Image consulting for lawyers and their clients

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Image Consulting 101- What lawyers need to know:

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It is often said that perception is reality. In court, first impressions are vitally important given that trial judges, prosecutors and jurors have very little opportunity to evaluate the players in a case and often make snap decisions about the parties involved. The ability to make a positive first impression is of crucial importance and may help tip the scales of justice in a person’s favour.

Recognizing this, lawyers will often consult with image experts to help shape their own image or the image of their clients in order to achieve top results in court.

In the following blog post, image consulting expert, Zayna Mosam offers some information and advice on how lawyers can maximize results in court for themselves and their clients by utilizing basic image management principles and strategies.

What is the impact of image?

The ability to build and maintain strong rapport is one of the most valuable skills one can develop no matter the environment or ambitions at play. While character and talent are of highest importance, image is always a major factor in getting what you want because it can quickly attract or repel people and prospects.

The image an individual projects can either prevent a favourable outcome or propel them forward beyond all expectation. Perception is of paramount importance and must be monitored and managed.

Why examine your personal and professional image?

Your personal image is a demonstration of your credibility, your personality and your confidence. It gives you the power to establish the impression of you that will be carried by others and allows you the opportunity to change existing perceptions.

You must feed your priority messages to the conscious and subconscious minds of your audiences. You can communicate your messages swiftly and accurately using your appearance, demeanour and language. Make yourself the easy choice for the decision maker in a world that has us bombarded by millions of pieces of information daily.

The lawyers I have worked with well understand the value of their image as they are so often working to present their clients’ cases. The verbal message or argument must align with the image of the messenger so that it registers as credible to the audience. Wardrobe, body language and tone of voice aid in influencing the relevant parties. The image of the client can be just as critical. Especially when appearing in a boardroom for negotiation or on the stand during trial.

How does an image advisor help you to add value to your personal brand?

An image consultant guides you to become a master communicator. An experienced consultant can develop your customized image (that is authentic for you) and can train you to shift seamlessly between modes in order to connect effectively with your audience of one person or thousands of people. For some, a touch of polish or a small adjustment is what it takes. For others, a major transformation may be in order.

In my experience, even those at the top of their fields are interested in strengthening their personal brands further. Here are some tips to consider:

1. Conduct an image & reputation analysis

Find out how you or your clients are perceived by various groups/audiences through interviews and an honest examination of your reputation, personal image (including appearance and communication style), online presence and business materials. This can be done on your own to a degree or you can have a professional create an objective comprehensive report for you.

2. Extend your strategic goals to include image management

Your image must harmonize with the key messages identified in your strategic direction. For example, if you are a top executive of a company with a cutting edge product that is also known for excellent customer service it is critical for your look to be current or fashion forward.  A global sensibility in terms of etiquette is also an advantage. 

Formulate a plan if adjustments are required and enlist assistance where needed. 

3. Craft a customized flexible image to prepare yourself for your path

Define your natural image parameters. Some people are always somewhat casual (in look and demeanour) while others are very formal at certain times and very relaxed at others. Have a corresponding visual image you love for each mode you have. In order to be comfortable and prepared for anything that may come up, plan a wardrobe that includes every level of dress you may need i.e formal corporate, business casual, evening informal. 

Your body language, conversation and voice must be an extension of your style. Find a balance by appearing poised but relaxed. You can choose movements, words and tones of voice that are most natural to you so that you don’t feel as if you are putting on an act. You are simply optimizing your communication for the situation at hand.

4. Attend to the little things  - they linger and speak volumes about you

Wear a piece of clothing or an accessory that helps you to stand out for making an uncommon choice. This could be a piece of jewelry, patterned lining in your jacket, a pocket square or a beautiful pair of shoes. It’s not enough for the item to be rare though because the effect only works when the piece suits you. This means it should be of a scale, colour palette and style that suits your body type and personality.

5. Orchestrate the first impression when possible

Plan to impress at a first meeting whether it is in your office, at a party or in a networking context. Set the stage while leaving room for spontaneous moments and genuine small talk. If you know that important people of interest will be in attendance, prepare a few topics and questions to guide the conversation in the direction that will best serve you. Plan every detail of your outfit including accessories and if possible wear or hold something that gets you noticed (I mean a beautiful piece of clothing or an accessory, not something that borders on costume). A compliment is a great way to start a conversation.

If you are in the host role, also design your environment to suit the goals of the day. For instance, when looking to sign a new client different set ups can be ideal depending on the individual or group. Venue, seating arrangements, decor, available refreshments, type of small talk and time of day can make a world of difference. 

Considering immigration consequences on sentencing

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Earlier this week, tsupreme_court_of_canadahe Supreme Court of Canada released their ruling in R. v. Pham 2013 SCC 15 which answers the question, “What weight should be given to collateral immigration consequences in sentencing?” 

