If you are charge with impaired driving or over 80 and plead guilty within 90 days of being charged you may be eligible for a sentence including a 90 day suspension followed by 9 months of driving in a vehicle with an ignition interlock device installed. If however you go to trial and are convicted the suspension period would be 6 months, if you are allowed the ignition interlock option. This formally establishes two different penalties for the same crime. The penalties differ only because of the exercising of a constitutional right.

There ought not to be penalties for exercising rights. You ought not to be fined for expressing an opinion. You ought not to be sentenced to twice as long in jail because you decided you wanted to call a lawyer. You ought not to have a greater penalty because you thought you should know what you are being charged with. It is not fair to demand a greater penalty, because you ask the crown to prove that you committed a crime.

The court has declared that the offence of stunt driving is strict liability and as such it can carry a penalty of jail and still be constitutional. Stunt driving has been defined as driving a vehicle at a rate of speed in excess of 50 km over the speed limit. The Court had previously stated that speeding was an absolute liability offence. To overcome this apparent contradiction the Court has proclaimed that the accused person could demonstrate that he had exercised due diligence in maintaining a speed less than 50 km over the speed limit but would then still be convicted of the lesser included offence of speeding 50 km over the speed limit.

Consequently, it is now entirely legal for the police to seize your car without due process, without a trial and without appeal even though you had no intention of breaking the law, or traveling at such a speed. It is also entirely possible that your vehicle can be seized without the law being broken, simple because a police officer says that it was broken.

We are all fortunate to be protected by the fundamental principles of justice, due process and fairness. I feel sorry for those poor souls suffering under regimes that rely on arbitrary detention and arbitrary confiscation of property, to punish their citizenry. Courts and constitutions are inconvenient for autocrats and dictators.

The classical example is the person who is lost or stranded on a mountain, sure to die of exposure. This person in order to avoid death would be justified in breaking into a cottage in order to avoid death by exposure. The prohibited act, break and enter, is rendered lawful by the “necessity” of avoiding death.

Another way to look at it is that the act it self is not wrongful or does not qualify as actus reus because it was not voluntary. When the individual has no real choice except to break the law because the consequence of not breaking the law is so extreme and disproportionate then the law will not hold an individual criminally liable.

Whether the prohibited act is involuntary or lacks the wrongful intent required by criminal law, there is no moral blameworthiness that attaches to conduct necessitated by circumstances or imposed by threat or violence.

Still the person acting under duress or by necessity did voluntarily act against the law and did intend that the wrongful act be committed. It is therefore argued that although the wrongful act and the wrongful intent are present the fact that they were clouded by duress or necessity offers a shield to the accused person. The conduct is therefore “excused”. In R. v. Ruzic the Supreme Court of Canada states:

“…[A]n excuse acknowledges the wrongfulness of the accused’s conduct. Nevertheless, the law refuses to attach penal consequences to it because an “excuse” has been made out. In using the expression “moral involuntariness”, we mean that the accused had no “real” choice but to commit the offence. This recognizes that there was indeed an alternative to breaking the law, although in the case of duress that choice may be even more unpalatable – to be killed or physically harmed.”

Duress is a necessary course of action which is imposed by threat or violence.

There are four ingredients that must be met before the law will excuse a crime because the accused was acting under duress.

• One: acts solely as a result of threats of death, or serious bodily harm to herself or another person.
• Two: the threats were of such gravity or seriousness that the accused believed that the threats would be carried out.
• Three: the threats were of such gravity that they might well have caused a reasonable person placed in the same situation as the accused, to act in the same manner as she did.
• Finally, the accused must not have had an obvious safe avenue of escape.

It should also be noted that there is a strong thread in the case law that suggests that the accused person cannot have had a hand in creating the circumstances by which he is oppressed. This means that a person who joins the mob or a motorcycle gang and is ordered under threat of death to commit a crime, cannot then rely on the defence of duress having willful joined a group where he knew he would be subject to such threat of violence.

