Criminal possession is one of the most common set of charges in the Canadian justice system. Yet many Canadians do not know the legal definition of possession. This article will attempt to explain the definition of possession and the definition of its component parts in order to allow you to better understand possible defences to a charge of possession.
By Toronto Criminal Defence Lawyer
One of the most frequent questions asked by those accused of drug offences is, “Should I go into drug treatment court?” While each case is unique and each client’s need are specific to their case, this article will attempt to answer some common questions about drug treatment court to help decide if it is something that will benefit someone accused of a drug offence. Those questions include: “What is drug treatment court?”, “Am I eligible?”, “What is the difference between drug treatment court and regular court?” and “How does an accused sign up for drug treatment court?”
What is Drug Treatment Court?
The most important thing to know about drug treatment court is that if you graduate, you are guaranteed a sentence other than imprisonment. In other words, you will not go to jail from drug treatment court unless you break the rules of the drug treatment court.
Drug treatment courts began as a response to large numbers of offenders being incarcerated for drug offences and high recidivism rates (frequent re-offending) of those persons due to their underlying drug dependency (See The impact of Addiction on Sentencing).
In 1998, after the 1996 sentencing reforms of Bill C-41, the first drug treatment court was established in Toronto.
Are You Eligible for Drug Treatment Court?
While drug treatment courts have a particular focus on aboriginal offenders and street prostitutes because recidivism among those groups are exceptionally high in the regular court system, when drug addiction is involved, these are not required for admission into drug treatment court. Drug treatment court is reserved for non-violent offenders who have a drug or alcohol addiction. Drug treatment court is only available to those offenders who plead guilty to offences that do not carry a mandatory minimum sentence of incarceration (See Mandatory minimum penalties for drug offences).
In Toronto, an offender is NOT eligible if the offence was:
- trafficking for commercial gain,
- impaired driving,
- involved risk to young people, or
- was a residential break and enter.
An offender is typically not eligible where the offender:
- has a recent and/or significant history of violence,
- was serving a conditional or intermittent sentence, or
- previously graduated from the Toronto drug treatment court.
Drug treatment court is often utilized by offenders who have a long record of drug possession and minor theft offences who have been sentenced to jail for those offences who want to change their lives and not return to jail.
What is the Difference Between Drug Treatment Court and Regular Court?
Drug treatment courts are an attempt to break the cycle of drug use and crime. Unlike in regular court, drug treatment court require some form of organized drug treatment and random urine testing component, multiple appearances after a guilty plea so that the sentencing judge can monitor the offender’s progress, as well as social services support. Also, in regular court, there is never a guarantee that an offender will not be sentenced to jail.
Statistically, recidivism rates for those who complete drug treatment court are lower than those for the regular court system.
How Does an Accused Apply to Drug Treatment Court?
Candidates for drug treatment court are either self-identified or identified by justice participants, whether it’s police, a judge, probation officer, the prosecution or defence. Drug treatment court is voluntary. A person must sign a waiver agreeing to be bound by the terms of drug treatment court, plead guilty and immediately begin counselling. There is a formal period (usually 30 days) where an offender can easily choose to re-enter the normal court program and after that, an offender must make an application to the court.
Is Drug Treatment Court a Good Idea?
As with any decision in the criminal justice system, it is a good idea to make these decisions in consultation with an experienced drug offences lawyer. A lawyer will help you determine if you have any valid defences and what your sentence is likely to be in the regular court system. So whether drug treatment court is preferable for you is a decision best made after you are informed by the advice of your lawyer.
by Toronto Criminal Defence Lawyer
In R. v. Richards (1979), 49 C.C.C. (2d) 517, the Ontario Court of Appeal considered the principles applicable to sentencing q person of possession of a drug to which they are addicted.
Keith Richards, a well-known member of the Rolling Stones was addicted to heroin. He began using drugs in 1967 and attempted to quit heroin several times before the facts which game rise to the charge, in 1977.
A search of his Toronto hotel room yielded approximately 22 grams of heroin with a purity of approximately 32%.
Following his arrest, he began treatment by a doctor in New York.