Mr. Pham was not a Canadian citizen. He was convicted at trial of producing marihuana and possessing it for the purpose of trafficking. The trial judge imposed a sentence of two years imprisonment after a receiving a joint recommendation on sentence from Pham’s lawyer and the crown prosecutor.

Only after the sentencing hearing did Pham learn he had lost the right to appeal a deportation removal order made against him pursuant to the Immigration and Refugee Protection Act. This was on account of the fact that he received a jail sentence of more than two years. Neither his lawyer, nor the judge were aware of this collateral immigration consequence at the time the sentence was imposed.

On appeal, Pham sought to reduce his jail sentence by one day so that he would be eligible to challenge his removal order. The Alberta Court of Appeal refused to modify the sentence given that the original sentence Pham received was not “unfit”.

Ultimately, the Supreme Court of Canada overturned the Alberta Court of Appeal and granted Mr. Pham a sentence reduction of one day so that he might appeal his removal order.

Justice Wagner on behalf of the unanimous Court recognized that judges are entitled to consider collateral immigration consequences when sentencing an offender provided that, “the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.”

However, the court also warned that, “the sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.”

All of this is to say that the collateral consequences of a jail sentence such as immigration concerns should be only one factor to consider when crafting an appropriate sentence and should not, “dominate the exercise or skew the process either in favour of or against deportation.”

The Supreme Court was prepared to modify Pham’s sentence because either the sentencing judge was not aware of the collateral immigration consequences of the sentence or because his counsel had failed to advise the judge on this issue and the modification of sentence did not otherwise render the sentence unfit.

However, Justice Wagner cautioned, “where the issue of immigration consequences is brought to the trial judge’s attention and the trial judge applies the proper sentencing principles but nonetheless decides on a two-year sentence, then, absent fresh evidence, deference is owed to that decision”.

Therefore, absent new evidence not presented at the time of sentencing, the Pham decision stands for the proposition that appeal courts will rarely, if ever, interfere with a trial judge’s decision not to reduce a sentence in order to accommodate collateral immigration consequences even if the request is to simply reduce the appropriate sentence by just a single day.

Public Mischief Charge in Canada

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Public Mischief Lawyer Toronto

Toronto PoliceIt is a crime in Canada to cause a police officer to enter on or continue an investigation with the intent to mislead them in any of the following scenarios:

(a) making a false statement that accuses some other person of having committed an offence;

(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;

(c) reporting that an offence has been committed when it has not been committed; or

(d) reporting or in any way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.

Committing any of these acts can lead to a public mischief charge.

Frequently asked questions about public mischief charges:

Why is public mischief considered a crime?

The purpose of this law is to discourage the false reporting of offences. In a general sense, this charge is designed to prohibit someone from making false accusations which can potentially implicate an innocent person and usurp precious police investigatory resources.

What must the prosecution prove in order to establish a public mischief charge?

Where an accused person is charged with reporting that an offence has been committed when it has not been committed, the Crown must prove the following:

1)   that the accused reported an offence;

2)   that the accused’s actions or words contained in the report were false;

3)   that the accused intended to mislead the police; and

4)   that the accused’s actions or words caused a police officer to commence or to continue an investigation. 

Must the falsely reported offence be a criminal offence to meet the definition of public mischief?

The word "offence" has been given a very broad interpretation by our courts. The term “offence” is not restricted to Criminal Code offences. The term also includes any breach of the law, federal, provincial or otherwise, that involves penal sanction.

Must the prosecutor prove the offence did not occur in a public mischief prosecution?

Where the Crown Attorney has failed to prove that an offence has not in fact been committed, the accused is entitled to an acquittal. 

Must the police officer be misled by the false statement made by an accused person?

Where a police officer is not actually misled by the false statements or reports, the accused will be acquitted of public mischief but can nevertheless be convicted of attempted public mischief.

Is it still public mischief if the false report is not made directly to a police officer?

The law is still unsettled in this area. In some cases our courts have held that in order to attract criminal liability, the accused must be found to have made a false report directly to a police officer, or to someone else, with certainty that the person would contact the authorities.

At the very least, the “report” must be a formal complaint, made to a public authority who can effect an investigation in order to constitute public mischief.

What is the punishment for public mischief?

In Canada, the maximum punishment for committing the crime of public mischief is five years in jail. However every case and offender is unique and sentencing must be assessed on a case by case basis. 

If you are facing a public mischief charge or any other criminal offence, contact Daniel Brown for a consultation.  

Understanding the Defence of Entrapment in Canada

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The police will often act covertly in an undercover capacity in order to investigate criminal activity. Rarely, the police will go too far in their undercover investigations and actually induce an otherwise law-abiding person into committing a crime such as trafficking drugs or soliciting a prostitute. The criminal justice system protects against situations like this by dismissing cases where such behaviour has occurred on the basis that such police conduct constitutes an abuse of the court’s process.

The following article attempts to explain the legal defence of entrapment in the Canadian criminal justice system. 

