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Driving and the use of Your Phone Archives

Driving and the use of Your Phone

In December of 2017, Ontario passed Bill 174 regulating the sale of recreational marijuana in the province. Under the Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act there are changes to the distracted driving laws that came into effect on January 1st, 2019. This will have an impact on all drivers, not just those driving under the influence of alcohol or cannabis.

Under the new amendment law enforcement is cracking down on distracted driving, and the consequences are severe. According to Ontario’s Ministry of Transportation Jeff Yurek, as of the first of this year, Ontario has the strictest penalties for repeated distracted driving convictions. These tough new laws and penalties are meant to increase road safety for everyone on our roadways.

Ontario Distracted Driving Laws

Under the new laws while you are driving, including when stopped in traffic or at a red light it is illegal to:

• Text or dial using a phone or other handheld device – unless during an emergency to call 911
• Use any handheld entertainment device (tablet, portable game, etc.)
• View screens unrelated to driving
• Program a GPS – except by voice commands

You can:

• Use hands-free devices with an earpiece, lapel button, or Bluetooth
• View GPS screens that are built in our mounted to the dashboard
• Dial 911

While not specifically included in Ontario’s distracted driving laws, drivers who engage in other actions that take their attention away from the road like eating, drinking, smoking, grooming, reading and/or reaching for objects can also be charged with careless or dangerous driving.

The Penalties

If you are caught driving and talking on your phone or device, texting, calling, or emailing, for your first offence, you will be fined up to $1,000, plus a three-day license suspension, and three demerit points.

More than one conviction sees that fine go up $2,000, a seven-day license suspension, and six demerit points. If you are caught more than twice, that fine goes up to $3,000, and includes a thirty day license suspension.

What to Do If You Have Been Charged or Convicted of Distracted Driving
If you have been criminally charged, the importance of getting advice from an experienced criminal defence lawyer immediately cannot be overstressed. The sooner you seek counsel, the better your chances of a favourable outcome.
If convicted, the impact on your life can be severe and lasting including a permanent record, hefty fines, jail time, and/or significantly increased insurance rates. It can impede your ability to travel, eliminate job opportunities, and cause problems in your relationships.

Neuberger Partners LLP are an experienced criminal defence law firm who can go over your options and advise you how to protect yourself if you have been charged, or convicted of a distracted driving offencee. Call our office or complete our contact form today. We have experience successfully defending our clients against a myriad of distracted driving charges and we can help you too!

How the Recent Changes to the Criminal Code May Affect Your Sexual Assault Trial

Joseph A. Neuberger

Neuberger & Partners LLP

www.nrlawyers.com

If you have been charged with sexual assault, it is of the utmost importance that you and your lawyer lay out a coherent defence theory and obtain all necessary evidence to marshal your defence.  This will often include details of the complainant’s sexual history as it relates to your defence and to issues that are relevant in the evidence of the complainant.  In order to prevent complainants from unnecessary humiliation at trial, there are very strict guidelines and procedures on what and how sexual history evidence can be used at trial.  In the past, in order to narrow the scope of this evidence, the Criminal Code dictated that an application was necessary under section 276.  However, with the introduction of recent reforms by the federal government, the definition of “sexual activity” has been expanded to include other evidence, including evidence that is in direct relation to the subject matter offence thus  requiring a motion that can result in further restrictions on what evidence may be relevant and used by your defence lawyer.

Previously, the section of the Criminal Code of Canada which dealt with vetting this type of evidence was  section 276, however, with the introduction of Bill C-51, many parts have been repealed and it is now replaced by section 278.

What was contained in section 276?

Section 276 came into force as a result of some defence lawyers bringing up complainants’ sexual history as a means to discredit their testimony.  The section was meant to combat the twin myths that:

  1. A complainant with prior sexual history was more likely to have consented; and
  2. The complainant is less believable.

Section 276 did not prevent a complainant’s sexual history from being admitted as evidence in a sexual assault trial but it did mean that such evidence had to meet very strict criteria and be vetted by a judge to see if it met that criteria before it could be admitted.  It had to be relevant to an issue at trial and not go to the twin myths.

Before a judge will admit such evidence into court, he or she will weigh it against a set of criteria including that it must be directly relevant to an issue or issues at trial; and that it will not unduly cause the court or jury to become prejudiced, sympathetic or hostile. The judge will also consider how the evidence might affect the complainant’s dignity and right of privacy as well as any other factors they deem relevant.

What changed in section 278?

Since the introduction of Bill C-51, it is still necessary for a defence lawyer to make an Application to the court before evidence involving a complainant’s sexual history may be brought forward as part of the defence case and cross-examination of the complainant.  The evidence still must meet the same criteria as that originally set out in the former Section 276.

What has changed however, is that the definition of sexual activity has been broadened to include all forms of communications, recordings and images including those that are about the subject matter of the offence.  This is the major expansion whereas before there was no restriction on communications, recordings or images on the exact subject matter of the charge of sexual assault.

