The post What is the Legal Blood Alcohol Limit in Ontario? appeared first on Affordable Defence.
]]>If you ever have a drink before you drive in Ontario, it’s essential to understand the legal blood alcohol concentration (BAC) levels that apply here.
The consequences associated with an impaired driving (DUI) charge are potentially life-changing, with hefty fines, license suspension, a criminal record and even imprisonment possible in addition to any accident injuries suffered.
Let’s go through the legal BAC levels that apply in Ontario.
BAC or Blood Alcohol Concentration measures the amount of alcohol present in a person’s bloodstream. It is one of the tests used by law enforcement in Ontario to assess the level of impairment of drivers who are operating motor vehicles.
BAC is measured in milligrams of alcohol per 100 milliliters of blood (mg/ml) or as a percentage.
In Ontario, the standard legal limit for most drivers is 0.08% or 80 milligrams (0.08 grams) of alcohol per 100 millilitres of blood. Drivers at or above this level are considered to be operating a vehicle with impaired judgment, coordination, and reaction time. This is seen to increase the risk of accidents.
However, the alcohol limits are even more stringent for some classes of drivers and they vary based on the type of license held. These variations are explained below:
Two main methods are used by law enforcement in Ontario to measure BAC levels:
Two people can drink the same amount of alcohol and be affected differently by it. So, it’s important to understand the factors that may influence your BAC reading.
Even a first-time impaired driving charge is a serious criminal charge in Ontario. And if you blow below the legal BAC limit, you can still face sanctions.
For first-time offenders who return a BAC within the “warn range”, there is a three-day licence suspension and a $250 penalty in Ontario.
For first-time offenders who blow 0.08% or more and / or fail / refuse to take an alcohol test, there is an immediate roadside sanction of 90 days licence suspension, a seven-day vehicle impoundment, and a $550 fine.
Drivers under the age of 21 or with a G1, G2, M1, or M2 license and who are caught with any alcohol in their system for the first time, can expect a three-day license suspension, a $60-1,000 fine if convicted, and a penalty of $250.
Commercial vehicle drivers found (for the first time) with any alcohol in their blood while operating their vehicle face a three-day license suspension and a fine of $250.
If a defendant has a prior record of impaired driving convictions or there are aggravating circumstances, such as an injury or death to another person, jail time is a real possibility.
Drivers should be aware that they face criminal charges if caught driving over the legal limit anywhere in Ontario.
A conviction will lead to a criminal record, which can have consequences for employment, travel, immigration status, and more, long after the initial license suspension and fines are paid.
So, simply accepting your “lot” and not challenging an impaired driving charge can be a big mistake. It’s best to request to speak to your lawyer (or public defender) at the earliest opportunity after you’ve been tested, arrested, and charged.
Discussing your situation with an impaired driving lawyer as soon as possible will protect your rights while outlining your legal options and helping you navigate the legal procedures, which may be strange to you.
You should also take some steps to ensure that you do not make the situation worse, such as:
Impaired driving charges can be stressful, especially for first-time offenders who have had no previous exposure to the Ontario legal system.
Do not underestimate the challenges you face if you are caught driving over the legal limit. At the same time, you don’t have to face these challenges alone. An experienced impaired driving lawyer can limit the negative impact of the criminal charge you’re facing.
For legal advice about an impaired driving charge, speak to one of our criminal defence lawyers in Ottawa during a free consultation.
The post What is the Legal Blood Alcohol Limit in Ontario? appeared first on Affordable Defence.
]]>The post How to Remove a Criminal Record in Canada appeared first on Affordable Defence.
]]>One honest mistake, a poor decision, an unfair verdict—the paths to a criminal record are many but they all result in similarly harsh consequences that can impact your future.
Many people convicted of a crime in Canada must endure a criminal record for the rest of their lives. But it’s not just convictions that appear on the record—any arrest and charge, even if subsequently found not guilty, will be visible to the public.
We receive many inquiries about how to seal or remove a criminal record in Canada. Here’s what you need to know…
If you have been accused and charged with a crime and were fingerprinted in Canada, you have a criminal record. It is not necessary to be convicted. In most cases, it’s not necessary even to have attended a Canadian criminal court to have a record.
This may seem unfair, considering that a criminal record can negatively impact many areas of life. Records can be checked for many reasons and by many people.
Most commonly, the potential consequences include the following:
If your record says that you have been convicted of a crime, that’s all the information provided. Info on the circumstances of the case or how you have changed your life since the conviction is not visible.
Your record will appear on the Canadian Police Information Centre (CPIC) database. Only in exceptional circumstances will it be automatically removed.
