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.

In a recent post entitled Demerit Points in Ontario I discussed the dreaded demerit point system and dispelled 4 myths surrounding it.  I explained how demerit points accumulate, how you can avoid them, and how they affect your insurance.

Adding to that, I would like to address the fact that demerit points do not accumulate for tickets given to people operating bicycles or e-bikes, though people riding bicycles can still be issued tickets such as Red Light (normally 3 points) or Careless Driving (normally 6 points).

Section 210 of the Highway Traffic Act specifies the conditions under which the Registrar of Motor Vehicles shall be notified of a conviction (thereby triggering the addition of that conviction and the associated demerit points to your driving record).

The conditions are where there has been a conviction involving:

“i. a motor vehicle or street car within the meaning of this Act,
ii. a vessel within the meaning of section 48, or
iii. a motorized snow vehicle.”

Going back to the definition of motor vehicle in s. 1 of the Highway Traffic Act, the definition includes:

“an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine”

“Propelled or driven otherwise than by muscular power” means bicycles are excluded from the definition and “does not include…a power assisted bicycle” obviously means e-bikes are also excluded.

Therefore, a conviction involving the operation of either of these modes of transportation should not trigger a notification to the MTO, hence there should be no record of it on your driver’s licence abstract, nor should any points accumulate.

Provincial offence notices (a.k.a. traffic tickets) do have a check box on them for situations where no motor vehicle was involved.  This should be checked if you have received a ticket while riding a bicycle or e-bike.  If it is unchecked, it is assumed there was a motor vehicle involved, since that is the case for the majority of tickets issued.  If the box is unchecked, a conviction may trigger a notice to the MTO because there is no other way for the person processing the ticket to be aware that it involved only a bicycle or e-bike.  If the box should be checked but is not, the only recourse is to request that the Justice of the Peace amend the certificate (the ticket) to mark the box checked.

In it I share my experience of the difficulties associated with online investigations in policing.  The article also covers issues relating to the chain of custody, identifying and finding online evidence, preserving online evidence, and the rules of evidence surrounding online evidence.

Here is an excerpt from my section:

The bad news: “Just finding out the apparent identity of a malicious poster may not be enough to convict,” says Simon Borys. A former police officer who has handled online investigations, Borys is currently training to be a criminal lawyer at Queen’s University in Kingston, Ont. “The person who wrote the post may have stolen someone else’s online identity, or made one up that is hard to trace. You may need to do more digging before you have something that will stand up in court.”

Click here to read the full article.

Going forward, the blog will only be available here at www.SimonBorys.ca.  Nothing new will be posted to simonborys.wordpress.com, however it will remain open so as to preserve any links to the older posts.

As you can see, the layout on this site remains very similar and all of the original content has been imported here.  Please update your links and bookmarks to the new address at www.SimonBorys.ca.

This post will be about dispelling 4 myths surrounding the demerit point system for traffic offences in Ontario. But first, a brief explanation of the demerit point system is in order to ensure that we are all on the same page.

The Demerit Point System In Ontario

Certain offences under the Highway Traffic Act carry either 2, 3, 4, 5, 6, or 7 points. Some people say you “lose” these points off your licence, but actually a clean licence has zero points attached to it, so technically you “gain” points. The points are automatically assessed when you are convicted of an offence in court, not when you are charged. Demerit points stay on your driver’s licence history (a.k.a. driving abstract) for 2 years, while the record of conviction is generally visible to police for 3 years (read my post about that issue here)

Points For Novice Drivers

If you have a G1, G2, M1, or M2 Ontario driver’s licence and you accumulate between 2 and 5 points, you will be sent a warning letter from the MTO. If you accumulate between 6 points and 8 points you may be called in to attend an interview with the MTO and explain why you should be allowed to keep your licence. Your licence can be suspended if you do not attend the interview or if you fail the interview. At 9 points your licence will be suspended for 60 days, from the time that you surrender your licence, or 2 years if you fail to surrender your licence. In addition, it is an offence under s. 35(1)(b) of the Highway Traffic Act to be in possession of a suspended licence.

