The Directed Verdict Not Just for Jury Trials

A request for Directed Verdict is an indispensible tool in any defence lawyer’s arsenal. I recently had the opportunity to request a directed verdict during a trial in the Ontario Court of Justice. My request produced a good result for my client and for that reason I thought it might be helpful to share that experience with my peers on the defence bar.

This tool can work well in a situation where the criminal code provision relied upon by the Crown is at least somewhat stringent. For instance, think of s. 265(1)(b), which is the provision on assault to do with threats or attempts. This section states as follows:

a person commits an assault when… he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose.

Reading this it is clear that there are indeed circumstances under s. 265(1)(b) where a person can be convicted of an assault for merely threatening to apply force to another individual. However, not every threat will amount to an assault. Looking at the section closely it is clear that there needs to be a “present ability” for the person to carry out that threat for the action to constitute an assault. This means that if the two parties are separated by glass, doors, distance, etc. the Crown will not be able to make out an assault.  

Thus, in a scenario where somebody has been accused of threatening somebody through a locked door and been charged with an assault, a defence counsel might be well advised to patiently wait their turn while the Crown calls their witnesses and enters their case before standing up and asking the Judge for a directed verdict. This can be done without calling a single witness, entering a single exhibit, and most crucially, without risking anything at all.

In such a scenario there is certainly nothing for the client to lose as the defence makes the motion for directed verdict while simultaneously reserving their right to call evidence. This means that in the event that the Judge rejects the motion for directed verdict the defence lawyer will still have the opportunity to call their own case. Frankly, provided there was actually a logical basis for your request, all you’ve really done in losing the argument (in my opinion) is taken an extra opportunity to point out the underlying perilousness of the Crown’s case.

As for case law, the test for directed verdict is quite succinctly set out in the Supreme Court of Canada decision in R v. Arcuri 2001 SCC 54.  At paragraph 21 the Court states that a trial judge considering a defence motion for directed verdict must consider “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.” (I would also suggest reading United States of America v. Shephard, [1977] 2 S.C.R. 1067 if planning to ask for a directed verdict).

If the evidence called by the Crown - even if accepted as 100% accurate - would not be sufficient to make out the wording of the criminal code offence, then it is fair to conclude that a reasonable jury properly instructed could not return a verdict of guilty. This is when you stand up, make the motion for directed verdict, and hope that you’ve just won a trial while barely breaking a sweat.

I can conceive of many scenarios where this tool could come in handy, and frankly, I think a defence lawyer should always keep this concept in their back pocket in case the Crown fails to call evidence which proves a key element of a criminal code provision.

When Can Police Search Your Cell Phone?

Today the Supreme Court of Canada released a very interesting criminal law decision in a case called R. v. Fearon, 2014 SCC 77 (click here to be linked to a full copy of the decision).

To summarize, this decision ends a long running debate about whether Canadian police have the ability to search your cellphone incident to your arrest. The answer, now made unequivocal, is that yes, yes they can.

The first question people might ask is, “is there anything I can do to protect my privacy?” While not specifically set out in the decision, I believe that having a password on your phone can stop such a search in its tracks. I would imagine that an individual’s s. 7 and s. 11(c) Charter rights (which entitle a person not to make a statement to the police) would entitle a person not to respond to the police if they were asked to reveal their phone password. For now I assume that only some sort of court order could force a person to make a statement revealing their password.

So, my advice is that, as always, if you think you are in any way a suspect in a crime, continue to resort to the phrase “on the advice of my counsel I choose not to make a statement at this time.” Then repeat. 

Second, people might be worried that they will now have their phone searched upon any interaction with police. To this I would note that in order for such a search to be valid it must be conducted incident to a valid arrest. This means that being pulled over for a speeding infraction will not entitle the police to search your phone. I would also note that the court held at paragraph 79 that “conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences.” So, in theory at least, such searches should not be taking place incident to an arrest for something like mischief or minor possession.