How you should approach the removal of your criminal record depends on several factors, including:
Depending on these factors, the removal of a criminal record might involve the destruction of fingerprints and photographs, sealing of the outcome record, a purge, and a destruction or record suspension (“pardon”).
Each type of record removal has a different waiting period before a convicted person is eligible to request removal. Let’s take a closer look.
Not-guilty outcomes must be destroyed or sealed. For the purposes of record removal, they include the following:
A not-guilty outcome may be destroyed and/or sealed immediately in some limited circumstances. Usually, however, a waiting period of one year applies to charges that were stayed. For a peace bond record to be removed, the individual must wait until the peace bond has expired.
The decision of whether or not to destroy and/or seal the record rests with the local police that laid the charges, usually based on the nature of the offence and the criminal profile of the individual found not guilty.
If the application is successful, complete file destruction may take anywhere from three to eighteen months and is often more complex and drawn out than it should be.
If you’re discharged for a criminal charge, you are found guilty but not convicted by the court.
An absolute discharge means that there is no sentence or condition to be satisfied. A conditional discharge comes with various conditions that, if met, will result in no sentence being applied.
Either type of discharge will appear on your criminal record and removing it requires an RCMP purge and the local police to destroy or seal the police file. This cannot be done until after one year from the final court date for absolute discharges and three years for conditional discharges.
Often, RCMP files are purged automatically but with the police file under the jurisdiction of the local police, their policies usually dictate how difficult this part is.
Most people understand that if you’re convicted of a criminal offence, it will appear on your criminal record.
Once you have been convicted, completed your sentence, and demonstrated that you are a law-abiding citizen, a record suspension (“pardon”) can remove the information from public access.
You may be eligible for a record suspension in Ontario after you have served your sentence (fine, restitution, probation or jail time) and then waited another five years for summary offences or 10 years for indictments.
A record suspension is available for almost every type of crime, except Schedule 1 offences (sexual offences involving children and young people under the age of eighteen), and those convicted of multiple serious offences (two or more years in jail on more than three occasions).
To ascertain eligibility for a record suspension, discuss your situation with a criminal defence lawyer well before the waiting period has expired as you may need to meet other criteria before approaching the Parole Board of Canada for a suspension.
Record suspensions generally take between three to eighteen months to complete but bear in mind that they can be revoked for re-offenders.
After a record suspension, members of the public can no longer see that you have a criminal record. However, certain legal agencies can still access that information under specific legal circumstances.
You should be able to travel to the U.S. without the worry of being turned back at the border. If you don’t yet have a record suspension, you may need to obtain a US Entry Waiver before leaving home.
For legal advice about removing a criminal record, speak to one of our criminal defence lawyers in Ottawa during a free consultation.
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]]>The post What to Do If Your Employer Accuses You of Theft in Ontario? appeared first on Affordable Defence.
]]>Accusations of theft or fraud in the workplace can result in consequences that go far beyond losing your job. It can lead to criminal action, with far-reaching consequences that can harm many aspects of your future if you are convicted.
It’s important to seek legal help from a qualified criminal defence lawyer to mitigate the negative outcomes that can result from these accusations.
Under Canadian law, theft and fraud is broadly categorized into two main types:
Theft under $5,000 rarely leads to jail time and is usually considered a summary offence. However, if theft or fraud occurs in the workplace and/or other aggravating factors are present, the seriousness of the crime can be elevated above that of shoplifting.
In theft cases, if there is a breach of trust element from the alleged offender (as is generally the case with employees, who are placed in a position of trust by their employers), the accusations are more serious and the consequences of a conviction are likely to be more severe.
Regardless of one’s salary, job title or role within the business, employees are expected to display honesty and integrity in the workplace. Theft of any company property or fraudulent use of funds is considered a serious breach of this duty.
Generally speaking, “breach of trust” offences will be dealt with harshly by the Ontario courts to discourage others from indulging in such actions.
The most immediate consequence of being accused of theft at work is a threat to your ongoing employment.
Even the suspicion that you have stolen from your employer can result in dismissal from your job — even if there is a plausible explanation for your actions and it turns out you’re innocent.
Accusations can damage your reputation and it is unlikely that you will get a reference from that employer, which can jeopardize the chances of securing alternative employment.
An employee who has been acquitted of theft in the workplace but still lost his/her job may be able to sue their former employer for the damage caused but this can take considerable time and expense.
An employee found guilty of theft at work and criminally convicted faces consequences that extend well beyond the workplace. A fine or even a jail sentence may result and the criminal record you will be saddled with can create future challenges not only with employment but education, travel, immigration status, and more.
