What is mens rea?

In Florida, a three year-old picked up a poorly misplaced pistol and killed his mother by accident. Is the toddler a murderer? No. This is because every crime has at least two parts: the actus reus (bad act) and the mens rea (guilty mind). While the toddler did certainly do something bad, he lacked the mind to think through his actions. The guilty mind lies on a spectrum. Here are the levels of mens rea:

1. Purpose: Purpose means the same thing as intent. In light of the actus reus, it means that the accused wanted the bad act to happen and went out of his way to make sure it happened. First degree murder is the actus reus of causing death coupled with the mens rea of wanting the victim to be dead. In R v Minassian, the Court found that the perpetrator of the Toronto van attack, Alek Minassian showed purpose when he rented a large van and posted his wish to kill people on Facebook before the attack.

2. Knowledge: Knowledge means knowing that what you’re doing will cause harm even if your intent isn’t the harm itself. Another way to look at knowledge is the idea of willful blindness. In R v Briscoe, Michael Briscoe drove his friends to a location where they raped and murdered a child. While Briscoe didn’t commit the act of killing himself, he did know what his friends’ intentions were and willfully ignored them.

3. Recklessness: Recklessness is willfully ignoring a substantial risk. Suppose that it’s 8:55 AM and a businessman is late for his 9:00 AM meeting in downtown Toronto. To make it in time, he drives through the very busy Yonge and Dundas Square at a red light knocking people over. By carelessly running the red light, he shows recklessness to the fact that there are vulnerable people crossing the street. Unlike Alek Minassian, he didn’t want these people to die; he just doesn’t care if they did.

4. Negligence: Negligence relates to shirking the duties that we have to others. The owner of the ladder company has the duty to make sure that the screws of your ladder don’t fall apart when you’re thirty five feet above ground. Some duties are so important that they’re handled by criminal law. One such duty is the duty that we owe to other drivers on the road. In R v Tschetter, Daniel Tschetter drove his truck into a sedan killing five people. By driving 130 km/h at a red light and ignoring the circumstances, Tschetter behaved in a way that most people wouldn’t on the road. Compared to recklessness, negligence doesn’t need the “I don’t care” attitude of the businessman at Yonge and Dundas, but instead a carelessness that results in harm.

How the small claims court works in Ontario

What is Small Claims Court?

The Small Claims Court is a civil court in Ontario that allows you to resolve disputes in a legal setting. These disputes revolve around matters where the monetary value sought does not exceed the amount of $35,000. The key purpose of the Small Claims Court is to place you back in the position you were in before the loss occurred.

If you would like to be awarded damages exceeding $35,000, this would be done in the Superior Court of Justice. This may be more difficult and complex; the Court proceeding may take longer to complete. 

Which matters can be heard in Small Claims Court?

The Small Claims Court deals with matters involving:

1. Money owed under an agreement, such as:

• Goods and services sold and delivered in which payment was not received;

• Unpaid loans;

• Non-Sufficient Funds Cheques.

1. Damages, such as:

• property damage, including personal effects;

• personal injury;

• breach of contract;

• defamation 

Are there limitation dates in Small Claims Court?

A lawsuit in Small Claims Court is known as a “claim”. If you are looking to file a claim with the Small Claims Court, this must be done within 2 years of when you suffered a loss or when you first learned about the loss suffered.  Once you have filed a claim, the defendant (legal term referring to the individual who caused the loss) has twenty days to file a defence.  If a defence is not filed within the 20-day period, then you can request that the Court have the defendant be “noted in default”. This means that the Court will make the assumption that the defendant has admitted to owing you money. It is very important to ask the Court to have the defendant be noted in default after the 20-day limitation. If this step is missed, the defendant could still file a defence.

If you are a defendant noted in a claim and you require more time to prepare a defence, you may ask the plaintiff (the legal term of the individual who filed a claim against you) for an extension to submit your defence, to ensure the Court does not note you in default. In most cases, the plaintiff or plaintiff counsel usually allow for an extension when required.

For more information regarding limitation dates and next steps please visit: https://www.ontario.ca/page/suing-someone-small-claims-court

What are the steps involved in Small Claims Court?

