My Website
  • Home
  • About
    • Stephen Jack
    • Why You Need a lawyer?
    • Choosing the Right Lawyer
  • Areas of Practice
  • Fee Structure
  • FAQ
  • Resources
  • Contact
  • Blog
    • Criminal Law
    • Lawyer Client Relationship
    • Impaired Driving
    • Assault
    • Traffic Offences
  • Disclaimer

February 23, 2015 by Stephen Jack Leave a Comment

Charged With Domestic Assault? 5 Things You Need To Do

domestic assaultWhile there is no specific offence for domestic assault in the Criminal Code of Canada, assault charges that are domestic in nature are taken very seriously by the police, the Crown Attorney’s Office, and our courts. One reason why domestic assault charges are taken seriously is because of how widespread the problem of domestic violence is in this country. Most Crown Attorney Offices now have lawyers designated to deal exclusively with domestic assault cases.

Getting charged with domestic assault and being convicted for a domestic assault can have very serious and long lasting consequences. If you have been arrested and charged with domestic assault, you need to know what you have to do to successful defend your charges and avoid receiving a criminal record.

  1. Speak to a Criminal Lawyer

While this might seem like an obvious thing to do, it is amazing how many people still do not exercise their right to speak with a lawyer when they have been charged with domestic assault. Anytime you are arrested, you have several fundamental rights afforded to you under the Canadian Charter of Rights and Freedoms, including the right to speak to a lawyer without delay.

A criminal lawyer will be in the best position to provide you with immediate legal advice upon you being arrested and charged with domestic assault. For example, you have a right not to make a statement to the police, and it is always recommended that you exercise that right and remain silent. While the police may tell you that this is your chance to tell them your side of the story, the reality is that whatever you tell the police is not going to change your situation or result in the charges being withdrawn. Click here for more information on the Challenges of Getting Domestic Assault Charges Withdrawn.

When you are arrested and charged with domestic assault it is very likely that you will be held for a bail hearing. By exercising your right and speaking with a criminal lawyer, a lawyer can advise about a bail hearing and what you need know and what you need to do to ensure you are granted bail. A lawyer may also be able to contact a friend or family member who can act as your Surety and speak with the Crown Attorney to negotiate the terms of your release.

  1. Comply with Your Bail Conditions

Once the Court has granted you bail and you are released from custody, it is very important that you comply with your bail conditions. Anytime you fail to comply with your bail conditions, you are subject to further criminal charges. If you are arrested and charged with failing to comply with your bail conditions, you are going to be held for another bail hearing, and this time the onus is on you to prove to the court why you should be granted bail again. Being charged with domestic assault is already bad enough; you do not need to make things worse by being charged with failing to comply with your bail conditions.

Complying with your bail conditions requires that you understand your bail conditions. For example, anytime you are charged with domestic assault one of your bail conditions will be that you not have any communication or contact, directly or indirectly with your partner or spouse. This means that you cannot use a third party to contact or communicate with your partner or spouse. It also means that you cannot post messages on Facebook or Twitter directed at your spouse or partner and knowing that he or she is likely to see those messages.

Understanding your bail conditions is essential to ensuring you comply with them. A criminal defence lawyer will be able to explain all your bail conditions to you, which brings us to the third thing you need to know if you have been arrested and charged with domestic assault: Hiring a Criminal Defence Lawyer.

  1. Hire a Criminal Defence Lawyer

It is always recommended that you hire a criminal defence lawyer as soon as possible. The longer you wait to hire a lawyer, the more opportunity there is for something to wrong. There are a couple benefits to hiring a lawyer right away. First, when you hire a lawyer you have immediate access to legal advice and someone with experience dealing with these types of charges. Understanding the criminal justice system and how a criminal charge proceeds through our courts can be confusing and overwhelming. By hiring a lawyer you can get answers to all the questions you have about your charges and how they will be dealt with. Hiring a lawyer right away also allows a lawyer to appear in court on the first court date so that you don’t have to.

Hiring a criminal defence lawyer will also give you the best opportunity to successfully defend your charges. A lawyer will know how to negotiate a resolution on your behalf and know whether you should go to trial or not. If you choose not to go to trial or it is best that you do not go to trial, then a lawyer will also know what you need to do in order to resolve your domestic assault charges, including whether you need to attend counselling, complete volunteer work or any other requirements that may be necessary. If you do go to trial, a lawyer will know how to prepare you for trial, what questions to ask each witness, what witnesses to call, what defences to present, and how to advocate for you. Click here for more information on Domestic Assault Trials.

Simply put, when you hire a criminal defence lawyer, you are hiring someone to advise you of your rights, what your legal options are, someone to advocate on your behalf and achieve the best possible result for you, and also someone to guide you through the criminal justice system and ensure you are treated fairly.

Domestic assault charges can have very serious consequences. As a result of being charged with domestic assault, you will not be able to return home. If you have children, this can also have an impact on them. Your bail conditions can also make it more difficult for you to see your children while you are on bail. A conviction for a domestic assault can result in a criminal record, the loss of your employment, can prevent you from getting certain types of jobs in the future, and could prevent you from travelling to the United States.

