Defence of Honest but Mistaken Belief

In R v Johnson, the court had the opportunity to consider a defence of honest but mistaken belief: the defendant was caring for a Marijuana grow-op and, when police attended, advised that his boss had a license to grow marijuana at the residence. It was held that the defendant does not bear the onus of proving the reasonableness of the belief which, in this case, would mean reviewing the licence to ensure it existed. Rather, the onus was on the Crown to prove beyond a reasonable doubt that the defendant knew the boss did not possess a license. To find otherwise reverses the burden of proof.

Record Suspensions (Formerly known as Pardons)

Amendments to the Criminal Records Act (CRA) came into effect on March 13, 2012, resulting in changes to the pardon program’s name, eligibility requirements, and waiting periods, as follows:

The term “pardon” has been replaced with the term “record suspension”;

The waiting period for a record suspension has increased to 5 years for all summary conviction offences and to 10 years for all indictable offences;

Individuals convicted of sexual offences against minors (with certain exceptions) and those who have been convicted of more than three indictable offences, each with a sentence of two or more years, are now ineligible for a record suspension.

(Above taken from the Parole Board of Canada Website)

Many people are under the assumption that if you obtain a record suspension (formerly pardon) that you are able to freely cross borders, especially the United States border, and not have to declare that you have had a criminal record. This is not the case as many have found to their detriment.

A record suspension allows people to have their criminal record set aside within Canada federally to assist that person in obtaining employment or educational opportunities. Provincial and municipal criminal justice counterparts will generally restrict access to their records once they are made aware that a record suspension has been ordered.

It is, however, limited in that it does not erase the conviction, it only sets it aside. Should you re-offend in the future, and be convicted of similar or new offences, the record suspension can and will probably be rescinded and your prior record will be reinstated.

A record suspension does not guarantee you entry or visa privileges into another country. If travelling to the US, it is always prudent to carry the record suspension documentation with you. It does NOT, however, mean that the border agents will recognize it as such and you may be refused entry. If this occurs you will be required to obtain a waiver (in the US) or similar documentation from the country you are trying to enter before you will be allowed entry into that country.

Record suspensions allowed to former sexual offenders are flagged in CPIC (Canadian Police Information Centre) in order to conduct a vulnerable sector check should they apply to work or volunteer in such a sector.

Record suspensions, once accepted by the Parole Board of Canada, will take approximately six months for summary charges; twelve months for indictable charges; and twenty four months should they be considering refusing the application.

You do not need to apply for a record suspension if your charges were, dismissed, stayed, withdrawn, or you received either an absolute discharge or conditional discharge. Other remedies are available to expunge your record in these circumstances.

Contact us to assist in obtaining a record suspension or waiver to assist with entry into the United States.

Making Ontario Roads Safer Act – New Rules for Pedestrian Crossovers and School Crossings

On January 1, 2016, new rules pertaining to pedestrian crossovers and school crossings came into being, but with the new rules came confusion and questions.

When should you stop and allow a pedestrian to fully cross the road before moving forward?

The answer is at pedestrian crossovers that have the flashing lights overhead. At school crossings – the yellow walking signs. At any crossing, including intersection crossings, that are manned by a school crossing guard and the new pedestrian crossings that will be installed at roundabouts.

Only when pedestrians and school crossing guards are safely on the sidewalk are you permitted to proceed.

Who should stop?

These new rules include cyclists as well as drivers. Cyclists cannot proceed until the pedestrian has safely made it onto the sidewalk.


The fine for disobeying the new rules is between $150.00 and $500.00 and three demerit points. Fines are doubled if the offence occurs in Community Safety Zones.

What can pedestrians do to help keep themselves safe?

According to the Ministry of Transportation website, here are some guidelines and suggestions.

For pedestrians

Cross only at marked crosswalks or traffic lights.
Make sure drivers can see you before you cross. Make eye contact with the drivers.
Wear bright or light coloured clothing or reflective strips especially at dusk and night.
At a traffic light:
• Cross when traffic has come to a complete stop.
• Begin to cross at the start of a green light or walk signal.
• Do not start to cross if “do not walk” sign is flashing or the light turns yellow.
• Never cross on a red light.

For drivers

Always look for pedestrians, especially when turning.
Watch for children and drive slowly through residential areas, park areas and school areas.
Be patient, especially with seniors or pedestrians with disabilities.
Drive carefully near bus stops.
Pass buses with extreme caution and only where safe to do so.

