Toronto Criminal Lawyer | Rishi Singh Law Firm

How the Criminal Court System Works

2011-08-16T03:53:42Z

The First Appearance in Court

After you are released by way of a bail hearing or a ‘Promise to Appear’ you will be required to make your First Appearance in Criminal Court. It is a Criminal Offence to not be present at this appearance. Either you should appear or you should hire a lawyer and sign a legal designation which will allow your lawyer to appear on your behalf.

It is advisable to meet with a lawyer before your first appearance and discuss the nature of the charges. Retaining a lawyer is possible and advisable before your first appearance in that this allows you to be fully represented at all times in court. With the effective representation of counsel, it is possible for you to not appear at all until your trial date or resolution date. Further, with the assistance of counsel, you will not need to speak a word in court or to the judge or justice of the peace, unless you so choose.

Your first appearance is an administrative appearance in that you not required to decided whether you are pleading guilty or innocent, but rather, you should expect to receive your disclosure (which is the evidence that crown has against you in the criminal matter).

You will be expected to tell the court how long you will need in order to review the documents. Typically the court will allow you a one month adjournment period in order for you to review the documents and advise the court whether you will be pleading guilty or innocent.

Disclosure:

Disclosure is evidence that the Crown has against you. All evidence must be disclosed to defence counsel within a reasonable amount of time. Evidence that must be disclosed includes evidence that is both useful and harmful to your case.

Full disclosure is essential to defending your case. Your defence counsel should review the disclosure with you at length to ensure that all data is accurate and that nothing is missing.

Initial disclosure is typically anywhere from 30-50 pages. Disclosure may also include CDs, DVDs, Video tapes, pictures, interviews, police officer’s notes, and pictures. Other types of disclosure include: cell phone records, search warrants, report to justice and certificate of analysis.

After you receive your disclosure you will usually get about a month or less to review the disclosure and come back with a counsel or decide to plead guilty. Within the disclosure is the synopsis which is a page or two document that is written by a police officer that describes the nature of the allegations. If you are to plead guilty or to have a bail hearing, the synopsis will be read in court, as the ‘agreed statement of facts’. The synopsis therefore is vital, in that, if you do plead guilty, the synopsis will be read in to the court record, and could be produced in transcribed (in writing) at any time. Your defence counsel should able to negotiate a more suitable ‘agreed statement of facts’ with the Crown attorney. This is especially important for those individuals involved in immigration or family law proceedings.

Within a month of your first appearance in criminal court, your counsel should hold a crown pre-trial with the crown attorney at your specific court house. This pre-trial will occur either over the phone, or in person. Your counsel should have reviewed your disclosure in full by that point, and be ready to discuss the merits of the case with the Crown attorney at this point.

Defence counsel will let the crown counsel know about any outstanding disclosure issues, as well as any other major issues that are present in the disclosure – including eligible notes, lack of relevancy of disclosure, or missing third party notes.

It is typically at this point, where the defence counsel will advise the Crown whether the individuals wants to plead guilty or proceed to trial. Charter applications, pre-trial motions, witnesses and issues such as date, jurisdiction and I.D. are discussed at this point. After the crown-pre-trial the matter should be ready to either proceed to trial or a guilty plea (however, in some cases, where there are a number of outstanding issues – more crown pre-trials may be required).

If there are more complex issues involved with the matter, or the matter is scheduled for more than one day at trial – then a judicial pre-trial may be required (specifically in the jurisdiction of Toronto).

Judicial Pre-Trial

A judicial pre-trial occurs between defence counsel, crown counsel and a judge. The judge will listen to arguments from both sides, as well as any potential Charter arguments, and pre-trial motions. The judge will give his/her legal opinion with respect to the merits of the case, and advise the crown or defence counsel as to the strengths/weaknesses of their respective cases. The judge will also take care of ‘housekeeping’ issues such as discussing issues such as any defence admissions, and any agreed statement of facts. Typically the judge sitting at the judicial pre-trial will not be the judge who hears the trial in the matter. The judge will most likely also provide a pre-trial guilty plea position to the defence counsel. If this position is attractive, the defence counsel may wish to bring the matter back in front of that same judge in order for the individual to plead guilty and receive a favourable sentence.

