Sometimes adjournments of court proceedings are necessary and unavoidable. However if you have a valid reason for an adjournment, bring it to the other side’s attention as soon as possible. You may find the other side, whether the Crown Prosecutor or an adversary in a civil proceeding ,will consent to your adjournment with or without terms.

Court resources are scarce. Justices are very busy.  An efficient use of court resources requires that adjournment requests not be frivolous and when they are based on merit must be advanced as soon as possible, out of courtesy to busy court schedules.

Ultimately whether or not an adjournment will be granted is a discretionary decision of the presiding Justice. But don’t wait to bring the adjournment request to the court’s attention or to the Crown’s attention at the last minute. The Courts wish to ensure that any booked time for trials etc is used efficiently and is not wasted because a matter can’t proceed, and there is no other matter that can be called to replace it on very short notice.

Respect the judicial system and the system is likely to return respect to you. Disrespect the system and you run the risk that your adjournment request may not be granted or if granted will be granted on more onerous terms than you had hoped for.

William Poulos, Barrister

Dangerous Driving is a Criminal Offence under Canada’s Criminal code. What may start off as a simple taunt or challenge could lead to a criminal offence for Dangerous Driving. Road Rage could lead to the same predicament.

The crime of Dangerous Driving is established where the prosecution proves a marked departure from the standard of conduct of a reasonably prudent driver in all the circumstances. Did the accused exercise the appropriate standard of care? All of the circumstances must be examined in the context of the nature, condition and use of the highway by the accused and the reasonably anticipated use by others. There must be a danger to the public actually present or which might reasonably be expected in the vicinity when the driving occurred.

William Poulos, Barrister

After you have been charged with a criminal offence, a number of outcomes could occur. You could be found guilty if the Crown proves its case beyond a reasonable doubt. However, based on the circumstances of your case, your charge(s) may be withdrawn or stayed or you may be acquitted. In the latter scenario, it will be important to follow up with a letter to the Chief of Police at the location where any fingerprints/photographs were taken of you ,during the processing of the charges, to request that all copies of your fingerprints and photographs related to the subject matter  be destroyed .

William Poulos, Barrister

When can entrapment occur? It can occur where the Police provide a person with an opportunity to commit an offence without acting on:

(i) a reasonable suspicion that this person is already engaged in criminal activity; or

(ii) without acting pursuant to a bona fide investigation.

If the court finds entrapment has occurred, it has the power after a finding of guilty to stay the proceedings.

Where have entrapment arguments surfaced? One scenario is the internet. The Police will obtain an email address, for example a hotmail address, and engage in an exchange on the internet. The Police have also entered internet chat rooms.

A close analysis of the circumstances in any given case will be necessary to determine whether there is a reasonable argument for entrapment or whether the Police conducted a proper investigation.

William Poulos , Barrister

An accused has the right to disclosure of information from the Crown in Criminal Proceedings.  The purpose of disclosure ensures that the accused knows the case and can exercise his or her right to make full answer and defence. Disclosure may also serve to bring an early resolution of the case after exploration of the strengths and weaknesses in the parties’ cases.

Defence Counsel will make a request for disclosure from the Crown. Some of the common items that appear in disclosure packages include:

• A copy of the information or indictment (Charging Document)
• Particulars of the circumstances surrounding the offence
• Copies of written witness statements or production of “will-say”
• statements or summaries of anticipated evidence whether or not the Crown calls them as witnesses.
• a transcription of notes taken by investigators when interviewing witnesses (where person did not provide witness statement)
• An opportunity to view and listen to the original or a copy of any audio or video recording of any statements made by a witness other than the accused to a person in authority.
• A copy of all written, audio or video recorded statements concerning the offence which have been made by the accused to a person in authority
• particulars of the accused’s and any co-accused’s criminal record.
• Copies of all expert witness reports whether helpful to the Crown or not.
• Copies of all documents, photos, audio or video recordings of anything other than a statement of a person, that Crown counsel intends to introduce as evidence during the case-in-chief of the prosecution.
• An appropriate opportunityto inspect any case exhibits ie items seized or obtained during the investigation of the offence which are relevant to the charges before the court whether or not Crown Counsel intends to formally introduce them as exhibits
• A copy of any search warrant that the Crown relies on and a list of items seized thereunder
• If intercepted private communications will be tendered by the Crown , a copy of the judicial authorization or written consent under which these communications were intercepted
• Specifics of any similar fact evidence that Crown Counsel intends to rely on at trial
• particulars of any procedures used outside court to identify the accused
• Upon request, information regarding the criminal records of material Crown or defence witnesses that is relevant to credibility
• particulars of any other evidence on which the Crown intends to rely on at trial
• Any info the Crown has which the Defence may use to impeach the credibility of a Crown witness in respect of facts in issue in the case.
• Any additional relevant information received from a Crown witness during an interview conducted by Crown Counsel in preparation for trial

