Why Your Criminal Case Has the Best Shot at Leave to Appeal to the Supreme Court of Canada of Any Kind of Case

Using 2017 statistics, while only 26% of all Supreme Court of Canada leave (permission) to appeal applications were criminal in nature, a full 43% of appeals heard by the court were criminal. And of appeals where leave is granted by the Court, stats show almost half are successful. What this means is that you’ve got way better than the average 1 in 10 chance of your appeal being heard by the Supremes if it’s a criminal case you’re trying to get them to pay attention to, with your odds in fact being a bit under 1 in 5. That’s not bad for reportedly the busiest national court of last resort in the Commonwealth.

While most criminal defendants in Canada have a right to appeal convictions (and some other orders) at least once to a provincial court of appeal, and sometimes twice if the conviction occurred in a provincial court permitting an intermediary Summary Conviction Appeal to a Superior Court prior to proceeding to the provincial court of appeal, only in a few criminal cases will there be an appeal “as of right” to the SCC. Most of the time you need to ask that Court for permission to hear your case. But because the SCC is clearly prioritizing criminal cases, likely because of the liberty interests at stake, all criminal defendants should have confidence that because of the huge impact on their lives that criminal dispositions may have, a Supreme Court of Canada leave to appeal application can be worth the effort, time and expense.

So regardless of whether you think you’ve been wrongly convicted and deserve a new trial, had an unlawful extradition or other non-conviction criminal order like proceeds of crime forfeiture made against you, or are just disputing your overly harsh sentence which appears to be way outside the acceptable range, you’ve potentially got another kick at the can even if you’ve already lost before the highest court of appeal in your province or territory.

As a lawyer who has appeared on several criminal cases before the Supreme Court of Canada, here are my three tips for successfully seeking leave to appeal your criminal case to the SCC.

  1. Convince the Court it’s About Way More Than Just You - because the SCC is so busy, Parliament decided in passing s. 40 of the Supreme Court Act that only cases which involve a question “by reason of its public importance … or is, for any other reason, of such a nature or significance as to warrant decision by it” will be heard by the Court. In the criminal law world, this means raising significant and novel Canadian Charter of Rights and Freedoms issues, or issues of complex and contradictory statutory interpretation, or issues of fundamental procedural fairness and natural justice that extend far beyond your personal circumstances such that ideally they have national scope, is most likely to engage the SCC in granting you leave to be heard.

  2. Be on Time for Meeting the 60 Day Time Limit - while you might initially think the SCC is being generous by giving you 60 days to bring your leave to appeal application, as compared to the normal 30 days that most provincial courts of appeal provide for filing a notice of appeal, you could be shocked to find out that those 60 days are all you have to totally perfect your application by filing all the voluminous required materials, in exactly the right format required by the Rules. And be certain those Rules can be unique, like printing on the the left (back) sides of each double sided page so that the judges can take notes on the front right (front) sides of each page. No other Court I know of requires that!

  3. Use a SCC Agent - only a lawyer practicing in the National Capital Region is permitted to deal with the SCC on your behalf. So regardless of whether you are self-represented, or using an experienced lawyer to put together your leave application, you aren’t permitted to directly file it with the Court without an agent. It might seem a bit like a rule dating back to horse and buggy days, but in reality the leave application has such unique documentary requirements that an agent can best assist you in ensuring the Court accepts your filing.

Gordon Scott Campbell is author of The Investigator’s Legal Handbook (Carswell/Yvon Blais) series of criminal law books, has served with the Department of Justice Canada and Attorney General of Ontario in preparing or responding to Supreme Court of Canada leave to appeal applications, and now helps private clients as both counsel and agent for SCC work.

What Every Permanent Resident of Canada Needs to Know About the New Impaired Driving (DUI/DWI) Laws

There are likely well over a million permanent residents in Canada. All of them now face potential deportation from Canada upon conviction for a single offence for which they almost certainly won’t go to jail after Parliament bumped the maximum punishment for impaired driving from five to ten years. Parliament never intended this result. But sometimes the law is all about unintended consequences. Here’s what you need to know about the risks of this legal change and how to manage them if you have PR or other non-citizen status in Canada.

Parliament’s Legislative Intent for Impaired Driving

For a first offence of impaired driving, Parliament intended a combination of deterrence, denunciation and rehabilitation measures that it hoped would reduce impaired driving by imposing mandatory minimum fines which ensured those convicted received a criminal record and at least a one year driving prohibition. And provinces have been permitted to soften the blow a bit to promote rehabilitation through offenders getting licences back earlier upon taking courses and installing interlock devices on vehicles.

Parliament’s goals have been met, as rates of impaired driving across Canada have been dropping over a multi-decade period.

We could debate the morals of banning large numbers of people from Canada for impaired driving if that had been Parliament’s intent. But it wasn’t. It was only after marihuana law reform had solidified in its final draft stages that it became apparent what the impaired driving reforms would do to non-citizens. And so far the government hasn’t moved to fix the situation, because as we all know government can move very slowly.

When the maximum penalty for impaired driving was five years imprisonment, I’d never heard of anyone receiving anything close to that unless it was in combination with other much more serious offences - like manslaughter - which had their own much higher penalties. Everyone convicted for the first time of impaired driving, and nothing else, receives a fine (at least in all the jurisdictions I’ve practiced in). The only question is how much. On subsequent offences, mandatory minimum jail sentences start to kick in. But we’re talking days and months. Not years. So booting the top sentence from 5 years to 10 years arguably did nothing other than potentially harm permanent residents.

Impaired Penalties Have Changed Little Over Time

Canada’s drinking and driving laws since their first enactment in 1921 have changed a lot less than many people think. Initially the mandatory minimum penalty was seven days imprisonment on a first offence, 30 days imprisonment for a second offence, and 90 days for a third offence, which is extremely similar to the current setup other than the first offence having being dropped to a fine as minimum punishment, and the third offence being bumped up to a 120 days.

