Criminal courts will be called on to pass a sentence on an individual after a finding of guilt.However the criminal courts also have the power to sentence an organization. When sentencing an organization the court shall take into account a number of factors , including the ones below:

• any advantage realized by the organization as a result of the offence;
• the degree of planning involved in carrying out the offence and the duration and complexity of the offence;
• whether the organization has attemped to conceal its assets or convert them , in order, to show that it is not able to pay a fine or make restitution;
• the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees;
• the cost to public authorities of the investigation and prosecution of the offence;
• any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence;
• whether the organization was- or any of its representatives who were involved in the commission of the offence were – convicted of a similar offence or sanctionned by a regulatory body for similar conduct;
• any penalty imposed by the organization on  a representative for their role in the commission of the offence;
• any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of  the offence; and
• any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.

William Poulos, Barrister

You have been charged with production of marihuna after the execution by the Police of  search warrant.

What is a very important document the defence will wish to look at? The document defence counsel should review is called an Information to Obtain (“ITO”) which would have been presented by the Police to the court in support of  the issuance of the search warrant. This document should be reviewed to determine if it contains misrepresentations including the ommission of information that the court should have known about. Based on the review of the ITO it may lead you to bring a Section 8 Charter application arguing illegal search and seizure (based on an improper search warrant) and that any evidence obtained by this illegal search should be excluded under s. 24 of the Charter.

It is important to obtain the ITO for review for other matters as well. Review of this document should take place before any Crown or judicial pre-trial so that the latter attendances are meaningful. Review of the ITO will allow the defence to determine if any Crown resolution offer is realistic, help the defence with any elections that must be made and determine whether an examination of the ITO affiant is necessary.

Do not get pushed into conducting settlement discussions/conferences without getting and reviewing all the important information the defence should have. This would include the ITO information in support of the search warrant subject to any valid vetting or redacting of the ITO that applies.

William Poulos, Barrister

Ignorance of the law does not excuse the acts of either a citizen or a police officer. Police have significant powers and duties but these powers/duties will not be extended to the enforcement of laws that don’t exist (may have been repealed for example) nor extended to actions taken in ignorance of the law. As the old saying goes, no one is above the law and that includes those responsible for enforcing the law.

William Poulos, Barrister

Special sentencing principles/ provisions apply to youths charged with criminal offences. The philosophy of the Youth Criminal Justice Act (“YCJA”) is incarceration of Youths is a last resort: this philosophy applies during the youth criminal process including at bail hearings and at sentencing.

Section 31 of the YCJA is an important provision in for example Bail hearings involving Youth. This section leaves open the possibility that a youth pending trial , who would otherwise be detained in custody, could be placed in the care of a “responsible person” . A judge is required to inquire as to the availablility of a responsible person and whether the young person is willing to be placed in that person’s care, before denying bail to a youth.

There are important reasons why Youths are treated differently than adults, for example at their bail hearings or on sentencing. These include the  premises that because of the Youth’s age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability.

The YCJA has a unique philosophy and approach to punishment which can not be forgotten for Youths charged with criminal offences. Many Youths have reasonable prospects for rehabilitation if given a second chance.

William Poulos, Barrister

The police have authority to investigate a 911 call and , in particular, to locate the caller and determine his or her reasons for making the call and provide such help as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property.

William Poulos, Barrister

Strip searches, where appropriate, should generally only be conducted at the police station, except where there are exigent circumstances requiring that the detainee be searched prior to being transported to the police station. These exigent circumstances will only be established where the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station.

Strip searches in the field can only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field.

Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee’s bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances.

William Poulos, Barrister

Exigent circumstances have been recognized in case law as a basis for searching property without a warrant. Cases that have reviewed the issue of “exigent circumstance” appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization for a warrant could be obtained. The second basis emerges where there is a concern for public or police safety.

William Poulos, Barrister

Section 282(1) of the Criminal Code of Canada states:

“Every one who , being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with the intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years;
(b) an offence punishable on summary conviction.

Custody orders and their terms must be respected. Family matters can transcend into the criminal forum if the appropriate circumstances are in place. For ex, say a mother has custody of two kids, aged 9 and 11 and the father has access rights under the terms of the custody order (Christmas, spring, summer) and telephone access every other day.The mother decides to pull the kids out of school and travel to a far off country with her new spouse(without informing her old spouse who has access rights) and goes to great pains to frustrate the father’s access rights, not leaving a proper address or number at which she and the kids can be reached and keeping the kids away for several months deliberately frustrating the father’s access rights. In the latter situation, the above criminal code provision could be triggered and the Police might lay a charge. In fact the Police have laid a charge in a circumstance such as this which resulted in a conviction.

Our Criminal Code places a significant value on following court orders such as custody and their terms .A deliberate intention to frustrate these orders may lead to matters transcending to the Criminal level.

William Poulos, Barrister

There are some basic criminal sentencing principles the Courts bear in mind when deciding what sentence to impose upon an accused found guilty of a crime.

Section 718 of the Criminal Code of Canada provides, in part, that the fundamental purpose of sentencing “is to contribute…to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of six objectives”. Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarily tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender. Whatever sanction is imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Further , a court that imposes a sentence “shall also take into consideration” the principle, among others, that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

The diversity of the circumstances in which a crime can be committed and of the antecedents of those who may commit it gives rise , depending on the circumstances, to a wide variety of potentially appropriate sentences. In some cases, however, depending on their nature, there may be statute imposed minimum sentences or mandates that dictate that conditional sentences are not appropriate.

William Poulos,  Barrister

The Crown must prove an accused’s guilt beyond a reasonable doubt. Sometimes depending on the circumstances of the case, the Crown will try to rely on similar fact evidence to establish their case. That is , the Crown will endeavour to tender evidence of other similar transactions, events, circumstances the accused was involved in to establish an objective improbability of coincidence between these similar transactions, events etc and to allow the court to conclude that the accused is guilty .

Defence Counsel must be alert to  similar fact evidence issues.This type of evidence has to pass some hurdles before it can be admitted in evidence against the accused. In considering whether similar fact evidence should be admitted the basic question is whether the probative value of the evidence outweighs its prejudicial effect.

In assessing the probative value of purported similarities, some of the considerations to consider include:

• the temporal proximity of the incidents;
• the physical or spatial proximity of the events;
• the similarity in detail between the various acts;
• the number of putatively similar acts;
• the circumstances surrounding the incidents at issue;
• distinctive features unifying the incidents;
• the occurrence and nature of any intervening events ;
• The prospect of collusion among the complainant witnesses is also a factor to be considered in appraising probative value (for example do all the complainants have a financial or other motive to make up the allegations against the accused and did the complainants consult with each other before charges were laid against the accused)

As can be seen the admission of similar fact evidence should not just be rubber stamped. It can be unfairly prejudicial to an accused. There will be circumstances where Defence Counsel will have a legitimate argument that the similar fact evidence proposed by the Crown should not be admitted because its prejudicial value outweighs its probative value. Counsel must be alert to evidentiary issues and the similar fact evidence area is only one example where significant court debates can arise on whether this type of evidence should be admitted in court.

William Poulos, Barrister