Justin Trudeau said marijuana is going to be legal… So can I smoke weed now?

Cannabis (marijuana) still remains a Schedule II drug under the Controlled Drug and Substances Act. This means that, unless regulated for production and distribution for medical purposes, possessing and selling cannabis is illegal in Canada. Smoking weed is a form of possession, as such, you could be criminally liable for possessing it.

Until new legislation and rules are in place, current laws remain in force and should be obeyed, even if they will be changing. The government has committed to legalize, strictly regulate and restrict access to cannabis for non-medical purposes. Cannabis will still be illegal for youth (it will be similar to the drinking age) and trafficking will also still be illegal. The law is changing – specifically to prevent illegal profits and the use by youth.

If you have been charged with possession of marijuana or possession for the purpose of trafficking, give us a call and we can help you with your charges.

I’m about to be sentenced and think I’m going to jail – what do I need to know?

Depending on the length of your sentence you may be destined for either a provincial, territorial, or federal facility. Sentences of two years or more are served in federal facilities, and two years or less are served in provincial facilities – though there are a few exceptions. If your sentence is close to two years, a day will sometimes be added or subtracted to ensure that you go to the type of facility that suits you better. Sometimes a federal facility is better because it has more accessible programming.

When you are first incarcerated you will be placed into an assessment unit. For federal inmates, the largest assessment unit in Ontario is Joyceville. Provincial inmates are usually placed in the institution closest to them. Upon arrival you will have a correctional plan developed and your security level will be established. This process can take a few months. Depending on your correctional plan and your security level you might be transferred to another facility within the region. It is extremely rare to be incarcerated outside of your region or Province (there are 5 federal regions).

It’s very unlikely that you will spend the entire length of your sentence in a facility. If you spent any time in pre-trial custody, you will likely be given enhanced credit for those days (for example, if it was one month, you might have one and a half months credited to your sentence). If you are of good behaviour, you’ll likely be released early, either on parole or statutory release (mandatory after 2/3 of sentence).

If you have additional questions, a great deal of information may be obtained through the Ontario Ministry of Community Safety and Correctional Services at: www.mcscs.jus.gov.on.ca/english/corr_serv/CS_main.html

What will happen to my fingerprints and photos taken by police after I was arrested?

For most offences, after you are charged you will be required to be photographed and fingerprinted by the police. The police are allowed to share the prints or photos with any other officer or anyone engaged with “the execution of justice”.

If your criminal charge is withdrawn or stayed, or if you go to trial and are found not guilty, your photographs and fingerprints won’t necessarily be destroyed. Each police force has its own policies and procedures, and your legal counsel can tell you what happens in your local jurisdiction. For example, the London Police Service will only destroy fingerprints and photographs on request, only if it did not result in a conviction, only after filling out a form, and it may take up to a year. Even then, the request is forwarded to the RCMP who may or may not approve the request. 

Other occurrence reports generated as a result of a charge will not be destroyed, even if the photographs and fingerprints are. Hard copies of officers’ notes, occurrence reports or records of arrest will remain in possession of the police force and can be used in subsequent proceedings.

If you have any questions about the above or want help having your photographs or fingerprints destroyed, please give us a call.

I have just been found guilty – will they take my DNA?

Canada’s DNA Identification Act came into force in 2000. Under the Act, you might be required to provide DNA samples if you fall under either of two categories.

First, if you have been convicted of any serious offence such as murder, manslaughter, aggravated assault or aggravated sexual assault, the judge must make an order for a DNA sample upon conviction. The second category is for more common offenses such as sexual assault or child pornography. In those cases, the judge has the option to not make a DNA order, if the prosecutor does not make the application or if the judge is satisfied that the privacy concerns outweigh the public’s interest.  The judge must give reasons for the decision either way.

If you are ordered to give a sample of your DNA under either of the above situations, the order will be made either on the date of sentencing or up to 90 days after the sentence is given. When the judge makes the order you will be directed to appear at a certain place and time. This is usually done at the courthouse. If you don’t comply with the order (that is, if you don’t attend the location at the place and time) you may receive a charge and additional sentence.

