This is a followup to my previous post on the new Option 2 in Provincial Offence Notice Form 4.  As I said in that post, Option 2 in Form 4 was changed from “plead guilty with an explanation” to “early resolution meeting with a prosecutor”.  You can read more about that change and when you might want to choose Option 2 in that post.  This post will outline the differences between Form 3 and Form 4.

There are 2 different Provincial Offences Notices (tickets) used by police in Ontario:  Form 3 and Form 4.  You can tell which one you have by looking at the top of the ticket.  On the face of it it will say Form 3 or Form 4.  New versions of both forms came into effect on March 31, 2012.  Click these links to see what the forms look like:

Form 3 – new
Form 3 – old
Form 4 – new
Form 4 – old

Which forms are still valid?

As of March 31, 2012, the new versions of both Form 3 and Form 4 are valid.  The old versions of Form 3 remain valid for 6 months after March 31, 2012. (see O/Reg 108/11 s. 1(4))  The old versions of Form 4 are no longer valid (as there is no transitional provision).

What is the difference between Form 3 and 4?

Form 3 (both the old and new versions) have Option 2 as pleading guilty with an explanation.  Form 4 (the new one, as I said in my previous post) now has Option 2 as early resolution meeting with the prosecutor.

If you get a ticket in a jurisdiction that uses Form 3 you technically don’t have an option for an early resolution meeting with the prosecutor, though as a general practice those jurisdictions will conduct resolution meetings on the morning a case is set for trial.

If you get a ticket in a jurisdiction that uses Form 4 you no longer have the option to plead guilty with an explanation.  You can, of course, still go to trial and say your piece after the trial (if you are convicted), or you can set the matter for trial and then plead guilty the day of and say your piece then.

Which jurisdictions use Form 3 and which use Form 4?

There does not seem to be any criteria for which jurisdictions use which form.  As I understand it, it is their choice whether they want to offer the early resolution meetings or not, and therefore whether they will use Form 3 or Form 4.

Starting March 31, 2012, police in Ontario will be moving to a new version of Provincial Offence Notice Form 4 (the ticket that police give you when they charge you or contravening a provincial law).  Some of you may have had the misfortune of receiving one already.  If not, you can see it here.

What’s new about it?

What’s new about the Form 4 is that Option 2 on the back of the ticket has changed.  It used to be the option if you wanted to plead guilty with an explanation, which meant that you went before a Justice of the Peace and plead guilty and then got to make submissions about why you should receive a reduced sentence (fine).  It’s now an option for you to have an early resolution meeting with the prosecutor.

This was always an option on the old Form 4 tickets, but it was incorporated into Option 3 (trial).  It used to be that you would have to pick Option 3 and then you could have a resolution meeting with the prosecutor in advance of the trial date.

The new Option 2 also includes the option to have the resolution meeting by some electronic means (to be determined by the municipality) if you live more than X km from the courthouse.  X will be determined by each jurisdiction and will be printed on the back of the ticket.

When should you use Option 2?

You should use option 2 if you want to speak to the prosecutor about a possible resolution (deal).  Note that choosing this option does not mean that you are giving up your right to a trial.  If you don’t reach a deal with the prosecutor you are still free to proceed to trial.

The kind of deals people are looking for are usually for the prosecutor to allow them to plead guilty to a lesser offence (or in the the case of a speeding charge to a lesser speed) or to allow them to plead guilty to one or more charges in exchange for having others dropped (when there are more than one).

The prosecutor can do all of these things, but they can not reduce the demerit points associated with the charge.  Neither can the judge.  Points are fixed by the Ministry.  If you are concerned about the demerit points then you want to try to plead guilty to an offence that carries fewer points (or fight it at trial and get acquitted of course).

You can also negotiate with the prosecutor for a joint submission on the sentence in exchange for a guilty plea.  This means that you will plead guilty and the prosecutor will tell the judge that you have both agreed to a particular reduced fine.  This makes judges very likely to accept, which is why you might want to negotiate for that, but they are not bound by a joint submission and can still impose a higher fine if they see fit.  That is rare though.

This post was updated on April 20, 2012 to clarify some information in the post.

