RSS FeedUttering threats
Disclaimer: I am not a lawyer (I am a law student). The text below contains only my understanding of the applicable law. It has nothing whatsoever to do with your particular situation. Do not assume you can make any decisions based on this text. I do not intend this text to apply to anyone’s situation. This text is not legal advice. I am not qualified to give legal advice anyway. The purpose of this text is to encourage debate and create awareness of certain criminal offences. Please consult a lawyer if you need legal advice or help with your particular situation.
Watch your mouth. Your mom or buddy told you this in high school when you blurted out something stupid or offensive. But it’s also what the law tells you now with all its authority and with all its might. Freedom of speech is not absolute, and for some speech, the law will put you in jail. It is a crime, for example, to make death threats or to promise to injure someone or to burn someone’s house. In 2009, at least two high-profile stories of prosecution for uttering threats hit the papers. The father of baby Kaylee was charged with threatening death and causing damage in September, and the sister of Toronto’s deputy mayor was charged with threatening death in April. The potential punishment is up to five years in prison. And if you are not a Canadian citizen, they can kick you out of the country. The law may come crushing down on you if you “utter threats,” so how does it work, exactly?
Section 264.1 of the Criminal Code defines the crime and the punishment for uttering threats. If you threaten anyone with death or “bodily harm,” you can get up to five years in prison. If you threaten to harm anyone’s property or animal, you can get up to two years in prison. The courts have said that you don’t need to be violent, to slap anybody on the face, to step on a dog’s tail, or to punch anybody’s car to commit this crime. Words are enough. Of course, if you jokingly yell “I’ll kill you!” and chase after your best friend who kicked you during a ball game, the law is not interested. You must intend to intimidate when you make your threats. You must want the other person to take your words seriously. But the victim does not need to understand or even know about the threat. All the Crown must prove when they haul you to court is that you “uttered the threat.” Even if you threatened not a specific person but a member of a race or a religion or some other group of people, you can be convicted.
A special warning to those who are not Canadian citizens. The government can deport you for certain crimes, and the law may ignore how long you lived in this country. They can kick you out even if you are a permanent resident and you lived here for 50 years. Uttering threats is one such crime. Under section 36(2) of the Immigration and Refugee Protection Act, the government can tell you to leave Canada, if you are a permanent resident and you were sentenced for any crime to more than six months of imprisonment. Uttering threats fits the bill because you can go to prison for up to five years. If you are not a permanent resident but just a visitor, a foreign student or worker, etc., it’s even easier for the government to expel you. Even if you don’t go to jail for uttering threats, the conviction alone is enough for deportation. Words can cost you dearly.
Most people are not criminals, and you can even say that it’s not that easy to commit most crimes. But some crimes are crimes of mere words with severe punishment in prison. There is no freedom of speech for these words. If you tell someone that you’ll kill them, or that you’ll cut their balls off, or that you’ll burn their house, or that you’ll kill their parrot, or that you’ll stab their tires, you can go to prison. If you are not a Canadian citizen, they can also throw you out of Canada. So know the law and watch your mouth.
Student-teacher love can be a serious crime in Canada
Disclaimer: I am not a lawyer (I am a law student). The text below contains only my understanding of the applicable law. It has nothing whatsoever to do with your particular situation. Do not assume you can make any decisions based on this text. I do not intend this text to apply to anyone’s situation. This text is not legal advice. I am not qualified to give legal advice anyway. The purpose of this text is to encourage debate and create awareness of certain criminal offences. Please consult a lawyer if you need legal advice or help with your particular situation.
Our society is obsessed with sex. Not just in a dirty sense. We are probably as much into sex as we are afraid of it, and one proof of our fear of sex is in the criminal code. Sexual assault, sexual interference, sexual exploitation, invitation to sexual touching are serious crimes in our legal system. We want to punish sexual offenders because we want to protect ourselves and especially our women and children. Traditionally, the predators have been men, but more and more often the police arrest women for sexual crimes. I wrote about a case in Georgia where a trial court gave a female teacher ten years for a mutual love affair with a girl-student. The girl reached the age of consent but the court ignored it because the older woman was her teacher. A few days ago, an Ontario judge sentenced a female teacher for a love affair with a student. If the older women didn’t plead guilty, this case would be almost identical to the case in Georgia, except for the brutally harsh sentence. But the intricate details of the Ontario case are different enough to make this story a lesson for all adults—not just for teachers.