  1. Only Speak with Your Lawyer about Your Charges

It is not to your benefit to speak with anyone about your charges except your lawyer. Only if your lawyer advises you to speak with another individual about your charges should you do so. Family members, friends, co-workers, etc., are not going to be able to resolve your charges or get them withdrawn. Talking about your domestic assault charges with other individuals only draws more attention to you and your charges, and you cannot control whether a friend, family member of co-worker tells anyone else about your charges. While it may not seem fair or right, the reality is that many people will often view you and treat you differently if they know you have been charged with a criminal offence.

  1. Write Down Your Version of the Events

While it is never recommended that you provide the police with a statement, it can be very helpful if you write down your version of the events as soon as possible after you have been released from jail. Over time memory fades, and writing down your version of the events can help you recall exactly what happened at a later date. Do not share this documentation with anyone except your lawyer, and make sure no one else can access this information.

Contact

If you have been charged with domestic assault contact me immediately and arrange a free consultation. I will explain to you;

  • what your legal rights are
  • what your options are
  • what is the best and worst case scenario
  • what I recommend you do
  • how much it could cost to resolve your charges

Learn more about Domestic Assault or see FAQs on Domestic Assault

Filed Under: Assault

February 1, 2015 by Stephen Jack Leave a Comment

Stunt Driving and Racing

Stunt Driving

A conviction for Stunt Driving or Racing has both serious personal and financial consequences.

Stunt Driving and Racing

Stunt Driving and Racing are very serious offences and can have very serious consequences if you are convicted. Unlike Dangerous Driving or Impaired Driving which are criminal offences, stunt driving is an offence under section 172 of the Highway Traffic Act. However, even as a traffic offence, Stunt Driving and Racing carry some significant penalties, including a minimum $2,000 fine. The substantial fines and potential for a driver’s licence suspension means that it is essential you retain legal representation to assist you resolve the charge against you.

What is Stunt Driving and Racing?

Section 172 of the Highway Traffic Act simply prohibits Stunt Driving and Racing. The definitions for Stunt Driving and Racing can be found under the Highway Traffic Act Regulations, specifically Ontario Regulation 455/07.

Stunt Driving can include any of the following acts;

  • Driving a motor vehicle 50km/h over the posted speed limit.
  • Driving a vehicle with an intention to lift some or all of the tires from the surface of the road. (For those driving a motorcycle, lifting either your front or back tire off the surface of the road is considered stunt driving.)
  • Driving a motor vehicle with the intention to cause one or more of the tires to lose traction with the surface of the road. (This could include squealing your tires from a stopped position.)
  • Driving a vehicle with the intention of preventing another vehicle from passing you. (For example, a vehicle pulls into another lane to pass you and you speed up to prevent the vehicle from passing you.)
  • Driving a vehicle with the intention to spin the vehicle without maintaining control of it.
  • Driving a motor vehicle while there is a person in the trunk.
  • Driving a vehicle while not sitting in the driver’s seat. (This would include a passenger momentarily taking control of the steering wheel for the driver.)

These are just some of the examples of Stunt Driving as defined by the Regulations under the Highway Traffic Act. For a complete definition of Stunt Driving, following the link.

Racing is defined as;

  1. Driving two or more motor vehicles at a rate of speed that is a marked departure from the lawful rate of speed and in a manner that indicates the drivers of the motor vehicles are engaged in a competition.
  2. Driving a motor vehicle in a manner that indicates an intention to chase another motor vehicle.
  3. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,
    • driving a motor vehicle at a rate of speed that is a marked departure from the lawful rate of speed,
    • outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed, or
    • repeatedly changing lanes in close proximity to other vehicles so as to advance through the ordinary flow of traffic while driving at a rate of speed that is a marked departure from the lawful rate of speed.

Penalties for Stunt Driving and Racing

Simply being charged with Stunt Driving or Racing has significant consequences. If you are charged, you will be required to surrender your driver’s licence and it will be suspended automatically for 7 days. Your motor vehicle will also be towed and impounded for a period of 7 days. You will also have to pay the fee for having your vehicle impounded for 7 days.

Upon conviction for Stunt Driving or Racing, you are subject to a minimum fine of $2,000 and it could be as high as $10,000. You are also subject to a jail sentence of up to 6 months. Your driver’s licence may also be suspended for up to 2 years for a first conviction, and up to 10 years for any subsequent conviction occurring within 10 years of your first conviction.

Additional Consequences if Convicted of Stunt Driving or Racing

In addition to the penalties listed under the Highway Traffic Act, a conviction will also result in a significant increase in insurance costs. If your licence is suspended you will also have to deal with not being able to drive for a period of time. A driver’s licence suspension can have a significant impact on your personal life, as well as your employment. In addition, you will also have to pay a $150 administrative fee to have your driver’s licence reinstated.

Defending Charges of Stunt Driving and Racing

What defences may be available to you on charges of Stunt Driving or Racing will depend upon the facts of your case. For example, if you are charged with driving 50km/h or more over the speed limit, the fact that you did not realize you were going that fast or that you did not intend to drive that fast is not a defence. In these circumstances, a defence that may be available to you is the accuracy and reliability of the radar equipment.