Guilty Plea

A guilty plea is where the individual before the court admits to the essential elements of the offence and accepts criminal responsibility for the offence before the court. A plea comprehension form is typically signed by defence counsel before the guilty plea. That form specifically states that the guilty plea is an informed plea, in that the individual enters the plea under his/her own volition (by their own choice) and not under threat or inducement by another other. It also includes that the individuals hereby waives their right to a trial, admits to the essential elements of the offence, does not have any defences, and understands that the judge has ultimate discretion with respect to the disposition of the charges (sentencing).

A joint position is where defence counsel and the crown attorney agree to a sentencing position (ie. absolute discharge, with 40 hours community service), and that this position will be put before the judge for his/her agreement. Joint positions are useful where defence counsel is able to negotiate a favourable sentencing position for their clients.
Trial Date

A criminal case typically has a life-cycle of about 6-9 months. Within this period the individual will start with his/her first appearance and end with either a trial date or guilty plea or withdrawal of charges.

Trials are often set after the crown pre-trial has been conducted, and disclosure issues have been determined. Courts in Toronto usually are very busy and for that reason trials will be scheduled within a 4-8 month period.

At trial, the Crown counsel must begin with their case first, and they will call crown witnesses typically including police officers, and the complainant (alleged victim). If by the end of the Crown’s case they are unable to prove the offence beyond a reasonable doubt, then the defence counsel can request a directed verdict.

Where the Crown has put forward a strong enough case, and closed its case, the focus shifts to the defence’s case, whereby defence counsel must call its witnesses in order to introduce all the evidence that they rely on.

Ensure that you have a strong, experienced counsel, prepared to protect your rights at trial – for more information, call Rishi Singh Law at 416 858 7800.

Drug Charges, Importation Charges, Importing Drugs

2011-08-16T03:04:18Z

DRUG IMPORTING CHARGES

Under the Controlled Drugs and Substances Act, it is an offence to import any illicit drug into Canada.

Importing drugs typically implies an individual who is the possession of illicit drugs moving the items from one international region into the borders of Canada. However, it is not necessary for the individual to be in actual possession of the drugs upon entering the country. Instead, if it can be proven that the individual was in anyway involved in causing/planning for the drugs to be brought over the border: there could be sufficient grounds for conviction.

Knowledge is a central legal principle for the offence of importing drugs. In order to convict the individual of this offence, it must be shown that the individual had knowledge that illicit substance was being brought over the border. Therefore, if it is proven that an individual had no knowledge that an illicit drug was packaged in their goods, and therefore no knowledge that they in fact importing the drug, the requisite intention would not be present, and a conviction would be not possible.

Defences to Drug Importation:

Including lack of knowledge and intent, the following are some additional defences to Drug Importing:

Necessity:

If it can be shown that an individual has imported drugs because there was an urgent situation of imminent peril and there was no reasonable legal alternative to disobeying the law, and there was proportionality between the harm inflicted (the offence) and the harm avoided, then one can successfully use the defence of necessity.

Duress:

Duress arises when a person breaks the law because they are under the compulsion of threats and immediate fear of death or bodily harm. For instance, if a person was kidnapped by gun point, and brought over the border, the defence of duress may be relied on.

Penalties for drug importing

The maximum penalty for importing a drug banned under the Controlled Drugs and Substances Act can range from 10 years to life in prison. Penalties will vary depending on the nature of the drug imported as well as the quantity of the drugs. The importation of “hard drugs” such as heroin or cocaine will demand higher sentences than “softer drugs” such as hashish or marijuana.

For those individuals who have been charged with drug possession, or possession for the purpose of trafficking, it is in your best interest to contact a criminal lawyer in order to evaluate your options. Impact Law has represented individuals who have been charged with possession and trafficking of cocaine, heroin, ecstasy, marijuana, hashish, speed, GHB, PCP, Doda (poppy seeds), magic mushrooms, and ketamine or any other drug listed in Schedule I, Schedule II, Schedule III or Schedule IV of the Controlled Drugs and Substances Act.