Habeas corpus
Province pays $2,000 each to nine denied prompt bail hearings
The raid was meticulously planned and involved some 1,200 officers, but organizers overlooked one salient factor – ensuring Toronto’s bail courts were prepared for the crush of detainees.
“My views on the abortion issue are complex. I don’t fall into any of the…polar extremes on this issue”
This statement summarizes the personal attitude that Prime Minister Stephen Harper takes on “the abortion issue.” This was during the 2006 election campaign, at a time when the Liberals raised alarm over the Conservatives’ position on abortion. Again, in 2008, with a minority government reportedly at the brink of dissolution, Canadians are witnessing the same limited and polarized discussion (see the recent Dion challenge to Harper here).
An event that enlivened the debate on abortion was the recent appointment of Dr. Henry Morgentaler to the order of Canada. This created so much controversy that Chief Justice Beverly McLachlin was subject to a complaint for chairing the Advisory Council, which recommended Morgentaler to the order. The current discourse on abortion in Canada can be summarized as confrontational rhetoric between pro-life and pro-choice, that is, the right to life of a fetus and the individual right of women to their bodies. While this discussion would have been relevant in 1988; the year Morgentaler and fellow doctors won their case that struck down section 251 of the Criminal Code, today, we might as well contemplate Mr. Harper’s ambiguous statement for what it could mean, not in relation to Mr. Harper or Mr. Dion’s political scores but to the interested persons (used loosely) involved.
The reaction to the Morgentaler affair today is also about how we make law. Canada still has no laws regulating the practice of abortion. This is an outlook that not even the Supreme Court intended in R. v. Morgentaler, [1988] 1 S.C.R. 30. In a 5-2 decision with four separate judgments, the majority merely agreed to strike down section 251 of the Criminal Code. The 1969 Abortion Law required the assent of three members of a therapeutic committee in an accredited hospital to deem the abortion necessary if it would likely endanger the woman’s health or life. Morgentaler’s defense suggested this law infringes on women’s right to freedom of conscious and religion, 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, not to be subjected to any cruel and unusual treatment or punishment, to be equal before and under the law and to equal protection and benefit of the law without discrimination. The constitutional questions before the Supreme Court were the following:
1. Does section 251 of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?
2. If section 251 of the Criminal Code infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is s. 251 justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
3. Is section 251 of the Criminal Code ultra vires the Parliament of Canada?
4. Does section 251 of the Criminal Code violate s. 96 of the Constitution Act, 1867?
5. Does section 251 of the Criminal Code unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?
6. Do sections 605 and 610(3) of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Charter?
7. If sections 605 and 610(3) of the Criminal Code infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d) 11(f), 11(h) and 24(1) of the Charter, are ss. 605 and 610(3) justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
Indeed, Dickson C.J. and Lamer J found the impugned law in violation of the right to security of the person and that it cannot be saved by meeting the procedural standards of fundamental justice. The procedural requirements to section 251 of the Criminal Code were also found to put women’s health at risk because of delays in obtaining the assent of the therapeutic committee, lack of guidelines and availability of accredited hospitals. Beetz and Estey JJ. found that the means to protecting the foetus did more harm than was proportional to the good and thus failed the “reasonable limit clause” test under the Charter. The five judges, including Bertha Wilson – who provided the most comprehensive defense to women’s physical autonomy – did not provide a right to abortion, nor was there a suggestion that another regulatory law cannot necessarily meet constitutional standards.
