crime rates; Statistics Canada has reported crime rates are falling across the board. [1] Crime is almost always a reaction to socio-economic factors that plague certain groups more than others. Incarceration, or the ability of the state to punish those who violate our common sense of what is right and what is wrong, exists to sanction criminal activity. And of course, justice requires discipline for social deviance. However, rehabilitation, reduction of recidivism through education, and eventual reintegration are supposed to be the goals of incarceration through the implementation of appropriate sentencing principles. Retribution and punishment have been dwindling in importance and have been viewed as impotent measures through which to achieve the principles of sentencing, since Victorian England.

Much has been made in the media about the considerable financial toll this legislation will place on Canadian taxpayers, already over burdened by financial recession and cuts to social spending:

Kevin Page, the Parliamentary Budget Officer, … [estimates] that the costs to run the federal and provincial jails, now at $4.4-billion a year, will rise to $9.5-billion by 2015-16. Sixty per cent of the extra costs, or $3.1-billion a year, would be borne by the provinces.[2]

Despite how obviously fiscally irresponsible, the financial aspect of this legislation is just the tip of the iceberg. What concerns me more is the reality that over-incarceration doesn’t work; the more you lock people up, deprive them their liberty, put them into jail and force them to experience the horrific monotony of prison life and dehumanize them, the less likely they are to have been rehabilitated, to be remorseful of the act for which they were incarcerated, and to reintegrate into Canadian society upon their release.

Further, it is widely acknowledged that poor and Aboriginal accused spend far more time in custody than their white, privileged counterparts. Those without access to good legal representation, or the ability to advocate for their rights, are more likely to plead guilty to an offence (often a result of intimidation by the judicial process, unavailability of resources and a lack of knowledge surrounding the justice system in general), which in turn leaves them with more entries on their criminal record, which is an important factor in deciding if one receives bail on any subsequent charges, and leads to their detention more often than those who plead not guilty. Thus Aboriginal and poor accused will spend more time in custody awaiting trial, due in part to socio-economic contributors outside their control, will not be credited with double time for that pre-trial custody, and will ultimately spend more time incarcerated than other classes of accused persons.

In Manitoba, 69 per cent of the prison population is aboriginal, compared with 12 per cent of the general population. (Similarly depressing numbers exist in Saskatchewan: 81 per cent of the inmates are aboriginal, compared with 11 per cent for the general population. In Alberta, it’s 35 per cent to 3 per cent and, in B.C., 21 per cent to 4 per cent.)[3]

Aboriginals and other minority groups, of which poor Canadians are apart, are thus duly discriminated against by this legislation. First, they are more likely to be denied bail, and second, will not end up receiving the benefit of 2 for 1 pre-trial custody time credited against the sentence received.

Most Canadians agree that crime is bad: it tears apart lives, families and communities. However, fiscally reckless legislation, which does nothing to address the reasons for crime and wholly ignores the widely accepted reality that over-incarceration is a harmful, ineffective, socially burdensome and dehumanizing practise, is not the answer – especially when that legislation does not have uniform application. Further marginalizing Aboriginals and other poor Canadians through such discriminatory legislation is wholly unhelpful at any stage of the criminal justice process.

The projected $9.5 billion dollars would be far better spent on increasing social programs in poor communities and on reserves that target the reasons why crime is committed in the first place. Within jails, increasing the availability of counseling services and educational programs, focusing on rehabilitation and not retribution and punishment as the reason for incarceration, and giving inmates the opportunity to build their skill set would surely see eventual reintegration into society as a tangible goal and ultimately further the entire point of this legislation, which is the reduction of crime rates.

[1] Statistics Canada reports crime rates fell 3% in 2009, and 17% from 1999: http://www.statcan.gc.ca/daily-quotidien/100720/dq100720a-eng.htm.

[2] Editorials, “Truth in sentencing must come with truth in spending”, The Globe and Mail, updated September 25, 2010: http://www.theglobeandmail.com/news/opinions/editorials/truth-in-sentencing-must-come-with-truth-in-spending/article1613974/.

[3] Jeffery Simpson, “The true costs of ‘truth in sentencing’”, The Globe and Mail, September 26, 2010.

10 Tips for Being a Surety at a Bail Hearing

2010-05-08T12:11:00.003-04:00

It is every parent's worst nightmare: the phone rings late at night and the somber tone of the caller advises, "Mrs. Johnson, this is you son's lawyer. He is under arrest requires a surety for a bail hearing tomorrow morning".

As a criminal defence lawyer, I'm often that serious sounding voice on the other line at 3:00 a.m. I am the person who gets to make that call to sleepy individuals that my client has provided me the phone number for when asked "Who do you know that would be able to bail you out tomorrow, and who would make a good surety?" I emphasize the "and" because it is easy for clients to provide names and numbers for people who are available, but quite another to give me leads on who will be a suitable surety.

First of all, what is a "surety"? To begin with, it is not an "assurety" as there is no such thing in the law. I think that people often hear "Would you like to be a surety" and join the two words into one. So, starting with that, a "surety" is, in its simplest terms: 1) Someone who is going supervise the accused in the community while awaiting for trial or until the matter resolves; and, 2) Someone who is willing to make a pledge for value (i.e. equity in a home, savings, cash, etc.) to the Court, which, in turn may be lost if the individual breaches the bail.

Although this sounds simple enough, pledging oneself as a surety is a serious and involved commitment. This article does not intend to explain everything about being a surety, it is intended to help individuals present themselves better in Court so that they have a better chance of being approved as one.

So here they are, Sean Robichaud's "Ten Tips for Potential Sureties":

1) Dress appropriately

I wish I didn't have to tell people not to wear excessive jewelry a la Mr. T., "stop snitching" T shirts, marijuana leaf sweaters, red and gold suits, tight white tank tops, and revealing clothing that would make Lindsay Lohan blush to Court, BUT, I do: so dress appropriately. Your ability as a surety will be judged on your appearance that conveys your level of respect to the Court, it is that simple.

2) Take it seriously

Your actions or inactions, preparation or lack thereof, could determine whether young Johnny spends the next 12 months in custody, or gets out today. It is a serious proceeding with serious consequences. Take the day off work, be well rested, meet with the lawyer prior to, be on time, ask questions of counsel, and anything else you would normally do to prepare yourself for something where they stakes are high and subject matter is serious.

2) Understand what it means to be a surety.

Prior to the bail hearing, your lawyer or duty counsel should advise you of everything it means to be a surety so you can answer the questions put to you by the Crown and Court. You need to understand what sort of commitment you are getting yourself into, what to do if the person breaches the bail, how long it might take, how to revoke bail, and so on. Ask questions of counsel and know the answers.

3) Think about the plan of supervision and be capable of articulating it

With a pen and piece of paper, write out the schedule you have planned for supervising the accused. Who is going to watch him when you have book club on Wednesday evenings? Are other people helping and do those people know they are? It is called a "plan of supervision" and not an "ephemeral notion of watching an accused" for a good reason. Plan it and put it to writing.

4) Know the accused

Question: "Madam, how old is the accused?"
Answer: "I don't know"
Question: "Are you aware he has a 2 page criminal record?"
Answer: "Oh really? Oh, well I guess that is ok"
Question: "Do you know where he has been living for the past 5 years?"
Answer: "No idea, he doesn't tell me anything"

Obviously this is a bail hearing that is not going well. Know the accused, know the charges, know his record, know everything you can about him because you will be asked.

5) Be candid and truthful in your testimony

A surety caught lying on the stand can virtually guarantee the accused is not getting out that day. Similarly, being evasive or incredible in your testimony may have the same effect. Answer the questions truthfully, accurately, completely, and to the best of your ability. Let the lawyer deal with the bad facts, but do not shy away from them.

6) Don't use slang while testifying

Police are "police officers", not "cops", "5-0", "feds", etc. No one in the Court appreciates your knowledge of street lingo. Court is a formal setting which includes formal language.

7) Bring documentation to prove claims of equity and savings;

If you are making a claim that you own a home worth $300,000.00, the Court would be very interested to see documentation to prove that. It saves a trip back home when asked to prove your assertions of net worth.

8) Do not argue or be rude with the Court or Crown Attorney

You are not the lawyer. Your role is not to argue, defend yourself, or the accused. If the Crown is excessively or unfairly rude with you, then it may very well give you some sympathy with the Court. Arguing back gets you nowhere and will only be helpful to the Crown's assertion later on that you are not a suitable surety. Of course you are entitled to correct false assertions, mischaracterizations, and any other discrepancies that you see - do so confidently and professionally, not argumentatively.

9) Don't be oblivious to the accuseds' behaviour or try to justify his alleged actions

If the police allegations are that two police officers walked into a bank that your son was robbing at the time, restrained him, and subsequently arrested him, it is not helpful to advise the Court there must be some mistake as little Johnny would never do such a thing. Bail hearings are not the time and place to try and demonstrate innocence, whether the victim is partially to blame, or whether you believe the allegations. The Crown usually has the advantage at this stage as the police are the one who get to write the narrative that is read out in Court. You were not there, you do not know what happened. Similarly, individuals are capable of all sorts of things that we never would have dreamed they had the capacity to do. There are allegations, you do not have to give them more credit than that, but do not try to minimize them either.

10) Hire a criminal defence lawyer

Like all legal proceedings, it is a dynamic situation that requires skilled advocacy, thorough legal knowledge, familiarly with the proceedings, and experience to understand when it is best to proceed and when it is best to wait for another day. A person only gets one chance at a bail hearing (short of an appeal in Superior Court), make sure the first one is done properly.

Sean Robichaud can be reached at (416) 220-0413 to provide legal assistance for any bail hearings in Ontario

Restrictions on pre-sentence credit comes into force

2010-02-20T11:43:00.001-05:00

As of Monday, February 22, 2010, the new rules on what, if any, credit may be given to pre-sentence custody comes into effect across Canada. A summary of the enactment, as found on the Parliament of Canada website, are as follow:

Description and Analysis

A. Judicial Release (Clause 2)

At the bail hearing, a judge may order that an accused who has a criminal record be placed in pre-sentencing custody.(20) Clause 2 of the bill provides that the judge must then state that reason in the record. This provides the judge who later sentences the person with the reason for the pre-sentencing custody order, and (under clause 3 of the bill) prevents the judge from allowing more than one day’s credit for one day in pre-sentencing custody.

B. Credit for Pre-sentencing Custody Provided in the Bill

1. Limits on Credit for Pre-sentencing Custody (Clause 3)

Clause 3 of the bill restricts judicial discretion by setting maximum limits on credit for pre-sentencing custody. A judge who sentences someone after conviction still has the discretion to allow or deny credit for pre-sentencing custody and to determine how much credit will be allowed, without exceeding the maximum set by the bill.

In general, the bill changes the two days for one currently credited to one day for one, that is, it limits the credit for pre-sentencing custody to a maximum of one day for each day spent in pre-sentencing custody (new section 719(3) of the Code). That maximum applies to all cases in which the accused was in pre-sentencing custody because of his or her criminal record(21) or breach of conditions of release on bail, including the commission of a criminal offence (new sections 719(3) and 719(3.1) of the Code).

The bill also provides for more credit to be given – a maximum of one and one-half days for each day spent in pre-sentencing custody – but only “if the circumstances justify it” (new section 719(3.1) of the Code). However, it gives no examples of the kind of circumstances in question.

By reducing the credit allowable for pre-sentencing custody, the bill will probably result in the imposition of longer sentences.

2. Mandatory Reasons and Statement of Reasons in the Record (Clause 3)

Clause 3 of the bill provides that a judge who decides to allow credit for pre-sentencing custody must give reasons for the decision and state those reasons in the record (new section 719(3.2) of the Code). Other matters that the judge must state include the amount of time credited (e.g. one day for one day credit), the sentence actually imposed and the term of imprisonment that would have been imposed if credit had not been given for pre-sentencing custody (new section 719(3.3) of the Code).

Although studies tend to show that judges commonly give two days’ credit for each day of pre-sentencing custody, judges currently have complete discretion as to whether to grant any credit and as to the amount of time to be allowed, taking the circumstances of each case into consideration. At present, however, there are no data concerning how judges apply credits for pre-sentencing custody to the sentences they impose. We do not know how common the practice is, or what the total length of sentences of incarceration imposed is. In addition, official sentencing statistics do not reflect time served in pre-sentencing custody, and this may give the impression that total sentences imposed at sentencing are less harsh than they are in reality. This means that the statistics do not give a true picture of the total sentence, and in some cases this may contribute to the idea some people have that the justice system is too soft on offenders found guilty of violent crimes. This incomplete picture of the sentences imposed by the courts may also undermine public confidence in the administration of justice.

The requirement that the judge state the amount of time credited and the term of imprisonment that would have been imposed had the individual not been incarcerated during the judicial proceedings may show that a fair and appropriate sentence for the offence was imposed by the judge. The requirement that the judge justify allowing credit of more than one day for one day in pre-sentencing custody may provide a more accurate picture of how the sentence fits the crime.

3. Application of the New Rules (Clause 5)

As a final point, it is important to note that the new rules governing credit for pre-sentencing custody will apply only to persons charged after the bill comes into force.

Legal Aid Boycott Comes to an End in Ontario

2010-01-24T18:30:00.001-05:00

According to the Toronto Star and various other sources, “The Ontario government and the Criminal Lawyers' Association say they have reached an agreement to end a boycott over legal aid payments.”

