Currie Law – Employment Law, Criminal Law, Civil Litigation in Mississauga, Oakville, Milton, Campbellville, Georgetown, Hamilton, Burlington and the Niagara Region

Bail

In some criminal cases, after the police arrest you, you will be let out on a promise or what is called a recognizance, to come back to Court at the appointed time.  In other cases, the police will keep you in jail until you appear before a Court to obtain bail.  If you are arrested for a crime, it is very important to speak with a lawyer as soon as possible.  The outcome of a bail hearing can mean the difference between enjoying your freedom or remaining in custody between the arrest and the trial of your case.

Bail hearings are not treated lightly at my firm, we prepare for them carefully and properly.  For example, we may interview and recommend an appropriate surety – who is a person who will be responsible for ensuring that you meet all of the conditions of bail.  My goal is to achieve the most positive result – a reasonable bail with reasonable conditions.

In Ontario, it can sometimes take almost a year to get a trial date.  Unfortunately, many people who have a good defence end up pleading guilty to charges, before retaining a lawyer, rather than sitting in jail awaiting trial when they’re not granted bail.  This leaves them with a criminal record that can impair their ability to get a job, a loan, a place to live or travel outside of the country.  A prior record also leaves you vulnerable to stiffer potential penalties for any future criminal conviction.

Defendants can be released on bail for any criminal offence.  However, recent changes in the law regarding bail have made it more difficult to get bail for certain offences.  An experienced criminal lawyer can increase your chances of a positive result at a bail hearing.  You may be detained in custody until your trial if the prosecutor (the Crown Attorney) can show there are reasonable grounds for believing that:

• You might not appear as required by the Court
• The protection or safety of the public is necessary
• You might interfere with the administration of justice (by contacting witnesses), or
• You might commit further criminal offences.

A surety is a person who agrees in writing (and will likely be interviewed and questioned on the witness stand) to be responsible for you until your case is concluded.  Your surety will be interviewed or questioned to determine his or her stability and assets.  A surety’s stability is shown by:

• Length of time at a current job
• The type of job
• Length of time in the province or the community
• Whether he or she owns a home
• Family and community roots
• Relationship to the accused
• Whether or not the surety has a criminal record

In my experience, it is much more desirable and much easier to ensure that all of the necessary information is before the Court at the first bail hearing.  If you are unsuccessful in your first bail hearing, doing an appeal will be time-consuming, expensive, and it will be more difficult to succeed to get you out on bail.  For this reason we recommend that you hire an experienced criminal lawyer to assist you if you are arrested and facing a bail hearing.

Youth Criminal Justice System

When a young person is charged with an offence, there are different considerations imposed by the statute that govern the consequences for the offending behaviour.  The objectives of the Youth Criminal Justice System are to prevent crime, ensure meaningful consequences for offending behaviour and rehabilitate and reintegrate the young person.  Unlike the previous legislation (Young Offender Act), the Youth Criminal Justice Act states that the purpose of sentencing is to hold a young person accountable for the offence committed by imposing meaningful consequences and promoting the rehabilitation and reintegration of the young person.  Some offences in the Criminal Code had a minimum sentence and some offences have a maximum sentence, depending upon the nature of the offence.  The YCJA applies to those under the age of 18 at the time of committing the offence.  The focus of sentencing for young persons often stresses rehabilitation and the reintegration of a young offender back into his community as opposed to more punitive sentences.  Young persons charged with criminal offences are dealt with in Youth Court.  In Ontario, Youth Court are judges of the Ontario Court, Provincial Divisions.  These are the same judges who also deal with certain adult offences. If you are a youth charged with an offence it is important that you contact a criminal lawyer with experience in youth matter.

Alternate Measures or Diversion

Young persons charged with relatively minor criminal offences, such as shoplifting, may be eligible for Alternative Measures programs.  In the appropriate case, upon discussion with the Crown or submissions to the Court the criminal charges may be withdrawn or stayed upon a young person’s undertaking to do community service work, write apologies, make restitution, write papers or other public service. Again, contact an experienced criminal lawyer to discuss your options if you are a youth arrested for a crime.

