The General Warrant in Canadian Criminal Law

The Oxford Minireference Thesaurus describes the word General as “usual, customary, common, ordinary, normal, standard, regular, everyday, typical, conventional, habitual, run-of-the-mill..”

However a General Warrant is not intended to be common or usual. It’s role for searching is prescribed by set criteria in the Canadian Criminal Code and it is to be applied sparingly, a warrant of limited resort. When it’s reach is extended beyond what is proper, Charter rights suffer and the administration of justice is brought into disrepute. No doubt it is a useful device in specific situations but is not there for “general use” or to avoid meeting more stringent conditions for searches in other areas of the Criminal Code.

The courts have applied a substance over form analysis in determining whether a general warrant is proper. For example the propriety of using a general warrant to intercept future texts , “electronic conversations” as opposed to meeting the more stringent requirements of Part VI of our Canadian Criminal Code dealing with interception of private communications. It is not surprising the courts will apply a substance over form analysis in this area. Our laws have applied the same analysis in many other areas , ex. Is it a lease or a license? Is it a bailment? Labels are not determinative. What is behind the labels in essence is the key for understanding what is really going on. Even more so when Charter rights are at stake.

Perhaps it is time to change the adjective label for General Warrant to “Limited Resort Warrant” or something to that effect. If we are going to use the substance over form analysis in this area perhaps we should change the name of the warrant to coincide closer to what in substance this warrant is and it’s true role.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

The Vexatious Litigant

The Vexatious litigant (“VL”) is a different breed. There are a number of red flags for this type of litigant and Vexatious Proceedings. However the categories of vexatious proceedings and their characteristics are not closed. The VL is often in a state of denial. Prior court orders requiring him or her to pay costs are ignored. Previous adjudication of issues is simply not accepted. The VL simply repackages the previous alleged causes of action and tries to pursue them again in another court. The Vexatious behaviour can be launching a claim that should not be launched, or continuing a proceeding in a vexatious manner or brining an appeal that has no business in court. Other markers of the VL include unintelligible claims that leave Judges baffled/confused as to exactly what is the cause of action. No trees are spared in some cases with claims running in the hundreds of pages. A novel. Not a pleading. But the “novels” are not organized like a proper pleading but may be a running rant of injustices by adverse parties including court officials.

The personality trait of perseverance is valued in our society in most contexts: hang in there, work hard, don’t give up and things will go your way. The VL is a persistent personality but persistence in this realm is not valued by the courts. It wastes court resources, and puts people to unnecessary expense with a colossal waste of time. Left unrestrained, the VL brings the administration of justice into disrepute. Instead of an objective determination of legitimate issues based on the facts and law, a proceeding may take on the goals of intimidation, oppression, harassment of the opposing side with a persistent bent on furthering the VL’s own reality. Emotion is at the driving wheel of the litigation bus, instead of reason.

Our litigation system has filters to weed out cases that don’t belong in the courts. Summary judgment is an example. But there are other tools, for ex. Rule 2.1 of the Ontario Rules of Civil Procedure and s. 140 of the Courts of Justice Act that are there for those dealing with a vexatious litigant in an effort to put an end or the breaks on the vexatious behaviour or at least force the VL to come to court to get permission from a Judge before using the litigation process. Filters are in place early on to protect our litigation system so that court time is reserved for those parties that have legitimate disputes.

However the filters do not apply easily. Usually the VL proceeding is obvious on its face. If there are grey areas and it is not fairly clear, the courts air in allowing the matter to proceed further where a further filter , for example Summary judgment may come into play down the litigation road.

Our Courts are there to assist those that legitimately need their help not those that ignore court orders and use the litigation process for collateral improper aims.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Dangerous Driving in Canada

The Canadian Criminal Offence of Dangerous Driving comes in different shades. There is dangerous driving; dangerous driving causing bodily harm; dangerous driving causing death. Regardless of the shade, this offence is distinct from offences such as careless driving and not just a mere negligence matter which may find one defending a personal injury case. This offence calls for a “Marked Departure” from the norm not mere carelessness. What is a “Marked Departure” is a key decision the Court will have to resolve. What is clear is that one can not reason backwards from the consequences of the driving to conclude it is a “Marked Departure”. The analysis requires a more extensive analysis and a key focus is on the nature of the driving itself. An important concern in this area is public safety.

A person charged with Dangerous driving offences can in addition to defending the criminal case , find him or herself as a defendant in a civil case for damages. Depending on the seriousness of the case , a penitentiary sentence is not out of the order. Sometimes these charges are coupled with other charges, for example failing to remain at the scene of an accident which can compound matters. Apart from jail time, driving prohibitions add further restrictions on freedom.

Dangerous Driving can commence in many different ways. Someone could have stolen a car , gotten caught and a police chase ensues. Someone could have a drug addiction and should not have taken the wheel in the first place. Someone could have had a heated argument with one’s spouse and filled with anger and not thinking clearly jumped into a car and driven in a manner that attracts the long arm of the law.

Dangerous driving is not limited to cars. Defendants have been successfully convicted in motorcycle accidents where a marked departure is present and the motorcycle may have collided with a car and then went off on its own seriously injuring a pedestrian on a nearby walkway.

Driving is a privilege and not a right. When we lose our sense of self-control, reason, caution and jump into a vehicle , depending on the circumstances, the wheels could be set in motion with multi adverse consequences to the driver and the public.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Setting aside a Default Judgment for Foreclosure in Ontario

Foreclosure is a remedy available to a mortgagee upon default in which there has always been close regard for the rights of the mortgagor. The rationale for foreclosure is not to punish a defaulting mortgagor or to express the court’s reservations about the conduct of the mortgagor. Its underlying rationale is to enable the mortgagee to recover payment of the debt for which it stands as security, to the extent the value of the property permits. A mortgagee has no inherent right or, absent prejudice, any equitable right to benefit from foreclosure to a greater extent than that.