Three attempts were made by the government of the day to respond to the Supreme Court reasoning, but failed. Our political representative did not go beyond the Supreme Court’s ruling that abortion was not unlawful. And that summarizes the state of the law today and how we got there. The disquiet, outrage and complaints over the law surrounding abortion when no legislation exists in Canada is not surprising. The surprising aspect however, is the oversimplification of the issue that is reduced to the question of to abort or not to abort and summarized in the person of Dr. Morgentaler. Meanwhile, other relevant and broader debates on child rearing responsibility, welfare, health care, affordable housing, shelters, mental health, access to higher education, job parity and minimum wage – all of which deal with structural reforms that may reduce the number of abortions without robbing women the right to choose, are not tackled.
Criminal law can do so much to create a good society and the courts can go only so far in shaping social practices and norms based on a single case. Nearly two decades after the Supreme Court ruling, that single case continues to dominate and limit the discussion. Maybe the ambiguity in Mr. Harper’s statement is not to divert but to point out that the complexity of the issues involved in the act of abortion does not just fit in the current debate on abortion; and that is worth contemplating.
Cross-posted from The Court.
Problems with New Impaired Driving Legislation
As part of my series on the Tackling Violent Crime Act, I’d like to discuss the new changes to the drunk driving provisions of the Criminal Code.
The need for reform
To begin, the extent of the drunk driving problem is put into perspective when the latest statistics (from 2005) show that there have been over 1,200 impaired-driving related fatalities across Canada. According to Professor Robert Solomon, a law professor at the University of Western Ontario and a representative of MADD Canada, drunk driving is “the No. 1 criminal cause of death in this country.” And that’s to say nothing of non-fatal injuries and property damage caused by people deciding to get behind the wheel when they’ve had too many to drink.
Thus, a significant number of amendments in the new legislation deal with impaired driving. The perception (and indeed, probably the reality) was that a lot of drunk drivers were using legal loopholes to escape convictions. As one defence lawyer, a specialist in impaired driving cases (who shall remain nameless), once told me:
“drunk driving is one of the few offences in the Criminal Code where you really can just throw a lot of money at the problem and have it go away. A good lawyer can nearly always find some screw-up on the part of the cops in order to get their client off.”
Unlike most other crimes, drunk driving prosecutions typically rest on a single piece of evidence: the breathalyzer test results. The tests basically have to be perfect; they are challenged if the machine isn’t correctly calibrated, if the operator wasn’t specifically trained for them, and so on. The slightest irregularity can be fatal to the prosecution. These tests could also be challenged by other evidence tending to suggest that the machine’s results were wrong.
Acquittals were also often the result of Charter breaches on the part of the police. Breath test evidence has been routinely excluded if an accused was not properly informed of the reasons for their detention under section 10(a) of the Charter or their right to counsel under section 10(b), for example.
Paul Moreau, a criminal lawyer in Edmonton, explains that:
“impaired driving is a very technical type of offense. The police are required to do certain things in a certain order within a certain time frame. Certain documents are required and they have to be filled out correctly. Any part of the process that is done incorrectly may provide a defense to the person charged with that crime. So part of my function is to analyze what the police have done and see whether they have done it correctly. If they have not, then the person may very well have a good defense.”
The public perception is that these acquittals are based on trivial technicalities. Others argue that protection of our constitutional rights demands high scrutiny of police action. Recently, the Ontario Court of Appeal has said that:
“Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.”
(R. v. Nguyen, 2008 ONCA 49, at para. 21)
The government has the unenviable challenge of balancing the need to protect the public from drunk drivers and the need to defend civil liberties. Consistent with their purpose as the guardian of our rights, Canadian courts have been strictly interpreting our drunk driving legislation in favour of civil liberties, even when it has led to seemingly absurd outcomes.
In a high-profile case last month, the Ontario Court of Appeal upheld Margaret Trudeau’s acquittal on a drunk driving charge. Ms. Trudeau was found to be driving with a blood alcohol level of 0.107. She was acquitted on the grounds that her rights were violated when she was told that no one answered the phone when the police placed a call to her lawyer. Instead, the police should have told her that an answering machine had picked up the call. Ultimately, Trudeau did manage to contact a lawyer, but it was not her first pick.
Trudeau later publicly stated that:
“I shouldn’t have got off. I was over the limit…”
Statements like this have done nothing to allay the public’s concerns about drunk driving in the criminal justice system.