His Honour Judge Graburn, following a plea of guilty to possession of heroin, suspended the passing of sentence and ordered one year of probation with conditions including continuing treatment.
The Crown appealed this sentence.
The Ontario Court of Appeal, in dismissing the crown appeal, held that the principle of deterrence that would be satisfied by a custodial sentence should yield to the principle of rehabilitation, when sentencing an addict for possession of the drug to which he or she is addicted.
Of course, each sentence should look at the specific offender’s circumstances but this case still stands for the principle that drug possession charges, regardless of the drug in question, need not result in a custodial sentence, depending on the prospects for rehabilitation.
The sentencing amendments to the Criminal Code of Canada of 1996 and the new conditional sentence regime (the ability to order a custodial sentence to be served in the community) it created, has given judges even more discretion on whether to impose a jail sentence when dealing with addicts.
In R. v. Proulx,  1 S.C.R. 61, the Supreme Court of Canada held that there is no presumption that a custodial sentence is appropriate unless a mandatory minimum jail sentence is mandated by Parliament. (For a list of mandatory minimum sentences in drug cases, please see Sentencing In Drug Cases.)
Mr. Proulx had a long record linked to alcohol addiction. And although the offences in Proulx were driving offences and not drug offences, the same principles apply. The court summarized the facts of the case in question as follows:
On the morning of November 1, 1995, after a night of partying involving consumption of some alcohol, the respondent decided to drive his friends home even though he knew that his vehicle was not mechanically sound. For a period of 10 to 20 minutes, the respondent, who had only seven weeks of experience as a licensed driver, drove erratically, weaving in and out of traffic, tailgating and trying to pass other vehicles without signalling, despite steady oncoming traffic and slippery roads. As the respondent was trying to pass another vehicle, he drove his car into an oncoming lane of traffic, side-swiped a first car and crashed into a second one. The driver of the second vehicle was seriously injured. The accident also claimed the life of a passenger in the respondent’s car. The respondent was in a near-death coma for some time, but ultimately recovered from his injuries. The respondent entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm.
The Court of Appeal for Manitoba changed an 18 month jail sentence into a conditional sentence. The Crown appealed. In dismissing the Crown appeal, the Supreme Court listed a dozen factors for a judge to consider when deciding whether a conditional sentence is appropriate:
- Unlike probation, which is primarily a rehabilitative sentencing tool, a conditional sentence is intended to address both punitive and rehabilitative objectives. Accordingly, conditional sentences should generally include punitive conditions that restrict the offender’s liberty. Therefore, conditions such as house arrest or strict curfews should be the norm, not the exception.
- There is a two-stage process involved in determining whether to impose a conditional sentence. At the first stage, the sentencing judge merely considers whether to exclude the two possibilities of a penitentiary term or a probationary order as inappropriate, taking into consideration the fundamental purpose and principles of sentencing. At the second stage, having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.
- “Safety of the community,” which is one of the criteria to be considered by a sentencing judge, refers only to the threat posed by a specific offender and not to a broader risk of undermining respect for the law. It includes consideration of the risk of any criminal activity, including property offences. In considering the danger to the community, the judge must consider the risk of the offender re-offending and the gravity of the damage that could ensue. The risk should be assessed in light of the conditions that could be attached to the sentence. Thus, the danger that the offender might pose may be reduced to an acceptable level through the imposition of appropriate conditions.
- A conditional sentence is available for all offences in which the statutory prerequisites are satisfied. There is no presumption that conditional sentences are inappropriate for specific offences. Nevertheless, the gravity of the offence is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances.
- There is also no presumption in favour of a conditional sentence if the prerequisites have been satisfied. Serious consideration, however, should be given to the imposition of a conditional sentence in all cases where these statutory prerequisites are satisfied.
- A conditional sentence can provide a significant amount of denunciation, particularly when onerous conditions are imposed and the term of the sentence is longer than would have been imposed as a jail sentence. Generally, the more serious the offence, the longer and more onerous the conditional sentence should be.
- A conditional sentence can also provide significant deterrence if sufficient punitive conditions are imposed, and judges should be wary of placing much weight on deterrence when choosing between a conditional sentence and incarceration.
