Ontario Sets 12 Month Ceiling for Youth Cases

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged about, the Supreme Court of Canada in R. v. Jordan established that adult criminal cases decided in the provincial courts must be resolved within 18 months. In circumstances where cases exceed the 18 months ceiling, it has been found that the accused’s rights under section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) have been violated and a stay of proceedings may be granted, except under “exceptional circumstances”.

The Ontario Youth Court of Justice recently held that a 12-month ceiling should apply for youth cases. In the case of R. v. D.A., the Court applied section 3(1)(b) of the Youth Criminal Justice Act (“YCJA”) which states that youth court proceedings should be carried out with “promptness and speed…given young persons’ perception of time”. This is the first reported decision to specifically establish a lower ceiling for youth cases than adult cases.

The accused, D.A., applied for an order for a stay of proceedings under section 24(2) of the Charter arguing that his rights have been infringed pursuant to section 11(b). He maintained that it will take 18 months and 7 days for the completion of his trial, which is unreasonable and exceeds the presumptive ceiling set by the SCC in R. v. Jordan. Furthermore, the accused submitted that a young person should be subject to a lower presumptive ceiling.


On a date between January 1, 2015 and November 4, 2016, the accused allegedly was observed to be grinding his penis into a three years old’s buttocks as he lay on the floor.

During this same time period, the accused allegedly pulled down his pants and underwear exposing his penis to a nine-year-old boy (the accused’s first cousin) and a four-year-old boy. The accused allegedly asked the boys to touch his penis, which they did.

On December 6, 2016, the accused was interviewed by police without the presence of his mother. At that time, he provided a partially incriminating statement.

The accused was then charged with 8 offences, including sexual assault, sexual interference and invitation to sexual touching. He was released on an undertaking to a peace officer and a promise to appear.


The judicious conclusion of criminal court cases is a fundamental right of all accused individuals found within section 11(b) of the Charter. It is also an important factor in ensuring public confidence in the Canadian criminal justice system.

The timely culmination of criminal court matters is also important for witnesses, victims and their families. Proceeding in this manner assists with the accurate recall of information related to the crime and allows for emotional and psychological closure.

The SCC case of R. v. Jordan set out a new framework and timelines for processing criminal court cases in Canada. The Court set out a “presumptive ceiling” for completing criminal court cases and anything beyond these time periods is deemed unreasonable. However, if a delay is caused by the defence it will not count towards the presumptive ceiling (ie. requesting unnecessary adjournments). Once the presumptive ceiling has been exceeded, the burden is on the Crown prosecutor to justify the delay on the basis of exceptional circumstances.


Individuals who are charged between the ages of 12 and 17 are processed through youth courts in Canada, which operate independently from adult criminal courts. The YCJA provides more proportionate accountability for young persons through age appropriate sentences and the promotion of rehabilitation.

Canada has acknowledged the necessity that criminal proceedings involving young persons should generally be brought to trial faster than adult matters. This has been codified in section 3 of the YCJA.

The Ontario Court of Appeal has also provided reasoning for the belief that young persons should be brought to trial faster in several its decisions. These reasons include:

  • The ability of a young person to appreciate the connection between offending behaviour and consequences will weaken the longer the proceedings take to complete;
  • The perception of time for a young person may be distorted when compared to that of an adult; and
  • The need to sentence young persons while they remain in his/her formative years.

In the case of R. v. D.A., Justice P.T. O’Marra found that the total delay was 555 days less the defence delay of 28 days, resulting in a total delay of 527 days (17 months and 2 weeks). Justice O’Marra irrefutably stated there should be a reduced presumptive ceiling of 12 months for youth cases that are non-complex cases. Therefore, Justice O’Marra held that the delay in this non-complex case was not reasonable, was well over the “youth presumptive ceiling of twelve months” and accordingly the application was allowed and the proceedings were stayed.

If you are a youth that has been charged with a crime, or are the parent of a young person that has been charged with a crime, please contact the experienced criminal lawyers at 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.

Judge Dismisses Drunk Driving Charges Because Police Officer Assaulted Suspect

Written on Behalf of Affleck & Barrison LLP

In a recent decision, an Ontario judge found that a Toronto police officer had assaulted a man that had been arrested for drunk driving, and showed a “lack of honesty” with respect to what happened that therefore, violating the man’s Charter rights. The results of breath tests taken the night in question were not admissible, and the charges against the man were dropped.

