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Recent successes

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Recent successes

Each case is a case in point, and the verdict depends on a series of factors unique to each case. Not all our clients are acquitted; our firm’s clients are also sometimes found guilty.

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Drunk driving: recent acquittal in February 2017

A client of our firm was charged with operating a motor vehicle with a blood alcohol level greater than 80 mg/100 mL.

On June 26th, 2015, he returned from fishing on the river.

Upon exiting the boat, our client and his friend attached the boat to the trailer of the utility vehicle belonging to our client’s friend.

From about 10 metres away, an ordinary citizen accompanied by his wife and child watched the scene closely.

He noticed that our client had difficulty backing up the utility vehicle in order to get the boat on the trailer.

He called the police since, according to his observations, our client was extremely intoxicated by alcohol.

Once the police arrived at the scene, the citizen identified our client as the one who had moved the vehicle.

The police officers questioned our client and he was arrested for impaired driving. At that time, our client made a spontaneous statement and mentioned twice that he hadn’t driven and that the person who had moved the vehicle had left.

The defence’s theory of the case rested on the fact that the accused hadn’t driven the motor vehicle while impaired. It was essential to emphasize the lack of reliability with respect to the identification of the driver and that it was possible that a person other than the accused was the driver.

The strategy: Focus the cross-examination on the weaknesses in the identification process and the disclosure of evidence. In this case, the way the legal process played out greatly helped the defence obtain an acquittal.

The trial: We demonstrated during cross-examination that the police officers had not provided a description of our client’s physique and clothing during the arrest and that he had no key in his possession.

The ordinary citizen gave a different description of the clothing than the police officers in court.

During cross-examination, one police officer was not able to identify our client in the courtroom.

Arguments: 

In the case Judge Sopinka described the weakness of this type of evidence in the following terms:

“The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of ‘the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection.’ […] In R. v. Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (C.A.), Laskin J.A. (as he then was) made the following observation about identification evidence (at p. 82):

“Errors of recognition have a long documented history.  Identification experiments have underlined the frailty of memory and the fallibility of powers of observation.  Studies have shown the progressive assurance that builds upon an original identification that may be erroneous.”

After one day of hearings, the court rendered a verdict of acquittal with respect to our client.

Please contact our office to obtain the written decision of this case.

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Breaking and entering: community service

A client of our firm was charged with repeatedly breaking and entering dwelling-houses under Section 21 of the Criminal Code.

More specifically, her role involved providing the transportation and acting as a lookout in the car in exchange for a small payment for each offence. These events occurred over a nine-day period.

An accomplice had pleaded guilty in this case and the court had sentenced her to 90 days in detention as part of a joint submission.

The prosecution thus requested the same sentence for our client according to the principle of parity of sentencing.

The strategy: Request a pre-sentence report and focus sentencing arguments on case law.

Sentencing: With the pre-sentence report, we provided evidence of the following mitigating factors:

  1. Absence of a criminal record
  2. Young age of the accused
  3. The fact that she took full responsibility for her criminal actions
  4. Her psychological fragility and her underlying motivation for committing her actions – namely, her precarious financial situation and the fact that she was a single mother of two young children
  5. Her sincere regrets
  6. Her guilty plea
  7. The fact that she had sorted out the company she kept.

Arguments: We referred to the case R c. Beaudoin 2016 QCCA 1241.

In that case, the accused had pleaded guilty to 46 charges, including 39 brought against him for breaking and entering dwelling-houses between June 21st and August 5th, 2014 in Victoriaville and Plessisville, with intent to commit an indictable offence therein in some of the cases, and in others committing thefts therein, as well as one count of breaking and entering to steal a firearm, a criminal offence under Section 98(1) CCC.

[2] On February 8th, 2016, the judge (the Honourable Bruno Langelier, J.C.Q.) sentenced him to 90 days of intermittent imprisonment (two days per week) followed by a 30-month probation order consisting of various conditions, including performing 200 hours of community service within 24 months. The judge also ordered him to pay back $5000 to two of the victims and submit to the collection of a DNA sample.

We argued before the court that the facts in this case were much more aggravating.

With the support of the pre-sentence report and this case law, we requested the following sentence:

Suspended sentence conditional on performing 240 hours of community service with 3 years of probation and an 18-month probationary follow-up.

The prosecution requested 90 days.