- When the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
- While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present.
- Neither party has the onus of establishing that the offender should or should not receive a conditional sentence. However, the offender will usually be best situated to convince the judge that such a sentence is appropriate. It will be in the offender’s interest to make submissions and provide information establishing that a conditional sentence is appropriate.
- The deference to which trial judges are entitled in imposing sentence generally applies to the decision whether or not to impose a conditional sentence.
- Conditional sentencing was enacted both to reduce reliance on incarceration as a sanction and to increase the principles of restorative justice in sentencing.
In Proulx, there was nothing to suggest that a conditional sentence was not appropriate, even though rehabilitation had been tried unsuccessfully several times for Mr. Proulx.
As long as a judge is satisfied that the supervision component of the conditional sentence will ensure compliance, a conditional sentence may be appropriate.
To conclude, the effect of addiction on sentencing in drug cases can cause rehabilitation to be the top objective of the sentence, even though denunciation and deterrence are often the highest objective, as long as the judge believes that rehabilitation is possible and there is no mandatory minimum required by law.
Free Consultations to Those Charged With a Drug Offence
Being convicted of an offence under the Controlled Drugs and Substances Act (CDSA) can have serious consequences in terms of sentencing by the courts, international travel, employment and in society generally. This article is intended as an aid for people both before and after their sentencing so that they are aware of what those consequences are. The information here is not specific legal advice. If you have specific questions about your situation then speak to a criminal lawyer.
1. Drug Prosecutors Are Unlike Other Prosecutors
Most criminal offences in Canada are prosecuted by the local provincial Crown Attorney`s office. Drug prosecutions, however, are prosecuted by the Public Prosecutions Services of Canada. This means that drug prosecutors typically have more specialized experience in drug cases.
2. The Purpose and Principles of Sentencing in Drug Cases is Different From Other Criminal Offences
Section 10 of the CDSA outlines the differences between sentencing under the Criminal Code of Canada and sentencing under the CDSA. Subsection (1) outlines the fundamental purpose of sentencing under the CDSA, it reads:
Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
This sub-section is different from the purpose and principles of sentencing found under section 718 the Criminal Code, which reads,
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) To denounce unlawful conduct;
(b) To deter the offender and other persons from committing offences;
(c) To separate offenders from society, where necessary;
(d) To assist in rehabilitating offenders;
(e) To provide reparations for harm done to victims or to the community; and
(f) To promote a sence of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
3. Drug Cases Have Their Own Unique Aggravating Factors
There are aggravating factors which are enumerated in subsection 10(2) of the CDSA. The aggravating factors are:
Factors to take into consideration
(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person
(a) in relation to the commission of the offence,
(b) was previously convicted of a designated substance offence; or
(i) carried, used or threatened to use a weapon,
(ii) used or threatened to use violence,
(iii) trafficked in a substance included in Schedule I, II, III or IV or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years, or
(iv) trafficked in a substance included in Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years;
(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence.
If a court chooses to avoid a sentence of imprisonment, and these aggravating factors are present then the CDSA requires that a court provide reasons for that decision.
4. Flexibility in Sentencing
There are several sentences available to judges. They include:
(a) An absolute discharge,
(b) A conditional discharge,
(c) A suspended sentence (probation),
(d) A fine, or
(e) Imprisonment (jail).
As mentioned above, however, there are many circumstances where the imposition of a sanction other than imprisonment requires reasons from the judge. Also, as you will see in the table below, there are several offences which carry mandatory minimum penalties of imprisonment.
5. Not All Trafficking is Treated the Same
Trafficking carries different principles and factors than possession offences under the CDSA. Courts generally distinguish between three levels of seriousness for trafficking.
i. Social sharing,
ii. Petty retail operation, and
iii. Full-time commercial operation.
Where the offender is not addicted to the substance in question, courts generally consider him or her not worthy of sympathy. Sympathy is given, however, generally, where the offences were committed in support of an addiction.
Where there is trafficking in relation to a commercial operation, denunciation and deterrence are the paramount focus of the court.
