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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

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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

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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.

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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.

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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.

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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.

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Extra Judicial Sanctions: Diversion for Youth

What Is Diversion?

In some circumstances, diversion may be available for individuals who have been charged with minor criminal offences for the first time. Diversion is a way of dealing with criminal charges where the accused person does not end up with a criminal conviction. Although not limited to the following options, diversion usually involves the accused person completing;

  1. Community Service Work
  2. An Anger Management or Substance Abuse Program, or
  3. A Donation to a Recognized Charity

Once the accused person has successfully completed the diversion, he or she then returns to court where the charge is withdrawn at the request of the Crown Attorney.

Diversion is also available to anyone under the age of 18 who has been charged with a criminal offence. Diversion for youth is commonly referred to as Extra Judicial Sanctions, or simply EJS.

Extra Judicial Sanctions

Extra judicial sanctions falls within the larger section referred to as extra judicial measures under the Youth Criminal Justice Act. Extra judicial sanctions attempts to hold a youth accountable and responsible for his or her criminal behaviour and to prevent future criminal acts. Community service work is often involved with youth completing extrajudicial sanctions.

Can I Get Extra Judicial Sanctions?

Pursuant to section 10(2)(b) of the Youth Criminal Justice Act;

An Extrajudicial sanction may be used only if;

The person who is considering whether to use extrajudicial sanction is satisfied that it would be appropriate, having regard to the needs of the young person and the interests of society.

Generally, extra judicial sanctions are offered by the Crown Attorney when the young person is charged with a relatively minor criminal offence and he or she is a first-time offender. Even in circumstances where the Crown Attorney does not initially offer extra judicial sanctions, a criminal defence lawyer may be able to negotiate with the Crown Attorney that the charges against the young person be resolved through extra judicial sanctions.

Some examples of charges were extra judicial sanctions may be offered by the Crown Attorney include;

  • Theft Under $5,000
  • Mischief
  • Possession of Marijuana
  • Uttering a Threat
  • Assault
  • Possession of a Weapon / Carrying a Concealed Weapon

How Does Extra Judicial Sanctions Work?

If a youth is offered an opportunity to complete extra judicial sanctions, the young person must accept responsibility for his or her actions that form the basis for the criminal charges. If a youth denies any involvement in the commission of the criminal offences being alleged, then he or she will not be permitted to complete the extra judicial sanctions.

When a youth accepts responsibility and agrees to complete extra judicial sanctions, his or her case will be adjourned for about 3 months so that he or she will have an opportunity to complete the extra judicial sanctions. The young person will then meet with a youth probation officer to determine what extra judicial sanctions he or she will have to complete.

Section 4(d) of the Youth Criminal Justice Act allows a youth to receive extra judicial sanctions more than once, and it even permits a youth to receive extra judicial sanctions if he or she already has a youth criminal record. However, a Crown Attorney may not offer extra judicial sanctions where the young person commits a similar or worse criminal offence after receiving extra judicial sanctions on a recent prior occasion. A Crown Attorney also may not offer extra judicial sanctions where the criminal offence alleged involves serious acts of violence.

If I Complete Extra Judicial Sanctions, Will I Have A Youth Criminal Record?

No. Any youth who successfully completes extra judicial sanctions will not end up with a youth criminal record. Once a youth has successfully completed the extra judicial sanctions, he or she will return to court where the charges will be withdrawn. Follow the link if you would like to read more about Youth Criminal Records.

Contact Me

If you, or your son or daughter, have been charged with a criminal offence, contact me today.

You can also read more about Youth Offenders and the Youth Criminal Justice Act.

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Law-Abiding Citizen Criteria for Criminal Record Suspensions

Criminal Record Suspensions

Has the Government gone too far in responding to public concerns about criminal record suspensions? It would appear so. You may be surprised to know exactly what can be relied upon by the Parole Board of Canada when determining whether you should be granted or denied a criminal record suspension.

One of the reasons for replacing pardons with criminal record suspensions was in response to public concerns raised about what individuals should be eligible to have their criminal record no longer accessible through the Canadian Police Information Centre. More specifically, concerns were raised that nearly anyone with a criminal record could receive a pardon, including individuals who had received convictions for sexually-based crimes related to children. While I don’t disagree that there should be some form of eligibility criteria that must be met before a person can receive a criminal record suspension, it would appear the pendulum has swung too far the other way.

First, let’s begin by briefly reviewing the eligibility criteria and the process involved in applying for a criminal record suspension.

Eligibility for a Criminal Record Suspension

There are two types of criminal offences in Canada, summary offences and indictable offences. If you were convicted of a summary offence, then you cannot apply for a criminal record suspension until 5 years have passed from the date your sentence ended. If you are convicted of an indictable offence, you must 10 years from the date your sentence ended.

