by Admin | Oct 15, 2019 | Theft
For the past 6 months the police in cooperation with the L.C.B.0. has conducted an undercover operation in Vaughan using both plainclothes and uniform officers. The result is that 23 individuals have been charged theft after an investigation into 170 thefts from only 6 L.C.B.O. outlets in Vaughan. The total value of the thefts over a 6 month period is $60,000.00 – that is a lot of booze to slide out the door unpaid for. In addition, Toronto police are looking for a Toronto man who they believe has been stealing bottles of liquor from the L.C.B.O. since June 5, 2018, totaling a value in excess of $38,000.00.
With respect to the Vaughan operation, there were a total of 86 charges. In some instances, upon arrest, the individuals were found to have unlawful possession of weapons.
Theft is found in Part IX of the Criminal Code.
Offenses Against Rights of Property
The provisions that deal with the most common allegations of theft are found at sections 322 and 334.
- 322 provides the actual charge itself.
- 334 sets out the punishment.
In essence, there is a theft under $5000.00 charge and a theft over $5000.00 charge.
On a theft over $5000.00 the Crown can only proceed by indictment and if convicted the accused is liable to imprisonment for a term not exceeding 10 years.
On a charge of theft under $5000.00, the Crown can choose to proceed by way of indictment or by way of summary conviction. If the Crown chooses to proceed by Indictment the accused is liable to imprisonment for a term not exceeding 2 years. If the Crown proceeds by summary conviction, the accused is liable to imprisonment not exceeding 6 months.
Most cases of theft involve shoplifting. A first-time shoplifter is not likely to face a jail sentence at all. In many cases, the charges are diverted and withdrawn by the Crown after completion of the diversion program.
Theft from an employer is considered by the courts as very serious as it involves a breach of trust. In the same way, theft from a vulnerable person is also considered to be very serious by the Courts.
Obviously the more that is alleged to have been stolen no matter the context, the greater the potential punishment. Put simply, theft of a candy bar is not treated the same as theft of tractor-trailer full of goods.
Possession of property obtained by crime can be related to theft charges. Often times an accused is charged with both theft and possession of property obtained by crime. If the police do not have reasonable and probable grounds to prove the theft charge, the charge of possession of property obtained by crime (possession of stolen property) can be laid on its own.
Recent possession of a stolen property (the police find a person in possession of stolen property shortly after the theft has occurred) can be used as evidence to establish the actual theft itself.
In addition, with respect to the charge of possession of property obtained by crime the doctrine of willful blindness can apply. This simply means that if it is too good to be true, then it is too good to be true. For example, if you purchase $3000.00 watch for $100.00 the court is likely to find that you were willfully blind to the fact that the watch was stolen and you could be convicted.
Over our 38 years of criminal law defense work, we have defended most everything you can imagine when it comes to theft charges from millions of dollars of goods to the small shoplifting charges and everything in-between. When large amounts are at stake we have defended Mareva injunction applications where the alleged victim tries to tie up the assets of our client. In addition and closely related to theft charges we have defended innumerable fraud allegations; insurance frauds, bad cheques, mortgage fraud, credit card fraud, credit application fraud, medical benefit fraud, government assistance benefits fraud, to something as minor as a price tag switch or a dine and dash. Forgery, utter forged document and false pretense are also offenses that can arise in the context of a theft allegation.
Theft of 60,000.00 worth of booze from just 6 L.C.B.O outlets over a 6 month period is quite astonishing. However, shoplifting is a significant issue in all retail stores and it drives up the price of everything as the stores must accommodate for loss. Hopefully we will see a change in the future with respect to the amount of theft that is taking place. We all know that we dare not leave a phone, or a jacket unattended in fear of theft. Carjacking is prevalent (cars being entered at night). Just this week 2 private golf courses had lockers broken into with significant theft. Remember to lock the doors.
by Admin | Oct 9, 2019 | hamilton murder
14 year old murdered over a “bike” What is happening in this country?