The process of taking a DNA sample is pretty simple. The officer will first examine whether or not you are already in the national DNA databank. If you are, you may not have to give another sample. Taking simples is usually done with a skin prick for a small blood sample. If you have religious, cultural or medical objections, there are alternatives to this method.

Once the DNA is collected the profiles are stored according to complex rules, and the information may be shared with Canadian and international law enforcement officials.

If you have any questions about your DNA samples and whether you will need to give one, feel free to give us as call and we can help you out.

I was just sentenced and was ordered a fine – what happens if I can’t pay it?

When you are being sentenced and the judge wants to include a fine, the judge must first inquire about your ability to pay that fine. You must be given reasonable time to pay it. Fines are generally only imposed in cases where imprisonment has been dismissed, and the fine stands as punishment in its place.

When the fine is imposed, you have to be told about the possibility of applying for an extension of time to pay. You can request the extension informally by filling out a form specifying the reason for non-payment and additional time requested. It does not require a court hearing.

If you do have outstanding fines, the court can begin to impose sanctions on you to encourage you to pay them, culminating with incarceration. The most common sanction the court will impose is to suspend your driver’s license, or, at least, prevent you from renewing it. If the court finds that you, without reasonable excuse, refuse to pay your fines, they can consider incarceration. The amount of time will be calculated based on the amount of the fine unpaid and the minimum wage.

If you are worried about your ability to pay your fine, give us a call and we can discuss your legal options. If you want to request an extension but are worried about filling out the forms, we can definitely help you out.

Am I sexually assaulting my spouse?

Prior to 1983 in Canada, a husband could not legally sexually assault his wife. In January 1983, Bill C-127 came into effect, replacing the crime of rape with sexual assault, and at the same time allowing victims to press charges against their spouses. It doesn’t matter whether you are male or female, anyone can be the victim of a sexual assault. Law enforcement agencies take these charges very seriously, especially as the majority of sexual assaults are committed by people known and close to the victim.

If your spouse isn’t in the mood to have sex or if they tell you they’re feeling uncomfortable it is important to respect their integrity. Consent is an ongoing requirement for sexual activity. If your spouse does not consent, you are not entitled to any sexual activity. And while many of us could not imagine our spouse ever charging us with a crime, it is not only possible but it is their right. The underreporting of sexual assaults is a significant problem in Canadian society.

Be careful though! There is one area of sexual assault law in Canada that is not often publicized: under the law, you and your spouse may be sexually assaulting each other and neither of you might even know it.

 In 2011 the Supreme Court of Canada released a new decision clarifying Parliament’s definition of consent. They stated that the legislation requires ongoing consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. None of this is new. However, this means that, under the law, advanced consent cannot be provided, nor can anyone consent to any sexual activity while they are unconscious. 

So what? On its surface, protecting unconscious people from sexual activity doesn’t sound like a problem. But not all sexual assaults involve violence or penetration.

Picture a scenario that many Canadians go through every day – your spouse works the night shift while you work days. As you leave to drive to work in the morning, you kiss your spouse goodbye, while they remain sleeping. According to the Supreme Court, this is, legally speaking, a sexual assault. What’s more, this would still be a sexual assault even if your spouse asked you to kiss them goodbye before you leave. this is why it is important to be careful - the law currently has a gap for these types of situations.

The police have asked you to give them a statement – what should you do?

The most important thing to remember is that in Canada, your right to remain silent is guaranteed by Section 7 of the Charter of Rights and Freedoms. Other than providing the police with your name and address, you don’t have to say anything to them.

The police may tell you they want to interview you in order to rule you out of their investigation.  Remember that if you haven’t been arrested, you already are ruled out. In interviewing you, the police could gather information that makes you a suspect, or provides them with the grounds to arrest you.

The best way to refuse to give a statement is to politely say, “I do not want to give a statement or answer any questions” and nothing else.  It’s best not to apologize, explain, or elaborate.  Everything you say to the police is being recorded and can be used against you as evidence in court.  This could be very detrimental to your case if the police do eventually lay charges against you.

