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Monthly Archives: April 2016

Private Information – What you need to know.

Laying a Private Information: Who will police the police?

The laying of a private information, or, the charging of an individual with the assistance of a Justice of the Peace and not the police is a rare move seen in Criminal Courts. Often reserved for neighbour disputes the police don’t take seriously enough for proud owners of unnaturally healthy azalea bushes, private informations also represent a way for citizens to challenge the discretion of the police and the courts.

For a charge to be laid criminally, a police officers “swears an information.” This generates the charging document that can be used to bring a person before the courts. So, typically an officer will gather evidence arrest a person, then visit a J.P. They advise of the grounds of arrest and information is sworn.

But what if the officers that attend at your neighbour dispute refuse to charge the drunken louts next door with causing a disturbance? They tell you to “just ask nicely.” You ask nicely for weeks without reprieve. Weeks pass and you just cannot take another round of drunken cherades with a gangster rap soundtrack. Taking Justice into your own hands does not sound like a bad idea.

Armed with these grounds (your complaints, nicely documented with dates and times) you visit your local courthouse and see a J.P. Once the information is sworn the not so great neighbours are compelled to attend court. Success! But then what? You demand satisfaction, but what form does it take?

The matter continues before the courts in the usual course. Eventually, a hearing to screen the matter called a pre-enquete is held before the matter moves forward.  If you are successful at this stage trial is set and you get to have your day in court. Most likely, a Judge hearing evidence will turn to the parties and say: can’t we all just get along?

But what if your complaint is with the police?

Recently a young lady caught in the cross fire and shot by the Peel Regional Police laid a private information against the cop that shot her through her window. The cops were cleared criminally and by the SIU. The authorities have already determined that they were acting within their proper authority during the shootout.

Not satisfied with this result, Suzan Zreik hired a lawyer and visited a J.P.. Constable Jennifer Whyte is now charged with criminal negligence causing bodily harm.

This is a rare take on an already rarely used mechanism in the courts. However, what if citizens took a more active role in deciding what disputes go before the courts? Police often use discretion in deciding who to charge and for what. But a private information creates a review mechanism for these decisions.

Whether you are shot in the back by a police officer, or terrorized by your neighbours, it is best to consult a criminal lawyer before laying a private information. These matters also have a civil, or monetary, component. However a criminal information in place before bringing a civil matter can bring credibility and teeth to your civil claim. Only a criminal lawyer will accurately know how to get this matter before the courts.

private information




Bail Conditions – Can they be changed?

Bail Conditions: In Brief

If someone has a matter making its way through the criminal justice system, there is a possibility that they will be released from custody after their initial arrest pursuant to bail conditions. These conditions impose certain restrictions on the individual for the duration of their matter and can include curfews, non-association with certain other individuals, and the requirement to live with a surety (a person agrees to oversee the accused while their matter is before the court).

A person released on bail is released under a document called a recognizance, which includes the terms the accused must follow, and has the force of law for the accused. Thus, if the accused breaches any of the terms of their recognizance, they have broken the law.

What is a Variation?

There are situations where the conditions of an individual’s bail release may need to be changed. There are many reasons for this, including a change in personal circumstances, an error or oversight on the original recognizance, or because the recognizances of the accused and one or more of their co-accused do not have the same conditions, which can lead to unfair results.

Changing the conditions of a recognizance is called a bail variation. The proposed changes must be approved by a Crown and a justice of the peace before the conditions can be varied. Typically, counsel for the accused will begin the process by filling out the necessary paperwork.

bail conditionsHow is a Bail Variation Different From a Bail Review?

A bail variation is a modification of existing bail conditions. A bail review is an application made by either the accused or the Crown to review the bail conditions. Because this process involves reviewing the decision of a judge or justice of the peace, it must go to a higher court. Bail reviews concern one of two situations: whether or not the judge or justice of the peace made an error of law during the bail hearing, or whether or not there was a material change in circumstances of the accused. Bail reviews are lengthier and more serious than bail variations.