The truth is that there is actually a high conviction rate for impaired driving. Statistics Canada’s numbers for 2005/06 show that of 43,444 decided impaired driving cases, 33,983 resulted in a conviction. That is a 78% conviction rate – the highest rate for any criminal offence category studied by StatsCan. However, the public perception does not accord with these figures. A poll of over 2000 Canadians found that:
“most respondents didn’t think our courts make drunk driving charges stick. One in four thought less than 25 per cent of charges result in convictions. Only one in 10 correctly answered that over 75 per cent of charges result in convictions.”
Regardless of the disparity between the public perception of conviction rates and the actual conviction rate, the reality is that many drivers, exemplified by Margaret Trudeau, who were most definitely drunk behind the wheel have been going free. This was a pressing problem and legal reform was necessary to address it.
I take issue, however, with the extent of those changes. I think the government has gone too far in abrogating civil rights in favour of cracking down on drunk driving. Indeed, I think that many of the new Criminal Code provisions will be successfully challenged under the constitution.
Why bother cautioning the accused?
Take the following example:
“the result of an analysis of a sample of the accused’s breath, blood, urine or other bodily substance – other than a sample taken under subsection 254(3), (3.3) or (3.4) – may be admitted in evidence even if the accused was not warned before they gave the sample that they need not give the sample or that the result of the analysis of the sample might be used in evidence;”
(Criminal Code, s. 258(1)(b), as amended)
Previously, an accused could argue that they were not properly cautioned before taking the breathalyzer test, and thereby have the evidence excluded. The correct solution to this problem was a simple one: train the officers to give a proper caution! Instead, the government seems to have decided that one’s rights are unimportant in the context of drunk driving. Since the police can now get away with not cautioning the accused, we can expect that they’ll simply never give an appropriate warning; why bother?
Expanding the scope of police powers
Another example of the Criminal Code amendments:
“If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to [accompany the officer for sobriety testing and/or breath testing].
(Criminal Code, s. 254(2), as amended)
The addition of the “preceding three hours” requirement now means that a police officer can basically detain you at random and require you to provide a breath sample. All the officer needs is a reasonable suspicion that you’ve sat in the driver’s seat of a car within the past three hours. Forget about whether you’ve actually driven the car. It doesn’t even matter if the engine was ever on.
If an officer believes that you sat in a driver’s seat while under the influence of drugs at any time within the last three hours, he/she now has the power compel you to undergo a breath test, a blood test, a urinalysis, or an oral swab as required to check for the presence of drugs in your system. Regardless of whether the charges would ultimately stand, the police have legal authority to engage in random detainment and drug testing. Whereas before, this power was probably practically limited to the roadside, the three hour requirement now means they can detain and test a suspect just about anywhere.
Mandatory minimums
Additionally, mandatory minimum incarceration periods for impaired driving have been increased (Criminal Code, s. 255(1)(a), as amended). For a second offence, the penalty is a guaranteed 30 days in jail, up from 14 days. For a third offence, it’s a minimum incarceration period of 120 days, up from 90. (Note: I will be discussing mandatory minimum sentences in greater depth at a later date, since I think I could devote an entire post to them.)
The all-knowing machine
As explained above, drunk driving prosecutions rest disproportionately on a single, fallible piece of evidence: a certificate of analysis from a breathalyzer test.
But even assuming the device is being used properly, the machine suffers from many documented problems. For example,
“The Intoxilyzer is designed to produce a breath alcohol result exactly corresponding to a simultaneous blood alcohol sample. The problem is the assumption that the partitioning of alcohol from the blood into the breath is 2100:1. Not all persons partition alcohol from their blood based upon this ratio. Studies show partition ratios as low as 834:1. The Intoxilyzer 5000 will overestimate the alcohol concentration of someone blowing with a partition ratio less than 2100:1.”
