February 3rd, 2012
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This is part one of a two part blog entry where I will be talking about breaches, or specifically the criminal charge of failure to comply with recognizance or undertaking (s. 145 of the Criminal Code) and failure to comply with probation (s. 733.1 of the Criminal Code). Other types of breaches, such as a breach of a conditional sentence order, are beyond the schope of these blogs.
When an individual is released after arrest or placed on probation the court will impose conditions on them. The actus reus of a breach involves non-compliance with one or more of these conditions. Release conditions may include non-contact with the complainant or any other parties the court deems appropriate (contact includes any contact including electronic contract such as text or Facebook messages), a boundary restriction, a curfew or house arrest, a requirement to seek counseling, etc. A probation order may contain conditions similar to a release order in addition to two statutory conditions to keep the peace and be of good behaviour (this condition may also be present on a release order although its appropriateness is a matter for debate) and to report to the court when required to do so.
The seriousness of a breach allegation, like any criminal offence, depends on the circumstances surrounding its commission. For example, a court may view a breach of a non-contact order much more seriously than a curfew breach (of course this would depend on the nature of the curfew breach) as such a breach could suggest a threat to the safety of the complainant.
Most breach allegations would not normally be criminal offences but-for the court order. The main exception to this is the term to keep the peace and be of good behaviour. Generally speaking a charge for breaching this term will be laid if an individual is arrested for a new criminal offence (although I suppose an argument could be made that one could not have committed an actual criminal offence but still not be keeping the peace and being of good behaviour; for example they may have contravened another Act or simply be behaving inappropriately but still not committing a criminal act) as the new criminal behaviour would put them in contravention of the condition. Another example is where there is a term to not be in possession of any illegal drugs and the individual is found in possession of an illegal drug and is subsequently charged with a breach and an offence under the Controlled Drugs and Substances Act.
Courts take breaches of their orders very seriously. This makes sense as court orders need to have an element of enforceability to them; if breaches weren’t criminal offences then there would arguably be little reason to follow the terms of a court order. Having even one breach on one’s criminal record may also make it difficult for them to be granted bail in the future as they now have a history of non-compliance with court orders. It is for this reason that individuals charged with a breach should be reluctant to plead guilty to the charge. These charges can often be hard to prove and, in many cases, the potential consequences of being successful at trial may not differ greatly from pleading guilty.
Part 2 of this discussion will focus on what the Crown needs to prove for an individual to be found guilty of a breach.
This blog post was written by lawyer Adam Goodman. Adam is a criminal lawyer in Toronto who blogs regularly about legal subjects. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.
January 27th, 2012
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Over the past year or so the law society has instituted a group discount for their CPD programs. There are various discounts based on the amount of people signing up together but can be as high as 50% off if 11 or more people register. The LSUC expects one payment for the entire group. I have already put three groups together for various programs including the solo and small firm expo, the search warrant program, and the recent six-minute criminal court Judge program.
The one issue with these discounts is that they tend to favour those practicing in larger firms and those working in larger centers. With the assistance of the Criminal Lawyer’s Association Listserv I have had no problem putting groups of people together. Without this resource, however, it would have been much harder. Additionally it can become a fair amount of work to gather people’s sign-up information and collect money. Larger firms have the support resources available to get this work done, not to mention many lawyers who may be interested in attending the program.
When I put together a group for the solo and small firm expo a few of those who signed-up pointed out the irony. The expo is meant to focus on those practicing as solo-practitioners or in small firms but the law society was providing a discount to those who signed-up in larger groups.
When push comes to shove, however, I don’t really mind putting the groups together. I like getting the air miles.
This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.
January 26th, 2012
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I expect this post will be useful to lawyers and law students. It’s based on a presentation given by Justice Dianne Oleskiw as part of the Six-minute Criminal Court Judge program I attended this past weekend. Her Honour has been on the bench for about two years so was the perfect presenter. She made good use of her six minutes and provided tips that I would say are useful for appearing before any Judge, no matter if it’s their first day on the bench or if they’ve been sitting for over 25 years.
Justice Oleskiw provided six tips (I have added in my own commentary as well):
1. Introducing yourself builds credibility. A Judge who is referring to you as counsel probably doesn’t know your name so it would be best to mention it at that point. Although in court I will be called Mr. Goodman I personally like to introduce myself using my first name. It just seems much more personable to say “Good morning Your Honour it’s Adam Goodman for Mr./Ms. [client's name]” as opposed to the more formal “Goodman, initial A”.
