Canadian Criminal Law – Questions and Answers

Q – What might I be charged with if I drink and drive?

The most common drinking and driving offences are:

  • ‘Impaired driving’: driving while you are impaired by alcohol and/or drugs, including prescription or illegal drugs;
  • ‘Driving ‘over .08’ or ‘over 80’: Driving with a blood alcohol level that is more than 80 milligrams in 100 millilitres of blood;
  • ‘Refusal’: Failure or refusal to do physical sobriety tests or give a breath or blood sample when asked, without a reasonable excuse.

These are all crimes under the Criminal Code of Canada. You can be charged with any of these offences if you operate or have ‘care or control’ of a car, truck, boat, snowmobile, ATV, aircraft or other vehicle or vessel while impaired, or with a blood alcohol level over the legal limit. Read More

 

Q – What is an alcohol interlock ignition device?

An interlock device is an alcohol breath-screening device installed in your vehicle’s ignition system. You blow into the device, which measures blood alcohol levels. The vehicle will not start if your blood-alcohol reading is above .02 mg of alcohol per 100 ml of blood. Information recorded on the interlock device must be downloaded every 60 days,  Read more…

 

Q – What are some of the offences under the ignition interlock program rules?

It is an offence to:

  • Tamper with an ignition interlock device, or drive a vehicle in which the device has been tampered with
  • Not have your interlock device inspected at least once every 60 days.
  • Ask someone else to give a breath sample so you can start the vehicle or keep it moving. Read More…

 

Q – What is bail?

A – Bail is a process in which a person charged with an offence is released from custody with or without conditions pending final disposition of his or her case. The police may release you within 24 hours with or without conditions requiring you to come to court.  If you are arrested and detained at the police station, you have the right to a bail hearing before a judge.  If you are arrested over the weekend or when court is not sitting, you may appear before a justice of the peace first who, if you are not released at that time, may then remand you to a judge for a bail hearing. Read More…

 

Q – Does a judge have to grant bail?

A – No. However, Section 11(e) of the Canadian Charter of Rights and Freedoms guarantees the accused the right not to be denied reasonable bail without just cause.

There are some very serious crimes (set out in Section 469 of the Criminal Code of Canada) for which a judge may not grant bail unless the accused can show cause why he or she should be released. Examples are where the accused is charged with murder or treason. Other examples, where it is up to the accused to show cause why he or she should be released, are where the accused has failed to appear in court in the past or where the accused has been charged with violating a bail.

In all other cases, the Judge must grant bail unless the Crown Attorney shows that it is necessary to keep the accused in custody for one or more of the following reasons: Read More…

Criminal Lawyer Hamilton

Q – Can a person purchase sexual services?

A – Purchasing sexual services and communicating in any place for that purpose is now a criminal offence for the first time in Canadian criminal law. A person convicted of this new offence may be sentenced to up to 5 years imprisonment if prosecuted on indictment, and 18 months if prosecuted by summary conviction. Mandatory minimum fines also apply, including higher mandatory minimum fines if the offence is committed in a public place that is or is next to parks, schools, religious institutions or places where children can reasonably be expected to be present. A person convicted of purchasing sexual services from a person under the age of 18 years may be sentenced to up to 10 years imprisonment. Mandatory minimum penalties of 6 months imprisonment for a first offence and one year for subsequent offences also apply. Read More…

Criminal Lawyer Hamilton

Q – Can a person sell sexual services?

A – The new prostitution laws do not criminalize the sale of sexual services. They also protect those who sell their own sexual services from criminal liability for any part they may play in the prostitution offences that prohibit purchasing sexual services, advertising those services, receiving a material benefit from the prostitution of others or procuring others for the purpose of prostitution.

This means that the new laws do not prevent sellers from taking certain safety measures, should they continue to sell sexual services. These safety measures include selling sexual services, whether independently or cooperatively, from fixed indoor locations, hiring legitimate bodyguards who do not engage in exploitative behaviour and negotiating safer conditions for the sale of sexual services in public places that are not near school grounds, playgrounds or day care centres. Read More…

Criminal Lawyer Hamilton

Q – Can a person manage, work for, or otherwise participate in, a business that offers sexual services for sale?

