Legislation

Justice Tulloch Recommends Police Abolish Random Carding

Written on Behalf of Affleck & Barrison LLP

A new report entitled “Report of the Independent Street Checks Review“, completed by Ontario Appeal Court Judge Michael Tulloch, calls for a complete ban on “carding” by police throughout Ontario.

The report, which was commissioned by the previous Liberal government, came about following consultations with more than 2,200 individuals including representatives from 34 Ontario police services. The report specifically advocates for the widespread ban on carding. Carding has been shown to disproportionately target individuals of colour, including black and indigenous people.

WHAT IS CARDING?

Carding can be described as a street check where police randomly stop an individual to ask for identifying information in an effort to keep it in a police database.

This practice is considered unacceptable as the police do not have the authority to randomly or arbitrarily stop individuals and ask them to produce ID.

The practice of carding began in Toronto in 1957 when street checks were aimed at obtaining information on persons of interest to help detectives. Toronto police were given “Suspect Cards” to document and forward information regarding persons of interest to detectives. By 2015, this practice was formally called “Community Engagements”, and involved random stops of citizens and the collection of personal information, including physical appearance, address, and contact information. As time passed, investigative street checks expanded and police were given more discretion to stop people, including those who were not acting suspiciously. These street checks became a measure of police officer performance and they were incentivized to meet required quotas, with the bar for suspicious behaviour becoming lower and lower, and eventually dropped entirely.

 ONTARIO REGULATION 58/16

In 2016, the Liberal government implemented Ontario Regulation 58/16 under Ontario’s Police Services Act , which became effective January 1, 2017, to regulate carding.

Regulation 58/16 was aimed at stopping arbitrary carding practices by police officers, especially those based on race, and to clarify the rules surrounding street checks. Race is prohibited as constituting any part of a police officer’s cause for trying to collect an individual’s identifying information.

According to the Regulation, police officers were to inform those individuals randomly stopped that their participation is voluntary. It was also specified that officers were required to provide a receipt of the interaction.

Regrettably, Regulation 58/16 has been described as confusing and convoluted and often results in police officers avoiding street checks entirely to avoid accusations of racism for misinterpreting the regulation.

According to Justice Tulloch:

The improper practice of random carding led to the Regulation. The Regulation led many police officers to not conduct any street checks, whether improper or not. The lack of any street checks at all might have encouraged some types of crime to increase. 

The Regulation as it is drafted is a confusing and somewhat convoluted document to read. It was perceived by most stakeholders through my consultations – police and community members alike – as being too complicated and hard to follow. They felt it was written for lawyers, not police officers or community members. They wanted it to be simplified. Even lawyers who I have consulted with agree.

CONCLUSIONS MADE BY TULLOCH’S REVIEW OF THE PRACTICE OF CARDING

Following his extensive review, Justice Tulloch has concluded that police should not engage in carding or performing random street checks based on race alone or stopping people in order to fill a quota.

 According to Justice Tulloch,

There is little to no evidence that a random, unfocused collection of identifying information has benefits that outweigh the social cost of the practice. … Given the social cost involved with a practice that has not definitely been shown to widely reduce or solve crime, it is recommended that the practice of randomly stopping individuals to gather their identifying information for the creation of a database for intelligence purposes be discontinued.

Justice Tulloch did acknowledge that street checks are useful in cases where there are suspicious circumstances, or when police need to identify the identity of a missing person or crime victim.

Justice Tulloch, in his report, provided 104 recommendations on how to improve Regulation 58/16. He has recommended that the government take a harder line on street checks, that definitions such as “identifying information” and “suspicious circumstances” be tightened up, and that protections during vehicle stops be broadened. He has also suggested better police training in order for officers to understand the difference between legitimate street checks and illegitimate carding.  Justice Tulloch also recommended standardized data collection of police interactions and more local hiring.

It is uncertain, at this time, whether any of these recommendations will be implemented by the current Ontario Conservative government.

In response to Justice Tulloch’s report, Community Safety and Correctional Services Minister Sylvia Jones stated:

We continue to review and assess the recommendations made by Justice Tulloch. His report will inform our work, as we fix the Liberal’s broken police legislation. Our new police legislation will reflect a simple principle: racism and discrimination have no place in policing. You can count on us to ensure that our legislation enables police to protect the law-abiding people of Ontario.