There have been lots of technical tweaks to drinking and driving laws since 1921, particularly to accommodate the introduction of the breathalyzer which first showed up earlier than most people would assume in 1954. But the fundamental core outcomes of deterrence, denunciation and rehabilitation have not changed. Until now, when it effectively became an anti-immigrant offence.

Impaired Driving is the Second Most Common Criminal Offence in Canada

Charges of impaired driving constitute over 10 % of all criminal court dockets, making it the second most common offence in Canada after theft. There are over 70,000 charges of impaired driving annually in Canada (using 2016 figures). 

But unlike theft where an offender can receive a “discharge” which means there is a finding of guilt, but no “conviction,” impaired driving has a mandatory minimum fine attached to it guaranteeing a criminal record. A discharge isn’t a possible outcome. So the consequences for permanent residents (and others) may be dire.

The Huge Immigration Impact of Impaired Driving Amendments

A Government of Canada press release from 22 October 2018 perhaps best sums up the serious consequences of the impaired driving offence changes for PRs (and other non-Citizens):

If you commit an impaired driving or a cannabis-related crime, you could face a fine, criminal charges or jail. However, we may also find you inadmissible to Canada for serious criminality. It doesn’t matter if the crime happened inside or outside Canada. This means:

  • permanent residents may lose their status and have to leave the country

  • temporary residents (including visitors, international students and foreign workers) may not be able to enter or stay in Canada

  • refugee claimants may not be eligible to have their claim referred for a refugee hearing

Appeal rights for permanent residents and foreign nationals, including sponsored members of the family class, could also be affected.

https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/impaired-driving-cannabis-penalties-affect-immigration-status.html

This is all very, very bad.

Why Impaired Driving Amendments Raise Fairness Concerns For Immigrants

The cutoff for immigration “serious criminality” is a maximum available punishment of 10 years or more, so suddenly all non-citizens can be caught in a trap set by this second most common offence in Canada. Now you might be saying, “hey, it can’t happen to me!” Or, “yeah, they deserve it!” But there are lots of permanent residents who may be convicted of very serious offences for which they do significant jail time - say 2 years imprisonment for $2 million in income tax evasion - who won’t have any risk of deportation because the maximum penalty for tax evasion is five years imprisonment under the Income Tax Act.

So you could get deported for a $1500 fine offence, but don’t get deported after two years imprisonment. Make sense? Well, unfortunately that’s just the way it is now. So what to be done?

Top 4 Tips for an Impaired Driving Immigration Defence Plan

So if you’re a permanent resident (or have other Canadian immigration status short of citizenship) who is facing an impaired driving charge, or have a family member or friend in that situation, what should be done? As a lawyer practicing both immigration and criminal defence law, my suggestions are:

  1. NEVER PLEAD GUILTY to impaired driving if you’re not a citizen and need to retain your right to be in Canada. Fighting it out to trial means you have a chance of acquittal - even if a small chance - and the penalty you receive after trial on a first offence is usually almost identical to the penalty you would have received on a plea. They’ll usually both be fines.

    Just the fine after trial will be a bit higher (as in hundreds of dollars higher, not thousands). An early plea might get you your licence back a bit sooner if you complete a provincial course and install an ignition interlock device on your vehicle, but that’s irrelevant if you’ve been deported back to your country of origin. 

  2. HIRE A CRIMINAL DEFENCE LAWYER. Hiring a lawyer to professionally defend you for an offence like this won’t bankrupt you . This will likely only be about a one day trial. So total work by a lawyer might be about three days. Maybe four. This won’t be a multi-week fraud or murder trial that would test the financial resources of even the wealthiest accused.

    Virtually all criminal defence lawyers offer block flat fees, so you’ll know up front what the defence will cost. Absolutely don’t try to run a trial yourself. Winning a DUI trial is hard enough even for experienced lawyers. 

  3. IF YOU’RE CONVICTED, HIRE AN IMMIGRATION LAWYER. If you can afford it, hire an immigration lawyer prior to conviction to collaborate with you criminal lawyer. While not everyone who is convicted of an offence for which immigration criminal inadmissibility can be triggered will receive a letter from the CBSA/IRCC, you’ve got to prepare in advance for this outcome since you might not have long to respond when you do get a letter. You might have immigration law arguments available to you to fight back against removal from Canada.

  4. HAVE A BACKUP PLAN. It’s possible that despite all your efforts, you might still lose your permanent residency or other status in Canada after an impaired conviction. But this doesn’t mean that all your future involvement with Canada is hopeless. You may still have options of seeking special permission to return to Canada in the interim (especially if you can demonstrate compelling grounds), and of applying for criminal rehabilitation in 5 years. 

Gordon S. Campbell practices immigration law throughout Canada and criminal defence law throughout Ontario. He’s served as legal counsel to the CBSA, IRCC, Justice Canada, and is author of The Investigator’s Legal Handbook series of books. Learn more at compleximmigration.ca and defenceeast.com.

Top 5 Things NOT to Do if Police Show Up at Your Door Asking if You Mind if They Come in to Ask a Few Questions

After being stopped by the police while driving, the not uncommon law enforcement thing we might all dread most is the police showing up at our door wanting to come in to “just to ask a few questions.” What should you do?

Having seen this scenario go down in all sort of ways from both the Federal Crown Prosecutor and defence counsel perspective, here are my top five things NOT to do. 

1. Hide 

Hiding from an angry neighbour or ex-spouse hammering on your door might be a viable strategy. Hiding from the police is not. 

The police have quite broad exigent circumstances common law search powers. That means if they believe there is an immediate risk to human safety, they might be able to break down your door and enter your residence quite lawfully without any warrant.