Proof of these aggravating factors is the same as any element of an offence, beyond a reasonable doubt. Types of evidence used to establish a commercial operation are, amount and value of the drugs, method of obtaining the drugs and the method of dealing.
Other factors include:
- The offender’s level in the drug dealing organization,
- The number of transactions,
- Prior record of the offender,
- Amount of planning and deliberation (whether or not the trafficking was on an impulse or part of a plan, and
- Whether there was trafficking of other drugs at the same time.
6. The Drugs Involved Matter
Different types of drug offences have different penalties. Many CDSA offences have new mandatory minimums. The following chart is intended to assist you in understanding what those penalties may be. (These penalties are accurate at the time of publication but may change in the future).
|Offence||CDSA Section||Type of offence||Minimum Penalty||Maximum Penalty|
|Possession of marijuana (less than 30 grams) or hashish (less than one gram)||4(5)||Summary||None||six months imprisonment or $1000 fine|
|Possession of Schedule III substance (eg. mushrooms)||4(6)||Hybrid||None||If summary, six months imprisonment or $1000 fine for a first offence, one year or a $2000 fine for subsequent offences.If indictable, three years.|
|Possession of Schedule II substance (eg. marijuana or hashish)||4(4)||Hybrid||None||If summary, six months imprisonment or $1000 fine for a first offence, one year or a $2000 fine for subsequent offences.If indictable, five years.|
|Posession of Schedule I substance (eg cocaine or heroin)||4(3)||Hybrid||None||If summary, six months imprisonment or $1000 fine for a first offence, one year or a $2000 fine for subsequent offences.If indictable, seven years.|
|Trafficking in marijuana (less than 30 grams) or hashish (less than one gram)||5(4)||Indictable||None||Five years.|
|Trafficking in Schedule IV||5(3)(c)||Hybrid||None||If summary, one year or a $5000 fine.If indictable, three years|
|Trafficking in Schedule III||5(3)(b)||Hybrid||None||If summary, 18 months or a $5000 fine.If indictable, 10 years|
|Trafficking in Schedule I or II||5(3)(a)||Indictable||One year if as part of a criminal organization, it involved a weapon or violence, or has a prior CDSA conviction within the last 10 years.Two years if committed near a place frequented by persons under the age of 18, in a prison, or used the services of a person under the age of 18 years in committing the offence.||Life|
|Importing / Exporting Schedule IV||6(3)(c)||Hybrid||None||If summary, one year or a $5000 fine.If indictable, three years|
|Importing / Exporting Schedule III||6(3)(b)||Hybrid||None||If summary, 18 months or a $5000 fineIf Indictable, 10 years.|
|Importing / Exporting Schedule I or II (not marijuana)||6(3)(a)||Indictable||One year if for the purpose of trafficking, the offender abused a position of trust, or if the offender had access to a restricted area. Two years if more than one kilogram.||Life|
|Production of Schedule IV||7(2)(d)||Hybrid||None||If summary, one year or a $5000 fine.If indictable, three years|
|Production of Schedule III||7(2)(c)||Hybrid||None||If summary, 18 months or a $5000 fineIf Indictable, 10 years.|
|Production of marijuana||7(2)(b)||Indictable||Six months if five-200 plants unless the property used belonged to a tird party, endangered persons under 18 years of age, public safety hazard in residential area, or trap used, if so,nine months.One year for 201-500 plants unless above factors, otherwise18 months.Two years if more than 500 plants unless above factors, otherwise three years.||14 years|
|Production of Schedule I||7(2)(a)||Indictable||Two years unless there are the factors listed, otherwise, three years.||Life|
7. Drug Treatment Court
Many jurisdictions in Ontario have, what they call drug treatment court. You will need a lawyer to help you fill out the application for drug treatment court. The court will only accept accused’s persons who are willing to plead guilty, be subject to monitoring and whose drug charges arose out of addiction. If you successfully complete drug treatment court, you are guaranteed not to be sentenced to imprisonment.