2. Provide help to the Judge if asked to do so. It is quite possible a Judge may be unfamiliar with an area of the law or case you are speaking about. By educating the Judge you will be assisting in the decision making process. More is better than less. I would also note that you should be correct and not misstate the law and if their is conflict on a point be sure and point that out to the Judge.
3. Be on time for court. If you happen to be late, apologize.
4. Be accurate with the evidence. Do not state something with confidence unless you are 100% certain. In cases where you are uncertain then say that and defer to the Judge’s recollection. I have no doubt that even one error in stating the evidence will make you much less credible. It can be very difficult to take notes during a trial, especially while conducting a cross-examination, so I can’t see many Judges being upset if you do not exactly recall an evidentiary point as long as you are honest about it.
5. Be civil with everyone in the courtroom and do not demean others. While I try and get along with everyone there will be times when I don’t see eye to eye with another party, particularly a Crown Attorney. It is important to never let this difference of opinion become personal and for the Judge to see this. I would note that this civility rule must also apply to all court staff.
6. Formulate a vision of what the judgment should look like and be sure to address the strengths and weaknesses of your argument.
Becoming a good courtroom advocate is not an easy feat and can take years and years of practice. The tips above are quite obvious yet are ones that many lawyers (in fact I would say most lawyers) will often forget. Hearing them come directly from a Judge really drove the point home about how important these small and simple things can be in making a competent and effective courtroom presentation.
Do you have any tips for appearing before Judges (either new or with many years experience)?
This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.
January 24th, 2012
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The purpose of the Justice on Target (JOT) initiative was to clear court dockets and reduce wait times for trials. No doubt the goals were lofty ones but they should be achievable. According to this story from CBC, the province is not meeting its target.
Many of the JOT initiatives I have seen in GTA courthouses have been good ones, although it would be nice if there was some uniformity while still keeping in mind that different things may work in different courthouses. In my mind, however, JOT does not address the key issue in that there are a lot of charges in Ontario courtrooms that just don’t need to be there.
In British Columbia there is a system in place whereby the Crown will approve of charges before they are laid. In Ontario the police will lay a charge (in fairness they may consult with the Crown on more serious matters) and the file often will not get to a Crown Attorney’s desk until around the time of the first court appearance. Instead, why not have the police consult with a Crown and avoid the need for certain charges in the first place?
The other reality is that many charges go to trial that could be resolved by way of some form of alternative measures. The problem is that the Crown only offers alternative measures in the most minor of cases. If such an offer is not on the table then in many cases there isn’t much to lose by taking a case to trial. By doing this the accused person may be able to avoid a finding of guilt and criminal record. Instead, some sort of alternative measures program can be arranged that is able to provide a meaningful sanction to the charged person without having to go through an actual trial and the time and expense that goes with it.
This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.
January 23rd, 2012
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This weekend I attended the Six-Minute Criminal Court Judge downtown at Osgoode Hall. This is an annual program put on by LSUC and chaired by Justice Bruce Durno that features a number of different Judges of various levels of court making six-minute presentations on many different topics. LSUC offers a number of different “six-minute” programs. The other one of interest to criminal lawyers is the Six-Minute Criminal Defence Lawyer offered in the spring.
Presentation topics spanned both substantive areas of law and useful tips in practice. They included such things as sentencing submissions under the YCJA (Justice Miriam Bloomenfeld), how to effectively use judicial pre-trial conferences in the Superior Court of Justice (Justice Michelle Fuerst), arguing or opposing Khan and KGB applications (Justice Mara Greene), the restraint principal in sentencing (Justice Melvyn Green), guilty plea instructions and the legal requirements to strike a guilty plea (Justice John McMahon), dealing with mandatory minimum sentences (Justice Renee Pomerance), preparing for a bail hearing (Justice Faith Finnestad), appearing before a new Judge (Justice Dianne Oleskiw), conditional sentence breach hearings (Justice Shaun Nakatsuru), credit for pre-trial custody (Justice Paul Taylor). By the end of the program 22 Judges had spoken on various topics.
The six-minute format is definitely a nice way to learn. It forces the presenters to be brief and get to the point (something many of the Judges joked about) and also recognizes that one can only pay attention to any speaker for a limited amount of time before losing focus. I now have a basic overview of a number of different topics that may come up in my day to day practice (obviously when they do come up I will do more thorough research into the relevant issues). I expect this will be very useful.
This blog post was written by lawyer Adam Goodman. Adam is a criminal lawyer in Toronto who blogs regularly about legal subjects. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.
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