How might these changes affect your trial?

Under the old Section 276, an Application hearing to submit evidence could be completed in as little as one day with the judge making a quick decision.

Bill C-51 granted the complainant standing in the proceeding and will also be represented by counsel. This thus includes the right to appear at the hearing and make their own submissions but also for the lawyer for the complainant to cross-examine the accused on his or her Affidavit in support of the motion.  This is a profound shift in disclosure by the defence and granting extensive participation for the complainant that can not only make the process much more complex but also more lengthy and costly to persons accused of sexual related offences.  These amendments have access to justice issues and can serve to bar certain accused from being able to afford to defend themselves.  In addition, it seems that the complainant may now also have a right to appeal a judge’s decision at trial and thus put the sexual assault trial on hold pending the outcome of the appeal.

A number of these new provisions are being challenged on the basis that they are unconstitutional.  There are a few recent decisions, but it will take some time before the Supreme Court of Canada will be in a position to rule on the constitutional validity of these new provisions.

If you have been charged with sexual assault, you must seek legal counsel as quickly as possible. At Neuberger and Partners, we stay apprised of all relevant legislation, and case law.  We are active in challenging new legislation when it impedes the right to a fair trial.  All criminal charges demand a rigorous review of the evidence and each client is entitled to the best defence possible.  When necessary, our criminal lawyers will an application to introduce any and all relevant evidence, including prior sexual history evidence, in order to properly and thoroughly defend out clients.

In order to avail yourself, you need a law firm that has the knowledge and expertise in sex assault cases and is able to draft persuasive applications in a precise manner to advance your defence.  If in need of assistance, contact Neuberger & Partners LLP for a consultat

An Attack on the Right to Make Full Answer and Defence in Sexual Assault Trials

By
Joseph A. Neuberge
Neuberger & Partners LLP
www.nrlawyers.com

Growing public and media attention on the way sexual assault trials are conducted has increased the scrutiny upon defence lawyers and how these trials are conducted, with a focus on the way a complainant experiences the trial process.

Since new legislation was passed in Canada, by Bill C-51 in December 2018, there are new rules governing evidence and the cross-examination of complainants in sexual assault trials. These changes mostly altered the way that evidence must be vetted prior to trial but haven’t changed whether or not relevant evidence is admissible.

It has long been agreed upon that the general sexual history of a complainant is rarely relevant to the specific allegations of a sexual assault charge. Defence to an allegation must focus only on evidence that connects to the subject matter of the charge. In other words, unless the accused can show how their proposed evidence of prior sexual history is directly relevant to the accusation, and an issue at trial, it will not be admissible.  This is appropriate and consistent with preventing the abuse of complainants when testifying. That has not changed.

Evidence of prior sexual history must be relevant and rationally connected to the issues in the trial other than the twin myths.  As long as the evidence an accused person intends to rely on connects to some part of the allegations against them, the evidence is generally admissible to ensure their ability to make full answer and defence. The concerning changes due to the new legislation are; the new ability for a complainant to participate in that decision regarding what evidence is relevant, and hence admissible which in effect creates tri-party litigation and a general move to establish that any prior sexual history evidence is never relevant or admissible.

The impact of a complainant having his or her own lawyer, with standing at the hearing with an ability to cross-examine the accused is a serious infringement on the rights of an accused person and will inevitably result in delays in the trial and substantial costs to the accused to not only fight the trial but now a protracted motion for the admission of usually relevant and necessary evidence.  A further impact is in relation to communications between the parties that are directly related to the subject matter of the allegation which previously has never been subject to defence disclosure let alone to have it vetted on a motion by a trial judge with the complainant having full participation.  This aspect of the new legislation is still unclear and needs to be tested in a proceeding, however, at this time, it appears the process requires the defence to disclose any and all communications on the motion, which essentially allows the complainant to have the defence prior to trial and prepare with the evidence with her or his own counsel. This is an unprecedented intrusion into the right to make full answer and defence.

In the criminal process, a defendant is presumed innocent until found guilty and cross-examination has been deemed the best “engine” to discover the truth. While being questioned about sexual interactions is uncomfortable, for both the complainant and the accused, it is a necessity in a trial for an alleged sexual assault.

While everyone involved in a court proceeding has the right to dignity and compassion, the accused’s right to full answer and defence is essential in order to prevent innocent people from being incarcerated. It is important that our legal system upholds the foundations of a fair trial no matter how uncomfortable that may be.

The fact that some evidence may undermine a complainant’s veracity does not make that evidence unjust nor should it be an onus no the defence to disclose the evidence prior to trial and vet it before a judge so long as it pertains to the actual allegations in contention. Despite the current popular belief, not all accusations of sexual assault are true and the risk of innocent people going to jail should not become a casualty of “war” in a social movement.  Many aspects of this new legislation is very damaging to an individual to be able to properly defend themselves and challenges to this new legislation will be necessary in order to protect against wrongful convictions.