I am proud to announce that this summer (2012) I will be working for Stephen Proudlove at Proudlove Law in Toronto.  Proudlove Law is a boutique criminal defence firm specializing in criminal trials and appeals, constitutional law, regulatory law, and professional discipline.  They are a litigation oriented firm and they frequently handle complex project cases and serious offences.  I am very much looking forward to beginning my work there.

You can check out my bio on the firm’s website here.  It says:

Simon Borys, a law student at Queen’s University, is also a former police officer and, as such, has received considerable exposure to the Criminal Code of Canada and the Charter of Rights and Freedoms, as well as other federal and provincial statutes and laws. Simon has also received extensive training in Canada and the United States in traffic enforcement, as well as in the areas of interviewing and interrogation, firearms, criminal interdiction (narcotics importation enforcement), and a host of other
legal issues.

Simon has always enjoyed a strong commitment towards upholding and defending the rights of citizens and it was his experience in policing which led to his decision to attend law school. Simon intends to practice criminal and regulatory defence upon his call to the Bar.

Simon proudly offers his services as a part-time instructor in the Police Foundations program of Trillium College. As well, he is an active member of many professional organizations, including the Criminal Lawyers Association, the Prison Lawyers Association, the Canadian Bar Association, the Ontario Bar Association, and the Canadian Transport Lawyer’s Association. Simon also sits on the editorial board of Briefly Speaking, the Ontario Bar Association’s magazine.

In addition, Simon maintains a blog entitled Simon Says (www.SimonBorys.ca), where he attempts to share his knowledge and experiences in policing by dispelling myths and demystifying the law. His posts are frequently reprinted by media outlets and he is often invited to offer commentary on a variety of
legal issues.

Recently I was interviewed by Michael McKiernan for Articling How To, an article in the Canadian Lawyer4Students magazine.  In it, Michael discusses how students can set themselves up for an articling position in the midst of this present articling crisis.

He talks about doing something to set yourself apart from the crowd by “thinking small”, “taking the initiative”, “knowing your options”, “embracing old technology”, and (my topic) “embracing new technology”.

For embracing new technology, Michael wrote:

In a competitive articling environment, you have to make yourself stand out. And the earlier, the better, according to Simon Borys, a second-year law student at Queen’s University in Kingston, Ont., who has put a great deal of effort into building his online profile. “Everyone comes to the table with law degrees, so you have to demonstrate to future employers what you bring in addition. Online activities are a great way to showcase that,” he says.

Borys highlights his own history as a police officer on his blog, which he uses as a platform to link up with fellow students, senior practitioners, and potential future employers. He’s also active on Twitter and participates in online legal discussion groups. And it’s paid dividends, because he’s already secured a summer position at a criminal law firm, with a strong chance to return to complete his articles. “It’s been very well received and I’ve made lots of connections,” says Borys.

All of the things Michael discusses in this article are highly relevant to students currently seeking articling, especially considering the present scarcity of articling jobs.  It’s not enough in this day and age to come to the job market with just a law degree and your hand out and expect that someone will give you a job.  You don’t have to use new technology, like I do, but you have to do something!  Read Michael’s article and think about what might work for you.

Commercial vehicle law/safety is one of my favourite topics.  When I was an officer I received a considerable amount of training in this area and it was something I dealt with regularly.

Commercial vehicle law is a complex web of Highway Traffic Act sections and various Ontario and Federal Regulations that is not easily understood.  However, ignorance of the law is not a defence, as the Supreme Court stated in City of Levis v Tetreault (2006 SCC 12) (quoting my criminal law prof at Queen’s – Don Stuart).  This means that those who operate commercial vehicles regularly as part of their business are expected to know the law – as complicated and indecipherable as it sometimes is.  Those who don’t risk severe monetary and administrative sanctions in the commercial vehicle context.  It is my hope that this post will help make one aspect of commercial vehicle law – annual inspections – a little more understandable.

For those who don’t know, annual inspections are required by law to be conducted annually for certain types of commercial vehicles and trailers.  Inspections can only be completed by a mechanic who is authorized to do so.  The mechanic will issue a paper certifying that the inspection has been completed and must affix a square yellow sticker in lower left hand corner of the windshield or in a conspicuous location on left of the vehicle or trailer.

