Updates to SOIRA orders

SOIRA Orders

Under the Criminal Code (“CC”), when convicted of certain offences (ex. sexual interference, invitation to sexual touching, child pornography, sexual assault, etc.), an offender will be ordered to comply with the Sex Offender Information Registration Act (“SOIRA”).

A SOIRA order involves mandatory reporting to a registration centre:

• upon the Order or their release from prison

• once a year thereafter

• after any change in address(es) or name, or receiving a driver’s licence or passport

• before and after any departures of 7 or more days

Reporting to a registration centre involves reporting the following information:

• name, date of birth, gender, address(es), phone number

• height, weight, and distinguishing marks

• addresses of employment, volunteer, or education

• vehicle licence plate, make, model, body type, year, and colour

• driver’s licence number and passport number

SOIRA orders can last for 10 years, 20 years, or life, depending on the circumstances of the offence.

Recent Changes to SOIRA Orders

The Supreme Court of Canada recently made changes to SOIRA orders in the case of R v Ndhlovu.

The decision specifically dealt with 2 provisions of the Criminal Code:

• section 490.012: mandatory SOIRA orders for offenders convicted of designated offences (regardless of length, whether it be 10 years, 20 years, or lifetime)

• section 490.013(2.1): lifetime SOIRA orders for offenders convicted of multiple offences

The Supreme Court found both sections to be unconstitutional.

The lifetime law was immediately removed from the Criminal Code, and anyone who received a lifetime SOIRA order in the past can apply to have them varied to 10 or 20 years.

However, the mandatory law, while unconstitutional, was allowed to stay in the Criminal Code for 1 year, giving Parliament time to re-write the law in a way that is constitutional. This also means that anyone who got a mandatory order in the past, or who gets one in the next year, is not entitled to have them automatically lifted.

The Supreme Court still left open an option for those who receive a mandatory SOIRA order though. An offender can make an Application (*but no guarantee the Court will grant it*) arguing that the mandatory imposition of their SOIRA order was unconstitutional and should therefore be lifted, if they can prove the following:

1)   They are not at an increased risk to reoffend; and/or

2)   The compliance with their SOIRA registrations has been especially onerous

Contact us if you have more questions about varying your SOIRA order.

Do you need to give the police your phone password?

The Short answer is no. If the police seize your phone during a search, you don’t need to give them your password so they can open it. Section 7 of The Charter of Rights and Freedoms protects your interests in life, liberty, and security of the person. Included here are your rights to protect yourself against self-incrimination and to remain silent before a trial has started. By giving up your phone password during a search or investigation, you are acting as a witness against yourself.

Courts have upheld this right as well. In R v Shergill, police applied for a warrant to search Mr. Shergill’s phone for evidence of child pornography. Alongside applying for the warrant, they applied for an assistance order so that Mr. Shergill would have to unlock his phone for authorities. The Court rejected the application for an assistance order by upholding Mr. Shergill’s right to remain silent and not testify against himself.

One exception to this rule is at the U.S border. American Customs and Border Protection agents have the power to compel you to unlock your phone during a border search. If you don’t comply, they can seize the device for further review.

If you ever find yourself in a situation where the police are executing a warrant and ask for the password to your phone, computer, or any other electronic device, do two things. First, kindly say no. Second, give us a call at Ellis Criminal Law. Searches are stressful. We have the experience to make sure that your rights aren’t violated when they’re most vulnerable.

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 if I committed a crime while I was drunk and I don’t remember?

In some cases, intoxication can be relevant to refute the mental or ‘mens rea’ element of a criminal offence. An important distinguishing factor in the defence of intoxication is whether a person was voluntarily intoxicated. If an accused unknowingly consumes an intoxicating substance or had an unexpected reaction to medication, this will be considered involuntary intoxication, which could negate the intent of the offence. For example, if someone was forced to ingest an intoxicating substance or it was surreptitiously put into food or drink they ingested, the defence of involuntary intoxication will take effect. However, if a substance was voluntarily consumed and the person ought to reasonably have known that it was an intoxicant, an involuntary intoxication defence will fail. This was decided in court of appeal cases such as R v Chaulk and R v Abel.

Voluntary intoxication is more complex. Simply being intoxicated when you commit an offence is not in itself a defence. There is a very small percentage of cases where the intoxication is so extreme that a defence of voluntary intoxication is available. Voluntary intoxication can only be used in circumstance of a general intent offence, rather than specific intent. General intent offences only require the accused intended to do the act in question (for example, assault will only require touching another person without consent), while specific intent offences involve the intention of something more (for example murder requires intentional infliction of harm and intention to kill). If an accused wishes to use voluntary intoxication as a defence, the burden of proof then shifts to the defendant to prove on a balance of probabilities that they were so intoxicated that they lacked the mens rea to commit the offence. Even if an accused was intoxicated while committing a general intent offence, self-inducted intoxication will not be a defence if the accused departed from the standard of care reasonably required in Canadian society. As seen in R v Holland, simply producing evidence of intoxication is not enough to establish this defence. So, while intoxication CAN be used as a defence in some cases, it is under very strict circumstances, and it is up to the accused to convince the Court that it should be available to them.

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.