Despite having an established error rate of between 10% and 30%, courts have upheld the use of breathalyzers because their results must be considered in light of other evidence:
“In State v. McCarty 434 N.W.2d 67 (S.D. 1988), the court ruled that a statutory declaration that the partition ratio is 2100:1 did not create an unconstitutional irrebuttable presumption. The defendant had a BAC of 0.14% based on a breath test. At the trial, the defendant raised issues concerning the reliability of using a partition ratio of 2100. At trial, the jury was instructed in language identical to statutory construction that BAC shall be based on either alcohol concentration in blood or breath. The court acknowledged that this ratio can vary from 1142 to 1 to 3478 to 1; it even quoted an expert on the artificial rigidity of mandating a partition ratio of 2100 to 1. While admitting that the jury instruction was improper, the court said that it was cured by another instruction which stated that presumptions created by statute are inconclusive, and must be considered a part of the total evidence presented at trial. Therefore, there was no irrebuttable presumption of guilt by the state.”
However, the government has now placed almost total faith in the all-knowing machine, which is hailed as an “objective” measure of an accused’s level of intoxication:
“evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was … the concentration determined by the analyses.”
(Criminal Code, s. 258(1)(c), as amended. Emphasis added.)
The only challenge to this “conclusive proof” is where the defence can show that the machine was malfunctioning or was operated improperly. Of course, it’s fairly difficult to demonstrate this where the machine is in the possession of the police and cannot be properly inspected.
Previously, defence counsel could bring “evidence to the contrary” to show that the breathalyzer reading must be wrong. For example, a witness could testify that he was at the bar with the accused all night, and that the accused only drank one beer. Now this defence has been severely curtailed by the legislature:
“for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of
(i) the amount of alcohol that the accused consumed,
(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or
(iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;”
(Criminal Code, s. 258(1)(d.1), as amended.)
Professor Solomon has rightly complained that the evidence to the contrary defence has been used “completely inappropriately” by defence counsel. Nevertheless, section 258(1)(d.1) goes too far by completely nullifying the availability of the defence.
Yes, there will be unscrupulous defence lawyers. And yes, there will be witnesses who lie. But it is the role of the judge (or jury) to weigh the evidence and conclude whether it should be considered or not. This is a challenging job, but judges are relied on to do it every single day in this country. It should be up to a judge to decide whether a witness is lying or whether the defence’s argument is sound.
The statutory elimination of the evidence to the contrary defence represents a serious infringement of the presumption of innocence. The “conclusive” nature of breathalyzer evidence means that by the time the accused reaches trial on account of failing the breath test, their fate is predetermined. In essence, the judge in impaired driving cases is being replaced by a machine that is “objectively” deciding who is guilty and who is not. By depriving the accused of the ability to introduce relevant and non-prejudicial evidence at trial, the legislature is seriously curtailing that accused’s fundamental right to make full answer and defence to the charges:
“This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice … The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.”
(R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 336.)
Legitimately innocent people will be caught in this new net. No matter how severe the problem of drunk driving, depriving an accused of the right to make full answer and defence simply cannot be justified.
New “Tougher” Criminal Laws Now In Effect
It appears that law students are going to have to buy an updated Criminal Code for next year.
The Harper Conservatives’ new “get tough on crime” legislation comes into full force today.
The Tackling Violent Crime Act creates a number of amendments to the Criminal Code and associated statutes.
Among the highlights of the changes are:
- stiff mandatory minimum sentences for serious gun crimes.
- stronger Peace Bond (similar to a restraining order) provisions.
- tougher penalties and more police enforcement mechanisms for drunk/high driving
- an increase in the age of consent from 14 to 16 years.
I personally have a lot of problems with this new legislation. Over the next few days, as time permits, I’ll be posting some criticisms of the Tories’ so-called “tough on crime” policies and I’ll be discussing how they create greater injustice in the criminal system.
Podcast Feeds
Awards
Partners
- Advertise Here
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
The Whiners - The Elusive Fish Creative Services
- Mesothelioma Lawyer
- no win no fee solicitors
- Compensation Claims
- personal injury lawyer toronto
- no win no fee
- Pardons Canada Accident Claim Medical Negligence Whiplash Claim
- No win No fee Claims
- Venue
-
-
-
-
-
-
-
-
-
-
-
-