Frequently Asked Questions About Entrapment

What is entrapment?

Entrapment occurs when someone is induced to commit a criminal offence as a result of unfair law enforcement practices such as trickery, persuasion or fraud.

What must be proven to establish the defence of entrapment?

In raising the defence of entrapment, an accused must establish on a balance of probabilities that either:

(1) the police, without reasonable suspicion that the target was already engaged in related criminal activity, provided the target with an opportunity to commit a crime; or

(2) the police, having the reasonable suspicion noted in (1) above, went beyond providing the target with an opportunity to commit the alleged offence and actually induced the commission of that offence.

Does the accused bear the burden of establishing entrapment occurred?

The onus of establishing an entrapment defence falls on the accused to prove on a balance of probabilities that entrapment has occurred.

Do the entrapment rules change in high crime areas?

It is permissible for the police to offer to a person, about whom they have no reasonable suspicion that he or she is engaged in criminal activity, an opportunity to commit an offence if that person is located in an area in which the police reasonably suspect such criminal activity is occurring.

Therefore, residing in an area known for drug trafficking may permit a police officer to engage strangers in drug related conversations with a view to arresting them without knowing anything about them.

At what point in time must the police have reasonable suspicion the target was engaged in criminal activity?

The relevant time when determining whether the police had a reasonable suspicion that the target was engaged in criminal activity is when the opportunity to commit a related offence was given to the accused by the police.

What constitutes a reasonable suspicion for the purpose of assessing an entrapment defence?

A reasonable suspicion is more than a mere suspicion and less than reasonable and probable grounds. It is dependent on both the content of the information provided to the police and its degree of reliability.

What are there limitations to the defence of entrapment?

1) The offence must be induced by the state

Entrapment must involve the state or state agents. One cannot argue that he was entrapped into committing an offence by a private individual.

2) Excluded offences

There may be offences to which the defence cannot apply. Previous court decisions have indicated the defence of entrapment is not available where actual killing, bodily harm or other acts of violence are involved.

3) Not available at extradition proceedings

Entrapment cannot be used as an argument against extradition to a foreign country.

What are some factors the court will consider in determining whether or not someone was entrapped to commit a crime?

  • The type of crime being investigated and the availability of other techniques for the police detection of its commission;
  • Whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
  • The persistence and number of attempts made by the police before the accused agreed to committing the offence;
  • The type of inducement used by the police including deceit, fraud, trickery or reward;
  • The timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
  • Whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
  • Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
  • The proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
  • The existence of any threats, implied or express, made to the accused by the police or their agents; and
  • Whether the police conduct is directed at undermining other constitutional values.

At what point in the trial should the defence of entrapment be raised?

The Crown must prove that the criminal activity which gave rise to the entrapment allegation occurred before an entrapment defence can be raised. Therefore, entrapment arguments are almost always raised after the judge or jury has found the accused guilty but before the accused is sentenced.  

What is the appropriate remedy when entrapment is established?

A stay of proceedings is typically the proper remedy for entrapment; however, a judge may also grant the remedy of excluding evidence where appropriate.

Establishing a person was entrapped by police is extremely rare. If you have further questions about the law of entrapment, Daniel Brown is available for consultation at (416) 297-7200.

How to Manage Your Online Reputation Effectively

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I have often represented people in criminal court who have found their names and images splashed across the television, newspapers and on the internet. Unfortunately the presumption of innocence does not prevent the media from reporting that someone is currently facing criminal charges. Even more unfortunate is the fact that these negative news articles will remain online long after the criminal case has been completed, regardless of the outcome.

Managing one’s online reputation can be challenging. It can be hard to get rid of a damaging web article or news story. My recommendation is to take a proactive approach which many professional online reputation management services do as opposed to waiting and taking a reactive approach when something negative gets posted online related to the criminal case.

A proactive approach where you control the channels of information will make things a lot easier when someone writes a negative news story or tries to defame your name or business. In this article, I will review some specific tactics used to successfully manage your online reputation effectively. Continue reading >

Plead now and it may cost you later – how your criminal conviction can impact your civil lawsuit

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It is often understood that a criminal conviction may significantly impact a person's future employment and travel opportunities. However, most people facing criminal charges are unaware how a conviction may impact their ability to bring or defend a civil lawsuit arising from the same incident that gave rise to the criminal charges. 

Daniel Brown works closely with a select group of experienced personal injury lawyers to ensure that his clients interests are protected in both criminal and civil court.

In the following article, Toronto personal injury lawyer, Steven Polak, provides insight into how a criminal or Highway Traffic Act conviction for a driving related offence can affect a person's rights in civil court:

When someone is charged with a criminal offence arising from a car accident, they usually don't think about the effect that the criminal case might have on a future injury claim. They often assume that a Highway Traffic Act or criminal conviction is separate from the injury lawsuit. In most cases, they are wrong. In fact, the outcome of a criminal court case can potentially impact a future civil law claim.