Domestic Assault

2011-08-16T02:33:58Z

DOMESTIC ASSAULT (SPOUSAL)

Defined broadly domestic violence consists of an isolated or a pattern of abusive behaviours by one or both partners in a relationship such as marriage, dating, family, friends or common law union.

If you or someone you know has been involved, needs advice concerning a domestic assault, or charge contact Rishi Singh Law® immediately.

DOMESTIC ASSAULT IS A SERIOUS CRIMINAL CHARGE

A domestic charge is very serious and considered aggravating in nature. In fact, many courthouses have designated a team of Crown Attorneys whom specifically prosecute these matters.

Typically, in a domestic charge a complaint from one person to the police regarding the behaviour of another person, which may involve violence, criminal harassment or the utterance of threats, is alleged. Subsequently, the police will arrive to the alleged scene of the incident, usually a dwelling and will arrest the ‘so called abuser’.

Irrespective of whether there are any physical injuries, the alleged abuser may likely find his/her self-facing serious criminal charges. Even if, the complainant subsequently does not wish the matter to go forward, the Crown Attorney will decide whether the charges will continue based on a reasonable prospect of conviction. The Crown Policy Manual states that domestic matters “should be prosecuted as vigorously as other serious criminal matters”. In all likelihood, the Crown Attorney will not withdraw the charges and will proceed to trial.

BAIL CONDITIONS

Typically, a charge of domestic assault will inevitably bring with it bail conditions. For example, the accused person will be restricted from any direct or indirect communication with the complainant, or from entering the domestic residence.

An experienced lawyer may often get your bail conditions varied either on consent with the Crown Attorney or by a contested hearing in front of the judge.

DEFENCES TO DOMESTIC ASSAULT

Rishi Singh Law® is experienced with domestic assault cases and can assess your case and advice you on your best available defences. For an in-depth review of available defences, please read our article on Assault.

A criminal conviction carries serious consequences to your reputation, employment and liberty. At Rishi Singh Law®, we will discuss what options are available to you before you enter an unfamiliar courtroom. For more information and in particular legal advice concerning domestic assault charges, please contact Rishi Singh Law® at 416-858-7800.

Police Stop for No Reason? Profiling in a High Crime Area?

