Jan 07
Bail Hearings / Bail Reviews
Bail Hearings / Bail Reviews
Bail Hearings
An arrested person has the right to be brought before a justice of the peace for a bail hearing within 24 hours of their arrest. Bail hearings are held when someone is in custody but not yet convicted of a crime. LZZ understands that the initial arrest and detention can be a traumatic experience and our lawyers are prepared to run a bail hearing as soon as possible.
When arrested, the police may decide to release the accused person from the police station. However, the law recognizes that the safety of the public and the proper functioning of the justice system may require an accused person to remain in custody and be brought before the court for a bail hearing. At a bail hearing, an accused person can either be released on bail, subject to certain binding conditions, or they will be ordered detained pending the completion of their criminal matter.
Pre-trial detention is unusual. LZZ appreciates the importance of a successful bail hearing and has conducted countless of successful bail hearings. The lawyers at LZZ will design a winning strategy to persuade the court to release the accused person.
Bail Review
If an accused person has been denied bail, there is a process by which the accused may seek a review of the decision. This process is called a bail review.
A bail review is an appeal of the bail hearing result that proceeds before the Superior Court of Justice. When seeking a bail review you must show the court that circumstances of the case have changed materially. For example: an entirely different and stronger bail plan, changes in the Crown’s case, or the passage of time. Or, that the justice of the peace or judge who presided over the initial bail hearing made an error of law.
It is important to remember that the Crown also has the right to seek a bail review if you were released at a bail hearing.
Bail Pending Appeal
Bail pending appeal is when a person is granted release from custody while his or her appeal is litigated before the Court of Appeal. If a person is seeking release on bail pending appeal, they must satisfy the court that three conditions are met:
- The Applicant must prove that the appeal is not frivolous, meaning that there is some arguable ground of appeal
- The Applicant must satisfy the Court that they will surrender into custody as required
- The Applicant must demonstrate that his or her release from custody is not contrary to the public interest
The first step in applying for a bail pending appeal is to file a notice of appeal as well as the supporting documents. Your lawyer will also file supporting materials for your bail pending appeal application. These materials usually include affidavits from the Applicant, the proposed sureties and a notice of application.
The criminal defence lawyers at LZZ have extensive experience conducting successful bail hearings, bail reviews and bail pending appeals. If you or someone you know has been charged with a criminal offence and is currently in jail call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Bail Hearings
What is a bail hearing?
A bail hearing is when a judge or justice of the peace decides whether you should be kept in jail or released into the community pending the outcome of your criminal matter. A bail hearing happens after a person has been arrested and charged with a criminal offence. An accused person may be physically brought to bail court or may be brought virtually from either the police station or an institution via Zoom.
What do I do if I am not released during a bail hearing?
If you were not released during a bail hearing, you will be remanded in custody. If you are still at the police station, you will be transferred to an institution, if you have already been transferred to an institution. You will remain in custody until your charges are dealt with. You may be released before your charges are dealt with if you bring a bail review, and are successful.
Do I need money to get out on bail?
Not necessarily. Often, the court chooses to release an accused person on a promise to pay, meaning that no money is required to be deposited up front. The financial obligation is often dependent on the individual circumstances of the case before the court, there is no set cost or price for bail or certain criminal offences.
How do I prepare for a bail hearing?
There is not much preparation an accused person can do for their own bail hearing. An accused person does not often testify at their bail. However, if any preparation is required, your lawyer will contact you prior to the bail hearing to prepare. Typically, all of the preparation is between your lawyer and the proposed sureties.
What is a bail plan?
A bail plan is the plan that you present to the court in order to convince them that you should be released. The plan needs to be well thought out and address any supervisory concerns the court or Crown may have.
What are the different types of bail plans?
There are many different types of bail plans. Some factors that affect the type of plan you propose at your bail hearing will include the charges you are facing and your criminal record. Your lawyer will advise you what kind of plan will maximize your chances of release. Other elements that are often incorporated into bail plans are a curfew, house arrest or ankle monitor.
Examples of bail plans are:
- Own recognizance
- Bail program
- Surety bail
Own Recognizance
This plan involves being released from custody without a surety. In other words, you are responsible for supervising yourself.
Bail Program
Bail program is a supervision program that acts in the place of a surety. Bail program is often proposed as part of the bail plan when the accused person does not have anyone to act as a surety for them. However, not everyone is eligible for bail program. Prior to a bail hearing, bail program will interview you in order to confirm if you’re eligible for the program.
