A recent case before the Court of Appeal upheld the defendant’s right to counsel. The defendant had been arrested with his girlfriend and friend after the police executed a search warrant at his house. 73 grams of cocaine, 55 grams of marihuana and over $5,000 were found. Although the girlfriend and the friend were able to contact duty counsel, the defendant was held in custody for at least 3 hours before the police attempted to get him duty counsel and none of the police were able to confirm whether he spoke to duty counsel or not.
The right to counsel the appeal court said is very serious and significant and the only proper remedy was to overturn his conviction and enter acquittals.
A recent case from Alberta has changed the way the criminal courts will look at delay. The Supreme court recognized that criminal charges affects the person charged, the victims and witnesses and society wanting a quick resolution of matters. Due to longer and more complex trials, self-represented persons, reduction of legal aid certificates and not enough courts and judges, trials are delayed months and years, with the accused person spending months and years on restrictive bail conditions.
Jordan, 2016 SCC 27 seeks to change all that.
There are four issues when assessing a search warrant under the Controlled Drugs and Substances Act or Criminal Code:
1. was the information supporting the Information to Obtain, credible, corroborated and compelling?
2. was evidence gathered in accordance to the Charter?
3. was the search warranted executed in accordance with the Charter??
4. where there any other Charter breaches?
How the search is conducted is important, did they go to the right place, at the right time?
After the search, defence counsel can challenge the manner of the search, whether the search should have been authorized and seek to exclude what was found in the seach, be it firearms, drugs, or other things.
If you have experienced a search warrant, contact our office as soon as possible.
1. If you are stopped for drunk driving and you have alcohol visible
2. If you are stopped and there is drugs visible
3. If you are arrested for a Highway Traffic Act, Criminal Code, Controlled Drugs and Substances Act charge(s) and the police seize your car.
4. If you consent to the search
In the Greater Toronto Area (GTA) search warrants are being used more and more in investigations of gun possession. Often the search warrants are obtained when police officers are given information from confidential informants (usually citizens). A Justice of the Peace, usually hears the information and decides to grant or deny a search warrant for a particular place. Often, the police attend and find guns and drugs. Even if the search warrant should not have been provided the court may still admit the firearms and illegal drugs found from an illegal search.
Each case depends on its facts, the law, how police conducted their investigation and of course the decision maker. It is important to review all the evidence with your lawyer and provide any information (whether you think it is important or not), to defend your case.
There is always discussions about the role of the criminal justice system and how the courts go about finding a defendant responsible for their alleged crimes.
Until a defendant enters an informed guilty plea – stating I understand that I have done what the Crown has said I have done, I do not wish to challenge the evidence and I understand that I will be punished, everyone charged is presumed innocent.
Is this to let scoundrels get off on a technicality – No. This is the system for everyone charged in Canada. Why is it so you ask?
Imagine that you live in a small town. No one likes you because you are different. One day the well is filled with old tires and no one can get any drinking water. You and your family were sleeping when it happened, but who do you think would get blamed first? That is right, you would and no one would believe you no matter what you said and how often you denied it.
Is that fair? So instead of making you prove why you are innocent – proving a negative. Someone in the community has to prove a positive – who did it. This can be done using pictures, statements from others who did or did not see what happened, finger prints, foot prints, what ever is needed.
At the end of the day, if there is evidence, showing almost 100% a stranger did it, you will be found not guilty.
Is that not a better system?
There has been a lot of commentary in the media about racial profiling and carding by police. Which means that the police are focusing on a particular group or race, stopping and investigating these group members more than other groups. Recently, the police have been using these stops to gather information about members of the group, their friends and associates- that is carding them (filling out information). The police have stated that they need these investigative stops and information to know who is doing what for future cases.
Members of the group that the police focus on, are concerned and want profiling and carding to stop. Although, the Toronto Police Service have stopped the practice, municipalities such as Peel still card.
What does that mean for a community member. The Charter of Rights and Freedoms states that the you have a right to not be subject to unreasonable stops and searches, and you have a right to be told of why you are being stopped. However, the police have a right to investigate criminal matters that they are called about and to stop and investigate anyone, to find out if they are the culprit, or know something about the matter. Which means the police have a right to stop and investigate a particular matter.
If the police, are not investigating a particular recent offense, you have the right to not answer any questions, (such as providing your name or address) or to not consent to the search of your person (pockets, bags, knapsacks) and walk away.
You can ask the officer for their badge number and name, ask for their business card. If not provided to you, take a note of the squad car license plate, the time, date and area you are in.
With this information, you can make a complaint to the police division.