Yesterday a 14-year-old boy was assaulted in Hamilton outside his school and stabbed to death allegedly over a bicycle. This case draws attention to so many possible legal issues. Problems with youth crime and appropriate punishment. This is an obvious case of bullying. What was the role of social media? Was social media bullying part of this tragedy as well? The allegations as reported indicate that the young boy was attacked by a number of others while on watchers recorded the incident on the cell phones. Some people are demanding that those that were recording the incident be charged with aiding and abetting because by the very nature of recording the incident they encouraged and incited the crime.
Again, we have the issue of the presence of weapons in our community.
If the accused had not succumbed to his wounds there are a number of charges in the criminal code that would have applied – aggravated assault, assault cause bodily harm, assault with a weapon, weapons dangerous.
However, the suspects, in this case, will most certainly face first-degree murder charges. Other possible charges are 2nd-degree murder and manslaughter. In fact, at the time of writing 2 of the 4 (so far) are charged with first-degree murder. The other two were arrested for first-degree murder but again as of the time of writing have yet to be formally charged.
The age of those charged will have a significant impact on the process. There are 4 individuals, 14, two 16-year-old persons and one 18 years old. Those under 18 are youths and start with a prosecution under the Youth Criminal Justice Act. The Crown can apply to have them tried as an adult and punished as an adult.
Adult Sentences
The Youth Criminal Justice Act does allow judges to impose an adult sentence on a youth who is found guilty of a serious offense and was 14 years of age or older when the crime was committed. In fact, prosecutors are obligated to consider seeking an adult sentence when a youth is found guilty of murder, attempted murder, manslaughter or aggravated sexual assault. However, the Act allows provinces to raise the age at which this obligation applies to 15 or 16.
When a judge decides to impose an adult sentence, the Criminal Code penalties for adult offenders are applied to the youth. This can include mandatory minimum penalties and sentences of up to life imprisonment. However, no portion of either an adult or youth sentence can be served in an adult prison while the youth is still under the age of 18.
The 18-year-old is an adult under the law and if convicted could face a life sentence of 25 years without parole.
This was clearly a senseless crime, committed by young individuals. However, the context is most disturbing, the bullying – 4 attacking 1, the use of a weapon, the fact that onlookers stood by and used their cell phones to video. The issues are simple and complex at the same time. What can we do to prevent this type of tragedy in the future? One child is gone, a family is devastated, 4 others are facing a life sentence in jail.
by Admin | Sep 30, 2019 | Uncategorized
Oh My, How Disturbing! Disorderly Conduct In Canada
Indecent Act, Cause Disturbance, Trespassing at night (prowl at night)
The story we’re going to tackle today is that of the Toronto Maples Leafs’ player, Auston Matthews. He was charged with disorderly conduct in Arizona. According to a CBC report, Matthews and his group were approached by a person who believed they were intoxicated. Apparently they attempted to open a locked car door to the vehicle in which the complainant was sitting. She was security personnel. She confronted the group and Matthews allegedly left the conversation, dropped his pants, and grabbed his butt cheeks. He still had his underwear on.
So how does match up to Canadian offenses? Well, offences about disorderly conduct are contained in Sections 173 -179 of the Criminal Code. The offences are important to look at because they’re quite varied and can carry stiff sentences. They may also be subject to mandatory minimums. The offences and their sentences are:
- Indecent Acts (s.173)
- If charged as an indictable offense: Maximum imprisonment: 2 years;
- If charged as a summary conviction: Maximum imprisonment up to 6 months.
- Nudity (s.174)
- This is a special offense. It only applies to people who are nude in a public place (or exposed to public view). Nude means ‘clad so as to offend against public decency or order’. Most importantly of all, a person cannot be prosecuted under this section without the consent of the Attorney General, by virtue of s.174(3).
- Causing disturbance, indecent exhibition, loitering, etc. (s.175)
- Punishable on summary conviction
- Obstructing or violence to or arrest of an officiating clergyman (s.176)
- Maximum imprisonment up to 2 years.
- Note, there is also s.176(2), which is disturbing religious worship or certain meetings. A person guilty of an s.176(2) offense is punishable on summary conviction
- Trespassing at night (s.177)
- Punishable on summary conviction
- Vagrancy (s.179)
- Punishable on summary conviction
The offense against clergymen contained in s.176 is a strange one. We’ve talked about it before in our article on Assault in Canada.