The judge took the decision under advisement and ultimately sentenced our client to perform 240 hours of community service.

Our client avoided prison.

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Illegally at large: recent acquittal in February 2017

A client of our firm was charged with not reporting to the Québec Detention Centre on two separate occasions – namely, a Saturday and Sunday in June 2016.

An arrest warrant was issued and our client was indicted at large in this case.

During the appearance, we immediately set a date for the trial.

The defence’s theory of the case rested on the fact that the accused had a reasonable and legitimate excuse for not reporting on two separate occasions to the Québec Detention Centre.

The strategy: Set the trial for after the client had finished serving his intermittent prison sentence on weekends to increase his credibility at trial.

The trial: Thanks to the testimony of our client’s mother, we proved that he had been the victim of a criminal act and that it would have been impossible for him to report to the prison given his serious injuries.

Despite the fact that we didn’t have a doctor’s note, the judge believed our client’s testimony as well as his mother’s.

He was acquitted.

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Death threats: a client is acquitted

Charged with uttering threats in a domestic context, a client is acquitted due to lack of evidence.

Proof beyond a reasonable doubt is necessary

The presumption of innocence is the cornerstone of criminal law. When the Crown is unable to offer evidence, the accused must be acquitted. In this particular case, the complainant withdrew her complaint, asserting that her claims were inspired by misplaced jealousy.

Independent evidence to consider: withdrawal of complaint

It should be noted that, in all cases, the complainant isn’t the one who decides to put an end to a criminal prosecution. Rather, it’s the role of the Crown to decide whether it’s in the public interest to do so. Contrary to popular belief, a prosecution doesn’t necessarily stop when the complainant withdraws their complaint.

For example, see the directive from the Director of Criminal and Penal Prosecutions on this matter.

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Drunk driving: example of an acquittal

A client charged with operating a motor vehicle with a blood alcohol level greater than 80 mg/100 mL is acquitted. The defence’s theory of the case rested on the inability of the Crown to benefit from the presumption of identity.

2-hour delay

The blood alcohol level is only presumed reliable to the extent that the Crown is able to establish beyond a reasonable doubt that, as specified in Section 258(1)c) of the Criminal Code:

  • each sample was taken
    • as soon as it was reasonably possible to do so after the moment when the offence was committed and;
    • in the case of the first sample, no more than two hours after this moment, the others having been at intervals of at least fifteen minutes.

In this particular case, it was found that the Crown was unable to prove beyond a reasonable doubt that the sample had been taken within two hours of the commission of the offence. The client thus benefitted from the presumption of innocence and was acquitted.

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Breach of probation – stay of proceedings

A client of our firm was charged with two breaches of probation under Section 733.1 of the Criminal Code.

The offences dated back a few years.

On March 31st, 2015, police officers in British Columbia executed an arrest warrant related to another case in which our client was the subject of a warrant and our client was arrested and detained at the courthouse in Penticton, BC.

At that time, it appeared that the British Columbia police had not executed this arrest warrant in relation to the breach of probation charges in the District of Québec.

It wasn’t until February 2016 that our client was arrested at his home for the breach of probation charges.

The defence set the case for trial and a motion under Paragraphs 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms was presented to the court.

After examining our motion, the Crown decided to announce that they were dropping their charges and our client was granted an acquittal.

Our motion was based on a new decision by the Supreme Court, which we recently discussed in our blog.

Click here to view the article.

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Possession for the purpose of trafficking: acquittal

A client charged with cannabis possession for the purpose of trafficking is acquitted.

Circumstantial evidence

In this case, the prosecution’s theory of the case rested on circumstantial evidence. We pleaded a recent Supreme Court decision, the principles of which can be found in a note that we’ve published here.

In short, when evaluating circumstantial evidence, the judge must consider other plausible theories of other reasonable possibilities that aren’t compatible with guilt.

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Construction and the Building Act

A client was facing two charges under Section 46 of the Building Act, which stipulates that:

No person may act as a building contractor, hold himself out to be such or give cause to believe that he is a building contractor, unless he holds a current licence for that purpose.

No contractor may use, for the carrying out of construction work, the services of another contractor who does not hold a licence for that purpose.

The constitutive elements of the offence are:

1-    Carrying out construction work;

2-    On a construction site;

3-    Of a building used to house people;

4-    Intended for others and for their own benefit;

5-    While they don’t hold a contractor’s licence.