Sometimes a mortgagee may get a default judgment for foreclosure. A motion can be brought to set aside the default judgment. The court has a broad jurisdiction to set aside default judgment and grant relief from foreclosure but a number of factors are considered before the court makes a decision. The factors include:

@ Whether the motion to set aside was made with reasonable promptness;

@ whether there is a reasonable prospect of payment at once or within a short period of time;

@ whether the applicant mortgagor has been active in endeavouring to raise the money necessary;

@ whether the applicant has a substantial interest in the property or the property has some special intrinsic value to him or her;

@ whether the property has been sold after foreclosure and whether the rights of the purchaser will be unduly prejudiced

@ whether the equities in favour of reopening the foreclosure order outweigh the equities against doing so. Weighing of the equities can’t be done without taking into account the relative prejudice to the respective parties, in making or not making the set aside order. *

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the particular circumstances of your case.

Misapprehension of Evidence: Criminal Law

An appellant in an Ontario Criminal Proceeding may sometimes rely on the “misapprehension of evidence” ground as a basis to set aside the lower court’s decision. Misapprehension of evidence means a number of things in Ontario including:

@ Misapprehension of evidence may refer to a mistake as to the substance of the evidence or a failure to consider evidence relevant to a material issue or a failure to give proper effect to evidence.

@ A misapprehension of evidence must have played an essential part in the reasoning process that led to conviction.
It can’t be peripheral.

@ The misapprehension of evidence can’t be confused with a different interpretation of the evidence than that adapted by the trial judge. *

William Poulos, Barrister
* This blog is for general information only and not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on your specific circumstances.

S.8 of the Canadian Charter of Rights and Freedoms

Section 8 of the Canadian Charter of Rights and Freedoms protects a claimant’s reasonable expectations of privacy against unreasonable state intrusion.
Section 8 stands as a shield against unjustified state intrustions on personal privacy. A s.8 privacy claim may relate to the person, a place, information
or any combination of the three.

A claimant alleging a breach of s.8 must show first that the impugned state conduct amounted to a search or seizure and, second, that the state conduct fell below the reasonableness standard. If the claimant establishes a warrantless search, the onus rests on the Crown to demonstrate , on the balance of probabilities, that the search was reasonable.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your matter.

Fundamental duties of Lawyers to Clients

There are some key fundamental duties Ontario Lawyers owe to clients. The following is a list of a few, but the list is not exhaustive:

> A lawyer’s fundamental duty is to act in the best interests of his or her client, to the exclusion of all other adverse interests, except those disclosed
to and willingly accepted by the client;

> A lawyer must not keep the client in the dark about matters he knows will be relevant to the retainer;

> A lawyer must avoid competing interests precisely so that he or she can remain committed to the client, ensuring that divided loyalty does not cause the lawyer to soft-pedal
his or her representation of one client out of concern for another;

> A law firm cannot terminate a client relationship purely in an attempt to circumvent its duty of loyalty to that client. *

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Mutual Final Releases: Ontario

Releases are customarily signed at the end of litigation by the parties. The courts sometimes are called upon to interpret the breadth of the releases signed. The following are some principles the courts will consider in interpreting a signed release:

(a) One looks first to the language of a release to find its meaning;

(b) Parties may use language that releases every claim that arises, including unknown claims. However, courts will require clear language to infer that a party intended to release claims of which it was unaware;

(c) General language in a release will be limited to the thing or things that were specially in the contemplation of the parties when the release was given;

(d) When a release is given as part of the settlement of a claim, the parties want to wipe the slate clean between them;

(e) One can look at the circumstances surrounding the giving of a release to determine what was specially in the contemplation of the parties*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

S. 10(b) Canadian Charter of Rights and Freedoms

Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees that upon arrest or detention every person shall have the right to retain and instruct counsel without delay. The purpose of this section is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

The right to counsel is broken down into information and implementation components. The information component requires that the police advise the detainee of his or her right to retain and instruct counsel without delay and that the detainee be advised of the existence of Legal Aid and duty counsel. The implementation component requires that the police provide a detainee with a reasonable opportunity to exercise the right to counsel and that the police refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity to exercise the right to counsel.

The case law has recognized that the implementation component can be delayed in circumstances of urgency or danger.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Self-Defence in Ontario : An Air of Reality

Where a defence of self-defence is raised, before the Court takes steps to fully consider it, the Court must first decide whether there is an air of reality to the self-defence point.

When a trial judge determines whether there is an air of reality to a self-defence argument, the trial judge does not make credibility findings, weigh evidence, make findings of fact or draw factual inferences. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury or the trier of fact and not how the jury or trier of fact should ultimately decide the issue. The air of reality test is not a high burden. The Court must determine if there is some evidence upon which a reasonable instructed jury could find that self-defence applies.

If there is an air of reality to the defence of self-defence, then the Crown must disprove beyond a reasonable doubt that the defendant acted in self-defence. The Crown can do this by proving beyond a reasonable doubt that one or more of the preconditions for self-defence in s.34(1) of the Criminal Code do not apply as follows:

1. Did the accused believe on reasonable grounds that force or a threat was being used against him or her?

2. Was the act that constitutes the offence committed for the purpose of defending or protecting the accused from the use or threat of force?; or

3. Was the act committed reasonable in the circumstances? *

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.