Stunt Driving Law Is Unconstitutional

Recently, two decisions have struck down the Stunt Driving law of the Province of Ontario. It is difficult to disagree with the notion that this law is itself an offence against the citizenry. Nevertheless, the Stunt driving laws were struck down for the wrong reason. In short they were declared unconstitutional because they allowed the possibly of jail as an ultimate punishment for an absolute liability offence. An absolute liability offence requires only that the prohibited act be proven. There is no defence of due diligence or a mistaken belief in an innocent set of facts. The parking ticket is the seminal example of an absolute liability offence.

Speeding Not An Absolute Liability Offence

Although speeding would not appear to be an absolute liability offence because one would think that it would be a defence to say: “I was not driving the car.” Perhaps you loaned the car to your wife or son. Perhaps the car was stolen. It should also be a defence to demonstrate that your speedometer was in error. However in order to allow the government to persecute us with photo radar, the idea that speeding was an absolute liability offence, was introduced. Now it didn’t matter anymore if you were proven to be the driver or not. It didn’t matter if you had intended to and thought you were going the speed limit. Guilty. If speeding is an absolute liability offence and stunt driving is speeding really badly, stunt driving must be an absolute liability offence too. But could go to jail. This is the legal problem. The offence can result in you going to jail and that is not a permissible penalty under an absolute liability offence. So the law must be struck down.

This is not a serious problem to the province. All it has to do is amend the law to eliminate the possibility of jail time. Still the law is unjust. Cars can be extraordinarily expensive. They generally represent a years income for the person driving them. That sort of asset ought not to be seized without due process, by whim or fiat.

Driving 50 over in a 50 zone is a lot different than driving 50 over on the 401. The 401 was designed for speeds in excess of 150km. A residential side street was not. Ignore the lack of peril on a divided highway, in contrast to the real danger of driving at excess speed in an area with pedestrians and narrow roadways, lots of intersections and innumerable driveways.

A Fundamental Violation Of Justice

We are left with another example of no due process. No fundamental nor procedural fairness and no justice in the new justice system. The new justice system seems to be designed by someone who read a Judge Dredd comic book. The police officer is the prosecutor and the judge, all rolled into one. And guess what: the police officer just happens to be right; every time. You are allowed to burden the system with a trial but only after you have already been punished by license suspension and vehicle seizure, by the officer.

The powers to charge, to prosecute and to punish must be separated. When these powers are not separated (particularly the powers to charge and to punish), the basis of the criminal and quasi-criminal law is overturned. You are presumed innocent until proven guilty. This is supposed to the law of the law. It is supposed to be a constitutional precept. But when the police have the power to charge and then at the very next moment punish, then they have assumed your guilt and levied a penalty which was designed to circumvent the inconvenient technical requirement of a trial. This might save some time, it might save some money, but it costs us our freedom and fairness under the law.

]]> http://www.criminaldefencelawyers.ca/blog/criminal-law-commetary/wrong-law-struck-down-for-the-wrong-reasons/feed/ http://www.criminaldefencelawyers.ca/blog/criminal-law-commetary/a-criminal-lawyer%e2%80%99s-work-may-never-end/ http://www.criminaldefencelawyers.ca/blog/criminal-law-commetary/a-criminal-lawyer%e2%80%99s-work-may-never-end/#comments Fri, 15 Jan 2010 10:28:43 +0000 rboggs http://www.criminaldefencelawyers.ca/blog/?p=196 There have been some high profile cases where a jury could not come to a decision. In these cases the court declares a hung jury and the defendant is not convicted. If he is out on bail, he remains on bail subject to whatever conditions might govern him as a result of his bail. This is often described as a win for the defence in the media and by politicians.

In the sense that there is no conviction. This is true. Still the case had not been determined and the normal course is to retry the accused person on the same charge. A new date is picked and the process starts over. A new jury is picked and the trial begins anew.

The defendant is left in limbo with all of the prejudice of being charged, and the extra cost of having two trials, with which to deal. It is an agonizing process to be geared up for trial and to wait in suspense for a final decision only to find out that there is not a final decision and the trial has to start over.