More information can be found at the Ministry of Transportation Website including illustrations of which crosswalks and crossovers apply to the new rules as well as those that the rule does not apply. They can be found under the frequently asked questions section.

To Cooperate or Not to Cooperate; What are the consequences?

In December, 2015, the Court of Appeal of Ontario relaxed their judgement in R. v. Araya. The accused had been convicted of manslaughter. The ultimate issue to be decided at the Court of Appeal was whether the accused’s lack of co-operation with the police investigation was an aggravating factor on sentencing. There were three other suspects involved in the death of the victim, however, Mr. Araya refused to provide information to identify those assailants.

The Court held that an accused who co-operates with a police investigation is entitled to a mitigation of his sentence. However, an accused who does not co-operate is not subject to lengthier period of imprisonment; he simply does not get the benefit of mitigation.

This is a sensible decision for two reasons, as identified by the Court: (1) it reduces the possibility of false accusations and (2) it prevents an accused from repercussions for being a “snitch” in custody. Conversely, if the accused does not provide information he will not face the risk of an increased sentence.

Supreme Court of Canada Reinstates Longer Jail Term – Impaired Driving Causing Death.

The Supreme Court of Canada just released  R. v. Lacasse, overturning the Quebec Court of Appeal’s decision to reduce the sentence of six and a half years imprisonment to four years in jail. The Supreme Court restored the six and a half year prison term originally imposed by the trial judge for the accused who killed his two passengers while driving impaired and operating the vehicle at 130km/hour.

The Supreme Court directed appeal courts to be hesitant to overturn the sentence of the trial court unless the sentence imposed is manifestly unfit. The decision also reflects a trend in recent years of courts imposing lengthy periods of imprisonment in cases involving impairment and the death of passengers or other innocent parties

Warrantless Searches of a Condo Complex

In R v White, the Court of Appeal recently endorsed the trial judge’s finding that investigators overstepped constitutionally permitted boundaries in entering a condo building with a controlled entrance to make observations and gather evidence against a suspected drug trafficker. Police entered the condo on three separate occasions, hiding in a stairwell and entering the storage locker area to determine what the suspect had in storage. They also overheard conversations emanating from the condo in question. The police then relied on those investigative techniques to obtain a warrant to search the condo where they found a large stash of drugs.

The Court found that a condo owner does have a reasonable expectation of privacy in common areas of a condo building. In excluding drugs as evidence in the accused’s trial that were seized as a consequence of this investigation, the Court also commented on the fact that the investigator failed to advise in the application to obtain a search warrant that they had entered the building in violation of the Trespass to Property Act.

The Court of Appeal did comment that the above does not necessarily apply to tenants of a rental building, as they do not have an ownership interest in the dwelling. Other factors to consider are whether the entrance to a rental building is controlled by a locking mechanism, thereby restricting access to members of the public, and the number of units in a building, tenant rights of access etc.

This case is of interest because it captures the dynamic between a citizen’s right to privacy in their domain versus the police interest in investigating criminal activity. The more appropriate avenue would have been to continue to conduct surveillance on the accused in the community, and then apply for a warrant to search the condo.

Of interest is that the Court does not address whether possessing a property for the sole pursuit of criminal activity lessens one’s expectation of privacy in that dwelling.



E-bikes represent a cost-effective and environmentally friendly means of transportation.  Since October 2009 the government of Ontario has permitted the use of e-bikes on public roadways.  Despite the increasing appeal of these vehicles the public are confused about the law relating to e-bikes.  This article endeavours to provide general information to those individuals who, by the operation of the law, do not have drivers’ licences (or have suspended driver’s licences).

The law relating to e-bikes is complicated by virtue of overlapping federal and provincial jurisdiction.  Under the Criminal Code a motor vehicle is defined as:

“a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment”.

An e-bike constitutes a motor vehicle under the Criminal Code.

The Ontario government exercises its provincial jurisdiction by enacting and enforcing the Highway Traffic Act.  Under the Highway Traffic Act a motor vehicle is defined as:

“motor vehicle” includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine”.

