The charter motion below is one that I successfully presented in order to secure an acquittal for my client in November of 2015.

The arresting officer was informed by my client to having consumed his last alcoholic beverage 10 minutes before his arrest. Having received this information, the arresting officer must ensure that at least 15 minutes have elapsed before performing a roadside Breathalyzer test in order to allow residual mouth alcohol to dissipate.

APPLICATION FOR EXCLUSION OF EVIDENCE BY VIRTUE OF SECTIONS 8, 9 and 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

TO ONE OF THE HONORABLE JUDGES OF THE COURT OF QUEBEC OF ST-JEAN-SUR-RICHELIEU, THE PETITIONER RESPECFULLY EXPOSES THE FOLLOWING: 

1. May 25^th, 2014, the petitioner was charged with following accusation:     

On or about May 25, 2014, in Saint-Bernard-de-Lacolle, distrcit of Iberville, did operate a motor vegicle, having consumed alcohol in such a quanity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millileters of blood, committing thereby the offence punishable on summary conviction provided by sections 253(1)b) abd 255(1) of the criminal code.

2. Officer C, #13347 mentions having seen the petitioner driving in the opposite direction of traffic in the exit at km 6 of the 15 North highway. The officer and her partner Officer Gravel #6151 decide to intercept the petitioners’ vehicle. No time of interception is specified.

3. Officer C mentions having a conversation with the petitioner who allegedly informed her that he took the wrong turn. She then mentions having smelled alcohol from inside the petitioner’s vehicle as well as noticing that his eyes were bloodshot.

4. Shortly after, Officer C claims to have asked the petitioner to provide his driving documents, which according to her, were given without any difficulty.

5. Officer C claims to have asked the petitioner whether he had consumed any alcohol, to which she claims he replied “ two beers”.

6. Following this statement, Officer C states having summoned the petitioner to exit his vehicle and follow her to the patrol car in order to verify his ability to drive. 

7. At 2:10 am, according to officer C, the petitioner was placed inside the police patrol car. Officer C claims to have smelled alcohol from the petitioner’s breath as well as noticing that his eyes were red.

8. Officer G states in her personal notes that petitioner mentioned at 2:10 am having consumed his last beer “about 10 minutes ago”

9. According to both officers C and G, the petitioner was read the order to provide a breath sample in an approved screening device at 2:11 am.

10. At 2:15 am, officer C reports having been provided a suitable breath sample with result “Fail”. It is worth noting that the time noted in officer G’s notes appears originally as 2:11 am and is crossed out to indicate 2:15 am.

11. The petitioner claims that his right to be secure from unreasonable search and seizure as stated under section 8 as well as his right not to be arbitrarily detained or imprisoned under section 9 the Canadian charter of rights were violated for the following reasons:

12.  When officer C asked the petitioner to exist the vehicle, she does not inform him in any way of the reasons for which she is asking him to exit the vehicle. There is no section in the criminal code permitting an officer to make a defendant exit a vehicle and in the circumstances this amounts to a violation of section 10 of the Charter.

13. By asking the petitioner to exit his vehicule and ordering him to enter the policer patrol car, the petitioner was mobilized against himself and it is during this unlawful detention that he was summoned to provide a breath sample for the roadside test. This amounts to unreasonable search and seizure by virtue of section 9 of the Charter.

14. Give the information officers C and G allegedly received at 2:10 am from the petitioner to the effect that he had consumed alcohol 10 minutes ago, the roadside test was more than likely to have been administered within the 15 minutes following the last consumption of alcohol. According to the leading Supreme Court decision of Bernshaw on the matter, the screening device result is known to be unreliable if it is administered within 15 minutes of the last drink consumed by the suspect. The officers have the obligation to delay the road side test until the possibility of an erroneous result be eliminated.

15. The police conduct in this matter constitutes a serious violation of section 8 of the Canadian Charter of Rights.

16. The admission of the evidence discovered by the police would put the administration of justice into disrepute. 

FOR THESE REASONS MAY IT PLEASE THE COURT:

GRANT this petition.