Third, people might fear that when their phone is searched incident to arrest, police will be able to scroll through every text, every photo, and every poem on the phone generated over the last three years. While I am sure that on occasion the boundary will be crossed in actual practice, the court did at least note at paragraph 78 that “similarly, the fact that some examination of a cell phone is truly incidental to arrest does not give the police a licence to rummage around in the device at will.”

Below I have set out the full test from the decision which you can find at paragraph 83. Consider these steps to get an idea as to whether the search of your cell phone incident to arrest complied with your rights under s. 8 of the Charter of Rights and Freedoms:

1)   The arrest was lawful;

2)   The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

a) Protecting the police, the accused, or the public;

b) Preserving evidence; or

c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

3)   The nature and the extent of the search are tailored to the purpose of the search; and

4)   The police take detailed notes of what they have examined on the device and how it was searched.

The hope would be that this police power will only be used in circumstances where a serious crime is alleged and either the safety of police and the public are at risk OR there are reasonable grounds to believe that important evidence will be destroyed or rendered useless if not secured immediately. I will say though, as a practicing criminal defence lawyer I am curious to see how this decision will play out in reality. As with any new decision it will take some time for all the relevant parties to hash out exactly where the boundaries lie.

In short, to me it seems that the test is complex enough to ensure that the nuances of this issue are likely to be litigated many, MANY, times in the years to come. 

Are Criminal Pardons Becoming Inaccessible to Average Canadians?

First, to be clear, Criminal Pardons in Canada are now called “Record Suspensions”. The basic concept is relatively the same though.

When I first started law school I was taught that obtaining a Criminal Pardon was a relatively straightforward and affordable process for most people with older criminal records. With recent legislative changes this is no longer the case. Today obtaining a Pardon in Canada is an expensive and fairly complex process (yet another good reason to consider the viability of a vigorous defence to any criminal charge).

The Parole Board of Canada has published a guide to obtaining Record Suspensions that walks you through the process. To summarize, obtaining a pardon is now a ten step process that will set you back a bare minimum of $631 in the form of a government application fee. Should you use a lawyer to walk you through the process the cost would be significantly higher. That said, for many people it should be possible to go through the pardon process by yourself, and the guide linked above is certainly a good starting point.

In any event, the Canadian media is reporting that applications for Pardons dropped by more than 40% after the new legislation was enacted. This means that for an increasing number of Canadians a criminal conviction will be with you for the rest of your life. This is significant because a criminal conviction can seriously impact employment and travel opportunities.

I urge all Canadians to keep the new inaccessible pardon process in mind when deciding how to proceed after being charged with a criminal offence.

And remember, as always, don’t speak to the police.   

Beware Your Criminal "Record" - Even Without a Conviction

Over the last few months I have read two separate Toronto Star articles about Canadians who have never been convicted of a crime but have nonetheless been denied jobs or other opportunities based on information stored in police databases.

The two articles are attached by hyperlink below:

Many people think that having a charge thrown out by a judge or obtaining a diversion should be enough to ensure that they have a spotless record when submitting to an employer’s request for a police background check. As you can see, that may not always be the case.

If you have ever been charged with a criminal offence and not convicted, you might consider contacting a lawyer to take steps on your behalf to attempt to ensure that all records of the charges are removed from the police database.  

Don't Talk to the Police - A Youtube Lecture

This is a link to an interesting lecture (click here for the link) given by an American law professor. The lecture goes over why it is virtually never in your interest to talk to the police if you are suspected of having committed a wrong. This is true even if you know you are innocent (maybe even especially so).

The law professor is a former criminal defence attorney who lives and works in the USA, so not everything he says is applicable in the Canadian context, however, many of the general concepts hold true north of the border. 

Be warned, the lecture is rather long, so if you don't have fifty minutes to spare you might consider skipping ahead to 8 minutes and 20 seconds into the video for his top ten reasons why you should never talk to the police. 

Happy viewing.