Break and Enter in Canada

Like many Criminal Offences, there are a host of different factors that come into play when sentencing the Break and Enter Defendant. A spectrum of cases exist from the less serious to the Defendants who face serious penitentiary time. A justice must balance a number of factors to arrive at a fair sentencing disposition. Some of the large number of factors that have been considered (the list below is not exhaustive) are:

@ First time Offender or Break and Enter pro with numerous prior convictions for Break and Enter?

@ Youthful offender?

@ Gladue considerations?

@ Home invasion with occupants present or break and enter with no one home?

@ Weapons used?

@ Breach of court orders while committing Break and Enter Offence?

@ Violence, serious injury?

@ Plea of guilt? Showing of remorse? Co-operation with Police?

@ Positive Pre-Sentence Report?

@ Out of Character behaviour?

@ Supportive Families? Full time employment, children relying on Defendant for financial support? Good Rehabilitation potential?

@ Drug addiction?

As can be seen, the above non-exhaustive sample of factors shows just a few of the matters that may come across a Criminal Sentencing Justice’s desk. The Justice must apply skill and creativity to craft the proper disposition, protecting the public, achieving deterrence but then also being sensitive to the unique factors in each individual case. *

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.

Practicing Law with Professionalism, Integrity, Humility

Some of us have to know the intricacies of sentencing law. Others must ensure construction liens are registered on time. Some have to be up to date on the law of rescission. Others may have a strong working knowledge of trust law concepts. Others are quite prepared to deal with Charter issues, hearsay arguments, bad character evidence issues, similar fact evidence or Mareva injunctions. Yet others must ensure all ducks are in a row as a large Corporate deal works its way towards closing. Title insurance is something some of us won’t be able to ignore. Ensuring a distress is properly taken in commercial lease matters may be somebody’s concern tomorrow. Others may feel the weight of prosecuting a criminal organization/ gang matter. Some may have to move rather quickly to try to get bail for another. Others may try to avoid someone getting bail. Appeal processes may occupy some minds, others will be dealing with issues before the Ontario Human Rights Tribunal.

As Lawyers we are collectively called upon to serve so many causes, deal with a number of injustices and try to balance the scales to arrive at a fair result. Much study and effort has gone into knowing all these different areas and keeping current on the fine points that may come across one’s desk, whether substantive law, procedural law, ethical issues or any other host of issues that may arise.

But ultimately, the study of law is about maintaining professionalism and integrity in the face of a number of various challenges. And also important is maintaining humility and a sincere concern for the people caught up in the legal process, our clients.

So regardless of the court, the situation, the challenge, applying the professionalism, integrity and humility guides will provide reliable navigation through many types of legal forests. While the forests may change from week to week, month to month, year to year, our guides will always be there to help with navigation.*

William Poulos, Barrister
* This legal 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 Strands of Criminal and Civil Cases

Many cases have different legal strands weaving through them. Recognizing those strands and marshalling the facts and law around them is important to the structure/integrity of a given case.

A Criminal lawyer may have many strands to worry about. There could be forensic evidence strands, hearsay issues, disclosure matters, bad character issues, similar fact evidence strands, identification issues, immigration threads Charter issues, party liability matters and so on.

A Civil lawyer also will have to be concerned in cases about multi-strands. There could be pleadings issues, discovery issues, constructive trust/fiduciary principles, and there is always the concern with limitation periods.

Regardless of whether the case is Criminal or Civil, there is one common strand: issue identification. Each strand of the case must be understood and preparation will involve an understanding of all strands to best preserve the structure of a case for trial or to even set up a favourable settlement outcome. Miss an important strand, and the structure of the case weakens. Civil and especially Criminal Law requires sound understanding of evidentiary law and the many strands that fall within this area. The latter area also in Canada requires a sound understanding of Canadian Charter of Rights and Freedoms law. So dealing with a case and marshalling the law on 2 strands is not enough if a material third or fourth strand is not dealt with. Your legal case /building may be propped up in litigation for a while on the 2 strands you are focused on, but at some point the building can come crushing down with it’s weakened structure.

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.