For individuals accused of retail theft cases — stealing from a retail store at which they are employed — the matter is treated more harshly than shoplifting due to the aforementioned breach of trust.
The following factors will be considered when assessing the seriousness of a retail theft incident:
All theft and fraud cases are considered “hybrid” offences, which means that the Crown can proceed either by summary conviction or indictment.
Because employee theft is generally regarded as an aggravated case of theft by the Ontario courts, the Crown is more likely to proceed by indictment.
Indictments not only lead to a potential jail sentence, but also problems with travel to the U.S. for Canadian citizens and potential immigration problems in Canada if the individual is not a Canadian citizen.
Another aggravated form of employee theft is stealing from a vulnerable person. This includes deceit about payments or the direct theft of cash, jewelry or other valuables from elderly, mentally ill or handicapped people.
Caregivers, health workers, and other trusted personal care employees are often accused of this
type of employee theft. Because of the highly aggravated nature of this offence (a particularly serious breach of trust), conviction is likely to lead to jail time.
Being wrongly accused of employee theft (or any other crime) can expose individuals to reputational loss, loss of employment, and criminal penalties.
Whether it’s an accusation of stealing money from a cash register, taking merchandise from a loading dock or bookkeeping theft, there are harsh consequences in Ontario — especially if the amount is over $5,000.
Here are the steps you should take if you find yourself in this position:
The statute of limitations laws in Ontario prohibit anyone from filing a claim for civil damages more than two years after the cause of the damage occurred.
This means that if your employer fires you over wrongful accusations of theft, you have two years from the date of the dismissal to file a claim for damages. The problem is that a criminal court decision (and a possible appeal from it, if necessary) can take more than two years.
There are some notable exceptions to the limitations rule. These can be discussed with your criminal defence lawyer.
For legal advice about what to do if your employer has accused you of theft, speak to one of our criminal defence lawyers in Ottawa during a free consultation.
The post What to Do If Your Employer Accuses You of Theft in Ontario? appeared first on Affordable Defence.
]]>The post Recanting a Statement of Domestic Violence in Ontario appeared first on Affordable Defence.
]]>In domestic violence cases, the police often take a statement under oath from the alleged victim and use it to charge the accused.
But is recanting a statement possible?
Domestic violence cases are varied and range from relatively minor cases like a grab on the arm or light shove to extreme violence resulting in significant injuries.
Sometimes, after the victim has given a statement to the police, the couple reconciles their differences and the victim wants to recant the statement, claiming that he/she is no longer certain of remembering the events clearly.
The expectation that the police will simply drop the charges rarely eventuates. The Crown Prosecution may proceed with the case regardless, aware that victims are sometimes pressured by partners into recanting a statement.
In short, it’s not the victim’s decision whether or not to press charges or to pursue a conviction.
Recanting a statement made under oath in Ontario is highly unlikely to end the issue. Here’s what else you need to know.
To recant a statement means to take back as untrue part or all of the details that you have provided to the police.
Recanting is rare in most types of criminal cases but with domestic violence, which involves family and intimate relationships, it’s quite common for a victim to want to recant a statement.
Domestic violence cases are treated very seriously in Ontario.
Often, after the police are called out to a domestic violence incident, the alleged perpetrator will be put on conditions not to contact the victim. The accused is likely to be charged with assault, uttering threats, mischief or another crime and will be informed of an upcoming court date. This means that the criminal justice process has already begun.
The police may ask the victim to come to the station to provide a formal statement that strengthens their case against the accused. The victim is entitled to refuse to make a statement but, regardless, it is unlikely to prevent the partner’s criminal proceeding.
If an accused person is charged, the police believe they have enough evidence to prove that a criminal offence occurred. This often includes a “statement” of sorts from the victim during a 911 call (which the police will have a recording of) or from a CCTV bodycam, an audio recording or the police officer’s notepad while attending the alleged domestic violence incident.
The simple fact, then, is that a formal statement may not be required for criminal charges to proceed but the police usually request it to bolster their case.
Some domestic violence victims don’t want to press charges but make the call to the police in the belief that their presence will calm the situation.
If a victim later tries to change what they said happened, it means they may have lied to or misled the police initially, which in itself could lead to a criminal charge.
The decision of whether or not to press charges will be the responsibility of the police and the Crown Prosecution will decide if there is enough evidence to convict the accused.
The original statements from the alleged victim can be used even if a formal statement is recanted — regardless of whether the victim approves. The victim can also be subpoenaed (legally forced) to testify in court.
So, recanting a statement may not have the desired effect and a partner may still be held criminally liable for his/her actions. The case may still go to trial and, even if there is a good chance that the defence will win because of “reasonable doubt”, the sad truth is that domestic violence often recurs in such situations.