The above is not an exhaustive list and there will be limits to disclosure, for example privileged information.  Sometimes the information will be freely given, other times a ruling by a justice may be required on the issue/ambit of disclosure the Defence is entitled to.

William Poulos, Barrister

A trial judge is not functus officio in a trial without a jury until he or she has imposed sentence or otherwise finally disposed of the case. A trial judge who has made a finding of guilt on disputed facts has the authority to vacate the adjudication of guilt at any time before the imposition of sentence or other final disposition. This authority, to vacate an adjudication of guilt , is exercised only in exceptional circumstances and in the clearest of cases.

The test for re-opening the defence case when the application is made after a finding of guilt is more rigorous than that which governs a similar application prior to an adjudication of guilt. A trial judge will consider whether the application to re-open is , in essence, an attempt to reverse a tactical decision made at trial.

William Poulos, Barrister

A sentencing court is obliged to take into account the unique circumstances of an offender who is an aboriginal person. In Criminal sentencing in this context , a Gladue report can be filed before the Sentencing judge.

A Gladue report and its recommendations are holistic and contextualized accounts that characterize the Aboriginal Offender’s needs, risk and community options differently from the actuarial risk-based character of Pre-Sentence Reports. Essentially the Gladue Report adapts a non-actuarial model and a more contextualized approach to situate and frame the Aboriginal Offender’s risk.

A Gladue Report is intended to contextualize the life and behaviour of an Aboriginal person, including the offender’s family’s experiences and his/her spiritual , cultural, family and community support network. For example, the courts are interested in: the family’s involvement in the criminal environment; whether the offender or family members attended residential school; if so, where, how many years, how were they treated, how long were they denied family contact; the main social issues affecting the offender’s home/original community;how the offender’s family/community addressed those issues; how the offender , offender’s family and the community have been affected by economic conditions; and the quality of the offender’s relationship with family, extended family and the community.

William Poulos, Barrister

Under the Ontario Highway Traffic Act (“HTA”) a person convicted of any one of the following offences in the commission of which  a motor vehicle or snowmobile was used, faces an automatic suspension of his or her privilege to drive in Ontario:

• Criminal Negligence Causing Bodily Harm
• Criminal Negligence Causing Death
• Manslaughter
• Impaired Driving/Drive over 80/Refusal (all types)
• Dangerous Driving
• Flight from Police
• Fail to stop at Accident (all types)
• Street Racing

William Poulos, Barrister

A very important right of an accused is the right to cross-examine Crown witnesses. These witnesses might be Police Officers, Civilians, experts called by the Crown. The Crown will endeavour to put in a case that is very strong on a credibility basis or at least meets the burden of proof in Criminal proceedings (“proving each element of the offence beyond a reasonable doubt”).

 Credibility however can be weakened where Crown witnesses are found to embellish their evidence, where the evidence of Crown witnesses is inconsistent with each other, where Crown experts make shaky assumptions or assume the role of advocate for the Crown as opposed to the role of independent experts. Credibility of Crown witnesses is also weakened if they fail to admit the obvious or for example the notes of Police officers were not prepared to the standard they should have been and their memory of events that took place many months ago is not good or questionable.

Cross-examination of Crown witnesses is very important and many more hours are spent by Defence Counsel preparing the cross-examination outside court than actually conducting it in court. During out of court preparation , Defence Counsel ask: Should this question be asked at all? How should it be phrased to the Crown Witness? In what order should questions be lined up for this witness? and so on.

Many witnesses in Canada take the witness stand every year appearing very credibile at the outset and leave the stand with serious damage done to their credibility and to the Crown’s case. Cross-examination is a very important skill for Defence Counsel to employ at trials.

William Poulos, Barrister

The Police may arrest a person without a warrant where they have reasonable and probable grounds on which to base the arrest.  There are two components to this. First an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Second, those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of he officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.

William Poulos, Barrister