The Night in Question

The man was stopped at a RIDE program and arrested after her blew over 80. He was taken to a police station for further breath tests.

After he took the first breath test upon arrival at the station and blew over the limit, he was handcuffed to a bench outside of the testing room while he waited for the second test. A police officer waited with him (the detaining officer). While the man was waiting, his girlfriend, who had been in the car with him, and who accompanied him to the police station, became upset and vocally agitated, causing what the officers described as “a ruckus” at the front desk. After being contacted by the front desk, the detaining officer asked the man to speak to his girlfriend on the phone to calm her down. The man refused.

At that point, the officer allegedly became so aggressive that as he held the phone up to the man’s ear to get him to speak to the girlfriend, he grabbed the man by the collar, pushed him back and forth, and, in the process of doing so, hit the side of the man’s head with the phone, causing him to bang his head on the wall six or seven times, and injured his collarbone.

The man also claimed that he had asked to use the washroom when he arrived at the station, but that the police officer who arrested him (the arresting officer) had told him that he could urinate in the squad car.

In response to the man’s allegations, the detaining officer claimed that he held the phone up to the man’s ear, and that when the man pushed aside the officer’s hand, it accidentally “snapped back” and hit the man on the side of the head. The officer denied the rest of the man’s allegations.

After this telephone incident, the man took his second breath test, which again registered over 80. The police charged him.

Video Evidence

In-car video from the squad car, introduced at trial, showed the arresting officer telling the man that he is the same age as the officer and that he can “hold it”. He then raised his voice and suggested that the man should urinate in the back seat if he “has to go so bad”.

Video from the testing room shows the man telling the breath technician that the detaining officer “was a problem”, and mentioned something about being punched by an officer. The man appears shaken on the video.

The Decision: Assault

Charter Violations

The issue at trial was whether the police had breached the man’s s. 7 (life, liberty and security of the person) and s. 12 (cruel and unusual punishment) Charter rights.

The man’s defense lawyer argued that the detaining officer had violated his s. 7 rights when he assaulted the man while trying to persuade him to speak to his girlfriend.

The judge was perplexed with the detaining officer’s version of events, stating that the officer’s “evidence about the incident and about what happened afterwards was vague and at times evasive.” The officer claimed that he had spoken to the man about the incident afterwards and had checked for injuries. He also recalled that the man may have mentioned injuries but could not recall whether this was immediately following the incident, or later. He had not made any notes about the incident or about anything that happened afterwards. The judge noted:

I find this difficult to understand. This was an important episode; one about which an officer would be expected to make notes. This shows a lack of diligence with regard to the incident and perhaps an effort to obfuscate it.

The judge also noted that there were two photos submitted as evidence that depicted a significant red mark on the man’s left collarbone. There were no injuries to his head. The judge found it “odd” that the man would not have suffered any head injuries given his allegation that it had hit the wall several times. The man had not offered any explanation for this at trial. However, the judge noted that this alone did not cause him to disbelieve the man about the assault, stating:

I find that [the man] testified in a credible manner. Any flaws in his evidence are not sufficient to cause be to disbelieve his account of the assault. This was a very traumatic event. It is understandable that in those circumstances one might not speak as accurately as one would in a calmer setting.

The Officer’s Evasiveness and Lack of Honesty

The judge also took issue with the officers’ behavior for several reasons. Firstly, the detaining officer’s response to the man’s request to use the bathroom was not sympathetic. Furthermore, the officer demonstrated a “belligerent and demeaning attitude” toward the man by asking him to urinate in a police car.

In addition, the officer had demonstrated evasiveness and lack of honesty by denying to the court that he had said this, and only admitting it once the video evidence was presented. The Judge noted:

I find it hard to believe that [the officer] would have forgotten that he said this to [the man]. It is an astonishing thing to tell someone. Consequently, I find that his testimony on this point was evasive and lacked the candour that one rightfully expects of a witness testifying under oath or affirmation.

The judge ultimately determined that the officer had assaulted the man.