It is a common misconception to think that what really matters in a personal injury lawsuit is whether your insurance company designates you as having been “at fault” for the car accident. However, your insurance company will go by something called "The Fault Determination Rules" when deciding whether you were at fault for the accident. Those are relatively simple rules that were designed to help insurance companies quickly and cheaply determine who should be listed as the at-fault driver. The fault determination rules are usually not relevant to a lawsuit for injuries.

In most cases, a Highway Traffic Act or criminal conviction can come back to haunt you in your civil lawsuit because it may help determine who was at fault in your accident. If you were injured in an accident that also gave rise to criminal charges, a plea or conviction can affect your right to sue and, in some limited cases, it can even affect your right to claim certain accident benefits in civil court. For instance, if you were a left turning driver who was convicted of dangerous driving or left turn not in safety, you would probably have a lot of trouble in civil court establishing you were not driving dangerously or that you did make the turn in safety.

In most instances, a guilty plea or conviction can be treated as evidence of guilt in an injury lawsuit proceeding. A plea or conviction is also generally treated as conclusive proof both that the guilty party committed the offence and for any findings of fact on which the finding of guilt was based. For example, you can't later say in civil court "I wasn’t drunk" when you already plead guilty or were found guilty of impaired driving in criminal court. The civil courts use this general rule because they do not want to relitigate issues that have already been decided in another court proceeding. Courts prefer to decide issues once, although there are limited exceptions where it may be appropriate to relitigate an issue at a subsequent trial.

What this means is that you should treat the possibility of a conviction or plea bargain on criminal charges seriously when you have been injured and plan to seek compensation through the civil courts or when you have injured someone else and they are seeking compensation. The conviction or plea in criminal court could determine whether you are at fault for the accident and how the insurance companies view the case for the prupose of paying damages.

As a personal injury lawyer, I have represented clients who were involved in car accidents and plead guilty to criminal or Highway Traffic Act charges, not because they were guilty, but because they didn't understand the effect the conviction would have on their civil case later on. They figured that it was just easier or cheaper to plead guilty and get the case over with. If these clients could have gone back in time and received proper legal advice on the impact of their decision, most would not have agreed to the plea. This is because the client's decision to plead guilty will likely affect their ability to sue for their injuries caused by the car accident and hurt their ability to get full compensation from their accident benefits carrier.

Transcripts (written documents that record what is said during a court hearing) from a criminal or Highway Traffic Act trial can be introduced in a civil injury trial. What has been previously said at a criminal trial may be looked at very carefully during the civil injury lawsuit process. This applies both to persons who are charged and to persons who are called to trial as witnesses against the driver who was charged.

For all of these reasons, if you have been injured in an accident, it's important to obtain early and effective advice from an experienced accident and injury lawyer before resolving your related criminal or Highway Traffic Act case.

I provide free, no obligation, consultations and do not pay unless you win fee structures. Please feel free to call me at 416-710-3268 in Toronto, or 905-409-2438 in Durham (Oshawa/Whitby/Ajax). You can also reach me through my website at www.personalinjurylawlawyer.ca.

Ending house arrest for various criminal and drug offences

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Conditional sentencing, introduced in Canada in September 1996, allows for sentences of imprisonment to be served in the community, rather than in a correctional facility. Conditional sentences normally include a period of house arrest but may also include graduated restrictions including curfew and residence requirements, in order to allow those bound by a conditional sentence to work or attend school where appropriate.

One of the primary goals of conditional sentencing was to reduce the reliance upon incarceration by providing an alternative sentencing mechanism to the courts. 

The provisions governing conditional sentences are set out in sections 742 to 742.7 of the Criminal Code.  These sections set out five criteria that must be met before a conditional sentence can be considered by the sentencing judge:

  1. The offence for which the person has been convicted must not be a serious personal injury offence (as defined in section 752 of the Criminal Code); a terrorism offence; or a criminal organization offence.
  2. The offence for which the person has been convicted must not be punishable by a minimum term of imprisonment;
  3. The sentencing judge must have determined that the offence should be subject to a term of imprisonment of less than two years;
  4. The sentencing judge must be satisfied that serving the sentence in the community would not endanger the safety of the community;
  5. The sentencing judge must be satisfied that the conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in sections 718 to 718.2 of the Criminal Code.

 

Insofar as the fifth criterion is concerned, among the objectives of sentencing are:

  • The denunciation of unlawful conduct;
  • The deterrence of the offender and others from committing offences;
  • The separation of the offender from the community when necessary;
  • The rehabilitation of the offender;
  • The provision of reparation to victims or the community; and
  • The promotion of a sense of responsibility in the offender.

This week, additional portions of the Safe Streets and Communities Act came into force aimed at restricting the use of conditional sentences for specific types of criminal offences.