Many times, even if the relationship is over, the alleged victim doesn’t want the alleged perpetrator to have a permanent criminal record or, in the worst cases, go to jail. This could affect parental commitments, child support or spousal support contributions and there may also be emotional reasons for wanting to help.
Recanting a statement is rarely the best option for victims who want to help their partners and hope for the charges to be dropped.
If the statement can’t be recanted, the victim can create a supporting victim affidavit of non-prosecution. This is a legal document that can be provided to the Crown prosecution, the lawyer of the accused and sometimes the judge in court, enabling the victim to provide input that can influence the criminal prosecution and verdict.
A supporting victim affidavit of non-prosecution can be valuable evidence in a domestic violence trial. Because of the wide range of actions that constitute domestic violence, many possible sentences are available to judges.
Completing an affidavit can help a partner or spouse avoid the worst consequences of a domestic violence charge by providing context to the incident that prompted the original police call and potentially mitigating the circumstances surrounding it.
The feelings and wishes of the victim should also be taken into account by the Ontario courts when deciding on the level of guilt that can be assigned to the perpetrator — and hence affect the sentence handed down by a judge.
Sometimes, the affidavit can result in the following:
Therefore, an affidavit may be well worth considering as an effective alternative to recanting a statement.
For legal advice about a domestic violence case, speak to one of our criminal defence lawyers in Ottawa during a free consultation.
The post Recanting a Statement of Domestic Violence in Ontario appeared first on Affordable Defence.
]]>The post Statute of Limitations for Common Criminal Offences in Ontario appeared first on Affordable Defence.
]]>Some criminal offences in Ontario are bound by a statute of limitations. This specifies a timespan during which criminal charges can be filed against an alleged perpetrator.
Generally speaking, after this period passes, it is no longer possible for the individual to be charged with the crime.
However, for many of the most serious offences (indictable offences), no statute of limitations applies in Canada — anyone can call the police and report a crime that took place at almost any time in the past and the alleged offender can be charged as long as he/she is alive.
A good example is a historical sexual offence that took place many years ago. In Canada, victims can come forward and report such crimes and, provided there is sufficient evidence available, the Crown prosecutor can proceed with charges against the alleged offender.
This is somewhat different to over the border in the U.S. where even serious offences are generally covered by statutes of limitations imposed by state and federal laws.
In Canada, criminal offences are broadly categorized by how serious they are deemed to be. We do not use the terms misdemeanor and felony, like in the U.S. Instead, the three main categories are:
Indictable conviction offences are the most serious types and are similar to felonies. They can be tried either by a judge alone or by a judge and jury and can lead to penalties of up to life in prison.
Indictable criminal offences include the following types of crimes:
Summary conviction offences are similar to misdemeanors and are considered less serious than indictable offences. They are often considered as “petty crime” and carry lighter sentences. Summary conviction trials are generally held by a judge with no jury present and the penalty is usually up to a $5,000 fine and/or six months in jail.
Examples of summary conviction offences in Ontario include:
Some of the most common crimes in Ontario are hybrid offences, which are also known as dual procedure offences. Such cases can proceed as either summary or indictable convictions. The Crown prosecution can select which suits their aims best.
Generally, more serious crimes will proceed as indictments (with harsher penalties) while less serious offences may be prosecuted as summary conviction offences. However, as outlined in the following sections, summary and indictable offences carry different restrictions when it comes to their statutes of limitations, so this may be a factor in the decision.
Examples of hybrid conviction offences include:
When considering hybrid offences, the decision of whether to prosecute by summary or indictable conviction will depend on factors such as:
Indictable offences can be prosecuted at any time after the offence has allegedly been committed. This provides prosecution teams with the maximum possible time to build a case against the defendant (criminal defence lawyers also have more time to build a defence).
Summary offences have a one-year statute of limitations in Canada, as outlined in Section 786(2) of the Criminal Code of Canada. This means there can be no delays in prosecuting such offences and they will generally move more quickly through the Ontario courts than indictments.
Once the 12-month statute of limitations passes, the prosecution will forfeit its right to bring charges against the defendant for the alleged criminal act.
Because crown prosecutors have the discretion to prosecute dual procedure crimes as indictments or summary convictions, hybrid crimes may be bound by a 12-month statute of limitations or no statute of limitations at all.
In some cases, the prosecution has already missed the 12-month statute of limitations for summary offences and must prosecute a hybrid offence by indictment. This provides more time to gather evidence, but it can be more challenging to secure a conviction in front of a jury and with harsher penalties at stake.