As we can see, there’s quite a number of disorderly conduct offenses in the Criminal Code. Not all of them are as severe as each other. The offence of committing and Indecent Act is obviously far more serious than the charge of causing a disturbance. In cases where an Indecent Act involves exposure to children under the age of 14, Sex Registry issues arise; SOIRA and the Ontario Sex Offender Registry Act (Christopher”s Law) apply.
Had Matthews been in Canada, he may have been charged with committing an indecent act. The Criminal Code section 173.(1) provides that everyone who willfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person is guilty of an offense. Alternatively, he could have been charged under s.175, for causing a disturbance. Causing a disturbance includes s.175(1)(b) “openly expos[ing] or exhibit[ing] an indecent exhibition in a public place”. It also includes s.175(1)(a), causing a disturbance by being drunk in a public place. If the allegations against him are true, they might satisfy this section as well.
We recently defended a client who was allegedly observed masturbating with genitals exposed on a park bench. When a group of teenagers approached he allegedly pulled up his shorts but continued to touch his genital area. When the teenagers had passed he allegedly pulled his shorts down again and exposed his genital area. He was charged with committing an Indecent Act. The ages of the teenagers, although not spelled out, appeared to be over 14 years. The criminal code allows the Crown to decide whether to proceed by indictment or by way of summary conviction. We actually negotiated a resolution to a charge under s. 175 (1) (b) “openly exhibits an indecent exhibition” and our client received a conditional discharge even though the Crown was seeking a conviction discharge on sentence. The s. 175(1)(b) charge is much less serious than a charge under s. 173 for an Indent Act. The charge under s. 175 only permits the Crown to proceed by way of summary conviction and there is no risk of registration on a Sex Registry.
To get a better grasp, it may be worth looking at a few locals who have been charged under these sections. For example, a Kingston councilor was charged with causing a disturbance, although charged were later dropped. He allegedly yelled, screamed, and slammed a bus’ front window. The Councillor allegedly stopped his bicycle in front of the bus to restrict its movement, and also placed a child on the pavement in front of the bus. The councilor alleged he protested peacefully because his child was denied service. Of note, the Councillor’s charges were only dropped due to an agreement reached between his defense lawyers and the Crown. This included an accountability program and a letter of apology. This result shows the value of experienced, knowledgeable legal advice, with expertise in the particular charges you’re facing.
Another good example is the case of a 30-year-old man from Cornwall who was recently charged with causing a disturbance, as well as domestic assault, and breach of undertaking. Sometimes, as this case shows, causing a disturbance can researtch papers be used as an offense in addition to something else like domestic assault. We’ve talked before about domestic assault in our article HERE
Similarly, a 34-year old Edmonton woman was charged with causing a disturbance and uttering threats to cause death or bodily harm in Peterborough. You can find out more about the offense of uttering threats in our piece about assault and threats, which you can find HERE
An Edmonton woman received a suspended sentence for, among other things, causing a disturbance. She was caught shouting racial slurs at another man. We’ve talked a bit about racism in Canada and the laws that apply to it. You can find that article HERE
As we’ve seen, Canada has a lot of different offenses for disorderly conduct. Some have minimum sentences, and maximums of 10+ years in jail. Others require the attorney general’s consent to prosecute. Causing a disturbance can often be added on to other offenses or stand on its own.
In some cases, withdrawal of charges may be possible. But, it’s key to have knowledgeable and experienced counsel by your side to effectively negotiate a fair resolution with the Crown.
Austin Matthews could have faced possible Criminal Code charges in Canada. However, there is also a charge under the Liquor Licence Act that might also fit the facts [s. 31(4)] – unlawful possession or consumption of alcohol – basically being drunk in public. $65.00 fine. This is not a criminal charge and is a provincial offense like a speeding ticket.
Being aware of this alternative resolution to the criminal charge of cause disturbance is crucial in negotiations with the Crown regarding resolution.
by Admin | Sep 30, 2019 | domestic assault
We are writing today to layout and hopefully explain in a straight forward and easily understood manner the laws with respect to domestic assault and related domestic charges.
The following list is composed of the most common charges arising out of a domestic relationship.