The Highway Traffic Act definition of motor vehicle is much narrower than that under the Criminal Code.  Accordingly, the Highway Traffic Act expressly excludes “power-assisted bicycles” (also known as e-bikes) from the purview of “motor vehicle”.  The Highway Traffic Act and the accompanying regulations set out the requirements for operating an e-bike.  Where a person’s driver’s licence is suspended under the Highway Traffic Act that individual is prohibited from driving any motor vehicle for which a licence is required.  Consider the following simple example: Brian has a number of unpaid fines under the Highway Traffic Act.  As a result of these unpaid fines his driver’s licence is suspended.  Brian cannot operate a traditional motor vehicle (i.e. a car) because he does not have the requisite licence; however, there is no licence required to drive an e-bike.  Thus despite his Highway Traffic Act licence suspension Brian may operate an e-bike.

In contrast let us return to the Criminal Code: because of the broad definition of “motor vehicle” contained therein a person subject to a driving prohibition under the Criminal Code is restricted from operating an e-bike.  Consider this second hypothetical situation: John pleads guilty to impaired driving and is sentenced to a one-year driving prohibition.  A day later John discovers an advertisement: “e-bikes: you don’t need a driver’s licence”.  Many people, like the fictional John, have been confused and misled by such information.  It is true that you do not need a driver’s licence to operate an e-bike; however, John does not have a licence because it was suspended pursuant to a driving prohibition order under the Criminal Code (for impaired driving).  Pursuant to this order he cannot drive anything that qualifies as a “motor vehicle” under the Criminal Code, including an e-bike.

In summary if you have been convicted of a Criminal Code offence (dangerous driving, impaired driving, over 80, impaired care and control or over 80 care and control, etc.) and sentenced to a driving prohibition then you cannot operate an e-bike; however, if your licence is suspended under the Ontario Highway Traffic Act then you can legally operate an e-bike despite the suspension of your licence. 

If you have any additional questions or concerns about the unique facts of your particular case please do not hesitate to contact one of the experienced and knowledgeable lawyers at our firm.

There are safety and operator regulations for e-bikes.  Visit the Ministry of Transportation website for more information.


Should the spousal incompetency rule be extended to apply to common law spouses?

In the recently released decision of Nguyen, the Court of Appeal had occasion to consider whether the spousal incompetency rule applies to common law spouses. Despite the fact that individuals have a Charter protected right to be free from discrimination based on marital status, the Court determined that common law spouses are compellable witnesses for the Crown. This means that a common law spouse could be forced to testify against his/her spouse. It will be interesting to see if this decision is appealed to the Supreme Court. Consider it a small victory for marriage!

If the pants don’t fit, must you acquit?!

The Court of Appeal recently rejected an accused’s appeal against conviction in circumstances where police executed a warrant on Mr. Albert Brown’s residence and located a large quantity of cocaine. The investigating officer testified that a pair of pants that were found on the floor of the apartment could fit the accused; evidence which would tie him to the residence. The accused argued that the trial judge’s evidentiary finding on this point was unreasonable. Interestingly, the Court found that, in determining whether the trial judge’s finding was reasonable, the fact that Mr. Brown did not testify could be taken into account, as there was no innocent explanation offered to explain the existence of the drugs (such as that they belonged to another individual).

Denied Reasonable Bail Without Just Cause

The recently released decision in R. v. Doyon reinforces the importance of an accused being released from custody on reasonable terms after being charged with a criminal offence.

The accused was charged with impaired operation and over .08. She had no previous criminal record and was not on release for any other charges. She should have been released on an officer-in-charge undertaking and a promise-to-appear. However, because she lived in Quebec, the officer-in-charge erroneously concluded that she had to be held for a bail hearing. This meant that Ms. Doyon was detained in a jail cell and transported to a bail court to be dealt with by a presiding justice. This caused the accused to miss a business meeting that was scheduled for 8a.m.

Justice Borenstein, at trial, on application by the accused, granted a stay of proceedings under s.24(1) of the Charter of Rights and Freedoms. This means that the Crown is prevented from prosecuting her charges. The evidence presented at trial was that when she protested about being detained and asked why she couldn’t be released, her questions were ignored by the Staff Sergeant. At her bail hearing, the Crown characterized her simple questions to the Staff Sergeant as the cause of her detention (which is also not justifiable at law). The court took a very dim view of the Staff Sergeant’s conduct.

A far more common problem is accused persons are held for bail but do not have a hearing within the time-frame mandated by the Criminal Code. A stay of proceedings is an effective remedy available to an accused at trial to address these occurrences.