A – Receiving money or any other material benefit from the prostitution of others in the context of a commercial enterprise that offers sexual services for sale is a criminal offence. Such a commercial enterprise necessarily involves third parties who profit from the sale of others’ sexual services. This means that it is illegal to earn money, for example, by managing or working for a commercial enterprise, such as a strip club, massage parlour or escort agency, knowing that sexual services are purchased there.

But the new law protects from criminal liability people who receive money from the sale of their own sexual services. If the business does not involve anyone other than sellers of sexual services, Read More…

 

Q – Why do the new laws make prostitution illegal, instead of legalizing prostitution and regulating it?

A – Recent international studies show that jurisdictions that have decriminalized or legalized prostitution have larger sex industries and higher rates of human trafficking for sexual exploitation than those that seek to reduce the incidence of prostitution. This means that legalizing and regulating prostitution would result in more people being subjected to prostitution. Research shows that the majority of those who sell their own sexual services are women and girls and marginalized groups, such as Aboriginal women and girls, are disproportionately represented. Research also shows that prostitution is an extremely dangerous activity that poses a risk of violence and psychological harm to those subjected to it, regardless of the venue or legal framework in which it takes place, both from purchasers of sexual services and from third parties. Read More…

 

Q – Is prostitution a legal activity?

A – No. The effect of Bill C-36 is to criminalize prostitution. Prostitution is a transaction that involves both the purchase and the sale of sexual services. Bill C-36’s new offence that prohibits purchasing sexual services makes the prostitution transaction illegal. Read More…

 

Q – I have been arrested for a theft. Is there anything I can do to avoid prison time?

A: There is always the possibility that something can be done with your case when you have been charged with a crime. Each case is unique and the circumstances and details surrounding it need to be reviewed quickly to see what can be done. If you need your criminal case evaluated, contact lawyers Bruce Karten and Stephen Hebscher to get your questions answered. The possible legal options in your specific case must be looked at without delay Read More…

 

Q – How to Apply for a Warrant with Weak Grounds?

A – After investigating for a while, you know some things for sure, and you make reasonable inferences about other things. Beware of those inferences. It’s easy to believe too strongly in them.

After a robbery, it took investigators 2 months to gather enough information to justify a warrant to search a residence connected to Mr Silva, 2017 ONCA 788. They had plenty of reason to believe that Silva’s girlfriend lived there. They say Mr Silva attend there once shortly before they executed the warrant. And a phone that was loosely associated with the robbery was registered to “Mike Silva” at that address.

They got their warrant, and found firearms.

The trial judge felt that the grounds contained in the ITO did not sufficiently connect Mr Silva to that address to justify searching it for evidence of the robbery. The trial judge felt that the officers should have investigated more. The decision doesn’t say what he was looking for, but I suspect he wanted some evidence to show that Silva stayed there so often that he would leave his possessions there Read More…

 

Q – Will our children have to go to court if we have a contested divorce?

A – No, children do not have to go to court. They do not have to choose sides and give evidence for one parent against another. In some exceptional circumstances, a judge may ask to speak to a child if custody is in dispute. If this happens (it is rare), the judge meets with the child in his or her private office and tries to keep the discussion relaxed and informal. The judge wants to understand the child’s feelings and wishes about custody and living arrangements and will consider what the child wants, but the final decision will be based on the best interests of the child, considering the whole Read More…

 

Q – We are concerned about the effect of our divorce on our children. What can we do to ease the strain on them?

A – Divorce is very difficult for children.  It will certainly change their world forever.

There is an increased awareness of the effect of divorce and conflict on children and an emphasis on trying to help families through this difficult time.  In Alberta, it is now mandatory for parents who file for divorce or start proceedings under the Family Law Act, where child support, custody, access, parenting or contact is an issue to take a seminar called “Parenting After Separation”.  The plaintiff or applicant parent must give the other parent a “Notice of Mandatory Seminar” in a standard form at the same time as the divorce petition or other court documents starting proceedings are delivered. Most parents who live within 150 kilometers of an Alberta city or town can take these seminars at a location near them. Read More…

 

Q – What is the criminal code?