If you hide, you won’t know why they’re there. They might be responding to a report of a 911 call from inside your residence (even if it wasn’t you who placed it). They might be responding to a complaint from a neighbour. Hiding won't necessarily make them go away.

2. Invite them in 

Instead, ask if you can come down to the detachment to answers questions. They have no more right to detain or arrest you at a police detachment than they do in your home. So there is no added risk of you attending at the detachment, and then not being allowed to leave. Whereas once in your home, there is a risk of their noticing things or poking about. 

If they truly only have a couple of questions, you could speak to them on your doorstep. I know not inviting them in may seem impolite, and you may have nothing to hide. But if controlling the privacy of your residence is important to you, there's no need to have the police sitting on your couch drinking tea. 

3. Tell them anything without finding out the reasons why they want to speak to you

While it’s easy for criminal defence lawyers to constantly tell you to say nothing to the police, that may be easier said than done. People seem to feel a compulsion to talk, even though generally anything you say isn’t going to help you. But this is especially the case if you don’t know what the police are investigating, and what they think they know about your role in the investigation, prior to answering any of their questions.

Unfortunately, contrary to widely held belief, the police can lawfully lie to you. So asking them what is going on isn’t a sure fire way to know how you should be answering questions. But at least it's a start.

If you're a family members of a victim or a witness to a crime, and are absolutely sure you're not a potential suspect, then talk away. Just be as sure as you can about your status up front, and remember that even telling the police you didn't do something can be used against you later. 

4. Answer every single question put to you, because you believe you have a duty to help the police

Generally speaking, you don’t have a duty to help the police. There are a few situations, like for auto insurance situations, where you are obliged to answer their questions. But the best way to resolve any doubts about obligation to answer is to pose the exceedingly simple question to the police questioning you: do I have to answer?

They may give you all sorts of justifications as to why it would be in your best interests to answer, but what you need to know is are you obliged to answer? Usually the answer will be no. 

Thus if you do have an uncontrollable to talk, you don’t have to talk about everything. You can pick and choose. Sort of like you would in a media interview. Police questions can even be considered suggestions for conversation, not mandatory topics. It will only be in court before a judge (or in a few other very limited circumstances) that you'll be legally obliged to answer every relevant and proper question put to you.

5. Lie

Yes, I know this might seem obvious. But it seems to be human nature to make things up, especially in nervous situations, and even when you haven’t done anything. People do it all the time, even when it isn’t to their advantage.

Far better to say nothing at all, than to lie. Lying to the police can itself be a criminal offence, whereas saying nothing will never be a criminal offence (though it might get you into trouble with some regulatory investigations, thus the need to carefully clarify the purpose of questions, and the requirement for you to answer). 

Follow these top 5 things NOT to do, and you'll hopefully be a little less nervous if the police ever do knock on your door. 

Gordon S. Campbell is a criminal, regulatory and professional conduct trial and appellate defence lawyer practicing throughout Ontario. He served as a Federal Crown prosecutor, counsel to the RCMP and Military Police Complaints Commission, and is author of three books on the law of investigations. Learn more at www.defenceeast.com

Must I Consent to a Police Request to Search my Vehicle, Home or Person?

"No." That's the simple answer to the ever important question: "do I have to consent to a police request to search?" Unlike others of my "maybe" lawyerish answers to client questions that some might consider not totally helpful in their lack of definitiveness, consent to search spawns a clear cut answer - at least in Canada. 

Police questioning is totally different from police searches as to whether you have a choice or not in responding. Sometimes you must answer police questions, depending on what they are asking about (like insurance automobile questions). And sometimes it's in your best interests to answer police questions in an attempt to clear up suspicions and avoid being charged, even if you aren't obliged to answer (though generally I tell my clients not to say anything). But never do you have to consent to a search.

Either the Police Have a Power to Search or They Don't

Either the police have powers and grounds to search, or they don't. It's only when they don't have grounds that they might ask you a question after a highway speeding stop like: "you mind if I take a look in your trunk?" And sometimes if you do say "no", you might get a response like "hey, if you don't have anything to hide, why would you say no?" Your best response is to remain firm and polite in your "no." At the very least, call a lawyer for advice. 

Sometimes, the police might even pull out a form for you to sign, which says that you've been told: (1) you don't have to consent, (2) that you can withdraw your consent at any time, and (3) anything found during the search can later be used against you as evidence in court. Now reading this, you might be thinking: "Why would anyone consent? I would certainly never consent! I'm not that stupid!"

Why Do People Consent?

But thousands of people a year throughout Canada (and in other countries with similar constitutional protections against unreasonable search and seizure, like the United States) do just that, and consent to searches where the police have no grounds to search. Some even carefully read those forms, do understand them, but sign anyway. Why?

It seems to be something to do with people feeling that: (1) they have no choice, (2) they have nothing to hide, or (3) even though they do have something to hide, the police won't find it, and this is the best way to get rid of them. These "yes" men and women are wrong on every count. 

First, you do have a choice if the police ask if you mind if they do a search. Be it a search of your vehicle, a search of your house or office, a search of a bag you are carrying, or a search of your person, just say that you do mind. Be polite about it. You can even ask whether the police will go ahead without your consent, because they have some kind of other authority. 

The Police May Already Have Other Authority to Search

Sometimes the police will already have - or have sufficient grounds to obtain - a search warrant to search your vehicle, house or office. If they do, then your consent is irrelevant. Don't try to stop the police from executing a warrant (or otherwise conducting any kind of search), unless you want to be charged with obstructing justice. But they must get the warrant from a judge or justice before conducting a search, or have some other kind of lawful power to search without consent. 

Sometimes the police will already have grounds and powers to search incident to arrest without a warrant. Again, if they do then your consent is irrelevant. But they must have first arrested you, told you what you are being charged with (unless it is an emergency), and not exceed the limits of the search incident to arrest power (usually limited to your person and what you are carrying - though occasionally it might extend to a vehicle you are in; it will never extend to your whole house or office). 