Supreme Court of Canada Clarifies Use of Prior Sexual Activity and Re-defines Consent in Honest but Mistaken Belief in Consent Defences in Sexual Assault Cases

Joseph A. Neuberger, LL.B., LL.M., C.S.
Neuberger & Partners LLP
www.nrlawyers.com

In a recent precedent setting case out of Alberta, the Supreme Court of Canada
overturned Bradley Barton’s manslaughter acquittal and ordered a new trial due to the
Crown’s failure to be alert to the issue of the victim’s privacy regarding her sexual
history.



Mr. Barton was on trial for first degree murder in the death of an Indigenous woman and
sex worker, who was found dead in the bathroom of the accused hotel room. The
cause of death was determined to be an 11cm wound in the vaginal wall. The Crown
argued two theories for conviction on first degree murder and then alternatively unlawful
act manslaughter that would have occurred during the course of a sexual assault. The
accused testified and during testimony extensive reference was made to previous
sexual activity with the deceased. The evidence was not left to the jury with a limiting
instruction. The accused was acquitted by of first degree murder, and of the alternative
Crown theory on the charge of manslaughter however the acquittals were overturned on
appeal by the Crown to the Supreme Court. The accused was ordered back to trial but
only on the manslaughter allegation.



The accused Barton maintained at trial that the death was accidental and relied upon
honest but mistaken belief in consent. The evidence of prior sexual activity was used
by the defence throughout the trial and no warnings were given to the jury about how
they could or could not use such evidence. In addition, the Crown introduced the fact
that the deceased, Ms. Gladue, was a sex worker and her and the accused had struck
up a working relationship on the night before her death. There was no application by
the accused under ss. 276.1(1) and 276.1(2) of the Criminal Code to adduce evidence
of
the deceased’s prior sexual activity.



Although the accused was not charged specifically with a count of sexual assault prior
sexual history was a central issue at trial. As such, the Supreme Court dealt with the
issue of whether an application under section 276 is required even when it is the
prosecution and, not defence that introduces the issue of prior sexual history as part of
their case. The Supreme Court emphasized that regardless of whether there is a count
of sexual assault, prior sexual history, including statements about the particular
deceased being a sex worker, cannot be used by either side to argue what are called
the “twin myths”; that a person is more likely to have consented or less worthy of belief
because of previous sexual encounters.



The Supreme Court ruled that “this section is categorical in nature and applies
irrespective of which party led the evidence.” In the trial the prosecutor repeatedly
referred to Ms. Gladue as an Indigenous “prostitute” which, the defence argued, opened
the door for him to use that evidence in court. Regardless decision clarified that since
the defence was using prior sexual history, a section 276 application was a must.
However, the Court noted that the prosecutor should only make reference to prior
sexual history when “necessary” and the Court did not bar the Crown from making such
references without first making an application to do so. The Court noted that a delay in
the midst of a trial is disadvantageous to everyone. Thus the defence must be on guard
that when the Crown introduces such evidence, the defence cannot rely on such
evidence without an application.



As a complicating factor, the recent amendments to the former section 276, introduced
an additional layer of delay. Under the current regime a complainant is entitled to
individual counsel with standing to participate in the application process. While the logic
of the Supreme Court decision is sound, how to address this particular change in a
murder case and prevent undue delay in cases of sexual assault is yet to be resolved.
On another significant issue, the Barton decision included a clarification by the Supreme
Court of Canada on the issue of the defence of honest but mistaken belief in consent.
To make out this defence, traditionally the accused must adduce evidence that the
complainant actually communicated consent either by words or conduct. The actus
reus means that the complainant in her mind wanted the sexual touching to take place.
At this stage, the focus is placed on the complainant’s state of mind and the accused’s
perception of that state of mind is irrelevant. For the purposes of mens rea, and
specifically to make out the defence of honest mistaken belief in consent, consent
means that the complainant affirmatively communicated by words or conduct her
agreement to engage in sexual activity with the accused. The focus thus shifts at this
stage to the mental state of the accused, and the question becomes whether the
accused honestly believed the complainant effectively said “yes” through her words and
actions. The fallacious idea that a failure to say “no” indicates consent is one of the
forbidden lines of reasoning in sexual assault cases. At the same time, signs of consent
are not always verbal and continue to include actions that indicate receptivity. Thus to
help clarify the language in articulating this defence, the Supreme Court added
“communicated” to the judicial lexicon. The decision gave guidelines on a number of
issues regarding the duty of care expected from an accused who is claiming honest but
mistaken belief in consent. Justice Moldaver added the word “communicated” to
emphasize that the myth that consent is implied when there is no verbal protest to an
act is entirely wrong. The refinement is intended to focus all justice participants on the
crucial question of communication of consent to avoid inadvertently straying into
forbidden territory of implied consent. Thus, an accused must be able to explain how
and why that evidence informed his honest but mistaken belief that the complainant
communicated consent at the time it occurred.



