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Is it a Crime to Spank Your Child?

Assault as defined in the Criminal Code of Canada is to, without the consent of another person, apply force intentionally to that other person, directly or indirectly. This general definition encompasses a lot of behaviour which many would categorize as “normal” and far from criminal. The Criminal Code accounts for this by having built in exceptions. One example is section 43, which allows parents and school teachers to use a reasonable amount of physical force to discipline children. This section specifically states:

Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if force does not exceed what is reasonable under the circumstances.

With this exception comes clear boundaries and limits. These boundaries are supported by the language of this section, coupled with the Canadian Charter of Rights and Freedoms.  pecifically, section 7 and section 12 which is the right that every person has, irrespective of age, under the Constitution not to be subjected to any cruel and unusual treatment or punishment.

Bill S-206, commonly referred to as the “anti-spanking bill” has received a second reading and is currently being considered by the Legal and Constitutional Affairs Committee. If this Bill passes, section 43 would be removed from the Criminal Code. This would mean that run of the mill parenting behaviour such as, stopping a child from leaving the house by physically restraining them or enforcing punishment with a smack or a slap, would be considered an assault. If this Bill becomes the law, then parents and teachers will likely be faced with scenarios where they have to consider the potential of committing a criminal offence if they use force to protect the ellbeing of a child.

The right of parents to discipline their children is considered by many as being an essential part of raising children. Reasonable physical punishment is one of the tools used to manage undesirable behaviour on the part of children. It remains to be seen, if Bill S-206 is passed whether such actions will lead to criminal charges being laid against the parents. If so the Courts would have to decide about the limits of parental authority and the Charter rights of the parents, taking into consideration that in 2004 the Supreme Court of Canada upheld the constitutionality of s. 43 of the Criminal Code. It is also likely that parents who for religious reasons feel that they have an obligation to physically discipline children, will use their right to freedom of religion to defend any charges laid against them. We are sure that there will be a lot more discussion about this important topic in the future.

SHOPLIFTING/THEFT UNDER $5000 IN ONTARIO

Shoplifting, also known as “boosting” or taking a “five-finger discount” may sound less serious than robbery or theft, but it can have very serious consequences, including jail time and a criminal record. Taking goods from a store without paying is stealing. Because shoplifting usually involves surreptitiously placing smaller items in pockets, under clothes, or in a bag, the stolen goods tend to be worth less than $5000. In Ontario, this is referred to as the offence of “theft under” – because the goods taken are worth an amount “under” $5000.

The prosecution can proceed “by indictment” or “summarily”. Proceeding “by indictment” means the matter will be treated as an indictable offence, i.e. a more serious matter with a maximum punishment of two years in jail. If the prosecution proceeds “summarily”, the charge will be treated as a summary offence for which the maximum punishment is 6 months in jail and a $5000 fine.

In many circumstances, statements made by a person caught shoplifting can potentially be used as evidence when later proving the offence of theft under. If you have been detained by a store security guard or the police, it is important to provide no answer to their questions until speaking with a criminal defence lawyer. When under-age children are detained for shoplifting, they will be provided an opportunity to contact their parents, and they have the right to have their parents present while being questioned by the police. If you are a parent and your child contacts you because he or she has been arrested for shoplifting, tell your child to wait until you can be present for any statements and speak to a criminal defence lawyer as soon as possible.

White Collar Crime

The phrase “white-collar crime” has become more and more prominent since Edwin Sutherland first
used it in a speech delivered to the American Sociological Association in 1939. Sutherland was referring to financially motivated, non-violent crimes. These offences were often committed by people of high social status, such as business and government professionals. The causes of these crimes differed from more traditional criminal offences, which Sutherland classified as blue collar crime.

Famous white-collar crimes include the scheme invented by Charles Ponzi in the 1920s, which afterwards was named after him and became known as a “Ponzi” scheme. Ponzi used funds from investors to pay off returns for earlier investors, and he made a tidy profit in the process. He was eventually caught and served 14 years in prison. Almost a century later, Bernie Madoff was caught and punished for doing the same thing. In the 1990s and early 2000s, Kenneth Lay and other Enron executives committed a huge number of white-collar crimes, and investors lost huge sums of money.