We will continue to follow any developments regarding Justice Tulloch’s report as they become available, and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about any charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

 

Harsher Drinking and Driving Laws In Effect Next Week

Written on Behalf of Affleck & Barrison LLP

In Canada, impaired driving is the leading criminal cause of death and injury. Police report that in 2016, there were more than 70,000 impaired driving incidents, including almost 3,000 drug-impaired driving incidents.

On December 18, 2018, Part 2 of Canada’s new impaired driving legislation will come into force. These reforms to the impaired driving provisions of the Criminal Code include mandatory alcohol screening, facilitating the proof of blood alcohol concentration, eliminating and limiting defenses that reward risk-taking behaviour, and clarifying Crown disclosure obligations.

MANDATORY ALCOHOL SCREENING

The new reforms will implement mandatory alcohol screening in Canada. According to Canada’s Department of Justice website, research shows that up to 50% of drivers with a blood alcohol concentration above the legal limit are not detected at roadside check stops. Furthermore, other jurisdictions have found a significant decrease in fatal road accidents where mandatory alcohol screening was enacted.

With these changes, police officers will have an approved screening device on hand to test a breath sample of any driver they lawfully stop, even without reasonable suspicion that the driver has alcohol in their body. Under the current law, police officers must have reasonable suspicion that a driver has alcohol in their body before doing any roadside testing. Drivers who refuse to provide a breath sample could be subject to a criminal offence.

The Honourable Bill Blair, Minister of Border Security and Organized Crime Reduction, stated:

Giving law enforcement the ability to demand a breath sample from anyone following a lawful stop will make it easier to detect impaired drivers and get these drivers off of our roads. Those who get behind the wheel after using alcohol, or a combination of alcohol and drugs, will face serious legal consequences. Do your part in keeping yourself and loved ones safe and don’t mix alcohol or drugs with driving.

PENALTIES FOR IMPAIRED DRIVERS

Starting December 18, 2018, although mandatory minimum terms of imprisonment have not changed, there will be new mandatory minimum penalties including fines, and some higher maximum fines.

The new legislation for first time offenders with high blood alcohol concentrations that have not caused bodily harm or death is as follows:

  • With blood alcohol concentration (“BAC”) of 80 to 119 mg of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $1,000;
  • With BAC of 120 to 159 mg of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $1,500;
  • With BAC of 160 mg or over of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $2,000; and
  • A first time offender who refuses to comply with a lawful demand for a breath sample is subject to a $2,000 minimum fine.

For alcohol-impaired driving that does not cause bodily harm or death, the new mandatory minimum penalties for a second offence include a mandatory minimum 30 days imprisonment, and for third and subsequent offences a mandatory minimum penalty of 120 days imprisonment.

Drivers will also face the maximum penalty of life imprisonment for those convicted of dangerous driving causing death, which is a stiffer penalty than the current laws of a maximum of 14 years in jail.

DURHAM REGIONAL POLICE RELEASE NAMES OF ACCUSED IMPAIRED DRIVERS

Beginning November 15, 2018, Durham Regional Police launched their Festive R.I.D.E. program. Police officers have been conducting R.I.D.E. checks in Ajax, Pickering, Whitby, Oshawa, and Clarington.

Since commencing this campaign, Durham Police have been releasing the names of those charged with impaired driving every Monday under “Hot Topics” on their website. Those drivers that have been charged are identified by their name, age, gender, city, and the specific charges laid against them.

Earlier this month, York Regional Police also reported that they have adopted a “name-and-shame” campaign to keep impaired drivers off of the roads. York Regional Police will now release the names of those charged with impaired driving every Monday for the foreseeable future.

Durham Regional Police reported that its fourth week of the Festive R.I.D.E. program has led to 20 drivers being charged with drinking and driving offences after stopping more than 4,100 vehicles. In total, Durham Police has charged 63 drivers with drinking and driving offences during the four weeks of the R.I.D.E. program (down from 72 drivers charged at the same time last year). They also report that 51 motorists registered a WARN on a roadside screening device and had their driver’s licence suspended for 3 days.