The argument that an accused took reasonable steps to obtain consent was also
addressed in this decision. Guidance was provided on what was deemed an
“underdeveloped” area of law. The Supreme Court stated that “an accused’s attempt to
‘test the waters’ by recklessly or knowingly engaging in non-consensual sexual touching
cannot be considered a reasonable step.” While there are no specific words deemed to
be required before changing or advancing a sexual activity, it is important for people to
recognize that affirmative consent is now becoming the standard if a sexual partner
later claims they felt pressured into a sexual act.



Every trial must be adjudicated on the specific facts of the case and charges that
engage questions about the subjective thoughts of an alleged victim are difficult to
prove. One point is made clear by this decision - that with the growing complexities in
sexual related charges, there is a mounting challenge faced by any defendant to
establish consent, especially in a case of honest but mistaken belief in “communicated
consent”. A defence cannot be premised on equivocal or ambiguous conduct of the
complainant but rather affirmative words or conduct that in essence amount to actual
communicated consent.



Time will tell what other developments will come in sexual assault related cases and for
any accused facing such charges careful choice has to be made about which lawyer to
retain to effectively navigate the myriad of issues and need to develop compelling
evidence for a defence.

New (and Arguably Absurd) Drinking and Driving Offences

By Christopher K. Assié & Joseph Neuberger

Neuberger & Partners LLP

The new amendments to the Criminal Code have changed the drinking and driving landscape significantly. Two changes are attracting particular attention due to their impacts on protected Charter rights and a serious potential for wrongful convictions.

Arguably the most concerning amendment is the creation of a new offence – consuming too much alcohol or drugs after driving. Under s. 320.14(a) and (b), anyone with a blood alcohol concentration or blood drug concentration above the prescribed limits two hours after they have ceased driving is guilty of an offence. The amendments prescribe that a person is not guilty of an offence if they can show four things: 1) they consumed alcohol or drugs after they ceased driving; 2) they had no reasonable expectation that they would be required to provide a sample of their breath or blood; 3) that their alcohol consumption is consistent with the results of the breathalyzer; and 4) that at the time of driving their blood alcohol was below the legal limit.

The wording of the provision is unclear as to the effect a combination of drinking pre and post driving would have. If a person has to have “consumed alcohol after ceasing to operate the conveyance” to be innocent, is it permissible for a driver to have a glass of wine at dinner, drive while under the legal limit to another location and continue drinking? Or does all the drinking have to occur after the driver has ceased driving?

The absurdity of the provision is that an officer could enter any pub, chat up a patron whom he has reasonable grounds to believe is impaired and ask them if they drove within the last two hours. If the patron admits to driving, then the officer can force them to provide a breath sample into an approved screening device and if they fail the test, charge them with over 80.

Assuming that all of the drinking occurred post-driving, the prospect of wrongful convictions grows exponentially when the evidentiary hurdles are taken into account. To be acquitted, the accused has to adduce evidence of his or her drinking pattern (how much they had and when they consumed it). Theoretically, it is possible that this evidence come from a third party – a witness for example who testifies that he or she had been with the accused for the 5 hours prior to being arrested, who testifies that the accused was under constant surveillance and had no other alcohol then the alcohol the witness saw the accused drink. The witness would have to be in a position to say the amounts consumed and when. This scenario is highly unlikely. In reality, the accused will be forced to testify – thus essentially undermining his or her Charter right to silence.

The ability of a toxicologist to provide an accurate opinion regarding the theoretical blood alcohol concentration at any point in time of a person based on their consumption depends on an accurate account of how much and when a person drank. The reality is that many people are not in a position to say within one or two ounces, how much alcohol they’ve consumed. Unless someone is drinking consistently formulated drinks – such as bottles of beer – they may have difficulty assessing accurately how much they had.  There is great variation in ‘guestimates’ of how many ounces of alcohol are in mixed drinks or how many ounces are in different sizes of wine glasses or pints. The new amendments require that the consumption pattern be consistent with the breathalyzer results. What is ‘consistent’? Is there an acceptable range to qualify as ‘consistent’? If guilt or innocence is dependent upon an accused’s ability to accurately recall the amount consumed, many may find themselves in an unenviable position of not being able to prove their innocence.

Furthermore, the only way to adduce this evidence is with the testimony of a toxicologist. Toxicologists add significantly to the cost of defending an over 80 case. Legal Aid Ontario already does not provide assistance to persons charged with their first over 80 case as there is little prospect that they may receive a custodial sentence. Already having difficulty with lawyer fees, the cost of hiring a toxicologist further undermines access to justice.