For other forms of Stunt Driving, such as losing traction, causing the vehicle to spin, or causing one or more tires to be lifted from the surface of the road, your intention at the time you committed this act could provide you with a defence. In these cases, the surrounding circumstances (weather conditions, road conditions, location or road you were driving on) could have a significant impact on whether a defence is available to you.

A knowledgeable and experienced lawyer will be in the best position to advise you of any defences available to you and defend you against your charges.

Contact

Stunt Driving and Racing are serious charges and a conviction will have significant financial and personal consequences. Make sure your rights and interests are represented. Contact me today if you have been charged with Stunt Driving or Racing. Arrange a free consultation now.

Also read about Dangerous Driving and Careless Driving.

Filed Under: Traffic Offences

October 22, 2014 by Stephen Jack Leave a Comment

Suppressing Records for Vulnerable Sector Checks and Police Information Checks

police checkVulnerable Sector Checks and Police Information Checks are being relied upon more and more by employers and volunteer organizations. While there are some police agencies that will use discretion when determining whether to disclose non-conviction records or other contact with the police, there are still other police agencies that appear to disclose any and all records for a Vulnerable Sector Check or Police Information Check. For many of you, a mark on your Vulnerable Sector Check or Police Information Check could prevent you from gaining employment or could threaten your current employment.

How Can I Find Out If Anything Will Appear On A Vulnerable Sector Check Or Police Information Check?

The only way to know whether any record will appear on either of these background checks is to apply and have the background check completed. Your local police agency will not be able to tell you whether any records will or will not show up on these background checks.

A Non-Conviction Record Appears On My Vulnerable Sector Check / Police Information Check. How Can I Get It Removed?

If a non-conviction record appears on your Vulnerable Sector Check, you must apply to your local police agency to have the record suppressed. The first thing you will need is a copy of your Vulnerable Sector Check which discloses the non-conviction record. You will need to know what factors your local police agency will take into consideration when making a decision whether to suppress your non-conviction record from a Vulnerable Sector Check. This is where a lawyer can assist you and could make the difference between whether you get your record suppressed or not.

When applying for records to be suppressed from a Vulnerable Sector Check, a criminal lawyer is going to be in the best position to know what information you need to include, what information to leave out, and what additional information about yourself, although not required, may be helpful. Equally important, a lawyer will know how to present all this information in an application and will know exactly how to advocate on your behalf to ensure you have the best possible chance of getting your records suppressed.

In circumstances where a non-conviction record appears on your Police Information Check, you may be able to have this record removed by simply applying to have your fingerprints, photographs and record of disposition destroyed with the local police force and the RCMP. Be prepared though, this process may take anywhere from 6 months to 1 year to have completed. You should also remember that even if you have these records destroyed with the local police and the RCMP, these records may still appear on a Vulnerable Sector Check.

What Is A Vulnerable Sector Check?

A Vulnerable Sector Check is the most detailed and comprehensive police background check that can completed. The purpose of a Vulnerable Sector Check is to assist employers and volunteer organizations determine whether there are any concerns with respect to a prospective employee or volunteer working in a position of trust or authority with a vulnerable population. A  Vulnerable Sector Check can disclose any prior criminal convictions, any contact a person has had with a local police agency, as well as information about non-conviction records which may have otherwise been destroyed or purged. A Vulnerable Sector Check can also disclose convictions for some sexual offences which a person has received a pardon for.

If you live outside of Toronto, then you can either attend the appropriate police station to obtain a Vulnerable Sector Check form or you may be able to print one from the police agency’s website. If you live in Toronto, you cannot attend a local police station to obtain a Vulnerable Sector Check form. Your employer or volunteer organization will have been provided the application form from the Toronto Police Service. You both must sign the form and then return it to the Toronto Police Service.

What Is A Police Information Check?

Depending on what police agency you are dealing with, a Police Information Check may also be referred to as a Police Background Check or a Criminal Information Request. A Police Information Check will disclose criminal convictions, local records of criminal charges that did not result in a criminal conviction and any other contact you may have had with local police agencies.

Please note that some police agencies also have a Criminal Record Check, which is entirely different from a Police Information Check. A Criminal Record Check only discloses the RCMP’s records for criminal convictions and does not include records of local police contact.

Contact

Getting a non-conviction record suppressed or purged from a Vulnerable Sector Check or a Police Information Check can take time in some circumstances. Get started today getting your non-conviction record suppressed. Contact me immediately and arrange a consultation.

Read more about Non-Conviction Records, Police Record Checks, Destroying Fingerprint Records and Criminal Record Suspensions

Filed Under: Criminal Law

October 19, 2014 by Stephen Jack Leave a Comment

Dangerous Driving, Street Racing and Licence Suspensions

dangerous drivingDangerous driving, unlike other less serious traffic offences, is a very serious offence that can result in a penalty much worse than a small fine. A conviction for dangerous driving will result in your driver’s licence being suspended and in some circumstances you could receive a jail sentence. Do not put yourself in the situation where you are trying to defend a dangerous driving charge on your own.

What Is Dangerous Driving?

The first thing you need to know is that dangerous driving is a criminal offence, unlike many other traffic offences which are provincial offences. Dangerous driving can be found under section 249 of the Criminal Code of Canada. The definition of dangerous driving is worded very broadly, which can allow the police to charge someone with dangerous driving in many different scenarios.