If you have been charged with a driving offence of any kind or have any questions regarding your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Proposed Legislation to End Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

Following the Ontario and British Columbia Superior Court decisions that found that the use of segregation was unconstitutional (which we have previously blogged about), a new piece of legislation has been introduced which proposes to overhaul how federal inmates are separated from the general prison population.

Public Safety Minister Ralph Goodale has introduced Bill C-83 to amend the Corrections and Conditional Release Act. These changes would eliminate solitary confinement and replace it with “structured intervention units” (“SIUs”). The SIUs will allow inmates to be separated from the general population if they are unable to exist safely with the other prisoners.

HOW WILL SEGREGATION IN PRISONS CHANGE UNDER BILL C-83?

As it stands today, inmates placed in solitary confinement are allowed two hours a day outside of their cell, but are not entitled to any human contact. Under Bill C-83, prisoners who are found to be at risk to themselves or others will be placed in SIUs.

Prisoners placed in SIUs will have access to rehabilitative programming, interventions, and mental-health care. They will be visited daily by a registered health care professional and be provided access to patient advocates. These inmates will be given at least four hours a day outside of their cell and at least two hours a day with “meaningful” human contact.

Bill C-83 also proposes to allow staff members to use body scan imaging technology as an alternative to body cavity searches to prevent contraband from entering prisons.

Furthermore, Bill C-83 includes provisions that background and systemic factors should be considered in all correctional decisions in cases involving indigenous inmates.

Correctional Service of Canada Commissioner Anne Kelly supports the proposed legislation and stated:

I believe these legislative changes will transform the federal correctional system while ensuring that our institutions provide a safe and secure environment that is conducive to inmate rehabilitation, staff safety and the protection of the public. They will also help ensure that our correctional system continues to be progressive and takes into account the needs of a diverse offender population.

LIMITATIONS OF BILL C-83

Bill C-83 does not address the time limits for segregation or the independent oversight of segregation decisions, which are both issues that the federal correctional ombudsman and rights advocates have been lobbying for.

Furthermore, if this bill passes, this legislation will have no effect on the use of solitary confinement in all provincial jails. These jails are made up of pretrial prisoners and those inmates serving sentences of less than two years.

Goodale believes that the appeals by the Canadian Civil Liberties Association in Ontario and the federal government in B.C. with respect to the constitutionality of current policies for solitary confinement that are scheduled to begin next month will proceed. But, he is hopeful that this new legislation will address the concerns of all current policies and make further litigation regarding solitary confinement unnecessary.

CLASS ACTION LAWSUIT

A lawsuit has been certified by a Superior Court Judge as a class action lawsuit in Ontario alleging that the Ontario government violated the rights of its inmates by placing them inappropriately in solitary confinement.

The $600 million legal action alleges that the provincial government has been negligent in utilizing segregation by isolating prisoners for weeks, months or even years.

The lawsuit includes inmates diagnosed with severe mental illnesses (i.e. schizophrenia or psychosis) who served time in segregation in provincial facilities since January 1, 2009. Inmates who were placed in solitary confinement for 15 days or longer are also included in the class.

The main issue in the lawsuit is “administrative segregation”. This takes place when inmates are isolated either to ensure their own safety or for the safety of others in the facility. Inmates are kept in tiny cells without any human contact for most of the day.

Conrey Francis (“Francis”) is the representative Plaintiff for this class action lawsuit. Francis is the individual who represents the entire class in the action.

Francis has spent several periods of time in prison since 1982, and was placed in solitary confinement. Francis has been diagnosed with post-traumatic stress disorder and suffers from extreme panic attacks. Francis alleges that his time in isolation worsened his mental health and he began suffering from suicidal thoughts and auditory hallucinations.

We will continue to follow the developments of Bill C-83, the appeals regarding the rulings that administrative segregations are unconstitutional, and the class action lawsuit commenced in Ontario and will report any updates in this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please contact Affleck & Barrison at 905-404-1947 or contact us online. We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges. For your convenience, we offer 24-hour phone services.