8. There May Be Consequences for International Travel
While a drug conviction ought to have no effect on travel within Canada, there may be consequences for international travel. Every country has their own eligibility criteria for entry. In many countries, a drug conviction may render a person inadmissible. If you are sentenced on a drug offence, and want to travel to the United States of America, it is advisable to apply for a travel waiver in advance so that you are not detained and possibly turned back at the border.
9. There May Be Consequences for Immigration to Canada
There may be immigration consequences for non-Canadians. Foreign nationals and permanent residents who have engaged in “serious criminality” are not admissible into Canada.
In Section 36(1) of the Immigration and Refugee Protection Act defines “serious criminality”. It reads:
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
Many (but not all) drug convictions can be a ground for inadmissibility to Canada.
10. Criminal Records Last Longer
Record suspensions (formerly pardons) are more difficult to obtain and the waiting periods are longer than before. Now, the waiting period is five years after the completion of the sentence for a summary conviction offence and 10 years for an indictable offence.
As noted above, having a record for a drug conviction has serious consequences in terms of sentencing by the courts, travel, immigration, employment and social stigma. The recent amendments to the CDSA make imprisonment far more likely for offenders and make a record suspension far more difficult for offenders to obtain. It is for this reason that getting a qualified, experienced, diligent criminal lawyer who can help you defend a charge at the outset is recommended.
by Toronto Criminal Lawyer
What is the worst case scenario for someone accused of drug offences?
One of the most common questions I get asked by people accused of drug offences is, “What is the worst case scenario?” Receiving the maximum penalty is the worst case scenario for someone charged with only one count. But what about people accused of more than one offence?
The worst case scenario depends on the particular circumstances of each case. But the worst case scenario in general is that each count’s sentence is served consecutively or in other words, each sentence is served back-to-back, each after the last. Consecutive sentences can increase a total sentence which can be quite long indeed.
Section 718 of the Criminal Code of Canada gives two guiding principles that a judge must follow when sentencing. They are the totality principle and the proportionality principle.
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
- (a) to denounce unlawful conduct;
- (b) to deter the offender and other persons from committing offences;
- (c) to separate offenders from society, where necessary;
- (d) to assist in rehabilitating offenders;
- (e) to provide reparations for harm done to victims or to the community; and
- (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
The Totality Principle
The totality principle means that a sentencing judge must look at the cumulative (total) sentence of consecutive sentences, to make sure the total does not exceed the overall harm done by those types of offences. If the total is greater than the seriousness of the offences, a sentencing judge may have to reduce the final sentence, rather than simply adding up all the sentencing for each count. For example, if a person is charged with shoplifting from 60 different places and receives a sentence of one month for each offence, a sentencing judge would apply to totality principle, after adding them up and seeing that the total is five years, to reduce the sentence because five years for shoplifting would not be just.
The Proportionality Principle
The proportionality principle means that a sentencing judge must look at the offender’s degree of guilt or moral blameworthiness with respect to the crimes committed and the harm done to the victims. If the total sentence is greater than the offender’s blameworthiness, the sentencing judge will reduce the sentence. For example, if a person is charged with trafficking a large amount of various drugs and guns but they were a low level dealer who was paid in drugs to satisfy an addiction, the sentencing judge may reduce the sentence because they were not doing it for money, but to support an addiction.
Application of the Totality and Proportionality Principles
In the recent court case of R. v. Saikaley, 2013 ONSC 2699 Justice Lalonde discussed the totality and proportionality principles of sentencing under section 718 of the Criminal Code of Canada, as it relates to a person described as “a high level dealer.”
The circumstances of the offences were as follows: Mr. Saikailey was found guilty in Ottawa after a trial of many counts relating to conspiracy to traffic kilograms of both cocaine and marijuana. He was the leader of a criminal organization and the head of a conspiracy to distribute narcotics through the operation of a bar. He was also convicted of possession of proceeds of crime in the amount of $133, 000, which was found in a safe in his home, which is not to mention the money at the bar as well as on his person at the time of the arrest. He was also found in possession of a handgun, which was discovered in a raid in the location of where the drugs were stashed and packaged for retail sale. Another loaded handgun was found in Mr. Saikailey’s bedroom. Mr. Saikailey was found guilty of charging criminal rates of interest (greater than 60% per annum), also known as usury or loan sharking. Finally, he was found guilty of extortion for threats he made to an individual who had borrowed money from Mr. Saikailey.