2011-08-14T14:41:15Z

Introduction This memorandum reviews the principles and case law that apply in determining whether a police stop of a person violates s.9 of the Charter of Rights. Section 9 of the Charter states: Everyone has the right not to be arbitrarily detained or imprisoned. Section 9 of the Charter expresses a fundamental norm of the rule of law: the state may not detain arbitrarily, but only in accordance with law: Charkaoui v. Minister of Citizenship and Immigration (2007), 276 D.L.R.(4th) 594 (S.C.C.), at para. 88. The requirements for establishing a s.9 violation, namely, a “detention” that is “arbitrary” were addressed in Grant, 2009 SCC 32. In Grant Grant, 2009 SCC 32, 245 C.C.C.(3d) 1, above, McLachlin C.J.C. and Charron J. summarized the principles and set out criteria for determining “detention” (at para. 44): 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. In Grant, above, the Supreme Court held that the accused was detained when police officers, on patrol in a high crime area to deter crime during the high school lunch period, blocked his path, told him to keep his hands in front of him and asked him pointed questions as to “whether he had anything on him that he shouldn’t.” In response to the police questioning, which commenced with a request for identification, the accused initially admitted that he had a small quantity of marijuana and then, on further questioning, admitted that he had a gun. McLachlin C.J.C. and Charron J., on behalf of the majority, stated that the initial encounter, in which one officer blocked the accused’s path and made general inquiries, did not constitute a “detention.” However, the combination of the officer telling the accused to keep his hands visible, two other officers taking tactical adversarial positions and the pointed line of questioning resulted in a detention. A reasonable person in the accused’s position would have concluded that his or her right to choose how to interact with the police (i.e., whether to leave or to comply) had been removed. As there were no legal grounds or reasonable suspicion for the detention, the court held that the accused’s detention was arbitrary and violated s.9 of the Charter. In this case I accept that PC Brett began the conversation by saying “How are you all doing tonight?” and said “I need to see some identification.” This was said in a polite, non-aggressive tone. Mr. Davidson role played the initial approach of PC Brett and his evidence confirms this. However once identification is taken by police, it is unlikely that an individual will feel that they are free to leave. While this is not determinative of the issue of detention, it does go to the state of mind of the individual and their subjective belief as to detention (R. v. Solomon, [2009] O.J. No. 4578 (Sup. Ct.) (QL) at para. 28). Other factors to consider here that point to detention include the fact that the detention was not momentary, as it took PC Brett 5 minutes to run Mr. Davidson’s information through the databases, and that Mr. Davidson was a black man. Minority status was specifically identified in Grant as a factor to be considered in determining detention. In Mirhadizaden, [1987] O.J. No. 1934 (Prov.Ct.), the accused’s Charter rights were violated when a police officer “accosted” him as he was walking down the street (laughing and talking to himself), asked what he had under his poncho and lifted it up to reveal a knife. The court determined that the police could not stop and question the accused because of bizarre behaviour and concluded that the evidence should be excluded. Harris J. stated: There is a question as to whether a police officer is allowed to stop and question a person, absent reasonable and probable grounds to believe an offence has been committed. This is not a question of arrest. It is a question of simply stopping a person and questioning him, as the officer did here. The accused’s behaviour was bizarre; it is not suggested that his actions were suspicious. It appears to me to be quite clear that a police officer is not permitted to stop and question a person simply because of his bizarre behaviour…. … The arrest of Mr. Mirhadizaden, on the face of it, appears to me to violate Sections 8 and 9 of the Charter. I am satisfied that the evidence for possession of a concealed weapon was obtained in a manner that infringed the accused’s rights under both those sections. That evidence must, therefore, be excluded under Section 24 if the defence establishes that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. In my view, that has been established in this case; to hold otherwise would encourage, or at least permit the police to disregard the citizen’s right to act in ways not normal, but not unlawful. Mere Presence in High Crime Area Insufficient to Detain or Arrest It was recognized in Mann (2004), 185 C.C.C.(3d) 308, [2004] S.C.J. No. 49 (S.C.C.), that a person’s presence in a high crime area does not, of itself, provide a lawful basis for detention and that it can only do so based on the person’s proximity to a particular crime. In Mann, while finding that the police had lawful authority to detain accused based on his presence near the scene of a reported break and enter in progress and his closely matching the description of the suspect, Iacobucci J., on behalf of the majority, stated (at para. 47) Similarly, in Heslop, [2005] O.J. No. 2072 (S.C.J.), where the police observed the accused driving around a parking lot known for criminal activity and apparently returning to the parking lot in order to avoid being followed by the police, the court held that the ensuing motor vehicle stop and investigation violated the accused’s ss.8, 9 and 10(b) Charter rights and that the cocaine found in his vehicle should be excluded. In finding that the police did not have lawful authority to detain the accused, Beaulieu J. stated (at paras. 32-33): Did Officer James have articulable cause (or “reasonable grounds”, in the Mann reformulation of the Simpson test) to detain and question Mr. Heslop? In and of itself, Mr. Heslop’s behaviour in the parking lot, his lack of proper identification and registration documents and his previous criminal record do not, in my view, establish articulable cause for Officer James’ detention. Unlike in Mann, where there was a particular crime being investigated, and Mann fit the description of the suspect, in this case, there was no evidence that the officer was conducting an investigation into any particular criminal activity to which he believed that Mr. Heslop might be linked. The factors relied on by Officer James do not give rise to reasonable cause to suspect that Mr. Heslop was involved in any criminal activity. In addition, the fact that Mr. Heslop’s activities occurred in the Peanut Plaza, a location known to Officer James as a high-crime area, even in conjunction with

Stripped of Citizenship?