The amendment attracting the most attention is that an officer no longer needs a “reasonable suspicion” that a driver has alcohol in their system before requiring the driver to provide a breath sample into an approved screening device (s. 320.27(2)). The only prerequisites for the warrantless and suspicionless search is that the driver be operating the vehicle (or have care and control) and that the officer has in his or her possession the approved screening device. No indicia of consumption of alcohol is required.

Prior to the amendments, an officer could require a driver to provide a sample of his or her breath into an approved screening device and/or perform a physical coordination test (s. 254(2)). The officer needed to have a “reasonable suspicion” that the driver had alcohol or a drug in their body and had operated a vehicle within the previous three hours. The physical coordination test could lead to the formation of reasonable and probable grounds to suspect that the driver was impaired by a drug and would justify bringing the driver to a police station and requiring that they provide a sample of a bodily substance for analysis.

The new amendments maintain the same minimum standard of “reasonable suspicion” that a person has alcohol or a drug in their body and had operated a vehicle within the previous 3 hours. It adds that in addition to being required to provide a sample of breath into an approved screening device and conducting a physical coordination test, the law now requires that a driver submit a “bodily sample” into an approved screening device designed for drugs (s. 320.27(c)). These approved screening devices are still being tested and have not yet been vigorously challenged in court as of yet.

This change is highly controversial given that in Husky and Thomsen the S.C.C. held that the prior statutory regime already constituted a violation of ss. 9 (the right to be free from arbitrary detention or arrest) and 10(b) (the right to retain and instruct counsel without delay). The S.C.C. ultimately upheld the constitutionality of the statutory regime under s. 1 of the Charter, as it ruled the provisions constituted reasonable limits on rights in a free and democratic society. Given that the constitutionality of the previous statutory provisions barely passed constitutional muster, it is reasonable to suspect that this new provision will not pass constitutional scrutiny.

Curiously enough, though the new provisions require a driver to provide a sample of their breath into an approved screening device without the officer having a reasonable suspicion, there are no similar provisions requiring drivers to provide samples of bodily substances into approved screening devices for drugs without the officer having a reasonable suspicion. If the provision of suspicionless roadside breath demands are upheld by the Courts, it is hard to imagine that the government will not follow suit by introducing a similar provision for the suspicionless roadside bodily substance demands to combat driving high.

What You Need to Know About Impaired Driving Charges in 2019

Recent changes to the impaired driving laws by the Federal Government developed to combat drinking and driving offences and the impact of legalizing cannabis, the laws surrounding impaired driving in Canada changed on Tuesday, December 18, 2018.

These changes come as part of Bill C-46 which was enacted to ensure deterrence from impaired driving by making the penalties some of the most severe in the world.

What Hasn't Changed

The amount of alcohol allowed in your system, or the blood-alcohol concentration (BAC) has not changed for drivers.

For fully licensed “G” class drivers over the age of 21, that is 80 milligrams (mg) or more of alcohol per 100 milliliters (ml) of blood.

For new drivers, or those under the age of 21 their BAC must remain at 0 mg.

These are federal laws. The provinces are also allowed to impose stiff non-criminal penalties for BAC’s below the federal legal limit at their discretion. Penalties can include:

  • Short term suspensions
  • Impounding of vehicles
  • Long-term insurance ramifications
  • What Has Changed

    Charges for being Over 80

    For Over 80 offences, it is now possible to be charged with being Over 80 up to two (2) hours after having ceased driving.  This absurd change in the law can result in persons who did not drink prior ceasing operation of their cars can still be charged and even convicted unless an accused person is able to rebut the Crown’s case under very stringent circumstances.

    Cannabis Laws

    The consumption of cannabis is addressed, specifically the amount of THC (the psychoactive compound in cannabis) allowed in your system. There are two levels of impairment:

  • 2 nanograms (ng) - 5 ng per 1 ml of blood
  • 5 ng or more per 1 ml of blood.
  • If cannabis and alcohol are consumed together the prohibited levels are 2.5 ng or more of THC per 1 ml of blood and 50 mg or more of alcohol per 100 ml of blood.

    Enforcement

    These changes also affect what law enforcement can require of a driver during a routine stop. Previously an officer could not request a breathalyzer unless there was a reasonable suspicion of impairment.

    Under the new legislation, an officer can request a breathalyzer from anybody who is lawfully stopped, regardless of whether or not there is reasonable suspicion that the driver is impaired.

    Failure to comply with the request comes with its own set of penalties, which are as severe as if the test had been taken and failed.

    Penalties

    The penalties for impaired drivers have become much more severe.