Additionally, the judge found that the officer had used more force than was necessary to accomplish his purpose (which had been to get the man to speak to his girlfriend to calm her down). The man had had no obligation to speak with his girlfriend.

Breathalyzer Results Not Admissible

Lastly, the judge determined that, per s. 24 of the Charter, the results of the breath test had been “obtained in a manner that infringed or denied any rights of freedoms guaranteed by the Charter”, noting:

… this was a grievous breach of [the man’s] rights under s. 7 of the Charter. An assault on a person in custody while handcuffed to a bench to try to persuade him to do something that he has no obligation to do is indeed a grievous breach of the person’s rights under s. 7 of the Charter.

Furthermore, the conduct of the police officers further exacerbated this breach. Neither the arresting officer nor the detaining officer had been forthright with the court. In addition, neither of them had “responded responsibly” to the man’s report of assault or done anything to follow up, investigate, or report the incident to their superior officers. The judge concluded:

…the impact of the breach on [the man’s] Charter-protected interest of the security of his person was gravely impacted by being assaulted by one of the police officers that was holding him in custody.

The results of the breath tests were therefore excluded. Since there was no other evidence against the man on the charge of blowing over 80, the judge found him not guilty and dismissed the charges.

Depending on the specifics of your situation, an impaired driving or drive over 80 conviction can have significant consequences, including jail time, fines, loss of your driving privileges, and damage to your reputation in the community. If you have been charged with drive over 80, contact our office online or at 905-404-1947 to schedule a free consultation with one of the Oshawa impaired driving lawyers at Affleck & Barrison LLP. We have 24-hour phone service for your convenience. Our experienced lawyers to handle your defence with diligence and expertise.

Police Did Not Trespass and No Charter Violation For Arrest of Drunk Driver Who Was Peeing on His Front Porch

Written on Behalf of Affleck & Barrison LLP

In a recent decision, an Ontario judge found that a man who was arrested while peeing on his front porch after an officer received reports of a drunk driver in the area had not been arrested or held in violation of his Charter rights, and the officer had not been trespassing when he made the arrest.

What Happened?

The man in question, Mr. Mali, drove home while intoxicated, parked his car on the driveway, and began to pee on his front porch. A police officer who had responded to a call about a possible drunk driver walked onto Mr. Mali’s property and began to ask him questions.

Mr. Mali initially responded by telling the officer that he “had to pee” and that he did not want to speak with the officer. He eventually began to answer the officer’s questions, and was arrested for impaired driving and taken to the station.

Mr. Mali provided three breath samples at the police station, which revealed that his blood alcohol content (BAC) was almost three times the legal limit. After providing the samples, Mr. Mali was placed in a cell for approximately six and a half hours and then released.

At trial, Mr. Mali’s counsel argued that when Mr. Mali informed the officer that he did not want to speak with him, the officer had been obliged to leave, and that his failure to do so, and Mr. Mali’s subsequent arrest and demand for breath samples violated Mr. Mali’s s. 8 Charter rights to be free from unreasonable search and seizure. The fact that he was held for six hours in a cell at the police station was “overholding” and violated his s. 9 Charter right not to be arbitrarily detained. Mr. Mali’s counsel argued that the breath test results, the statements made by Mr. Mali on the night of his arrest, and the observations made by the police on the night of the arrest should be excluded as evidence as a remedy for the supposed Charter violations.

Justice Schrenk dismissed the Charter application, and found Mr. Mali guilty on two counts of driving while impaired.

The Court’s Reasoning

The Arrest and Breath Samples

 Mr. Mali’s defense counsel argued that his arrest on private property and subsequent request for a breath sample violated Mr. Mali’s s. 8 and s.9 Charter rights.

Case law has clearly established that it is permissible for a police officer who has a legitimate basis for entering a driveway- such as seeing a driver driving erratically, and following the driver back to a destination to ensure they have arrived safely before detaining them- to do so. That officer has implied permission to enter onto the property.

In this case, defense counsel for Mr. Mali accepted that the officer was entitled to enter onto Mr. Mali’s property; however, when Mr. Mali informed the officer that he did not want to speak with him, this withdrew the implied invitation, and the officer then became a trespasser.

Justice Schrenk disagreed with this argument for two reasons.

