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Firearm Law in Canada – Increasing Ownership

Increased Gun Ownership and the Firearm Law in Canada

Under the firearm law there are three classes of firearms in Canada: non-restricted, restricted, and prohibited.The CBC has recently reported that the number of restricted guns in Canada has increased 9.5% in 2015 and has doubled since 2004.The same article offers three interrelated causes for the increase. It is noted that the sharpest increase occurred during Prime Minister Harper’s administration which advocated fewer restrictions on gun ownership. Secondly, it is suggested that the demand for restricted firearms in Canada originates in America where the firearm law can be described as famously lax making is easy to purchase hand guns and rifles. The last reason offered is that an increased fear of terrorism has led to a feeling that people need guns to feel safe.

What is a firearm?

Section 2 of the Criminal Code of Canada defines “firearm” as: “a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.”

What of crossbows?

The RCMP advises:“Crossbows that can be aimed and fired with one hand and crossbows with an overall length of 500 mm or less are prohibited. You ca...
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Medical Marijuana Users will be able to Grow their own Cannabis

drug possession
medical marijuana

Changing Legislation on Medical Marijuana

This past February, Justice Michael Phelan of the Federal Court, struck down the former Conservative government’s 2013 law that required medical marijuana patients to buy their marijuana from a licensed producer rather than growing their own.  Justice Phelan ruled in Vancouver that marijuana for medical purposes regulations infringe rights under the Charter of Rights and Freedoms.  Justice Phelan said that the “rules limited a patient to a single government-approved contractor and eliminated the ability to grow one’s own marijuana or choose one’s own supplier” restricts a patient’s liberties.The Judge made it clear that this ruling does not change other laws or make it legal for Canadians without a prescription to use marijuana recreationally.  After this ruling, Parliament was given six-months to re-write the legislation to conform with this ruling.  Justice Phelan also ruled that 28,000 patients that were allowed to keep growing their medical marijuana under a 2014 injunction could continue growing until the new legislation comes in force.  Health Canada said that the injunction will remain in place until they are confident that the government can handle thousands of new patients entering the system.

The New Legislation

On August 11, 2016, new legislation was drafted that will come into force August 24th, 2016, allowing medical marijuana patients to grow a limited amount of cann...
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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 ...
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Confession Rule Reinstated – Get the Facts.


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 voluntar...
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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 w...
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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 ...
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Indigenous Person’s Court – What you need to Know.

What is indigenous person's court?

Indigenous Person's Court is a unique court established in Brantford, Ontario, designed to handle criminal cases involving Aboriginal offenders.  This court uses Aboriginal cultures and traditions in sentencing offenders including restorative justice. Indigenous Person's Court is open to all Aboriginal offenders that are identified as Indian (status or non-status), Metis and Inuit.  Currently, this court only accepts guilty pleas.Although Indigenous Person's Court takes place in a regular court room, a few subtleties exist.  Presided by Justice Gethin Edward, a painting stands in the court room depicting the story of creation; a legend long held in Haudenosaunee confederacy cultures, including Six Nations.Self-identifying Aboriginal clients are advised counsel if they are able to proceed in Indigenous Person's Court. Once an Aboriginal person has decided that he or she would like to participate in Indigenous Person's Court court, there are representatives from Aboriginal Legal Services and other community service workers that are there to support and assist the process.On the sentencing day of the offender, an “adult conference” is held.  This unconventional method gathers defence counsel, a prosecutor, a representative from Aboriginal legal services, the accused and family members.  At this conference, everyone sits in a circle and gets a chance to speak about the offender’s life, history, and what brought upon the criminal charges.  This conference also loo...
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Delay – The new 11B Argument.


Delay - The New Framework to be Tried within a Reasonable Time

R v Jordan and section 11(b) of the Charter of Rights and Freedoms

What is Section 11(b) of the Charter of Rights and Freedoms?

Section 11(b) of the Charter of Rights and Freedoms states that “any person charged with an offence has the right to be tried within a reasonable time”.  This section provides the right to what is often known as a speedy trial.

The Old Framework for a Section 11(b) Challenge

Prior to the Supreme Court of Canada’s decision in R v Jordan, 2016 SCC 27, the framework established to be tried within a reasonable time was established in R v Morin, [1992] 1 SCR 771.  The Morin framework required the courts to balance four factors to determine if a breach of section 11(b) of the Charter of Rights and Freedoms occurred: 1) the length of the delay; 2) defence waiver; 3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional deal, and other reasons for delay; and 4) prejudice against the accused’s interests in liberty, security of the person, and a fair trial.According to the Supreme Court of Canada, in R v Jordan, the Morin framework suffers from a number of doctrinal shortcomings.  The major problem with the Morin framework is its unpredictability.  It has been interpreted to permit endless flexibility.  This makes it dif...
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Conditional Discharge and Suspended Sentences

The terms Absolute discharge, conditional discharge, and suspended sentence are amongst the lightest possible sentences an accused can receive. They are generally given to an accused who is alleged to have committed a crime which was not significantly serious.

What is an Absolute Discharge?

An absolute discharge is the lightest sentence an adult offender can receive. A finding of guilt is made, but no conviction is registered, and the accused must not follow any probation conditions. The discharge will remain on the accused’s criminal record for a period of one year, after which it will be automatically removed, without need of applying for a record suspension (pardon).It is important to note that even though an absolute discharge does not result in a criminal record, the individual’s arrest record still exists, along with related court documents. This means that if a potential employer does a criminal background check for a potential employee, the potential employee’s arrest record will still appear, and possibly hinder that individual’s hiring potential. It is imperative to ensure that all documents are fully destroyed following a conditional discharge. This can be done through the RCMP’s purge and file destruction process.

What is a Conditional Discharge?

Like an absolute discharge, a conditional discharge is when a finding of guilt is made, but the accused remains unconvicted. The difference between conditional discharges and absolute discharges is that condi...
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What You Need to Know About the Recent Legal Aid Update

What You Need to Know About the Recent Legal Aid Update

Today Legal Aid Ontario published an update on how the expanded eligibility is progressing. As a refresher, in June 2015, Legal Aid Ontario announced it was expanding eligibility to include a wider group of clients. This coverage expansion came as a result of the increase in funding from the province of Ontario.While implementing the updates, it came to Legal Aid’s attention that some of the criteria was too vague and needed clarification, and that there was more demand for services than initially projected. In today’s update, Legal Aid walks us through what has recently changed, and what will remain the same.

New Approaches

One new approach Legal Aid is taking is to clarify the expanded eligibility criteria, as announced last June. This was done so that expenditures with provincial funding are aligned with expanded eligibility expenditures, which helps allow the individuals with urgent and complex matters to continue to access Legal Aid’s Services. Some people who fall under the expanded eligibility criteria will now be referred to duty counsel to ultimately decide whether or not they can be issued a certificate.What Has Stayed the Same As BeforeLegal Aid, just like is has in the past, will continue to issue certificates to those who qualify, and provide services - if possible - for those who do not. The policies regarding criminal matters for first offenders remain the same, as do the policies for those facing secondary consequences...
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