Sometimes the police will be able to invoke exigent circumstances to search without a warrant or arrest if there is an emergency situation, where the search just can't wait. Again, your consent will be irrelevant. Though be aware that true exigent circumstances searches are very rare, since the police do have investigative detention powers to hold you, your vehicle, or even your home or office for a reasonable period of time pending the arrival of a search warrant. 

All Consents are Vulnerable to Challenge

If my police powers to search explanation is starting to sound a bit complicated, that's because it is complicated. Lawyers and judges disagree frequently about when particular powers exist, and well intentioned police officers can certainly get it wrong if the judges are having trouble getting it right. Though throughout the training I still do for police officers, the best mantra to repeat is: "if in doubt, get a warrant." I especially teach my police students: never rely on consent, it's too uncertain of an authority, with too unpredictable later results. 

If you are the subject of a police search - by consent or otherwise - and something incriminating is found that leads to you being charged, my recommendation is to consult a lawyer about your prospects for challenging the search in court. I'm not saying you are guaranteed success on such a challenge, but in my experience most people never challenge police searches. Sometimes a search will be completely legal, and sometimes it won't be. But only by involving a lawyer will you be able to find out which category your search falls into.

While serving as a Federal Crown Prosecutor I once was involved in a case where a BMW speeding along the TransCanada Highway was stopped by police for a traffic violation. The stopping officer only had grounds for a traffic violation, but his suspicions were quite appropriately aroused. The occupant of the fancy car seemed overly polite when stopped. And overly nervous, constantly shifting in his seat, eyes darting about, hands tightly gripping the steering wheel. Plus the vehicle had out-of-province plates, and the conscientious officer remembered from his training that fast food wrappers strewn about a car might be a sign that the occupants were driving non-stop over a great distance for illicit purposes (yes, there is a course on that, I've seen the materials; it might motivate all of us to tidy our vehicles). 

So, after giving him a speeding ticket, the officer asked the driver if he minded if the officer took a quick look in the trunk of the car. This officer was very well trained, and made it clear to the driver that he didn't need to consent, that he was free to go, and that anything he found could be used against the driver in court. The officer even pulled out a consent form for the driver to sign. Now what the officer definitely didn't know in advance was that the driver had 10 kilos of coke and $100,000 in cash in the trunk. And what do you think that driver did? He signed, and popped the trunk!

 

Gordon S. Campbell practices criminal defence law throughout Ontario, with a focus on search and seizure cases which he has appeared on up to the level of the Supreme Court of Canada. He also trains law enforcement agencies throughout Canada on search warrant & wiretap drafting, and is author of The Investigator's Legal Handbook series of books. Learn more at www.defenceeast.com.

Why You Should Resist the Urge to "Just Get it Over With": Top 5 Considerations for Whether You Should Plead Guilty to any Kind of Charge

Four teens are in a car headed down the 401 from Toronto for a fun weekend in Montreal. The driver's a little over the speed limit - maybe more than a little over. And reasonably enough they get stopped on the highway for a traffic offence. A single marihuana joint is noted by the stopping officer sitting on the vehicle's centre console between driver and front seat passenger. All four are charged with a criminal offence under the Controlled Drugs and Substances Act. What should each of them do? (And no, this is not invented, as defence counsel I've dealt with multiple cases identical to these facts). 

I'm often asked by my clients: "should I plead guilty? What you do think I should do?" These questions are as equally applicable to serious criminal allegations like narcotics trafficking as they are to regulatory offences like highway traffic violations.

Unfortunately, a guilty plea is such a weighty personal decision, potentially having such great ramifications for my clients' lives, that I can't give them direct answers to those kinds of questions. As much as I would like to. But there are a few ways I can help them come to their own most important of personal decisions. 


The best I can do is explain to them: (1) all of their options (sometimes there are more options than simply plead or don't plead); (2) the likely consequences of their options, and (3) that usually they don't have to make an instantaneous decision about pleading. They can take a few days or weeks to talk it over with friends and family, and ask me follow up questions. The last thing I want for any of my clients is to later regret whatever decisions they arrive at. 


There are five primary factors I tell my clients to consider when deciding whether or not to plead.


1. Did you actually commit an offence act? 

For clients who are completely innocent of any wrongdoing, I can't ethically help them plead guilty to things they didn't do. Even though they might be offered good plea "deals" and even though those deals would get their matters out of the way so that they could move on with lives. 

I grew up in a naive bubble thinking the innocent could never be charged. But I've since learned there can be all sorts of factors contributing to who does or doesn't get charged. 

But there's some nuance to this question of whether they actually "did it" from a legal perspective. Even if you didn't do exactly what is alleged factually or legally against you, you might have still committed some kind of other offence, and so you might still be able to properly plead to something. Perhaps just not what you are charged with. Criminal defence lawyers can occasionally magically transform one charge into another charge with the cooperation of the Crown Prosecutor. 

But for others, like the four teens in the car, is it really plausible they were all jointly in possession of one joint?


2. Can you live with likely consequences of a guilty plea?

If the consequence of a plea will be a criminal record, and you absolutely can't live with that - perhaps because it would ruin your career - then you probably won't want to plead. Likewise if there will be a consequence like a two year driving suspension that you can't live with, again you'll want to think twice before pleading.

But if the consequences won't ruin your life - maybe you'll be getting a discharge that avoids a criminal record, or receive a fine that avoids jail - that a plea might be a good idea. But only if you're actually guilty. 