Running the Litigation Path

A plaintiff commences an action for relief. The hope is the plaintiff’s action will make it to the finish line whether on settlement or at trial with the relief requested or at least a substantial part of it. Along the way there may be hurdles in the race: hurdles which can put an end to the race. Our Civil Litigation system has a number of hurdles that are purposely set up to block those seeking to use the racetrack when they don’t belong on it. A plainly obvious claim that has no merit can meet its first hurdle early under Ontario Rules of Civil Procedure, Rule 2.1, and ultimately the Justice could put an end to the claim early in the race under that rule. But even if this first hurdle does not apply or is successfully jumped, others potentially will appear before that desired litigation finish line. Motions to strike pleadings under Rule 21, Motions to dismiss actions that are not reasonable, and an often used potential hurdle, the motion for summary judgment. All these hurdles ensure that the racetrack is used for legitimate runs not those who wish to use the tract for collateral improper purposes and for cases that simply don’t belong on the track.

Proper pleadings at the outset go a long way to helping in the run to the desired outcome. This requires knowledge of the different potential types of claims, remedies and the material facts to support them. Without this, it is like a runner going down the track with shoe laces undone: inevitable trip.

The litigation path to be followed to the desired finish line requires that the race include hurdles. Without proper hurdles in the system anyone with the wrong motives can use the track. Track time is limited as are the resources that support it to ensure fair , timely races for those that belong on the track. So even if a runner has a proper pleading and clears initial hurdles, there are potentially more to come down the race path, ex motion for summary judgment.

Gather and reflect on the material facts in your case. Reflect on the possible legal claims. Prepare for the run and always as you are going down the path be open to new information that comes in and be flexible to adjust to this new information. It will help to deal with each hurdle as it may arise. *

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.

Substance in harmony with Form: Court Matters

The substance over form principle appears in many areas of law. The Court is concerned with the essence of the matter before it regardless of the label that may be used by one of more parties. There may be advantages to one party by labeling the relationship as X as opposed to Y or to labeling the issue as A instead of B. If we can define the issue, sometimes that might work to a party’s favour depending on how the issue is worded. But here again , substance prevails, as the Courts taking into account all relevant factors will be very interested in getting to the heart of the matter. The “labeled” issue by one party must coincide with what really is in dispute not what a party knows he or she can successfully advocate. Collateral issues add to the time and expense of a lawsuit and parties are left to drift in the legal forest without any real compass. Bearing in mind what really is in dispute and how you are going to prove it, will go a long way to navigating legal terrain.

Part of your navigation through legal terrain may involve all sorts of legal documents. In litigation, there are notices, court forms, actions, applications ,factums and a myriad of other court documents/forms to deal with different aspects of litigation. The best navigation tool here will be to have your substance and form work in harmony. Form is important as it conveys your credibility, your professionalism and your knowledge/skill. So law is not just about Substance trumping form. To get to your litigation destination, the best path will be not just to hope the substance over form principle will carry the day but rather substance working in harmony with form from the outset until you reach your destination.

Although , substance often trumps form when it has to facilitate justice, the two applied in harmony will help you better navigate the legal forest. It is true the forms and court documents don’t mean much if they don’t contain the substance but attention to both the form and the substance and ensuring they are working together to best present your case in the best possible light is a useful guiding light from the very beginning of a lawsuit to its end whether by court order or settlement.

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

The Law of Negligence: Value-ridden law

Duty of care, standards of care, proximity, reasonable foreseeability, risk of harm. Words we see in the law of negligence. This area of law has its foundations in important values: fairness, justice but also accountability ,but not to the point of indeterminate liability. Accountability for many: Lawyers, Engineers, Architects, Police Officers, drivers of vehicles and the list goes on and on. We value accountability/responsibility in our society. We are human , we make mistakes. But when we make mistakes that are reasonably foreseeable we value holding the defendant to reasonable standards of accountability. Our society depends heavily on the responsibility/accountability of others.

At the same time, we balance our value of accountability with other values such as fairness. If there is no causation of harm, there should be no liability. If a defendant has not been perfect but has acted reasonably we know that people are not perfect and we value not holding people to this perfect standard. We all make mistakes.

Our values of accountability extend to all types of harm. Physical harm, Property damage, Psychological injury, Pure economic loss. And we place a value in sharing the blame/loss : multiple tort defendants and joint and several liability and contributory negligence.

The categories of Negligence are not closed. Our law has left open the doors to the development of new torts. And we have a framework in the Anns test for assessing whether in law we should recognize new duties of care. They say the Charter of Rights and Freedoms is like a living tree which develops in time and Negligence law also has living roots. No doubt policy considerations come into play at the appropriate stage in the Anns test but as our laws change and develop one thing will always be our guiding force: Our values.*

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 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.