The list of offences for which conditional sentences will no longer be available after November 20th, 2012 is as follows: 

Offences for which the law prescribes a maximum sentence of 14 years or life imprisonment, including: manslaughter, aggravated assault, arson and fraud over $5,000.

Offences prosecuted by indictment and for which the law prescribes a maximum sentence of imprisonment of 10 years that:

  • result in bodily harm;
  • involve the import/export, trafficking and production of drugs; or
  • involve the use of weapons; and, 

The following offences when prosecuted by indictment:

  • prison breach
  • criminal harassment
  • sexual assault
  • kidnapping
  • trafficking in persons
  • abduction of persons under 14 (i.e., by a stranger)
  • theft over $5,000
  • motor vehicle theft
  • breaking and entering a place other than a dwelling-house
  • being unlawfully in a dwelling-house
  • arson for fraudulent purpose.

One concern held by those within the justice system is that the elimination of conditional sentences will lead to an increase in plea bargaining, as those charged with crimes attempt to circumvent a finding of guilt for offences where a conditional sentence is unavailable.

Other concerns include increased racial disparities in inmate populations, an increase in costs to the justice system as a whole as incentives to plead guilty are removed and an increased number of charges going to trial which may cause serious matters to be dismissed due to delay. Moreover, the changes simply transfer discretion from the judiciary to the police and/or Crown attorneys.

Conditional sentencing were originally enacted both to reduce reliance on incarceration as a sanction and to increase the principles of restorative justice in sentencing. They were also premised on the notion that most rehabilitation programs can be more effectively implemented when the offender is in the community rather than in custody and that prison is no more effective a deterrent than more severe intermediate punishments, such as enhanced probation or home confinement.

The recent amendments to the Criminal Code make it clear that our insatiable appetite to be seen as being “tough” on crime outweigh these laudable ideals.

Perhaps the day will come when being smart instead of tough on crime will be the driving force behind our criminal justice policy.

Self Defence: a person attacked in the home need not retreat

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Earlier this week, the Ontario Court of Appeal released their ruling in R. v. Docherty, 2012 ONCA 784. The central issue in Docherty was whether the trial judge improperly instructed the jury that a person under attack has a duty to retreat from their home in order to assert a legitimate claim of self-defence.

Kenneth Docherty killed Tyson Weber by stabbing him seven times in the neck during an altercation inside the garage attached to Docherty’s home.

Webber and an associate were loan sharks and Docherty owed them a significant amount of money. In their attempts to collect the outstanding debts, the men would threaten Docherty telling him that they would break his legs or kill him if he didn’t pay them.

On the day of the stabbing, Webber came to Docherty’s home in a final attempt to collect they money owed to him and his associate. It was during this final interaction that Docherty stabbed and killed Webber.

During the trial, the Crown played a statement Docherty made to the police within hours of the killing in which he admitted intentionally killing Weber but asserted that he had acted in self-defence and that he feared his life was in danger.

At the close of Docherty’s trial, both the Crown Attorney and the Judge told the jury that Docherty’s failure to retreat from his own home was a factor they could consider in determining whether or not he acted in self-defence.

The question for the Ontario Court of Appeal to decide was whether there exists a duty to retreat from one’s own home in the face of an attack?

In a unanimous ruling which overturned the conviction for manslaughter, the Court of Appeal concluded that no such duty to retreat from one’s home exists at law. Citing some of the Court’s earlier decisions, they affirmed that while self-defence can typically be accepted only as defence of last resort and is not available where other reasonable options are available, different considerations apply where a person is attacked within his or her own home.

In that situation, the ancient common law castle doctrine gives rise to the principle that a person has the right to defend him or herself in his or her own home without the duty to retreat from the home in the face of an attack.

The castle doctrine rests on the idea that the home provides protection for a person, his family and his possessions and that mandating a duty to retreat would force people to leave the security of their home, leaving their family members exposed to danger and their belongings vulnerable to theft. The castle doctrine also involves the idea that one’s home is the last refuge, the last line of self-defence.

The Court did suggest that it will still be open to the judge or jury to consider what other steps were taken by the person under attack within the home to avoid confrontation but that retreating from the house is not required to assert a valid self-defence claim.

To learn more about self-defence, read: Changes to the Citizen’s Power of Arrest, Self-Defence and Defence Of Property Laws in Canada

Corporal Punishment in Canada – to spank or not to spank?

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This article attempts to clarify to what extent parents or teachers can physically discipline children under their care.

Section 43 of the Criminal Code of Canada, enacted in 1892, provides parents, teachers and caregivers — including babysitters and foster parents — a defence to an assault allegation when they use corporal punishment as "reasonable force" to discipline children.

Section 43 contemplates four elements which must be present if the disciplining is to be justified:

(a) a certain relation between the discipliner and the child;

(b) the force used must be used for the purpose of correction;

(c) the child must be under the care of the discipliner when the force is used; and

(d) the force must not “exceed what is reasonable under the circumstances”

The Supreme Court of Canada upheld the century-old law in 2004 when it was asked to rule on whether spanking constitutes "reasonable force" for disciplining children, or whether it is a form of assault. Click here to read the full judgment of that ruling.