Sources:

http://lawfacts.ca/taxonomy/term/4

http://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/bpfv-pevf/p4.html




Enhanced Credit – SSC Ruling

Supreme Court Rules to Revert to Pre-2009 Bail Provisions

In 2009, sentencing reforms fundamentally changed bail provisions for Canadians. Previously, those denied bail because of a previous conviction could get enhanced credit for time spent in jail before sentencing.  Enhanced credit is commonly called pre-sentence credit.

Enhanced credit is a principle that awards extra time for each day spent in jail while the accused is awaiting resolution of their matter. This method of sentencing recognizes that those in jail prior to conviction do not have the same access to programs and resources as those in jail or prison after their conviction. Typically, pre-sentence custody time counts for 1.5 days of credit against the accused’s sentence. This means that if the accused spent 30 days in jail, they would be credited for 45 days. If the total sentence was 60 days, the accused would only have to serve the remaining 15 days.

Enhanced Credit

The 2009 sentencing reforms removed the possibility of enhanced credit for those denied bail because of a previous conviction. Today the Supreme Court ruled to revert back to pre-2009 provisions and reinstate enhanced credit.

enhanced creditThis ruling comes as a reaction to the fact that bail release is not always prohibited if an accused has a previous conviction. Second, this law did not take into account that some previous convictions are less serious than others. This created a discrepancy in sentencing in that individuals with similar records could face significantly different sentences.

By striking down the 2009 provisions, the Supreme Court is ensuring fairness in sentencing, and in our justice system.  Those previously detained without bail often wold stay in jail waiting for a trial longer than any custody order could be issued upon a finding of guilt.   This unbalanced dynamic would often cause innocent people to plead guilty to simply get out of jail. The term of this is “extorted guilty plea” and can have serious consequences in the future.

Sources:

http://www.cbc.ca/beta/news/politics/supreme-court-sentencing-mandatory-minumums-1.3537150

http://www.lfpress.com/2016/04/15/mandatory-minimum-rules-are-overly-broad-the-supreme-court-of-canada-ruled


 




Mandatory Minimum Sentences

New Supreme Court Ruling Means Good News for Those With Drug Charges

In a ruling that came out today, the Supreme Court ruled that mandatory minimum sentences for drug offences violated Canadians’ rights under the Charter of Rights and Freedoms. Previously, those who had drug-related offences on their criminal record and were charged with a further drug-related offence faced the possibility of a mandatory one year jail term if convicted. The Supreme Court ruled this as a violation of section 12 of the Charter, which safeguards Canadians against cruel and unusual punishment.

The ruling began with the case of Joseph Ryan Lloyd. Lloyd was an addict from Vancouver’s Downtown Eastside, one of Canada’s poorest neighbourhoods. In 2013, police caught Lloyd with a heroin, crack cocaine, and crystal methamphetamine on his person, the total amount of which was less than 10 grams. Lloyd’s case led to a series of cases debating whether mandatory minimums drug offences have a place in our justice system.

Mandatory Minimum

The original aim of mandatory minimums was presumably deterrence, but the Supreme Court found that this approach was so wide that it allowed for both prosecution of high-level drug traffickers, and of addicts who may have drugs in their possession because they are planning to consume said drugs later on. The Supreme Court recognized that the context of these offences is markedly different, and that the conduct of addicts does not carry the same amount of blameworthiness as the conduct of traffickers.

mandatory minimumThe Supreme Court advised that one of two solutions could be used to resolve this discrepancy in our laws. The first would be to narrow the provisions regarding mandatory minimum sentences, so that they do not apply to individuals who are not traffickers. The second solution proposed would be to allow judges the necessary discretion to avoid mandatory minimums in cases where they are unwarranted, or would be unfair.

It will be interesting to see how Parliament implements this new ruling, but suffice it to say, the way drug-related offences will be treated is likely to change in the near future.

Sources

http://www.cbc.ca/beta/news/politics/supreme-court-sentencing-mandatory-minumums-1.3537150

http://www.cfra.com/NationalCP/Article.aspx?id=507792




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