DECLARE that the petitioners right to be secure from unreasonable search and seizure as stated under section 8 of the Canadian charter of rights was violated

 EXCLUDE the evidence obtained from the unreasonable search by virtue of section 24(2) of the Canadian charter of rights and freedoms

Signed at Montreal

March 20TH, 2014

                                                                                                 __________________

                                                                                                ZAYID AL-BAGHDADI                                                                                                     Attorney of the Petitioner

Cases cited:

R c. Parenteau-Rondeau, 2013 QCCQ 13479 (CanLII)

R. c. Lalonde, 2004 CanLII 17215 (QC CS)

R. v. Bernshaw, [1995] 1 S.C.R. 254

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As indicated on the RCMP website, here are the grounds in which a request may be denied. The highlighted sections are cases in which the RCMP grants itself permission to keep fingerprint records on file despite non-conviction.

Compelling Reasons to Deny a Request for Destroying Non-Conviction Information

Non-Conviction Policy

The RCMP’s Records Suspension & Purge Services may deny an application to destroy a non-conviction record if one or more of the following conditions apply:

• Applicant was not an adult relative to the charge as defined within the Youth Criminal Justice Act.
• Applicant has a criminal conviction on file within the National Repository.
• Applicant has an outstanding criminal charge before the courts.
• Appeal period has not expired for a non-conviction record relating to an Acquittal or a Dismissal.
• One year has not elapsed for a non-conviction record relating to a Peace Bond.
• One year has not elapsed for a non-conviction record relating to a Stay of Proceedings.

In addition to the above conditions, a non-conviction record will be retained for a minimum of five years from the date of the court decision if the charge related to:

• High treason or treason
• Potential terrorist activity
• First and second degree murder
• Manslaughter
• Aggravated assault
• Sexually-based offences

The non-conviction record will also be retained for a minimum of five years in cases where the individual is found not criminally responsible due to a mental disorder.

Requests to have the above records destroyed within the five-year period should be supported by additional information, such as Crown proceedings, police services records, and/or court documents.

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This question which has been asked in several reported decisions in this past decade suggests two schools of thought and has yet, in my view, a conclusive answer.

The interpretation of s. 723(3)

Section 723(3) of the Criminal Code reads as follows:

(3) Production of evidence — The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.

The  interpretation of the word ” production” in conjunction with the french translation ” présentation ” suggests that such pieces of evidence must already exist in order for them to produced or presented.

Judge Trueman of the B.C Provincial Court interprets section 732(3) in R v. Gray (2002) as follows:

“Section 723 (3) is very much like Section 721 (4). I find that both of these sections relate to information that is already in existence. I interpret these sections to mean that I cannot order the creation of a body of evidence, but I can order that evidence which already exists be produced to the court.”

Given this interpretation, a judge cannot therefore order the  production of a new body of evidence, but only that of evidence that already exists in order to assist the court at the sentencing stage.

In R v. O’Neill (2002) BCSC,  the same interpretation of section 721(3) is rendered. The crown in this matter requested the preparation of a psychiatric report in the framework of a dangerous offender designation. The crown had abandoned its request under section 753 but wished nevertheless to use the psychiatric report that was already prepared for the sentencing hearing. In addition, the crown had requested that the court order Mr. O’Neill to undergo a new evaluation by virtue of section 723(3).

The request was partially granted, allowing the crown to use an amended report that excludes an mention of the accusations for which Mr. O’Neill was acquitted. With respect to the request for a new evaluation under section 723(3), the court deemed the request unfounded given the lack of any reference to Mr. O’Neill suffering from any mental health issues during his trial.

In R. v. Gettliffe-Grant,(2006) BCSC the judge  found that the Court did not have jurisdiction to order a psychiatric assessment for the general purposes of sentencing. Justice Koenigsberg interprets section 723 comparatively with other sections of the criminal code and states the following:

When one considers the profound invasion of privacy engaged by a non-consensual psychiatric assessment, the very limited and circumscribed circumstances in which a court may order one pursuant to the Criminal Code is not surprising.  To underscore my conclusion that neither s. 721 nor s. 723 purport to confer jurisdiction to allow such an invasion of privacy, one need only compare the specificity of the provisions allowing an assessment in s. 672.11 and thereafter, with the general, broad, and non-specific provisions relied upon by the Crown.

