CRIMES OF VIOLENCE (assault – all types)

In its barest form, a criminal law charge of assault can be construed as an unwanted touching; in other words, touching without consent.  The two most common defences to the charge of assault are, consent and self-defence.   Self-defence is extremely technical and is often successfully invoked in not only simple assaults, but also assault with a weapon, assault causing bodily harm, aggravated assault, and murder.

DOMESTIC VIOLENCE / DOMESTIC ASSAULT (seeking a stay of proceedings, diversion, or peace bond)

Often referred to as a “spousal assault”, there is no specific Criminal Code provision dealing with this criminal law charge.   Rather, one is charged with the offence of assault, assault causing bodily harm (or whatever the level of assault that allegedly occurred).   These matters often involve a “he said / she said” disagreement regarding the facts.   In many of these cases, an experienced criminal lawyer such as Mr. Israels is able to negotiate with the Prosecutor to either drop the assault charge altogether, or alternatively, may negotiate Alternative Measures (“diverting” the Client from the Court system altogether), or the imposition of a type of restraining order, called a “recognizance” (or 810 peace bond) – any of these three resolutions results in the Client avoiding a criminal record.

SEXUAL ASSAULT

In essence, the criminal law charge of sexual assault involves an unwanted touching of a sexual nature.   The most common defences to such a charge are: denial of the incident, consent, and/or honest but mistaken belief to the alleged sexual act.  These defences are technical in nature and often require delicate but nevertheless strong and effective handling of complainant(s), some of whom can be young or otherwise vulnerable.  Mr. Israels has experience in dealing with both children and adult complainants.

INVESTIGATIONS

Investigations involve Clients who have been contacted by a member of the Police wishing to “speak” with them. Mr. Israels represents Clients being investigated by police for any reason related to alleged criminal conduct; notably, sex crimes, crimes of violence, and those involving harassment.

Generally speaking, most people do not know their rights or what to do when contacted by police; making the mistake of speaking to police before obtaining legal advice. While there are circumstances where a statement can later be excluded, a person should consult with legal counsel in order to know and understand their rights, before talking with police. Having experienced counsel assisting a Client can make a world of difference.

Mr. Israels has over 25 years of experience in dealing with police and his job is to advise the Client accordingly; providing valuable legal advice and options. Once retained, Mr. Israels also provides his Client with the safety and security of knowing that Mr. Israels is now looking after the concern(s) raised by police, rather than the Client having to handle their own legal matter(s). Mr. Israels’ role is to insulate the Client from any further involvement with police and/or the criminal justice system; working towards the end goal of having the police close the file without recommending any charges being laid.

THREATENING

A criminal law charge of threatening involves a threat (verbal or otherwise), to cause death or bodily harm to any person; to burn, destroy or damage real or personal property; or to kill, poison, or injure an animal or bird that is the property of any person.

The two most common defences are a denial of the threat, and a denial of any intention to menace, intimidate or cause fear to the recipient.

CRIMINAL HARASSMENT

This criminal charge can be laid by the Crown if any of the following acts are carried out by an Accused: repeatedly following a person from place to place; repeatedly communicating with a person (directly or indirectly); watching the home or place of employment where a person resides, works, or happens to be; or engaging in threatening conduct directed at the other person, or any member of his/her family.

The Crown is obligated to prove that an Accused knows that the person is being harassed, or was reckless as to whether the person is being harassed. The Crown must also prove that the person allegedly being harassed must reasonably, in all the circumstances, be caused to fear for his/her safety, or the safety of anyone known to him/her. This offence is often challenging for the Crown to prove depending on the circumstances and what evidence may exist to support the Crown’s case.

There are a variety of defences available when facing harassment; notably a straight denial of the offence, including whether any evidence exists to support that the Accused was aware (or reckless) that his/her actions fall into one of the behavioural factors outlined above. It is always helpful if the Accused has any evidence to support his/her version of events – which can often include a continued interaction (often by text message, email, etc.), despite what may be claimed by the person alleging the harassment.