3. Can you financially & emotionally afford to go to trial? 

The answer to this question might depend on the kind of charges you are facing. Going to trial on an impaired driving charge might only cost you a few thousand dollars in legal fees, and the time waiting for a trial date could be under a year. However, going to trial on a drug conspiracy might involved tens of thousands of dollars in legal fees, and many years of legal proceedings as the case drags through first a preliminary inquiry and then possibly a multi-week trial.

Some of my clients just "want to get it over with" and move on with their lives. Whereas others are willing to be patient, and spend a year or more waiting to see how things play out. 

Whether a client gets bail is perhaps the most significant determining factor for continuing to fight a case through to trial. I've had clients spend many years on bail, still able to work and see their families, so long as they comply with their bail conditions. Whereas if you lose your bail hearing, and then possibly lose a bail review, you could be looking a spending far longer behind bars waiting for trial than you would ever spend imprisoned after losing a trial. 


4. Is the sentence after trial likely to be much worse than the sentence on a plea? 

The rule of thumb is that a guilty plea will save you about 1/3 off your sentence. But sometimes the difference may be a lot more or less. Like the difference between getting a criminal record, and not getting a criminal record.

Thus you and your lawyer will need to carefully evaluate the "bad outcome" risk of going to trial. For example, upon a plea to a first offence impaired driving the accused will usually receive a fine. After trial, it will usually also be a fine. Thus there is not much risk in proceeding to trial (although it could effectively result in a longer period of driving prohibition). But if the Crown will take a fine on a plea, and will want three months in jail after trial, then that is a huge difference. 


5. What are the chances of winning a trial? 

This is a question to which your lawyer might not be able to give you precise odds, but she or he should be able to tell you in general terms whether you have a defence to present. Sometimes the defence might be very "technical" (like that an officer wasn't properly qualified to administer a particular test), sometimes it might be based on a violation of your "rights" (like that there was no legal power to search you car), and at other times it could simply be based on your testimony needing to be believed at trial that you "didn't do it." Your lawyer should be able to tell you if you have good or bad prospects of success at trial, based on the evidence the Crown plans to present against you, and the legal defences you'll be able to raise. 

But ultimately any trial is a gamble, for both sides. Because the criminal standard of proof of "beyond a reasonable doubt" is so high, no matter what you're accused of, and no matter how overwhelming the evidence against you, you'll probably always stand a chance at trial. Memories fade. Evidence is lost. Judges are humans who can come to different opinions faced with the same evidence. 


For any these top 5 considerations, the key point to remember is that you should get some legal advice prior to making the decision to plead or not plead. That advice might be from your own privately retained lawyer, from a lawyer paid by legal aid, or from duty counsel in the courthouse. Where you get the advice is less important than the fact that you need such advice prior to pleading or setting a trial date. Information is power here. The last thing you should be doing is pleading to something you didn't do, and to which you have a strong defence, just to get it over with, or because the system seems stacked against you.

 

Gordon S. Campbell is a criminal and regulatory defence lawyer, who served as a Federal Crown Prosecutor on trials and appeals throughout Canada up to the level of the Supreme Court of Canada. He's the author of The Investigator's Legal Handbook (Carswell 2006; 2nd ed 2014) and Le manuel juridique de l'enquêteur (Yvon Blais, 2010) series of books. Learn more at defenceeast.com

Are the Majority of Search Warrants Issued in Canada Actually Illegal?

Parliament created search warrants as important police investigative tools for locations where a reasonable expectation of privacy exists. Their use is especially popular in cases where no live witnesses are ready or able to provide direct evidence of crime. Drugs cases (where warrants seek out the drugs or money), fraud cases (where warrants seek out incriminating documents), and serious crimes of violence (where warrants often seek out weapons and DNA) commonly use them as key parts of the investigations. 

The Warrant Problem: Drafting is the Weak Link

Obtaining a valid warrant generally requires investigators to link a thing to a place to an offence to a person, including providing full and frank disclosure of all relevant information to a judge or justice sufficient to support the issuance of the warrant. Officers must also execute warrants in a respectful and non-abusive manner in accordance with court-imposed terms, and properly care for and report back to the court on anything seized. But it's usually the drafting of the warrant itself that is the weak search link. 

Are 61% of Search Warrants Really Invalid?

For defence counsel, going after the legality of a search warrant is often the softest target in an investigation due to the fact that the majority of warrants out there were likely improperly issued and are in fact illegal. That's right, you heard me correctly, the majority.

Don't take my word for it, take the word of three highly accomplished criminal lawyers (two of whom are now Ontario judges): Mr. Justice Casey Hill, Judge Leslie Pringle and Scott Hutchinson. A few years back they published an excellent study and article in the Criminal Reports with the pithy title: "Search Warrant: Protection or Illusion?" (2000) 28 C.R. (4th) 89.

They randomly pulled 100 search warrants and the informations to obtain sworn by police in support of the warrants from the files of the provincial courthouse in downtown Toronto where I started my practice as a Federal Crown Prosecutor. Their study revealed that while reviewing justices of the peace had refused police requested warrants in only 7% of cases, a full 61% of warrants would have been struck down if challenged at trial because of serious drafting defects and lack of evidentiary support!

Their conclusion: that the strict requirement in the Criminal Code (and under s. 8 of the Canadian Charter of Rights and Freedoms) for judicial prior authorization of the police to engage in search and seizure in situations involving a reasonable expectation of privacy was in fact only an illusion of a privacy protection, rather than a real concrete protection. Although the study is now a bit dated, I have no reason to believe the situation has dramatically changed in Ontario.

The Root Causes of the Warrant Problem

Speaking as someone who has spent years training the police on how to draft warrants, and who has published three books on the topic, I can say with confidence that there's a lack of resources available to properly train police and regulatory investigators on search warrant drafting, a lack of experienced officers available to draft the warrants, a lack of supervisory systems in place to do quality checks on draft warrants prior to submitting them to the courts, and a lack of lawyers available to advise the police on warrant drafting.