Matters heard in the Small Claims Court usually follow a standardized procedure, with 5 important steps including:

1. Plaintiff Claim filed with the Court – the claim is the document that sets out the events that caused the loss or damage.

2. Defence filed with the Court – the Defendant files a response to the claim either admitting or denying the allegations noted in the claim.

3. List of Proposed Witnesses and Documents – 14 days before the Settlement Conference, both parties are to submit their documents that will be used to prove their case. Parties can also provide their proposed witness list (witnesses who may be asked to attend the trial).

4. Settlement Conference – the Court will set a date for both parties to meet before a Judge to attempt to find a resolution to the matter that all parties agree on.

5. Trial – if the matter cannot be resolved at the settlement conference, the case will then proceed to trial. This will allow both parties to present their case before a Judge (it will not be the same Judged who presided over the settlement conference) and a decision will be rendered by the Judge.

For more information regarding preparation for Settlement Conference and Trial please visit: https://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/Guide_to_Getting_Ready_for_Court_EN.html

First appearance in criminal court in Ontario – what to expect

What does a “First Appearance” mean?

Your first appearance in Criminal Court is NOT your trial date. First appearances in Criminal Court are administrative in nature, it is the starting point of the Court proceeding process. This means that you will not be required to:

• Enter a plea of guilty or not guilty;

• Produce any witnesses, evidence, or state your recollection of events.

How will I know the date of my First Appearance?

The date for your first appearance is indicated in the document given to you by the police once you have been charged with an offence and/or released from police custody. This document is called a “Promise to Appear”, this will provide you with the date, time, and location of your first Court appearance.

Do I have to Attend Court for my First Appearance? Can Someone Attend on your Behalf?

It is important that you do not miss your first appearance, as it is required by law. If you fail to attend, this can result in a warrant for your arrest. However, if you have retained a lawyer, they can appear on your behalf. If the matter is indictable (more serious) a “Designation of Counsel Form” may be required. A designation is a document that is signed by you and filed with the Court wherein you appoint your lawyer to appear on your behalf.  It is important to file a designation form with the Court prior to your first appearance, this will ensure that you do not have to attend Court on that date.

If you do not have a lawyer retained, it is important to arrive early at the courthouse and ask to speak with Duty Counsel. Duty Counsel is a government-funded lawyer who can assist individuals who are unrepresented.

What Questions to Expect during your First Appearance?

First appearances are usually overseen by a Justice of the Peace. There may be circumstances where a Judge would be present, however, this is usually not the case.  The role of the Justice of the Peace is to ensure that your case is progressing in a fair and meaningful way.  The questions that are usually asked relate to determining:

• Whether you have retained a lawyer or will be retaining representation;

• If the Crown has provided you with disclosure (evidence gathered by the police such as police notes, witness statements, video and audio records, or anything that relates to your case);

• The general status of your case;

• Determining your next Court date.

What to Except after your First Appearance?

Once you or your legal representative has received your disclosure from the Crown Attorney, it is important that a very careful review of your case is completed.  Either you or your legal representative will be required to have a “Crown Resolution” meeting to discuss the possibility of resolving your matter, and if resolution is not possible, to discuss setting trial dates.  While these steps are taking place, your matter will be followed by the court and adjourned to accommodate these steps.  It is very important to monitor dates for your next Court appearance as not attending your Court date may result in additional charges. It is also very important to actively move your matter along by completing the steps necessary to either resolve or set a trial date.  The Court will make sure there is no unnecessary delay in these steps.

At Ellis Criminal Law we understand that dealing with a criminal offence is a very stressful and frightening experience.   Often times, the fear of the unknown is overwhelming.   We will guide you through these steps and provide updates following every court appearance, so you always know what is happening with your Court matter.  Our team of expert Lawyers and Paralegals are here to answer any questions you might have.

Can the OPP give me a ticket in London?

There is a common myth in Ontario that the OPP do not have authority to issue tickets in a city with its own police force. However, this is not true. The Ontario Provincial Police (OPP) have jurisdiction across all of Ontario. Though they are most commonly seen on the highway, a police officer in Ontario has jurisdiction to lay a charge anywhere in Ontario if they have witnessed an offence. Some cities in Canada have their own police force, while others contract out to the OPP or federal police (RCMP). In Ontario, you can receive a traffic ticket from the city police, OPP, or RCMP anywhere in the province if they witness you breaking the law.