    For a first offence it used to be a $1000 fine. The mandatory minimum fines are now as follows:

  • BAC of 80-119 mg is $1,000
  • BAC of 120-159 mg is $1,500
  • BAC of 160 mg or more is $2,500
  • Refusal to be tested is $2,000
  • After a first offence the mandatory minimums involve jail time, this remains unchanged:

  • The second offence is 30 days imprisonment
  • The third or more offence is 120 days imprisonment
  • Maximum Penalties

    Impaired driving not resulting in bodily harm or death:

  • Summary conviction: Imprisonment for two years less a day
  • Indictable conviction: Imprisonment up to ten years.
  • Impaired driving causing bodily harm:

  • Summary conviction for less severe injuries: Imprisonment two years less a day
  • Indictable conviction: Imprisonment up to fourteen years
  • Impaired driving causing death:

  •  Life imprisonment
  • Defending an Impaired Driving Charge

    With the changes to the law of late, the intention is to make it more difficult to defend impaired drivers.

    University Tribunals are no Substitute for Courts

    The growing concern to address sexual assault allegations on university campuses has resulted in a new vigilance to investigate and litigate allegations against students and faculty with little to no protection of the accused person’s fundamental rights.  Increasingly students and faculty members accused of sexual misconduct, even absent criminal charges, are being forced to participate in pseudo-trials designed by universities. The accusations being made through these tribunals are often very serious in nature and the universities cannot guarantee that the complainant will not proceed with criminal charges.

    ost people who are accused think that they can engage in a rational conversation with investigators or tribunals and put an end to a very serious problem. They trust the university to conduct a fair hearing.

    In reality, the universities are following demands from pressure groups and adopting investigation policies that deny the accused the right to even know the accusation before submitting their defence evidence. People are told that they can’t bring a lawyer with them but that they must answer all questions, no matter how unfair, or risk being expelled or employment terminated.

    Though retaining a lawyer may seem to be an escalation of what is already a serious situation, hindsight will not erase the damage done by a biased and skewed investigation process.

    The due process rights of an accused are not respected in university investigations and the consequences of engaging in these tribunals can be devastating.  For a student, the immediate concern over refusing to participate in an unfair process may seem overwhelming but that threat is a mere shadow to the devastation of an unjust outcome in a biased investigation.

    The pressure to engage in such a process can be intense but the best thing an accused person can do is to protect their rights. Unlike a criminal court, the university tribunals operate on a balance of probabilities and no meaningful defence can be mounted unless the accused person knows the full accusation in advance and has the benefit of legal counsel.

    People who have made the mistake of engaging in university investigations without proper legal advice have found themselves fired or expelled based on allegations they didn’t even know about going into the investigation in good faith.

    Unlike a proper court, universities do not have a process for objectively testing evidence and there will be no transcript to rely on for an appeal.

    Once completed, the information provided to the investigator and during the course of the hearing before the tribunal, can and often finds its way to police and later in the hands of prosecutors of sexual assault charges.

    The process of investigating and litigating sexual assault allegations at a university must meet natural justice principles and cannot simply operate on a basis of compelled cooperation under the threat of expulsion or termination. In addition, there must be a fair basis to provide an accused person with details of the allegations and allow the person legal counsel prior to deciding whether to cooperate with an investigation.  As the need to investigate these allegations has been met with much vigor by universities, so must universities seek to align their processes more like the criminal system in order afford fairness to any person accused.

    Know Your Rights: Get in Touch with an Experienced Criminal Defense Lawyer

    Being arrested, detained or charged with a crime can leave you feeling scared and vulnerable. It’s important to remember that in a situation like this, you still have rights. Under Section 10 of the Canadian Charter of Rights and Freedoms, everyone has the right on arrest or detention:

    1. To be informed promptly of the reasons therefor;
    2. To retain and instruct counsel without delay and to be informed of that right; and
    3. To have the validity of the detention determined by way of habeas corpus and to be released if
      the detention is not lawful.

     

    • It is always in your best interest to exercise your right to retain counsel. You may feel compelled to answer the police’s questions in order to appear cooperative, but it is not in your best interest to do so.

     

    • The police must stop questioning you when you assert your right to speak with a lawyer. If they continue to question you, you do not have to answer until you have been able to consult privately with your lawyer.

     

    • You have the right to “remain silent” or, “…Any person charged with an offence has the right to not to be compelled to be a witness in proceedings against that person in respect of the offence”.

     

    • It is a common myth that asking for a lawyer will make you look guilty. It doesn't. It makes you look like you are informed, and you take the rights as they are afforded to you by The Canadian Charter of Rights and Freedoms seriously. Section 11, d of the Charter protects your right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

     

    What will an experienced criminal lawyer do?

    • While in some cases this might be your first time dealing with an arrest, detention or a criminal charge, and even if it isn’t— a criminal lawyer has navigated this process many times before and will be much more experienced at dealing with the process.

     

    • They will instruct you on whether or not answering questions from the authorities will be helpful or harmful to you and your case, depending on your individual circumstances. In most situations, they will advise you that it is better to wait until all the facts are disclosed to you before speaking to the police.

     

    • They will explain to you what options you have and their possible outcomes allowing you to make informed decisions.