DRUG OFFENCES (POSSESSION / TRAFFICKING)

This criminal law charge relates to an Accused being in possession of illegal substances such as marijuana (in amounts greater than 30 grams), cocaine, fentanyl, heroin, crystal methamphetamine, ecstasy, etc.  In order to prove possession, the Crown must prove that the Accused had both knowledge and control over the substance.   The charge of trafficking results if the Accused does any of the following:  sells, administers, gives, transfers, transports, sends or delivers the controlled substance in question.

PRODUCTION (grow op)

This criminal law charge involves the production of any drug listed in Schedule I – IV of the Controlled Drugs and Substances Act.   These offences most often relate to what is commonly referred to as a meth lab or marijuana “grow op”.

Most production offences involving a “meth lab” or “grow op” for instance, usually involve the issuance of a search warrant (the legal basis upon which the Police enter one’s residence, etc.).   Obtaining and executing these warrants is a technical process and errors by police can result in successful challenges – leading to the exclusion of evidence.

RETURN OF SEIZED MONEY / PROPERTY

This definition is most often related to drug offences.   When police investigate and monies and/or property are found in the vicinity of drugs (such as in a residence), or used to transport drugs (such as in a car), that money and/or property is usually seized by police.   The police will often seek to hold these items as part of their investigation until such time as it can be determined whether they are related to the offence(s) being charged, and/or are needed for trial, and/or preliminary hearing.   Generally speaking, the police will try to hold the money and/or property for 90 days.   At the conclusion of that time, the police and/or the Crown must apply to hold it for a longer period.   These efforts by Police and/or Crown can be challenged, and when the challenge is successful, the money and/or property are returned.

DRIVING WHILE PROHIBITED

This criminal law charge involves driving a vehicle when that person has been prohibited from doing so, either by the Superintendent of Motor Vehicles, or the Court.   In order to prove this offence, the Crown must prove that the person charged knew of the prohibition; that the prohibition was in effect the entire day of the offence date; and that the person prohibited, was driving.   Such offences are quite technical to prove and afford many defenses.

DANGEROUS DRIVING

This criminal law offence can be described as driving in a manner that is considered to be a marked departure from the standard of care that a reasonable person would observe in the Accused’s situation.    Similarly to the above, defenses relate to one’s subjective knowledge and action(s) at the time.

DRUNK DRIVING / DRUNK DRIVING ACCIDENT / OVER .08 / REFUSAL

The criminal law charge of drunk driving involves operating a motor vehicle, while having the care or control over that vehicle, while one’s ability to operate that vehicle is impaired by alcohol, or a drug.   If subsequently taken to a police detachment, a qualified technician will take samples of the Accused’s breath into a breathalyzer machine (in order to determine the level of milligrams of alcohol, per 100 milliliters of blood).   The charge of over .08 is usually added if the Accused’s breath sample registers over the legal allowable limit of .08.   A charge of refusal will result if the Accused refuses to either provide a sample of their breath at roadside (into an Approved Screening Device), or refuses to provide a sample of their breath at the police detachment into the breathalyzer machine.

Charges of drunk driving / impaired driving / over .08 / DUI / DWI / and refusal are extremely technical and require police officers and breath technicians to obey strict rules and procedures, such that even if the police conduct the investigation properly, the roadside screening device and/or the breath machine can be wrong, and there are a variety of ways to challenge their accuracy, as well as one’s refusal.   Police officers are also required to satisfy certain Charter obligations to an Accused.   Because of this, there are many defenses available to challenge the evidence – often resulting in exclusion of the breath certificate.

DRIVING WITHOUT DUE CARE & ATTENTION

This offence is charged under the Motor Vehicle Act (s.144). It generally relates to one’s manner of driving under the circumstances as they existed at the time of the offence.   It is a strict liability offence. The Crown need only prove that the Accused committed the prohibited act; the Accused must then demonstrate that the act / manner of driving was done without negligence or fault on his part.   These cases can also be technical in nature and also provide many defenses depending on the driver’s subjective knowledge and action(s) at the relevant time.

