I recognize that being charged by the police may be one of the most stressful events you may experience in your life. If you have already been charged, it is quite likely that to a degree your liberty may already be restricted by bail conditions. That is simply the start. For you, a criminal conviction itself may have devastating consequences. It may be as well that the prosecutor (Crown Attorney) may be seeking other sanctions such as jail, driving restrictions or other negative consequences to you. It must always be remembered that the Crown’s resources are almost unlimited while your resources have limits.
What Is The Best Defence?
To ensure that the playing field is leveled I believe one needs a criminal defence lawyer who is fearless and passionate about your case. I treat every case with the passion that has fueled me for over 30 years of defending criminal matters. Every problem encountered in the course of your case must be approached with creative solutions, strategic thinking, and proven methodology.
I am a firm believer in not necessarily following down the path of least resistance. What I mean by that is that in many cases you have to think “out of the box” to arrive at the best result. Defence work is not a mathematical science. You cannot think out of the box if you do not have the experience to enable creativity and to treat each case uniquely. That may mean purely fact driven tactics or a solution based in law or both. For example, law enforcement in some cases obtains evidence in violation of constitutional rights (Charter of Rights). Those cases may involve search and seizure without reasonable and probable grounds or any other number of Charter violations.
In cases where I feel your Charter rights have been infringed, I may file a motion to attempt to have the evidence that was obtained unlawfully be inadmissible (not able to be used against you in court). I attempt to guard you against improper state intrusion into your constitutional rights. Nothing factually or legally is overlooked given that the smallest detail may have a significant impact on your defence.
Very simply put, the process is designed to arrive at the best possible outcome in each and every case I defend.
Presumption of Innocence
One should never lose sight of the presumption of innocence. This presumption arises at the very moment you are charged. This is a heavy burden for the prosecuting Crown Attorney to overcome. I relish the challenge of defending any case. You will always be treated by me with respect and dignity.
Charter of Canadian Rights and Freedoms Challenges (Charter Challenges)
In many cases, the defence must rely on the fact that a breach of the Charter occurred in an attempt to exclude evidence from being utilized by the prosecutor at the trial. For example, there may be an argument to be made that the accused right to counsel was breached which may lead to a statement allegedly made to police being excluded from the trial. Or perhaps there may be situations where the police have unreasonably searched or seized items and the defence will attempt to exclude the finding of that which was seized. It is also unlawful for the police to arbitrarily detain an individual and seizures made may be excluded in such scenarios.
Impaired Driving and/or Driving with Over 80 milligrams of Alcohol
The laws with respect to the Impaired Driving and Driving with Over 80 mg of Alcohol were very recently amended. The laws were changed in late 2018 and have resulted in a number of new changes in law enforcement. The constitutionality of some of those changes will likely see challenges by defence lawyers as time proceeds. Now, there does not even have to be “reasonable suspicion” for a police officer to stop or pull-over a vehicle. The challenge to this provision is no doubt headed to the Supreme Court of Canada to determine whether the law itself is legal or whether it will be struck down as unconstitutional.
Drug related offences are often very serious under the Controlled Drugs and Substances Act. Defences in these types of cases can range from Charter litigation in an attempt to exclude seizures or questions of fact to be determined by a court such as police observations or physical possession. The seriousness of drug offences runs the gamut from simple possession to possession for the purpose of trafficking to trafficking to conspiracy to traffic to importing.
Weapons offences or use of a weapon in the commission of a criminal offence are almost always, with few exceptions, very serious. In fact, certain mandatory minimum sentences are engaged in the Criminal Code upon certain convictions. Having said that, in the last few years, certain mandatory minimum sentences have been struck down as unconstitutional. Generally, the defences in these types of cases may be Charter related in terms of whether there was an unreasonable search and seizure or can be factual in terms of whether it be proved that the accused had knowledge, consent and control of the weapon.
Allegations of domestic assault can lead to very serious consequences, not only after a trial but sometimes before a trial. In certain cases, bail restrictions will not allow communications with the complainant and not even being able to live in your own home. On some occasions, bail might be varied to allow for communication. These matters must, as all other criminal allegations be scrutinized, and the most minor detail may change the outcome of a case.
This can be a serious charge and often depends on the quantity of drugs as to whether the Crown Attorney will seek jail or other penalties such as monetary or property forfeiture. Often, Charter defences and lack of knowledge defences may be utilized.
The first procedural step that occurs after arrest is a bail hearing. There is a step ladder approach to bail. If there is no concern that the accused person will appear for trial and no concern that the person is likely to commit a criminal offence while on release, then they should be released from the police division, perhaps with conditions such as no contact or any variety of other conditions. Some criminal charges have reverse onus provisions and require the accused person to show cause why they ought to be released. The law has been clear and recent case law in the Supreme Court of Canada confirmed that the least onerous form the release should be the first option hence the term “step ladder” approach. Having said that, there are sometimes very serious situations where after a bail hearing an accused person is denied bail pending trial.
If the Justice (Justice of the Peace or Ontario Court of Justice Judge) detains a person without bail, there is a formal process for reviewing the decision in the Superior Court of Justice. It is, in essence, an appeal of the order to detain.
Possession of Property Obtained by Crime
The Crown Attorney must prove the elements of the offence in order to successfully prosecute such an offence. The elements of the offence of possession are knowledge, consent and control. Defences in these types of cases may range from Constitutional litigation of the search and seizure or whether one had knowledge of the property and whether one had knowledge it was obtained by a crime. The doctrine of “recent possession” may apply under certain circumstances.
Youth Criminal Justice Act
If the accused person is a youth (between 12 and 17 years old at the time of the allegation) the charges are prosecuted under the Youth Criminal Justice Act (YCJA). It is very clear that the justice system treats alleged and/or youthful offenders very different than adults.