A – Our first Criminal Code was proclaimed in 1892.Other than including some sections relating to crimes specific to Canada”such as those relating to lumber, railroads, and fencing frozen ponds (Parker,1996:42), the Code was modeled after England’s draft Criminal Code..

Unlike the civil law-based codes in Europe, our Code is not organized around,and derived from, articulated rational principles, that are adhered to consistently and coherently throughout the body of the code. While it does have a set of guiding principles, or rules of law (see below), the CanadianCriminal Code was little more than a collection of laws premised on common law principles. In addition, over the years, through piecemeal amendments, the code had become convoluted.

Not wanting to abandon the common law tradition, but given the incompleteness of the Code, it was subjected to numerous challenges as Canada evolved as a nation. Being, by design, a fluid and flexible Act, virtually every original law has been supplemented in some form or another (see the Criminal Code Table of Concordance). In 1955, all common law offences were abolished except for contempt of court. Other major Code revisions were undertaken in 1970 and again in 1985. For example, a number of offences were abolished and other offences added (e.g., hate crime – s. 318 and 319 and child pornography – s. 163C.C.). Students interested in the sociology of law and criminologists in general try to understand the reasons for such reforms and the implications for criminal justice and society at large. Read More…

 

Q – What is Function and Purpose of Criminal Law?

A – The formalization of Codes serves several fundamental functions:

  1. Maintaining order: refers to protecting the lives of its citizenry through prescribed laws (e.g., sexual offence laws);
  2. Promoting morality by defining vices (e.g., solicitation laws, pornography,and gambling – see Chapter 12);
  3. Resolving disputes and “the conciliation of estranged parties” (p. 232)(e.g., civil laws); and
  4. Defining the boundaries for the administration of law (e.g., Highway traffic ActIncome Tax Act, and Controlled Drugs and Substance Act) (Hoebel, 1954).

The degree of respect afforded the law is directly proportional to the “sense of justice” that justice system portrays. As the noted English judge Haines once stated, “in order for justice to be done, it must be seen to be done.” Read More…

 

Q – What is the Legal Network’s position on the criminalization of HIV non-disclosure?

A – The Canadian HIV/AIDS Legal Network advocates that all legal and policy responses to HIV are based on the best
available evidence, the objectives of HIV prevention, care, treatment and support, and respect for human rights. There
is no evidence that criminalizing HIV non-disclosure has prevention benefits. But there are serious concerns that the
trend towards criminalization is causing considerable harm by increasing stigma and discrimination against people living
with HIV, spreading misinformation about HIV, undermining public health messaging about prevention, affecting
the trust between HIV patients and their physicians and counsellors, and resulting in injustices and human rights violations. Read More…

 

Q – Do criminal prosecutions raise other concerns?

A – The criminal law is a blunt and harsh instrument; its use should be limited to a last resort. However, since the Supreme Court’s 2012 rulings in R. v. Mabior and R. v. D.C., people can be charged and prosecuted for aggravated sexual assault for not disclosing their status to their sexual partners even if they engaged in sex that posed minimal risks of transmission (e.g., because they used a condom or had an undetectable viral load), had no intent to harm their partner, and did not transmit HIV. The
consequences of being charged and prosecuted for HIV non-disclosure are extremely serious for people living with HIV, whose identities and health status are regularly made public via police. Read More…

 

Q – What is the difference between criminal and civil court?

A – Criminal law deals with acts that violate the Criminal Code and other federal statutes. Civil law deals with disputes between private parties.

Criminal Law
Criminal acts are those that go against the rules of the Criminal Code or against another federal statute. In Canada, a criminal act is legally seen as an offence against the state, even though there may have been a specific individual who was the victim of the crime.