If a second trial does not result in a decision from the jury a third can be started, in the name of justice. The crown has the right to proceed with a case until a decision is reached.

More shocking is the erosion of the right that we have against double jeopardy. It might appear that the double jeopardy rule ought to prevent someone from being tried after a hung jury or a mistrial; but it doesn’t.

Double jeopardy doesn’t always protect us when we are actually tried and a decision is reached. Or when a person pleads guilty and serves his sentence. The U.S. is particularly dangerous in the shrinking of the rule against double jeopardy. There you can be charged criminally in each state but you can also be charged and tried by the federal government, regardless of the result of the a trial on the same state charge.

Although the right against double jeopardy is enshrined in the Charter of Rights and Freedoms it is ever more frequently ignored. This is particularly true when it comes to driving offences, like impaired driving. Here a person can be charged by two different governments for the same facts, and then be punished 3 times. You loose your license without a trial as soon as you are tried. Then if convicted the court levies a fine or jail and orders the accused not to drive. The province’s bureaucracy then steps in and levies its own suspension which may be longer than the courts.

We were just successful in obtaining an acquittal for a man charged with sexual assault, after his first trial ended with a hung jury. It should be recognized that a hung jury is a jury where at least one person believes the accused is innocent or is not sure of guilt. That ought to be reognized as reasonable doubt. Further expense and heartache is in no one’s interest and it ought to be stopped.

Stephen Harper prorogued parliament on December 30, 2009 meaning that this year will start with no sitting parliament, and no legislation being legislated. A great furor is winding itself up among the citizens of Canada. This is Mr. Harpers’s second use of suspending parliament to avoid politics. Last year, he suspended parliament to avoid being ousted by the “coalition of the Liberals, Bloc and NDP This year the rogue has prorogued to prevent further embarrassment from the inquiry into the torture of Afghans by Afghans, in Afghanistan.

Others decry the suspension of parliament as undemocratic and point to the fact that 37 bill will die on the table. I applaud this. Mr. Harper is using a power conferred on him as Prime Minister. Far from being an excess of power it is the restraint of power because it prevents the government (temporarily) from doing what it does best and too often—passing laws. In short by suspending parliament the Prime Minister has prevented parliament from doing any damage until its return after the Olympics.

Too Many Laws Spoils The Legislation

Governments have been passing laws for 5000 years. One would think that they have passed enough of them. After the 10 Commandments were chiseled, there has been very little legitimate need for further legislation. Almost all of the new additions to the law books restrict our freedom, cost us money or take away our rights. A large number of them cause all three ill effects. Too many laws infect us like viruses and bacteria. They cause the deceases of bureaucracy, ineffectiveness, stagnation, and tyranny. Too many laws make the economy, the country and it’s citizens sick.

I therefore have no complaint that laws are not being past. In fact I would gladly endorse the tenfold increase in salaries of parliamentarians, if they would only promise to do one tenth the work.

There is, of course, a need for some laws. There needs to be a standard weight and measure established by law. Done. There needs to be a common currency for the nation. Done. There is a good argument for a military to protect our interests abroad and to ensure that we are not invaded domestically. Well done. There need to be roads built and maintained and treaties with foreign powers negotiated and signed. These last matters are done poorly, because the various governments are preoccupied with lesser nagging regulations of our daily life. Yesterday, Mayor Bloomberg of New York City, urged the restriction and regulation of salt in our food. As long as the Prime Minister is proroguing parliament, it won’t be able to regulate the taste of my peroggies.

That is a good thing.

]]> http://www.criminaldefencelawyers.ca/blog/criminal-law-commetary/new-year-opens-with-old-tricks-from-the-feds/feed/ http://www.criminaldefencelawyers.ca/blog/criminal-law-commetary/get-crime-off-ice%e2%80%94boycott-the-maple-losers/ http://www.criminaldefencelawyers.ca/blog/criminal-law-commetary/get-crime-off-ice%e2%80%94boycott-the-maple-losers/#comments Fri, 18 Dec 2009 17:10:14 +0000 rboggs http://www.criminaldefencelawyers.ca/blog/?p=166 They call it “Maple Leaf Sports and Entertainment”. I call it a material misrepresentation. I do not know what the Maple Leafs play but watching them makes it difficult to recognize as a sport and it sure is not entertainment (not for me anyway).