If you have been convicted of 3 indictable offences with each having a prison sentence of 2 years or more, then you are not eligible to apply for a criminal record suspension. Similarly, if you have been convicted of a sexually-based offence involving a child and you do not fall within one of the few exceptions, then you are not eligible to apply for a criminal record suspension.

Applying for a Criminal Record Suspension

An application for a criminal record suspension is made to the Parole Board of Canada. An application for a criminal record suspension costs more than $600 and can take several months and even up to a year to process. There are several steps that you need to complete before applying for a criminal record suspension, including obtaining a criminal record check. For a complete list of steps involved in applying for a criminal record suspension, contact me or watch for my article on applying for a criminal record suspension.

Law-Abiding Citizen Criteria

In addition to having to wait either 5 years or 10 years before being eligible to apply for a criminal record suspension, the onus is now on the applicant to prove he/she is a person of good conduct and a law-abiding citizen.

The Parole Board of Canada does not define what constitutes a person of good conduct, only that it is behaviour consistent with and demonstrating a law-abiding lifestyle. The Parole Board of Canada also does not define what constitutes behaviour consistent with a law-abiding citizen, however the Board’s Policy Manuel does list information that it may consider when determining whether a person has demonstrated he/she is a law-abiding citizen.

Taking into account that we are dealing with criminal record suspensions, it would only seem reasonable to conclude that a law-abiding citizen is someone who does not receive any further criminal convictions for a sustained period of time. Unfortunately, this is not the case. You may be surprised to know that the Parole Board considers much more when assessing whether a person has demonstrated they are a law-abiding citizen.

What information does the Parole Board of Canada consider when Assessing Law-Abiding Behaviour?

When determining whether a person should be granted a criminal record suspension, the Parole Board of Canada may consider information from a several sources. Specifically some of the information the Board will consider includes;

  1. Non-law abiding behaviour that did not result in a charge.
  2. Non-law abiding behaviour that resulted in a charge being withdrawn, stayed, or dismissed.
  3. Non-law abiding behaviour that resulted in a peace bond, diversion, or a conditional or absolute discharge.

Yes, you are reading that correctly. The Parole Board of Canada can consider information relating to events where you were never charged with an offence. The Board may also consider information relating to events where you were charged with an offence but you were never convicted.

To use this type of information to assess whether someone is a law-abiding citizen would seem to infringe upon section 11(d) of the Canadian Charter of Rights and Freedoms that every person has a right to be presumed innocent until proven guilty. Whether the use of this information is an infringement on the right to be presumed innocent until proven guilty does not seem to matter much to the Parole Board of Canada. Located in the Policy Manuel of the Parole Board of Canada is paragraph 13 under section 14 Clemency and Pardons, it states;

In its assessment of good conduct, the Board is not subject to the same standards as a criminal court. The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.

The information the Parole Board of Canada may consider is also not limited to just criminal offences. The Board can also consider provincial offences, including traffic offences. Yes, the possibility does exist that you could be denied a criminal record suspension because you were convicted of traffic offences.

As a criminal defence lawyer and a member of the public, I share the concern that there must be some process for determining whether a person is eligible for a criminal record suspension. However, a person should not be prevented from having an opportunity to move on with their life because of unsubstantiated allegations or because of traffic offences. It certainly would appear to be unfair to infer that a person is not a law-abiding citizen based on completely unsubstantiated allegations.

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Contact me today if you wish to apply for a criminal record suspension or you have been refused a criminal record suspension.

You can also read my previous article on criminal record suspensions.

Here is a link to the Parole Board of Canada’s webpage for criminal record suspensions.

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Threatening Criminal Charges is Extortion

What is Extortion?

Extortion, commonly referred to as blackmail, is a criminal offence under section 346 of the Criminal Code of Canada. While extortion is a serious criminal offence, it is not one of the more common offences that you will see in our criminal courts. This may help to explain why there is not as much information about extortion available online as there is with respect to other criminal offences such as impaired driving, assault, sexual assault, and drug related offences.

To understand exactly what an act of extortion involves, it is easier to break it down into all the elements of the offence. Extortion occurs when

  1. One person induces or attempts to induce another person to do anything or cause anything to be done.
  2. The person intended to obtain anything or cause anything to be done.
  3. The person uses threats, accusations, menaces or violence to induce the other person to do anything or cause anything to be done.
  4. The person had no reasonable justification or excuse for inducing another person to do anything or cause anything to be done.

Our courts have held that the term “anything” should have a wide and unrestrictive application, and has interpreted anything to include extorting sexual favours, R. v. Davis [1999] 3 S.C.R. 759.

The threat itself does not need to be anything illegal. A threat can include disclosing information to a third party or, as discussed below, can include threatening to commence criminal proceedings against someone.

The person who is threatened does not need to be same person who is expected to do anything. A person can threaten another person to cause a third person do anything or cause anything to be done.