Section 85 of the Highway Traffic Act prohibits vehicles that require annual inspections from being operated on the roads in Ontario if they do not have an up to date inspection sticker (referred to in this section as a “device”).  It is the failure to display the inspection sticker, not the failure to have the inspection done, that constitutes the offence.  As a result of this prohibition, an officer is authorized to seize the plates of such a vehicle (s. 85(3)).  The fines for operating or permitting a vehicle to be operated while failing to display a device (the annual inspection sticker) is $240.  Drivers and individual or corporate owners of commercial vehicles requiring an inspection can be charged.

The applicability of s. 85 of the HTA is determined by s. 8 of Ontario Regulation 611 – Safety Inspections.  It creates the following 5 scenarios where annual inspections are required:

1) Where a truck alone has an actual weight (gross weight) exceeding 4,500 kg, the truck requires an annual inspection.

2) Where a truck alone has a Registered Gross Weight (the RGW weight on the ownership) exceeding 4,500 kg, the truck requires an annual inspection.

3) Where a truck alone has a Gross Vehicle Weight Rating (the GVWR number on the VIN plate usually found in the driver’s side door jam or in the glove box) exceeding 4,500 kg, the truck requires an annual inspection.

4) Where the actual weight of the truck plus the corresponding actual weight of the trailer or converter dolly it is pulling combine to exceed 4,500 kg, both the truck and the trailer require an annual inspection.

5) Where the GVWR of the truck plus the corresponding GVWR of the trailer or converter dolly it is pulling combine to exceed 4,500 kg, both the truck and the trailer require an annual inspection.

There are, of course, a number of exceptions set out in Regulation 611, for example:

• where such a vehicle is being operated under a dealer or service plate
• certain buses being used for personal use
• vehicles compliant with similar legislation in certain other North American jurisdictions

And because Regulation 611 refers to “commercial motor vehicles”, we also need to look to the definition of that term in s. 16(1) of the HTA.  When we do, we see that the term (and thus s. 85) also does not apply to:

• mobile homes
• tow trucks
• and a number of other types of vehicles

This is just a general outline of the law on annual inspections and is not mean to be authoritative or complete.  There are more intricacies and complexities than I have delved into here.  However, I hope this has give you a little better understanding.

Legal Aid Ontario (LAO) recently launched a website entitled LawFacts which is designed to provide information about the criminal justice system to people in Ontario.  (See the press release here.)  It will not provide you with specific legal advice about your particular situation, but it does have general information on:

• Sentencing
• Bail
• Being a surety
• Court orders
• Diversion
• Duty counsel
• First appearances
• Guilty pleas
• Peace bonds
• Types of sentences

In addition, it has some forms and checklists that people might find helpful, as well as a glossary of legal terms.  Some of the information on this website will be applicable to people outside Ontario (since much of the criminal justice system is governed by the Criminal Code – a federal statute), but some of it is unique to the way we do things in this province.

Concern has been raised among the criminal defence bar that LAO may be attempting to steer people towards duty counsel and towards early pleas with this endavour, rather than encouraging and enabling them to retain counsel (which would allow them to fully realize and enforce their Charter rights in the criminal justice process).  This is something that defence lawyers understand (as we all should) is necessary to (a) prevent wrongful convictions and (b) support a system that would accord everyone a maximal amount of procedural protection to ensure they are treated fairly.

LAO may well have a vested interest in pushing people towards duty counsel and early guilty pleas since it makes their job of disbursing limited legal aid funds to accused who need a lawyer easier.  However, even if this is true (and I don’t claim to know whether it is or not) I don’t think that invalidates the utility of a website like LawFacts.  I am of the opinion that the more educated people are the better they are able to make informed choices and enforce their rights, which in turn ensures that the system works properly for all.  In fact, this is one of the main philosophies behind my blog and writing about police related issues – to better equip the public to interact with police and the justice system in a more informed and educated way.

For those who do want to educate themselves, I would suggest you not stop at this website, but I think it can be a good start.  That being said, I think no amount of personal education is a substitute for a properly trained and experienced lawyer assisting you – be they privately retained or funded by Legal Aid, especially in criminal cases where the stakes are highest.

Recently I was interviewed by Alexandra Kozlov at Queen’s University for an article in Canadian Lawyer 4Students magazine on how law students can boost their job prospects with a good online profile.  Although this article was for law students, I think it applies equally to almost any profession.