Common Criminal Code offences include:

Assault
Impaired driving
Break and enter
Robbery
Read more about going to criminal court, including how to prepare for the trial and the typical roles in the criminal justice system. Read More…

 

Q – Who is a criminal? and How may he legally be punished?

A – At least in Canadian law,82 the answers to these questions are to be found in the precise texts of the Criminal
Code and of other statutes. Where the definition of a crime or the sanction for a punishment is unclear, it is incumbent on Parliament to speak more clearly in the future, not on the courts to supply the alleged deficiency by presuming to effect debatable Parliamentary “objects”. These considerations are part of the motivating force which sustains the principle
of strict construction in Canadian criminal law. Read More…

 

Q – So you wanna be a criminal lawyer, eh?

A – Joel Hechter asked himself a simple question when deciding what area of practice to pursue: “Of all the lawyers I know, which are happiest?”

That query seems completely reasonable at first blush. After all, who wants to wake up in the morning dreading what comes next? But for many law students, short-term questions like how to pay off gargantuan debts, and long-term considerations like financial security, force the “happiness test” to the back burner. And students who do ask themselves those questions are increasingly scratching Hechter’s answer — criminal defence — from their list.

It’s long been held that criminal defence work is one of the tougher areas of law in which to carve a niche. Paid summer student placements are scarce, and it can be a real uphill battle to find an articling position. The quandary has worsened in the past decade with dwindling legal aid budgets. Established criminal defence lawyers have had a hard enough time keeping a roof over their own heads, without propping up a student whose tasks are restricted by law society rules. Read More…

 

Q – How Some Problems with Protecting Privacy and Security Works?

A – In highlighting the Charter’s impact on privacy and security against unwarranted state intrusion, I do not intend to suggest that section 8 has rectified all issues concerning searches and seizures. Most state-citizen searches occur outside the scrutiny of the Charter through so-called consent searches and searches incident to detention and arrest. We have, as well, found it difficult to find a principled approach to the impact of systemic racism on the exercise of all police powers, including the search power, or to the effect of poverty and homelessness on security from unreasonable search and seizure. The protection against unreasonable search and seizure operates most robustly in the context of a police raid on a suburban dwelling. That constitutional guarantee is least effective in protecting the poor in public housing from unwarranted police intrusion. It appears to be, unfortunately, more of a challenge to apply the elaborate protections surrounding a dwelling-house adage to the corridors of a rundown apartment building and the cardboard boxes and sleeping bags of the homeless living on subway grates.[46]

As well, the application of the section 8 guarantee has proved to be a challenge in protecting informational privacy and in protecting against increasingly sophisticated and intrusive investigative techniques.[47]

The application of the exclusionary rule in the context of search and seizure cases represents yet another difficulty for the criminal justice system. The expansive approach to the right to counsel at the point of arrest, including a rule of virtual automatic exclusion of any evidence obtained by a violation of that right, has essentially flown under the public radar. Or perhaps this exclusionary rule has been tolerated because those rights were largely litigated in the context of “over 80” prosecutions where ordinary people, not criminals, committed what is, sometimes perceived wrongly, as barely more serious than a regulatory offence, at least where, as is almost always the case, no one has been injured. It is much easier to support rights when there is little public scrutiny and little impact on the general sense of community welfare.[48] It is much more difficult where the objects of the inquiry are armed gangs in the business of trafficking narcotics. It is no wonder the Supreme Court of Canada has largely failed to come up with a principled approach to the application of the exclusionary rule in the search and seizure context, relying instead on a shopping list of highly subjective factors such as good faith versus bad faith infringements, or flagrant versus technical violations. Read More…

 

Q – I think the police want to talk to me about a crime that occurred, what should I do?

A – The police have a duty to investigate crime. Therefore, whenever someone makes an allegation about a crime the police will generally investigate that complaint. Police will often start their investigation by asking questions of those people that may know something about the allegation, including investigating the suspect(s).

You have a right to silence. The choice is yours.