Surety Bail
A surety is someone who promises the court that they will supervise you and be responsible for you while you are on bail. A surety also makes a financial promise to the court. If the person they are supervising doesn’t follow their conditions they could lose some or all of that money. There is no fixed financial pledge the surety is required to make. The amount varies and depends on the specific facts of the case.
Can I talk to a lawyer at LZZ if I have an upcoming bail hearing or if someone I know is going to have a bail hearing?
Yes, the lawyers at LZZ are always available to discuss an upcoming bail hearing, regardless if the bail hearing is for you or for someone you know. It is important to talk to a lawyer prior to conducting a bail hearing in order to maximize the likelihood of release.
What are my rights regarding a bail hearing?
As per s. 503 of the Criminal Code, an accused person has the right to be brought before bail court within 24 hours of their arrest. As outlined in section 11(e) of the Charter, an accused person also has the right to not to be denied reasonable bail without just cause.
What happens if I am released by the arresting officer and receive an appearance notice?
If you are released from the police station, the appearance notice you were given will have your next court date noted. It is important that you contact and retain a lawyer prior to your first court date. If you retain a lawyer, they will be able to appear on your behalf. However, if you do not have a lawyer before your first court date, you will be required to attend your court appearance.
What happens if I’m arrested while I’m already on bail?
You will be charged with the criminal offence of failure to comply and brought before a bail court for another bail hearing.
Does my surety have to appear in person for my bail hearing?
It depends on the jurisdiction of your bail hearing. Currently, most bail hearings are proceeding via Zoom for the time being. However, your lawyer will advise you if your surety is required to attend in person.
Jan 07
Wrongful Convictions
Wrongful Convictions
The justice system makes mistakes. They may result from inadequate investigations, flawed forensic evidence, lying or mistaken witnesses, prosecutorial tunnel vision, or simple human error. Whatever its cause, the consequences of a wrongful conviction are inevitably devastating—lives are destroyed and reputations are ruined. Canadian criminal law provides an appellate process that allows some miscarriages of justice to be identified and corrected. But the appellate process comes to an end and history shows that injustices sometimes continue.
Our lawyers have represented some of the best known victims of miscarriages of justice and seen them reversed, sometimes with apologies and compensation from governments. It is a difficult area of litigation, requiring a specialized set of skills and experience. We have pioneered the preparation of applications for Ministerial Review by the Minister of Justice under Part XXI.1 of the Criminal Code. We work regularly with leading forensic scientists who help correct the mistakes of government laboratories. We have a close and continuing relationship with Innocence Canada (formerly known as Association in Defence of the Wrongly Convicted (AIDWYC)) which draws miscarriages of justice to the attention of the media and the public.
Lockyer Zaduk Zeeh occupies a unique position in securing justice for the wrongly convicted in Canada. We work with highly qualified investigators to track down fresh evidence which can emerge years—even decades—after a conviction. The lawyers at Lockyer Zaduk Zeeh are continuing to work hard to overturn miscarriages of justice.
If you or someone you know has been wrongfully convicted you should contact a criminal lawyer at Lockyer Zaduk Zeeh immediately. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Jan 07
Sexual Assault Offences
Sexual Assault Offences
Sexual assault is a very broadly defined offence that can include anything from rape to unwanted, unsolicited or uninvited touching of a sexual nature such as the proverbial stolen kiss or grabbing a person’s breasts, genitals or buttocks.
Sexual assault allegations are serious. If convicted, not only will a person have to deal with the lifelong stigmatization. Those convicted of certain sexual offences will also be required by law to register with the local sexual offender registry, which forms part of a national registry. In order to effectively represent the accused, defence lawyers must make strategic and tactical decisions about how to best argue the defence. Often, counsel for the accused retain private investigators and scientific experts for DNA analysis in order to discover weaknesses in the Crown’s case.
The criminal defence lawyers at LZZ have extensive experience successfully defending against all types of sexual assault allegations. If you or someone you know has been charged with sexual assault you should contact a criminal lawyer immediately to help determine the best defence. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Sexual Assault Offences
What is considered Sexual Assault?
Unwanted contact that is of a sexual nature. This can take many forms such as unwanted touching or grab, an unwanted kiss, or penetrative sexual activity.
Are the majority of sexual assaults committed by strangers?