To be convicted of dangerous driving, the Crown Attorney must prove beyond a reasonable doubt that you operated a motor vehicle in a way that was dangerous to the public. Whether you drove in a way that was dangerous to the public is determined by considering all of the circumstances, including;

  • The nature, condition and use of the roads where you were driving.
  • The amount of traffic at the time you were driving or the amount of traffic that could reasonably be expected at that time.

What is important here is the manner in which you drive your vehicle and not any actually consequences of the way you drove your vehicle. This means that the Crown Attorney does need to specifically prove that you endangered the safety or the life of another individual. The Crown Attorney only needs to prove that you drove your vehicle in a way that was dangerous to the public or in a way that was dangerous to the public that could have reasonably have been expected to be in the vicinity at the time.

The Crown Attorney also does need to prove that you specifically intended to drive dangerously. The way in which you drove your vehicle will be compared with the way in which a reasonably prudent driving would have driven in the same circumstances. To be convicted of dangerous driving, the Crown Attorney needs to prove that your driving was a “marked departure” from the reasonably prudent person. A “marked departure” means that the departure from the reasonably prudent driver must be more than a minor or insignificant departure.

Examples of Dangerous Driving

You can be convicted of dangerous driving in circumstances where you knew or ought to have known that it was likely you would fall asleep while driving. Examples can include circumstances where you had not sleep for an extended period of time or where you took medication which can make you drowsy.

Aggressive driving can easily result in a dangerous driving charge. Aggressive driving can include passing another vehicle on the road in an unsafe manner, making unsafe lane changes , tailgating or following too closely, and ignoring traffic signs.

Our Courts have ruled that in some circumstances excessive speeding alone can constitute dangerous driving. The rate of speed will be a factor, however there are other factors that may be considered, such as the type of road you were driving on, your ability to maintain control of the vehicle, and your ability to slow down or stop your vehicle.

Dangerous Driving While Street Racing

Section 249.4 of the Criminal Code makes dangerous driving while street racing a criminal offence. While this offence requires the Crown Attorney to prove both that you were street racing and driving dangerously, the penalty is much greater if a person is injured. Where a person commits dangerous driving while street racing and causes the death of another individual, the maximum penalty is life in prison. In circumstances where bodily harm is caused, the maximum penalty is 14 years imprisonment.

What Is The Penalty For Dangerous Driving?

The penalties for dangerous driving are very serious. The potential future implications of a conviction for dangerous driving are equally as serious. A first time conviction for dangerous driving results in a mandatory 1 year licence suspension under the Highway Traffic Act. Section 259 of the Criminal Code also permits a judge to make an order suspending your licence for up to 3 years for a first offence where no one was injured. Upon conviction for dangerous driving, you may also be subject to a jail sentence of up to 5 years and subject to a fine.

Anytime a person is injured or killed, the penalty for dangerous driving increases significantly. The penalty for dangerous driving causing bodily harm has a maximum penalty of 10 years imprisonment, while dangerous driving causing death carries a maximum penalty 14 years in jail. Similarly, a longer licence suspension is possible under the Criminal Code where bodily harm or death occurs.

Personal And Financial Implications

A conviction for dangerous driving has similar personal and financial consequences as a conviction for drinking and driving. You can expect to pay higher insurance rates for several years if you are convicted of dangerous driving. If your job requires that you drive, a conviction could result in you losing your job. A conviction could also prevent you from getting hired in the future. There is also the potential embarrassment of having your family and friends know your licence has been suspended because you were convicted of dangerous driving.

Contact

Being charged with dangerous driving is stressful enough. Leave it to a criminal defence lawyer to deal with your charge and get you the best possible result. Contact me immediately if you have been charged with dangerous driving or stunt driving. Arrange a free consultation today.

Read about Careless Driving and other Traffic Offences

Filed Under: Criminal Law, Traffic Offences

September 3, 2014 by Stephen Jack Leave a Comment

Defending Mischief Charges, Even For Personal Property You Own

mischiefMischief is a criminal offence under section 430 of the Criminal Code of Canada. Mischief is a very broad charge that can include all sorts of conduct. There are also a number of different ways property can be affected under mischief charges. Criminal charges of mischief often involve the destruction of property. Mischief can also include actions that render property inoperative or ineffective, or actions that interfere with the lawful use or enjoyment of the property.

However, what happens when the property you damage is your own property, or property you share with someone else?

Can I Be Charged If It Was My Personal Property

You can still be charged with mischief even in circumstances where you damage property that belongs solely to you. Under section 429 of the Criminal Code, a person can be convicted of mischief if he or she destroys personal property with the intent to defraud. Similar to cases involving arson, charges under this section often involve a person trying to collect on an insurance policy or product warranty.

Property That Is Jointly Owned

You can also be charged with mischief for damaging or destroying property that is jointly owned, such as matrimonial property. In circumstances where the property is jointly owned, or where another person has some sort of interested in the property that was damaged, the Crown Attorney does not need to prove that there was an intention to defraud. Merely damaging or destroying the property in this case could result in you being charged with mischief.

When Is Property Damaged, Inoperative, or Interfered With?