2011-07-21T03:44:58Z

Richard J. Brennan National Affairs Writer

Immigration Minister Jason Kenney confirmed Wednesday that as many as 1,800 new Canadians could be stripped of their citizenship because they were obtained fraudulently. “We are in the process of notifying them that we will be revoking their citizenship because Canadian citizenship is not for sale,” Kenney told the Economic Club of Canada. Kenney said some of the individuals are believed to have used “unscrupulous” immigration consultants who submitted fraudulent applications on behalf of people who did not meet the qualifications for citizenship. The 1,800 were identified following a three-year investigation by the RCMP, other police forces and Citizenship and Immigration Canada. “By the way, we are not done with our investigation” Kenney said, noting that many of the accused live outside the country. They can challenge the decision in Federal Court. If not, Cabinet will move to revoke their citizenship. Citizenship revocation is relatively uncommon in Canada with only 63 people being stripped of their citizenship since 1977, Kenney said. Most were for reasons related to residence fraud, criminality and false identity, or concealing their involvement in war crimes. Speaking in Vancouver on Tuesday, Kenney said Ottawa is trying to discourage immigration fraud. “For those who simply touch down and try to get a Canadian passport as a … passport of convenience, who don’t pay our taxes but who do consume our social benefits, I think that’s dishonourable,” he told reporters after delivering a speech to the Vancouver Board of Trade. “There are many ways that we are combating immigration fraud and abuse of our generosity, whether it is from [bogus] asylum claimants, crooked immigration consultants, people smugglers [or] people who are abusing our citizenship program,” he said. Kenney also announced that Canada will soon be introducing multi-year visas for low-risk visitors from around the world that will last 10 years.

REVOCATION OF LANDED IMMIGRANT STATUS

2011-07-15T17:34:07Z

So you think that now because you have your landed immigrant status you are safe here in Canada! You have all the rights and entitlements of a Canadian! Well think again you are not entitled to carry a Canadian Passport you are still carrying the passport of your country of origin therefore you are still only a guest in the country with some privileges. You aren’t allowed to vote so therefore you are not really entitled to be involved in setting the parameters whereby the country is governed, and if you contravene the laws of the land you may be subject to getting your hard won status revoked.

You may have enjoyed landed immigrant status for twelve or thirteen years, but if you are found to have engaged in criminal activities you could easily become the subject of a removal order and have your status revoked if your criminality is serious enough.

This condition, however, is not strictly limited to criminality you might also have your status removed if you violate the terms and conditions of the Immigration Act where your landed immigrant status was originally obtained! Only you yourself would know what terms and conditions have been imposed upon you at the time of landing. For example if you are a spouse or common-law partner and you are no longer residing with your sponsor at the time your landed immigrant status is approved, or if you have not completed the requisite number of days, two years out of five at your convenience in Canada to maintain you’re landed immigrant status, your status maybe revoked as you are no longer fulfilling the terms of the sponsorship!

It is rumored that recently Canada Immigration has put twenty thousand on notice who might fit into one of the above noted categories. Should you be one of the people in question you need to seek legal representation immediately

The remedies for these problems are an Appeal to the Appeals Section of the Immigration and Refugee Board, or if you are not successful there an appeal to the Federal Court of Canada.

As legal service providers we are able to offer you help and support should you be faced with any of these issues. We have sixteen years of experience in the legal field with specialization in Immigration and Criminal Law. We are well equipped to help you deal with these eventualities and provide assistance with getting your life back on track!

24 Hour Bail Line: (416) 858-7800 – All Criminal Charges

2011-09-08T01:18:55Z

Our Criminal Bail Hot-Line is open 24 hours a day and we are available to travel to any courthouse in Ontario.

Domestic Assault

2011-08-18T05:19:33Z

Domestic Assault is a very serious allegation, and may have a major impact on your life. It is important to know your rights, and understand exactly what your bail conditions are, and how you should follow them.

Theft and Fraud

2011-08-18T05:22:01Z

The offences of Theft and Fraud are very serious offences. If one is convicted of these offences they could be looking at jail time.

Drinking and Driving

2011-08-18T05:23:56Z

If you are arrested for driving under the influence in Ontario, both the courts and the Ministry of Transport may act to take away your driving privilege, without regard to how essential driving is to your life or the life of your family.