The choice to cooperate with the police, whether as a witness or as a potential suspect, is up to the individual. Generally speaking there is no requirement that a person assist in a police investigation unless they are required by a specific law to do so, or are compelled by a judicial Order (such as a production order). As an arrested or detained accused, the person has a complete right not to cooperate with the police except in very narrow circumstances (such as being required to provide a breath sample). These examples where a person is required to cooperate are very rare, and are best addressed by speaking to a lawyer on whether there is such an obligation.

It’s not easy to stay silent in the face of police questioning. Speaking to a lawyer can assist you in understanding how to exercise your rights. Read More…

 

Q – What do I do if I am facing drug charges?

A – What do you do if you are charged with trafficking or possession of marijuana, cocaine, ecstasy, or heroin?traffickingUnder Canadian Law, drug charges are prosecuted by the Federal Department of Justice under the Controlled Drugs and Substances Act. Drug offences can range from very petty offences (for example, simple possession of marijuana under 30g) to very serious offences (for example, importing or trafficking cocaine).

The basic elements of proof in drug cases.

In defending drug offences, there is a common theme of proof of possession, and constitutional violations. Since most drugs are allegedly found by police in rather inconspicuous places (pockets, cars, homes, etc.), there is usually a question as to whether or not the the police discovered them in a lawful manner. Once the drugs are found, there is also a common question as to who is in legal possession of the controlled substance. Read More…

Q – Is it necessary for me to hire a lawyer for my criminal charges?
A – Hiring a lawyer is an obvious step to anyone knowledgable of the legal system. However, a lot of people do not seem appreciate just how important it is. A criminal defence lawyer will apply their skills and experience to the specific circumstances of your case. Every case is different and requires a different approach. Navigating the criminal justice system without a lawyer is not only confusing and frustrating, but very reckless.

Unguided, there is always a potential for unnecessary and permanent consequences. If a person is charged with a criminal offence, hiring a lawyer is by far the wisest action you can take to ensure that the devastating effects of a criminal conviction are minimized or alleviated. From the very beginning, an experienced criminal lawyer can explain to you the potential outcome of your case, what risks are associated with the case, the benefits and disadvantages of proceeding to trial, the costs associated with a legal defence, and what would happen if you are found guilty of the criminal offences the accused is charged with. Read More…

 

Q – What is Preliminary inquiry?

A – Where the accused is charged with an indictable offence, the Crown must prove a prima facie case before a judge of a provincial court. This process must be requested by the defence or the Crown.[9] The presiding judge must determine whether there is sufficient evidence for a jury, acting reasonably and judicially, to convict the accused. The judge may neither weigh the evidence nor determine whether the evidence is admissible. If the judge determines there is sufficient evidence for a jury acting reasonably and judicially to convict the accused, the judge must commit the accused to stand trial. If not, the judge must discharge the accused and the proceedings end. However, if at a later date the Crown tenders further evidence, the Crown may recommence the proceedings. A discharge at a preliminary inquiry does not constitute double jeopardy.

There is no appeal from an order of a judge. However, either party may seek leave to review the order in the superior court.

If the accused is charged with an offence punishable by summary conviction or if the Crown elects to proceed by summary conviction if the accused is charged with a hybrid offence, the accused is not entitled to a preliminary inquiry and is immediately committed to trial.

Section 536(4) of the Criminal Code, proclaimed in force in 2004, indicates a preliminary inquiry is no longer automatic after an accused elects to be tried in a superior court. The Attorney General may also, in rare cases, bypass the preliminary inquiry and issue a direct indictment. This may occur even where the accused has requested a preliminary inquiry, or even when the accused has been discharged by a preliminary inquiry.[10] Read More…

 

Q – What to do ,When the Crown is able to prove the elements of the offence beyond a reasonable doubt?

A – When the Crown is able to prove the elements of the offence beyond a reasonable doubt, the defence may still avoid conviction by raising a positive defence.

A true defence arises when some circumstances afford the accused a partial or complete justification or excuse for committing the criminal act. In Canada, the defences are generally similar to standard and popularly understood defences of other common law jurisdictions such as the U.K., Australia and the United States. The true defences include duress,[5]automatism,[6] intoxication,[7] or necessity.[8] There is also a partial defence of provocation, which has the effect of reducing what would otherwise be murder to manslaughter. This partial defence is provided by s.232 of the Criminal Code.