The highlights include:

40.5 % increases to the tariff for all tier levels by April 1, 2015
a new "big case" tier, effective February 1, 2010, to be increased by 66% by April 1, 2015
10% increases to the standard case tariffs for certificates issued on or after April 1, 2010
30% increase to the top level tariff for "big cases", effective for certificates issued on or after April 1, 2010
elimination of the 25% reduction for fees paid to junior lawyers on "big cases"
block fees for standard criminal cases reflecting both the higher tariff amounts and 50% of the average discretionary increase to current tariff awards
a dedicated LAO fund to increase the fees available for defence experts
a commitment of LAO funds to facilitate more mentoring of junior lawyers
a commitment from the Attorney General and LAO to sit down with the Association's representative on or before April 1, 2015 to discuss the future of legal aid

It is always difficult to understand the actual implications and implementation of agreements like these at such early stages; however, it is comforting to see that the Ontario government has dealt with the issue in good faith.

From a defence lawyer’s perspective, it is nice to have closure to this issue and to now return to accepting certificates for serious offences like homicides. It was disheartening over the past several months to have to refuse cases for new and former clients. With the end to the boycott, lawyers can once again provide the high quality legal services that Ontarians have come to expect and deserve.

I would like to personally thank former CLA president Frank Addario and all those who dedicated their time and skills to this very noble end.

What is diversion and and I eligible to have my criminal charges withdrawn?

2009-07-27T19:40:00.004-04:00

Of late I have received many calls and emails from people who are charged with a criminal offence asking me what is diversion and are they eligible. The short answer is “it depends” but i hope to shed a bit more light in this article on what diversion is, who is generally eligible, and what are the effects upon a criminal record if they accept it.

Question: So, what is “diversion”? Diversion means just that: an individual who is charged with a criminal offence is diverted out of the Court system and asked to provide some sort of reparation to society for their alleged wrong. This reparation will take the form of community service, a donation to charity, or a more specific program tailored to the individual’s specific life situation (as is often the case with people suffering from mental health issues). Upon completion of whatever terms the diversion is dependent upon, the charges are “withdrawn” meaning that you remain legally innocent of the charges. Since you are presumed innocent when you are charged until proven guilty, you remain legally innocent when your charges are withdrawn because the allegations were never proven in a Court of law against you.

Question: Who decides whether I am eligible for diversion? There is only one party who has the power to determine a person’s eligibility for diversion, and that person is the Crown Attorney (or the Office of the Crown Attorney). When a file first comes to the Crown’s office after bring processed by the police department, an initial screening of the file is made by the Crown Attorney. If the Crown Attorney decides that you are eligible for diversion, then the brief will be marked up accordingly and typically that accused person will be advised of that decision on their first day in Court. The factors that the Crown takes into account when assessing a file include, but are not limited to:

Whether the person has a criminal record or past dealings with police;
Cooperation with police upon arrest;
The seriousness of the offence (amount of money lost, alleged harm done, etc.);
The cost of prosecuting the case in comparison to the seriousness of the offence;
The impact a criminal record may have upon an individual accused in comparison to society’s interest in ensuring are punished for wrongdoings; and,
The wishes of the alleged victim.

It is also important to know that simply because a file is initially screened as ineligible does not mean that is the final decision. Despite a Crown Attorney’s initial view, they may be persuaded by legal counsel that a person is eligible after all. For this reason, it is wise to retain an experienced criminal lawyer to ensure that all possibilities for diversion are canvassed.

Question: What kind of charges are eligible for diversion? Technically, any type of charge may be eligible for diversion; however, the most common cases where diversion is routinely offered is theft under, possession of small amounts of marijuana, and solicitation of prostitution. Other offences where diversion is offered, albeit less common, include: mischief offences, assault, fraud, being found in a bawdy house, harder drug possession, and crimes where there is no large amounts of money lost and no serious physical violence. Again, retaining a lawyer could help convince a Crown Attorney to offer diversion when that person may not be initially eligible.

Question: Do I have to admit to anyone what I did? Generally speaking, when a person is accepted into the diversion program, it is contingent upon that individual accepting responsibility for their wrong. An extensive confession is not required. Typically, the social worker who is interviewing the person for an initial intake will ask questions like:

Why did you do this?
Do you understand this is wrong?
Do you appreciate the costs to society in your actions?
Do you appreciate the harm you have done to yourself, family, and friends and personal reputation in committing these offences?
Have you learned your lesson?

If that worker feels that the person has learned their lesson and will not engage in similar acts in the future, that person will be advised what they will have to do (community service, etc.) in order to have their charges withdrawn.

Question: Is what I tell the diversion worker admissible against me at trial later on? Fortunately, all of the discussions you have with the diversion office for these purposes is confidential and cannot be used against you in Court later on. Section 717(3) of the Criminal Code of Canada clearly states:

No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceedings.

This section is placed here by legislation to facilitate people who are eligible for diversion or “alternative measures” to engage in the process without the fear of reprisal for their admissions later on.

Question: Now that I am eligible for diversion, what happens next? Once you are eligible, you will return to Court and adjourn your case for as much time as required to complete the terms of diversion. For example, if a person is asked to complete 35 hours of community service, they will likely be adjourned for 3-4 weeks for them to complete it.

Question: Ok, I completed my terms, now what? When you return to Court after completing your terms of diversion, you or your lawyer will present the proof thereof to the Crown Attorney and Court and if everything is done in accordance with the agreement, your charges with be withdrawn.

Question: Should I retain a lawyer for this? Retaining a lawyer is always a prudent thing to do no matter how insignificant the charge may be; however, this is always a personal choice and some people choose to represent themselves. Some things to consider is that a lawyer can:

Provide guidance, confidence, and ease of mind throughout the process;
Appear on your behalf so that you do not need to miss work or feel embarrassed about being present in Court;
Negotiate a better settlement with the Crown Attorney;
Familiarize you with the proceedings and what is expected to happen;
Follow up with the police department and request that your fingerprints, records, and photographs be destroyed upon the withdrawal of your charges;
Provide you with the certified Court documentation that proves your charges were withdrawn;

If you wish to discuss these, or any other criminal law matters, I can be reached at (416) 220-0413 or you may visit my website at: www.criminallawyerintoronto.ca. I provide criminal defence legal services for all of Ontario.

Technorati Tags: diversion,theft,criminal,charges,marijuana,possession,lawyer,eligible,withdrawn,record,legal,law

What is a Conditional or Absolute Discharge in Canadian Law?

2009-07-06T18:21:00.001-04:00

When individuals are charged with certain offences like domestic assault, theft, or even drug possession, conditional and absolute discharges are offered by the Crown Attorney as an appropriate sentence for the offence – often followed by probationary periods or terms like PARS, drug rehabilitation, or counselling. The article below is intended to give the reader a very general understanding of what conditional and absolute discharges mean under Canadian criminal law.

It cannot be stressed enough that no article or text can match the wisdom and advice of an experienced criminal lawyer and if you or someone you know if facing charges, you should contact one immediately to discuss your options.

Under the Criminal Code of Canada there are a wide array of sentences that an individual may receive after they are found guilty. Those sentences include jail, fines, probation, conditional sentences (house arrest), restitution orders, and discharges.

Discharges are the most favourable on the range of sentences because they are no permanent “records” and will either be expunged from the CPIC (RCMP database) after a certain period has passed.

There are a few technical facts that one ought to know about discharges:

A judge may impose a discharge for any criminal offence where there is not a specific statutory provision stating otherwise.
If a person accepts a Crown offer for a conditional discharge, they are still required to admit facts that would meet the essential elements of the crime and are therefore found guilty by the judge.
Although a person is found “guilty”, they are not “convicted”
As stated, discharges are removed from certain police databases after a certain period of time
If granted a discharge, a person may honestly answer that “They have never been convicted of a criminal offence”. However, if asked “Have you ever been found guilty of a criminal offence?” the answer would be “Yes”.

The applicable statute that sets out how discharges are to be dealt with is the Criminal Records Act, Chapter C-47, which states:

Discharges

6.1 (1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if

(a) more than one year has elapsed since the offender was discharged absolutely; or

(b) more than three years have elapsed since the offender was discharged on the conditions prescribed in a probation order.

Purging C.P.I.C.

(2) The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1).

1992, c. 22, s. 6; 1995, c. 22, s. 17(E).

Disclosure to police forces

6.2 Notwithstanding sections 6 and 6.1, the name, date of birth and last known address of a person who has received a pardon or a discharge referred to in section 6.1 may be disclosed to a police force if a fingerprint, identified as that of the person, is found

(a) at the scene of a crime during an investigation of the crime; or

(b) during an attempt to identify a deceased person or a person suffering from amnesia.

1992, c. 22, s. 6.

As we can see above, discharges take two forms: a discharge with conditions (i.e. a “conditional discharge”) and a discharge without conditions (i.e. an “absolute discharge”).

With a conditional discharge, the person’s records in CPIC are not expunged until three years after the completion of the terms of the conditions set out in the probation order. As an example, if a person was granted a conditional discharge on March 1, 2009 with conditions for 12 months (like keep the peace and be of good behaviour), then the date of expunging would be 12 months + 3 years = March 1, 2013.

Alternatively, an absolute discharge would be one year after the date the discharge was imposed. using the same example, the date of expunging would be March 1, 2010.

There are also several practical considerations that ought to be taken into account and discussed with your lawyer:

Expunging records from CPIC will not necessarily mean that the police department who made the arrest will necessarily follow the same rules. Some police forces take the view that they will retain the records regardless of the outcome and may be disclosed in certain circumstances.
Different jurisdictions outside of Canada may take a very different view of discharges and not necessarily consider these as pardons like the Canadian law presently does.

It is critically important that before accepting any such offer by the Crown Attorney, and deciding whether a discharge is appropriate for your particular set of circumstances, that you speak to an experienced criminal defence lawyer who can explain in greater detail all the benefits and disadvantages of discharges. I can be reached at (416) 220-0413 for a consultation or you may visit my website at www.criminallawyerintoronto.ca for more information.

The Legal Aid Boycott: What Exactly is Being Boycotted and By Whom?

2009-07-05T15:28:00.001-04:00

Not to help justice in her need would be an impiety. - Plato

Since the Legal Aid Ontario Boycott implemented by the Criminal Lawyer’s Association Members and further strengthen by support by the criminal bar at large, there has been wide coverage by media and interest by the public at large. This issue of of critical importance to our justice system at large; without an equal balance between the participants, there can be no justice. The entire notion of justice is premised on fairness, equality, and access. Without proper funding for less fortunate individuals charged with offences, the entire structure of the justice system is unstable and threatens the rule of law at large.

In discussing the reasons for accepting the boycott, many have asked me what exactly is being boycotted and by whom. So to answer those questions,

The boycott is as follows:

1. Where the lawyer is a member of the LAO ESM panel or is qualified to become a member of the ESM panel, AND

2. where the certificate is for the defence of an individual who is charged with

(a) murder or attempted murder, OR

(b) as the result of an investigation by the "guns and gangs" squad and/or is being prosecuted by the "guns and gangs" team, OR (c) where the certificate is for representation on an appeal against conviction and/or sentence for any of the aforementioned offences, AND

3. where the prosecution of the individual is to take place in the one of the following cities or nearby municipalities: Toronto, Thunder Bay, Kingston, Barrie, Sudbury and Hamilton, or, in the case of an appeal, where the trial took place within the aforementioned jurisdictions OR where the lawyer's office is located within one of the aforementioned jurisdictions, AND

4. where the individual was arrested on or after the following dates or, in the case of an appeal, where the individual was sentenced on or after the following dates: In the case of Toronto, June 1, 2009, for Thunder Bay and Kingston, June 17, 2009 and for Barrie, Sudbury and Hamilton, July 1, 2009.

5. It remains CLA policy that all members should refuse any appointment by a court to act as counsel in any circumstances where fees are to be paid by the Crown at Legal Aid rates (e.g. amicus, O'Connor applications, etc.) in any jurisdiction and in relation to any matter.

Here is a collection of all the media releases that I have come across relating to the Legal Aid boycott:

Guelph lawyers join Ontario legal aid boycott - Guelph Mercury - ‎Jul 4, 2009‎

Legal aid boycott gathering strength – Kirk Makin, Globe and Mail, July 4, 2009

Legal aid boycott grows TbNewsWatch.com - ‎Jul 3, 2009‎

Lawyers join legal aid boycott Hamilton Spectator - ‎Jul 3, 2009‎

Law profs say legal aid Ontario weak – June 29, 2009

Law Professors Support Legal Aid boycott – Globe and Mail, Kirk Makin, June 28, 2009

Local lawyers boycotting legal aid - Belleville Intelligencer, June 20

More lawyers join boycott of legal aid - The Globe and Mail, 16 Jun 2009, Kirk Makin

Sudbury lawyers to boycott legal aid plan – North Bay Nugget, June 16, 2009

Local lawyers ponder joining boycott – Kingston Whig Standard, June 15, 2009

TheStar.com | Ontario | Lawyers throw weight behind legal aid boycott – June 14, 2009

Ontario’s Legal Aid impasses requires compromises – Orangeville Citizen, June 11, 2009

Criminal lawyers protest Legal Aid fees - The Sudbury Star, June 10, 2009

The System is Broken – Law Times, June 8, 2009

Who are they kidding? Lawyers love legal aid – Christie Blatchford, Globe and Mail, June 6, 2009

CBC Current Show on Announcement by The Criminal Lawyer's Association to commence boycott – June 3, 2009

Toronto criminal lawyers threaten boycott unless legal aid rates rise – CBC.ca, June 2, 2009

Support the Legal Aid increase by calling your MPP today.

