The British Columbia Court of Appeal today released its decision on the appeal of Robert Pickton’s conviction in the gruesome mass murder case involving six women. At trial, the Crown Attorney had argued strenuously that Pickton was solely responsible for the murders, but after six days of deliberations the jury asked the judge to answer the following question: “When considering Element 3 [that Mr. Pickton was the person who killed the victim] on one or more of the counts, are we able to say ‘yes’ if we infer that the accused acted indirectly?” By its question, the jury seemed to be considering the possibility that others had been involved in the murders.

The trial judge had earlier instructed the jury that, to convict him of murder, the jury must find that Pickton “actively participated in the killing of the victim” but that it was “not necessary that you find that Mr. Pickton acted alone.” Faced with the question from the jury, the trial judge reiterated these instructions and corrected another part of his instructions to clarify that Pickton had to have “actively participated in the killings.” The Crown, sensing that its theory had not been accepted, was happy to go along with this.

In a 2-1 decision, a majority of the Court of Appeal agreed with the trial judge’s approach and dismissed the appeal. The dissenting judge said the trial judge failed to properly instruct the jury on alternative theories of liability, resulting in a miscarriage of justice warranting a new trial.

Without question, the prospect of a second trial to relive these terrible events was not relished by anyone. The dissenting judge acknowledged this. However, if a serious error of law was made which compromised the fairness of the trial, a new trial would be the inevitable result. Under the Criminal Code, where a judge of a Court of Appeal dissents on an issue of law, an appeal may be presented to the Supreme Court of Canada as of right. That is what happened here. The Pickton appeal will soon be dealt with by our nation’s highest Court.

There is an interesting decision reported in the most recent edition of the Ontario Reports, a weekly journal with important decisions from Ontario Courts. The case involved a conviction for money laundering by a lawyer and an appeal of the conviction and three year sentence. The lawyer, Simon Rosenfeld, was caught red handed when he agreed to launder funds for what he thought was a Columbian drug cartel. In fact, his contact was an RCMP agent posing as a front man for the organization. Lured by the prospect of enormous financial returns, Rosenfeld could be heard on intercepted communications bragging about his ability to launder large amounts of dirty money.

The Court of Appeal had no difficulty dismissing Rosenfeld’s appeal of the conviction. The interesting comments related to his status as a lawyer on the sentence appeal brought by the Crown.

“Those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system.”

“Lawyers, for arguably valid reasons, are exempt from the reporting conditions applicable to other professions and financial institutions who deal in cash transactions. The communications between lawyers and their clients, also for valid reasons, are protected from disclosure by the client/solicitor privilege. This privilege attaches uniquely to lawyers and their clients. The wiretap interceptions and Majcher’s evidence demonstrate that the appellant appreciated the advantage to a money laundering operation of both the solicitor’s exemption from the reporting conditions and the client/solicitor privilege. He was ready and willing to abuse these specific privileges available to him because of his status as a lawyer to enhance his money laundering services. The appellant’s willingness to prostitute his legal services and abuse the special privileges associated with them are significant aggravating features of his conduct.”

Needless to say, the Court of Appeal did not look kindly on these circumstances. In delivering this important message, the Court increased the sentenced from three to five years.

Thirty three days into a murder trial in Windsor, Superior Court Justice Bruce Thomas declared a mistrial yesterday after it was revealed that police had searched databases and run background checks on potential jurors. The resulting information was then used by the Crown Attorney to assist in selecting the jury. Potential jury members suspected of being unfriendly to the police or those with young offender records, criminal charges without convictions or pardons were screened out, causing Justice Thomas to conclude that the practice was meant to provide the Crown with “an unfair advantage in selecting a jury favourable to the prosecution.”

The Canadian Charter of Rights and Freedoms provides in section 11(d) that “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Section 7 of the Charter of Rights provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

These ringing guarantees of the right to a fair trial are too precious to be jeopardized by the practices disclosed by Justice Thomas. It is to be hoped that a full accounting will soon be given by the Attorney General and that the improper vetting of jurors will now be brought to an end.