The damage done to property must be more than trivial insignificant. Similarly, any interference with property must be more than a minor inconvenience. However, it is not necessary that the Crown Attorney prove that any damage, interference, usefulness or enjoyment of any property was permanent. The Crown Attorney only needs to prove that the damage, interference, usefulness or enjoyment of any property was temporary in duration.

What Happens If It Was An Accident?

To be convicted of mischief you must have wilfully; (1) destroyed or damaged property, (2) rendered property dangerous, inoperative or ineffective, (3) obstructed interrupted or interfered with the use, enjoyment or operation of property, or (4) obstructed interrupted or interfered with any person attempting to use, enjoy or operate the property.

The important term here is wilfully. Wilfully requires that you knew that your actions would cause the damage, destruction, etc. of the property, or that you were reckless to whether the property was damaged, destroyed, rendered useless, etc. If you did not intend to damage or destroy the property, you have a defence to the mischief charges against you.

Defending Mischief Charges

One defence available for mischief charges involves having a legal justification, excuse, or colour of right. The colour of right defence requires that you demonstrate that, at the time of the offence, you had an honest belief that you held a possessory right to the property in question. For example, if you honestly believed that the property in question belongs solely to yourself, then you may have a defence to a mischief charge. Similarly, a legal justification or excuse requires that at the time of the offence, you honestly believed that you were justified or had a legal excuse to cause the damage or destruction to the property. For example, if in defending yourself or assisting another person in danger, you cause property to be damaged or destroyed, you may be not guilty of committing mischief. In both circumstances the belief you held must be objectively reasonable.

Although it is not a defence, taking action to reimburse the victim for the property damage can be a mitigating factor that may help you receive a more favourable result. In some circumstances, with the assistance of counsel, charges can be withdrawn if restitution is made to the victim. However, it is always better to consult with a lawyer prior to making any restitution, as it may be that you have an absolute defence to a mischief charge.

How A Conviction for Mischief Can Affect You In The Future

A criminal conviction, even one for mischief, can have a significant impact on your life. A conviction for mischief, like any other criminal offence, can result in;

  • Loss of employment.
  • Difficulty finding future employment.
  • Paying fines, probation, and in some circumstances even a jail sentence.
  • Problems obtaining citizenship or permanent status.
  • Problems entering another country.

With the potential implications a criminal conviction can have, it is important that you have a lawyer who is committing to defending you. A criminal defence lawyer is in the best position to resolve your case quickly while getting you the best possible result.

Contact

Need immediate legal advice? Contact me today if you have been charged with mischief. I will arrange to meet with you for a free consultation and advise you what your options are.

Also see FAQs on Mischief or for more serious property related criminal offences, read about arson.

Filed Under: Criminal Law

July 31, 2014 by Stephen Jack Leave a Comment

Falsely Accused

scales of justiceMaking False Allegations

It is safe to say that the majority of criminal offences reported to the police are legitimate complaints. However, there are some circumstances where individuals will lie to the police by making up false allegations. There are many reasons why a person would false accuse another individual of committing a criminal offence. The following are just a few examples;

  • To remove a spouse or partner from the home.
  • To improve one’s position in divorce or custody proceedings.
  • Revenge.
  • Attempting to place blame on someone else for a crime the complainant committed.

I Have Been Falsely Accused, What Should I Do?

The first step you must take is to deal with the charges for which you have been falsely accused of committing. You can start by remembering what your rights are (see my article on Charter rights upon arrest). You have a right to remain silent and not to make a statement. Once you have been arrested and charged with a criminal offence, any attempt to explain to the police that you are innocent and have been falsely accused won’t help. Remember, once charges are laid, the police do not have the authority to withdraw those charges.

Anytime you have been charged with a criminal offence, whether you are falsely accused or not, you should give serious consideration to hiring a criminal defence lawyer. A competent criminal defence lawyer is going to have the knowledge and skills necessary to give you the best possible defence. Trust your lawyer to resolve your charges in most favourable way possible, whether that involves the charges being withdrawn or you being found not guilty at trial.

From the moment you have been arrested and charged, you need to be documenting and keeping records of any information that will be helpful to proving that you are not guilty and that you have been falsely accused. Any material should be provided to your lawyer as soon as possible. Documentation can include;

  • Emails.
  • Text messages.
  • Voice mail messages.
  • Letters.
  • Pictures or videos.
  • Financial documents.
  • Receipts.
  • Personal notes regarding your recollection of the events or any contact with the complainant.

Do You Have Proof That You Were Falsely Accused?

Once your criminal charges have been dealt with favourably, now you can start thinking about what you want to do about being falsely accused. However, even before you get that far, you need to know whether there is anything you can do. Remember, a criminal court never makes a finding that a person is innocent. The fact that the charges were withdrawn or that you were found not guilty does not mean that you have proven yourself innocent or that you were falsely accused. Either of these results only proves that the Crown Attorney did not prove its case beyond a reasonable doubt. You are going to need evidence that your accuser lied to the police, that he or she fabricated evidence, or that they gave false evidence in court. To do this you are going to have to rely on material such as statements made to the police, court certified transcripts of the evidence given at trial, and any records you kept and provided to your lawyer.

I Have Proof I Was Falsely Accused, Now What?