Lay passed away before he could be convicted. The most common white-collar crime is fraud. The punishment for a large-scale fraud can be significant. The financial punishment meted out by a court, whether a fine or a restitution order, can be crippling. If you are charged with a white-collar crime, it is important to hire the right attorney who understands and can navigate complicated financial transactions. If you require assistance with a financial crime or any other white-collar offence, contact Lockyer Campbell Posner.

The Importance of Hiring the Best Robbery Criminal Lawyer in the GTA

Last Week police arrested two men after a series of armed robberies in Toronto and Brampton this summer. Multiple retail and financial businesses were robbed at gunpoint, and one of them, according to police sources, occurred on TTC property. The weapon, a replica gun, as well as masks were recovered by police during the investigation.

Earlier this summer, police were investigating another robbery on TTC property, which was caught on video. In the video, a woman can be seen chasing another woman through a subway car and, subsequently, fighting over a cellphone.

Our office often receives phone calls from people who have been arrested and charged with robbery, which is a serious violent crime offence. Robbery is defined in s. 343 of the Criminal Code as follows:

Every one commits robbery who

(a) steals, and for the purpose of extorting whatever is stolen or to
prevent or overcome resistance to the stealing, uses violence or threats of
violence to a person or property;
(b) steals from any person and, at the time he steals or immediately
before or immediately thereafter, wounds, beats, strikes or uses any
personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive weapon
or imitation thereof.

Pursuant to s. 344(1) of the Code, the maximum penalty for robbery is life imprisonment. There are minimum punishments prescribed where certain conditions are met. For instance, there is a minimum sentence of four years imprisonment if a firearm was used in the commission of the offence. Bodily harm is not a prerequisite to the offence, but punishments are more severe depending on whether there is physical injury (yes or not) to the victim. These harsh penalties make it imperative that you hire a first-rate criminal defense lawyer to defend such charges. Your liberty could depend on it.

We constantly get the question, “Who are the top 10 best Toronto’s Criminal Lawyers for robbery cases?” The right lawyer is the one who knows the law and will use every available resource to raise a reasonable doubt and secure a “not guilty” verdict. Many robbery cases turn on eyewitness identification evidence, which is notoriously unreliable and the source of countless miscarriages of justice. Our office has been successful at overturning many wrongful convictions in the past and we continue those efforts today.

Roadside Screening Device for Testing Drivers’ Saliva for Cannabis

In July, 2018, the Federal Government approved the first device for testing drivers’ saliva for the presence of drugs.

Until now, the police would test for drug-impaired driving by conducted a roadside standardized field sobriety test, which involves tests such as standing on one foot or walking in a straight line.

The saliva-testing device is a mobile device which will allow police officers to swab the inside of a driver’s mouth to receive a sample of oral fluid. The oral fluid would then be run in a mobile machine to test for the presence of THC to determine if there has been recent consumption of cannabis. The saliva-testing device has also been approved to test for the recent consumption of cocaine.

If a driver fails a mobile screening device, the result will be used along with other observations to form a police officer’s reasonable grounds that the driver is impaired by drugs. The driver will be arrested and transported to a police station for further testing.

Unlike an alcohol-screen device, the science behind a drug-screening device is much less established. There will be many challenges to the reliability of the mobile device and oral fluid testing.

If you have been charged with drug-impaired driving, contact Lockyer Campbell Posner for assistance.

Intoxication used as defense for sex assault

The media has recently highlighted that Justice Nancy Spies, a trial judge of the Superior Court of Justice, recently restored the defence of extreme intoxication in sexual assault cases, which begs the question: what does that actually mean?

Well, in 1994 the Supreme Court of Canada found in a case called R. v. Daviault that “extreme intoxication”, which was defined as a state akin to automatism, or in layman’s terms, when an individual was so drunk they did not know what they were doing, was a defence to sexual assault. The court essentially found that if an individual was extremely intoxicated when they touched someone in a sexual way without consent, they were not guilty of sexual assault.

However, nine months after the Supreme Court released their decision in Daviault, Parliament enacted s. 33.1 of the Criminal Code, with the intent to reverse the impact of Daviault. S. 33.1 eliminated the defence of “extreme intoxication” in sexual assault cases.