- Domestic Assault (simple assault);
- Assault cause bodily harm;
- Assault with a weapon;
- Aggravated assault;
- Forcible confinement;
- Mischief;
- Threating bodily harm;
- Threatening death;
- Sexual assault.
There are other charges that can fall under the domestic violence but they will be discussed in a later article.
In almost all cases involving domestic issues whether an assault or as minor as mischief to property (as in throwing a cell phone) the person charged is placed on an order (either through a formal bail hearing or an undertaking provided at the police station) containing the following.
- No communication or contact with the complainant (sometimes with exceptions such as “through a mutually agreed 3rd party for the purpose of access to children” or pursuant to a Family Court Order.
- Not to attend within a certain radius of the family home, the place of employment, education or any place the complainant is known to be;
We are often asked – how do I get back home and how long will it take.
We have on numerous occasions arranged variations to the bail provisions prior to the case being completed to get our client’s home. In the normal course, the Crown does not want contact with the complainant due to possible influence on their witness (the complainant). It does not matter that the complainant wants you to come home. In fact this happens more often than not. In many cases, the complainant would like the charges dropped and for their partner to come home. However, put simply – this decision is for the Crown attorney – not the complainant. Once a charge is laid, only the Crown has the power to decide whether it should be withdrawn or not. The Crown will listen to the complainant, but will not necessarily follow the complainants wishes
To begin with lets review the charge of domestic assault (simple assault contrary to s. 266 of the Criminal Code.
Simple assault – a non-consensual touching by one person on another. We have recently been retained by an individual who gave his a wife a kiss in the midst of an argument – charged with domestic assault
Defences: self defence is the most common defence in these cases. Many times we deal with cases where the complainant in fact instigated the altercation andour client simply used reasonable force to defend himself/herself. Provocation is not a defence but in some circumstances can be a mitigating factor.
Resolution: If our client is not guilty , we either negotiate withdrawal of the charge (sometimes with a peace-bond which does not involve an admission of the facts to support the charge) or we go to trial. If our client has committed some wrongdoing we still will attempt to negotiate a peace-bond. If the Crown does not agree with a peace-bond resolution, we will then seek instructions fromour client as to whether he/she wishes to go to trial or would like us to try to negotiate an acceptable resolution (sometimes this involves aplea of guilt for a conditional discharge – no conviction is registered). In many cases, our
clients instruct us to go to trial to see what the Crown can prove. Remember an accused is innocent until proven guilty. We do not have toprove innocence. It is not unusual in these cases for the Crown to discover that they do not have a cooperative witness and the charges are ultimately dismissed.
The Charge of Mischief to private property
There are 2 charges of mischief to private property. The first is mischief under $5000.00 and the 2nd is mischief over $5000.00. We have defended both charges of mischief over and mischief under but in the context of domestic violence allegations, the most common is mischief under $5000.00. The typical case is where in frustration our client has thrown something to the floor – for example a cell phone; or has knocked something off a desk like a laptop. Other common mischief under $5000.00 cases involve damaged doors, windows and cars.
If there are no other aggravating circumstances, these cases often resolve by way of restitution and the taking of an anger management program (PAR). The PAR program is the program of choice in the Crown attorney’s office and the program that the Crown often requests as a pre-requisite to a withdrawal of the charge. It does require a Court order for admission.
The remaining charges listed above will be discussed in a follow up article. Sexual assault (often time historical sexual assault) allegations have become more prevalent when domestic relationships deteriorate. These cases require an entirely different perspective and approach because of the relationship between husband and spouse. We will delve into more detail next time.
by Admin | Sep 30, 2019 | Canada’s Criminal Code
Canada’s Criminal Code
The Liberal Party has just announced that they will spend 250 million dollars on gun control and crime!
A 17-year-old was killed in a mass shooting on Saturday, August 14th. 5 other people were seriously injured. The shooting took place in Mississauga. Four of the victims were children. The victims were a 13-year-old, a 16-year-old, two other 17-year-olds and a woman in her 50s. The victims came from different areas of the building and park in which the shootings took place. The police told CTV News’ Bryann Aguilar that it was too early to know whether the shooting was targeted or gang-related. Preliminary information points to multiple suspects armed with semi-automatics. The mass shooting took place on Darcel Avenue, in the area of Morning Star Drive and Goreway Drive.