Legal Fees: Flat fees vs. Hourly Rates

2009-07-03T17:34:00.003-04:00

In this week’s Lawyer’s Weekly, Lonny Babli discusses the advantages of a flat rate billing model versus the hourly rate model that lawyers have traditionally adopted.

Balbi makes a number of interesting points including a telling anecdote of Merv Griffin writing the theme song to Jeopardy in about a minute. The anecdote illustrates that even though the ultimate value of the song has netted Merv $7 million over the years, that value has little, if anything to do with the time associated with it.

As also pointed out, “most businesses do not equate time with money”. The same can be said for any individual who is facing a legal problem.

Using domestic assault as an example, a person who is charged has very specific goals in mind with certain aspects they are not willing to compromise on. The goals may include: 1) a withdrawal or acquittal of charges, 2) reconciliation and restoration of communication and contact with the complainant, 3) no criminal record that may affect employment, and lastly, an expediency in obtaining these results.

With goals come hurdles that the client may or may not be compromising on. Continuing on the domestic assault example, hurdles might include: 1) whether they are willing to enrol in counselling, 2) whether they are willing to accept responsibility in any manner whatsoever, 3) the length of the proceedings, and 4) the cost of the matter.

Like businesses, people charges with criminal offences look to the bottom line in making assessments in retaining their lawyer and the value they attribute to it. Even though we as lawyers are often selling our time, it is actually results that the client wishes to obtain – the time, manner, or effort required to obtain those results is largely inconsequential to them. Much like Merv Griffin humming and selling the catchy tune of Jeopardy in seven minutes, clients would be delighted if their lawyers were able to obtain the ultimate result in such short order.

Balbi’s suggestions of adopting anew business model for lawyers to operate on flat rates is a wise and one that I implement whenever possible. Having a flat rate has a number of advantages for the lawyer and client that are often overlooked. Those include:

Certainty in cost / accounts receivable;
Alignment of interests (both parties want the matter to end to each other’s satisfaction as quickly as possible)
Clarity in objectives using a task-based model of value
Easier administrative aspects to collecting retainers

Although not possible for all files, I highly recommend that any lawyers, particularly those in criminal law, consider a fee-based system of retainer and assess whether the serves you and your client's needs are better met.

Tories Plan to Allow Fingerprinting for Anyone Held by Police: Charged or Not

2009-05-16T09:36:00.001-04:00

According to the Globe and Mail, the Tory government intends to introduce legislation allowing police to obtain and retain fingerprints for anyone detain by police, whether they are ultimately charged or not. Under present law, before police are permitted to retain fingerprints of an individual, that person must be charged with an indictable offence.

What this means in the simplest of terms is that if the law comes into force, the police will have the power to take fingerprints from anyone that they suspect, or even hold in relation to a criminal investigation.

Here are a couple of scenarios that come to my mind:

A person is believed to be involved in a robbery, taken to the police station for questioning but not arrested. They are fingerprinted when they arrive at the station. Upon questioning, it is quickly discovered that the suspect is the wrong person – as they are a teacher and was in the middle of teaching a summer school class when the robbery happened. They are released immediately.

A person is walking down the street. Police detain and question the individual with respect to a recent string of break and enters in the neighbourhood. Before even commencing their investigation (to later realize that he is a resident and is in fact one of the people who was broken into), police take prints from the walked. The person is quickly released but the prints remain in the police possession.

What is so shocking about this new proposed legislations is that unlike the present law that requires reasonable and probable ground for an arrest, the present law would only require the person be detained. In short, that means there is no criteria other than a police officer’s hunch, prejudice, or any other bias that doesn't even meet the low standard of reasonable and probable grounds.

Political opponents of the Tories have expressed concern over the new legislation and pointed out, quite rightly, that this is ripe for police abuse.

What is more troubling is that there is no mechanism for destruction of prints after they are taken. So, returning to our teacher or local residence example, those prints may remain on police databases forever, even though they did absolutely nothing wrong.

Rationale for this new legislation seems lacking. Mr. Nicholson, the brainpower behind this proposal, stated that "Crime is constantly evolving in Canada so it is crucial that our criminal justice system evolves with it." It is hard to understand this is anything other than devolution that allows people who are not even charged with crimes to be subject to police seizure of highly personal information that is not subject to destruction. The irony is that the designed to retain prints for those who are not criminals (otherwise they would have been charged and had their prints taken anyway).

As a criminal defence lawyer, this legislation is not only “ripe for abuse” it is destined. Write your MP.

Ontario to Impose Tougher Laws for Drinking and Driving Today, May 1, 2009

2009-04-30T23:48:00.001-04:00

As of today, May 1, 2009, any driver’s caught driving with their blood alcohol between 0.05 to 0.08 (the Criminal Code legal limit is 0.08) will have their licence suspended automatically for three days.

If the same thing happens again, then that suspension will be increased to seven days with reeducation program; a third time means a 30 day suspension, required to take a treatment program, and have to install an interlock ignition program.

Similar to “speed racing” or “stunt racing” charges (50km over), the there is no right of appeal and the events will be added to driving records.

A Criminal Defence Lawyer's 2008-2009 Rankings of the Courthouses in the GTA

2009-04-28T08:19:00.011-04:00

In Ontario alone, there are over 150 courthouses for criminal matters. From a criminal defence lawyer's perspective, where your client is charged can be just as important as the type of charges themselves.

For any person doing a quick comparison, it becomes quickly apparent that all courthouses are not built equally. Some are grand buildings with vivid historical pasts, some are ultra-modern facilities with the latest in technology and design, and others are backed on to used car lots that make it difficult to discriminate between where to put an offer in on a 2002 Dodge Caravan, or where to plead not-guilty to your assault charges.

As a criminal lawyer, you have the privilege or suffering of multiple courthouses in short order. Seeing that the only other group of people that can compare courthouses outside of criminal defence lawyers, are people adept at getting charged in all jurisdictions, I have taken it upon myself to provide a ranking of some of these courthouses that I frequent.

For the time being, I have limited the rating to the Greater Toronto Area and then selecting ten courthouses out of that definition. In rating the courthouses I have used a scale from 1-5; 5 being the best score a courthouse can receive, and 1 being the worst. Courthouses are evaluated on 5 categories: Venue, Ease of Practice; Crown Attorney's Office, the Judiciary, Perks and Comforts.

Here is a more detailed breakdown of the categories:

Venue: This is assessed on the physical make up of the Courthouse. Is the Courthouse in a strip mall next under power lines, or is it something that tourists have to be repeatedly told they can't come in and take pictures? Other factors include: courtroom and courthouse layouts, design, aesthetics, washrooms, location, etc. I feel that this aspect of courthouses is often neglected, particularly in past years where governments seek to cut costs real estate costs in rent or by trying to gain funds by selling valuable assets. Sadly, these sacrifices come at a cost of people's perception of the justice system. It is difficult to feel reverent when your local Walmart is a more impressive building than some of the courthouses that scatter the Province. Conversely, appearing at certain structures send a powerful message to person's before the Court of the State's power and it's level of priority towards issues of justice. For better or worse, they are marked accordingly.

Practice and Ease of Use: Court procedures and administration can be very frustrating. This is particularly true for unrepresented accuseds. However, the seemingly obligatory Kafka-esque approach is entirely unnecessary. What is confusing to a defence lawyer is the massive disparities between courthouse procedures and protocols throughout the province. What is more confusing is that these disparities can be most dramatic even between courthouses within a bus ride between one another. For reasons that I cannot provide, an appearance for an accused can be a very painless and streamlined appearance that lasts for less than 20 minutes, or a tortuous experience that may last the entire day with little or no guidance.

Crown Attorney's Office: The Crown Attorney's office holds a tremendous amount of power over an accused and its effect on the administration of justice. The Crown controls the flow of disclosure, whether charges are proceeded on or not, whether policies of "zero-tolerance" are strictly adhered to, and as an overall negotiator towards a just result for all parties. Although the "Crown is one" in law, in practice it is very different in approach and governance over the courthouse they act within. The ranking, as all others, are based upon a criminal defence lawyer's perspective on these issues. Needless to say, an individual from the Crown's office may rank things much differently but that is for them to do so.

The Judiciary: Overall, the judges in Ontario are of a very high calibre with strict requirements and high standards for appointment. This category addresses issues such as availability of judges and court resources. Are trials reached? Do bail hearings commence in time? With less time and resources for the bench, the less time these jurists have to write considered decisions, listen to evidence and without external pressure of schedules. A worn down judiciary from lack of resources affects everyone, and most importantly the accused who is entitled to a fair trial. Another very important factor is the presence, or lack thereof, of specialized courts for drug treatment, mental health, native Canadians, etc. Other factors taken into consideration from this defence perspective, include defence counsel's ability to achieve favourable results for their clients.

Perks: Are just that: How is the coffee? Is there parking? Where are we going for lunch? Is there public transit getting there? What is the lawyer's lounge like (if at all)? As insignificant this may seem, on a day in and day out basis, this is very important for a defence lawyer and affects to morale of all players in the system.

In my rankings I have tried to be as objective as possible, taking out isolated bad experiences, and considering each venue as if this was a courthouse a lawyer was dedicated to full time. I have also decided to only provide the overall score of each courthouse for the time being as I need to be conscious of who I might offend. More importantly, the problems in individual courthouses much be looked at in a much more holistic manner than one pressing issue (such as lack of resources). With better coffee, people are happier, Crown's are more likely to offer a reasonable position on a plea, content judges are more willing to go along with proposals for sentence, and in a majestic building, the accused does not feel like he is being sold a 2002 Dodge Caravan. It is all related.

Here are the rankings:

WINNER: Newmarket, York Region. (Score of 21 out of 25).
RUNNER UP: 311 Jarvis Avenue, Toronto Youth Court (Score 20 out of 25)
THIRD: Old City Hall, Toronto (Score 19 out of 25)
Fourth: 361 University Avenue, Toronto Superior Court (Score 18 out of 25)
Fifth: 1911 Eglinton Avenue, Scarborough (Score 17 out of 25)
Sixth (tie): Brampton, Peel Region & College Park, Toronto (Score 17 out of 25)
Eighth: 1000 Finch Avenue, Toronto (Score 13 out of 25)
Ninth: 2201 Finch Avenue West, Etobicoke (Score 12 out of 25)
Tenth: Oshawa/Whitby, Durham Region (Score 10 out of 25)

Not your typical drug dealing charges

2009-04-27T21:42:00.003-04:00

In a rather odd drug dealing bust, the Toronto Star reports today that:

Several pharmacies, drug makers and wholesalers in Ontario are facing criminal charges and $34 million in fines in an alleged scheme that saw them profit from reselling generic prescription drugs – a practice that may be at work in other provinces, health officials said Monday.'

Potential fines range up to $26 million dollars.

Adult sentence for J. S. R. in Creba killing and named revealed: Jorrell Simpson-Rowe

2009-04-25T09:57:00.002-04:00

The youth found guilty of second degree murder for his part in the murder of Jane Creba was sentenced as an adult by presiding Justice Ian Nordheimer. Simpson-Rowe will serve a life sentence but may be eligible for parole in four years time.

twitter

2009-04-19T22:22:00.003-04:00

ok, i have jumped on the twitter-tweet-train. follow me here: http://twitter.com/toronto_lawyer

An excellent article by Kelly McPharland on the RCMP taser inquiry.

2009-03-25T23:33:00.003-04:00

An excerpt:

How many times have Canadians heard police testify that they were forced to take aggressive action because of threatening action by a suspect, backing up the claim by reading from the notes they made at the scene? How many court cases have turned on judges accepting the validity of contemporaneous notes made by police, backed up by the corroboration of their colleagues at the scene? The Dziekanski hearing suggests such “evidence” is no more valid than the claims of a shoplifter, caught with a toaster oven in his back seat, that “someone must have put it there.”

[…]

[T]he next time a police officer takes the stand backed solely by his notes and his own testimony, it will have to be called sharply into question. Thanks to the RCMP and their role in the death of Robert Dziekanski.

I highly recommend you read this article.

Sean Robichaud

Tories to end '2-for-1' sentencing guide

2009-03-25T23:22:00.001-04:00

The Conservative Government announced today that they intend to scrap the two-for-one sentencing credit that is typically applied to individuals who are held in custody pending the outcome of their case.

This recent pronouncement seems to be catering to anecdotal outrage over certain cases and how individuals are seemingly “taking advantage” of the system. In my experience, this is grossly outweighed as an exception rather than the rule.

In essence, the proposed changes to the sentencing regime would limit the discretion of judges to credit people for time they have served up to their sentencing date. Removing the discretion from judges is certainly not unusual for the present government, yet what is surprising in the present instance is the lack of foresight that such changes would bring upon.

Here are a few observations on the proposal from the eyes of a practicing defence lawyer who sees these realities on a daily basis:

Other than life sentences, parole eligibility and statutory release (as mandated by law) do not take into account time spent in pre-sentence custody which means that a person is effectively serving more time on a 1:1 basis as they would normally only serve 2/3 of the sentence on statutory release and parole (1/6 if released on early parole).

In pre-trial custody, that there are few, if any, rehabilitative, educational or retraining programs available.   This means that even a person who is adamant to change their ways, move beyond their mistakes in life, and reintegrate into society has no ability to do so when awaiting their trial.

It is nearly incontrovertible at this point to say that the conditions in detention facilities are deplorable in comparison to federal institutions. The detention centers are crowded, dirty, do not allow for significant exercise, and generally speaking, violate a number of UN protocols on humane treatment of inmates.