Bill Tabled to Expunge Cannabis-Related Criminal Records

Written on Behalf of Affleck & Barrison LLP

A new bill has been introduced in the House of Commons to expunge the records of those individuals who have a criminal record for past minor, non-violent marijuana possession convictions.

New Democrat MP Murray Rankin has tabled the private member’s Bill C-415, An Act to establish a procedure for expunging certain cannabis-related convictions. Rankin estimates that more than 500,000 Canadians have a criminal record for personal possession charges for marijuana.

BILL C-415

The new bill proposes to expunge criminal records for those convicted of personal possession crimes that will no longer be considered illegal pursuant to Bill C-45, which comes into effect on October 17, 2018. This bill will also allow those applying for a pardon to not have to wait five to ten years and pay the current $631 fee. Under Rankin’s proposal, the process will be faster and entirely free.

In 2016, 58% of all charges related to the Controlled Drugs and Substances Act were related to cannabis, and approximately three quarters of those offences were for possession.

Supporters of Bill C-415 maintain that it is unreasonable to have individuals continue to be unable to attain jobs, volunteer in the community or coach a child’s sports team for doing something that will no longer be illegal in a weeks time.

MP Rankin notes that a disproportionate number of non-violent cannabis-related convictions belong to marginalized or racialized Canadians. He reports:

In Toronto, black people without a criminal record were three times more likely to be arrested for cannabis possession than white people. In Halifax, five times as likely. In Regina, it’s nine times more often for Indigenous people.

The federal government has made it clear that it will not consider marijuana pardons until after legalization. However, the possibility of doing so has not been ruled out and the government is currently evaluating the legal implications.

RECORD SUSPENSIONS (PARDONS)

A criminal record can be a barrier to attaining a job, volunteering, or going on a vacation out of the country. In order to remove your criminal record from law enforcement databases, you must be granted a Record Suspension (formerly known as a Pardon).

You do not need to apply for a Record Suspension if charges against you were dismissed, stayed or withdrawn, or did not result in a conviction.

Once you have completed your sentence and proven that you are a law-abiding citizen, you may have your record removed from the Canadian Police Information Centre database by being issued a Record Suspension.

Possession of marijuana up to 30 grams is a summary conviction offence. Those convicted of a summary conviction offence (less serious and punishable by shorter prison sentences and smaller fines, without the right to a jury trial) cannot apply for a Record Suspension until at least 5 years have passed since he/she completed his/her imprisonment, paid his/her fines, and completed his/her term of probation.

Canadians convicted of an indictable offence (more serious crimes) cannot apply for a Record Suspension under the Criminal Records Act until at least 10 years have passed since he/she completed his/her term of imprisonment, paid his/her fine, or completed his/her term of probation.

Those who have been convicted of a sexual assault or sexually-related crime or who have been convicted of more than three indictable offences cannot apply for a Record Suspension. The person applying for a Record Suspension also cannot be convicted of a subsequent offence and must prove to the Parole Board that he/she is of good character.

Clearing your criminal record involves three steps and a waiting period. These steps include data collection, data analysis, and the Canadian pardon application.

Prior to submitting your Record Suspension application to the Parole Board of Canada, it can take from 4 to 6 months to prepare the application and obtain the supporting documents.

An application for a record suspension costs $631, and with added fees for documents and records checks, it could cost in excess of $1,600.

If you are granted a Record Suspension, this means that your record is merely sealed. A member of the public cannot check online to see if you have a record, however, certain legal agencies can still access this information under specific legal circumstances.

On October 17, 2018, the Cannabis Act will become law and in Ontario adults who are 19 or older will be permitted to buy, use, possess, and grow recreational cannabis.  However, until legalization comes into effect Canadians will continue to be charged for cannabis offences.

We will continue to provide updates in this blog regarding the proposed bill to expunge criminal records for minor cannabis possession and the legalization of cannabis in Canada as this information becomes available, and will blog about developments as they arise.