The statute of limitations imposed for summary conviction criminal offences recognizes that delays in the case for the prosecution could create difficulties in obtaining reliable evidence and witness testimony.
Legal teams use a variety of strategies when preparing cases and the criminal justice system looks to protect its integrity by imposing these statutes of limitations on crimes. The restrictions also protect the individuals concerned from prolonging the uncertainty and stress of the situation.
Indictable criminal offences are considered to be of significant public concern. The Canadian justice system recognizes that perpetrators of such crimes must be held responsible regardless of the amount of time that has passed.
The expiry of the statute of limitations for a criminal offence generally bars the prosecution from filing criminal charges against the accused.
However, if you have witnessed, committed or been the victim of a crime more than 12 months ago, it is advisable to seek legal advice before dismissing the chance of a case being filed. Remember, many criminal offences are classified as “hybrid” and can, therefore, often be prosecuted well beyond 12 months, with no set time limit imposed.
The criminal defence lawyers at Affordable Defence can advise you about your legal rights, options, and obligations during an initial consultation.
There is no specific offence of family violence addressed in the Criminal Code of Canada. However, the Department of Justice states most acts of family violence are crimes in Canada. Domestic violence may be physical, sexual, emotional, economic, or psychological.
The statute of limitations applying to crimes of domestic violence depends on the offence itself. The nature of the relationships of those involved and the unique family situation will be considered by prosecutors, judges, and juries when the case proceeds through the criminal justice system.
For the best possible chance of successfully defending criminal charges, speak to one of our criminal defence lawyers in Ottawa during a free consultation.
The post Statute of Limitations for Common Criminal Offences in Ontario appeared first on Affordable Defence.
]]>The post Age of Consent in Ontario appeared first on Affordable Defence.
]]>The age of consent is the legal age at which an individual is considered capable of making an informed decision about whether to engage in sexual activity.
Depending on certain other circumstances, any sexual activity with any individual who is under the age of consent at the time may be considered a sexual offence and punishable under the criminal justice system of Canada.
The standard age of consent in Ontario (or any other Canadian province or territory) is 16.
However, the age of consent is higher in some circumstances. One example is if the accused has a relationship of trust, authority, or dependency with the individual in question.
The age of consent laws refers to the age at which a person can legally agree to sexual activity. So, the laws apply to any type of sexual activity, including kissing and fondling. In other words, the laws are not limited to sexual intercourse but cover a wide range of behaviours.
In Canada, any sexual activity without consent is a criminal offence with harsh punishments for convictions, including mandatory minimum penalties.
There are certain exceptions to the age of consent laws that apply in very specific cases.
For example, if a minor aged 14 or 15 years old engages in sexual activity with a partner who is less than five years older, it may be considered legal (i.e., the child may be considered to have provided legal consent). There is an important caveat though: this law only applies if there is no relationship of trust, authority or dependency or any other exploitation of the minor.
For instance, if a 14-year-old and an 18-year-old in a boyfriend-girlfriend relationship have sexual intercourse, it may be considered legal. However, if the 18-year-old was the child’s coach or had been specifically asked to look after the minor, the exception would likely not apply.
There is even a “close in age” exception for 12- and 13-year-olds in Ontario, which surprises some people. Namely, a 12- or 13-year-old can consent to sexual activity with a partner as long as the partner is less than two years older. Again, any relationship of trust, authority or dependency or any other exploitation of the minor nullifies the exception.
The sexual exploitation of a child occurs if a minor engages in sexual activity and any of the following applies:
In these cases, there can be no legal consent to sexual activity.
To assess whether a relationship is exploitative, judges in Ontario will consider many factors, including the minor’s age, the age difference with the partner, how the relationship developed and whether the partner controlled or influenced the minor in any way.
Statutory rape is considered a serious crime in Canada and is defined as any sexual contact with a person under the age of consent.
As noted above, in cases where a person has sex with another individual under the age of consent, the underage person cannot legally give consent (except in exceptional circumstances) and statutory rape charges against the perpetrator could follow.
A conviction could lead to a jail or prison sentence, even if the younger person is a willing partner. This could even apply if neither partner is an adult, especially if exploitation of the younger individual had occurred.
Note that if one of the parties is physically incapacitated or mentally disabled, all sexual intercourse may be considered statutory rape because such individuals are unable to give legal consent.
There may be several defences available against a statutory rape charge. One of the most commonly argued defences is the “honest belief in consent” defence.
To be successful, the defendant must:
The “honest belief in consent” defence will not be successful unless each of the above three points is suitably addressed. If, for instance, the defendant acted with willful blindness (i.e., he/she did not check consent) or failed to take reasonable steps to confirm consent because he/she was intoxicated, the defence will likely fail.