The pretense of the sport of hockey or entertainment going on at the Air Canada Centre when the Maple Leafs play is a material misrepresentation which ought to create cause for a class action suite.

Sue The Fallacious ‘Maple Leafs’

Never mind a civil action, where are our prosecutors? Send out the police to arrest the Maple Leafs, their management and the board of directors. For what crime you ask?

Fraud. Fraud is a criminal offence. It consists of the obtaining of value through trickery or deceit. The Maple Leafs have sold us shirts and hats and tickets and hotdogs and most deceitfully of all, Maple Leaf TV, under the false pretense of providing hockey or sport entertainment. Baloney, it is not even entertaining to watch a good team beat up on the Leafs. I feel fleeced, robbed, and after the last Carolina game, raped.

There appears to be a conspiracy to deny fans value and satisfaction. It is criminal.

This conspiracy apparently extends to the establishment of a monopoly. It has been reported that the Maple Leafs are opposed to any new NHL team in southern Ontario.

They want to be the only team. Blackberry Balsillie has been blackballed; on the surface by the NHL, but perhaps more specifically, by the Maple Leafs and their influence on the League.

Maple Leafs Are dead; now ‘Maple Losers’

As you can see there are many legal issues that flow from the Maple Leafs loss/loss record and their disregard for fans: criminal, civil, commercial law issues. There are also grave medical issues. Why? Because the Maple Leafs are dead. They need to be pronounced dead. They exhibit none of the tell tale indicia of life. They do not respond to stimuli. They do not engage in self locomotion. They do not grow or adapt. They reproduce nothing but losses and failure. They are dead. Call the coroner. It looks like murder. Was the perpetrator Harold Ballard? Current ownership or management? Was it the fans who disregarded decades of mediocrity without demanding more.

I demand more. Since the Maple Leafs are dead, I shall no longer refer to them as such. I will, from now on, refer only to the Maple Losers and I will boycott them. For the sake of justice, I urge you to do the same.

I do not drink. I do not drink because the penalty for drinking and driving is out of all proportion to the offence. I reason that by never drinking, there is no possibility that I would be convicted of impaired driving or driving while having over 80 mg of alcohol in my blood. I have however still been pulled over in Ride programs. The police pull over a lane of traffic and force me to wait until they are able to able to come and ask me questions, like “Have you had anything to drink tonight?” The answer “no” together with an absence of the odour of alcohol and no bottles or beverages in the car will get me on my way. It is a waste of my time and it is a waste of the officers time; who ought to be out detecting reasonable and probable cause to stop or search or demand samples from someone who likely did something wrong. While the police are harassing law abiding citizens, someone is committing a crime and getting away with it undetected.

Once Again Federal Government Buckles To The Pushes Of SAGs

The current federal government is proposing a new law. They are once again succumbing to pressure from groups like MADD. Mad mothers and fathers seem willing to sacrifice the liberty of a nation so that they can say that they did something to stop a drunk driver from injuring someone. I’m not willing to trade my liberty or due process for that matter so that I will have nothing to fear from a drunk. There will always be something to fear from a drunk. Drunks don’t stop driving because they know they are going to get caught. I suspect that this is because they are drunk and can’t think straight.

In any case if someone is drunk and driving a car a trained officer can tell by watching the driving. A car that is swerving, or being driven in an erratic fashion is one that is likely driven by someone who is impaired: pull it over. If the officer smells alcohol when he speaks to the driver he can then demand a breath sample. Why would we give the police the power and the instruction, to pull someone over, who is not driving strangely, and to demand a breath sample from someone without any indication that they had been drinking or are currently impaired?