Here is an excerpt:

A blog is an excellent way to demonstrate your legal research and writing skills by focusing on a specific area of law. Simon Borys, a second-year law student at Queen’s, started a blog to share his unique perspective as a former police officer and aspiring criminal lawyer. He regularly updates it and actively participates in online legal forums. He was recently contacted by the Ontario Bar Association’s magazine, Briefly Speaking, and was offered the student editor position. The OBA had seen his blog and was very impressed.

Borys started blogging shortly after enrolling in law school. “Law is becoming a more cross-disciplinary profession and students would do well to demonstrate what they can bring to the profession from outside of it,” he says.

He offers some helpful tips to law students who are thinking of starting a blog:

•    Consider what your special niche is. Offering a fresh viewpoint on a particular area of law is valuable and will showcase you in the best light.

•    Take advantage of multiple points of contact. A blog is a great start and it may be the focus of your time and effort. However, you can also benefit from having accounts on Twitter, LinkedIn, Google+, and other online outlets.

•    Working on your online profile is not unmanageable. There is a considerable time investment during the setup stage but regular updating is not as time-consuming as you may think.

•    One pitfall to avoid is expressing too strong of an opinion on a controversial topic. Tread lightly around sensitive issues or else you risk alienating yourself from future employers.

•    Be careful not to violate the law society’s Rules of Professional Conduct. If you respond to a comment, you must make it clear that you are not providing legal advice that is specific to the commentator’s case but merely sharing your insight on the topic. Your blog or Twitter account should have a similar disclaimer.

•    If you are short on time and cannot maintain your own blog, consider contributing to a blog such as Law is Cool.  You can achieve many of the same benefits without investing as much time and effort.

 

You can read the full article on Canadian Lawyer 4Student’s website.

On November 15, 2011, the Court of Appeal released Schaeffer v Wood, 2011 ONCA 716.  The end result of this ruling is a declaration that: “Police officers involved in an SIU investigation do not enjoy the right to have a lawyer vet their notes or to assist them in the preparation of their notes. Police officers do, however, have the right to obtain legal advice as to the nature of their rights and duties with respect to SIU investigations, provided that obtaining such advice does not impede the completion of their notes before the end of their tour of duty.” (para 4, emphasis added)

What happens when an officer is involved in an SIU investigation

I will discuss this ruling in more detail below, but first I will outline what happens if an officer is involved in an SIU investigation.  This is determined by O/Reg. 267/10, Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit (referred to herein as the Regulation), made under the PSA.  Police officers should know this Regulation inside and out, as it forms the legal rights and duties referred to by the Court of Appeal above.  Specifically:

1)      All officers involved will be segregated from each other (s. 6(1)).

2)      Officers involved in an incident will not allowed to communicate, directly or indirectly, with each other (s. 6(2)).

3)      Witness officers must complete their notes on the incident, in accordance with their duty (s. 9(1)), as must subject officers (s. 9(3)).

4)      Witness officers notes shall be provided to the SIU (s. 9(1)), subject officer’s notes shall not (s. 9(3)).

5)      Both witness and subject officers shall complete their notes before the end of their shift, except where excused by the chief of police (s. 9(5), added August 1, 2011).

6)      Witness officers shall participate in an interview with the SIU and answer all questions, within 24 hours, if asked to do so (s. 8(1)).

The issues arising from this case

In my view, there are two important issues for police officer arising from this case.

1) The first is whether officers are entitled to consult with a lawyer on the completion of their notes, which, as I indicated above, they are not.

2) The second is when officers are required to complete their notes, which, as indicated in s. 9(5) must be before the end of their shift, subject to the discretion of the chief of police.

I will discuss both in more detail below.

Issue 1: Whether officers involved in an SIU investigation can consult with a lawyer on the completion of their notes

Prior to this case, the belief that officer’s had the right to consult with a lawyer prior to completing their notes arose from s. 7(1) of the Regulation, which states that “every police officer is entitled to consult with legal counsel or a representative of a police association and to have legal counsel or a representative of a police association present during his or her interview with the SIU.” (emphasis added)  Police officers took the position that this extended to consulting with a lawyer on their notes prior to completing them.  The practice was to prepare an initial draft for the lawyer to review and then use their feedback to prepare the final notes in their notebook.  The initial draft was subject to lawyer-client privilege and would not be shared with the SIU.