Mr. Saikailey’s personal circumstances were as follows. He was 40 years old. He was twice married. He had two children from his first marriage and a third from his second, current marriage. He had a criminal record dating back to 1986. He was deemed a “repeat offender.” He has had addiction issues and limited employment history.
After the trial, the issue for Justice Lalonde was: what is the appropriate sentence to impose on Mr. Saikailey? Given the multiple counts, this issue became complex. The prosecution was arguing that a total of 29 years was appropriate but because of the totality principle, the total sentence should be in the range of 15 to 18 years, when credit for a restrictive bail (time spent on house arrest prior to sentencing) is taken into account. The defence argues that five years is appropriate because the maximum penalty for many of the offences is five years.
Justice Lalonde used a three step process to determine the appropriate sentence. First, each offence’s sentence was decided. Second, the sentences to be served consecutively, were added up and the totality principle (whether the total sentence exceeds the overall culpability of the offender) was considered. Third, the judge looked at the principle of proportionality (whether the offender’s degree of guilt and moral blameworthiness with respect to the crimes committed and the harm done) was examined in order to determine if the sentence should be adjusted.
In the first part of the analysis, many of the drug offences were either stayed because of the Kienapple principle, which prohibits being convicted of multiple criminal offences arising out of the same act, or imposed concurrently (to be served at the same time). But because the offender was a high level dealer, many of the counts’ sentences were imposed consecutively. In the second part of the analysis, the totality principle did not warrant the total sentence being lowered from 19 years because of the seriousness of the offences. In the third part of the analysis, the proportionality principle did not warrant the sentence being lowered because of Mr. Saikailey’s level of blameworthiness, as he was described in the context of “worst offender, worst offence.”
To conclude, the worst case scenario is that a person is deemed to be a “high level dealer” in a criminal organization of various firearms and drugs, charging criminal interest rates. As a result, the sentences are imposed consecutively and not lowered because of the proportionality or totality principles of sentencing.
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By Toronto Criminal Lawyer
Have you been charged with a crime after a search warrant has been used to gather evidence against you? Do you have a search warrant issued against you? Probably the most important step you can take is to speak to a criminal lawyer.
Many criminal charges arise out of search warrants being executed. In Ontario, in order to get a warrant, the police need to go to a Justice of the Peace with an “Information to Obtain” (“ITO”). The Information to Obtain must contain details of why the police believe evidence will be acquired by executing a warrant on a particular person or place. This is a reviewable decision – in other words the granting of the search warrant can be challenged in court.
Recently, in the case of R. v. Rocha, 2012 ONCA 707 , the Ontario Court of Appeal has increased the amount of specific and reliable information that must be brought before a Justice of the Peace. In Rocha, a confidential informant told the police that Mr. Rocha was dealing drugs out of his restaurant/bar. The informant had seen this activity take place. The informant also told the police that the “stash” was being kept at Mr. Rocha’s place of residence.
A search warrant was obtained and executed on Mr. Rocha’s place of residence. Drugs, cash and firearms were seized in the execution of the search warrant.
At trial, Mr. Rocha’s lawyers argued that his right to be free from unreasonchargedable search and seizure was breached and the evidence ought to be excluded. The trial judge agreed. The information with respect to Mr. Rocha’s house was not specific or reliable enough to merit a search.
The Crown appealed that decision to the Ontario Court of Appeal. The Court of Appeal denied the appeal and upheld the decision of the trial judge because the informant had never seen any drugs at Mr. Rocha’s residence. Essentially, a search warrant can only be executed when the ITO is sufficiently detailed to justify infringing someone’s liberty. Otherwise, even if they find evidence of criminal activity, that evidence will be excluded from the trial.
The Rocha case is a favourable decision for defendants who have had search warrants executed on their property where evidence was obtained by the police. It will aid defence counsel in arguing that the search was unlawful and that the evidence cannot be used against the accused at trial. So if you are an accused person as a result of a search warrant executed at your place of residence, and not based on specific or reliable information, then there is hope. The information to obtain the search warrant that the police used to get the warrant may be successfully challenged at trial. And if a Charter violation is found by the trial judge, the evidence against you may not be admissible.
