http://www.thestar.com/news/gta/2013/09/30/attorney_generals_office_using_collection_agencies_to_collect_victim_surcharge_fines_from_criminals.html
Author Archives: Prince Law Office
Cell Phone Searches
The Court of Appeal has recently decided that the search of an unlocked cell phone can be allowed as an incident to an arrest. Given the amount of information most people carry in the phones – phone numbers, photos, pictures, games, passwords, favourite web site, emails and texts. This is information that they want to keep private, if it was a physical item, it could be a journal, calendar, or file cabinet. There is a privacy right in the the journal, file cabinet that is closed, why not a cell phone? Gone are the days when we just used our cell phones to make telephone calls. This ruling does seem difficult to understand given this case and this cell phone. Perhaps the Supreme Court can clarify the privacy rights one should have in their property.
Self Defence
Recent events have shown that self -defence arguments are not easy to define. The Florida George Zimmerman case will be debated for years to come -on the issues of self defence laws, gun control, and race issues.
Here in Canada, a store owner thought that the only way he could protect his property was to tie up a repeated thief. He was later acquitted of charges of Assault, and Forcible Confinement.
A restaurant owner is facing scrutiny for his actions in defending his property. As the case winds its way through court hopefully he will be acquitted if he was truly defending his property
Revisions are planned to the Criminal Code self defence provisions for 3 reasons.
1. The sections s 34-37 are very confusing for counsel, judges and juries
2. The power of citizens to arrest someone is restricted to arresting only those actually committing the crime or committing the crime in relation to the citizen’s property
3. The reality that police officers sometimes can not attend during the commission of the crime.
The Bill proposes the use of reasonable force – which would depend on factors such as: the nature of the force used, whether there were other options, and the history of the relationship between the parties.
As for property, those in “peaceable possession” of a property would be allowed to take reasonable action — including the use of force — “to prevent their property from being taken, damaged or trespassed upon”.
The use of deadly force, however, would only be permitted in the most exceptional circumstances, such as protecting someone from death or grievous bodily harm.
The link to the Bill is at the end of the post.
http://news.nationalpost.com/2012/04/25/was-restaurateur-who-threw-spice-in-mans-face-defending-his-property-or-assaulting-an-innocent/
http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?Language=E&ls=c26&Parl=41&Ses=1&source=library_prb
Let sleeping guns lie…
A young Toronto student, brings a gun to school. In the future, he should call an adult or police officer and not touch it as he could get hurt or charged.
http://www.theglobeandmail.com/news/national/toronto/boy-brings-gun-he-found-on-street-to-school/article2413963/
Mandatory Minimum Sentences
A recent event has shown the general public the factors a judge takes into account, in sentencing a criminal offender. Mr. Beech, who had been sentenced by His Honour Mr. Justice Atwood, in Brampton Court of Justice, returned to the court to thank the judge.
First of all, it is very rare that anyone is happy with a sentence that is received, often the accused thinks it is too harsh, while the victims and public think it is too lenient.
When the Mr. Justice Atwood was sentencing Mr. Beech, on gun and drug charges, he took into account the proposed sentences by both the Crown and Defence Counsel, and sentenced Mr. Beech to 90 days jail on weekends – an intermittent sentence. Mr. Justice Atwood took into account the positive steps that Mr. Beech had taken between the crime and sentencing, and the fact that he was a single support parent. Seven years later, Mr. Beech returned to court to thank the judge and to tell the judge the sentence made a great difference in his life. He turned his life around and became a productive member of society.
Of course there are very few offences that have a mandatory minimum: murder, gun offences, impaired driving, that reflects society’s abhorrence. The majority of the offences, the judge looks at the crime, how it was committed, the impact on the victim, mitigating and aggravating factors, such as a previous record, age, challenges (drug, alcohol addiction) The judge also looks at the individual, why this offence was committed, what has changed since the offence -eg drug treatment, school, counselling etc. All of these factors are used to create an appropriate sentence.
The public believes that more mandatory sentences might be a good thing. A major principle in sentencing is rehabilitation – creating a better person for the community. By not taking into account the personal factors of the offender, and the offence, rehabilitative steps may not be conducted prior to sentencing. It will not allow leniency in cases where it is truly needed such as in Mr. Beech’s case. Mr. Beech’s sentence provided both punishment and an opportunity for rehabilitation that he used to better himself and his family, and return to court as a productive member of society.