To remove this enhanced credit, will remove incentives for persons to plead guilty. If a person is in a situation where they will serve a sentence of 4 years (for example) whether they proceed to trial, or plead guilty, there is no incentive to accept responsibility at an earlier stage.   The consequences from such an arrangement will result in more resources vis a vis tax payers dollars.

People in pre-trial custody are, by definition, yet to have their case determined.   In law, they are innocent people behind bars awaiting the resolution of their case one way or another. The conditions of these institutions where they are housed are deplorable and difficult to fathom for anyone who has not spent time in them. And contrary to popular opinion, not all of them are guilty. Indeed, many are acquitted after trial and have served time they will never get back, not be compensated for, and will likely have changed them forever. There is no such thing as 2:1, or 1:1 or even a “sorry” after injustices like this occur except in those rare high profile cases where the government is forced to admit their mistakes.

Judges already have the discretion to allow, or disallow pre-trial enhanced credit. There is no reason whatsoever that the Crown Attorney’s cannot argue and push for either a) no enhanced credit, or b) a longer sentence. Judges are obliged to impose a sentence that they consider just in the circumstances and in my experience that is exactly what they do. To take away the discretion of judges is just one more example of politicians self-proclaiming themselves as the experts and usurping the expertise and practical knowledge of the professionals who work in the business. One only look to their own profession or business to understand how politics does not mesh well with practice; the practice of law is no different.

It seems that we are overlooking that a large number, if not the majority of sentences that are being imposed by judges, are “joint positions”. This means that the Crown Attorney’s will routinely go along with such proposals in order to resolve a case, ,prevent it from going to trial and wasting tax dollars, and most importantly, because it is fair and just. Sentences are tailored not just byt he judges, but by all parties: defence, Crown, and judges. To blame only the judges or defence counsel for somehow creating these alleged abuses is unfair and inaccurate.

We only need to look to the south of the border to understand that greater incarceration does little, if anything for reducing crime rates and the safety of the pubic.

People who are not granted bail, that is to say, people who are presumed innocent, are often those with no money, friends, or family support. They are the poor and disadvantaged that have become lost in more and more unreasonable expected forms of releases.   It is the de rigueur that for a bail to be considered tenable for the deciding justice, it must include assets of a third-party, constant supervision, and residence conditions. Releases on one’s “own recognizances” has largely become a thing of the past.

I could go on, and likely will in another context, but suffice to say that one needs to be careful of offering up constitutional protections such as fairness, humane treatment of inmates, and flaming the fire of mandatory minimum sentences, removal of judge’s discretion, and the ability to argue for exceptions to the rule. If you or a family member is wrongly changed, it may be too late to take back your liberties and rights that were sacrificed in the hope of security.

No one is an exception to the rule, when the rule is there are no exceptions.

Sean Robichaud

Entrapment Ruled Inapplicable in Canadian Terrorism Case

2009-03-24T23:21:00.001-04:00

Today the Star reports the decision of Justice Sproat dismissing the application brought by some of the accused in the "Toronto 18" case involving paid police informant, Mubin Shaikh. The judge ruled that despite the actions of Mr. Shaikh, it did not amount to what is defined as "entrapment" under Canadian Law.

Which begs the question, what is entrapment? Many people use the term loosely but few understand how it is actually applied in context. The leading case from Canada's Supreme Court is R. v. Mack, 1988 CanLII 24 (S.C.C.)

Under Canadian law, entrapment occurs when

(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and,

(b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

What this means in plainer language is that the police cannot induce people to commit an offence without having any reasonable belief that they were engaging in a criminal offence.

On the other hand, police are permitted to attempt to investigate leads on criminal activity (a “bona fide inquiry") that might include, for example, recent complaints about drug trafficking in the neighbourhood. They may not have any specific information about a particular person, but they are still permitted to engage in undercover work in the area to see if any individuals approach them or try to facilitate the subject matter of the complaint.

In determining whether a person was “induced” the circumstances must be looked at objectively so that the Court would ask, would a reasonable person, in similar circumstances as the accused, act upon the opportunity created by the police that results in the criminal act?

If police do not have a reasonable suspicion or a bona fide inquiry, it is important in determining whether entrapment took place. The Court has stated that we must be mindful to curb behaviour and actions of police that might attract people otherwise without involvement in a crime. In short, it is not appropriate to "randomly test the virtue of people.”

In determining whether entrapment has occured, the Courts may consider several factors to decide whether the police went further than simply providing an opportunity:

(1) the type of crime being investigated and the availability of other techniques for the police detection of its commission;

(2) whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;

(3) the persistence and number of attempts made by the police before the accused agreed to committing the offence;

(4) the type of inducement used by the police including: deceit, fraud, trickery or reward;

(5) the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;

(6) whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;

(7) whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;

(8) the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;

(9) the existence of any threats, implied or express, made to the accused by the police or their agents;

(10) whether the police conduct is directed at undermining other constitutional values.

This above list is not complete; a Curt may take into consideration any other additional factors it considers applicable to the case at hand.

It is also significant to point out that entrapment is not technically a “defence” in the strict sense of the term. Rather, it is action by the state that come at a price unacceptably high for the end result and therefore ought to be condoned by granting a stay of proceedings. Therefore, as a matter of procedure, an entrapment “defence” is raised at the close of the case (as was done in the “Toronto 18” case) to request such an order.

It is also the trial judge, not a jury, that decides the issue of entrapment and only after a verdict of guilt has been entered. The defence bears the burden of establishing entrapment on a balance of probabilities.

One of my favourite legal passages is from R. v. Mack and reads:

[It is] central to our judicial system is the belief that the integrity of the court must be maintained. This is a basic principle upon which many other principles and rules depend. If the court is unable to preserve its own dignity by upholding values that our society views as essential, we will not long have a legal system which can pride itself on its commitment to justice and truth and which commands the respect of the community it serves. It is a deeply ingrained value in our democratic system that the ends do not justify the means. In particular, evidence or convictions may, at times, be obtained at too high a price

FOXNews.com - Kanye West Arrested in Altercation With Paparazzi - Celebrity Gossip | Entertainment News | Arts And Entertainment

2009-03-21T12:40:00.001-04:00

FOXNews reports that Kanye West has been charged with vandalism charges from an incident with the paparazzi at LAX Airport.

This begs the question who the real criminals here are: celebrities like Kanye who react as most people would with people yelling and shoving cameras in their face or the paparazzi who engage in this sort of activity.

It seems sensible to me that the time has come for laws to be imposed for paparrazi like this and therefore putting an end to these incidents that invaribaly lead to some sort of escalated incident. The irony of all this is that the alleged "victim" probably gained from this more than anyone as he/she got a shot that is worth a lot of money and the notoriety to go with it. Also query why Cameron Diaz and Timberlake weren't charged in a very similar set of facts. Hmmm, what could be the difference here...

Well, Kanye, I hear you when you say:

She in the mirror dancing so sleazy,
I get a call like where are you Yeezy
Try to hit you with a 'Oeur de Whopee'
Till I get flashed by the paparazzi
Damn, these nigga's got me,
I hate these nigga's more than the Nazis

Flashing lights, lights
Flashing lights, lights...

Bail Hearings in Toronto, the Greater Toronto Region (Downtown Toronto, North York, Newmarket, Scarborough, etc.)

2009-03-21T11:28:00.004-04:00

This post is intended to assist those trying to understand bail court, how to bail a person out, and what the obligations of a surety are in doing so. These procedures relate only to the bail process under the Criminal Code of Canada, and more specifically focused towards bails in Ontario including Toronto, Newmarket, Scarborough, and the Greater Toronto Region. If you wish to learn more about the process, you can contact me directly at (416) 220-0413 or by visiting my website at www.criminallawyerintoronto.ca.

For almost every person who is detained (not released by the police) upon their arrest, the bail hearing is their most important day in court. Although we are all constitutionally guaranteed reasonable bail under our constitution, it does not mean that an accused will be released automatically. If a person is denied bail, then they will either have to await their trial in custody (which will likely be months away), or they will need to apply for a review (appeal) of the bail decision to the Superior Court.

Since no one wants to remain in custody, and a bail review can be very expensive and takes time to prepare, neither of these options are preferable and must be avoided if possible. Therefore, the best way to approach the bail hearing is with the assistance of experienced legal counsel. Criminal lawyers are often available 24 hours a day in these emergencies and you can call one (including myself) to arrange a bail hearing for the next day.

To be granted bail, a person is typically released in the care and responsibility of a surety who pledges a certain amount of money for their release. The surety can stand to lost this amount if the person breaches any of the court's "conditions of release" or "recognizance" while they are on bail. Sureties are very important and will often be the deciding factor on whether or not a person is released.

Sureties should have:

No criminal record;
Over the age of 21;
An ability to supervise the accused to a degree required by the Court;
An amount of money in savings or equity they can pledge to the Court as security of their promise;
A capacity to understand and enforce the conditions the Court imposes;
An ability to attend court on the day of the bail hearing in a punctual manner;

Keep in mind that none of the factors above are determinative of whether or not a person can be a surety, but assist the court and lawyer in ensuring that the plan of release is a responsible one. Once you have your sureties, you need to decide whether or not you wish to retain private counsel or use Legal Aid lawyers (duty counsel) for your bail hearing. The advantage of using duty counsel lawyers is that they are provided to you at no cost. However, duty counsel are often very busy and may not be able to cater to your needs as specifically as a privately retained counsel. The cost of a bail hearing ranges depending on the charges, the lawyer you retain, etc.

If someone needs bail, the most prudent course of action is to:

1. Retain experienced legal counsel immediatley: Only a lawyer is permitted under Canadian law to conduct a bail hearing. This means that law students, paralegals, are prohibited. Only a lawyer, licenced by the Law Society of Upper Canada (or the appropriate province) is permitted in law to appear on bail hearings. The fee of a lawyer will range but they money is well spent when one considers the ramifications of an accused not being released.

2. Ensure that everyone who is intending to act as a surety is present for the date of the bail hearing. This means that everyone should be there early so as to provide the lawyer with adequate time to prepare the sureties, review the proposed plan of release, and speak to the Crown Attorney to see if there is any possibility of releasing the accused on consent. The bail hearing will usually take the whole day so you should ask for the entire day off work.

3. Dress appropriately. This is a formal process and the way a surety appears in Court will convey their level of respect for the system, and therefore their respect for the order that they are being asked to enforce.

4. Be prepared to speak about the proposed plan of release. Sureties who have coordinated their proposed plan in advance are much more likely to have the accused released to them. If you have discussed these issues in advance among the other sureties, and determined all of the areas where certain individuals will be responsible for the supervision, it will come across well in the witness stand.

5. Bring any documentation with you that will assist in proving the assets that you are pledging to have the accused released. For example, if the bail is $5000.00, you need to prove that that money exist somewhere in your savings, equity in home, RRSPs, etc. Any reasonable documentation is adequate and often take the form of bank balances, deeds to homes, and so on.

6. Be prepared to come back on another day. It is sommon that bail hearings are adjourned and the accused and sureties may need to return another day.

I hope you have found this helpful. If you have any questions, you are welcome to discuss them with me by calling (416) 220-0413 or by visiting my website at www.criminallawyerintoronto.ca

A Change in Direction

2009-03-17T09:51:00.001-04:00

Today I have left the partnership of Pinkofskys in Toronto to pursue my career as a sole-practitioner. My address and telephone number remain the same but my email will change to the address listed on my website (www.criminallawyerintoronto.ca). My time at Pinkofskys was some of the best years in my life and has taught me everything I know about practicing criminal law in Canada. I hold the firm in the highest regard and will continue to practice out of the office.

Your First Appearance in an Ontario Criminal Court

2009-03-12T22:53:00.002-04:00

Whether your first appearance in criminal court is in Toronto, Newmarket, Scarborough, Oshawa, or anywhere in Ontario, I am sure you will find the following information helpful in understanding what happens:

When a person is charged, they are either released from the scene, at the police station, or on bail (or detained and denied bail in some more serious instances). No matter what category you fall under, if you are unfamiliar with the criminal justice system the first appearance in court can be a mystery to most.

the first thing that a person needs to understand is that the first appearance after arrest (unless you are held for a bail hearing) is that the court is administrative in nature. Notwithstanding the administrative nature of the first appearance, it is still critically important you attend, as you are required by law to do. Here is what to expect once you arrive for your first date:

Your attendance is required by law. Failure to attend may result in a warrant for your arrest. If you cannot, or do not wish to attend, arrangements can be made in advance through a licensed lawyer.
Take half the day off work, and be prepared to call in and ask for the whole day. Depending on the jurisdiction, you may be in Court for a few minutes or the entire day regardless of the seriousness of your offence.
You must arrive on time despite the delays that the day may have in store for you. It is wise to be there 15 minutes early. If you are meeting a lawyer, it is prudent to be there before Court opens as they cannot call your name inside the room once the proceedings have started. It is also wise to have the lawyer's cell phone if you intend to meet up with your counsel on the first date.
Agents (such as family members, friends, law students, and even paralegals) do not necessarily have the ability in law to appear on your behalf depending on the nature of the charges. Exceptions can be made in some instances but these exceptions should only by attempted with specific and professional legal advice from a lawyer. Lawyers may appear on your behalf for all criminal charges with the use of a "designation of counsel" form but this must be arranged in advance through your lawyer.
The Court will have a daily "docket" that will list all the people required to attend that day and the nature of their charges.
The Court will call the docket in the order the Court and Crown Attorney chooses. Generally speaking, lawyer's matters will be called first. From there, the list may be called in any way the Court or Crown deems appropriate.
If you are unrepresented, duty counsel is present to assist you and address the Court on your behalf.
On your first appearance (after your bail hearing, or after released by the police), you are asking the Crown Attorney if "disclosure" is ready. Disclosure is a collection of material that the Crown intends to rely on to prosecute the charges. It may include police notes, statements, video, audio, or other evidence that is applicable to the case. Whether you have a lawyer or not, it is very difficult to make any further progress in your case without disclosure.
Whether you are provided with disclosure or not, your case will then be adjourned for several weeks for the purpose of either reviewing your disclosure with a lawyer, or for the Crown to have disclosure ready on the next appearance. It is highly unusual that any trial date would be scheduled on the first appearance as such a step requires a meeting with the Crown Attorney to estimate trial time, witnesses, etc.
Once your case is adjourned, it is wise to take your disclosure to a lawyer if you do not have one already. It is best to speak to a lawyer who is familiar and experienced in criminal law. Many lawyers, including myself, will not charge you for the initial consultation.
If you do not have disclosure, your next appearance is for that reason. You are perfectly entitled to say to the Court or Crown, if pressed on the issue of retaining counsel, that you cannot make an informed decision for retaining counsel until you have disclosure (as you and the lawyer need to understand the case against you).
After court is finished, be sure to remember the next date for Court. Write it down, program it in your phone, in your calendars, and anything else you can think of to remind yourself. Not attending for Court is a criminal offence in itself and may result in spending time in custody.

