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Police Conduct – Hamilton Police Service On-line

The recent attack on police in Dallas, Texas was rooted in tensions fueling the Black Lives Matter movement and has put police conduct & relations with civilians at the forefront of the news cycle. Dallas is a horrific example of what can happen if citizens do not trust or respect the authorities that police them.

Accountability and transparency are arguably the most important characteristics of any authoritative establishment. These characteristics are vital to ensure trust and to prevent the chaos that can stem from a distrust of authority.

The Hamilton Police have recently updated their code of police conduct as it pertains to online behaviour. The focus towards updating the code began after complaints against Const. Brad Lawrie for inappropriate online behaviour came to light. The updates should manifest in greater accountability.

What of transparency?

While Vancouver and Toronto Police posted excerpts of their police conduct policies online, the Hamilton Police did not. The CBC filed a freedom of information request to examine the policy. The eight page document is now available for review on the CBC website found below.

The document states that “[t]he purpose of this Policy is to outline the procedures for access to, and personal use of the Internet.” The code of conduct addresses, inter alia, access/use, member responsibilities, the posting of information, acknowledging correspondence, safety and security, and career assignments.

The investigation against Const. Brad Lawrie is ongoing so it remains to be seen whether his comments were a breach of the code of conduct.

While no Canadian police department has suffered such a brutal attack (and hopefully never will), greater accountability and transparency couldn’t hurt. Canadian cities are no stranger to racial profiling and the incarcerated population of Canada consists a disproportionate number of visible minorities. Moreover, Canadian cities have seen their share of black men shot by the hands of Police. The death of Andrew Loku, perhaps the most known example, occurred just over one year ago.

Police Conduct in Hamilton

The Hamilton Police at least appears to be on the right track. It is important for communities to continue to hold their authorities and officials to a high standard and not accept less just because the prevalence of violence in the United States makes any domestic corruption pale in comparison.

If you think you’ve experienced harassment online or if you think your rights have been violated by Police conduct, Smordin Law may be able to help. Smordin Law has been serving the community for years. We’ve set a high bar for ourselves and expect the same from the authorities.

http://www.cbc.ca/news/canada/hamilton/news/hamilton-police-online-conduct-1.3716695

http://www.statcan.gc.ca/pub/85-002-x/2016001/article/14318-eng.htm

https://www.thestar.com/news/queenspark/2016/04/29/revealed-secret-siu-report-into-andrew-lokus-death.html

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Confession Rule Reinstated – Get the Facts.

confession

Getting a Confession.

When a person is arrested, a police officer must inform the accused of their right to silence and right against self-incrimination. There is an interplay between Sections  under sections 7, 10(b) and 11(c) and 13 of the Charter of Rights and Freedoms.  The Charter does not explicitly articulate the right to silence. However, the Supreme Court has found that the right to remain silent is protected as a principle of fundamental justice.

Unlike what is normally on American television, in Canada, the arrest caution is more complex and varies from province to province.  The following is a typical example of a caution;

You are under arrest for (charges listed), do you understand?

You have the right to retain and instruct counsel without delay.

We will provide you with a toll-free telephone number lawyer referral service, if you do not have your own lawyer.

Anything you say can be used in court as evidence.

Do you understand? Would you like to speak to a lawyer?

Following an accused’s caution, police interview the accused, hoping to obtain a confession.  Police have the right to ask an accused questions, even if they request to speak with their lawyer.  The common-law has developed throughout the years to protect the rights of an accused.

Prior to 2000, the Canadian confessions rule was as follows: the Crown must prove beyond a reasonable doubt that the accused provided a statement to someone of authority voluntarily before it could be used against the accused at trial (Ibrahim v R, [1914] AC 599, (1914) 24 Cox CC 174).

It is important to note that a person of “authority” is based on the subjective belief that the accused was making a confession to a person involved in the criminal law process.

Ibrahim noted that a statement is involuntary when; (1) it was obtained by means of inducements; (2) it was not the product of the accused’s operating mind; (3) it was obtained by oppressive conduct by the police; or (4) it was obtained by a police trick that would shock the conscious of Canadians.