Below is a summary of the limits placed on parents and teachers utilizing corporal punishment as a form of corrective discipline towards a child:

Are all types of corrective force protected by section 43?

Section 43 applies only to minor corrective force of a transitory and trifling nature. Should the force applied cause visible injuries such as cuts or bruising, the discipline would fall outside of what is considered permissible under the section.

Who is considered a “child” under the section?

Section 43 does not apply to the corporal punishment of children under the age of two or to teenagers. Applying corporal punishment to children outside the appropriate age range will be considered an assault under Canadian criminal law.

Can the form of corporal punishment utilize non-traditional methods?

Section 43 does not apply to degrading, inhumane, or harmful conduct. Any form of punishment that meets this definition will not be protected by the legislation.

Can corporal punishment be implemented using objects such as a belt?

Discipline by using objects such as belts, canes, or slippers is not acceptable. Only smacks using an open hand will meet the definition of corporal punishment permitted by section 43. Punches or kicks are also not appropriate forms of discipline. Additionally, any type of intentional force applied above the shoulders (including open-handed slaps) is also considered unreasonable.

Can a teacher administer the same type of corporal punishment a parent can?

Teachers may not discipline children by using corporal punishment but they may reasonably apply force to remove a child from the classroom or to secure compliance.

What if the parent hits the child out of frustration or anger? Can that fit under the protection of section 43?

As the conduct must be corrective, the section does not apply to a parent or caregiver's conduct which emerges from frustration, loss of temper or abusive personality. Such triggers will fall outside of the protections of section 43 and be deemed an assault in law.

While some limited forms of corporal punishment are still available to parents and teachers, the circumstances under which they can be applied as a means of corrective discipline are significantly limited. Conduct that goes beyond the boundaries set out by the Supreme Court of Canada will likely be vigorously prosecuted.

New Mandatory Minimum Sentences for Serious Drug Offences in Canada

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Beginning today, our streets have apparently become, “a little safer”, according to our Federal Government.

The Safe Streets & Communities Act, which came into force today, includes provisions that would establish mandatory minimum penalties for serious drug offences when they are carried out for organized crime purposes, or if they involve targeting youth, in addition to a variety of other situations that seemingly have nothing to do with either organized crime or protecting youth.

Serious drug offences include production; trafficking; possession for the purpose of trafficking; importing and exporting; and possession for the purpose of exporting drugs listed in Schedule I, such as heroin, cocaine and methamphetamine, and in Schedule II, such as marijuana.

Generally, mandatory minimum penalties for drug offences apply where there exists an aggravating factor including any of the following circumstances:

  • for the benefit of organized crime;
  • involving use or threat of violence;
  • involving use or threat of use of weapons;
  • by someone who has been previously convicted (in the past 10 years) of a serious drug offence;
  • in a prison;
  • by abusing a position of authority or access to restricted areas;
  • in or near a school, in or near an area normally frequented by youth or in the presence of youth;
  • through involving a youth in the commission of the offence; and
  • in relation to a youth (e.g. selling to a youth).

It is important to note that some drug offences such as producing or importing a schedule 1 substance will trigger mandatory minimum penalties regardless of whether or not an aggravating factor is present. Producing more than 5 plants of marijuana will also trigger the minimum sentences even in the absence of aggravating factors.

Follow this link to read more about how mandatory minimum sentences will adversely affect Canadians charged with drug crimes.

Listed below are two charts which detail how the new legislation will be applied.

APPENDIX A

APPENDIX B

¹ Aggravating Factors APPENDIX A

The aggravating factors include offences committed:

  • for the benefit of organized crime;
  • involving use or threat of violence;
  • involved use or threat of use of weapons;
  • by someone who was previously convicted of a designated drug offence or had served a term of imprisonment for a designated substance offence in the previous 10 years; and,
  • through the abuse of authority or position or by abusing access to restricted area to commit the offence of importation/exportation and possession to export.

² Aggravating Factors APPENDIX B

The aggravating factors include offences committed:

  • in a prison;
  • in or near a school, in or near an area normally frequented by youth or in the presence of youth;
  • in concert with a youth; and
  • in relation to a youth (e.g. selling to a youth).

³ Health and Safety Factors

  • the accused used real property that belongs to a third-party to commit the offence;
  • the production constituted a potential security, health or safety hazard to children who were in the location where the offence was committed or in the immediate area;
  • the production constituted a potential public safety hazard in a residential area; and
  • the accused placed or set a trap.

Supreme Court of Canada clarifies “care and control” for drinking and driving offences

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On October 26th, 2012, the Supreme Court of Canada released their ruling in R. v. Boudreault 2012 SCC 56, clarifying the elements of proof required to show that a person is in “care and control” of a motor vehicle for the purpose of establishing that they were driving while impaired.