I hope you have found this article helpful and are feeling less anxious about your first appearance in Ontario's Courts. However, none of these tips can properly substitute for specific legal advice through a criminal defence lawyer. If you wish to discuss any of these issues with me, or seek clarification, do not hestiate to call me at 416.220.0413 or through my website listed above.

Great New Resource From Google

2009-03-06T00:47:00.002-05:00

I have stumbled across a terrific new service from Google called Knol. Knol is similar to Wikipedia but more tailored to individuals. It allows authors to post on topics that they wish to provide expertise or advice on. I intend to use this service quite extensively and have already posted several posts. You can see my posts here.

Domestic Assault Charges in Ontario

2009-03-04T13:08:00.002-05:00

A lot of people have telephoned, emailed, and spoke to me recently confused about how to properly with domestic assault charges in Ontario in the face of zero-tolerance Crown policies relating to domestic violence. In this post, I intend to give a brief summary of how domestic assault charges are generally dealt with in the Toronto, and Greater Toronto Courts. I hope you find the following information helpful. If you wish to discuss these issues further with me, you can visit my website at www.criminallawyerintoronto.ca or by calling me at 416.220.0413.

In my experience as a criminal defence lawyer in Toronto, domestic assaults are among the most common allegations that come before the Courts. Crown policies mandate a serious and aggressive approach to spousal abuse, or “domestic assault” allegations. A “domestic relationship” can mean conflicts between people in a girlfriend and boyfriend relationship, a wife or husband, common-law partners, same-sex partnership, children, parents, and even relatives.

Once the Crown considers the case to be of “domestic” nature, the degree of seriousness and zeal that the Crown will approach the case will be heightened. This can mean a greater difficulty in obtaining bail, an inability to return home, and many other conditions of release that are often reserved for the most serious of offenders. The philosophy behind this approach is a concern that people who are abused by their domestic partner will return and inflict greater violence upon them. Although an obvious concern in some rarer cases, the Crown will consider all domestic allegations as being a possible worse-case scenario where further violence is inevitable.

It is very wise to retain legal counsel as soon as possible as there are subtle issues, events, and legal issues arise right from the outset that you may overlook that may have lasting consequences if not addressed effectively. In addition to having the inherit benefit of counsel at an early stage, it is of vital importance to an experienced criminal defence lawyer to explain the process, appear on your behalf, and attempt to have your bail varied so that the accused can return to the household as quickly as possible. I found over the years that the overwhelming goal of accuseds and alleged victims alike, is to have the family or domestic unit restored to the way things were before the police were called. To return to my suggestion above, an experienced lawyer can assist in making this happen in some circumstances. Without counsel, the accuseds (and even alleged victims) will find that they are not heard by people in a position to make the changes they want. More specifically, Crown Attorney's and judges beyond the trial judge, either will not address accuseds or victims on these issues, or lack the jurisdiction to do so. On the other hand, Crown Attorney's will speak and negotiate with defence counsel in attempts to try and resolve the matter in a way that is appropriate to everyone.

A common misconception in domestic charges is that the “victim” (often referred to as the “complainant”) decides whether to proceed with the charges. This is false: it is the Crown and police who decide whether the charges will continue or not. The Crown will not withdraw the case simply because it is against the wishes of the “victim”. The Crown is often of the view that there is a public concern in prosecuting the case that expands beyond the particular instance of your case.

Another reason to retain experienced counsel in this area is to understand the various options that the Crown itself my put to you. More specifically, you may be eligible for a domestic assault program called "PARS" or "Early Intervention". However, the terms and consequences of the nature, consequences, and long term benefits and pitfalls of these programs are often misunderstood by accused people. Before immediately accepting the Crown's offer to enrol in such programs by entering a plea of guilt, you should speak to a lawyer to appreciate the effects of the guilty plea you must enter to be eligible.

My first priority in domestic assault cases is making my best efforts in restoring things to the way before that call was made to the police by changing bail conditions, speaking to the Crown to see if they are willing to consider a withdrawal of the charges, or working on an agreeable resolution if you choose to accept responsibility for what happened. Call me anytime to discuss these options at (416) 220-0413.

I hope you have found this article helpful and wish you the best of luck in dealing with your legal issues.

Sean Robichaud, Barrister & Solicitor

Teacher pleads guilty to luring teenager online

2008-11-25T16:12:00.002-05:00

Today’s Star reports of a teacher pleading guilty to luring a teenager online in Brampton. What is unusual about the incident, and plea, is that according to the agreed statement of facts, the teacher did not initiate the contact, nor did she express any sort of romantic interest in the boy. It appears from the article that the young man contacted her and spoke to her about recent problems he was having with his ex girlfriend.

Her plea was in connection to a week of inappropriate communications with a 16-year-old male student, whose communications with her began because he was depressed over breaking up with his long-time girlfriend.

By the time Calautti was arrested on Nov. 13, 2007, the boy had romantic feelings for her, although there is no evidence she had any for him. "They never met outside school ... there was no sex," Crown prosecutor Aimee Gauthier told the court while reading an agreed statement of facts into the record. No evidence about the communications between teacher and student were filed. Although the teacher was 35, the victim thought she was 24, Gauthier said, adding Calautti never told him her age.

[…]

It was clear from facts supporting the charge read into court that the victim initiated the communications over an MSN chat line as a result of his emotional breakup with his girlfriend, and that he, and not her, had romantic feelings.

[…]

The basis for the charge that she pleaded guilty to stems from the fact that she knowingly communicated with a person under the age of 18, whom she was aware had romantic interest in her and never ceased communications.

It is needless to say that sexual conversations between adults and teenagers is not only inappropriate, but also criminal in most contexts.

However, does this now mean that simply refusing to end such a conversation(s) of a person who insists on discussing these things engage criminal liability? At least for Ms. Calautti, apparently so.

I always understood the law to state that there has to be an act, and a mental element to the offence. I do not understand from the article in the Star how either of these elements were present to luring a young person for a sexual purpose. At the very least it is an important lesson to be learned for teachers (or any other professional) out there who have any type of communications with their students or young people outside of their professional capacity.

TheStar.com | GTA | Teacher pleads guilty to luring teenager online

New rules too harsh, young drivers say - Canada's Most Trusted Auto Resource

2008-11-18T15:17:00.002-05:00

The McGuinty government in Ontario is now seeking to introduce new legislation that suspends and restricts young drivers who speed, as well as fundamentally undermines their driving privileges when they are with other teenagers. The proposed legislation restricts, among other things, to deny drivers between 16 and 19 having more than one teenage passenger in the vehicle.

This would apply to all people who fit in that category no matter how cautious of a driver they are. It would effectively prevent several young people from going to the movies together, car pooling to work, going on a road trip, coming back from university or college together to see their families, being responsible designated drivers for parties, and the list goes on. Of course, none of this applies, if all the teenagers take their own individual cars for such activities.

We have HOV lanes up and down the DVP that are supposed to promote car pooling, contrasted with the image of four individual mini-vans teens borrowed from their mothers following each other up to Blue Mountain to ski. Also, does this mean that a young mother cannot drive her children to the hospital, daycare, or school without someone over the age of 19 in the car? I suppose time will tell in proving the ill-conceived purpose and effects of this legislation.

Is it just me, or does it seem that the laws in Ontario are becoming more and more absurd as time goes on? It seems every hair-brained idea is entertained and somehow enacted so our most basic, and even trivial of liberties, is restricted. What makes this worse, is that it the majority of people this proposed law affects, are not able to vote for the government who has enacted them as they are too young. Worse still, is that these rules are passed under regulatory provisions that do not need the approval of the Provincial Legislature, much like the new “speed racing” and “stunting” legislation. In my view, this is another example of lazy and unaccountable government actions that bring me even further to never returning my vote to the provincial Liberals.

We have a state of affairs where an entire Humvee full of teenagers can drive around in Afghanistan with the Canadian Army amongst road-side IEDs, yet those same teenagers on their return (if lucky) cannot go to the hockey rink together without breaking the law.

As Winston Churchill stated: If you have ten thousand regulations you destroy all respect for the law.

Wheels.ca - New rules too harsh, young drivers say - Canada's Most Trusted Auto Resource

Youth convict heads to federal prison

2008-11-13T15:34:00.001-05:00

The Star reports today of the first youth sentenced for murder as an adult under the Youth Criminal Justice Act. The victim of the homicide was murdered by Justin Morton on the same day legislation came into force on April 1, 2003. The article can be found on the link below and the Act can be found here.

Normally a youth’s name is not disclosed even after a conviction, but where the individual is sentenced as an adult, that prohibition is no longer applicable and the press may report on the identity of the convicted youth as was the case here.

TheStar.com | GTA | Youth convict heads to federal prison

Citing Workload, Public Lawyers Reject New Cases – New York Times

2008-11-12T19:58:00.001-05:00

An interesting article by ERIK ECKHOLM on public defenders refusing to take cases because of their workload.

MIAMI — Public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.

Clayton Ruby Shifts the Focus of Delays on the Criminal Justice System

2008-11-11T11:14:00.001-05:00

In today’s Globe and Mail, Clayton Ruby discusses our judicial system’s present problems with delay. This is nothing new and recently we have seen a number of pronouncements, posturing, and even commissions on the issue.

What is significant about this article is it raises the seemingly forgotten question: what happened to the right to a speedy trial? The question is easily pushed aside as the typical approach by politicians is one of indifference towards the rights of accused individuals. From a defence lawyer’s perspective, any recent initiatives towards cleaning up the justice system has little, if anything, to do with the protection of an accused’s right to a fair and speedy trial. To the contrary, we see an erosion of rights that is sacrificed for expediency.

Such erosion includes:

Demands on defence counsel to make admissions, notwithstanding that these admissions are their client’s to make and not theirs;
Pressure on counsel to reveal defences and strategies before trial thus providing prosecutors an incredible tactical advantage such as having police forces work to discredit them;
Placing defence counsel in an impossible situation whereby they either reveal their defences (euphamised as “issues”) and give up the tactical advantage discussed, or be prevented by the Court from potentially arguing them at all at trial.

This is just a small sample. For a more in-depth review of what is now required, you can start by looking at the Superior Court of Justice Criminal Rules. It is expected by many in the defence bar that the situation will only become worse as these fundamental issues are glossed over by more politically enticing issues such as victim’s rights, incarceration, and costs of the judicial system to “protect criminals”.

As Ruby states,

“The right to a trial within a reasonable time is fundamental in Canada. It is protected in the Constitution. It is essential to the presumption of innocence. It should be inviolable - period. But it is not. Canadian appeal courts have simply failed us.”

As Ben Franklin once said, a society who sacrifices their liberty for some temporary security deserves neither.

Police Taser Use and Abuse in Canada

2008-11-10T22:07:00.001-05:00

I came across an interesting article on CBC News today on the disturbing trend and proliferation of taser deaths in Canada. The link can be found here where it shows as of July 2008 there had been over 20 deaths at the hands of tasers.

Deaths continue to mount and notwithstanding the troubling news, police and politicians alike, like Alberta’s Solcitor General, continue to defend their use. Is is amazing that these deaths are tolerated as collateral damage to effective law enforcement. The Solicitor General in this instance says that “until there is conclusive evidence that stun guns are dangerous, police will be able to use them.” There is a latin phrase that lawyers use from time to time: Res ipsa loquitur. Some things speak for themselves.

I would have thought that 20 deaths would articulate the point quite well, but perhaps the politicians and police are waiting for people Robert Dziekański to speak from the grave that they do indeed kill people.

Two-year knife ban includes dining utensils, judge says

2008-11-09T21:11:00.001-05:00

An interesting ruling last week prohibiting the accused from possessing knives while on probation, even while eating. "He should be able to get along with a spoon and a fork" ruled Justice R.T. Weseloh. Personally, 90% of my diet is either pizza or something eaten with chop-sticks; however, I could see how it might be a little much for some people to comply with.

TheRecord.com - Local - Two-year knife ban includes dining utensils, judge says

Waiting for a Verdict

2008-10-31T22:09:00.001-04:00

Here is a post from my photography blog as it is relevant to criminal lawyer.