Some defences are provided for by statute and some defences are provided for solely by the common law. In some cases common law defences are superseded by statutory enactment, for example duress, self-defence and as mentioned above, extreme intoxication. Interestingly, in the case of duress the Supreme Court of Canada struck down the statutory provision as violative of s.7 of the Charter, leaving the broader common law defence instead. Statutory encroachments on the scope of common law defences can violate s.7 of the Charter if they unacceptably reduce the fault requirement of offences.

In addition to the true defences as mentioned above, there are other “defences” in a broader sense. In some cases, these “defences” are really just an assertion that the Crown has not proven one of the elements of the offence. For example, the mistake of fact defence involves an assertion that the accused misunderstood some material factual matter that prevented him from forming the requisite mens rea for the offence. In the context of sexual assault, for example, a mistake of fact defence usually involves an assertion that the accused did not realize the complainant was not consenting. Since the mens rea for sexual assault includes a subjective appreciation of the fact that the complainant is not consenting, the “defence” of mistake of fact in this context is thus properly understood as a failure on the part of the Crown to prove its case. In practical terms and common parlance, however, it is still considered to be a defence. Another example of this more general kind of defence is the “i.d. defence”, which is really just an assertion by the accused that the Crown has failed to prove the identity of the perpetrator of a crime beyond a reasonable doubt. There are many other examples of this kind of defence. In reality they are just clusters of specific shortcomings that arise frequently in the prosecution of certain kinds of offences. Read More…

 

Q – What happens if I get arrested?

A – In Canada, you are presumed innocent until the Crown has proven its case beyond a reasonable doubt. You are entitled to consult with legal counsel before making any statement to the police, so your very first phone call should be to an experienced criminal defence lawyer. Criminal attorneys, such as Moreau & Company, are readily available in Alberta, and many offer free initial consultations with no obligation. Read More…

 

Q – How do I prepare to meet with a criminal attorney?

A – Your lawyer will need as much information as possible about your case in order to craft the strongest possible defence for you. When you meet with your lawyer, you should bring any relevant information or documents that you have, even if it seems insignificant. Keep in mind that your lawyer will not share your information with anyone else. Read More…

 

Q – Who makes the laws?

A – The Canadian government makes our laws. All governments in Canada can make laws, including the federal government of Canada, the provincial government of BC, and the government of the city where you live. For example, the government of Canada makes laws to control crime, the BC government makes laws about driving on our roads, and the City of Vancouver makes laws about the size of the house you can build on your property.

The government also oversees Canada’s laws. For example, people may have to talk to government staff from Citizenship and Immigration Canada if they have questions about bringing their families to Canada. Read More…

 

Q – What Happens in Criminal Court?

A – If you are charged with a crime you will be given a form telling you when and where you must make your first court appearance. This is not the trial date – it is the starting point for dealing with a criminal charge. You may have several more appearances in court before a trial date is set or the matter is otherwise resolved.

You may be in custody and will be entitled to have a bail hearing before proceeding further with your case.

A trial or preliminary hearing can be scheduled for one hour, or for several days. If you are ordered to appear in court, you must attend at the date and time indicated on the papers given to you. (A preliminary hearing is a court hearing to decide whether the Crown has enough evidence to hold a trial. At the end of the hearing, the accused will either be discharged or ordered to stand trial) Read More…

 

Q – Who is the Crown Attorney and what is his/her job?

A – Crown Attorneys are lawyers who work for the Department of Justice or private practice lawyers who work on behalf of the Attorney General of Newfoundland and Labrador. While Crown Attorneys sometimes give advice to police forces or government departments and agencies, Crown Attorneys are not lawyers for the police. Crown Attorneys also do not represent victims of crime or witnesses to crime. They are independent, impartial officers of the court with a responsibility to prosecute criminal charges if it is in the public interest to do so and if there is a reasonable prospect of conviction, based on the available evidence. Read More…