Factual Background

On a cold February morning, Mr. Boudreault was found sleeping in his parked vehicle by police officers and was charged with, among other things, impaired operation of a motor vehicle. He was seated in the driver’s seat with the engine running.

Prior to his arrest, Mr. Boudreault had consumed a large quantity of alcohol at a local bar the night before. While at the bar, he met a woman and spent the remainder of the evening at her apartment. The following morning, Boudreault, still too drunk to drive, asked the woman to call him a cab, which she did not once but twice. Eventually forced to leave her apartment, Mr. Boudreault decided to wait inside his vehicle for the cab to arrive. He turned on the car, turned on the heat and fell asleep awaiting the cab’s arrival.

Legal Issue

There was no question that Mr. Boudreault was still impaired by alcohol at the time the police arrived. The question for the court to resolve was whether or not he was in “care and control” of his motor vehicle, such that he should be found guilty of impaired operation of a motor vehicle pursuant to s. 253(1) of the Criminal Code.

In R v. Boudreault, The Supreme Court clearly set out the elements of care and control. They include:

(1) an intentional course of conduct associated with a motor vehicle;

(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

(3) in circumstances that create a realistic risk of danger to persons or property.

R v. Boudreault attempts to define what creates a realistic risk of danger as opposed to a theoretical or speculative risk.

The prosecutor need not prove that an accused person intended to drive the vehicle in order to make out the offence of care and control. The Supreme Court recognized that an intoxicated person may accidently, or unintentionally put a vehicle in motion, thus creating a realistic risk of danger to others absent a present intention to set the vehicle in motion.

In his majority judgment, Justice Fish recognizes a realistic risk of danger may arise in at least three ways absent a present intention to drive:

(1) an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so;

(2) an inebriated person behind the wheel may unintentionally set the vehicle in motion; and

(3) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

Therefore, while not automatic, Justice Fish reminds us that, “anyone found inebriated and behind the wheel with a present ability to drive will — and should— almost invariably be convicted”.

Rebutting a “Realistic Risk of Danger”

For someone found behind the wheel with a present ability to drive, the accused will need to adduce credible and reliable evidence to prove that no realistic risk of danger existed in the particular circumstances of the case in order to escape conviction.

For example, it may be argued that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger.

Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction.

In Mr. Boudreault’s case, he was able to offer credible evidence that he was simply escaping a cold winter night in a warm vehicle while waiting for a cab to pick him up. It was the existence of this “alternate plan” to get home that led to his acquittal, as he had satisfied the judge that there existed no “realistic risk” that his vehicle would be put in motion.

The impact of an “alternate plan” of this sort on the Court’s assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. In every case, this will be a fact specific inquiry.

It bears repeating that most people found in the driver’s seat of a motor vehicle while drunk will face the likelihood of conviction on the basis that they were in care and control of their motor vehicle while impaired. To avoid conviction, the accused bears the onus of leading credible evidence (such as an alternate plan to get home) capable of rebutting the inference that the vehicle would be put in motion.

Follow these links to learn more about impaired driving, over 80 or refusing a breath sample charges including the penalties for those convicted of DUI related offences.

You can also watch Daniel Brown's interview with CTV News on the Boudreault Case.

Acting as a Surety for a Criminal Bail Hearing

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A surety is someone who agrees to take responsibility for a person accused of a crime while out on bail. Being a surety is a serious commitment. Before you accept this responsibility, here are a few things you should consider:

  • Think about getting legal advice to make sure you understand what this commitment means.
  • Do not agree to be a surety if you are not sure that you can supervise the accused person in the community.
  • If the accused person fails to obey the terms and/or conditions of the court order, you could lose the money you have pledged.
  • Your responsibility as a surety continues until the case is completely over. In some cases, this may take many months or even years.
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Obtaining Bail Pending Appeal in Criminal Cases

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One of the most important beginning steps in a criminal appeal, where the client has been given a jail sentence, is to seek bail pending appeal. This article seeks to proivide information about the bail process for criminal appeals in Toronto, Ontario. Please follow the links for further information about the criminal appeal process or appeals initiated by the crown attorney. Those requiring assistance with an appeal related issue should immedialty consult with a criminal appeal lawyer for advice.

Frequently asked questions about bail pending appeal in criminal cases:

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Increased Sentences for Sex Crimes Against Children

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In R v. D.M., a ruling released earlier today, the Ontario Court of Appeal allowed the Crown's appeal to increase the sentence from three years to seven for an offender convicted of repeatedly sexually assaulting his teenaged niece more than 100 times over a three-year period while holding a position of trust over her.

This ruling follows on the heels of R. v. P.M., another appeal case where a sentence of six years for a similar crime was upheld by the Court of Appeal. In both cases, the Court has signalled that sexual crimes against children will warrant very high penitentiary terms.