As some of you know, when not taking pictures I’m a criminal defence lawyer practicing out of Toronto. Yesterday, my co-counsel David Bayliss and I completed a case in Newmarket for first-degree murder. Waiting for verdicts is easily the most stressful time for a defence lawyer, particularly when it is for murder. For hours on end you wait for a call that will determine whether your client will spend the rest of his life behind bars, or be set free and walk out of the Courthouse: there is no other experience like it. Our client was acquitted at 6:07 p.m; by 6:30, he was breathing the cool, snow-dusted Autumn air. This is David moments before this man’s liberty was restored.

It’s been some time since I last added any entries to the blog as I have been caught up in this and other cases. I hope that my readers have not become too disinterested. I am hoping to add much more content in the near future. Happy Halloween.

Toronto Star Google Maps- Homicides in the GTA, 2008

2008-03-26T22:47:00.001-04:00

Click the link below to view the Toronto Star Homicide Map of 2008.

Toronto Star Google Maps

Liam O'Connor's review of "Taxi To The Dark Side"

2008-03-25T16:16:00.001-04:00

Any desire to be a prison guard? A police officer? A military prosecutor? A soldier to eradicate evil and fend off the eastern hordes who threaten the very fabric of our society and the great All-American Way?

If so take in a viewing of the winner of this year's Academy Award for best documentary, Taxi to the Dark Side.

It follows the American Administration's history with military detainees, first at Bagram, Afghanistan then Abu Gharib and finally Guantanamo Bay.

At the time of the completion of the film there are 105 confirmed dead detainees, 37 of which the US authorities themselves have deemed "homicides". And they weren't killed by each other. If they were deemed murdered they were murdered at the hands of US soldiers.

Interestingly, the movie contends that only 7 per cent of the detainees were actually captured by US forces.

The other 93 per cent of detainees were turned over to US forces by Afghani forces/warlords/independent troops for bounty money. Those groups effectively told US forces "hey, we found these bad guys for you. Do with them what you will. They're your enemy."

A number of the soldiers that have been convicted of killing, torturing or just humiliating detained prisoners are often described as soft spoken, gentle and good soldiers.

Many concede they "should've gone with our own morality" instead of doing what we did. Many claim they felt morally isolated in Afghanistan and elsewhere. Some said they did what they did because they wanted the detainees to be guilty because it made their units look good.

Interestingly as well, the film doesn't really demonize the soldiers. Rather it castigates those at the top of the food chain, the military brass and most of all the Bush Administration and the architects behind the use of torture.

And who pray tell were those architects? Lawyers!

Legal counsel were the architects that built the way to permit torture and gave Bush the argument that the Geneva Conventions did not apply to suspected terrorists.

Head amongst those was senior lawyer from the Office of Legal Counsel to the President, John Yoo. He was the man behind the so-called" illegal memo" which allowed the President to institute the use of illegal torture methods and violence on military detainees.

It was the memo that allowed Dick Cheney to say "we can't tie the hands of our intelligence people."

It was the memo that led Bush to announce: "One by on the terrorists are learning the meaning of American justice."

Systematically indicted in the film are: VP Dick Cheney, Secretary of State Colin Powell, Justice Minister Alberto Gonzalez, and Secretary of State Rumsfeld among others.

But where did these beacons of what is supposedly right and moral obtain their tools of torture? Where did they obtain the information that allowed the US soldiers to move away from being unsophisticated brute-like 15th century amateurs to modern thugs operating at a level of pure "genius"?

Apparently from the ground-breaking research of a Canadian professor from McGill University. Our proud Canuck, Prof. Hebb has made some remarkable progress in studying sensory deprivation as used particularly at Guantanamo.

The apparent brilliance of it was what moved the soldiers away from administering torture though physical pain. Instead real progress was deemed to be made via the use of stress positions, sleep deprivation, male prisoners being forced to wear women's underwear, forced masturbation, sensory deprivation/assault, standing chained to the ceiling, sexual molestation of males by female soldiers, unmuzzling German Shepherd dogs in interrogation, promises of future execution and the ever popular water-boarding.

Thankfully a central theme of the movie is that torture does not work.

At one point an FBI commentator points out that if your real goal is to stop terror attacks on the US then your goal has failed horribly. That's because all that one terrorist has to do is show some of his uncommitted brothers the one photo of a naked detainee being dragged on the floor by a US female soldier on a chain attached to a dog collar (as the picture exists) then you will have no shortage of converts prepared to reign terror on the US.

The film also follows the clever strategy followed by the Bush Administration once the Supreme Court found their actions at Guantanamo illegal.

Instead of halting the torture Bush simply drafted new laws to: 1) remove the availability of habeus corpus; and 2) grant anticipatory pardons for President Bush and his staff just in case any charges of committing war crimes are ever raised against them in the future.

As of time of movie there have been 83000 detainees held by US forces. To date no one has yet gone to trial.

Lost in the monstrous horror, however, is Dilawar. He was the innocent little Afghani taxi driver who was picked up and murdered within two days by interrogating US soldiers. He had nothing to tell them because all he was was a taxi driver. Pathologists have concluded that had he lived both os his legs would have needed to be amputated. They had been repeated beaten, kicked and punched by interrogators. On his little stone grave reads Dilawar the Martyr.

Will his death be in vain?

Working in favor of that is the generally held belief that because some terrorists flew on to our continent that "whatever" we need to do to them is alright if it keeps us safe. But I am certain when the world sees this movie this ideas will be challenged.

But Bush has general apathy working in his favour.

I saw the movie by myself with only four others sitting in the theatre. It is a theatre that seats 350.

And therefore Bush is winning.

Would someone else please go see the movie. Tell Dilawar's story. Don't let his death and murder have been in vain.

- Liam

Liam O'Connor is a practicing lawyer and senior partner with the law firm Pinkofskys in Toronto. For viewing times of this movie in Toronto, click here

Flickr Tags: Taxi to the Dark Side,Liam O'Connor,Review,Lawyer,Toronto,Murder,Torture,Pinkofskys,Dilawar

Canadian Lawyer Magazine - The pros and cons of...(being a criminal defence lawyer in Toronto)

2008-03-24T22:01:00.001-04:00

Canadian Lawyer Magazine has just released an interesting article about the ups and downs of being a criminal defence lawyer in Toronto. There are also a number of other lawyers who participated in providing their opinions on different cities, different areas of practice, and different life plans with law. A worthwhile read for law students considering what do when they graduate. The article can be found in the link below. My comments were as follows, but I highly recommend you ink to the entire article to read others views on these sorts of issues:

Sean Robichaud, Criminal defence, Pinkofskys, Toronto

PROS:

• Being in court almost every single day, cross-examining witnesses. “The whole excitement of courtroom drama is always there, and you’re living that every day,” he says. “If you like the roller-coaster of emotions that befits a litigator, criminal law is what you should practise.”

• Satisfaction of protecting people’s right to liberty. “There isn’t the cost-benefit analysis that goes into litigation in the civil context. There’s great satisfaction, especially in cases you truly believe in. It’s much more effective advocacy. You’ll have your ultra-highs where you think someone is totally innocent and they’re acquitted.”
• The unpredictability of court and the flexibility that brings. “If your day does finish early, which it very often does, you can go and enjoy time with your family.
• The variety criminal work brings. “Every day is different. I like going to court and not having any idea about what could happen. The courtroom is more like a dance than it is a science.”
• Practising in a big city allows you to litigate very aggressively. “Not having to worry about burning bridges for the next day. You tend to have a higher level of advocacy because people aren’t concerned about those issues, having to deal with the same Crown attorney, the same judge, the next day.”
• There will always be work for criminal lawyers. “If you want to practise exclusively in criminal law, there’s enough work to just do that. In a smaller community you would likely not survive. You’d have to do some family and real estate and become more of a general practitioner.”
•The benefit of proximity when doing appeals. “If you decide that something has merit, it’s very easy to work that out because the appellate courts and the higher courts are all in Toronto.
• The culture of the city

CONS:

• Losing cases. “If you feel someone is innocent, and they’re convicted, it totally destroys you,” he states.

• Especially for newly minted lawyers, getting emotionally involved.
• Working with sensitive material, like child pornography or sexual assault. “Like any human being, it’s often hard to completely detach yourself from the substance of what you’re arguing.”
• Work/life balance at times. “My phone is always on. People get arrested at all times of the day, more so probably at night. As a criminal lawyer, you have to always be able to assist your client.”
• Difficulty in planning your life. A day in court “may take a lot longer than you expected. Criminal law is not for a person who doesn’t like chaos.”

Check out more here: Canadian Lawyer Magazine - The pros and cons of...

Police went too far, judge rules | TheStar.com | GTA |

2008-03-22T14:40:00.001-04:00

On Thursday, Justice Brewer released her judgment on R. v. Fitzroy Osbourne. Police, acting under in their capacity as T.A.V.I.S., attempted to stop and question Mr. Osbourne as he and his friend were returning from a soccer game. Mr. Osbourne, who was not engaged in any criminal or unlawful activity at the time, was approached by police and asked to identify himself. Mr. Osbourne refused to cooperate. He made it clear to police that he was aware of his rights and told them in no uncertain terms ("What the fuck do you guys want, we don't have to talk to you guys") that they were not interested in speaking with them.

Mr. Osbourne and his friend attempted to continue walking and leave the situation, as they were entitled to do. Police then exited their vehicle and continued their unfounded investigation on foot. Mr. Osbourne repeated his intention of not speaking to them with the same degree of certainty. Police continued to followed him and then threatened to arrest him for causing a public disturbance. (Incidentally, at trial I asked the officer "If I was to push a bowling ball down a hill and it smashes into your car, would you say that I caused the damage, or the bowling ball?). Using this newfound justification of causing a disturbance for arrest, police then attempted to arrest him. It was alleged that during the arrest he struck one of the officers intentionally.

In dismissing all charges against Mr. Osbourne, Justice Brewer wrote:

[16] Community-based policing policing generally involves increased interaction between police and officers and the public they serve in an effort to reduce the incidents of crime and alleviate fear in the neighborhood [...]

[17] the police have the authority to stop and question a pedestrian, but not to detain that person, unless the detention is also permitted by law: R. v. Mann (2004), 185 C.C.C. (3d) 308 (S.C.C.) at 33-35. Further, every citizen has the well established right to refuse to answer questions asked by the police [...] It is crucial that officers engaged in the community based policing be mindful of the proper scope of their authority.

[18] In this case, when the officers drove up to the defendant, he was under no obligation speak with them. It is unfortunate that Mr. Osbourne chose to express his unwillingness to communicate with the police in such a gratuitously confrontational and obnoxious manner. Nonetheless, he was within his right in asking to be left alone, no matter how rudely he expressed it. Both officers acknowledged that after the initial exchange at the police car the two men were walking away.

It appears that this judgment explicitly recognizes the need for police to be properly trained, and to follow that proper training, in the rights of the individuals, particularly in the context of "community based" policing like the T.A.V.I.S. unit. Time will tell whether anything is done or whether people like Mr. Osbourne will continue to experience this sort of unmitigated and brazen breaching of civil liberties.

The article on the case from written by Betsy Powell from The Star cane be found here:

TheStar.com | GTA | Police went too far, judge rules

Creba slaying: Youth cleared

2007-10-24T20:47:00.001-04:00

One of three youths charged in the Boxing Day shooting of Jane Creba has been cleared of manslaughter in her death.

TheStar.com | Crime | Creba slaying: Youth cleared

Toughen up Criminal Code, B.C. says: TheStar.com | Canada |

2007-10-24T20:44:00.001-04:00

VANCOUVER – British Columbia's solicitor general says gang violence will escalate if the federal government doesn't toughen up the Criminal Code to deal with offences such as last week's murder of six people in a Surrey, B.C., apartment.

TheStar.com | Canada | Toughen up Criminal Code, B.C. says

Ramage found guilty in Magnuson's death

2007-10-10T22:16:00.001-04:00

Former Toronto Maple Leafs captain Rob Ramage has been found guilty of being criminally responsible for causing the death of his friend in a horrific car crash.

TheStar.com | Sports | Ramage found guilty in Magnuson's death

Defence, prosecution alike reject PC attack on bail system

2007-10-08T20:47:00.001-04:00

A very good article by Kirk Makin on John Tory's baseless allegations of "catch and release" policy. The Ontario voters should be concerned that someone who doesn't even take the time or effort to consider an issue properly before rushing in and standing on a platform of law and order. Does he really think that people from Ontario are so gullible, fearful, and uneducated as to willingly accept such a crude and short-sighted mentality towards the justice system?

A campaign assault on the bail system by Ontario Conservative Leader John Tory has accomplished the rare feat of uniting both the prosecution and defence bar against his claims.

Even hard-line police advocates are having trouble defending Mr. Tory's claims as well as the targets he has identified in a series of recent commercials and speeches.

national

Defendant does push-ups in court; charges against him dropped | IndyStar.com

2007-10-08T01:52:00.001-04:00

I wish I could work out plea bargains like this one for my clients.

Defendant does push-ups in court; charges against him dropped | IndyStar.com

Boys held in school sex assault | TheStar.com | Crime

2007-10-04T23:20:00.001-04:00

Police have arrested eight boys aged 12 and 13 in connection with the sexual assault of four girls at a Toronto middle school.

TheStar.com | Crime | Boys held in school sex assault

Supreme Court of Canada - Decisions - Hill v. Hamilton-Wentworth Regional Police Services Board

2007-10-04T23:17:00.001-04:00

The Supreme Court of Canada released a landmark decision today on whether police can be sued for negligent investigation. The Court held that like all other professionals, police also owe a minimum standard of care to suspects.