Alternative Procedural Methods

Are there other procedural methods which permit a judge to order such a psychiatric evaluation for sentencing purposes? In R v. Lenart ( 1998) Judge Finlayson of the Ontario Court of Appeal confirmed for the majority that a psychiatric assessment order under section 672.11 cannot be requested for the purposes of creating evidence for the purposes of sentencing .  Thus, the question as to whether provincial legislative mechanisms would allow for such an assessment.

The crown in this matter succeeded at obtaining a psychiatric assessment of Mr. Lenart for the purposes of sentencing by virtue of sections 21 & 22 of  the Ontario Mental Health Act. The court ordered that Lenart undergo a 30 day psychiatric assessment without his consent.

At the appellate level, defence counsel argued that sections 21 & 22 of the Mental Health Act should be deemed “Ultra Vires” as they encroach the federal powers to legislate in criminal matters.

The Ontario Court of Appeal considered that sections 21 & 22 of the Mental Health Act were within the ” Pith and Substance”  of provincial  legislation.  In addition, the court deemed the provincial legislation did not prohibit an act but was rather an accessory to the federal legislative power by facilitating the court to receive additional information that may assist the judge render an appropriate sentence.

What about jurisdictions that do not have such provincial legislation ?

Contrary to the BC decision of R. v. Gettliffe-Grant,(2006) , decisions from Alberta which also lack such provincial legislation have developed another approach  that would allow the power to order an assessment.

In R. v. Hunter, 1997 208 A.R. 321 (Q.B.), the judge found that it was allowed not only by virtue of s. 723(3) but also in accordance with the responsibilities and obligations imposed under s. 718.2 . A limited scope is however defined, and such orders need only apply to specific cases.

Judge Lo Vecchio states the following:

“The section does not grant an open ended authority, either specifically or by necessary implication, to require the production of any report, evidence or person.  There must be some logical nexus or relevance between what is being ordered to be produced and the matter under consideration.”

This reasoning was subsequently followed in R. v. Quintal, 2003 ABPC 79 (CanLII), 2003 ABPC 79, another Alberta decision.

It must be noted that the courts have made it very clear that crown cannot use such psychiatric assessments to potentially declare the accused to be a dangerous offender or long-term offender.  R. v. R.A.N., 2001 ABCA 312 (CanLII) &  R. v. Blackwell, 2007 BCSC 1486 (CanLII)

In addition, the decision of R v. Blackwell recognized that despite the order to undergo a psychiatric assessment, the accuse ” cannot be compelled to participate in a courtordered psychological or psychiatric assessment conducted by a qualified professional.”

The situation in Quebec is similar to that of British Columbia and Alberta, in that there are no specific provincial measures allowing for psychiatric assessment of the accused  during a criminal trial.

The only Quebec decision I was able to identify dealing with this issue is the case of R. c. J.L., 2009 QCCQ 14013 (CanLII)

Judge Marleau of the Court of Quebec follows the same line of reasoning determined in R v. Hunter &  R v. Quintal.

“An assessment of the current mental condition of the accused, already under psychiatric care and follow-up since 2007, is relevant.The nature of the offences charged, how the offences were committed, the fact that they were committed during follow-up and that they concern members of the clinic where he was an outpatient as well as his psychiatrist demonstrate this relevance.

All these circumstances result in a “logical nexus or relevance between what is being ordered to be produced and the matter under consideration”.

The accused must be informed that he can refuse to participate in this psychiatric assessment, just as he can refuse to participate with the probation officer in the pre-sentence report.

If he refuses to cooperate, he must be informed that the qualified persons preparing and executing the order may nonetheless obtain information about him and disclose it to the Court without the accused having an opportunity to give his point of view. Since an accused is often in the best position to raise mitigating factors in his favour, he must also understand that his refusal may result in only aggravating circumstances being presented at the forthcoming hearing.”