A charge for any sexual offence comes with the potential for jail time, a lifelong criminal record and mandatory registration on the Ontario Sex Offender Registry. There can also be significant reputational damage — even if the complainant’s accusations are untrue.
In most cases, it is best to consult with a sexual offence lawyer who has experience in this type of criminal case. Your defence lawyer can help secure your release with the least stringent bail conditions and then start preparing a defence based on the available evidence.
Even if the complainant decides to withdraw the accusations, the Crown prosecution may still decide to proceed with the charges. If the case proceeds, the trial may not take place for 6-12 months, during which time your lawyer will communicate with the prosecution on your behalf to see whether the matter can be resolved in your best interests.
If a trial is necessary, testimony from the accused and the complainant will likely be used to determine if the sexual activity was consensual. This may be the key evidence in the trial.
For the best possible chance of successfully defending a sexual offence charge, speak to one of Affordable Defence’s criminal lawyers, located in Ottawa, for a free consultation.
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]]>The post Mandatory Minimum Sentences for Serious Drug Charges in Ontario appeared first on Affordable Defence.
]]>The Canadian criminal justice system comes down heavily on anyone convicted of a serious drug offence.
Since 2012, mandatory minimum sentences have applied to some of the most serious drug-related offences, such as drug production, drug trafficking and importing/exporting. Even some types of possession can lead to a mandatory minimum sentence if aggravating circumstances are present.
This means that judges must impose prison sentences on anyone convicted of these crimes, regardless of the circumstances or how convincing the mitigation pleas are.
If you’ve been charged with a serious drug crime in Ontario, you should understand the potential consequences of a conviction for the rest of your life — and take steps to defend the charges.
Let’s take a closer look at which offences have mandatory minimums attached, the aggravating factors that can affect a sentence and what you can expect if you’re convicted…
Since the passage of the Safe Streets and Communities Act in 2012, certain drug offences lead to an automatic custodial sentence in Canada.
These are offences where Schedule 1/Schedule 2 substances and aggravating factors apply, such as involvement in organized crime, the use of violence, targeting youth, public security, health, or safety hazards are present or previous conviction(s) appear on a suspect’s criminal record.
The Controlled Drugs and Substances Act (CDSA) lists all controlled substances and categorizes the drugs according to their potential danger. The Act also defines laws on and associated penalties for the possession, trafficking, and import/export of drugs.
Substances listed in Schedule I of the CDSA include cocaine, opium, heroin, oxycodone, and methamphetamine. These are considered to have a high potential for abuse. Cannabis is listed as a Schedule 2 drug (including its preparations and derivatives).
The four main categories of serious drug crimes for which mandatory minimum sentences apply are:
For the mandatory minimum sentences described above to be triggered, the offence must be accompanied by an “aggravating factor”.
The most important of these aggravating factors are:
(i) Lists A and List B:
(ii) The second group relates to drug offences that include situations where the production of Schedule 1 or Schedule 2 drugs created security, health, and safety hazards, such as the following situations:
Serious drug crimes attract serious sentences in Ontario but what about relatively minor drug offences?
Any drug charge can have life-altering consequences in Canada, so you need to take the charge seriously and be prepared to mount a rigorous defence to prevent it from impacting your future.
However, it is unlikely that minor offences will result in mandatory minimum sentences any time soon after the Supreme Court ruled that mandatory minimum sentencing for minor drug trafficking charges (as set out in the CDSA) is unconstitutional.
If you have been charged with a drug-related offence in Ontario — regardless of whether a mandatory minimum sentence applies — contact an experienced criminal defence lawyer at Affordable Defence for a free case evaluation.
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]]>The post Self-Defence Laws in Ontario appeared first on Affordable Defence.
]]>Self-defence is a common defence used by defendants of violent crime charges in Ontario — because the right to defend one’s self and one’s property is a fundamental right of Canadian citizens.
But when is this defence likely to be successful?
The self-defence laws in Canada are complex and often misunderstood. If you’re involved in a violent altercation of any kind, it helps to know what may constitute legal self-defence and what actions overstep the mark…
Self-defence is addressed under Section 34 of the Criminal Code:
So, a person is permitted to take “reasonable” action to protect themselves or others without the risk of being found guilty of an offence. Crucially, the defensive actions must be proportional to the circumstances — and this is where much of the confusion lies.
For instance, if lethal force is used, self-defence may only be a valid claim if it was the only available option to repel a perceived threat of severe bodily harm or loss of life.
To put this another way, self-defence would not be valid if you shoot and kill an unarmed assailant who punches you in the face.