This controversial decision provides potential remedies to police who investigate cases sloppily and thereby expose innocent people to prosecution wrongfully. As the Court stated, the plaintiff must "establish a cause of action for negligent police investigation, the plaintiff must show that he or she suffered compensable damage and a causal connection to a breach of the standard of care owed to him or her. Lawful pains and penalties imposed on a guilty person do not constitute compensable loss. The limitation period for negligent investigation begins to run when the cause of action is complete and the harmful consequences result. This occurs when it is clear that the suspect has suffered compensable harm."

Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ.: The police are not immune from liability under the law of negligence and the tort of negligent investigation exists in Canada. Police officers owe a duty of care to suspects. Their conduct during an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. Police officers may be accountable for harm resulting to a suspect if they fail to meet this standard. In this case, the police officers’ conduct, considered in light of police practices at the time, meets the standard of a reasonable officer in similar circumstances and H’s claim in negligence is not made out. [3] [74] [77 ]

Supreme Court of Canada - Decisions - Hill v. Hamilton-Wentworth Regional Police Services Board

Texas Ruling Signals Halt to Executions Indefinitely - New York Times

2007-10-03T16:47:00.001-04:00

HOUSTON, Oct. 2 — Signaling an indefinite halt to executions in Texas, the state’s highest criminal appeals court late Tuesday stayed the lethal injection of a 28-year-old Honduran man who was scheduled to be put to death Wednesday.

Texas Ruling Signals Halt to Executions Indefinitely - New York Times

The New Street Racing/Stunts/Aggressive Driving Law and Regulations: Highway Traffic Act - O. Reg. 455/07

2007-10-02T13:58:00.001-04:00

Here is a link to the new street racing laws in Ontario that has been a hot topic in the news of late.

Highway Traffic Act - O. Reg. 455/07

Exoneration Using DNA Brings Change in Legal System - New York Times

2007-10-02T13:09:00.001-04:00

State lawmakers across the country are adopting broad changes to criminal justice procedures as a response to the exoneration of more than 200 convicts through the use of DNA evidence.

Exoneration Using DNA Brings Change in Legal System - New York Times

Defence rests in Ramage trial

2007-10-01T19:05:00.001-04:00

What will it be for the former leaf captain?

Former Toronto Maple Leaf captain Rob Ramage had ex-teammate Gary Leeman on his mind the night before a deadly crash, jurors heard today.

TheStar.com | Crime | Defence rests in Ramage trial

Acquittals in blood scandal | TheStar.com | News

2007-10-01T18:56:00.001-04:00

Activists and lawyers for victims of the worst public-health disaster in Canadian history lashed out in anger today after an Ontario judge acquitted the former national medical director of the Canadian Red Cross and three other doctors of criminal charges in the tainted-blood scandal.

TheStar.com | News | Acquittals in blood scandal

Lawyer wrongfully tagged as a fake - ottawasun.com - Ottawa and Region

2007-09-30T20:43:00.001-04:00

It's amazing that these police think that they can arrest people and ask questions later. Would it not have been better practice to call the Law Society of Upper Canada before arresting him? If this was me, my statement of claim would be filed real soon.

A man arrested at the Ottawa courthouse for impersonating a lawyer was released from custody without charge after police confirmed he was in fact a lawyer.

ottawasun.com - Ottawa and Region - Lawyer wrongfully tagged as a fake

New Zealand puts its law on a wiki for public editing - Boing Boing

2007-09-30T20:39:00.001-04:00

It looks like the police in New Zealand are finding new ways to get the public involved in making crime legislation. I think the idea is very clever; however, I wonder about the accountability transparency, and accuracy of it all. It would seem to me very easy to be able to create fake logins and send multiple messages and suggestions all toting the same line of suggestions. Perhaps if they made it mandatory that the person who is making the suggestion is real, can be verified, etc. then this would be a very innovative way to change legislation not only in this area, but across the board.

"The New Zeland police have launched a wiki open at anyone wanting to edit and make suggestions to the Police Act as part of a wider revamp. New Zealand's current Police Act is nearly 50 years old. In March 2006 a review undertaken. Following this a new website wiki.policeact.govt.nz has been launched to allow people to suggest wording for the new Policing Act. It uses similar wiki technology to the popular user-generated site Wikipedia. The wiki version of the Policing Act will be viewed by New Zealand parliamentarians, before an official bill is introduced into Parliament."

New Zealand puts its law on a wiki for public editing - Boing Boing

New Website Design

2007-09-30T20:25:00.001-04:00

I overhauled my professional website over the weekend. Please leave comments on what you think of the new design: www.criminallawyerintoronto.ca

Judge takes shot at Tories London Free Press - Local News

2007-09-30T20:22:00.001-04:00

A London judge weighed in on the Ontario election yesterday, taking aim at the Tory law-and-order platform amid an overcrowding crisis at the local provincial jail.

London Free Press - Local News - Judge takes shot at Tories

TheStar.com | Ontario | New speeding law in effect Sunday

2007-09-28T14:29:00.000-04:00

TheStar.com Ontario New speeding law in effect Sunday: "Ontario's new street-racing law goes into effect on Saturday at midnight and OPP Sgt. Cam Woolley predicts 'shock and awe' over the tough new provincial legislation."

Federal judge rules 2 Patriot Act provisions unconstitutional - CNN.com

2007-09-27T00:42:00.000-04:00

Federal judge rules 2 Patriot Act provisions unconstitutional - CNN.com: "(CNN) -- A federal court on Wednesday struck down two provisions of the Patriot Act dealing with searches and intelligence gathering, saying they violate the Fourth Amendment protection against unreasonable searches and seizures with regard to criminal prosecutions."

History - Miscarriages of Justice - The Guildford and Woolwich Trials

2007-09-26T21:17:00.000-04:00

In the course of my masters program, I was required to read the following article about the Guildford Four and Woolwich Trials (more commonly known from the movie In the Name of the Father). This is an incredibly interesting article that sets out what happened in depth and demonstrates and teaches valuable lessons for us to apply to present systems of justice - particularly with respect to terrorism offences, renditions, and the obvious potential for massive miscarriages of justice.

For a shorter version, check out the Wikipedia article here.

"Those who cannot remember the past are condemned to repeat it." - George Santayana

(A picture of The Old Bailey - The Courthouse where the Guildford Four were tried and convicted)

Homicides in Toronto - Toronto Star Google Maps

2007-09-25T22:35:00.001-04:00

Below is a really interesting link that shows all the homicides in Toronto for 2007 (with an archive for previous years) on Google Maps.

Toronto Star Google Maps

My schedule for the week of September 24, 2007

2007-09-24T22:42:00.001-04:00

Monday: Four Bail hearings at 2201 Finch Avenue West (Assault, Armed Robbery, Fail to Comply with Bail, Weapons, Sexual Assault)

Tuesday: Trial in Scarborough: R. v. R.M. (Dangerous Driving, Failure to Stop for Police, Obstruct Police, Escape Lawful Custody, Assault Resist Arrest)

Wednesday: Breakfast Lecture Series With Gary Trotter at the Albany Club / Preparation / Office

Thursday: Newmarket: Judicial Pre-trials and administrative appearances:

Friday: Small Claims Court / Preparation / Office

A comment on the recent decline in Charter Rights in the province of Ontario

2007-09-23T20:25:00.001-04:00

Below is a comment from Reid Rusonik, managing partner of the firm Pinkofskys, and personal friend and mentor of mine on the recent decline of Charter values in Ontario.

More specifically, this comment addresses the recent decision of R. v. L.B. where the Ontario Court of Appeal, through the voice of Justice Moldaver, dealt a serious blow to constitutional rights in Ontario.

Decisions like the recent one by Ontario Court Justice of Appeal Michael Moldaver lead to the potentially disastrous misunderstanding of the Canadian Charter of Rights and Freedoms and why it proscribes for the exclusion of unconstitutionally obtained evidence that permeates several other recent letters to the Editor.
The Charter calls for the exclusion of evidence obtained in violation of our rights as its only real means of disciplining state agents for breaching these rights and encouraging a better respect for these rights in the future. When a judge says the state cannot use a seized gun or drugs or stolen property in evidence against an accused he or she is saying the breach of a Charter-protected right is more of a danger to a free and democratic society than letting a particular accused escape punishment. The judge is not protecting that accused's rights, he is protecting our rights. He or she is not freeing that accused so much as he is protecting the freedom of us all.
The rights protected by the Charter stop the police from stopping us on the street or coming into our homes on a whim or because they do not like or are afraid or are suspicious of our religion or the colour of our skin. They make sure we are not humiliated by being searched in front of our children or loved ones because of mere suspicion we might be up to no good. They recognize our worth and our dignity as individuals.
The protection and sanctification of these rights afforded by this magnificent document hold us together as a society. It gives individuals a reason to believe in society, to honour and fight for it. If we did not have it, and society's agents were free to arbitrarily and unreasonably turn state power against individuals, individuals would turn against society.
When lawyer Daniel Stein is criticized by one of your writers for saying his client was simply "sitting at the edge of the school, hanging out, not doing anything" he is talking about a need not to protect the few punks doing this while carrying guns. He is talking about the thousands of absolutely innocent kids doing the same thing every day. He is talking about ensuring that these kids are not humiliated and terrified by the police unless there are reasonable grounds to believe they are in possession of serious contraband.
The courts, of course, will never get to discipline the police for their myriad of abuses in these instances because these kids will never become accused. What they will become is bitter and marginalized from society. Treat an innocent child like a criminal and see what you will get.
What would you think of Canada if the police could stop and search you on a whim and discover materials that indicated you were secretly gay, believed in a religion different from the rest of your family, or had a girlfriend on the side because you still adore and care for your wife but she is too sick to make love with you anymore? What if it kept you from getting to pick-up your child on time, or made your employer think you must be up to no good--or in the wrong political party or fledgling union--and got you fired?
Canada as a free and democratic society can survive it's largest city suffering 60 or even 600 homicides per year. It cannot survive taking away the rights of any of its citizens. Doing that instead of attacking the root causes of criminality will only create more criminals.
As a criminal defence lawyer, I like to put it all this way: a Charter exclusion a day keeps the Nazis away.
And as much as some of your other writers and Mr. Justice Moldaver or John Tory might not like it, we defence lawyers and our Charter arguments are not going to go away.

Ontario Crown Attorneys' Association says John Tory misrepresents role of prosecutors in his party's platform.

2007-09-23T10:04:00.000-04:00

CNW Group: TORONTO, Sept. 21 /CNW/ - The Ontario Crown Attorneys' Association whichrepresents the more than 870 front-line Crown attorneys in the province, todayexpressed its disappointment with statements made by John Tory, the leader ofthe Progressive Conservative Party of Ontario, during the leaders' televisiondebate and during the course of the election campaign.

Not Guilty After 48 Years - Court acquits Truscott

2007-08-28T15:09:00.000-04:00

TheStar.com - Canada - Court acquits Truscott: "Steven Truscott’s long fight for justice ended in victory Tuesday when the Ontario Court of Appeal acquitted him of the 1959 murder of 12-year-old Lynne Harper and pronounced his conviction “a miscarriage of justice.”"

TheStar.com - entertainment - Police return Paris to court

2007-06-08T15:20:00.000-04:00

TheStar.com - entertainment - Police return Paris to court

Apparently Paris Hilton's "medical reasons" were not good enough for the judge. She was ordered back to jail to serve the sentence imposed upon her - just like everyone else has to do who is sentenced to jail.

TheStar.com - News - Police fight parties on Facebook

2007-06-08T15:12:00.000-04:00

TheStar.com - News - Police fight parties on Facebook: "Police fight parties on Facebook"

Police are now using Facebook to tackle the growing pandemic of teen bush parties...

Come on guys, I know that you have better things to focus on than that.

The irony of this is that recent Ontario policy has banned Facebook in the government workplace presumably because it is unproductive and yet we are paying police good money to browse it to ensure that no teens have a good weekend.

I am definitely not going to add the Chief of Police in charge of this initiative to my Facebook friends.

Jail sentence for ex-Cheney aide

2007-06-05T14:26:00.000-04:00

Scooter Libby has been sentneced former key White House office Lewis "Scooter" Libby to 30 months in prison.

Unlike Canada, an individual who is sentenced may apply for bail pending an appeal hearing and therefore he remains free until that hearing concludes the matter one way or another. The full story can be found here: BBC NEWS Americas Jail sentence for ex-Cheney aide

Top court hears appeal on suspects' right to silence

2007-05-23T16:34:00.000-04:00

Top court hears appeal on suspects' right to silence: "The Supreme Court of Canada began hearing arguments Wednesday in a case that seeks to define how police interrogation tactics should square with the Charter's long-protected right to silence."

Racism in Peel Regional Police

2007-05-18T12:27:00.001-04:00

A recent decision of the Ontario Human Rights Tribunal found that racism played a significant and improper role in a theft under investigation. The Regional Municipality of Peel Services Board and Richard Elkington (the Peel police officer) were awarded costs against them jointly in the amount of $20,000. The Peel police were also required to implement a number of protocols to deal with racism in police investigations.

The full judgment can be found here: Ontario Human Rights Commission v. Regional Municipality of Peel Services Board, 2007 HRTO 14 (CanLII)

Toronto Homicides - Interactive Map from the Toronto Star

2007-03-18T16:55:00.001-04:00

This is a link to a really neat Google map that the Toronto Star updates that shows the reader where all homicides took place in Toronto. It is interesting to see certain trends, particularly when you compare from year to year.

Link to Toronto Star Google Maps

Happy St. Patrick's Day!