In her ruling today, Justice Feldman proposed a clear range of sentence for this type of criminal behaviour. She writes, “to conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.”

What is made explicitly clear in both this and the P.M. ruling is that denunciation and general deterrence will be the primary considerations for sentencing those who perpetrate sexual crimes against children while holding a position of trust over them.

Amendments to the Criminal Code will also come into effect later this month increasing the minimum sentences for a number of sexual crimes against children and young persons pursuant to Bill C-54, Protecting Children From Sexual Predators Act.

The Family Law Consequences of a Criminal Domestic Violence Conviction

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Sadly, domestic disputes are quite common in our society.  Whether the accusations of domestic violence are true or not, the consequences of such allegations can wreak havoc on a family’s dynamics for years to come.

Daniel Brown works closely with a group of trusted family law lawyers to ensure that his clients interests are protected both in the criminal courts as well as the family courts.

In the article below, Toronto family law lawyer, Andrew Feldstein, provides insight into how a criminal charge or conviction for a domestic violence related crime can affect a person's rights in family court:

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Explaining Peace Bonds in Criminal Cases

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The following article explains the law surrounding peace bonds in Canadian criminal cases.

Frequently asked questions about peace bonds:

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Changes to the Citizen’s Power of Arrest, Self-Defence and Defence Of Property Laws in Canada

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web-policetapeOn June 28th, 2012, Bill C-26 (also known as) the Citizen’s Arrest and Self-defence Act, received Royal Assent and came into force on March 11th, 2013. 

The bill has expanded on the citizen’s arrest powers and reformed the law with respect to the self-defence and defence of property provisions in the Criminal Code of Canada.

Citizen’s Arrest:

Looking first at the changes to the citizen's arrest power, Bill C-26 has amended section 494(2) of the Code by authorizing a private citizen to make an arrest within a reasonable period of time after he or she finds someone committing a criminal offence that occurred on or in relation to their property.

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Sealing Canadian Youth Court Criminal Records

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It is a common misconception that a Canadian criminal record acquired while a person is under the age of 18 years old will be sealed as soon as the youth turns 18.  In fact, a youth court criminal record may continue to exist well beyond the age of 18 years and on occasion can remain open and accessible to the public indefinitely. The following article attempts to outline the circumstances surrounding when a youth record becomes permanently sealed. For more information on youth court cases, please read my article on "Young Offender Cases"

Frequently asked questions about sealing youth records:


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Redefining the Crime of Making Child Pornography

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This past week, the Ontario Superior Court of Justice departed from a long line of Ontario jurisprudence and held that copying extant child pornography, or downloading it and transmitting to disks, does not constitute the offence of making child pornography.

In R. v. Pellech, Justice Dunnet concluded that the offence of making child pornography required some kind of substantive change, which causes the initial child pornography to take on a new form and in essence to become a completely separate and new work.

In the Pellech case, the accused was said to have copied child pornography files from his computer and stored them on disks in an attempt to free up more space on his hard drive. The question for the court to decide was whether this transfer of files from one location to another amounted to an crime under s. 163.1(2) of the Criminal Code of Canada which makes it an offence to print, publishes or possesses for the purpose of publication any child pornography.

Justice Dunnet concluded that that the transfer of images and videos from hard drive to disk did not constitute making child pornography because “there was no evidence that by moving or copying the images to disks, the initial child pornography became a completely separate and new work.  Rather, this was a simple transfer from one medium to another in an effort to maintain a collection of child pornography images.”

Her ruling was a departure from other Ontario cases which previously concluded that downloading child pornography from the internet and transmitting it to disks constituted the offence of “making” within the meaning of s. 163.1(2) of the Criminal Code. See for example: R. v. Mohanto, [2002] O.J. No. 5840 (C.J.), R. v. B.W., [2002] O.J. No. 5727 (C.J.), R. v. Horvat, [2006] O.J. No. 1673 (S.C.) and R. v. Dittrich, [2008] O.J. No. 1617 (S.C.).

While her decision is not binding on other Superior Court judges in Ontario, one would expect her persuasive reasons to be followed in future court cases on the issue.

Trafficking Cocaine, Marijuana or Other Drugs

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Drug Trafficking Lawyer Toronto

It is a crime in Canada to traffic in a drug prohibited by the Controlled Drugs and Substances Act (CDSA). Drugs prohibited by the CDSA include cocaine, marijuana, ecstasy, heroin, ketamine, oxycodone, GHB and a slew of other narcotics.

If you or someone you know if facing an allegation of drug trafficking, it is important to consult with a lawyer right away to discuss possible defenses to the charge. For more information on drug trafficking, Daniel Brown can be contacted at (416) 297-7200. Otherwise, feel free to read the following frequently asked questions about drug trafficking charges in Canada. For information about other drug offences, read my article on drug possession charges or marijuana grow-operations.

Frequently asked questions about trafficking drugs:

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