The Criminal Lawyers Association has announced that members with more than ten years experience or the qualifications to represent clients in serious criminal cases will no longer accept legal aid certificates in cases of homicide or complex matters involving guns and gangs. This important effort is meant to highlight the woefully inadequate legal aid tariff and the discrepancy in resources between the Crown and defence in serious criminal cases which has been identified, most recently in the report of the Goudge Inquiry Into Pediatric Forensic Pathology, as a potential source of wrongful convictions. The consequences of this action will undoubtedly be watched with great care by officials at the Ministry of the Attorney General. Persons charged with serious offences and who cannot afford to hire a lawyer will be unable to secure representation, with the effect that they will either be unrepresented or, more likely, will have counsel appointed for them by a judge at rates well above the legal aid tariff. There will almost certainly be more news to come on this issue.

It is not uncommon for an accused person convicted of a criminal offence to blame their lawyer for the outcome. While courts look upon such complaints with scepticism, the reality is that mistakes can happen and inadequate representation can cause a miscarriage of justice. The Court of Appeal for Ontario has recognized the importance of effective legal representation to a just outcome in a criminal case, saying “We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by partisan advocacy on both sides of the case.”

When an issue of ineffective assistance of counsel is raised on appeal, the justice system must find a way to fairly deal with the complaint. In May 2000, the Court of Appeal, with the assistance of representatives from the Criminal Lawyers Association, the Department of Justice and the Ministry of the Attorney General, enacted a Protocol for the presentation of appeals where there is an allegation of ineffective assistance of counsel.

This important effort has a number of hallmarks: (a) before making a claim of ineffective assistance of counsel, the appeal lawyer must satisfy him or herself by appropriate inquiry, that there is a factual basis for the allegation apart from the instructions of the client; (b) the appeal lawyer must provide trial counsel with the opportunity to respond to the allegation; (c) trial counsel is obliged to provide their entire file to the appeal lawyer; (d) the appeal is case managed by a judge of the Court of Appeal; (e) the Crown Attorney is entitled to review the file of trial counsel, except for those portions over which solicitor and client privilege is claimed; (f) if solicitor and client privilege is claimed, the appeal lawyer must provide an inventory of such documents to the Crown Attorney; (g) disputes over privilege will be decided by the case management judge; (h) either party can compel trial counsel to attend for examination on the issues involved in the appeal.

This creative Protocol ensures that the interests of all parties to the appeal are adequately protected. In the end however, the burden of proof is on the accused person to demonstrate to the appellate Court that ineffective assistance of trial counsel caused a miscarriage of justice.

The old adage “innocent until proven guilty” could soon become a phrase of the past.  In August, a Montreal Court was scheduled to handle the first criminal case involving the new reverse onus law.  The Reverse Onus law is a recent amendment to the Canadian Criminal Code that went into effect May 2008.  The law applies to bail hearings and requires an accused defendant in a violent crime to prove why they should be released on bail pending trial.

The new reverse onus rule was created to apply strictly to violent offenses, however, the Montreal case involves charges of illegal gun possession for 12 alleged members of a street gang.  Some argued that the reverse onus law should not have been applicable because in this case, the 12 defendants were charged with firearm possession, not use.  However, others argue that the use of the law was fitting, considering its origins.  The Revere Onus amendment was created as a part of the Tracking Violent Crime Act.  The law was created to address the problem of violent crimes.  Bill C-2, or the Tracking Violent Crimes Act had goals.  Along with creating stricter guidelines for bail hearings, it also increased the age of consent from 14 to 16, and a mandatory fiver year prison sentence for use of a handgun during attempted murder, kidnapping, sexual assault, or robbery.

So, this hearing really creates a question around whether a non-violent crime, such as gun possession, should be subject to the Reverse Onus Law.  Since the law is so new, it is open to interpretation and will likely be shaped by interesting hearing in the year to come.  In theory, keeping the streets safe should be a top priority.  However, criminal lawyers and judges will need to find a way use the Reverse Onus Law to keep order in the streets, without stripping away the rights of Canadian citizens.

For now, no decision has been made yet on the gang gun possession case, as the bail hearing has been pushed, however, whatever decision is made will be history making for Canada.  If you have been charged with a criminal offense and are awaiting a bail hearing, you may want to consult with a criminal lawyer, as the stakes could now be a lot higher.