In R v Oickle, 2000 SCC 38, [2000] 2 SCR 3, the Supreme Court of Canada restated the confessions rule on a principled approach. The principled approach is based on the premise that evidence is both reliable and necessary to the hearing.  In this case, the accused was charged with several counts of arson and while being questioned, made two detailed statements to the police describing his involvement in the fires. The methods used by the police were not in question and the trial judge found that the statements were made voluntarily. The statements were admitted for the trial and Oickle was convicted. On appeal, the Nova Scotia Court of Appeal found that there were several factors that, when taking singly or in combination, made the statement involuntary. Pugsley J. and Cromwell J. found that these factors fell under inducement and oppression under the common law rule.

The Supreme Court of Canada allowed the Crown’s appeal and restored the conviction. The court reformulated the confessions rule by using the principled approach from the common law rules of evidence. Iacobucci J. did not reject the four parts of common law confessions rule listed above; he confirmed that a threat or promise, an atmosphere of oppression, a failure of the operating mind, or an unacceptable police trick could make a statement involuntary. Iacobucci J. states that the first three branches of the rule should not be considered in isolation of one another. By using the principled approach, a trial judge should analyze the complete context of the confession and consider all the branches of the rule. Iacobucci states:

Court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation … On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary (Oickle at para 71).

How we can help

Have you been charged with a crime and are unsure if your rights have been violated? Have you given a confession or spoken to police about the crime that you have been arrested for? If so, please contact the lawyers at Smordin Law and we can help evaluate if the police took the proper steps in advising you of your rights and review the circumstances under which you spoke to the police.

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Subpoena – Whats is it? Learn the facts.

What is a Subpoena?

A subpoena is an order made by the court compelling a person to appear at a specific time and place to give evidence.  Section 700(1) of the Criminal Code states that someone subpoenaed may be required to bring documents or other items in their possession to court.  Section 700(2) states that “a person who is served with a subpoena under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial judge”.

Who Can Serve Subpoenas?

Section 701 of the Criminal Code outlines the service of subpoenas.  Service is made by a peace officer if the witness is inside the province where the court proceedings will take place.  This section requires that service of the subpoena(s) be made personally.  If the person cannot be found, the subpoena may be left at the person’s last known address with someone who appears to be at least 16 years of age (ss. 701(1) and 509(2)).  If the person subpoenaed lives within Canada but outside of the province, a subpoena is issued under s. 699(2)(b).  This also must be served personally.

What if the Witness Refuses to Answer Questions?

As stated above, a subpoena requires that the witness attend court at a specific time and place until the person is excused by the court.  When a witness attends court but refuses to be sworn, produce evidence, or documents, the witness may be subject to penalties.  At a preliminary hearing, such a witness may be imprisoned for up to eight days, following which the witness may again be imprisoned for eight days for again failing to comply (s. 703).  At trial, if a witness fails to answer questions or produce evidence when ordered by a subpoena, they may be sanctioned under ss.9-10 of the Criminal Code for contempt of court.

Can a Subpoena be Quashed?

A motion may be brought to quash a subpoena by defence counsel, the Crown, or by the witness.  The onus is on the party that initiated the subpoena to show why the witness is likely to give relevant evidence.  The Superior Court of Justice has inherent jurisdiction to supervise the lower courts.  During a trial, the presiding judge may hear a motion to excuse a witness on the basis that the witness does not have relevant evidence to present.

Generally, a motion to quash is based on a witness not being likely to give relevant evidence, however, there are other grounds to have a witness excused.  Examples of being subpoena being quashed are if: 1) the subpoena amounts to an abuse of process; 2) the witness is not compellable; 3) the evidence is privileged; 4) the proceedings are without jurisdiction; and 5) the subpoena would give rise to a violation of the Charter of Rights and Freedoms.

Material Witness Warrants

A material witness warrant is issued when a subpoena alone is not enough to compel a witness to court.  When it is shown that a witness will not attend court through subpoena alone, police are given the power to arrest a person that has material evidence to present in court.

There are three types of material witness warrants.  First, the same court that has the authority to issue a subpoena may issue a material witness warrant.  When such a warrant is issued by a provincial judge, the warrant is effective throughout the province.  When the warrant is issued by a Superior Court judge of an Appellate Court, it is effective throughout Canada.  Second, when an accused is at the end of a preliminary inquiry and enters into a recognizance to give evidence at trial and is shown to have absconded, the court may issue a material witness warrant.  Last, when a witness that has already been subpoenaed, but fails to appear or who appears but fails to re-attend court, may be the subject of a material witness warrant.

