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Currie Law represents clients of other offences including:
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In most criminal harassment cases, the complainant contacts the police with information about the actions of the accused which triggers an investigation that may lead to charges being laid. A pattern of behaviour must be demonstrated. The conduct prohibited as criminal harassment is:
To prove the case beyond a reasonable doubt, the prosecution must show a pattern of behaviour that falls into one of the above-noted categories. They must show that the complainant, as a result of the behaviour of the accused, feared for their own safety or of anyone known to them and that the accused knew or was reckless or was wilfully blind as to whether the complainant was harassed.
The judge must be satisfied beyond a reasonable doubt that the accused engaged in the prohibitive conduct, that the complainant was indeed harassed, that the defendant was at a minimum wilfully blind or reckless as to whether the complainant was harassed, and that the conduct caused the complainant to reasonably fear.
If a criminal lawyer can raise a reasonable doubt about any of the essential elements of the offence, the accused is entitled to be found not guilty.
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Spousal and domestic assault allegations:
The Attorney-General has issued a policy directive to Crown Attorneys to prosecute all domestic and spousal assault allegations if it appears there is a likelihood of successful prosecution. In some cases it may be appropriate to follow this policy but the problem is, is that it is a rigid policy that may fail to address often complex family dynamics.
Typically domestic allegations are of:
The policy concerns are all the same in all three cases, but every domestic allegation turns on its own facts and requires a flexible approach.
Defending spousal/domestic allegations:
The government policy may be rigid but a criminal lawyer’s approach to defending assault, harassment and threatening allegations in a family context must be flexible to take into account the future needs of the parties and the public interest in preserving family harmony. Consequently a criminal lawyer must assess the merits of the case, the family dynamic and the personalities in order to craft an appropriate solution.
It is essential that your defence be based on a flexible plan that lays the groundwork to deal with unanticipated developments. As a criminal defence lawyer with many years of experience dealing with spousal and domestic assault, threats and harassment allegations, we know how to develop a plan to deal with the charges. In many domestic cases, our clients avoid a criminal record when they follow our advice.
Assault – Criminal Code
Elements of the offence:
The prosecution must prove that the accused:
To find a person guilty of assault, the prosecution must prove each and every element of the offence beyond a reasonable doubt.
The first issue the Court must resolve is whether the actions alleged did in fact take place but it is then to the Court to determine whether the person assaulted had the capacity to consent and freely consent to the act with an appreciation of the risks involved. In the case of attempted assaults or threatening by act or gesture, the Court will assess the information available to the complainant to assess whether they had reasonable grounds to believe that the accused would follow through with the act that had been attempted or threatened.
If the Court is not satisfied beyond a reasonable doubt of each and every element of the offence, the accused is entitled to be found not guilty.
Uttering threats:
The prosecution must prove that the accused knowingly caused the object of the threat, typically the complainant, to receive a threat to:
To find a person guilty of uttering threats, the Court must find that each and every element of the offence has been proven beyond a reasonable doubt.
The Court must first determine whether the alleged threat was in fact made. The next step is to determine whether the accused knowingly uttered the threat. Finally under this section of the Criminal Code, the threat must be contemplated to have been either to cause the death or bodily harm to any person or damage, destroy or burn their property or to hurt or kill their animals.
The wording of this section creates a defence in that the alleged threat may not be to cause “bodily harm”. In such a case, however, the statement of the accused may constitute a gesture that may be considered an assault.
If the defence raises a reasonable doubt with respect to any elements of the offence, a Court must acquit the accused.
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Shoplifting is a common offence committed by people with no criminal history or involvement with the Court. Although theft is considered a crime of dishonesty, people with good morals may find themselves charged with this offence. A criminal record for shoplifting usually describes the offence as “theft under $5,000”. It does not differentiate a shoplifting charge.
An arrest for shoplifting is embarrassing and stigmatizing. A criminal conviction for theft under $5,000 can stand in the way of good jobs, it can bar candidates from certain post-secondary education and can lead to a significant reduction of income over a lifetime.
Most retailers make it a policy to arrest and seek charges for anyone who steals from them, either by shoplifting, changing price tags, or making false returns. Stores such as The Bay, Sears, Canadian Tire, Whole Foods and other grocery stores have full-time loss prevention officers who will arrest any subject they find shoplifting. After the arrest, they call the police who will normally attend and serve the suspect with a Promise to Appear. The store security officer then gives their report to the police who prepares a police file.