No. Many sexual assaults occur in the domestic context, either between partners or friends.
Will I go to jail for Sexual Assault?
Every case is different. The question should be “can you go to jail for Sexual Assault”, and the answer is yes. The biggest factor will be the nature of the alleged offence.
What is the minimum sentence for Sexual Assault in Canada?
If Crown proceeds by indictment and complainant is under the age of 16, the minimum sentence is 1 year.
If Crown proceeds summarily and complainant is under the age of 16, the minimum sentence is 6 months.
How can I be charged with Sexual Assault if the victim consented?
Consent can be vitiated by fraud. For example, if someone has HIV and does not advise his partner, her consent is seen as uninformed and thereby vitiated. She did not consent to sexual contact knowing that he had HIV.
How often do Sexual Assault cases go to trial?
Almost all the time because conviction of sexual assault automatically results in being named to the Sex Offender Registry for a minimum of 10 years. Crown counsel are also less willing to withdraw a sexual assault allegation, which means you end up setting trial dates.
What is reverse disclosure in Sexual Assault cases?
This is known as a 276/278 application. An accused has to now bring an application to have admitted any records in their possession that pertain to the complainant. An accused also needs to bring an application to have admitted any evidence they have which relates to a complainant’s sexual activity and history. This includes your own previous sexual history with the complainant.
How many hours are involved in a Sexual Assault case?
Each case will depend on a number of factors such as the amount of disclosure, the client’s mode of election (preliminary hearing or trial), the number of pre-trial motions involved, will the client testify in his defence? These are all important factors which will increase the amount of time needed to properly defend your interests.
How can I protect my personal information from the media in a Sexual Assault case?
You cannot really. The complainant’s identity will be protected. But there are little protections provided for an accused. Publication bans can be requested at bail hearings and preliminary hearings, the idea being that no evidence should be publicized that could impact upon a potential juror member.
What is the law of consent in Sexual Assault?
Sexual activity is only legal when both parties consent. But consent is complicated. An accused must show that they took steps to obtain consent, and that the consent was clearly communicated (rather than implied).
How many years after you’ve been sexually assaulted can you turn the person in to the police?
Anytime. There is no limitation period on reporting sexual violence.
If I report that I have been sexually assaulted what will happen?
The police will investigate, which will involve being called into the station for an interview. If the police believe they have sufficient evidence that a criminal was committed, they will arrest the individual and lay charges.
Do I have any choices about what the police will do?
No. Once the police take over, the investigation and what happens next are out of the complainant’s hands. The police or a Victim Support Worker will be in touch with updates and to obtain any feedback on potential resolution.
Sexual Assault Blogs
Section 161: Prohibition Orders for Sexual Offenders
Do Sexual Assault Allegations Have a Limitation Period?
Using Prior Sexual Activity at your Trial
I Have Been Falsely Accused of a Sexual Assault
What is Consent to Sexual Activity
Why Should I Hire a Sexual Assault Lawyer?
I Have Been Charged with Sexual Assault, What Should I Do?
What is the Age of Consent in Canada?
I Have Been Charged with Sexual Assault, But They Consented?
Jan 07
Search Warrants
Search Warrants
A search warrant allows the police to enter your home or access your private information (such as your banking and cell phone records) without warning or your knowledge.
How Police Obtain a Search Warrant
Police need to file an information to obtain (ITO) that sets out their grounds for seeking the court ordered authorization. Some common types of authorizations are:
- Authorization to intercept communications (part VI authorization)
- Search warrant
- Production order
- Tracking warrant
Challenging a Search Warrant
Any authorization can be challenged in court. The law presumes that a warrant is valid and it is your lawyer’s job to confirm why the warrant is invalid. Some common ways that your lawyer could challenge the validity of the search warrant are:
- Challenging the accuracy of the information the police presented to the court in order to obtain the warrant. Was the affiant full frank and fair?
- Challenging whether the warrant met the necessary requisite grounds.
- Whether there was sufficient information that evidence would be located in the residence, premise or item being searched.
- Whether the police exceeded the scope of the warrant or conducted their search in an unreasonable manner.
A successful challenge of a search warrant could lead to the exclusion of evidence in your case.
The criminal defence lawyers at LZZ have extensive experience successfully challenging search warrants. If you or someone you know has been charged with a criminal offence and had police officers search your home, vehicle or anything else belonging to you pursuant to a search warrant you should contact a criminal lawyer immediately to help determine the best course of action. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Search Warrants
What is a Search Warrant?