These bad warrants aren't the product of some kind of police conspiracy to pervert the course of justice. They're simply the result of systemic failures, including training failures for the justices of the peace who are supposed to be the guardians reviewing warrant quality prior to their issuance.

Nova Scotia, where I also served as a drug prosecutor, sought to deal with this Canada-wide faulty warrant problem by setting up a centralized justice of the peace call centre of sorts, staffed entirely by lawyers as JPs rather than lay JPs, to review and approve search warrants: http://novascotia.ca/news/release/?id=20011115001

Why You Need Legal Advice on Search Warrant Validity

I don't have stats to offer you from other provinces outside of Ontario on defective warrant rates, but my 22 years in the business tells me this remains a Canada-wide problem - probably better in some places and worse in other places. Anyone charged with an offence based on evidence obtained through the execution of a search warrant, or anyone who has had their property seized as the result of a search with a warrant, should definitely obtain legal advice about the validity of the warrant; you might be surprised by the results.

Four Insider Drug Prosecutor Tips to Surviving a Drug Charge in Canada

Although the media is full of talk about the imminent legalization of the possession and growing of small amounts of marihuana in Canada, the reality is that we're still over a year away from legislation coming into force, that selling (or growing larger amounts) of your own marihuana will remain an offence, and that courts will continue to be clogged with those accused of possessing, selling, producing or importing a host other non-marihuana recreational pharmaceuticals. 

Being investigated, charged or going through the court process for a drug offence can be a very stressful life event. I witnessed that first hand during my many years serving as a Federal Crown drug prosecutor, and continue to see that in my private criminal practice of defending those being investigated for or charged with drug offences.

I've trained the police on search warrants, wiretaps, taking statements and making arrests of those implicated in drug offences. I've even published a series of books related to these issues: The Investigator's Legal Handbook. I can tell you that being well informed is your best defence to a drug charge. Here I give you the four tips you need to follow to survive a drug charge or investigation. 

Tip # 1 - Say Nothing Other than Identifying Yourself

Don't say anything to the police, other than giving them your correct name. And if you're driving, you're going to need to produce a driver's licence, vehicle insurance and registration documents. 

a. Don't Try to Talk Your Way Out

Don't try to talk your way out of the situation. Don't deny anything. Don't admit to anything. Don't agree to let the police search anywhere. But follow their directions and be polite to them. 

Whatever you say will be used against you later. Even if you deny everything, that denial could later be used against you. Trust me. I've seen it all before. And I've used those very minor casual remarks against accused in the cases I used to prosecute. 

Regardless of whether you're walking along the street, driving in a vehicle, or sitting at home watching television, when the police come knocking, say nothing. Follow this tip, and the police will only be left with evidence of what they find or don't find. What others say or don't say about you usually doesn't count for anything in a criminal drug trial, unless it's a police agent or police officer who is testifying. But what you personally have told the police counts for a lot.

b. Even Non-Recoded Statement Can be Used Against You

Don't think even if the police aren't making a recording of what you're saying, or aren't writing it down in a little black notebook, that it can't later be used against you. Say nothing. That's your right, so take full advantage of that right.

c. Don't Obstruct the Police But No Need to Identify Objects

However, don't try to obstruct the police in doing their jobs. If they've got a warrant to search your house, let them get on with their job of searching. Let your lawyer later figure out if it was a valid or invalid warrant. But you don't need to point anything out to the police. Resist identifying items for the police, even if the police tell you that will save on their messing up your house. 

Same thing in a vehicle - no need to hand anything over (other than driving documents). If they're going to search your vehicle, they will search. Nothing you say or don't say will change things, as tempting as it might be to say something. 

Likewise if you're walking down the street. Don't become trapped by the "have you got anything on you that you shouldn't have?" question. And its companion request: "if you do, hand it over."

Many of my clients assume that by being cooperative, the police will just let the matter drop and send them on their way. But often what happens is that they've dug themselves into a self-incrimination hole and get charged with drug offences. Whereas if they had said and done nothing (other than giving their names), the police may have had no legal authority to search them. 

Tip # 2 - Talk to a Lawyer ASAP

In some personal disputes, lawyering up early on only aggravates the dispute. But being criminally investigated or charged is a completely different situation. There, you'll want to consult a lawyer as soon as possible. 

A little bit of legal advice can be a bargain in protecting your rights. That advice might mean a police investigation goes nowhere, that less serious charges are laid - for instance possession instead of possession for the purpose of trafficking - or if a court case does proceed that you haven't helped the police make the case against you. 

You shouldn't wait to talk to a lawyer until you've been charged. Some drug investigations take a while, and there may be things you can do to protect your rights at an early stage of the investigation.

Your lawyer might talk to the police for you to ask about the scope of their inquiries. Your lawyer might respond for you to some written questions from the police that your lawyer advises you really are in you best interests to answer. Your lawyer might be able to work out a deal for you to avoid you getting charged with anything. Your lawyer might be able to get some charges dropped. Or your lawyer might go to court for you to get back seized money or other assets. 

Tip # 3 - Be Personally Informed About Drug Laws

Informing yourself in a basic sense about drug laws is the best way you can make intelligent decisions about your legal defence. There's a lot of clutter - like hundreds of years of the common law of evidence and dozens of years of constitutional rights law - that makes drug laws seem really complicated, and for which you definitely need a lawyer. But I can sum up the basics for you quickly.

a. Only Five Main Drug Offences

There are principally 5 types of drug offences (all under what's wordily known as the Controlled Drug and Substances Act):

  1. possession;
  2. possession for the purpose of trafficking;
  3. trafficking;
  4. production; and
  5. importation.