2007-03-17T20:35:00.000-04:00

The girl whose hair was too big for her mugshot | the Daily Mail

2007-03-14T16:11:00.001-04:00

Link to The girl whose hair was too big for her mugshot the Daily Mail

Police hit with $2.6M lawsuit - Toronto Star

2007-03-13T00:10:00.001-04:00

Young Muslim alleges racial stereotyping, says plainclothes officers didn't identify themselves when quarrel escalated to an armed invasion of his home and a beating

Source: TheStar.com - News - Police hit with $2.6M lawsuit

Principles of Canadian Bail - Resources for Lawyers

2007-03-11T11:04:00.001-04:00

Here is a collection of bail principles I have put together over the years that I find assists me tremendously in the bail hearings I conduct. The best advantage it provides the lawyer is the ability to have all the major principles of bail right at your fingertips to succinctly and smoothly integrate into your submissions. I hope it helps as mush as it has helped me and my associates over the years.

You are welcome to print it out and carry it in your briefcase as I do for the surprise bail hearings that often transpire. Obviously I cannot guarantee the accuracy or status-recency of the cites - I leave such tasks of note-up to the lawyer arguing the bail. Here are a couple of excepts to the entire document that is linked to this post and saved as a PDF under "Bail Summaries" in the link provided (right top hand of the page)

“At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted loss of liberty.”
- Iacobucci (dissent in Hall) at para 47; 2002 SCC 64, 4 C.R. (6th) 197, 217 D.L.R. (4th) 536, 167 C.C.C. (3d) 449, 293 N.R. 239, 165 O.A.C. 319, 97 C.R.R. (2d) 189, [2002] 3 S.C.R. 309
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The grant or denial of bail implicates not only s. 11(e) of the Charter but also the accused person's liberty and security of the person interests. Bail is not a privilege. Judicial interim release should only be withheld where it is necessary[1]… Where bail is unjustly denied, there is a miscarriage of justice. It cannot be over emphasized that pre-trial bail rests on the presumption of innocence.[2]
- R. v. J.V. (Villota) [2002] O.J. No. 1027 (Ont.Sup.Ct.) Hill J. at paragraph 64
[1] : The Queen v. Morales (1992), 77 C.C.C. (3d) 91 (S.C.C.) at 197 per Lamer C.J.C.; Regina v. Hall (2000), 147 C.C.C. (3d) 279 (Ont. C.A.) at 295-6 per Osborne A.C.J.O. (leave to appeal granted [2000] S.C.C.A. No. 552); Report of the Canadian Committee on Corrections (the Ouimet Report) (1969), at pages 99, 108. [2] The Queen v. Pearson (1992), 77 C.C.C. (3d) 124 (S.C.C.) at 135-9 per Lamer C.J.C.; Regina v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.) at 39 per Arbour J.A. (as she then was).

Link to Canadian Criminal Legal Links - Criminal Lawyer in Toronto - Sean Robichaud

best of craigslist : Top 10 Law Firm Interview Questions

2007-03-08T23:25:00.001-05:00

A funny series of questions and answers and commentary on the ridiculous questions you are asked when applying for a job at a law firm.

Link to best of craigslist : Top 10 Law Firm Interview Questions

Evidence-exclusion changes called risk to Charter - Globe And Mail

2007-03-07T13:06:00.001-05:00

By Kirk Makin:

There is an alarming move afoot at the highest levels of the judiciary to relax a long-standing prohibition against using evidence obtained through investigative shortcuts, according to two highly respected criminal law academics.

"If we stop excluding evidence, the Charter is going to be dead," Queen's University law professor Don Stuart told a conference at the Law Society of Upper Canada. "This is where the rubber hits the road. I really do think we're at a crossroads."...

Link to http://www.globeandmail.com/

Long trials not our fault: Lawyers - The Toronto Star

2007-03-07T13:03:00.001-05:00

A similar article as the one below:

Defence lawyers are unfairly shouldering the blame for longer criminal trials, a legal symposium was told on the weekend.
While members of the criminal bar are being told to stop bringing so many motions that challenge the admissibility of evidence and lengthen court proceedings, the opposite message is being delivered to Crown attorneys, the conference was told.

Source: TheStar.com - News - Long trials not our fault: Lawyers

Symposium questions lengthy legal motions - Toronto Star

2007-03-07T12:40:00.001-05:00

I find this article very accurate and exemplative of how defence counsel are used as justice system scape-goats.

Defence lawyers are unfairly shouldering the blame for longer criminal trials, a legal symposium was told on the weekend.
While members of the criminal bar are being told to stop bringing so many motions that challenge the admissibility of evidence and lengthen court proceedings, the opposite message is being delivered to Crown attorneys, the conference was told.

Source: TheStar.com - News - Symposium questions lengthy legal motions

Drunk Vegas Lawyer causes mistrial Part 4

2007-03-07T11:32:00.001-05:00

This is so disgraceful. The lawyer is caught being drunk while defending a man facing a potential life sentence.

Detroit Rock City (nearly)

2007-03-04T20:14:00.001-05:00

I will be on a case in Windsor from March 4th to March 9th.

--------------------------
Sean Robichaud
Barrister & Solicitor
Via Blackberry email

Tel. (416) 220-0413
Fax. (416) 598-3384

The dark side of justice

2007-03-03T18:04:00.001-05:00

Today's Toronto Star covered a very interesting article on the costs of legal fees that have reached to the point where most potential litigants are unable to fund the cost of a civil matter. Although my practice is exclusive to criminal matters where the fees are often a small fraction of civil rates, there is also a very concerning problem with the present state of the Legal Aid system in Ontario. Most individuals who are charged with a criminal offence are unable to afford the cost of representation and are required to seek the assistance of Legal Aid. Like the article below states, it is often the poorest of the poor who are eligible for Legal Aid leaving too many unrepresented litigants in the justice system and often aggravating the efficiencies as a result.

With the cost of a three-day civil trial estimated at $60,738 – more than a year's income for most households – Canadians are being driven to financial and emotional ruin by a justice system that's priced itself solidly out of reach.

Source: TheStar.com - News - The dark side of justice

Bowmanville gang members jailed after guilty plea

2007-02-28T22:46:00.001-05:00

Here is a story from a reporter, Jeff Mitchell, that I got along with very well during a trial I conducted in Whitby a few years ago. I really appreciated his well written stories of the trial when I was out there. The reason I find this story amusing is because the idea of a "gang" in Bomanville reminds me of the movie Clerks with Silent Bob and Jay standing outside the convenient stores annoying customers as they come in. Here Bob and Jay seem to be dealing crack. I love the name of the gang: the "Cash Money Brothers" gang. Come on guys, you could have at least put some more thought into that one.

The picture to the right is of Bomanville so you have a better idea of what I am talking about.

WHITBY -- Three members of a gang which sold crack on the streets of Bowmanville have been given prison terms for the abduction and assault of two people, an incident that was sparked by an unpaid drug debt.
The three men -- Brendan Mak, David O’Neil and Harley Guindon, members of the so-called Cash Money Brothers gang -- pleaded guilty to assault causing bodily harm, forcible confinement and extortion with a firearm just prior to the beginning of a scheduled jury trial in mid-February. They were sentenced by Superior Court Justice Donald Ferguson to five years in jail each.

Source: durham region news: ajax, pickering, whitby, oshawa, scugog, uxbridge and clarington newspapers

Principal Accused of Selling Meth

2007-02-28T22:24:00.001-05:00

And you thought that your principal was trying too hard to be cool...

BETHLEHEM, Pa. (AP) - A middle school principal accused of selling crystal methamphetamine from his office after school and on weekends was arrested after police found the drug on his desk, authorities said Wednesday.

Source: My Way News - Pa. Principal Accused of Selling Meth

Paris Hilton May Have Probation Revoked

2007-02-28T22:22:00.001-05:00

Could Paris Hilton be going to jail? This would certainly be the best The Simple Life sequel if true. If she is interested in having a defence lawyer on call in Toronto, I know just the person who would be happy to take on her case(s). ;-)

WEST HOLLYWOOD, Calif. (AP) - Paris Hilton could have her probation revoked - possibly resulting in jail time - if she is found to have been driving with a suspended license because it would violate conditions of her previous sentence for reckless driving, authorities said Wednesday.

Source: My Way News - Paris Hilton May Have Probation Revoked

Stock scam linked to organized crime

2007-02-28T22:13:00.001-05:00

An article from the Toronto Star on a recent arrest that alleges organized crime in the TSX.

Court documents allege Markham man is key in the Cosimo Commisso family and is tied to a pump-and-dump fraud

Source: TheStar.com - Business - Stock scam linked to organized crime

Gangs pushed outside city

2007-02-28T22:04:00.001-05:00

According to police, the gangs are being pushed out of Toronto because of recent crackdowns from Toronto Police. Notice the talk about money at the end of the article - I wonder if that has anything to do with their declarations on gangsters outside the city.

Police chiefs outside GTA complain they are seeing more guns and violence as a result of Toronto crackdowns that have forced criminals to seek less heat

Source: TheStar.com - News - Gangs pushed outside city

Supreme Court to hear case about probation orders

2007-02-28T21:56:00.001-05:00

An article from Law Times on an issue that is commonly dealt with by defence counsel. Namely, is probation available if a person has effectively served a sentence of more than two years because of pre-trial custody? The British Columbia Court of Appeal and the Quebec Court of Appeal are at odds on the principle and it will be left with the Supreme Court to make the final word on the issue.

The Supreme Court of Canada has agreed to determine whether a probation order can be imposed on a defendant with an effective sentence of more than two years, after provincial appeal courts have released conflicting rulings on the issue.

Source: Law Times - Supreme Court to hear case about probation orders

Law Times - Independent judiciary put in peril

2007-02-28T21:49:00.001-05:00

An interesting article on judges opposing the government's new changes to the federal judiciary advisory committees. In my view, these judges are an entirely correct in their assessments and concerns with the situation. Query whether we want our justice system to be moving towards a more Americanized approach whereby individuals are elected or appointed according to the current political party's viewpoint on the law.

The Canadian Judicial Council is openly criticizing Prime Minster Stephen Harper’s changes to federal judicial advisory committees, raising questions about the independence of the committees from the government and whether the most qualified candidates will continue to be appointed to the bench.

Source: Law Times - Independent judiciary put in peril

Security Certificates - Supreme Court of Canada - Decisions - Charkaoui v. Canada (Citizenship and Immigration)

2007-02-24T16:24:00.001-05:00

On Friday, the Supreme Court of Canada released the most significant and powerful judgment from a Commonwealth country since September 11, 2001. The rippling effects of these pronouncements by our highest Court will be felt worldwide and is perhaps indicative of a changing zeitgeist: one of disillusionment and dismay with the "War on Terror"; one that is quickly experiencing a renaissance of freedom, liberty, and democracy; one where we have hopefully come to appreciate something that one of the founders of democracy once wrote:

"Those that would give up essential liberty in pursuit of a little temporary security deserve neither liberty nor security." - Benjamin Franklin

An excerpt from the judgement reads:

One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.
[...]
The realities that confront modern governments faced with the challenge of terrorism are stark. In the interest of security, it may be necessary to detain persons deemed to pose a threat. At the same time, security concerns may preclude disclosure of the evidence on which the detention is based. But these tensions are not new. As we shall see, Canada has already devised processes that go further in preserving s. 7 rights while protecting sensitive information; until recently, one of these solutions was applicable in the security certificate context. Nor are these tensions unique to Canada: in the specific context of anti-terrorism legislation, the United Kingdom uses special counsel to provide a measure of protection to the detained person’s interests, while preserving the confidentiality of information that must be kept secret. These alternatives suggest that the IRPA regime, which places on the judge the entire burden of protecting the person’s interest, does not minimally impair the rights of non-citizens, and hence cannot be saved under s. 1 of the Charter.

Source: Supreme Court of Canada - Decisions - Charkaoui v. Canada (Citizenship and Immigration)

From Episode 2 of Irish Girls

2007-02-23T18:49:00.001-05:00

A funny and smart video from a fast-talking Chicago defence lawyer.

Injured and off for a few weeks

2007-02-21T15:58:00.001-05:00

I ruptured my spleen on Thursday snowboarding and will be off work for a couple of weeks. I may have more to say about this near-death experience later but suffice to say I will be alright and was just released from the hospital and on my way back to Toronto now.
--------------------------
Sean Robichaud
Barrister & Solicitor
Via Blackberry email

Tel. (416) 220-0413
Fax. (416) 598-3384

Inaugural Meeting of the Young Barristers' Society

2007-02-08T10:19:00.001-05:00

The first meeting of the Young Barristers' Society went exceptionally well. Thank you to our members and guest for attending. (www.youngbarristers.ca)

From left to right: The Honourable Justice A. Gans., Brian H. Greenspan, The Honourable Justice D. McCombs, Sean Robichaud (me), Marcy Segal, David Bayliss.

Criminal evidence obtained through hypnosis barred

2007-02-05T03:11:00.001-05:00

It's about time that a decision like this came down from a higher court. The use of this type of evidence is a perfect example of prosecutorial zealousness left unchecked. It is reprehenisble to think Crown Attorney's, knowing that post-hyptotic evidence is utterly unreliable and dangerously taint the jury, would still even consider using it at trial. It's sad that it went on this long and that some accused actually had to answer to this junk evidence.

OTTAWA — The use of post-hypnotic evidence in criminal trials, a practice permitted in Canada for decades, is fraught with scientific and legal problems and can’t be allowed to continue, says the Supreme Court of Canada.

Source: The ChronicleHerald.ca