PORNOGRAPHY

There are a variety of offences related to the charge of child pornography; including possession, distribution, and transmitting. These offences are often related to images and/or videos discovered by police through investigations where a person’s IP address is somehow allegedly “linked” to pornography; often resulting in a warrant to seize and search a Client’s laptop, home computer, and/or handheld device.

As with many serious criminal charges, pornography offences often carry a jail sentence (not to mention a criminal record); requiring experienced counsel to review and dissect a Client’s file in order to determine whether or not a defence exists at law. This often involves challenging a warrant and/or whether or not the Crown can actually establish knowledge and control over the impugned material – the latter being a requirement to obtain a conviction.

WEAPON & FIREARM OFFENCES

These criminal law offences relate to both weapons (such as brass knuckles or illegal knives – such as a switchblade), and firearms / guns.   If a loaded firearm is used during the commission of an offence, a minimum period of custody will follow should one be convicted.   Although there are defences to such offences, one must be diligent to ensure that he is in possession of, where appropriate, the proper license(s) that correspond(s) to any weapon or firearm.

KIDNAPPING / UNLAWFUL CONFINEMENT

This criminal law charge occurs when an Accused kidnaps a person with intent to cause the person to be confined or imprisoned against the person’s will; to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or to hold the person for ransom or to service against the person’s will.   Forcible confinement charges involve an Accused person who, without lawful authority, confines, imprisons, or forcibly seizes another person.

These are extremely serious charges and are usually hard fought cases as the Crown will often seek a lengthy sentence.   Defences to such charges are varied, and having skilled and experienced counsel is vital.

EXTORTION

An Accused commits the criminal law charge of extortion when he intends to obtain anything (by threats, accusations, menaces or violence), induces or attempts to induce any person (whether or not he is the person threatened, accused or menaced or to whom violence is shown), to do anything, or cause anything to be done.

Note: if a firearm is used in the commission of this offence, there is a minimum punishment of 4 years.

HOME INVASION

Although there is no actual criminal law charge of “home invasion”, this provision of the Criminal Code (s.348.1), may arise depending upon the circumstances of the criminal charges being faced by an Accused.   That being said, if a person is convicted of forcible confinement, robbery, extortion or break and enter in relation to a residence, the Court considers as an aggravating circumstance the fact that the residence was occupied at the time of the commission of the offence, and that the Accused knew that, or was reckless as to whether the home was occupied; and used violence, or threats of violence, to a person or property.   Defenses to such a charge are varied, and having skilled and experienced counsel is vital.

PROPERTY CRIMES

These charges generally involve theft, possession of stolen property, mischief, break and enter, and robbery.

Theft – taking with intent anything (animate or inanimate), which is not one’s own – this can be temporarily or absolutely.  

Possession of Stolen Property – being in possession of any property or thing (having the knowledge and control over the item in question), which an Accused does not have the permission of the owner.  

Mischief – occurs when an Accused destroys or damages property; renders property useless or inoperative; interferes with the lawful use, enjoyment, or operation of property; or interferes with any person in the lawful use, enjoyment, or operation of property.  

Break & Enter – takes effect when an Accused breaks and enters into a place and attempts, or does commit, an indictable offence therein.   Note:   if the person breaks into a residence (as opposed to a commercial facility), there is a maximum penalty of life imprisonment.  

Robbery – this offence involves theft (actual or attempted), with violence.   Note: if a firearm is used in the commission of this offence, the Accused faces a minimum punishment of 4 years.

FRAUD / IDENTITY THEFT

This type of criminal law offence involves an Accused who defrauds any person, or the public, of any property, money, valuable security or service.   One is charged with committing the offence of fraud as either being “under $5000” or “over $5000”.    In order to prove a charge of fraud, the Crown must demonstrate that the Accused had subjective knowledge of the prohibited act, and, that performance of that act could have as a consequence, the deprivation of another.   Identity theft relates to the fraudulent use of another’s identity for fraudulent purpose(s).   Such offences can be difficult for the Crown to prove and require defense counsel who have dealt with such files, and are both skilled and knowledgeable.