I’m being asked to give a statement as a witness. Do I need to give a statement to police?

Anything you say to police can be used against you at some point, so it is important to know your rights. Generally speaking, you do have the right not to answer any questions police ask you, though you may be required to give your name and address. If you are asked to provide your name and address, you can ask the police why they want your information, but if they have a lawful reason, it is an offence not to provide it. Unless you are arrested, police do not have to specifically tell you that you have the right to speak to a lawyer, though you are free to contact a lawyer before giving a statement to police.

Unless you are under arrest, you can decide at any point during your statement that you would no longer like to continue. It is important to remember that, even though police may initially question you as a witness, the investigation can change, and if you are later considered a suspect, the information you previously provided can be used against you. Sometimes, the information given in your statement when questioned as a witness can give police enough evidence to arrest you, and they can then question you as a suspect. Regardless of whether you are a suspect or a witness, the police can’t force you to make a statement. However, if they would like to use you as a witness in their case, they can subpoena you to give evidence in court. If you receive a subpoena, you are legally required to attend at the trial, and will be questioned under oath.

What are my rights when I’m arrested by the police?

When an accused person is arrested, the police must inform them of the reason for their arrest, their right to counsel of their choice, and their caution (or right to silence). After cautioning the accused, police may conduct an interview in the hopes of getting a confession or obtaining useful evidence against the accused. A person who has been arrested has the right to a lawyer of their choice, but if that lawyer is unavailable in a reasonable amount of time and the accused person refuses to speak to another lawyer, the police are allowed to continue with their questioning. Although an accused person is entitled to a private conversation with legal counsel, they do not have a legal right to call anyone else, including a spouse, unless the accused is underage, in which case the police will contact their parent or guardian. After speaking with legal counsel, the police may continue asking questions, even if the accused asserts their right not to answer anything.

The right to legal counsel also does not mean that the accused has the right to have their lawyer present during questioning – in fact, it is very rare to have your lawyer present during this initial interview. It is important to remember that, upon arrest, an accused person has the right to remain silent, and no adverse inferences can be made simply based on the accused doing so.  After arrest, police will transport an accused to a holding cell and will either release them on a promise to appear in court, or hold them overnight. If held overnight, an accused person will typically be brought before a justice of the peace the following day and released unless the crown can give reasons why it would be in the public interest for them to be held.

What is double jeopardy and how does it apply?

Under Canadian criminal law, you are not able to be convicted for multiple offences based on the same criminal act. This protection is found in the Canadian Charter of Rights and Freedoms under section 11(h) – the right not to be tried again – which states that any person charged with an offence has the right not to be tried or punished for it again in the future.

In order for this rule to apply, the charges must arise from the same set of events. The elements of the multiple offences must also be substantially the same. In the event that someone is charged with two offences for essentially the same act, the court will typically stay the lesser of the two charges and will convict on the more serious charge. For example, if you are found guilty at trial of the offences of impaired driving and driving with more than 80 milligrams of alcohol in 100 millilitres of blood (over 80), the Court will only register a conviction on one of these charges. This also means that, if you are acquitted on certain charges, the Crown cannot try the case again simply because they are not satisfied with the outcome. This section does not, however, prohibit the Crown from appealing an acquittal based on an error made by the Court. If the appellate court orders a new trial, this is permitted under section 11(h) as the accused person has not been finally acquitted, and the new trial is seen as a continuation.

This concept of double jeopardy is necessary in our legal system as it prevents the Crown from continually laying criminal charges against an accused, forcing them to pay legal fees and defend themselves at trial repeatedly. This is why the Crown has one chance to prove their case, and if you are acquitted you cannot be tried again.  If the Crown was not prevented from being able to repeatedly charge an accused person for the same crime, it could result in a lot of wasted court time trying the same charge multiple times. Court time is already in high demand, so this would not be an efficient use of it. This could also have the indirect effect of making the justice system more focused on money than on justice. If an accused person was forced to pay for new trials multiple times, it would likely result in them eventually running out of money for a lawyer to represent them.