In the meantime, if you are facing drug related charges or have any questions concerning your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Canada Has Approved Roadside Saliva Tests

Written on Behalf of Affleck & Barrison LLP

Canada’s Attorney General Jody Wilson-Raybould has approved roadside swab tests as a new approach to attack drug use and driving. This will be the first test of its kind in Canada. Police officers will instantly be able to check saliva for traces of THS (the psychoactive component in marijuana).

Currently, there is no accurate way for police officers to assess if an individual is driving under the influence while using cannabis products. Police officers use sobriety tests to check impairments of drivers they suspect are high. In the very near future, Canadian police will have a new tool to use to accurately confirm intoxication – the cannabis roadside saliva drug test.

The roadside saliva test is part of Canada’s revamp to its impaired driving laws. This test is part of Bill C-46, legislation that we have previously blogged about, which will come into force on October 17, 2018.

Wilson-Raybould approved the saliva test device after an independent panel of traffic safety experts and toxicologists evaluated and critiqued the test’s effectiveness.

HOW DOES THE SALIVA TEST WORK?

The saliva testing device will be able to immediately detect traces of cocaine and THC use within the last six hours. Police officers will use a small and portable machine to swab a driver’s mouth and receive results in real time. This testing device will provide a more accurate and reliable upgrade to the current field sobriety tests used by police officers (i.e. walking a straight line or standing on one foot).  A failed test gives police reasonable grounds to bring a driver in for further testing, including a blood test or an examination by a drug recognition expert.

It has been reported that the government will be investing $81 million over a five-year period to buy screening devices and provide officers with comprehensive training on drug-impaired driving.

The federal government is considering using the Draeger DrugTest 5000. This is a German-made mobile drug screening system that uses oral fluid to detect seven types of commonly used drugs. This device has already been approved for use in the United Kingdom and Germany.

This particular device may require modifications in order to operate in Canada’s tough winter climate. Early tests of this device in Northwest Territories and Saskatchewan found that “there were some temperature-related issues that arose when the devices were used in extremely cold temperatures”.

LEGAL CHALLENGES TO ROADSIDE SALIVA DRUG TEST RESULTS

Although the Canadian government is confident in the validity of the roadside saliva tests, the results of these tests will likely face multiple legal challenges from defence lawyers.

Bill C-46 allows the police to charge a driver with drug-impaired driving based solely on the presence of THC. There is no requirement for officers to prove actual impairment. However, unlike alcohol, the presence of THC does not always indicate intoxication.

We can expect that in the future many court cases will shed light on how individual tolerance of THC affects a person’s motor skills and how long cannabis can stay in an individual’s body.

BILL C-46 DRUG-IMPAIRED DRIVING

At the present time, the federal government has released a draft of its planned drug concentration levels and associated offences.

Three new offences for drug-impaired driving have been created under the drafted legislation of Bill C-46:

  • Drivers who have a blood drug concentration of more than two nanograms of THC (per milliliter of blood) but less than five nanograms could be found guilty of impaired driving under the proposed summary offence, which has a maximum fine of $1,000;
  • Drivers who have a blood drug concentration of more than five nanograms of THC in their blood could be found guilty of impaired driving similar to an alcohol-impaired driving conviction, including mandatory minimum penalties of a $1,000 fine on a first offence, 30 days imprisonment on a second offence, and 120 days imprisonment on a third offence;
  • Drivers who have a mixture of a THC level above 2.5 nanograms of THC in their blood and a blood alcohol concentration above 50 mg per 100 mL would be subject to the same penalties as above.

In addition, each province has the right to implement their own drug-impaired driving rules.

TIPS TO AVOID IMPAIRED DRIVING

Here are a few simple tips to avoid driving while you are impaired by drugs and/or alcohol:

  • Always have a plan to get home safely (a designated driver, use public transportation, call a friend or family member, call a taxi or ride share, or stay overnight);
  • Ask your doctor about side effects that may occur when using prescription medication;
  • Read the information on the package of your prescription or over-the-counter medication;
  • Ask your doctor or pharmacist about how a prescription drug can affect you when using alcohol or drugs of any nature; and
  • Remember that fatigue and stress will also affect your ability to drive safely.

If you or a loved one have been charged with an impaired driving offence or any other driving offence or have any questions regarding your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. Contact our office online or at 905-404-1947.