You can rest assured that there will be a strong push to elevate police enforcement of violent gun crimes. We are predicting that, although many of the mandatory minimum sentences with respect to gun crimes have been held unconstitutional, the sentences will increase and the ability to get bail on gun charges will be difficult.
In this article we will take a look at Criminal Code to see what firearms offences there are. Afterwards, we’ll discuss two potentially relevant categories of offences and the sentences that go with them.
Firearms and weapons offences are in Part 3 of the Criminal Code. Part 3 is broken up into 11 headings. Each heading contains different sorts of offences and rules. Firearms offences are incredibly serious matters. Conviction of a firearms offence can lead to a person losing the right to own a firearm and depending on the circumstances can result in jail sentences. In fact many firearms offences also carry ‘mandatory minimums many of which as mentioned above have been held to be unconstitutional. Those provisions and the issue of mandatory minimum sentences will be discussed in a later article. If you’re charged with a firearms offence, it’s crucial to have a knowledgable, and experienced lawyer who can explain the effect of the different sections, and guide you through this complex and severe area of law. Although the law is already very strict as it relates to firearms, with the marked increase in gun violence the seriousness and enforcement of gun crime will become more intense.
Six of the Part 3 headings deal with offences. The remaining headings deal with other rules relating to firearm offences. These include, for example, “Prohibition Orders”, which requires the Court to ban people from owning firearms or other weapons in certain circumstances. The 6 different types of firearms offences in Canada are:
- Use Offences
- Possession Offences
- Trafficking Offences
- Assembling
- Export and Import Offences
- Offences Relating to Lost, Destroyed, or Defaced Weapons
We’ll talk about ‘use offences’ and ‘possession offences’, as well the sentences for each offence. We’ll discuss other offences in later articles, because this is such a large area of law. Crimes involving firearms are treated extremely seriously. They can lead up to life imprisonment. That’s not to say there is no flexibility in the law. Some offences are punishable by summary conviction. The easiest way to explain the difference to between an offence by way of summary conviction as to opposed to indictment is to compare to the American system where there are misdemeanors and felony offences. The summary (misdomeanor) offence are subject to lower sentences. Having an experienced, knowledgable lawyer, with expertise in the offence you’re dealing with is key to navigating the system. Having a lawyer will help you get a fair deal – even in an area as stern and as difficult as firearms offences. The law has some flexibility, but fully engaging it can require expert knowledge.
“Use offences” include using a firearm in the commission of an offence. This is on the high end of the serious firearm offences and can demand a long prison sentence. Use offences also include ‘careless use of a firearm’, which is a charge brought when a person uses, carries, handles, ships, transports, or stores a firearm or certain other things carelessly. Even this, seemingly minor, offence can carry a prison term of up to 2 years for a first offence, or up to 5 years for a second or subsequent offence. The last of the ‘use offences’ is ‘pointing a firearm’. Pointing a firearm can get you a maximum prison term of 5 years whether ammunition is involved or not.
As for ‘possession offences’, there are 11 different offences listed. The offences and their maximum sentences are:
- Possession of a weapon for a dangerous purpose, up to 10 years imprisonment
- Carrying a weapon while attending a public meeting, punishable on summary conviction
- Carrying a concealed weapon, up to 5 years imprisonment
- Unauthorized possession of a firearm, up to 5 years
- Possession of a firearm knowing its possession is unauthorized, up to 10 years imprisonment for a first offence (and mandatory minimums for second or later offences)
- Possession at an unauthorized place, up to 5 years imprisonment
- Unauthorized possession in a motor vehicle, up to 10 years imprisonment
- Possession of a prohibited or restricted firearm with ammunition, up to 10 years imprisonment, and subject to mandatory minimums
- Possession of a weapon obtained by the commission of an offence, punishable with up to 10 years in prison
- Breaking and entering to steal a firearm is punishable by up to life imprisonment.
We anticipate that the range of sentences will increase in the future as whatever government that gets elected will respond to the public’s demand for safety and a stop to gun violence.,
11. Robbery to steal a firearm which is also punishable by imprisonment for life