Now that you have proof you were falsely accused of a criminal offence, you need to decide if you would like to pursue having criminal charges laid against your accuser. Depending on the circumstances, there may be a number of charges that could be laid against your accuser;

  • Perjury.
  • Making a False Statement.
  • Giving Contradictory Evidence.
  • Fabricating Evidence.
  • Obstructing Justice.
  • Public Mischief.

Some of these offences can be complicated from a legal perspective. If you do wish to go to the police and file a complaint, it is strongly recommended that you have a lawyer assist you. It is essential that you and your lawyer are able to clearly demonstrate to the police how your accuser committed one or more of these offences. Do not expect the police to begin an investigation or lay any charges if you cannot clearly prove how your accuser committed any one of these offences.

Contact Me Today

If you have been charged with criminal offence, whether you have been falsely accused or not, contact me today and arranged a free consultation.

You can also read my article dealing with False Allegations of Domestic Assault.

Filed Under: Criminal Law

July 29, 2014 by Stephen Jack Leave a Comment

When Actions Can Become Criminal Harassment

drug offencesCriminal Harassment

Criminal harassment is an offence under section 264 of the Criminal Code of Canada. Criminal harassment charges often result from former domestic relationships, or when one person attempts to initiate a romantic relationship with another person who does not wish to do so. Another example of where criminal harassment charges are often laid is with ongoing disputes between neighbours, co-workers, or a person with whom you had prior business dealings with. Some individuals charged with criminal harassment genuinely are not aware that their behaviour could be considered harassment to another person. However, there are equally many others who know or ought to have known that they were harassing another individual. The following is intended to help you understand when your actions can become criminal harassment.

Actions that can be Criminal Harassment

Section 264 of the Criminal Code outlines conduct that can constitute criminal harassment.  Conduct that can constitute criminal harassment includes;

  1. Repeatedly following from place to place the other person or anyone known to them,
  2. Repeatedly communicating with, either directly or indirectly, the other person or anyone know to them,
  3. Besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be, or
  4. Engaging in threatening conduct directed at the other person or any member of their family.

Our courts have further held that actions such as persistent requests, solicitations, or incitements can be harassing behaviour. While any one of these actions is likely going cause another person to feel they are being harassed, it does not necessarily mean that criminal harassment has occurred.

When Actions can become Criminal Harassment

The conduct listed above does not constitute criminal harassment unless the following 4 elements are also present;

  1. The complainant felt harassed by the conduct,
  2. You knew or were recklessly or wilfully blind to the fact that your conduct was harassing the complainant,
  3. Your conduct caused the complainant to fear for their safety or the safety of anyone known to them, and
  4. The complainant’s fear was reasonable.

The Crown Attorney must prove all of these elements beyond a reasonable doubt before a finding of guilt can be made.

Defending Criminal Harassment Charges

The first step in defending criminal harassment charges is holding the Crown Attorney to its burden of proving all the elements of the offence beyond a reasonable doubt. While there are some cases where identity may be an issue regarding who actually engaged in the harassing behaviour, this is usually not where a defence is raised in criminal harassment cases. Similarly, the Crown Attorney will often be in a position to prove that any of the conduct listed above did cause the complainant to feel harassed.

Most charges for criminal harassment are defended on the basis (1) that you were not aware or reckless to the fact that your behaviour caused the complainant to fear for their safety, and (2) that the complainant did not actually fear for their safety or that complainant’s fear, in the all the circumstances, was not reasonable. When considering whether the complainant’s fear was reasonable, a judge will consider all the circumstances surrounding the specific conduct that lead to the complainant to fear for their safety.

Unfortunately, criminal harassment is an offence which does not require the Crown Attorney to prove that you specifically knew and intended that your actions were harassment. The Crown Attorney only needs to only needs to prove that you acted recklessly in regards to whether another person was harassed by your conduct. However, depending upon the facts of the case, it may be that the defence of honest mistake may be available. In these circumstances you would need to demonstrate that you honestly believed that your actions were not causing the complainant to feel harassed or fearful, and that this honest belief is objectively reasonable. Again, the judge will consider all of the circumstances surrounding your conduct to determine whether your honest, mistaken belief was reasonable.

Penalty for Criminal Harassment

A summary offence conviction for criminal harassment carries a maximum penalty of 6 months in jail, a $1,000 fine, or both. If the Crown Attorney proceeds by indictment, the maximum penalty is 10 years imprisonment.

Contact Me

Contact me today if you have been charged with criminal harassment.

FAQs on Criminal Harassment.

Filed Under: Criminal Law

July 24, 2014 by Stephen Jack Leave a Comment

Failing to Provide a Breath Sample

alcoholRefusing or Failing to Provide a Breath Sample

Refusing or failing to provide a roadside breath test is a criminal offence under section 254 of the Criminal Code of Canada. Most criminal charges for this offence result not from an outright refusal to provide a sample, but rather from failure to provide an adequate breath sample. There are numerous reasons why you might fail to provide an adequate sample for a roadside breath test, ranging from intentionally not blowing into the breath test machine correctly, to being physical unable to provide a suitable breath sample despite trying to do so. The reasons for failing to provide a breath sample may determine whether a legal defence is available to you, including whether you had a reasonable excuse.