     

    • They will provide you with much needed information, support, and reassurance during what can be a very overwhelming and anxiety-provoking process.

     

    • Being charged with a crime doesn’t make you guilty of one. An experienced criminal defence lawyer will represent you to the best possible outcome.

    Don’t waste valuable time and if you need immediate assistance, contact Neuberger and Partners today.

    Bill C-51 and its Implications.

    What is Bill C-51?
     

    According to the Government of Canada’s website it is, “Legislation introduced by the Minister of Justice and Attorney General of Canada on June 6, 2017 [that] reflects the Government of Canada’s ongoing commitment to ensure that Canada’s criminal justice system protects Canadians, holds offenders to account, shows compassion to victims, and upholds the Canadian Charter of Rights and Freedoms.”

    Advocates for those falsely accused of sex crimes have a different interpretation. While the Bill is meant to “ensure that victims of sexual assault and gender-based violence are treated with the utmost compassion and respect”, it does so at the expense of the rights of the accused. Most notably with regard to the “rape shield” provisions.

    A “rape shield” law (sections 276 and 277 of the Canadian Criminal Code enacted in 1982 and expanded in the early ‘90s) is one that prohibits the defence counsel from introducing evidence or cross-examining rape complainants about their past sexual behavior. The idea behind this was to protect victims of sexual assault while still preserving the rights of the accused.

    Under the new terms of Bill C-51 the “rape shield” will be expanded to include communications of a sexual nature or communications for a sexual purpose between the defendant and the complainant either before or after the alleged assault.

    These changes have been dubbed the “Ghomeshi rules” as they come on the heels of the very public Jian Ghomeshi trial- in which several women came forward with claims of sexual assault against a well known radio personality. Ghomeshi was ultimately acquitted due to messages that the women had sent him prior to and after the alleged assaults took place.

     

    How Can This Lead to Wrongful Convictions?

    What the change means, essentially, is that the defendants will now have to apply through a pre-trial hearing to use these messages at trial. This can lead to wrongful convictions in two ways:

    1) By giving the complainant access to “unprecedented disclosure” well in advance of the trial.

    According to an article in AdvocateDaily.com, the bill will diminish access to justice by giving complainants an unfair advantage at trial. They will now have months to prepare testimony with their lawyer, with full knowledge of what evidence the defence will be using to cross-examine them. Frankly, this also gives them time to fabricate their story to align with the evidence.

     

    2) By placing an undue financial burden on the defendant.

    Trials are already costly and this additional hearing increases that burden. And, according to Joseph Neuberger, where sexual assault cases make up about 60% of his practice, “…this may prevent people from bringing these applications because they don’t have the funds. So it will raise very significant access to justice issues,”

    In light of the #metoo movement there has been a lot of pressure put on the government to seek convictions. This Bill is a feeble attempt to do that, and it goes against the defendants right to a fair trial. It cannot, and it will not be tolerated. As Neuberger promises at the close of the aforementioned article, “It is not well thought out and creates a barrier to justice. It will be fought all the way to the Supreme Court.”  You can bet without a doubt that Neuberger and Partners will be at the forefront of this fight.

    New (and arguably absurd) drinking and driving offences.

    By Joseph Neuberger and Christopher Assié

    Originally published by Lexus Nexis. (www.thelawyersdaily.ca)

     

     

     

    The new amendments to the Criminal Code have changed the drinking and driving landscape significantly. Two changes are attracting particular attention due to their impacts on protected Charter rights and a serious potential for wrongful convictions. Arguably the most concerning amendment is the creation of a new offence — consuming too much alcohol or drugs after driving.

    Under s. 320.14(a) and (b), anyone with a blood alcohol concentration or blood drug concentration above the prescribed limits two hours after they have ceased driving is guilty of an offence.

    The amendments prescribe that a person is not guilty of an offence if they can show four things: 1) they consumed alcohol or drugs after they ceased driving; 2) they had no reasonable expectation that they would be required to provide a sample of their breath or blood; 3) that their alcohol
    consumption is consistent with the results of the breathalyzer; and 4) that at the time of driving their blood alcohol was below the legal limit.

    The wording of the provision is unclear as to the effect a combination of drinking pre and post driving would have. If a person has to have “consumed alcohol after ceasing to operate the conveyance” to be innocent, is it permissible for a driver to have a glass of wine at dinner, drive while under the legal limit to another location and continue drinking? Or does all the drinking have to occur after the driver has ceased driving?

    The absurdity of the provision is that an officer could enter any pub, chat up a patron whom he has reasonable grounds to believe is impaired and ask them if they drove within the last two hours. If the patron admits to driving, then the officer can force them to provide a breath sample into an approved screening device and if they fail the test, charge them with over 80.