Stakes Of Abusing The Power Are Grave

No one stops to think about how that power might be abused. Most Canadians feel that the power would not be abused. All power is abused. Lord Acton said that “power corrupts and absolute power corrupts absolutely.” This is the most fundamental truth of law and government. The more power that you give away, the more likely you are to be crushed by its use. Please consider the truth in my assertion that the police can pull over anyone who is or was drinking and is impaired by simply observing that the person drives oddly. This means that the only need that an officer would have to pull someone over randomly is to abuse the power to pull the person over because they don’t have any reason to suspect that the driver is drunk. They want to pull him over for some other reason. They don’t think that he belongs in that neighbourhood. They don’t like the look of him or they are just snooping around. In any of those cases they aren’t doing police work.

There general agreement that there ought not to be more people waiting for trial in jail than are serving sentence in jail. The government is trying to ease the backlog by pushing people to go to trial faster or in actual practice to plead guilty faster.

Charters A Faster Trial

Pushing people to plead guilty means that people who are not guilty will plead guilty so they can get out of jail. This is because the sentences are shorter than the time it takes to get to trial. Quite often an accused person can get out of jail immediately if he pleads guilty but he will wait 6 months or more for a trial to prove he is innocent. That is too high a price for justice for most people. They plead guilty go home and continue working at the job they surely would have lost had they languished in jail waiting to have a speedy trial 6 months later.

Redeems Innocents From Prolonged Pre-trial Custody

Do not forget that everyone is supposed to be presumed innocent, until proven guilty. Let’s also remember that we have the right to a reasonable bail under the Charter of Rights and Freedoms. Far too many people are denied bail on the flimsiest of charges; allegations without any corroboration.

Frequently allegations are made to gain advantage in the family courts. It is much easier to navigate the family court system when your husband is jail and you have sole possession of the matrimonial home and all of the marital assets.

Less and less discretion is used in laying charges. In the past, the police quite often weighed the importance of the allegation or the likeliness of success in prosecution, and took the “victims” wishes into account. To a very large degree this is no longer the case. If an allegation is made, charges are laid.

Jail Conditions Gets Better With Fewer Inmates

If bail were more readily granted then the injustice of being wrongly accused would be limited. If bail were more readily granted then there would not be a need for 2 for 1 credit. There would be far fewer jailed people confronted with huge wait times for trial, because most of them would have bail, and the small numbers left without bail could be given an in custody prioritized date. With fewer people in jail waiting for trial the conditions would be much better. There would be fewer lockdowns, fewer times with insufficient ratios of staff to inmates, fewer people per cell etc.

Reduces Disparities Exist In Current Sentencing Regimes

Bail would also largely help solve the disparity of the sentencing regime that results form parole and early release being calculated after sentencing rather than from the date of the offence. If granted bail, there is little or no pretrial custody that needs to be accounted for in order to bring it in line with the parole or early release provisions.

Let’s live up to the obligations imposed by the Constitution. Give an accused person reasonable bail, and a trial within a reasonable time. If this obligation is met, then there will be no need to make pretrial custody longer or more difficult. Most important; justice will be served.

This sort of contorted application of our laws is plain and simple tyranny, designed to collect money through fines and force people to conform for the sake of being able to force them.

Being Too Hypocritical!

Fining people for smoking in their trucks is particularly hypocritical of the government. Consider that smoking is legal and the government collects millions in taxes on the cigarettes sold to the people that they are now fining for using the products the government is taxing.

Authoritarian Rulings Clutch Us In Either Way

There are some things that are simply too petty to merit the attention of Her Majesty’s Government in the right of the Province of Ontario. Smoking in a truck is one of them. Whether or not people are wearing seat belts is another. We cannot do anything that is not governed by some law imposed by some megalomaniac. I do not smoke, and consequently I do not belong to the minority of people who are smokers. But I recognize that I do belong to some minority that can be forced to do or not do something. I recognize that it is to easy to be fined or jailed to punish noncompliance.

It is because it is so easy for the province or the federal government to over reach its legitimate authority; to strip us of simple freedom that we must stand together even when the outrage does not effect us directly. There is no topic to be left ungoverned. They will get around to telling you what you can and must do.