The type of drug involved might make the penalties for any of these offences more severe, but mostly don't alter the offences' inherent characters. "Conviction" for any of them will gives you a criminal record, and could cause you a lifetime of hassles crossing the U.S. border and applying for jobs within Canada until you are able to obtain a pardon (now unpoetically called a "record suspension"). So you really, really want to avoid a conviction. 

b. Three Ways to Avoid a Drug Conviction Once Charged

There are three ways to avoid a conviction.

1. Convince the Crown to drop the charges. Good defence lawyers are capable of doing this. It might not happen that often, but it's usually your best shot to make everything go away. 

2. Plead guilty and convince a judge to give you what's known as a "discharge." It's a finding of guilt, but no conviction is entered. So if you're later asked by anyone, "have you ever been convicted of a criminal offence," you can truthfully say "no." Again, a good defence lawyer might be able to obtain this for you - but it will depend on the type of offence and type of drug you are pleading to.

3. Take your case to trial. You might have a viable defence, because the burden of proof beyond a reasonable doubt rests entirely on the Crown. You have to prove nothing. The Crown has to prove knowledge and control and possibly other elements. You might even have a Charter of Rights defence. There sometimes isn't much downside to taking a drug case to trial (other than the legal fees) if the sentence imposed after trial isn't much different than the sentence you would have received after a guilty plea. A good drug defence lawyer will not be afraid to take your case to trial so long as there is some viable defence to present.  

TIP # 4 - Don't Plead Guilty if You're Not Guilty

I often have clients stuck in the system. They're understandably stressed out by their drug charges hanging over their heads for months on end. They want the process over with.

They have a good defence, but they can't take the waiting anymore. So they tell me, "look Gordon, I didn't do it, but I want to plead just to get it over with." You have to understand that it's not ethical for any lawyer to help you with such a plea.

Lying to the court is an offence. If you didn't do it, you just need to hang in there. You'll be stuck with a conviction for life, so ultimately waiting a year to have your trial day in court is worth it.

Trust me, I'm a lawyer. 

Should I Appeal My Criminal Conviction or Sentence?

Lately, lots of prospective clients have been asking me the very brief but important question: "should I appeal?" Wrapped up in those three words are all sorts of hopes, fears and realities, at least some of which I'll try to sort out for you in this post.

APPEAL HOPES
The fundamental hope is that the appeal will improve upon the results at trial. When clients ask me what their chances are on appeal, I officially need to tell them: "it depends." Depends on the law and facts at their trials. Depends on which judges they draw on appeal. Depends on in which direction the judicial appellate winds are blowing in Canada during a particular year for the legal issues in question.

But statistically I can tell them that about 1/3 of criminal appeals are successful in some respect according to Ontario Court of Appeal figures. That criminal appeals have a higher rate of success than civil appeals (where you've only got a 1 in 4 chance) is consistent with courts wanting to do everything possible to protect the rights of accused from wrongful convictions or serious rights violations. 

Hopes that an appeal will completely make charges go away do need to be managed. A successful conviction appeal likely means the ordering of a new trial. Not really such a bad result, because the conviction is overturned, but you need to be prepared both psychologically and financially for another trial. The Crown won't always proceed with a new trial, but you need to be prepared just the same.

Successful sentence appeals are more to the point: either the court of appeal will substitute an appropriate sentence itself, or less commonly will send the case back to the trial judge for resentencing based on the correct legal principles. A new sentencing will at least still be a relatively quick process compared to a new trial.

It's rarer for a court of appeal to overturn a criminal conviction and enter an acquittal itself - rather than letting the trial court reconsider if an acquittal is justified during the course of a new trial - but it does happen. 

APPEAL FEARS
You might wonder if things could get worse if you appeal. The answer is probably not in criminal cases. The Crown will rarely cross-appeal just because you have started an appeal, as Crown appeals require a strong public interest. So appealing your conviction or sentence will usually mean at worst that you're stuck with the trial result if you lose, not that you'll get convicted of extra offences or have your sentence increased.

Plus the general rule in criminal matters is that the Crown neither seeks nor has awarded against it costs. So while you won't be able to recoup your legal fees out of a successful criminal appeal, you also won't be risking the Crown seeking costs against you if you lose. 

APPEAL REALITIES
An appeal will cost you more money, after you may have already spent quite a bit on your criminal defence at trial. It might cost less or more than your trial cost, depending on the length of your trial as well as the complexity and number of the issues to be appealed.

Plus you'll need to budget for transcript costs, which can be in the range of $500 or so per day of trial for the first copy and then lower fees for extra official copies. You usually need five transcript copies if proceeding to a court of appeal, but the precise number depends on how many judges will be sitting on your appeal and the rules of court.

The upside of appeal costs is that they are much easier to predict in advance than trial costs. Criminal appeal lawyers will usually quote you a flat fee for the appeal including travel and disbursements other than transcripts, so you can assess in advance if it's worth it to you. Legal Aid Ontario (LAO) will also fund appeals that have good prospects of success; if you financially qualify (the income cutoff is quite low), the process is you find an appellate lawyer to first provide LAO an opinion, and then a LAO committee decides whether or not to provide funding.

So, should I appeal? I would say the answer is definitely "YES" if your case isn't totally hopeless (these are rare), there was a big downside to the trial judgment (acquiring a criminal record, serving a long prison sentence, paying a large fine or forfeiting considerable assets), you can afford it, and there's a legal basis for the appeal. You need to understand that the appeals process is not a new trial, and that legal rather than factual arguments predominate on appeal. You can't appeal just because you don't like the trial result; you should retain a lawyer who can craft strong legal justification for why the trial went off the rails, and why an appeal court should do something about it. 

TO BLOW OR NOT TO BLOW, THAT IS THE QUESTION

You’re on your way home, coming back from watching a hockey game at the local sports bar with friends. You’re two blocks from your residence when you make that last right turn only to meet a lineup of vehicles, with blue and red flashing lights in the distance. The police are conducting a RIDE program. Soon after a uniformed officer walks up to your driver’s side window. The officer asks you a few basic questions on your whereabouts this evening. You comply and answer his questions. The officer then informs you that he has reason to suspect that you’ve been drinking and driving and ask you to take a Breathalyzer test.