Again, the author of this article highly recommends that you hire a competent lawyer to help you defend charges arising out of evidence obtained after the police execute a search warrant because the ITO may be deemed insufficient and the evidence may be excluded by a trial judge.
by Shaya Silber
We all expect that information on our computers to be kept private. This is certainly obvious for personal computers. However, can we expect the same level of privacy when computers (or other devices) are provided by our employers, and are occasionally accessed for personal use?
In R. v. Cole the Supreme Court of Canada was asked whether an individual has a reasonable expectation of privacy for information stored on a computer provided by an employer.
In that case, a high school teacher was charged with possession of child pornography. The content was found on his work-issued computer. The defendant was issued a computer for work purposes, and was permitted to use the computer for incidental personal use too. The defendant handed in his computer to the school’s IT department for maintenance. While undergoing maintenance, the IT department discovered illegal images on the computer and notified the school, who in turn notified the police. The police searched the computer without a warrant, and charged Cole with possession of child pornography.
While the Supreme Court found Cole to be guilty, they did find that his Charterrights (that protect from unreasonable search and seizure), had been violated when the police searched the computer without a warrant. The Supreme Court declined to specifically address the “finer points of an employer’s right to monitor computers issued to employees”. However, this case is interesting since it opens the door to further discussion on the issue of whether employees can expect a degree of privacy on work-issued computers.
It should be noted that in the Cole case, the employer had an explicit policy with respect to computer usage. The policy did allow for incidental personal use. It stated that personal emails remained private and that the contents of the computer was “subject to access by school administrators”. The policy further stated that “all data and messages generated on or handled by board equipment are considered to be the property of [the school board]”.
The existence of a policy to search, access, or own content on a work-issued computer may diminish an employee’s reasonable expectation of privacy. However, it does not completely remove the expectation of privacy. It will be interesting to see how future cases examine this question.
by Toronto Criminal Lawyer
Being charged with an offence under the Controlled Drugs and Substances Act can be a stressful and disheartening experience. Do not give up hope. This article is intended to be of some assistance. I am a criminal lawyer with extensive experience defending drug prosecutions. Please do not take the reading of this article as triggering a lawyer-client relationship. Each case is different and the advice that you should follow will depend on your particular circumstance. This article is merely to be used as information that can assist you in deciding whether or not you wish to hire a lawyer and what, if anything, you may wish to say to the police or anyone else.
Canada has strict drug laws, and they have recently become stricter since the enactment of the Safe Streets and Communities Act.
Politicians and courts have taken the position that drugs fuel other crimes and ruin lives. If convicted of a drug offence, you could face long periods of incarceration. In fact, many drug offences carry mandatory minimum periods of jail. These penalties, however, are often nothing in comparison to the damage to your reputation, employment prospects and general standing in the community, which can be even more severe!
It is to help you avoid this damage that I have decided to give you the following five tips:
1. You Should Get a Lawyer.
Whether you are simply under investigation or have been charged, a criminal lawyer with experience in defending drug charges can be of great assistance in navigating your way through the system. There are many pieces of advice that will be gained by hiring a criminal defence drugs lawyer who will review your particular circumstance. A lawyer who has experience in defending drug cases, like myself, will know what tactics have worked in the past for his or her clients. A criminal lawyer that you trust has the time and experience to devote to your case is essential if you want to avoid a conviction.
2. Do Not Speak to the Police or Anyone Other Than Your Criminal Lawyer About Your Case
While there are certain pieces of information that you must provide the police so that they can identify you, for example, your name, date of birth and address, you do not have an obligation to provide an answer to any other questions. The police are permitted to lie in the course of an interrogation that can go on as long as they like. The police have the singular goal of obtaining information that will assist them in their investigation of a crime occurring – a confession being the best piece of evidence. False confessions are one of the leading causes of wrongful convictions.