The full story can be accessed by the web link below.
http://www.thestar.com/news/article/1117892–convicted-man-returns-to-thank-the-judge
Supreme Court weighs in on youth statements
A Recent Decision from the Supreme Court
At the end of August 2008, the Supreme Court released the decision Regina v. L.T.H. 1This case addresses the standard of proof needed by the Crown, to introduce a statement of a young person, made to a person in authority, pursuant to subsection 146 of the Youth Criminal Justice Act, (the “YCJA”)
L.T. H. was charged with Dangerous Driving Causing Bodily Harm, following a police chase. He was taken into custody, and given several opportunities to consult a lawyer, which he declined. 2 About twelve (12) hours after arrest, he was interviewed by a police officer.3 Prior to the interview, a Young Offender Statement Form was reviewed. L.T.H. He stated he understood his rights, but did not wish to call a lawyer, a parent or other person, or have any of these adults present during the interview. 4
During the reading of the form, the youth interrupted and stated that he would not answer all of the questions. During a videotaped interview, an inculpatory statement was given by the youth, which was the basis of the Crown’s case.5 At trial, the trial judge found that the youth, who had a learning disability, as testified to by his mother, did not understand his rights. There was doubt as to whether the informational portion of section 146 YCJA had been followed. The youth’s video statement was excluded, despite a signed waiver form. The Crown appealed the acquittal, and a new trial was ordered. On further appeal to the Supreme Court, the acquittal was restored.
The standard required for obtaining a youth statement is qualitatively different from a corresponding adult statement, in part to acknowledge the developmental challenges of a young person and the impact of authority figures, on the making of a statement. Section 146 of the YCJA states that the general law relating to the admissibility of statements applies in (1). Further, criteria to be met: such as a clear explanation to the young person “in language appropriate to his or her age and understanding” in relation to making a statement,is noted in subsection (2)(b), or a right to consult counsel a parent or another person (2)(b)(iv), and that they are under no obligation to make a statement (2)(b)(i).
Fish J, writing for the four person majority, states that for the prosecution to succeed with adducing a statement, proof must be put before the court, that the information contained in section 146 YCJA, was given, in an age appropriate way, taking into account the youth’s personal characteristics (such as education level, language, familiarity with the criminal justice system 6) but also that it was in fact understood (emphasis in original) by the young person. If the Crown can indicate, beyond reasonable doubt, that the section 146 information had been provided to the young person, an inference can be made, in absence of evidence to the contrary, that the young person did in fact understand his or her rights.7
This case is a must read, for two reasons. First, for the proposition that a standardized form used for the purpose of a young person providing a statement by waiving their right to silence, may often fall short of meeting the requirements of section 146 of the YCJA. 8 This case puts police departments on notice, that an opinion has to be held by the police officer, about the capacity of the young person to understand their rights. It is clear that if the rights have been explained to the young person, as opposed to just merely reading the form, it is then presumed that the youth understood his rights and validly waived them.
Second, this case clearly states that the standard of proof for this section is beyond a reasonable doubt. Although, YCJA does not indicate the standard of proof required for this section, a single standard is more advantageous 9 in fulfilling the declaration of principles of the YCJA as a whole, and ensuring that this section offering enhanced protection, is complied with. This standard is not deemed onerous, as it can be met quite easily upon sufficient proof.Adherence to the requirements of section 146 of the YCJA is not for the rare occasions when the admission of the evidence may itself have a conclusive effect with respect to guilt, 10 but for all statements of a young person.
1 2008 S.C.C. 49
2 Paragraph 10
3 Paragraph 11
4 Paragraph 11-12
5 Paragraph 13-14
6 Paragraphs 23, 30
7 Paragraph 8,
8 Paragraph 27–28
9 Paragraph 47
10 Paragraph 58
Client Cases
Regina v. S. G. Aggravated Assault, Suspended Sentence and Probation
Regina v. P.S. Assault with Weapon, Diversion
Regina v. K.W. Domestic Assault, Withdrawn
Regina v. R.A. Domestic Assault with Weapon, Acquittal
Regina v. M. J. (Youth) Robbery with Weapon, Probation
Regina v. C.S. Attempt Break and Enter, Conditional Discharge
Regina v. S.W. Fraud Under, Possession of Credit Card Data (21 charges), Conditional Discharge
Regina v. T.T. Possession of Firearms, Peace Bond
Regina v. N.A. Careless Driving, Drive Under Suspension (HTA), Withdrawn
Regina v. M. B. Break and Enter x2, Theft Under, Fail To Appear, Conditional Discharge
Regina v. T.T. Possession of Prohibited Firearm in a Car – Withdrawn
Regina v. H.O. Robbery – plea to Theft Under