A search warrant is a court order that is judicially authorized by a Justice of the Peace or a judge that allows the police to search a specific location, place or thing, for evidence that is relevant to a criminal charge or investigation. The parameters of the authorization (place, items, etc) are set out in the search warrant.
What Types of Authorization can the Police Obtain?
The Criminal Code allows the police to seek authorization for several different warrants, including but not limited to production orders, tracking warrants (cell phone or vehicle), Transmissions Data Recorders, an authorization to intercept private communication, and a warrant to enter a premises and/or residence.
Can the Police Record my Conversations?
Yes, the police can apply to intercept your private communication such as text messages and phone calls. This is regularly used when the police are investigating large cases such as gang projects, criminal organizations, or large conspiracies.
Known as a wiretap, the test for naming a person in this specialized warrant is a modest one. Governed by the Criminal Code s. 184.4, the investigators must know the identity of the person and have reasonable and probable grounds to believe that the interception of that person’s private communications may assist the investigation of an offence.
If your private communications were intercepted, you will receive notice after the fact that your communications were intercepted by the police.
What is a General Warrant?
A general warrant found in s. 487 of the Criminal Code allows a judge to issue a warrant authorizing the police to use any device, investigative technique, procedure, or do anything described in the warrant that would, if not authorized, constitute an unreasonable search and search. One example is commonly known as a “sneak and peak” warrant, which authorizes the police to enter a specific location in a covert manner. This is commonly used in large drug investigations where the police believe substances and other paraphernalia are being stored, and they would like to confirm their beliefs without allowing the target to know.
What is an Information to Obtain (ITO)?
An Information to Obtain is an affidavit drafted by a police officer setting out the grounds for the requesting warrant. The ITO is reviewed by a Justice of the Peace or a judge who may issue a warrant. The ITO should establish reasonable and probable grounds that an offence has been committed and that a search of a location will produce specific evidence in furtherance of the criminal investigation.
Do Police have to Show Me a Copy of the Warrant?
The police should show you the search warrant. If they do not show it to you, ask to see it. Make sure that the information on the warrant is correct. Check whether your address is correct and see if the warrant shows the dates and hours when it can be used.
When can the Police Execute a Search Warrant?
If the search warrant is pursuant to the Criminal Code, the search must occur during the day between the hours of 6 a.m. and 9 p.m. The police can also apply pursuant to s. 488 of the Criminal Code to execute the warrant at night.
If the search warrant is pursuant to the Controlled Drugs and Substances Act (CDSA), the police can execute the warrant day or night.
Can the Police Use Force to Enter my Home?
Regularly the police will execute a search warrant with a dynamic entry. A dynamic entry can include the use of a battering ram, flash grenades, or armed police officers. The choice to use force can be reviewed by a Court. The manner of search must be reasonable, and if the Court finds the manner of search was not reasonable, it will constitute a breach of your s. 8 Charter rights. This is even true if the police had proper grounds to conduct the search.
Can the Police Seized Items which are not Listed in the Warrant?
Yes. The police conducting any search can seize any item which is found to be in plain view. For example, if the police were granted authorization to search for a firearm, but when they entered the residence they located controlled drugs, such as cocaine, the police are allowed to seize that controlled substance.
Do the Police need a Search Warrant to Conduct a Search?
The police are allowed to conduct warrantless searches, but the Crown then bears the onus of proving that the warrantless search was unlawful. In a case where there is a warrant, the onus is on the Accused-Applicant to show that the search was unreasonable
There are several exceptions to warrantless searches:
• Exigent Circumstances: The Criminal Code allows the police to conduct a search where it would be impracticable to obtain a search warrant and there is immediately danger of harm or destruction of evidence.
• Search Incident to Arrest: Upon arrest, the police have the power to search a person and their immediate surroundings incident to arrest. The search must be conducted for one of the following purposes: (i) to ensure the safety of the police or the public; (ii) to prevent the destruction of evidence by the arrested person and others; or (iii) to discover evidence of the offence for which the arrest was made that can be used at the arrested person’s trial.
• Investigative Detention: A police office may detain an individual if there are reasonable grounds to suspect in all the circumstances that the persons is connected to a particular crime, and the detention is reasonably necessary on an objective view of the circumstances. During an investigative detention, a police office can conduct a pat-down search for safety reasons.