In Schaeffer v Wood, that practice caused the SIU to complain that the final draft of the notes were not reliable, as they were neither independent, nor contemporaneous.  The Court of Appeal acknowledged that completing notes “in accordance with [the officer’s] duty”, per s. 9(1) of the Regulation, does mean “independent” and “contemporaneous” (para 67) and that this requirement is central to the integrity of the administration of criminal justice (para 69).  They went on to point out that this is consistent with service policy (in this case the OPP’s policy on note taking) and also with the instruction officers receive at the Ontario Police College (the Basic Constable Training Program Student Workbook on Evidence (2008) states that: “[n]otes must contain your independent recollections providing an accurate and complete account of police observations and activities,” and that, “entries are to be made during or as close to the investigation as possible.”) (para 68).  All of this is in recognition of the fact that notes are primarily for the officer’s own independent recollection at a later date (para 70).

The Court of Appeal stated that “by conferring upon police officers the right to consult with legal counsel in connection with SIU investigations, s. 7(1) significantly enhances the rights of both witness and subject officers beyond the rights enjoyed by ordinary citizens in relation to police investigations.” (para 61)  They are referring here to the fact that other people under investigation obviously do not have a statutory right to consult with a lawyer regarding the investigation.  (Obviously once they are arrested they do have that right under the Charter, but this does not apply while they are simply being investigated.)

The court’s concern with extending this right under s. 7(1) to the practice of consulting a lawyer on the completion of the officers notes was that lawyers being consulted would be professionally obligated to provide the officer with information about the elements of offences they might be charged with any possible defences, and that the officer, when writing their notes after receiving this information, would understandably (either consciously or unconsciously) tailor their notes to reflect their own self interest.  The court pointed out that this violates the requirement that notes be both independent and contemporaneous (since a second person (the lawyer) is consulted and that consultation is unlikely to happen quickly), and that it pits the officer’s own self-interest or the interests of fellow officers against the officer’s public duty (paras 72-74), and this is inextricably linked to the issue of reliability of the notes.

This is ultimately what the Court of Appeal hangs their hat on in deciding that s. 7(1) does not mean that officers are entitled to consult with a lawyer in the preparation of their notes.  However, they go on to say that this just means that officers are not entitled to consult a lawyer on their notes, it does not mean that they are not entitled to consult a lawyer at all, prior to the completion of their notes.  The court said that officer are entitled to basic legal advice on their rights and obligations (para 81).  But the court suggested this is advice which could easily be obtained by a telephone call to a lawyer, and if this advice is not readily available, it is not an excuse for the Chief of Police to extend the time for the officer to complete their notes beyond the end of their shift (para 82).

This sounds suspiciously like the accused’s right to their brief phone call to duty counsel, but whereas, if the accused is unable to contact duty counsel, the police are obligated to hold off on pursuing any questioning of the accused, the officer apparently enjoys no such reprieve.  However, when viewed in light of the contemporanity and independence, the principles which the common law has consistently held to give rise to the reliability of officers notes (allowing them to use them as an aide-mémoire at a later date), it is not hard to understand how the Court of Appeal came to the conclusion it did on this issue.

Issue 2: When the officer is required to complete their notes

According to s. 9(1) and 9(3) of the Regulation, witness and subject officers are required to complete their notes “in accordance with [their] duty”, which, as stated above, implies that they be contemporaneous with the incident.  This is nothing new to officers who are used to testifying, when qualifying their notes in court, that they were made “at the time of the incident or shortly thereafter”.  However, on August 1, 2011, the provincial government added subsection 9(5) to the Regluation, which explicitly stated that notes of officers (both witness and subject) “shall be completed by the end of the officer’s tour of duty, except where excused by the chief of police”, which limits any flexibility which may have been contained in the meaning of “contemporaneous”.