A Promise to Appear is a document that compels you to show up in Court at the date and time specified in order to answer the allegation. This is not the trial date. This is simply a date for the defendants or their lawyers to attend and obtain particulars of the allegation. For shoplifting charges, we usually attend on behalf of the accused to obtain disclosure and ensure the Court is aware the accused is represented by counsel.
Right to be promptly informed of the reason for your detention or arrest
If there are reasonable grounds to suspect an individual has some association or connection with a crime, the police may detain a person for further investigation – if the detention is necessary to the performance of the officer’s duty. The obligation on the part of the police is that the individual must be informed upon detention of the reasons for their detention. Such an investigative detention must be brief and not become for all intents and purposes, an arrest. What all of this means is that the police are not allowed to stop you for no reason and ‘jerk you around’. If they do, any evidence they obtain may be thrown out by the Court.
Right to silence
The right to silence in Canadian law is a fundamental principle of justice that’s guaranteed by Section 7 of the Charter of Rights and Freedoms. The purpose is to allow a person to make meaningful choices about whether to speak or remain silent. Anything said may find its way in Court as evidence. The rules of evidence are such that statements favourable to the accused in a criminal trial rarely get before a Court, but incriminating or ambiguous statements that may hurt you often end up before a Court – even where lawfully obtained. It’s important to rely on your right to silence until you have met with your criminal lawyer and obtained the best legal advice you can find. In law, your silence can’t be used to prejudice you because of the protection provided by the right to silence. Remember that no presumptions can be made against an accused person or a defendant because they remained silent.
Right to be secure against unreasonable search and seizure
Everyone in Canada is guaranteed not to be subject to a search or seizure unless it’s done in accordance with Canadian law. “Unreasonable” means without a justifiable reason, but the police need more than a reason to search – they need lawful authority to search. In the case of a home, this is usually in the form of a search warrant that gives the police the legal right to enter and search a specific home for a fixed period.
If a search is unreasonable, a defendant can apply to a Court for a remedy. The usual remedy is for exclusion of the evidence that flows from the violation of this right. Our Canadian Courts have been firm in their approach when this right has been clearly violated, often dismissing charges after ruling the evidence is inadmissible. The difficulty is that Courts have been less than courageous in finding that police action constituted a violation of this right.
Practice areas: Mischief
In Canadian law, the offence of mischief is damaging someone else’s property without intending to steal it. A person commits mischief if they intentionally:
The offence of mischief is broadly defined to cover most circumstances where a person damages property not belonging them. Typical cases include graffiti tagging, intentionally damaging someone’s vehicle or home or otherwise damaging public or personal property.
The Crown Attorney must prove that the accused committed the act wilfully – that they intentionally committed the act that caused the damage. Recklessness is sufficient to prove the intention. That the accused did not intend to cause the degree of damage is not relevant to a finding of guilt, but may be relevant when determining an appropriate disposition.
Websites such as Twitter, MySpace, Facebook and LinkedIn have become a part of many people’s personal lives. The public nature of these Internet communications can have an effect on both employers and employees where an employee makes a negative or disparaging comment on-line about an employer.
In E V Logistics v. Retail Wholesale Union [2008], an employer terminated an employee after it discovered that his blog contained racist and offensive comments glorifying Nazi Germany. The employee had mentioned his employer and had posted pictures of himself at work. Since the blog postings were not directed at his employer or co-workers, and since the employee had apologized and removed the hateful comments, the termination which had been initially instituted by the company was substituted for a temporary suspension.
In another case, the termination of a government employee who had made negative comments about her employer and co-worker, including posting confidential information and referring to her co-workers as “aliens” and her workplace as “a lunatic asylum” was upheld.
Employers are well advised to have policies that directly address social networking and blogs. Such policies should include provisions that:
Bill 168 Violence and Harassment in the Workplace
The Ontario Health and Safety Act impose new duties on employers to address violence and harassment in the workplace in the form of programs, policies, the provision of information to workers (where a person has a history with respect to violence) and harassment.
Here is the five step checklist that should be complied with in anticipation of these amendments:
These policies need to be signed and dated by the highest level of management at the workplace.
Consider:
The results of this assessment must be reported to the joint occupational health and safety committee or representative.
This must include:
These policies need to be signed and dated by the highest level of management at the workplace.
Welcome to Currie Law
We have offices in both Oakville (serving the Mississauga, Milton, Georgetown, Campbellville, Burlington, and Hamilton area) and in the Niagara Region
To directly reach Ms. Currie by telephone please call:
Oakville office - 905 847 2826 (direct)
Niagara office - 905 899 9000 (direct)