    Assuming that all of the drinking occurred post-driving, the prospect of wrongful convictions grows exponentially when the evidentiary hurdles are taken into account. To be acquitted, the accused has to adduce evidence of his or her drinking pattern (how much they had and when they consumed it).

    Theoretically, it is possible that this evidence come from a third party — a witness for example who testifies that he or she had been with the accused for the five hours prior to being arrested, who testifies that the accused was under constant surveillance and had no other alcohol than the alcohol the witness saw the accused drink.

    The witness would have to be in a position to say the amounts consumed and when.

    This scenario is highly unlikely. In reality, the accused will be forced to testify — thus essentially undermining his or her Charter right to silence.

    The ability of a toxicologist to provide an accurate opinion regarding the theoretical blood alcohol concentration at any point in time of a person based on their consumption depends on an accurate account of how much and when a person drank. The reality is that many people are not in a position to say within one or two ounces, how much alcohol they’ve consumed.

    Unless someone is drinking consistently formulated drinks — such as bottles of beer — they may
    have difficulty assessing accurately how much they had.

    There is great variation in “guesstimates” of how many ounces of alcohol are in mixed drinks or how
    many ounces are in different sizes of wine glasses or pints.

    The new amendments require that the consumption pattern be consistent with the breathalyzer
    results. What is “consistent?” Is there an acceptable range to qualify as ‘consistent?’ If guilt or
    innocence is dependent upon an accused’s ability to accurately recall the amount consumed, many
    may find themselves in an unenviable position of not being able to prove their innocence.

    Furthermore, the only way to adduce this evidence is with the testimony of a toxicologist.
    Toxicologists add significantly to the cost of defending an over 80 case.

    Legal Aid Ontario already does not provide assistance to persons charged with their first over 80 case
    as
    there is little prospect that they may receive a custodial sentence. Already having difficulty with
    lawyer fees, the cost of hiring a toxicologist further undermines access to justice.

    The amendment attracting the most attention is that an officer no longer needs a “reasonable
    suspicion” that a driver has alcohol in their system before requiring the driver to provide a breath
    sample into an approved screening device (s. 320.27(2)).

    The only prerequisites for the warrantless and suspicionless search is that the driver be operating the
    vehicle (or have care and control) and that the officer has in his or her possession the approved
    screening device. No indicia of consumption of alcohol is required.

    Prior to the amendments, an officer could require a driver to provide a sample of his or her breath
    into an approved screening device and/or perform a physical co-ordination test (s. 254(2)). The
    officer needed to have a reasonable suspicion that the driver had alcohol or a drug in their body and
    had operated a vehicle within the previous three hours. The physical co-ordination test could lead to
    the formation of reasonable and probable grounds to suspect that the driver was impaired by a drug
    and would justify bringing the driver to a police station and requiring that they provide a sample of a
    bodily substance for analysis.

    The new amendments maintain the same minimum standard of reasonable suspicion that a person
    has alcohol or a drug in their body and had operated a vehicle within the previous three hours.

    It adds that in addition to being required to provide a sample of breath into an approved screening
    device and conducting a physical co-ordination test, the law now requires that a driver submit a
    “bodily sample” into an approved screening device designed for drugs (s. 320.27(c)). These approved
    screening devices are still being tested and have not yet been vigorously challenged in court.

    This change is highly controversial given that in R. v. Hufsky [1988] 1 S.C.R. 621 and R. v. Thomsen
    [1988] 1 S.C.R. 640 the SCC held that the prior statutory regime already constituted a violation of
    ss. 9 (the right to be free from arbitrary detention or arrest) and 10(b) (the right to retain and
    instruct counsel without delay).

    The SCC ultimately upheld the constitutionality of the statutory regime under s. 1 of the Charter, as it
    ruled the provisions constituted reasonable limits on rights in a free and democratic society. Given
    that the constitutionality of the previous statutory provisions barely passed constitutional muster, it is
    reasonable to suspect that this new provision will not pass constitutional scrutiny.

    Curiously enough, though the new provisions require a driver to provide a sample of their breath into
    an approved screening device without the officer having a reasonable suspicion, there are no similar
    provisions requiring drivers to provide samples of bodily substances into approved screening devices
    for drugs without the officer having a reasonable suspicion.

    If the provision of suspicionless roadside breath demands are upheld by the courts, it is hard to
    imagine that the government will not follow suit by introducing a similar provision for the
    suspicionless roadside bodily substance demands to combat driving high.

    New (and arguably absurd) drinking and driving offences - The Lawyer's Daily
    Joseph A. Neuberger of Neuberger & Partners LLB is certified by the Law Society of Ontario as a
    specialist in criminal law and he is a published author — Assessing Dangerousness: Guide to the
    Dangerous Offender Application Process. Christopher Assié is a partner at Neuberger & Partners LLP
    and has successfully defended clients in all types of criminal matters including homicide, robbery,
    kidnapping, sexual assault, drug trafficking, firearm offences and impaired driving.

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