In 1999, Madam Justice Wallace of the Superior Court of Justice found in a case called R. v. Dunn that s. 33.1 was unconstitutional, and was accordingly of no force and effect. In other words, she found that the defence of “extreme intoxication” must be available for offences such as sexual assault. Justice Wallace in effect restored the defence.

Since the release of Dunn, different courts have come down on both sides of the issue; some have found that the defence should be available and others have found that it should not. No appellate courts have considered the issue as of yet. In the recent case of R. v. McCaw, Madam Justice Spies found, as did Justice Wallace, that s. 33.1 was of no force and effect such that, as it stands, “extreme intoxication” is a defence to a charge of sexual assault.

Free Legal Advice Ontario

Public fascination with crime and criminals is at an all time high. News stories abound and now TV shows and podcasts have joined in, often diving deeply into long forgotten crimes in an effort to expose the “truth” about what happened. True crime is entertaining, but it’s no fun if it happens to you. The truth is, no one wants or expects to be arrested or charged with a crime in Ontario. If it happens to you, choosing legal representation is the most important decision you will make. Whether you’ve watched Netflix’s “Making a Murderer” or listened the podcast “Serial”, you know that choosing the best lawyer can make the difference between achieving justice and going to jail. You may be wondering, “what are my options?” You may be thinking, “I can’t afford a lawyer”. The information you need will depend on the situation you are in.

If you are arrested, the police must give you the opportunity to phone a lawyer. Legal Aid provides duty counsel lawyers who can take your call. Alternatively, you can call the 24 hour Lockyer Campbell Posner arrest line, at 4168472563, to receive free legal advice about your rights. Our lawyers are knowledgeable about all areas of criminal law and someone is always available to take your call.

If you have been charged with a crime but are not in custody, it is a good idea to find legal representation as soon as possible. You may want to contact the Law Society Referral Service
either online or by calling the LSRS phone number between 9:00 a.m. and 5:00 p.m. Alternatively, you can contact Lockyer Campbell Posner by calling our legal line at 416-847-2560 or by using our online consultation request form 24 hours a day. We are happy to arrange free initial consultations so that you can discuss your case with a lawyer (caseworker) who will help you understand your options. We will also help you decide the best way to pay for legal representation. Lockyer Campbell Posner accepts Legal Aid certificates and offers the option of flat-fee cases.

If you need help with a civil matter, Pro Bono Ontario has a free legal advice hotline. They cannot assist with criminal matters.
If you or a family member has been arrested or charged with a crime in Ontario it is important to find a good lawyer right away. Don’t wait until your case is the subject of a TV special.

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Is Driving Under the Influence Really a Criminal Offence?

Driving under the influence of alcohol or drugs can result in serious consequences, regardless of whether someone receives the penalty of a fine or imprisonment in jail.

Section 253 of the Criminal Code makes it an offence to drive while impaired by alcohol or a drug, and also makes it an offence to drive with a Blood Alcohol Concentration greater than 80 milligrams of alcohol in 100 millilitres of blood. Section 254 of the Criminal Code sets out when police can obtain breath samples and blood samples to determine whether a person has drugs or alcohol in their body. Under section 255 of the Criminal Code, impaired driving and driving “over 80” can both be prosecuted as either a summary offence or as an indictable offence. A summary offence is similar to an American misdemeanor. An indictable offence is similar to an American felony.The minimum punishment for these crimes is the same whether prosecuted as a summary or an indictable offence: for a first offence, a minimum fine of $1,000.00; for a second offence, imprisonment for a minimum of 30 days; and for each subsequent offence, imprisonment for a minimum of 120 days.

One serious difference between whether the crime is prosecuted as a summary offence or an indictable offence is the maximum penalty. If the crime is prosecuted as a summary offence, the maximum punishment is imprisonment for 18 months in jail. If the crime is prosecuted as an indictable offence, the maximum punishment is imprisonment for 5 years.

Causing bodily harm to another person as a result of impaired driving or while driving equal to or over the legal limit can only be prosecuted as an indictable offence. If convicted of impaired driving causing bodily harm or driving with a blood concentration equal to or over the legal limit causing bodily harm, the maximum penalty is imprisonment for 10 years.