Firstly, there had not been a “clear expression of intent” that Mr. Mali did not wish to communicate further with the officer. Rather, Mr. Mali had stated that he “had to pee” and “didn’t want to talk”. While this could potentially be interpreted as a complete refusal to speak, a more reasonable interpretation is that Mr. Mali did not want to speak until he had finished urinating. Mr. Mali’s subsequent willingness to answer questions made such an interpretation even more reasonable.

Secondly, even though the officer may not have had grounds to arrest Mr. Mali when they initially engaged in conversation, he did once he realized how intoxicated Mr. Mali appeared. Had this interaction taken place on the road, the Highway Traffic Act would have given the officer the authority to detain Mr. Mali. While the Act does not apply on private property, there is a related common law right to detain someone on their private property, as long as the police officer is lawfully entitled to be on the property. It’s clear, based on existing caselaw, that once a police officer has entered onto private property under an implied invitation and arrests a person, that officer can then remain on the property in order to complete the arrest even if the implied invitation is later withdrawn:

In this case, Cst. Leal lawfully entered the property to conduct an investigation.  Even if Mr. Mali withdrew the implied invitation, he was by then lawfully detained and Cst. Leal was entitled to remain on the property to continue that detention and to arrest Mr. Mali once he had grounds to do so.

Justice Schrenk concluded that there was no s. 8 violation in this case.

“Overholding” at the Station

 After being detained at the police station, Mr. Mali provided three breath samples. The last breath test was administered at 3:28 a.m. He was released around six and a half hours later, at 9:49 a.m. Mr. Mali’s defense counsel argued that this was an instance of “overholding” which violated his s. 9 Charter rights.

“Overholding” claims are common. Caselaw has clearly established that police are entitled to hold someone for a period of time after a breath test is administered, but only if the decision to hold that person is made for legitimate reasons and based on proper considerations. Such considerations, known as “Price factors” after the case they appear in, include:

  • The person’s BAC;
  • The person’s level of comprehension;
  • Whether the person was charged with impaired driving;
  • Whether the person had a suspended license;
  • Whether there was a responsible individual to pick the person up;
  • Whether the person has a criminal record;
  • Whether the person has any outstanding charges;

The officer in charge can make an informed decision about when to release the person based on the above and other factors. A number of factors should be considered, and the release decision should not be made based on BAC alone.

In this case, the police officer in charge of the station on the evening Mr. Mali was detained testified that he considered the Price factors in deciding when to release Mr. Mali. The officer who relieved the initial officer in charge around 5:45am, testified that it was his general practice to consider the BAC of a detained person by assuming that the person eliminated alcohol at a rate of 15mg per 100 ml of blood per hour. Additionally, it was his general practice to have a cells officer check on detainees every thirty minutes and report their observations of a prisoner’s sobriety. Here, in applying the general calculation of alcohol elimination, Mr. Mali’s BAC would still have been significantly over the legal limit upon his release at 9:49am.

Justice Schrenk found that in these circumstances, he was not persuaded on a balance of probabilities that Mr. Mali was held in violation of his Charter rights.

The Charter application was dismissed.

If you have been charged with impaired driving or another driving offense, contact our office online or at 905-404-1947 to schedule a free consultation with one of our knowledgeable and experienced Oshawa lawyers. We regularly  handle drunk driving and over 80 defence. We have 24-hour phone service for your convenience. Our office is located within walking distance of the Durham Consolidated Courthouse.

New Provincial Practice Direction: s. 11(b) Charter Applications

Written on Behalf of Affleck & Barrison LLP

The Ontario Superior Court of Justice has announced a new practice direction governing applications requesting a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter.

This development was driven by the Supreme Court of Canada’s (SCC’s) recent decision in R. v. Jordan. In that decision, the SCC established a new framework for s. 11(b) applications, and provided guidance on how to apply that framework to any decisions that were already in the system prior to July 8, 2016 (i.e- the date of the Jordan decision).

Ontario Superior Court of Justice’s New Practice Direction

The new practice direction:

  • Clarifies what supporting materials are required for s. 11(b) applications;
  • Requires that all s. 11(b) applications be heard well in advance of the trial.

The guidelines in the practice direction are also subject to any order made by a presiding judge during a proceeding.