A lawyer–client relationship is privileged, meaning nothing you say to your lawyer can be repeated to anyone else, including the police or the courts, unless that privilege is waived by you. This privilege can be waived if you bring anyone else into the conversation. For example, if you bring a friend into a meeting with your lawyer, the police and the prosecution can ask that friend what was said in the meeting. Needless to say, if you say anything to anyone other than your criminal lawyer, that person may also be called as a witness against you in your drugs case.
What to Say to the Police in an Interrogation
The best answer to a question by the police in an interrogation room is “lawyer.” If that does not satisfy them, put your head down on the table and rest. The worst answer to a question is a lie. If you say, for example, “I don’t know anything about it,” or, “I am not involved,” and that is not true, that can also be used as evidence of a new offence of mischief by providing false evidence. Again, do not say anything to the police.
3. You Will Need A Release Plan
Many drug offences, like drug trafficking, importing or exporting and producing drugs are “reverse onus,” offences. This means that simply by being charged with the offence requires you to “show cause” why you should be released from prison before your trial. This will require the crafting of a release plan to be presented to the Ontario Court of Justice, often to a Justice of the Peace.
A good release plan will involve a “surety.” A surety can be thought of as a civilian jailor – a person who will promise the court that they will make sure that you attend court as required and that you do not commit any further offences and follow the release plan while you are out of custody. Often a surety is a family member or a good friend. A surety promises the court money, either with deposit or without deposit and that if you do not attend court as required or commit an offence, that money may be forfeited after a hearing. Often the court will want you to live with your surety so that they can supervise you.
If you are denied bail at the first instance, you may apply as of right for a bail review in the Superior Court. These hearings are often more difficult because you will have to show why the lower court made a mistake. You will again have to provide a surety. If the problem with the initial bail hearing was with the proposed surety, you will have to show why the new surety is better. A criminal defence lawyer with experience in drug offences will help you craft a release plan.
4. Your Charter Rights May Have Been Violated
All police interactions with the public are subject to review by the courts. If your rights under the Canadian Charter of Rights and Freedoms have been breached, any evidence obtained therefrom may be inadmissible or thrown out. A criminal lawyer with experience in making Charter applications is vital to an accused person who thinks their rights, whether to be free from illegal search and seizure, to a lawyer, to be free from arbitrary detention, to a trial within a reasonable time, or even to life, liberty and security of the person and not to be denied thereof except in accordance with the principles of fundamental justice, have been violated. The rules of criminal procedure at both the Superior Court and at the Ontario Court of Justice have recently changed so it is important to make sure you get a criminal lawyer who can make an argument in the proper format, to have the best chance of success. A Charter application will inevitably be a highly individualized process, it is important to be frank and thorough with your lawyer at the earliest opportunity so that your defence is of the highest quality and has the best chance of success.
5. You May Be Able To Get Your Confiscated Property Returned to You
Often in drug cases several things will be seized by the police: the drugs themselves, real property, cell phones and pagers, cars, and even cash. This does not mean that you lose all interest in this property. The drugs themselves, unless you have a medical prescription for them, are almost always forfeited to the Crown and destroyed. However, a criminal lawyer can assist you in recovering much of the other property. There are jurisdictional issues and standard of proof issues that can be difficult to understand and navigate if you are not represented by an experienced criminal lawyer.
Again, if you have been charged with a Controlled Drugs and Substances Act offence, do not give up hope. There are lawyers who dedicate themselves to assisting people like you work through this difficult time.
Free Consultations with a Criminal Lawyer in Toronto with Experience in Drug Offences
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What is the Provincial Offences Act
The Ontario Provincial Offences Act governs how charges are processed and prosecuted in the Ontario courts. It is a law that deals with procedures for provincial. The Provincial Offences Act applies to all Ontario statutes (and regulations), municipal by-laws, and some federal contraventions.
For example, the Provincial Offences Act governs the proceedings of individuals and corporations charged with offences under the Highway Traffic Act,Compulsory Automobile Insurance Act, Liquor Licence Act, and Trespass to Property Act.
Lawyers in Toronto, Canada
Zvulony & Co. P.C., Toronto, Ontario, Canada