Before You Raise a Defence, the Crown Attorney Must Prove Its Case

The Crown Attorney must prove beyond a reasonable doubt all of the elements of the offence. The physical element (actus reus) requires that the Crown Attorney prove (1) that a proper demand for a breath test was made by a police officer, and (2) that you failed to comply with the demand. Whether a police officer had reasonable suspicion to form the basis for a proper demand is discussed in my previous article on this topic. The second part of the physical element, the refusal, can be either an expressed refusal or a failure to provide an adequate sample. Our courts have been clear that the totality of the circumstances of the event will determine whether a person has failed to provide a sample, which includes both the conduct of the accused and the officer.

The mental element (mens rea) of refusing to provide a breath sample has been debated on more than one occasion. More specifically there has been debate whether this offence requires specific intent or general intent. However recent decisions seem to suggest that our courts are satisfied that the Crown Attorney only needs to prove general intent on the part of the accused. This would mean that the Crown Attorney would not need to prove that you were intentionally trying to avoid providing an adequate breath sample. Under general intent, the Crown Attorney would only have to prove that you had knowledge or awareness that you had failed to provide a breath sample.

Defending Failing to Provide a Breath Sample Charges

There may be one or more defences available to you if you have been charged with refusing to provide a roadside breath sample.

A commonly raised defence is that the person was physically unable to provide a breath sample. A physical inability to provide a sample may be the result of a recent or ongoing medical condition. In order to get an adequate breath sample, you are required to blow a constant supply of air into the approved screening device for approximately 6-10 seconds. This task can be very difficult for someone with a medical condition.

Aside from a medical condition, there may be other circumstances which would amount to a reasonable excuse for failing to provide a breath sample. For example, for individuals who do not speak or understand English, they may not reasonably understand the instructions of the officer regarding how to use the machine and provide an appropriate breath sample. There have also been rare circumstances where a person is simple so nervous that they are incapable of following the officer’s instructions about providing a breath sample.

Excuses such as having a common cold, fatigue, or the fact that it is cold outside have generally not been accepted by our courts as being reasonable excuses for failing to provide a sample. However, concerns regarding the sanitation of the breath machine can form a reasonable excuse not to comply with a demand for a roadside breath test. You are entitled to have a fresh mouth piece when you provide a breath sample. This means that the officer must provide you with a mouth piece that is still in the wrapping.

Failing to provide a breath sample can also have absolutely nothing to do with your actions. If the machine is not functioning correctly or it has not been calibrated recently, it may not produce a result despite your best efforts to provide a sample. These machines should be calibrated regularly. For example, if the officer did not have knowledge that the specific machine had been calibrated as required then the officer may not have been able to properly form the opinion that the device would produce a reliable result. In these circumstances, the demand for a breath sample may not be legal one, and if the demand is not legal, then the Crown Attorney cannot prove all the physical elements of the offence and you are entitled to be found not guilty.

Contact

Failing to provide a breath sample is a serious offence If you have been charged with refusing or failing to provide a breath sample, contact me today and arrange a free consultation.

For more information on Refusing to Provide a Sample and the potential penalties, click here.

Filed Under: Impaired Driving

July 24, 2014 by Stephen Jack Leave a Comment

What are My Rights Upon Arrest?

canadian-charter-of-rights-and-freedoms4 Important Rights Upon Arrest

Once a person has been arrested and charged with a criminal offence, there are several rights that are triggered under the Canadian Charter of Rights and Freedoms. Some of these rights that are triggered have immediate implications. The following is some basic information about 4 rights upon arrest that you have under the Charter; (1) the right to speak with a lawyer, (2) the right to remain silent, (3) the right to have a bail hearing, and (4) the right to be informed of the reasons for arrest.

Right to Speak with a Lawyer

Upon being arrested, you have a right to speak with a lawyer and receive legal advice. You must be advised by the police of your right to speak with a lawyer, including a Duty Counsel lawyer who is available by telephone 24 hours a day.

If you exercise your right to speak with a lawyer, you must be given the opportunity to do so without delay. However, the term ‘without delay’ does always mean immediately. For example, the police are permitted to conduct a search of you to ensure the safety of the officers and the public or to ensure evidence is not destroyed or disposed of prior to allowing you to speak with a lawyer.

Your right to speak with a lawyer includes the right to speak in private. Under no circumstances should the police be in the same room as you when you are given the opportunity to speak with a lawyer.

Right Not to Make a Statement

You have an absolute right not to make a statement. As a lawyer I can’t directly tell you not to make a statement, however I can advise you that you have a right not to make a statement and my advice would be to, not make a statement. Ultimately, you have to make the decision about whether to make a statement to the police or not.

Unfortunately, the fact that you have a right not to make a statement does not mean that the police are going to stop asking you questions. Once you have spoken with a lawyer, the police are permitted to resume asking you questions. The police may use tactics to get you to make a statement such as;

  • This is your chance to tell your side of the story.
  • We already have all the evidence we need against you.
  • We already know what happened, we just want to know why.
  • We are going to get a search warrant, you can make it easier on yourself by just telling us what happened.
  • You don’t have to make a statement, we can just have a discussion about what happened.

If the police continue to ask you questions, my advice is to continue to remain silent. It is better that you say absolutely nothing, and not to even get into any discussion whatsoever with the police. Simply put, the police are not there to assist you and they are not your friend, they are there to investigate allegations of criminal offences.