To apply any defence successfully, it must first pass an air of reality test. This means that a properly instructed jury acting reasonably could acquit the defendant based on the available evidence.
To ultimately be successful in acquitting a defendant, a criminal defence lawyer must then prove on a balance of probabilities that the elements outlined above in the Criminal Code apply.
Before putting forward a self-defence argument, the following factors (among others) will need to be taken into account:
Claims of self-defence in attacks on police officers are generally unsuccessful — unless it can be proven that the police officer’s actions were unlawful.
The Citizen’s Arrest and Self-Defence Act is a Canadian federal law enacted in 2013, empowering citizens to use reasonable force to apprehend individuals whom they believe to have committed a crime.
In most cases, the best course of action is to alert the police and allow them to make the arrest. If that is not feasible in the circumstances, a citizen can make the arrest if they discover a crime being committed or a person fleeing from law enforcement.
To arrest someone for an indictable offence, you must be at the location where the person is committing the crime. Also, in most cases, unless the offence is related to your property, it is illegal to arrest a person after he/she has already committed an indictable offence.
To make an arrest on or concerning your property, you must either own the property, be in lawful possession of it or be authorized by the owner/person in lawful possession of the property to make the arrest. The arrested individual must be handed over to the police immediately after or it may be deemed unlawful and you could face sanctions.
An amendment has been made to the legislation to allow for if a person reasonably believes that they or another person is being threatened with force and consequently takes actions to defend against that force. In such a situation, the person acting in self-defence cannot be held criminally liable for an offence.
The defence of property law, as detailed in Section 35 of the Criminal Code, means that you cannot be found guilty of an offence if you take reasonable actions to defend property that you have a reasonable belief of “peaceful possession” of and another individual’s specific actions present a threat to this property (for instance, by trespassing, theft or vandalism).
“Peaceable possession” means that the possession of the property is not likely to lead to a breach of the peace.
To raise a defence of property successfully, your defence lawyer will need to prove the following four requirements on a balance of probabilities:
A claim of defence of property against the police is generally only available if you believe that the police have acted unlawfully.
The self-defence laws state that you can defend yourself from force or a threat of force by any reasonable means and the courts will consider many factors in assessing this.
Generally speaking, a weapon may only be used to defend yourself if you are in a situation where you reasonably believe there is a force, or a threat of force, that will be used against you. Remember, the force you use should be reasonable and proportional to the threat faced.
Lethal force may be justified depending on the nature of the threat faced. The use of firearms is generally prohibited for the defence of self or property in Canada.
Remember, you can be charged with assault or manslaughter even if your actions were taken to defend yourself or your property.
If you have been charged with a criminal offence in Ontario where you were acting in self-defence, contact an experienced criminal lawyer at Affordable Defence for a free case evaluation.
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]]>The post Carrying a Concealed Weapon Charges in Ontario appeared first on Affordable Defence.
]]>Unless you’re carrying a concealed weapon as authorized for a lawful purpose under the provisions of the Firearms Act, is a criminal offence in Ontario — and accompanied by harsh penalties.
If you’re facing a charge of carrying a concealed weapon, it’s important to take measures to mitigate the potential immediate consequences and the longer-term impact on your future.
Most importantly, seek the advice of a criminal defence lawyer with experience in such matters.
If an individual possesses or carries a weapon, a prohibited device or any prohibited ammunition while concealed, he/she may be charged with carrying a concealed weapon.
Most people think of guns with this offence but that’s not always the case. In fact, a concealed weapon could be any of the following:
Even pepper spray may fall into the category of a concealed weapon.
To be concealed, an individual must purposely hide the weapon so that it would not come to the notice of others. However, this does not include storing a firearm in the trunk of a motor vehicle or a back pocket or purse.
When considering the offence, it helps to review exactly what the Criminal Code of Canada says.
Carrying a concealed weapon is addressed in the “Firearms and Other Weapons” part of the Criminal Code (Section 90).
90 (1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed unless the person is authorized under the Firearms Act to carry it concealed.
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.”
Carrying a weapon has a much broader definition than having it on one’s person. It may include the weapon being within reach in a vehicle over which you have care and control.
To convict an individual of the offence, the prosecution must prove that the defendant hid an object known to be a weapon to avoid it being detected.
Under the Criminal Code, the prosecution may proceed as an indictable or summary offence (sometimes called a “hybrid” offence), depending on the circumstances and what the prosecution decides.
For the Crown to successfully convict a defendant on a charge of carrying a concealed weapon, both actus reus (the guilty act) and mens rea (the guilty mind) must be proven.