The Current state of the Law

As the law currently stands, the highest court to decide on this question is the court of  appeal in   R v. Lenart. Alan Manson, an authority in Canada on the subject of Sentencing and author of The Law of Sentencing opines that it is regrettable that the decision was not appealed before the Supreme Court of Canada. For the time being, we are left with two jurisprudential interpretations that do not provide a definitive answer. The trend however suggests that more courts have adopted an unrestrictive interpretation of the applicable sentencing provisions and lean towards ordering such an evaluation.

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The reality of the matter is that they face several hurdles and challenges on the road to achieving their goals, or what is sometimes referred to as “Culture Shock”.

According to Citizenship and Immigration Canada, Culture Shock presents itself in four stages.

Stage 1: Euphoria period (fascination period)  shortly after arrival

Stage 2: Disenchantment (frustration or irritation and hostility) during first 6 months

Stage 3: Gradual adjustment (or recovery)

Stage 4: Acceptance (adjustment or acculturation)

How quickly a newcomer overcomes culture shock varies from one individual to the other naturally. In some circumstances, dealings with the criminal justice system can be the unfortunate product of this acclimatization process.

Shoplifting for instance, is a category of offence that I often defend in this context. In some cases the crime may not be motivated by financial stress and the value of the theft may be trivial. I am not suggesting that all thefts committed by newcomers are isolated incidents and a result of culture shock, but when a newcomer who is highly educated, employed and has a promising future puts it all at stake for a a couple of T-shirts, it certainly begs the question.

Although little has been written on the subject within the context of criminal law, there have been some court decisions that have recognized culture shock as a mitigating factor.

In R v. Mehran Shokoshi-Manesh the Court of Appeal of British Columbia overturned a decision in which a discharge was refused for the offence of possession of stolen property.

Although several factors were taken into consideration, namely the effect of a criminal record on the accused’s immigration status, the court did consider the favorable findings of the probation officer who stated the following:

In my opinion Mehran’s offence is an isolated one for him and is not part of an ongoing pattern of criminal activity.  His offence is really part of “the second year syndrome”, which many newcomers to Canada experience.  It is characterized by loneliness, homesickness, depression, confusion and sometimes by a foolish illegal act.

In my view, it is commendable that the probation officer was thorough in his examination of the underlying factors that led to the commission of the offence. I encourage all actors in the criminal justice system to consider this often overlooked syndrome in order to better address cultural issues in criminal cases.

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Infringement takes place whenever a person exercises any of the copyright owner’s exclusive rights without consent. Infringement actions are generally brought before the Federal Court of Canada and typically fall under the broad category of civil law, where litigants are private parties.

Defences for copyright infringement are various. Important ones include contesting the plaintiff’s alleged ownership of the intellectual property, claiming that a minimal amount of the work was taken, or arguing that the use constituted a “fair dealing” under the Copyright Act. The “fair dealing” exemptions permit reasonable copying of a work for limited non-commercial purposes, such as research, private study, criticism, review or news-reporting. Given the commercial requirement within sections 42 and 43 of the Copyright act, the defence of “fair dealing” for those specific offences are typically reserved for non-criminal matters.

In some circumstances however, criminal prosecution may occur. The defendant if convicted may be liable to a fine or a term of imprisonment.

What is then a criminal offence with respect to intellectual property? One might immediately think of large scale media piracy or the importation and sales of counterfeit goods for instance. I will not dwell on the obvious in this article, but focus rather on the less obvious situations that could indeed lead to a criminal indictment.

Sections 42 and 43 of the Copyright Act stipulate the following:

42. Every person who knowingly

(a) makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists,

(b) sells or rents out, or by way of trade exposes or offers for sale or rental, an infringing copy of a work or other subject-matter in which copyright subsists,

(c) distributes infringing copies of a work or other subject-matter in which copyright subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright,

(d) by way of trade exhibits in public an infringing copy of a work or other subject-matter in which copyright subsists, or

(e) imports for sale or rental into Canada any infringing copy of a work or other subject-matter in which copyright subsists

is guilty of an offence and liable

(f) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or

(g) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

43. (1) Any person who, without the written consent of the owner of the copyright or of the legal representative of the owner, knowingly performs or causes to be performed in public and for private profit the whole or any part, constituting an infringement, of any dramatic or operatic work or musical composition in which copyright subsists in Canada is guilty of an offence and liable on summary conviction to a fine not exceeding two hundred and fifty dollars and, in the case of a second or subsequent offence, either to that fine or to imprisonment for a term not exceeding two months or to both.