If you have been charged with a criminal offence, it is generally not a good idea to give up the right to silence until or unless you have retained legal counsel.  Generally, you will not talk your way out of being charged or released on bail. The decision to charge you or not is based on the evidence that the police gather.  The easiest way for the police to collect evidence against you is to get you to talk to them.  If the police want to talk to you, they probably are looking for a confession or for you to implicate yourself. You don’t have to talk to the police.  You do not have to give in to their pressure to provide information once you have been charged with a criminal offence. This is referred to in Canadian criminal law as the right to silence. It is a principle of fundamental justice 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 that you say may find its way before the Courts as evidence against you. But don’t think that you will be able to have a Court consider your explanation to the police by making a statement. The rules of evidence are such that statements favourable to the accused in a criminal trial rarely get before the Court, but incriminating or vague or ambiguous statements are often used against you in Court. Being arrested or questioned by the police is a stressful situation and out of your fear and confusion you may misstate things. It is best to rely on your right to keep silent until you’ve met with your criminal lawyer and obtained the best legal advice you can find.

In Canadian law your silence cannot be used to prejudice you.  No presumptions or negative connotations can be made against a defendant because he or she remained silent.  The Canadian Charter of Rights and Freedoms states that every Canadian has the right to remain silent until they obtain legal representation.  This means when you are arrested under the suspicion of having committed a crime, you are under no legal obligation to answer questions by the police.  That doesn’t mean that you won’t be pressured by the police to provide information.Nor does it mean that the police will stop asking questions or making insinuations, once you tell the police that you do not wish to speak without your lawyer,   But the right to silence is yours!  Questioning of persons in Canada before or after arrest is permitted.  Statements from accused persons form an important part of any police investigation and therefore persons being investigated for or charged with a criminal offence in Canada are best advised to remain silent.  You may feel that a statement may help you or be in your interests but it usually is not.

This legal right is intended to prevent confessions obtained by law enforcement through threats, violence or torture from being admitted as evidence in a Court of law.

Police are allowed to use all sorts of techniques, including tricks, during the investigation to encourage a person to talk about the circumstances of an alleged criminal offence.  Therefore accused persons must be strong in responding to continued questioning by repeatedly saying they want to exercise their right to silence.  The Courts in Canada have said that the obligation is on the person being questioned by the police not to say anything – not for the police to stop asking questions.  It’s sometimes very difficult to be silent because the natural desire is to respond to questions about wrongdoing.  Speaking to police during the investigation of an alleged offence, at the very least, gives the prosecution advance notice of your defence and more importantly, can provide evidence that will be used against you in your criminal trial.  What you must remember is that from the first moment the police talk to you, they will be looking for evidence to use against you to present to the Court at trial.  Anything you say to the police can end up being used against you in Court. Many times silence is golden!

VERBAL WARNING OF PERFORMANCE NOT ENOUGH TO JUSTIFY TERMINATION

In a recently released case from British Columbia, A 55 year old tugboat captain who had been employed for 8 years and 2 months prior to his dismissal sued after his employer dismissed him for cause after giving him repeated, but  undocumented, verbal warnings regarding incompetent acts.  The Court found that he was wrongfully dismissed and provided him with 10 months’ compensation in lieu of notice, given that his position was an important one requiring specialized training and his management role.

The employer told his employee verbally and  that his work was unsatisfactory or inadequate and threatened dismissal.  The employer, however, never gave the employee any timeframe within which to improve.  The Court found that to dismiss an employee summarily in such circumstances where the employer believes the employee’s performance is substandard, the employer must provide the employee with clear warnings which specifically informs the employee that his or her job is in jeopardy.  Simply warning that an employee’s job is at stake if performance does not improve is not in and of itself sufficient to satisfy the requirement to warn.  The Court in this instance found that a warning could only be sufficient as to the requirements in the law if the employer meaningfully assisted the employee to improve (Bomford v Waddon Transportation Systems Inc., 2010).

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Can an employee criticize a superior with reprisal?

When does it become justification for the termination of the employee for cause?

Not all comments made by an employee about the Company or their boss that are critical in nature justify termination.  Here are some of the considerations that Courts use and Human Resources professionals should consider when analyzing this issue.