In other words, in these cases, the Crown needs to prove that:
The burden of proof in criminal cases is high, of course. Each of the above must be proven beyond a reasonable doubt. Often, a seasoned criminal defence lawyer can build a strong case that brings one or more of these elements into doubt.
The main defences for carrying a concealed weapons charges are the following:
The Canadian Charter of Rights and Freedoms protects the basic rights and freedoms of individuals. If these rights are violated by law enforcement during your stop, arrest or charge, evidence may be deemed inadmissible and the prosecution’s case against you could collapse.
For instance, under the Charter, you have the right to be free from unreasonable search and seizure. If the police took a weapon from you without observing your search and seizure rights (for instance, no warrant), it can be a strong defence as we will file to have the evidence excluded.
The same applies to breaches of rights such as the right not to be arbitrarily detained, the right to be informed of reasons for detention or arrest, and other rights under the Charter.
Unless it can be proven that the device was a weapon, prohibited device or prohibited ammunition — and the defendant had knowledge and control over it — the prosecution’s case may fail because actus reus cannot be proven.
An example might be a switchblade found in the trunk of a friend’s car that you were driving. It would be difficult for the prosecution to prove that you had knowledge and control of the weapon.
The prosecution must prove that you intended to conceal the weapon (mens rea) and that it was a premeditated and deliberate action. Otherwise, you cannot be convicted of the offence.
As a hybrid offence, the punishments for carrying a concealed weapon vary greatly depending on the circumstances.
If prosecuted as a summary offence, the accused faces a maximum of two years less a day in prison and/or a $5,000 fine.
As an indictable offence, the accused faces a maximum of five years’ imprisonment. The case may be heard by a provincial court, a superior court judge alone or a superior court judge and jury.
If you have been arrested and charged with any criminal offence in Ontario, contact an experienced criminal lawyer at Affordable Defence for a free case evaluation.
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]]>The post Conditional Sentence Orders in Ontario appeared first on Affordable Defence.
]]>There are several options open to judges in Ontario as alternatives to jailing offenders.
One of these is a conditional sentence order (CSO), which is sometimes known as house arrest or home confinement.
However, this option has strict eligibility criteria under the Criminal Code and is not available for many types of crimes.
A Conditional Sentence Order or “house arrest” has some similarities with probation in that the sentence is served in the community.
Under the terms of the CSO, the subject of the order will usually be under 24-hour house arrest for up to 24 months rather than going to jail. This means staying at home at all times for the duration of the order.
Often, this is considered a favourable outcome for a person found guilty of a crime — but it is not a “get out of jail free card”. Failure to abide by the conditions imposed by the CSO can lead to immediate jail time.
A convicted person is expected to stay at home all day and night except when permitted to leave the home for a specific purpose by the judge.
A judge may declare exceptions to the 24-hour house arrest conditions for the following limited types of activities:
Under section 742 of the Criminal Code of Canada, you are only eligible for a conditional sentence order if each of the following circumstances applies:
Offences that are specifically excluded from eligibility for a CSO include sexual assault, kidnapping, motor vehicle theft, theft over $5000, arson for a fraudulent purpose, breaking and entering a place other than a house, trafficking persons, and criminal harassment.
The Criminal Code outlines the eligibility conditions relating to a conditional sentence order more specifically as follows:
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
There are sets of mandatory and optional conditions that a judge can impose under the terms of a conditional sentence order.
The mandatory conditions are as follows:
Judges may also order any condition in the interests of protecting the public, denouncing criminal behaviour, or deterring the offender (or others) from committing additional crimes.
Other conditions may also be issued to provide reparations for harm done to victims or the community, assist in the rehabilitation of the offender and promote a sense of responsibility for offenders.
Some additional conditions typically include abstaining from consuming drugs or alcohol, communicating directly or indirectly with the victim or witness, performing community service, and owning or possessing any firearms/dangerous weapons.
Providing the offender meets the eligibility criteria, whether to award a conditional sentence order comes down to the judge’s discretion.
The Ontario legal system is generally keen to reduce the pressures on the prison system here so if that’s the case, the judge will award the CSO and decide on the conditions to impose on the offender.
One of the main differences between a conditional sentence order and probation is what happens if the terms of the order are breached.
If an offender breaches the terms of a CSO, the judge will consider jail for the remainder of the CSO term.
For instance, if you receive a 24-month CSO and, after one year, are found to have left your house without specific permission, the judge can send you to jail directly for the remaining year of your term.
It’s not a certainty that the offender will be sent to jail but without a persuasive case made by a criminal defence lawyer, it becomes more likely.
To increase the chances of a positive outcome in your criminal defence matter, speak to a lawyer from Affordable Defence in Ottawa during a free consultation.
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