Informed promptly of the reasons for arrest or detention

The police must inform you of the reason you are being arrested. In most circumstances this is done simply by the police officer stating the reason you are being arrested. You should understand that the police do not need to provide you with all the information they are relying upon to detain or arrest you. In circumstances where the police simply wish to speak with you about a criminal investigation, they are not required to provide you with any information in advance regarding what they wish to speak with you about.

Right to have Validity of Detention determined by way of Habeas Corpus

If you arrested and not released by the police on your own recognizance, you are entitled to appear before the court for a bail hearing without delay. Depending upon the time of day you are arrested, you may be taken to court that day or you may be held overnight and be taken to court the next morning. If you are arrested on a Friday or Saturday night, you will still appear in court the next day. All bail hearings in Toronto held on a Saturday or Sunday are done at the Old City Hall.

Contact Me

Contact me today if you have been arrested and charged with a criminal offence, or you have been contacted by the police regarding a criminal investigation.

You can also read about why it is important to exercise your right to speak with a lawyer.

Filed Under: Criminal Law

July 11, 2014 by Stephen Jack Leave a Comment

Roadside Breath Tests

When can the Police Demand a Roadside Breath Test?

The simple answer is that a police officer only needs to form a reasonable suspicion that you have recently consumed alcohol to demand that you provide a breath sample. The specific section of the Criminal Code of Canada that deals with providing a breath sample is section 254.

Pursuant to section 254(2)(b) of the Criminal Code of Canada;

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding 3 hours, operated a motor vehicle … the peace officer may, by demand, require the person …

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

What is Proof of Reasonable Suspicion?

Reasonable suspicion is usually formed by the police officer’s own personal knowledge and observations of the person whom he or she is requesting to provide a roadside breath test. However, reasonable suspicion can also be achieved through  the observations of independent witnesses. For example, some citizens will call the police where they observe a person operating a motor vehicle erratically or whom they believe to be impaired.

In circumstances where knowledge or observations of drinking and driving is not directly observed by the police officer but rather is communicated by an independent witness, the police officer will usually independently investigate and verify the reasonable grounds for suspicion which were conveyed to the officer. However, an independent investigation and verification are not always required, so long as the police officer subjectively believes the grounds for reasonable suspicion conveyed to him or her by the independent witness.

A police officer does not need to have reasonable suspicion that you are over the permitted legal limit of alcohol, and therefore that you have been operating a motor vehicle while impaired. The test is merely that the police officer has reasonable suspicion that you have consumed any alcohol within the preceding 3 hours.

Examples of Reasonable Suspicion

An example of reasonable suspicion is when a police officer smells alcohol on you. Whether a police officer has stopped you during a routine traffic stop or you are going through a R.I.D.E. program, if the police officer smells alcohol on you personally, he or she may request that you provide a roadside breath test.

If you have been observed driving erratically by a police officer or a third party, a police officer may request that you provide a roadside breath test.

If you are observed leaving a restaurant/bar and entering your vehicle, a police officer may request that you provide a roadside breath test. It is not uncommon for police officers to be stationed in parking lots at particular times of the day observing individuals exiting a restaurant or bar. This can be a common occurrence where there are several restaurants or bars located within a particular parking lot.

If open alcohol or empty alcohol bottles are observed in your vehicle during a routine traffic stop, a police officer may request you provide a roadside breath test.

Providing a Sample Forthwith

One of the necessary elements for a valid demand for a roadside breath test is that a breath sample be able to be provided forthwith. Forthwith has been defined as ‘immediate or without delay’. If a police officer makes a demand for a breath sample and does not have access to an approved screening device within a reasonably short period of time, then the demand for the sample is invalid. While the officer who makes the demand does not have to be in possession of an approved screening device, the device must be made available by another officer within a relatively short period of time. There is no set period of time in which a sample must be provided once a demand has been made. Each case will be decided on its own set of facts. However in circumstances where the time between the demand and when a sample is taken is more than 30 minutes, then it is more likely that the demand will be invalid.

Contact Me

The implications for a conviction for refusing to provide a sample can be as bad as the implications for impaired driving. There may be one or more defences available to you if you have been charged with refusing to provide a sample.

Contact me today if you have been charged with refusing to provide a sample.

You can also read my article on the personal and financial consequences of impaired driving.

Filed Under: Impaired Driving

  • 1
  • 2
  • 3
  • …
  • 6
  • Next Page »

Contact Us

If you need to speak to a lawyer immediately

Call 647-620-9515

Categories

  • Assault
  • Criminal Law
  • Drugs
  • Impaired Driving
  • Lawyer Client Relationship
  • Traffic Offences

Areas Served

  • Barrie
  • Brampton
  • Burlington
  • Markham
  • Newmarket
  • Oshawa

Contact Us

Categories

  • Assault
  • Criminal Law
  • Drugs
  • Impaired Driving
  • Lawyer Client Relationship
  • Traffic Offences

Copyright © 2023 · Stephen Jack · All rights reserved · Powered by 3BugMedia

Copyright © 2023 · Executive Pro Theme on Genesis Framework · WordPress · Log in