1. Exactly what was the actual comment and the circumstances and tone in which it was said. When Courts have addressed this issue they have considered the following:

• Threats – Threatening violence is usually a fast track to termination
• Criticizing a boss’ decision is not necessarily a disciplinary matter.  There are some situations where superiors act improperly and criticism may be warranted.  However:
  • Making unfounded accusations of dishonesty
  • Making unfounded accusations of incompetence
  • Making comments about a superior’s ethnicity, family religion, and other personal matters

will usually be determined to be intolerable

2. To Whom did the employee relay the criticism:

• Employees have been terminated for criticizing the superior to the boss’ superiors.  Again it depends on the circumstances of the case but if an employee sends an email or a letter, in the hope of embarrassing management, in the eyes of shareholders or a superior in the Company, the Courts have determined that this may justify termination.  There was a situation in British Columbia where a campus radio manager was fired for doing this – even when his language was respectful and his criticisms had merit. [McCabe v Simon Fraser Campus Radio Society]

3. Was it legitimate criticism or strictly insubordination, vindictiveness or insolence. Posting criticism on-line where a blog is readable to anyone in the world with access to the Internet may well justify dismissal

4. Was there provocation?  Did the employee make a regrettable, verbal outburst? In cases like this the Courts will often be more lenient and find that termination is too harsh.  The Courts have recognized that “many things are said and done in the heat of the moment that, on reflection, are regretted.”

It’s fairly difficult to prove that an employee’s criticism of management constitutes just cause for termination.  If the employee puts a criticism in writing or goes over the boss’ head rather than confronting his or her superior directly, and uses language or tone that is disrespectful, inflammatory and potentially harmful to the business, the company may be more prone to terminate.

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Not every improper or unfortunate action by an employee merits termination. Courts consider a number of factors to determine if a termination is warranted for an employee’s behaviour, including criticizing the boss. This includes:

• Whether it’s a first offence:
  • While there isn’t a hard and fast rule, the Courts have often determined that it takes at least two incidents to fire an employee for insubordination or insolence and an employee should first be warned. There are, however, cases where an employee was terminated at first instance
• Whether the employee was provoked
• How long the employee had worked for the company:
  • The longer, more distinguished the service record, the harder it is to prove cause
• The employee’s position (employees in positions of responsibility are generally expected to demonstrate more discretion than lower level employees)
• Remorse – taking responsibility and expressing regret can diminish the seriousness of an offence and the penalty it carries. Lack of these actions can have the opposite effect

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It is stressful to be fired!  If the employee can show that the dismissal was not only wrongful but was carried out in bad faith, an employee may be entitled to additional damages upon termination apart from the requirement of reasonable notice.  Usual damages for wrongful dismissal include compensation in lieu of notice, vacation pay, statutory holidays and other lost benefits.  But when the way the employee is treated during the dismissal is particularly reprehensibly,  harsh, disrespectful or, to use a Court’s term – “egregiously”, employees can collect additional or extraordinary damages called aggravated punitive or other damages. These are often referred to as Wallace or, now, Honda damages – arising from the Supreme Court of Canada decisions where such damages were discussed.

The basic premise is that employers must be “candid, honest, reasonable and forthright” with their employees, especially at termination when their employees are most vulnerable.  So if an employer shows bad faith in the termination process, it must pay additional damages.

In Wallace,  these damages resulted in a few additional months of termination being tacked on to the notice.  But the Supreme Court of Canada in June 2009 in a case called Honda v Keays stated that Courts could no longer arbitrarily extend the notice period by a few months without a correlation or a reason to do so.  Such damages are now only properly awarded if the employee can show that they have suffered mental distress going beyond the normal stress and hurt feelings that naturally arise from being terminated.  Bad faith means inflicting humiliation, embarrassment and damage to an employee’s self-esteem during the employment process.  It is “something akin to intent, malice or blatant disregard for the employee.”  It is conduct that can be characterized as callous and insensitive, or “playing hardball” [Gismondi v Toronto City].  The kinds of “callous treatment” surrounding termination that constitute bad faith include:

• Making false accusations

• Damaging the employee’s prospects for finding another job

• Misrepresenting the reasons for termination

• Firing the employee to deprive her or him of a benefit

• Firing the employee in front of co-workers

No one is entitled to a job for life and sometimes employers must legitimately terminate an employee.  They cannot, however, rub salt in the wound.   Companies that behave with decency and show respect for employee’s feelings during termination will not incur these damages.