Blog Post Archives - LCP Criminal Lawyers

Category Archives: Blog Post

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 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.

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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.

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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.

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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.

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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.

 

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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.

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Legal status of 3d printed guns in Canada

The legal wrangling in the U.S. around 3D printed firearms dates back to 2013, when non-profit organization, Defence Distributed, started publishing downloadable gun blueprints online. The company was quickly ordered by US State Department to remove the prints. A five-year long legal battle followed, where recently a federal Judge has temporary blocked the website from sharing blueprints of 3D guns. As the legal battle continues in the U.S, the RCMP and local police services continue to warn Canadians of the implications associated with printing 3D guns without a licence.
In Canada, there are three classes of firearms: non-restricted, restricted and prohibited. Different regulations apply to different classifications. To own a restricted gun or pistol, an individual first needs to obtain a Possession and Acquisition Licence (PAL). As all firearms are subject to the Firearm Act and associated regulations, it is illegal to manufacture or possess 3D printed firearm without the appropriate licence and applicable registration certificate.
Anyone who violates these weapons related laws could face up to 10 years in prison. Currently, there is no legislation prohibiting Canadians, licenced or not, from possessing online downloads of 3D printable files. The Federal Government has already proposed tightening Canada’s firearm law by introducing gun bill C-71.  The bill intends to enhance existing background checks along with changing how vendors document the sale of firearms. The bill does not specifically address the modern notion of these so called “ghost guns”.
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DUI & Your Reputation

Is My Life Over After a DUI?

We all know someone who has gotten caught driving under the influence after a drink or a few too many. Though we might not think of these people as “criminals”, impaired driving in Ontario can result in a criminal conviction regardless of how someone is punished. Even if the end result is a mandatory fine, a criminal conviction can have consequences on a person’s life long after that fine is paid.

For example, a DUI conviction under section 253 of the Criminal Code can impede job prospects, or affect entry to the USA, by appearing in criminal record and vulnerable sector checks.

There is only one way to remove the conviction from a criminal record: a “record suspension” (formerly known as a “pardon”). Obtaining a record suspension is a lengthy process. If you have a DUI conviction, you must wait 5-10 years before you can even apply for one to the Parole Board of Canada. As part of the application, you must demonstrate that you have been “of good conduct” and that you have not been convicted of any further offences. The good news is that once it is granted, the conviction will no longer appear on your criminal record or in a vulnerable sector check, and you will no longer be required to disclose the conviction on Canadian employment forms.

An impaired driving conviction is a serious matter that can affect your life and reputation for many years. If you have been charged with impaired driving, obtain legal advice and ask your lawyer to explain all of your options.

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Judge Shortage in Ontario

There is a crisis in the criminal justice system in Ontario. There are too many cases being prosecuted, and not enough judges to hear them. The result is that cases are taking too long to get to trial, accused people are suffering prejudice from the delay, and charges are being dismissed as a result.

The judicial shortage in Ontario is not a new problem. For decades both federal and provincial
governments have repeatedly promised to fix it, yet judicial vacancies have remained. Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees an accused the right to have their trial within a reasonable time. Since the enactment of the Charter in 1982, what constitutes a “reasonable time” has been the subject of much debate. Finally, in 2016, the Supreme Court of Canada settled that debate in R. v. Jordan by outlining “presumptive ceilings” for how long cases should take to get to trial: 18 months in the Ontario Court of Justice, and 30 months in the Superior Court of Justice. Anything longer that will result in the charges being stayed following an application by the accused pursuant to section 11(b) of the Charter unless the Crown can justify the delay by proving that it was caused by either exceptional circumstances or by the conduct of the defence.

Despite the Supreme Court’s pronouncement in Jordan, the pace of judicial appointments has remained slow. Significant vacancies remain, and little is being done to correct the problem. Shortly after the release of Jordan in 2016, funds were earmarked by the federal government for the hiring of judges, and provincial advisory committees were created to assist with the process. Yet in January of 2018, the Canadian Bar Association wrote to the Minister of Justice expressing concern that despite the ruling in Jordan, promises for change were not being kept.

The problem continues to get worse rather than better. Following the dismissal of a case involving serious fraud charges in July of 2018 as a result of delay, Norine Nathanson, senior counsel to the Chief Justice of the Ontario Superior Court of Justice, said that she expects the percentage of judicial vacancies to reach an all-time high by September of 2018.

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