What is a s. 11(b) Application?

s. 11(b) of the Canadian Charter of Rights and Freedoms guarantees that “[a]ny person charged with an offence has the right…(b) to be tried within a reasonable time…”

The SCC previously explained the purpose of s. 11(b) in their seminal decision in R.v. Morin:

The primary purpose of s. 11(b) is the protection of the individual rights of accused persons: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.  The right to security of the person is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings.  The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre‑trial incarceration and restrictive bail conditions.  The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

The Charter also provides for an enforcement mechanism under s. 24(1) which states that “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”.

As a result of ss.11(b) and 24(1), anyone who feels that their right to trial within a reasonable time has been violated or denied, can make an application to the court prior to their trial date, indicating their intention to argue unconstitutional delay.

Evidence supporting an alleged delay can be introduced through filing transcripts from previous court appearances, affidavits from the accused and/or other individuals with relevant information, or through an agreed statement of facts.

Under the new framework outlined in the Jordan decision, courts hearing s. 11(b) applications will consider a number of factors to determine whether or not an accused’s right to a trial within a reasonable period of time has been violated:

  1. The overall period between the charge and the completion of the trial;
  2. How long a case of this nature should take;
  3. How much of the delay is attributable to the Crown (prosecution) and how much is attributable to the accused;
  4. Whether the period of time that is attributable to the Crown exceeds how long the trial should take by more than can be justified on any acceptable basis.

At the crux of this new framework is a “presumptive ceiling” on the time it ought to take to bring an accused person to trial. According to the SCC, this ceiling should be 18 months for cases going to trial in a provincial court, and 30 months for cases going to trial in a superior court.

If the court dismisses a s. 11(b) application, the original matter proceeds to its scheduled trial date. If the court allows a s. 11(b) application, a stay of proceedings will be granted, and the original trial will no longer proceed.

Purpose of the New Practice Direction

The new practice direction requires that s. 11(b) applications be heard at least 60 days prior to a scheduled trial. In most cases, this means a decision about the application will be made before the deadline by which the parties must file and serve other pre-trial materials, and will allow the parties to organize resources more effectively.

If the s. 11(b) application is dismissed, the parties will have to be ready to proceed with their scheduled trial date.  However, if the s. 11(b) application is allowed, and a stay is granted, the court and the parties will all know in advance that they will have additional time that would have otherwise been spent in the originally scheduled trial. Additionally, they will be spared the time and expense necessary to prepare for trial.

This development is a positive step forward to ensuring that Ontario’s justice system is fair, court resources are managed efficiently, and the rights of an accused are respected.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison online or at 905-404-1947.

The Right to Silence: Part 2

Written on Behalf of Affleck & Barrison LLP

In a previous blog post, we wrote about the right to silence enshrined for all Canadians in the Charter of Rights and Freedoms. Another important component to the right to silence is the right against self-incrimination. The Charter also protects witnesses against self-incrimination. Under section 13, witnesses may not have any incriminating evidence they give as testimony used against them in separate proceedings. It is important to be aware that although it serves a similar purpose, the protection in section 13 is different from the Fifth Amendment to the United States Constitution, which allows a person to refuse to testify.

Similarly, under section 11 of the Charter, an accused person cannot be forced to testify at his or her own trial. However, when an accused person freely chooses to take the witness box and testify, there is no further right to silence. There is likewise no general restriction on which types of questions are permissible. An accused person who voluntarily testifies is not compelled to testify and is therefore not protected by section 13. However, an accused is still protected by section 13 in the sense that any incriminating evidence they gave in a prior proceeding cannot be used against them in the criminal trial. Finally, prior inconsistent testimony can be used in a criminal trial to impeach the credibility of an accused person.

A special right to silence also used to exist for spouses in Canada. It was commonly referred to as the rule of spousal incompetency or spousal immunity and it meant that a person could not be compelled to testify against his or her legally married spouse. There were a few exceptions, for example in case of sex offences or where the victims were children. However, in 2015, the Harper government enacted legislation entitled the Victims Bill of Rights Act. The Act amended the Canada Evidence Act to remove the spousal immunity protection – a common-law tradition that goes back hundreds of years.

If you have questions about your right to silence and would like to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.