Big Changes Coming to Canada’s Impaired Driving Laws

Written on Behalf of Affleck & Barrison LLP

We are all aware that a significant piece of legislation, the Cannabis Act, has become law. This bill will come into force on October 17, 2018 and it will encompass all the rules regarding the control and regulation of how cannabis is grown, distributed and sold.

There is another piece of legislation, Bill C-46, related to the legalization of marijuana that also received royal assent last week. Bill C-46, also known as the Impaired Driving Act, is an overhaul of Canada’s impaired driving laws.

WHAT IS BILL C-46?

Bill C-46 will reform alcohol-impaired driving and drug-impaired driving and police have been given new tools to detect and prosecute drivers.

The bill is comprised of two parts. Part 1 creates three new offences for driving under the influence of various amounts of drugs and stipulates legal limits of such drugs.  This part also requires drivers not to drive within two hours of being over the legal limits and allows police to conduct tests to screen for drugs using “approved drug screening equipment”.

Part 2 of the bill raises the maximum penalty for impaired driving, reclassifies impaired-driving as a “serious criminality” offence and gives police the power to perform mandatory alcohol screening without reasonable grounds to suspect impairment.

The following are the four major changes to Canada’s impaired driving laws as set out in Bill C-46.

Random Roadside Breath Testing

The new legislation will allow police to request a roadside breath test from any driver. They will not need reasonable suspicion that the person has been drinking (i.e. smell of alcohol on a driver’s breath or slurred speech). Those who refuse the roadside breath test will face a criminal conviction with similar penalties to an impaired driving conviction.

Lawyers and civil liberties groups argue that this change in the law violates the Charter protection against unreasonable search. Furthermore, there is concern that this type of practice will disproportionately affect minorities due to racial profiling.

However, Justice Minister Jody Wilson-Raybould is certain that this directive will survive a court challenge. She referred to mandatory alcohol screening as “minimally intrusive, but the benefits in lives saved will be immeasurable”.

The government equated a mandatory breath sample to the requirement to show a driver’s licence.

Roadside Saliva Testing

The new law would allow police to use roadside screening devices that test saliva for the presence of drugs, including THC (the main psychoactive ingredient in cannabis). However, unlike alcohol breath tests, police will need to have a reasonable suspicion before requiring this test.

It is unclear when this type of testing will be used by the police as there are a number of steps that still need to take place. The government has yet to approve the devices to be used by the police. Justice Minister Wilson-Raybould will then have to make a ministerial order to approve the devices after a 30-day public consultation. Finally, the devices will need to be purchased and officers will need to be trained on how to use them.

THC Blood Levels

The new legislation will allow police to lay an impaired driving charge based solely on blood test results for THC in blood without needing to further prove impairment.

The government has proposed “per se levels” based on nanograms per millimeter of blood as follows:

  • A THC level between 2 and 5 ng would be a lower-level offence with a fine of up to $1,000;
  • A THC level above 5 ng would result in the same penalties as an alcohol-impaired driving conviction, including mandatory minimum penalties of a $1,000 fine on a first offence, 30 days imprisonment on a second offence and 120 days imprisonment on a third offence;
  • A mixture of a THC level above 2.5 ng and a blood alcohol concentration above 50 mg per 100 mL would have the same penalties as above.

10 Years Maximum Sentence for Impaired Driving

Under Bill C-46, impaired driving convictions will be considered “serious criminality” offences and the maximum sentence will be raised from 5 years to 10 years. This change in the law will greater affect those that could potentially lose permanent residence status and face deportation (i.e. foreign students, workers, visitors and permanent residents).

WHAT IS THE CURRENT STATUS OF BILL-46?

Part 1 of the Impaired Driving Act will roll out this summer; however, Part 2 of the bill will not come into force for another 180 days. In the meantime, as the bill comes into force we will report on any developments through this blog.

If you have been charged with a driving offence of any kind or have any questions regarding your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Ontario Proclaims Police Record Checks Reform Act

Written on Behalf of Affleck & Barrison LLP

On December 1, 2015, the province of Ontario passed the Police Record Checks Reform Act, 2015 (“PRCRA”), which is intended to uphold public safety in conjunction with respecting privacy and removing barriers that individuals may face when inappropriate information is disclosed in police record checks. The Act will come into effect on November 1, 2018.