The very first thing you should do when the police ask to speak to you is find legal counsel. Remember, the police aren’t necessarily acting in your best interest.  Speaking with a lawyer before speaking to the police is the best way to protect yourself and ensure your interests are protected.

In rare circumstances, it may be wise to give a statement to the police.  Every situation is different. If you are unsure about making a statement to police and you would like the advice of an experienced criminal lawyer, give us a call.

What is the age of consent in Canada?

The first and most important thing to know is that any and all sexual activity requires consent from your partner. If your partner does not consent to intercourse or any other touching, age is irrelevant to whether or not you are criminally liable.

The age of consent, or the “age of protection” is the age at which a young person can legally consent to sexual activity. In Canada that age is 16 years old. This means that as long as someone is 16 years old and the sexual activity is consensual, there is no criminal liability. Sexual contact with anyone under this age may be criminal, subject to a few exceptions. 

The reality of growing up is that sometimes teenagers will have consensual sexual activity with one another. Our society does not want these teenagers to have criminal records for this activity, so there is a “close-in-age” exception. If someone is under 16 years old, they can have sex with someone within 5 years of their age. So, for example, a 14 year old can have sex with someone up to 18 years old (as long as the age gap is less than 5 years). 12 and 13 year olds can also consent to sexual activity, but only if their partner is less than 2 years older. So, for example, a 13 year old can only have sex with a 14 or 15 year old, but NOT someone 16 years old or older.

There is one other exception. While the age of consent is 16, the Criminal Code still protects 16 and 17 year olds against sexual exploitation. While 16 and 17 year olds can consent to sex, they can only do so when their partner is not relying on their trust, authority or dependency to obtain that consent. Each relationship will be assessed differently, but will factor in the age of the young person, the age difference between the young person and their partner, how the relationship developed, and how the partner may have controlled or influenced the young person. This provision is in place to ensure that consensual relationships are truly consensual. Similarly, 16 and 17 year olds cannot consent to prostitution or pornography, as each of those is viewed to be exploitative. 

What about homosexuality? Section 159 of the Criminal Code states that the age of consent for sexual intercourse is 18 years. However, this law has been deemed unconstitutional and discriminatory, and has not been enforced since 1992. In November 2016 the Minister of Justice introduced a bill to remove the provision from the Criminal Code.

What is a pardon? How do I get one?

A pardon, more accurately referred to as a record suspension, keeps the judicial record of your conviction(s) separate and apart from other criminal records. This removes all information about your conviction(s) from the Canadian Police Information Centre (CPIC) database and means that your conviction(s) will not show up on a regular criminal record check.  Your criminal record is not erased but is kept separate and apart from other criminal records.

However, depending on the nature of your offence, your conviction could still show up on a vulnerable persons record check. For example, sexual offenders who receive a pardon will still be flagged in CPIC. This is important to know for anyone seeking employment or education opportunities that require a clean criminal record check.

Pardons can be obtained for many Criminal Code of Canada offences.  The wait time for a pardon depends on the offence committed and the type and length of sentence you received. It is a complicated process with many steps. There are, however, some offences for which pardons cannot be received, or if you have been convicted too many times you may not be eligible. Pardons do not need to be obtained by anyone that receives an absolute or conditional discharge, or by any young person found guilty in a youth court.

You do not require a lawyer to apply for a pardon and you can complete the application on your own. However, we can help you navigate this complex process and ensure that your application is completed correctly.

I’m a member of the aboriginal community and someone told me about the gladue court. What is that?

As an Aboriginal person charged with a criminal offence, there are unique cultural considerations that the court must consider when dealing with your case. This approach applies to all Aboriginal people in Canada. The Supreme Court of Canada decision in R. v. Gladue and section 718.2(e) of the Criminal Code both recognize that a restorative justice approach may be better suited for many Aboriginal offenders and state that judges should account for these considerations when making sentencing decisions. Gladue Courts were created following the Supreme Court’s decision in an effort to make sure these considerations are meaningfully addressed. Judges in a Gladue Court are meant to apply a method of analysis that recognizes the adverse historical factors that many Aboriginals face and to consider all reasonable sentences before incarceration.