Change or suppression of title or author’s name

(2) Any person who makes or causes to be made any change in or suppression of the title, or the name of the author, of any dramatic or operatic work or musical composition in which copyright subsists in Canada, or who makes or causes to be made any change in the work or composition itself without the written consent of the author or of his legal representative, in order that the work or composition may be performed in whole or in part in public for private profit, is guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars and, in the case of a second or subsequent offence, either to that fine or to imprisonment for a term not exceeding four months or to both.

I have bolded the key elements of sections 42 & 43, namely knowledge, meaning that the Crown must prove that the accused had the intent to commit the offence. Secondly, the commercial aspect, the Crown must prove that the offender’s actions were for profit.

In R v. Allen the accused was charged under section 42(1)(a) of the Act with having infringed a copyright  held on a book of maps of the City of Calgary. The offence consisted of  the accused’s tracing of a the copyrighted map to produce his own to be sold commercially. The defendant challenged the “originality” of the copyright holder’s work, arguing that there is no copyright in “facts”. The judge concluded that the originality of the infringed work resided in the manner of compiling and presenting the information.  The defendant was found guilty.

In R v. Fiset, a thorough dissection of  section 42(1) (a) was undertaken by the court. The defendant was accused of making for sale, between March 9 and 26, 2008, infringing copies of nine artistic works, contrary to section 42(1)(a) of the Act. The accused in this matter was an artist that had painted copies of another artists works. She testified to the effect that the infringed copies were intended as gifts for her children, and that only once she had faced financial difficulties did she decide to put them up for sale.  The court determined that even though the works were obvious copies and that they were in fact intended for sale, the prosecution must prove that the, intent to sell and the making of the infringing copy, was “contemporaneous and concomitant” in order to meet the requirements of section 42(1)(a). The judge concluded that the Crown was unable to prove that both intent to sell and the making of the copies coexisted during the period covered by the charges, namely between March 9 and 26, 2008. The defendant was therefore acquitted. Had the Crown opted for section 42(1)(b) instead of 42(1)(a) of the Copyright Act, it would have likely secured a conviction.

It is worth mentionning that unlike all summary offences prescribed in the Canadian Criminal Code which have a 6 month statutory limitation, the crown has up to 2 years to lay summary charges under sections 42 & 43 of the Copyright Act from the date of the offence.

Important ammendments have recently been introduced to the Copyright Act. The Copyright Modernization Act (Bill C-11) has received royal assent as of June 29th 2012 and will become law on a date to be announced. The purpose of this law is to update the Copyright Act so that it may be more compatible with the digital age.

Circumvention of technological protection measures, i.e: breaking digital locks, is a controversial new offence that has been the focus of much debate.

The new offence is introduced as follows:

41.1 (1) No person shall

(a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41; …

I invite you to read the section of the law in its entirety at the following page.

Section 42 of the Act is amended by adding the following after subsection (3):

3.1) Every person, except a person who is acting on behalf of a library, archive or museum or an educational institution, is guilty of an offence who knowingly and for commercial purposes contravenes section 41.1 and is liable

(a) on conviction on indictment, to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding five years or to both; or

(b) on summary conviction, to a fine not exceeding $25,000 or to imprisonment for a term not exceeding six months or to both.

There are several listed exceptions to this rule which I will not go into. But one important one that does not appear to be listed is the breaking of a digital lock on purchased films such as DVD’s and blu-ray’s. This in theory would criminalize the act of breaking a digital lock on a blu-ray  in order to make a digital copy for your tablet device.

It is of course one thing to criminalize a certain activity and another thing to prosecute it. There are obscure crimes in the criminal code that still exist to this day, nocturnal water skiing for instance. Time will only tell to what extent  these new amendments will be enforced and challenged.

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The sign in question, which is at least 50 years old, displays a tobacco leaf and a smoking briar pipe.

The inspector issued the warning under Quebec’s Tobacco Act, a law that forbids merchants from displaying tobacco related products.