In the Canadian legal system, there are generally two elements required to prove a crime: the act (actus rea) and the mental state (mens rea). Generally, without proof of these two elements there can be no criminal conviction. However, what may at first seem like a simple equation of two parts, can actually become a very complicated maneuver in the legal field known as criminal law.

The act, or actus rea, must fall in line with a specifically defined offense. Definitions of offenses are taken from the Criminal Code and can include both acts and failures to act. Yet, there is more involved than just reading a few lines from the Criminal Code. If a criminal case goes to trial, a judge will use the definitions in the Criminal Code as well as precedent to determine the outcome of a case. Precedents are previous decisions made by other courts in cases with similar facts. The facts of a case and precedent are often a very important part of a criminal lawyer’s argument, either within a trial setting or simply during negotiations.

Mens Rea is the second key argument for a criminal case. In Latin, Mens Rea means “guilty mind.” Hence, in the Canadian legal system, not only must a person commit an act, they must also have had a specific mental state, or guilty mind, related to the commission of the act. Types of mens rea include intention, knowledge, negligence, recklessness, and willful blindness. Intention and knowledge mean that the person performed an act purposefully, with a desire for the consequences or knowledge that the act will cause the consequence; Recklessness involves consideration that the consequences will possibly occur as a result of the act, but doing the act anyway; Willful blindness occurs when one commits an act while deliberately shutting their eyes to the risks because they do not want to know about the consequences; and Negligence involves a failure to think like a reasonable person given the circumstances. The mental state required to be convicted of a specific crime will likely depend on the act committed. Therefore, mens rea and actus rea almost always need to be partnered together to secure a conviction.

One exception to the mens rea/actus rea partnership is for “strict liability” crimes. If a crime falls within the strict liability category, the person is guilty simply because they committed the act. There are certain circumstances and exceptions which can still be used as defenses in strict liability cases; however mens rea is not one of them.

The Canadian Criminal Legal system is a complicated web of rules and facts that can be difficult to muddle through on your own. If you need assistance, an experienced criminal lawyer can help you work through your case to understand the mens rea, actus rea, rules, and precedent to effectively fight for your rights.

Starting July 2nd, the laws for driving under the influence of drugs in Toronto and throughout all of Ontario will become much stricter. Earlier this year, after almost 5 years of debate in the federal Parliament, a law was passed that will mandate roadside testing for drivers suspected of being under the influence of drugs. Under the new law from Bill C-2, drivers could be ordered to surrender to a urine, blood, or saliva samples at a local police station. If you choose to refuse the drug test, you could be fined $1,000.

While there are standard procedures to nab those who drive while under the influence of alcohol, many believe those who use drugs and drive have been under the radar, so to speak. While the Criminal Code expressly makes it an offense to drive while under the influence of drugs or alcohol under section 253(a), the laws did not allow for specific testing to be performed by police. Additionally, under the current version, evidence from drug tests is only allowable at court hearings if the driver voluntarily took the test.

However, based on the amendments passed under Bill C-2, a driver suspected of being under the influence of drugs does not have to volunteer to be tested. First, police officers will be allowed to administer Standard Field Sobriety Tests (SFST) if there is reasonable suspicion of driving under the influence. SFSTs can include walking a straight line, or testing a driver’s ability to multi-task. If the driver fails, under the new law, the police officer is authorized to send the driver to the police station for the administration of a Drug Recognition Expert (DRE) evaluation which involves interviews and observations. If after the DRE, it is decided that the individual appears to be under the influence, a drug test will be administered through urine, saliva, or blood samples.

This new law will apply to being under the influence illegal drugs as well as over-the-counter and prescription medications. While many applaud the new law, there is also great controversy surrounding it. For example, the drug test can produce results of drugs that were taken several weeks prior, yet the information is still allowable as evidence in a court hearing.

As such, if you live in the Toronto area and are pulled over for impaired driving, whether it’s for illegal or prescription substances, you will likely need a good Toronto Criminal Lawyer. There are many more additions to the Bill C-2 which create stricter penalties and restrictions for substance impaired driving. These laws can be complicated and frightening when faced with large fines or prison terms, so be sure to consult with an experienced Criminal Lawyer to fully understand your rights, especially under this new law.