The court’s opinion seems to be that contemporanity enhances reliability.  In other words, notes that are made at the time of the incident or shortly thereafter are inherently more reliable than notes made well after the incident, presumably because the incident is fresh in the mind of the writer at the time the notes are written.  However the Court of Appeal does not address why allowing an officer to write their notes after the end of their shift, perhaps as soon as the following day, after they have had a chance to recover and process the incident, reduces reliability.  If anything, I would submit that it increases reliability.  No one should expect someone who has been through a traumatic incident (such as shooting and killing another human being) to be in the best frame of mind to record exactly what happened in detail.  Stress and shock can often have the effect of blurring memory and disrupting the thought process.  This is why police officers who are investigating an incident where there are victims or witnesses who have been through a traumatic experience do not simply stick a piece of paper in front of them and expect them to provide a complete and accurate statement before they leave the scene; they interview them later, after they have had an opportunity to deal with the immediate trauma and process what occurred.  Why then, should witness officers be treated differently?

For that matter, why should subject officers be treated differently?  One might make the argument that a subject officer is a person under investigation (by the SIU) and not a witness or victim and police routinely interview people under investigation immediately after a traumatic incident, even though they too may be feeling the stress and pressure of having caused serious bodily harm or death to someone and are being investigated with the potential that charges will be laid.  The response to this argument depends on how one views the officer who has been involved in a traumatic incident which resulted in serious bodily harm to death to a civilian.  Unlike the person who is under investigation by the police for an incident that resulted in serious bodily harm or death, there is a presumption that, when the incident occurred, the officer was in the lawful execution of their duties, carrying out a valuable social function (and a tremendous responsibility) with which the public has entrusted them.  The fact that there is such a presumption cannot be disputed.  If it did not exist, the officer would immediately be arrested for committing a criminal offence that caused serious bodily harm or death to another person.  This presumption ought to entitle the officer to be treated with the same considerations as a victim or witness who has been through a similar trauma.

It remains to be seen whether chiefs of police will, for the reasons outlined above, exercise the discretion afforded them by s. 9(5) of the Regulation on a routine basis to allow officers to book off duty without having completed their notes in their entirety.  As I have said, there is no logical reason why this should be viewed as reducing the reliability of such notes.  In fact this would be entirely consistent with the commonly accepted practice of allowing officers to add late entries to their notes at a later time or date, in the interests of recording all the relevant details for later use as an aide-mémoire and also to fulfil the evidentiary function of notes.

Regardless of whether officers are required to complete some or all of their notes in the same shift as an incident they are involved in, they would be well advised, if the concern is reliability of their notes, as the court claims, to consider describing, in detail, the circumstances under which they are writing those notes, including their state of mind, their physical and emotional condition, and their feelings about the incident.

The ABA article, by G.M. Fillisko, is entitled “To Blog or Not“. The OBA article, by Omar Ha-Redeye, is entitled “Google Juice: Refreshment for Your Career“.

I think the overall tone of the articles towards blogging for law students could be described as “cautiously optimistic”. This is not surprising since lawyers (and law students) are generally known for being a risk-averse group and there are potential pitfalls to blogging about the law as a student. The articles highlight some of them.

However, I personally think there are some significant benefits to be had from this venture.

Blogging has definitely helped me build my criminal law credentials and set me apart in a world where law students are plentiful and largely anonymous to potential employers. It has also given me the opportunity to show that I have good knowledge of the law and understand it well enough to communicate it to clients.

I use the knowledge and experience I gained in policing to generate the content for my posts, but I think many students feel that they don’t have anything meaningful or interesting to write about. To these people I say that all law students come to the table with a unique set of past experiences and knowledge and it is the synthesis of those experiences and their legal education that gives every potential student blogger something to unique to talk about. In my experience, the legal profession appreciates these diverse perspectives for what they can add to the profession.

Although lawyers and law students tend to be a risk-averse bunch, preferring to “play it safe”, fortune really does favour the bold and the person who is willing to take a chance and try to stand out is far more likely to be noticed and selected than the person who cowers in the shadows because they are afraid of what might happen.

If you are a law student thinking about starting to blog, I would strongly encourage you to figure out what you have to offer to the legal community and start writing!

Family Matters has recently been picked up by CHCH, a Canadian television network. It airs Tuesdays at 10:30 pm, beginning on September 13, 2011.

I encourage everyone who is interested in Family Law to check it out. If you like what you see, please send an email to feedback@chch.com to let them know, as this is the only way the network measures ratings.