Smordin Law Can Help

Have you been subpoenaed? Do you have questions about the criminal law process? If so, contact the expert legal team at Smordin Law.  We are here for all your needs and legal services.

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Victim Surcharges and the new ruling in R v Fedele, 2016

What is a Victim Surcharges?

Victim surcharges are a financial penalty imposed on convicted offenders at sentencing.  The money collected from this initiative is used to fund victims of crime.  If a fine is imposed, victim surcharges are an additional 30% of the given fine.  If a fine is not imposed, convicted offenders must pay $100 for summary offences, and $200 for indictable offences.

When victim surcharges were first introduced in the Criminal Code, they were called victim fine surcharges and were discretionary.  Initially, it was common for surcharges to be waived by the Judge.  This was particularly true when the offender was unemployed or a form of Government assistance.

Analysis of the Victim Surcharge

The provisions of the Criminal Code state the following regarding victim surcharges:

s. 737(1) An offender who is convicted, or discharged under section 730, of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge in addition to any other punishment imposed on the offender.

(2)   Subject to subsection (3), the amount of the victim surcharge in respect of an offence is

(a)   30 per cent of any fine that is imposed on the offender for the offence; or

(b)   if no fine is imposed on the offender for the offence,

(i)   $100 in the case of an offence punishable by summary conviction, and

(ii)   $200 in the case of an offence punishable by indictment.

(3)   The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.

Section 718.3, “Discretion respecting punishment”, reads:

s. 718.3(1)  Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

(2)   Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

(3)   Where an accused is convicted of an offence punishable with both fine and imprisonment and a term of imprisonment in default of payment of the fine is not specified in the enactment that prescribes the punishment to be imposed, the imprisonment that may be imposed in default of payment shall not exceed the term of imprisonment that is prescribed in respect of the offence.

(4)   The court or youth justice court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when

(a)   the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;

(b)   the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed;

(c)   the accused is found guilty or convicted of more than one offence, and

(i)  more than one fine is imposed,

(ii)  terms of imprisonment for the respective offences are imposed, or

(iii)  a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; or

(d)   subsection 743.5(1) or (2) applies.

Legislative Changes

In the last decade, the Conservative government implemented “tough on crime” initiatives.  The discretion of Judges to order victim surcharge penalties were removed from the Criminal Code, and the amount of the penalty was raised.  With the deletion of the discretionary provision, the renamed victim surcharge legislation became the subject of multiple challenges under the Charter of Rights and Freedoms.

In a 2013 ruling by Justice Paciocco in the Ontario Court of Justice, the victim surcharge legislation was found to be in breach of the Charter of Rights and Freedoms.  In the following year, Justice Glass, in the Superior Court of Justice of Ontario found that the legislation did not violate the Charter of Rights and Freedoms.  This decision was binding on the Ontario Court of Justice.

Due to conflicting positions on the constitutionality of the victim surcharge penalty, the court in R v Fedele, 2016 ONSC 2305 was asked to resolve whether victim surcharges can be ordered concurrently.  In other words if multiple victim fine surcharges could overlap.  That way if an accused was found guilty of three summary conviction offences ($100.00 fine each) rather than being ordered to pay $300.00 he or she would be ordered to pay $100.00 in total.

In R v Fedele, Justice Thomas J. Carey stated that a surcharge is neither a fine nor a penalty, rather, part of a sentence.  He concluded that there is no legal impediment preventing two victim surcharge orders to run concurrently.  He further states that “the concurrent ancillary order would naturally flow from the legal and properly imposed concurrent jail sentences” (Fedele at para 44).  The imposition of concurrent ancillary orders are not an error in principle.  In this case, the appeal was dismissed and the sentence confirmed.

Do you have questions about the victim surcharge?

Have you been charged with a criminal offence that imposed a victim surcharge?  If so, call the experts at Smordin Law and make sure that your legal rights are protected.  Victim surcharges involve complex issues of the law including the Charter of Rights and Freedoms, the Criminal Code and Part I of the Constitution Act.

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