If you have been charged with a criminal offence, it is important to seek legal advice immediately in order for a lawyer to review your case and determine any possible legal defences.

I have heard of charges being stayed because of delay. How does this happen?

The Canadian Charter of Rights and Freedoms is an incredibly important document that helps protect fundamental human rights of all Canadians. Section 11(b) of the Charter relates specifically to the right of an accused person to be tried within ‘a reasonable time’. This section has evolved and been clarified through various cases, including R v Morin, 1992, which stated that the accused has the burden of proving that prejudice resulted because of the delay. It has been agreed, however, that in the case of extreme delay, this prejudice can be assumed. R v Finta, 1994 further shaped this rule, setting out that delay begins at the time the charge is laid and continues until sentencing is complete. The most recent development in the case law regarding trial delay was in R v Jordan, 2016. The Supreme Court in this case defined unreasonable delay as 18 months in the provincial court, and 30 months in the Superior court. 

If a case takes longer than this amount of time from the time charges are laid until the completion of trial and sentencing, it is presumed unreasonable and the burden of proof shifts to the Crown attorney to prove that the delay was justified by unforeseeable circumstances or circumstances out of the Crown’s control. If the Crown cannot do so, the charges must be stayed. All of this being said, before making a decision on unreasonable delay, the Court will take into account court resources, delay caused by the accused or their counsel, complexity of the case, etc. and the judge will make a discretionary decision on whether the delay was reasonable.

If you have been charged with a criminal offence, it is important to seek legal advice immediately in order for a lawyer to review your case and determine any possible legal defences.

Record Suspensions

Record Suspensions (formerly called “Pardons”)

We believe in second chances and we very firmly believe that a past event or mistake should not be held against someone for the rest of their lives. Having a criminal record can affect earning potential, the ability to travel, eliminate the rewards of community volunteering, and can carry social stigma. If you or someone you know has a criminal record, we may be able to assist with the record suspension application to the Parole Board of Canada.

What is a “Record Suspension” ?

A record suspension allows those who were convicted of a criminal offence to have their record kept separate and apart from other criminal records. In order to qualify for a record suspension, one must have completed their entire sentence (including paying any fines and completing probation) and be a law-abiding citizen for a prescribed number of years.

A record suspension removes a person’s criminal record from the Canadian Police Information Centre (CPIC) database. This means that a search of CPIC will not show that the individual has a criminal record or a record suspension

Why is this process no longer called a “Pardon” ?

It is unclear why the Parole Board of Canada changed the terminology from obtaining a “pardon” to getting a record suspension. Perhaps it is because the word “pardon” means to forgive or absolve, while a record suspension keeps a past record separate and apart, it does not completely erase the fact that the record ever existed. Furthermore, a record suspension can be revoked in certain situations such as being convicted of a new criminal offence after receiving a record suspension.

Important Information:

It is important to note that you DO NOT need a lawyer or a paralegal to complete a record suspension application for you. Having a legal professional complete the application does not give your application priority over others and will not accelerate the process. It will also not guarantee you a record suspension or convey a special status on your application. You can absolutely apply for a record suspension on your own. Unfortunately, there is false and misleading information on the internet so if you are going to apply on your own be sure to visit the official Parole Board of Canada site:

https://www.canada.ca/en/parole-board/services/record-suspensions.html

Here you can find all the forms you will require, useful tips, and even a video tutorial to assist you.

Why choose a legal professional to help complete the application?

Even though one can complete a record suspension application on their own, there are advantages to hiring a reputable legal professional to help you complete the application. Many of our record suspension clients find it difficult to stay on track with their application. They start obtaining all the documents they need but then either procrastinate with completion of the application or life just generally gets in the way. We have had people come see us years after they started the process on their own because they have just never found the time to finish it. We have also had some clients that have had their application returned because they are missing information or have obtained the wrong information. Some people find completing the measurable benefit/sustained rehabilitation form challenging and perhaps feel that they don’t have the writing skills to complete this form. We will follow up with you every few weeks to make sure you are staying on track and completing the steps that we cannot complete for you (such as getting electronic fingerprinting done to request your RCMP record). We will conduct a thorough interview with you in order to complete your measurable benefit/sustained rehabilitation form for you and also complete the record suspension application form. We will then check and re-check your application to make sure it is full and compete before finally sending it off to the Parole Board of Canada by courier. If, after reviewing your complete RCMP record and your court information, we determine that you are not eligible for a record suspension, you will not be charged our full fee but rather only pay for the work we have completed to that point.