The person committing the extortion does not need to carry out the threat to be guilty of extortion. Similarly, the person who is threatened does need not to carry out the perpetrator’s demands for the perpetrator to be guilty of extortion.

Section 346 of the Criminal Code does not define what is a reasonable justification or excuse. However, our courts have previously held that a reasonable justification or excuse is determined based upon the entire course of conduct by the person making the demand for money, property or anything else.

Threatening Criminal Charges is Extortion

In most circumstances criminal charges for extortion arise from a situation where one person is knowingly trying to blackmail another person. The goal is usually to receive money that he or she would not otherwise be entitled to. However, this does not mean that you cannot be charged with extortion if you demand for money, property or anything else that you are legally entitled to and that another person is required to provide you.

It is the nature of the threat that will often determine whether charges of extortion are laid by the police. For example, section 346(2) excludes threats to begin civil proceedings, and therefore you are perfectly entitled to threaten to sue someone if they do not repay a debt they owe you.

Conversely, you are not entitled to threaten to commence criminal proceedings against another person. There are some people who may think that threatening to call the police on another person who will not repay a debt or return personal property can be a quick way to get their money or property back. Even in circumstances where the threat is innocent enough and the person never intends to follow through with it, threatening criminal proceedings still meets all the elements required for extortion. By threatening criminal proceedings you are (1) inducing or attempting to induce a person to do anything, (2) you are intending something to be done, (3) it is a threat, and (4) you have no reasonable justification or excuse. Again, it does not matter whether you are legally entitled to the money, property or anything else owed to you, you cannot threaten to commence criminal proceedings as a way to obtain what you want.

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Extortion is a very serious criminal offence. Contact me today if you have been charged with extortion.

Read more about extortion.

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Lying to the Police or the Court

What can happen if I’m caught Lying to the Police or the Court?

It is never a good idea to lie to the police or the Court. People in general do not appreciate being lied to, and the police and Judges are no exception. If you are caught lying to the police or the Court, do not expect any sympathy, even if you are the victim of a crime.

Misleading or lying to the police or the Court are very serious acts that could result in a number of criminal charges against you. The criminal offences that you could be charged with can be found in the part of the Criminal Code of Canada dealing with Misleading Justice.

What Criminal Offences can I be charged with?

Perjury – Perjury occurs when a person makes a false statement under oath or solemn affirmation, or makes a false statement by affidavit, solemn declaration or deposition. The person must know that the statement they make is false and they must intend to mislead.

You cannot be convicted if you made a false statement but you reasonably believed the statement to be true at the time you made it.

The false statement does not be made in court; making a false statement under oath to the police will constitute perjury.

Making a False Statement – Making a false statement occurs when a person, who is not authorized or required by law to make a statement, makes such a statement by affidavit, solemn declaration or deposition, knowing that the statement is false.

This section is similar perjury and creates a criminal offence for a person who makes a false statement under oath when they were not required or authorized to make a statement.

Unlike perjury, making a false statement does not specifically require that the Crown Attorney prove that a person intended to mislead, it is only necessary that the person knew the statement was false.

Witness Giving Contradictory Evidence – A witness gives contradictory evidence when he or she gives evidence at a judicial proceeding and then gives contradictory evidence at a judicial proceeding. The Crown Attorney must prove that the person giving contradictory evidence intended to mislead the Court. However, the Crown Attorney does not need to prove which of the contradictory evidence is false.

Fabricating Evidence – Fabricating evidence occurs when a person, who intends to mislead, fabricates anything which is intended to be used in a judicial proceeding. While this section of the Criminal Code does not define the term “anything”, presumably it can be interpreted as meaning anything that may be introduced as evidence in a judicial proceeding.

Obstructing Justice – Obstructing justice occurs when a person wilfully attempts to obstruct, pervert or defeat the course of justice. The term “course of justice” includes both existing and proposed judicial proceedings, as well as matters that are at the investigatory stage.

Public Mischief – Public mischief occurs when a person causes a police officer to begin or to continue an investigation with the intention to mislead the police officer. A person can mislead the police officer by (1) falsely accusing another person of committing a criminal offence, (2) causing suspicion to be diverted from that person or causing another person to be suspected of having committed the criminal offence (3) reporting that an offence has been committed when no offence has actually been committed, (4) causing the officer to believe a person has died when that person has not died.

A person can also be convicted of attempting to commit public mischief. The person can be convicted even where the officer did not believe the person and did not commence an investigation or was not misled.

Punishment

Crimes involving misleading justice are taken very seriously and can attract jail sentences.  For example, it is not uncommon for a sentence for perjury to range from 9 months to 2 years. In cases involving public mischief where individuals have made false allegations of criminal offence, our courts have imposed penalties ranging from a fine to a jail sentence.

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Lying to the police or lying to the Court can result in very serious criminal charges that carry significant penalties. Contact me immediately if you have be charged with any of the offences listed above.

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