The legislation will limit police disclosure of “non-conviction records”, allegations found in police computers that were never proven and 911 mental health calls that police attended.

This legislation was drafted in response to the Toronto Star’s “Presumed Guilty Investigation” in 2014 that exposed that tens of thousands of Canadians have records in police databases despite never having been convicted of a crime. The investigation found that the disclosure of these records has damaged careers, squashed ambitions and limited international travel.

According to research from the Canadian Civil Liberties Association, one in three Canadians have some form of non-conviction information found on police computers. Police record checks disproportionately affect people who have more contact with the police, such as those individuals living in poverty or those with mental health or developmental disabilities.

Marie-France Lalonde, the Minister of Community Safety and Correctional Services, commented on the new legislation:

People in Ontario must not lose out on opportunities because of an inappropriate disclosure of non-criminal information. It is also vitally important that we have an up-to-date, rigorous record checks process that ensures that employers have access to appropriate information. …Once in force, this legislation will bring down barriers to opportunity and will help people across Ontario become more involved in their community.

WHAT IS A POLICE RECORD?

Police records originate from interactions with local police service related to both criminal and non-criminal matters. These interactions may include:

  • An individual providing their name through informal contact with a police officer;
  • An individual calling 911 or was present when the police officers responded to the call;
  • An individual calling 911 for themselves or someone they know was experiencing a mental health crisis;
  • An individual was involved in a police investigation as a witness, victim or suspect;
  • An individual was arrested;
  • An individual was charged with a criminal offence, but was not convicted;
  • An individual was found guilty of a criminal offence; or
  • An individual was convicted of a criminal offence.

WHAT IS A POLICE RECORD CHECK?

A police record check occurs when a search is performed in police databases regarding a particular individual. This “check” can be prompted to evaluate the suitability of an individual for a particular purpose, such as employment at a specific job, volunteer work, application for educational programs, adoption, immigration, or foreign travel.

As it stands today, information searched as part of a police record check can range from convictions to findings of guilty of non-convictions (i.e. an offender is found guilty of a particular offence, but made without conviction) and non-criminal information (i.e. when a person has an interaction with police, but is not charged).

WHAT ARE THE TYPES OF POLICE RECORD CHECKS?

There are three types of police record checks that are clearly defined in the PRCRA.

They are as follows:

  1. Criminal Record Checks;
  2. Criminal Record and Judicial Matter Checks; and
  3. Vulnerable Sector Checks.

A Criminal Records Check is a search of the RCMP databases and is usually required for bylaw licences, employment or immigration purposes.  This type of screening will include information regarding criminal convictions and findings of guilt under the Youth Criminal Justice Act within the applicable disclosure period.

A Criminal Record and Judicial Matter Check is the most comprehensive type of police screening. This check includes information regarding convictions, outstanding warrants, charges and judicial orders available from a local police agency’s records. This screening is intended for applicants seeking volunteer or employment from organizations that require a criminal record check, but it is not intended for those seeking to work or volunteer with vulnerable persons.

A Vulnerable Sector Check screens individuals who are pursuing employment or volunteer opportunities with vulnerable people. A vulnerable person is defined as a person who, because of their age, disability, or other circumstances, are in a position of dependence on others or are at a greater risk than the general population of being harmed by a person in a position of authority or trust. Some of the positions that will require a Vulnerable Sector Check include teachers, social workers, taxi drivers, daycare workers, adoptive parents and sport coaches.

THE JOHN HOWARD SOCIETY OF ONTARIO REPORT

The John Howard Society of Ontario (“JHS”) is a criminal justice organization working to deliver services to those in conflict with the law and at risk throughout Ontario.

The JHS conducted in-depth surveys and interviews with employers and individuals with police records to empirically capture the negative effects of police records on employment.

The JHS report entitled “The Invisible Burden” concludes that a large number of Canadians have some form of police record, particularly Torontonians. These records are frequently requested by employers, and likely effect employer hiring practices and employment outcomes. Most importantly, police records disproportionately affect racialized, marginalized and other vulnerable populations.