The law interprets “tobacco” largely, to include accessories, such as tubes, rolling paper,  cigarette filters as well as pipes and cigarette holders. Both text and imagery are subject to these restrictions.

A more alarming incident occurred with Blatter & Blatter Tobacconist. Established in 1907, this pipe and cigar shop located in Montreal is also Quebec’s only pipe maker.

The inspector on this occasion summoned the shop owners to remove the expression “Artisan-Pipier”, french for Pipe Maker, from their display window or face a similar fine.

These in my view, are fine examples, no pun intended, of the perverse effects of this law. The legislator’s intention was to create these infractions in order reduce the number of smokers in the province. It is difficult to conceive how a historic sign displaying a pipe and tobacco leaf, or the expression “Artisan-pipier” are contributing to Quebec’s long affinity for cigarette smoking.

Dura Lex Sed Lex, latin for “The Law is Harsh, but it is the Law”, is a principle of the rule of law that suggests that even draconian laws must be followed and enforced. If one disagrees with the result, one must seek to change the law.

Let us hope someone listens to Mr. Martineau’s cry for help.

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Spoofing is defined by the RCMP to be the “Modification of identification or authentication information to mislead the reader on the true identity of the originator”

The Canadian Criminal Code does not specifically define Spoofing, but it would most certainly fall under what it calls Identity Fraud or Personation. These type of offences fall under fairly recent legislation which was introduced by bill C-28 in 2009.

What are the criminal implications of such activity? Section 403 of the Canadian Criminal Code states the following:

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“The Economist” magazine has also published an article on Shoplifting statistics worldwide. It appears Canada ranks 8th worldwide for retail losses due to shoplifting. According to the “Global Retail Theft Barometer”, shoplifting is in on the rise, particularly in America and Europe. The hottest stolen items? Designer clothes and fashion accessories, with car and home-improvement products being second. As far as food items are concerned, luxury cooked meat is the most prized item for shoplifters in Europe… Ain’t that a slice!

The post Is Shoplifting on the Rise? appeared first on Zayid Al-Baghdadi, Avocat en Droit Criminel à Montréal.

A similar topic was treated in one of my past blog entries.

The post Faking Residency for Citizenship appeared first on Zayid Al-Baghdadi, Avocat en Droit Criminel à Montréal.

This is a standard procedure followed mostly by large retailers. Essentially what you have received is a letter of notice requesting that you pay the store for the damages incurred in the process of arresting your son. This according to retailers allows them to absorb some of their security expenses.

I personally find this way of proceeding abusive in many circumstances. These standard letters often mislead the public into believing that if the requested sum is not paid, criminal charges may be laid. In addition some of these claims are grossly disproportionate to the actual damages the store incurred. A 350 $ claim following an incident of a stolen chocolate bar is not unheard of.

Many individuals are not as fortunate as your son and have to answer both to criminal charges as well as the subsequent letter from the retailer.

In such cases, if the individual believes to be innocent, then paying this claim can be considered an admission of guilt and I would therefore advise against it. Even if ultimately acquitted of the charges, you will not be reimbursed for paying the retailer’s claim. On the other hand, should a person who already paid the claim decide to plead guilty to the criminal charges of theft, they may nevertheless have to pay an additional court fine.

As these letters have not been deemed illegal as of yet, I cannot as a lawyer guarantee that you will not be sued in a civil court should you decide not to pay. Based on my experience however, I can tell you that it is highly unlikely.

The main reason being that is simply not worth their while, as it is more costly for the company to send a lawyer to act against you in court than the claim itself. Don’t forget that these large retailers send hundreds of such letters a month. If only 20% percent result in payment, that nevertheless covers a considerable amount of their security expenses.

In addition, I am not aware of the circumstances of the alleged theft. But if the store recovered their merchandise and nothing was damaged, 1000$ strikes me as a grossly exaggerated claim.

There are very few reported cases in such maters. Generally these are almost exclusively presented before small claims courts. I have only heard of one case that goes back to 1997, in which Zellers, claiming 540$ in damages was finally only awarded 215$ by the judge.

So to answer your questions: Can they do that? Unfortunately they can. Should you pay? Well, I hope my response helps you decide.

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