Do you have a right to refuse the Breathalyzer test?

Although the officer cannot physically force you to take a Breathalyzer test, refusing to comply with the officer’s demand is an offense, under section 254 of the Criminal Code, with serious consequences. In fact, the penalties are essentially the same as if you had failed the Breathalyzer test. Furthermore, a conviction may affect your livelihood, your ability to travel abroad and will likely increase your insurance rates.

Generally, lawyers will tell their clients provide a breath sample, because it’s usually only after having reviewed the disclosure that a lawyer can determine what types of defence have a reasonable chance of success.

What must the prosecution prove?

When someone refuses to comply with an officer’s demand of a breath sample, the prosecution must prove beyond reasonable doubt the element of actus reus, namely that a reasonable demand was made by the officer and that you failed or refused to provide the required breath sample. The prosecution must also prove the element of mens rea, namely that understood the officers demand and that the refusal was a conscious act.

For many people accused of refusing to provide a breath sample, this may bring feelings of embarrassment, helplessness and guilt, which in return may lead them to plead guilty and just get it over with. Although there is an incentive to pleading guilty early, namely within 90 days of the offense, before doing so, consulting with a criminal lawyer as soon as possible is highly recommended. Drinking and driving offenses are very complex and the defences will vary according to the facts of your case, therefore we welcome you to call for a free initial contact with one of our criminal lawyers.

PEACE BONDS UNDER SECTION 810 CRIMINAL CODE: SHOULD YOU CONSENT?

I've been running a law blog for the last few years called The Barrister Brief. There's one post that has eclipsed all others in popularity. Nothing else even comes close on views, which I suppose tells us something about the most burning criminal law questions that Canadians harbour. Here it is:

I regularly assist clients with "peace bond" problems. These are orders under s. 810 of the Criminal Code that can subject you to "keep the peace and be of good behaviour for any period that does not exceed twelve months,  and comply with such other reasonable conditions prescribed in the recognizance" such as prohibiting you from being at or within a specific distance of a place, or prohibiting you from communicating directly or indirectly with a particular person. 

A justice of the peace (or judge) can impose a peace bond on you when a person demonstrates that he or she has reasonable grounds to fear that you "will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property." A mini-trial is actually held by the court to determine if the peace bond should be imposed - that's why you really need legal counsel to defend you if you receive a notice that someone is seeking a peace bond against you. 

Being subject to a peace bond is a lot like being on bail. Peace bonds make conduct illegal that was previously perfectly legal. Like sending an e-mail or text to someone. Or attending at that person's place of work or home. 

Breach of the peace bond can lead to serious criminal consequences. There's some debate among Canadian criminal lawyers over exactly which punishment provisions apply to peace bond breach, as s. 810 of the Criminal Code doesn't itself stipulate any specific punishments, but up to 2 years imprisonment seems a definite possibility for peace bond breach pursuant to s. 127 of the Criminal Code, which is a catch-all punishment provision for disobeying a court order. 

Refusing to enter into the peace bond recognizance, after it has been ordered by the court, can also get you up to 12 months in jail. 

The fact you have been ordered to enter into a peace bond (even if you consented) also winds up on police databases, potentially for the rest of your life. No, it's not a "criminal record," but it does at times convey the impression that you were up to no good, and thus the peace bond was ordered to protect someone from you. 

Pace bonds are serious business, so you need to know when you should and should not be thinking of voluntarily entering into them. 

When voluntarily entering into a peace bond can be a good idea: if you are being prosecuted for criminal offences under the Criminal Code, and instead of the Crown proceeding with the prosecution you are offered the alternative of voluntarily entering into a peace bond, such an offer is usually a good deal that you should jump at. 

Do get some legal advice before consenting in such a situation. Even if you are representing yourself on the charges to which the peace bond is an alternative, "duty counsel" at the court house may be able to give you some summary advice. Here the peace bond is way better than being convicted of a criminal offence after trial, and also way better than receiving an absolute or conditional discharge as a sentence. 

When voluntarily entering into a peace bond can be a bad idea: if you aren't facing any kind of criminal charges, and instead have a peace bond application dropped on you by your neighbour/co-worker/family member. In these cases, there has been no government filter (like the police or prosecution service) involved in deciding whether a peace bond application should proceed. Instead, this is effectively a private prosecution which might have no basis in reality whatsoever, and where you can essentially be found guilty on a balance of probabilities standard, not on proof beyond a reasonable doubt. 

If you aren't facing other court proceedings that will be halted by a peace bond, you shouldn't consent to it just to avoid the hassle of a court hearing on the bond. The whole peace bond hearing will probably only take somewhere between half a day and a day in court, you will get to agree on the hearing date set for several months in the future, and most importantly you are entitled to written disclosure of the factual allegations which supposedly support the peace bond. Obtaining disclosure gives you a chance of preparing a defence to the allegations through gathering together your own evidence to present to the court - including the calling of your own witnesses who can explain why the allegations just aren't true. 

The moral of this story is that peace bonds are tricky contradictory creatures, part of the criminal process, but granted on a civil standard of proof, heard in the criminal courts, but usually pursued by a private individual rather than a government prosecutor. Some people steadfastly refuse to consent to peace bonds even when it's in their best interests to consent, and other people readily consent even though it is unlikely any court would grant a peace bond against them because of the shoddy evidentiary foundations upon which the peace bond allegations are based. The first type of overly refusing people should take more seriously the advice their lawyers are trying to give them; the second type of overly consenting people should seek out legal advice before agreeing to something that could have a significant future impact on their lives.