Requiring a police records check is often part of an organization’s policy. According to their research, the JHS found that 60% of employers required police background checks for all new employees.

The JHS report offered various recommendations to balance employer interests and the need for an inclusive approach for people who need to gain employment. The JHS is a strong advocate of the new PRCRA as a means to standardize police records checks across the province.

If you have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Proposed Gun Control Laws Aimed at Gun Store Owners

Written on Behalf of Affleck & Barrison LLP

On March 21, 2018, the Liberals introduced Bill C-71 to improve Canada’s existing gun control legislation. This legislation includes measures to broaden background checks for gun owners, toughen rules around the transportation of handguns, and tighten record keeping requirements for the sale of firearms. Bill C-71 proposes to make changes to the Firearms Act, the Criminal Code and repeals changes made by the previous Conservative Government.

In Canada, crimes involving firearms have increased by 30% between 2013 and 2016, with 2,465 offences occurring in 2016. Homicides involving guns have increased by two thirds between 2013 and 2016, with 223 homicides occurring in 2016.

The Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness, stated:

While Canada is one of the safest countries in the world, increased gun crime has caused too much violence and taken too many lives in communities of all kinds. … With this legislation and our other measures, we are taking concrete steps to make our country less vulnerable to the scourge of gun violence, while being fair to responsible, law-abiding firearms owners and businesses.

GUN CONTROL LAWS IN CANADA

Gun control in Canada is governed by the Canadian Firearms Act and the Canadian Criminal Code. This legislation defines different types of weapons and set out rules regarding which weapons are legal in Canada and under what circumstances.

Canadian law classifies firearms as follows:

  • Prohibited:   .32 or .25 caliber handguns or those with a barrel length of 105 mm or less, automatic firearms, short-barrelled long guns;
  • Restricted:   handguns that are not classified as prohibited, semi-automatic long guns with a barrel less than 470 mm;
  • Non-Restricted: those not regulated as either restricted or prohibited.

A Possession and Acquisition Licence (PAL) is required to possess firearms. The eligibility for a PAL includes a background check to determine whether the applicant has been convicted of any of the designated offences, treated for any mental illness associated with actual or threatened violence, or has a history of behaviour that includes violence, or threatened or attempted violence within the previous five years.

Following a background check, an individual must undergo the “Canadian Firearms Safety Course” and pass the corresponding exam. The individual must also fill our forms and provide character references.

PROPOSALS FOR GUN CONTROL

Enhanced Background Checks

Bill C-71 proposes to expand background checks for those who want to buy a firearm. As described above, the current background check looks back on the last five years. It has been proposed that the RCMP examine any relevant information throughout the individual’s lifetime for prospective gun owners and those who have to renew their gun licences. The RCMP will complete an extensive background check looking into criminal, mental health, addiction and domestic violence records before authorizing an individual a licence to possess a firearm.

Once a licence has been issued, background checks will be ongoing to see if a licence holder has become a public safety risk.

Gun Shop Owner Obligations

Bill C-71 proposes changes to the responsibilities placed on gun vendors in Canada.

Under the new legislation, commercial gun shop retailers will be required to keep information about sales and inventory for at least 20 years, including the firearm’s serial number, the licence number of the transferee, the reference number and the day the reference number was issued. This requirement will not apply to private sellers.

Also, anyone selling or gifting a non-restricted firearm will be required to verify that the person they are providing the firearm to holds a valid firearm licence through the Canadian Firearms Program.

Police investigating a firearms crime can trace the owner of a gun through the licence number, but they are required to get a warrant in order to access the records held by gun shop retailers.

Transportation Regulations

Bill C-71 proposes that owners of restricted or prohibited firearms will need to obtain Authorization to Transport (ATT) documents every time they wish to take their guns anywhere other than a shooting club or gun range. Therefore, taking a firearm for servicing by a gunsmith or to a gun show would require separate authorizations to transport the firearm. However, authorizations to transport will not be required for non-restricted firearms.

If you have been charged with a firearm/gun offence or have questions regarding your legal rights, please contact the experienced Oshawa defence lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.