What are the criteria to qualify for a record suspension?

To see the eligibility criteria follow this link:

https://www.canada.ca/en/parole-board/services/record-suspensions/who-is-eligible-for-a-record-suspension.html

You are not eligible to apply for a record suspension if you have been convicted of more than three offences prosecuted by indictment, each with a prison sentence of two years or more or if you have been convicted of a Schedule 1 Offence (offence involving a child)under the Criminal Records Act. To see schedule 1 of the Criminal Records Act follow this link:

https://laws-lois.justice.gc.ca/eng/acts/c-47/page-5.html#h-135432

If you have been convicted of an offence prosecuted by summary conviction, your waiting period is 5 years following the completion of all portions of your sentence (including probation and fines). If you have been convicted of an offence prosecuted by indictment, your waiting period is 10 years following the completion of all portions of your sentence.

What is involved in the application process?

In order to apply for a record suspension, you must obtain the following documents:
• Your criminal record from the RCMP;
• A local police check from all police services in the areas that you have lived in the past 5 years;
• Your court records confirming your charges and sentences and also confirming that all fines are paid in full;
• Military conduct sheet (if applicable)
• Documents to support your identification such as a drivers licence or passport if you are a Canadian Citizen or immigration documents

You must then complete the record suspension application form and the measurable benefit/sustained rehabilitation form which explains to the Parole Board of Canada specifically how a record suspension would “provide you with a measurable benefit and sustain your rehabilitation into society as a law-abiding citizen” . You must include payment of the fee to apply for a record suspension which is currently $631.00 but will increase to $644.88 as of March 31, 2020. This can be paid by bank draft or certified cheque payable to the Receiver General of Canada or by using the pre-authorized credit card payment form.
Remember, you can complete a record suspension application on your own but if you feel that hiring a professional to complete the application for you is the best choice, make sure you are choosing a reputable business. Read reviews, search the company with the Better Business Bureau and beware of online companies that are using logos that try to trick you into thinking they are official government agencies.

What exactly is a paralegal and what can a paralegal do to help me?

When we ask people what they think a paralegal is, many people conjure up an image of the character Rachel Zane in the USA Network legal drama “Suits”. Like Ms. Zane, many paralegals assist lawyers with drafting legal documents, research, and case preparation; however, in Ontario paralegals are highly educated legal professionals. Only in Ontario can Paralegals work independently without the need for being supervised directly by a lawyer. Paralegals can represent their own clients in defined areas and are licensed and governed by the Law Society of Ontario.

What are the defined areas of practice for Paralegals?

Paralegals can provide legal advice and represent clients in the following areas:

• In Small Claims Court.
• In the Ontario Court of Justice under the Provincial Offences Act.
• On summary conviction criminal offences where the maximum penalty does not exceed six months’ imprisonment.
• Before administrative tribunals.
• Paralegals are eligible to perform certain services in immigration law.
• Alternative dispute resolution (ADR).
• Licensed paralegals are also permitted to practise landlord and tenant law.

Education and Licensing

The Law Society of Ontario has strict accreditation requirements for Ontario Colleges that provide Paralegal programs which includes a field placement requirement. After obtaining a degree or graduate certificate in an accredited Paralegal program, all paralegal licensee candidates must be of good character and pass a 7-hour Law Society of Ontario licensing examination. Once licensed, Paralegals must complete 12 hours of continuing education programs each year and carry errors and omissions insurance.

What a paralegal can do for you?

Facing a legal problem can be frightening and confusing for most people. It is vital for the Canadian justice system to be accessible to all individuals. Unfortunately, many people cannot afford a lawyer and yet do not qualify for legal aid assistance. If your legal issue falls into the area of permissible services as outlined above, Paralegals can provide access to justice by providing high quality legal services that are affordable.
There are many legal situations where only a lawyer will be able to assist you. To help you determine the best legal professional follow this link: https://lso.ca/public-resources/choosing-the-right-legal-professional.