• Emergency Calls: If the police are responding to a 911 call and have reasonable and probable grounds to believe that a person inside the house is in distress, they may enter the residence.
• Consent Search: A police officer can always conduct a search if it is on consent. For example, you can consent to the police searching your residence. For the consent to be considered valid, the person giving consent must be the person affected by the search and in control of the residence. It is important to know that you are under no obligation to consent to a search of your home.
How Can I Defend Myself Against an Unreasonable Search?
Lockyer Zaduk Zeeh has an exceptional record of defending people based on unreasonable search and seizure. If you have been the target of a search warrant, intercepted communications, or a search incident to arrest, please give LZZ a call to schedule a consultation. We represent people charged with criminal offences regularly across Ontario, such as Durham (Oshawa, Whitby, Ajax), Lindsay, Peterborough, Cobourg, Belleville, Napanee, and Kingston.
Jan 07
Robbery
Robbery
Similar to theft, robbery is the intent to take another person’s possession without their consent. However, robbery involves the use or threat of violence. Robbery allegations are much more serious than simple theft. Examples of robbery could be robbing a bank, to robbing someone on the street.
If a restricted or prohibited firearm was used during the offence, the accused person will face a minimum sentence of five years in jail. However, if you are charged with more than one offence, there is an additional seven years for each additional charge.
If convicted of robbery you could be facing life in jail, depending on the circumstances of the offence.The severity of the penalty is largely dependent on the value of the goods that were stolen. The sentence for goods worth less than $5,000.00 is less than the sentence for goods worth more than $5,000.00.
The criminal defence lawyers at LZZ have extensive experience successfully defending against all types of robbery allegations. If you or someone you know has been charged with robbery you should contact a criminal lawyer immediately to help determine the best defence. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Robbery
What is Robbery?
Put simply, a robbery is a theft coupled with an assault. Robbery occurs when a person steals from another person using violence, threats of violence, and/or the use of a real or imitation weapon. The use of violence is what differentiates robbery from a theft.
When does the Violence need to Occur to Constitute a Robbery?
The violence can occur before, during, or after the theft. If violence is used at some point during the theft, a robbery charge can be made out. For example, if you stole from a store, but in the process of fleeing the store you pull out a knife this could constitute a robbery.
What Constitutes Violence?
An assault is the application of force without consent. For example, pushing someone without their consent is an assault. An assault does not require an injury or even a complaint of harm. Any application of force against someone while committing a theft could constitute a theft.
What is the Sentence for a Robbery?
Robbery, like many crimes, vary in terms of seriousness. Robbery can be the theft of someone’s belongings after a fight or on the more serious end, a home invasion robbery with a firearm. Sentences range from non-jail, such as a conditional discharge, suspended or conditional sentence, to more serious sentences such as jail time, to a life sentence. The sentence depends on the nature of your offence, your personal background, and any other mitigating and aggravating circumstances.
How do I Beat a Robbery Charge?
There are several potential defences to a robbery charge. Some defences would result in an acquittal, while others could lead to an acquittal for robbery but a finding of guilt of the lesser offence of theft. These defences are as follows:
• Factual Innocence: you can provide alibi evidence, or other witnesses to prove that you were not there and could not have committed the offence.
• Identity: identity of the perpetrator is many times a crucial issue in a case. The Crown must prove beyond a reasonable doubt that you committed the robbery. Depending on the quality of surveillance footage and the familiarity the civilian witness has with you, the Crown may have a difficult time proving that you were the person that committed the robbery.
• Charter: anytime a police officer breaches your Charter rights you can apply to exclude evidence from your case. It is unlikely that a successful Charter application would win your case (such as a Refuse to Provide Breath Sample case wherein you exclude the breath sample, ergo the Crown’s only evidence), but the exclusion of important evidence may leave the Crown with a substantially weaker case. For example, if evidence was seized from your residence after a search warrant that you successfully challenged, that evidence would be excluded and the Crown would be unable to rely upon it.
• No Violence: this is a partial defence where you argue that you are guilty of theft, but you did not commit any violence so there was no robbery.
I have been Charged with Robbery, What Should I do?
Call Lockyer Zaduk Zeeh to speak with an experienced defence lawyer about your case. A robbery conviction severely impacts on your future. Our lawyers represent people charged with robbery across the Greater Toronto Area, in Toronto, Brampton, Oshawa, and Newmarket.