Causing death of another person as a result of impaired driving or while driving with a blood concentration equal to or over the legal limit is also prosecuted as an indictable offence. The maximum punishment for such a conviction is life imprisonment.

These are serious matters that can affect your life and reputation for many years, whether the punishment is jail time or simply a fine. If you have been charged with impaired driving, contact Lockyer Campbell Posner for assistance.

The Judge Ruled the Man was Not Guilty of Sexual Assault

Recently, a military judge, presiding over a court marital, found a soldier not guilty of sexual assault. The complainant alleged that she was assaulted in a Toronto hotel room. In ordering the case dismissed, the judge noted problems with the woman’s account, including that she willingly attended a strip club with the accused, despite claiming to have been sexually assaulted by him earlier.

This acquittal comes in the wake of a spate of other high-profile acquittals, including that of three Toronto police officers accused of rape and related charges last year. In that case, the trial judge concluded that the “believe the victim” campaign, part of the broader #meToo movement, has no place in the courts because it deprives the accused of the presumption of innocence. While critical of stereotypes invoked by the defence, such as suggesting that the complainant was dressed in immodest clothing, the trial judge was left in reasonable doubt by various implausibilities in the complainant’s story as well as pictures showing that she was not too intoxicated to consent.

Before that, there was the 2016 acquittal of Jian Ghomeshi. In that case, the credibility of the complainants was vigorously challenged by the defence, who brought out that some of the women had continued contact with Ghomeshi after the alleged assaults, and had sent selfies to him. One of the women sent him a picture of herself in a bikini as well as an email complimenting him on his show and including her own cellphone number.

All of these cases demonstrate how crucial it is to vigorously fight false sexual assault allegations. The #meToo movement has only grown stronger and it is important to hire the right lawyer to defend you. The consequences are too serious to do otherwise.

We are getting phone calls like this “Hello, I have been wrongly accused …” And we are commonly asked, “Who is the best lawyer for sexual assault crime”. Sexual assault is a broad offence that can range from uninvited sexual touching to a brutal rape. The right lawyer to defend sexual assault allegations is the one who will knows the law and will turn over every rock, investigate all possible witnesses, and pursue every avenue of defence to either convince the prosecutor to drop the charges, or secure a “not guilty” verdict. No lawyer can guarantee an acquittal, but if you retain us, we can guarantee that we will bring every resource to the table to fight for you.

 

Recreational Drug Use

As the date for the legalization of recreational use of cannabis approaches there are still many unanswered questions. One important unknown is what restrictions there will be on home cultivation in Ontario. Although the federal bill allows for home cultivation of up to four plants per household, each province is able to set out their own laws and regulations. For instance, Quebec and Manitoba have already established that, regardless of what is set out in the federal legislation, homegrown cannabis will be banned in those provinces. If the Ontario government follows suit, individuals may need to retain lawyers to challenge the law in order to grow cannabis at home for personal recreational use.

While the Courts have gradually become more lenient with those charged with the use and sale
of cannabis, the use and sale of opioids, such as fentanyl, is attracting harsh treatment in our judicial system. The use of this drug began as a misuse of pharmaceutical fentanyl, a prescription drug in the form of transdermal patches or lozenges. However, consumption of illegally made fentanyl has become more and more common leading to an ongoing problem. Statistics show that Opioid-related overdose deaths have steeply increased in recent years. A substantial amount of these deaths are related to fentanyl products. The public outcry to the devastating effect of this hallucinogen has resulted in a phenomenon commonly referred to as the “fentanyl epidemic”. The courts have acknowledged this crisis and began imposing harsher punishments on fentanyl related offences as compared to charges involving other illicit drugs such as cocaine, crack cocaine and ecstasy. The trend in this area of sentencing is to impose stiffer sentences when the offence involves trafficking in fentanyl.

Being arrested for an offence related to the possession of fentanyl is extremely serious. The use and trafficking of this opioid is becoming more common as testing has shown that heroin and cocaine now are more likely to have fentanyl mixed in – often without the user and/or possessor’s knowledge. It is important for the recreational drug user to know about the serious health and legal consequences arising out of using and dealing in drugs that may contain fentanyl. If you have been arrested for a drug related offence, contact Lockyer Campbell Posner for assistance.