Assessing the contract client’s credibility

During the trial, the contract client came to testify. During cross-examination, we highlighted a motive for the witness not to tell the truth. The evidence concerning the moment when the offence had been committed wasn’t clear. Given the absence of evidence beyond a reasonable doubt, the judge acquitted our client.

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A motion under the Charter: fresh cannabis odour

Our client’s arrest was primarily based on the fresh odour of cannabis. We filed a motion to demonstrate objectively that the police officers had insufficient grounds to justify an arrest. The Crown agreed to drop the charge. Given that our client was in danger of being convicted, the judge acquitted him.

The law and fresh cannabis odour

We published a note on the law that applies to arrests based on cannabis odour.

The danger of being convicted

v. Moore, [1988] 1 SCR 1097:

The question of knowing whether a legal decision that terminates the proceedings gives rise to a plea of autrefois acquit depends on the nature of the legal basis of the decision. Decisions based on substantive legal principles will generally allow for defences of autrefois acquit. Decisions based on procedure are more complex. Some can terminate faulty proceedings without preventing the prosecution from restarting them; other decisions can be equivalent to a final decision subject to appeal, without giving rise to new proceedings. It’s virtually impossible to specifically outline every possible situation. However, three factors are important when it comes to such decisions: the nature of the offence in question, the stage in the proceeding where it is raised, and the extent of the harm done to the accused.

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Discharge – drugs

A client of our firm was charged with four counts on different dates of possession of GHP and methamphetamines, thus committing the criminal offence specified in Section 4 (1) (3) a) of the Controlled Drugs and Substances Act.

The difficulties relating to this case and the defence’s strategy:

Our client was arrested twice on two different dates: August 14th and December 21st, 2014.

Our client had a criminal record for theft of under $5,000.00 from when he was just 19, and he was ordered to pay a fine of $500.00.

He also had several other convictions from when he was a teenager.

The defence’s strategy was to combine the two cases in court and to convince the Crown to amend the charges.

The Crown agreed to amend the prosecution method for the charges in order to reduce the objective seriousness of the charges.

The defence’s strategy was to request that a pre-sentence report be prepared to provide convincing evidence of rehabilitation. Our client therefore pleaded guilty on all counts.

The challenge of this case:

Our client worked full-time in the telemarketing field, and a criminal record for drugs would result in the loss of his job and termination.

The company our client worked for made the decision to overlook his criminal record for theft of under $5,000.00, given its low objective seriousness and that it was a youthful indiscretion.

Our job now was to prevent our client from getting a criminal record related to drugs.

The factual background:

The offences occurred in Québec in August and December 2014. Police officers arrived at a restaurant parking lot after a call regarding possibly intoxicated individuals. It was at that time that our client was arrested for possession of methamphetamines. Regarding the second event, our client was again intercepted by police on the street while he had methamphetamines and GHP on him.

The negotiation with the prosecutor before entering a guilty plea (plea bargaining):

We met with the Crown and provided several documents attesting that our client was employed by a communications company and that a criminal record for drugs would result in our client losing his job.

We provided our client’s employment contract, the corporate policy, and a letter from the employer.

After negotiation, the Crown prosecutor made a note in his file that, if the pre-sentence report was positive, he would agree to a conditional discharge.

Sentencing:

During sentencing, a new Crown prosecutor was assigned to the case to replace the initial prosecutor due to administrative changes made to the DPCP on May 1st, 2016.

The new Crown prosecutor didn’t agree with granting a discharge given our client’s criminal record for theft and the prior convictions from his youth.

Despite that, there was still a note in the prosecution’s file, and the custom is to respect the writings of your colleagues on a case.

The new Crown prosecutor decided to follow the defence’s arguments and consented to a conditional discharge given our client’s favourable pre-sentence report.

Judgment of the court:

It should be noted that the court is not bound by any joint recommendation of the defence and the Crown if they consider the suggestion to be unreasonable and contrary to the principle of punishment laid down in the Criminal Code.

This was a very specific case, so we made the decision to provide convincing evidence in defence so that the court would accept our suggestion of a conditional discharge.

After entering our client’s profile and the numerous mitigating factors of the case into evidence, the judge agreed to grant our client a conditional discharge.

Our client avoided a criminal record for drugs and is currently pursuing a career in his field.

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