Points for Fully Licenced Drivers

For a fully licenced drivers the warning letter comes if you accumulate between 6 and 8 points, the interview for between 9 and 14 points, and the automatic suspension for 15+ points (for 30 days or 2 years).Now on to the myths.

Demerit Point Myths

Myth #1: If you take your ticket to court, the officer/prosecutor/judge can reduce or drop the points. Simon Says: Wrong! I don’t know how many times I’ve heard this, but it’s just not true. Demerit points are administratively dealt with by the MTO after a conviction has been registered. No one, including a judge, has the authority to affect the way demerit points are assessed.

That being said, you can sometimes make an arrangement with the prosecutor to plead guilty to a different (lesser) offence, which carries fewer points. You often see this with speeding charges, where the prosecutor will allow you to plead to a lesser speed which carries fewer points, but it can be done with other charges as well, such as Careless Driving reduced to Follow to Closely.

Myth #2 involves how the points associated with multiple charges arising from a single incident are applied. For example, if you get charged and convicted of Careless Driving (6 points), Failing to Remain at the Scene of a Collision (7 points) and Failing to Properly Wear a Seatbelt (2 points), even if you had a clean record before this you should be getting 15 points and you’d be looking at an automatic suspension , right? Simon Says: Wrong again!

If multiple convictions arise out of the same set of circumstances then you are only assessed the points associated with the single largest ticket. So in my example above, you’d actually only get 7 points and not 15.

Myth #3 involves how points are assessed when a suspension of the driver’s licence (for length of time) is part of the sentence in court. Let’s take my example above of the person who gets convicted of Careless (6 points), Fail to Remain (7 points), and Seatbelt (2 points), but also Driving While Under Suspension (this actually has no points), and as part of the penalty, the Justice of the Peace imposes the mandatory 6 month suspension of the licence. Would that person still be looking at 7 points as I discussed above? Nope!

If a suspension is imposed part of the sentence, no points are assessed against the person’s licence. Obviously you could use this to your advantage if you were negotiating with the prosecutor for a plea bargain and you wanted to avoid the points, but I wouldn’t recommend doing so without consulting a lawyer or paralegal and making sure you’re aware of all of the possible ripple effects. For one thing, you’d then have to report on an insurance application that you’ve had your driver’s licence suspended and they don’t look too favourably on that. For another, points aren’t everything, as I will discuss in Myth #4.

Myth #4: If I avoid the points my insurance rates won’t go up. Simon Says: Very wrong! Insurance companies don’t classify offences by points, they classify them by seriousness and put them into categories like Minor, Major, and Serious. True, the more serious offences generally do have higher points associated with them, but it’s not the points that the insurance company cares about, it’s the seriousness of the offence and what that says about the risk to insure you.

Serious offences (such as Careless or Fail to Remain) are going to be classified as Major or Serious regardless of whether the MTO assesss points against your licence for them. Remember, points is an administrative action by the MTO. The only people who care about points are the MTO and you (if you get too many). Your insurance company isn’t going to reclassify a Fail to Remain charge from Serious to Minor just because your licence got suspended and you didn’t get the points.

Conclusion

In my experience, demerit points are a very confusing issue for most people faced with a traffic ticket that carries points. I sincerely hope this has educated you about the way the demerit point system works in Ontario and that it allows you to make more informed choices if you have to deal with one of these ticket. Please feel free to share this article with others.

About the author: Simon Borys is a former police officer who is currently studying law at Queen’s University in Kingston, Ontario to become a criminal lawyer.

After a brief hiatus from posting for my law school exams, I’m back to answer perhaps the most frequently asked question of all time for police officers: What is the best excuse to get out of a speeding ticket?

During my time doing speed enforcement I heard more excuses than I can count, some were pretty lame, others pretty good, but according to a study by 2 psychology researchers at the University of Waterloo, who surveyed 1000 motorists who had been charged with speeding, the most effective excuse was simply, “I’m sorry.”

Based on my own experience I would agree.  Police officers hear lots of excuses from the people they deal with and sometimes it’s just refreshing to hear someone accept responsibility for their actions and apologize.  That may create some good will on the officer’s part and I think (as does one of the authors of the study) that it can also give them the impression that you are less likely to speed again than the person who denies that they did it or makes excuses for why.

One of an officer’s objectives in doing any kind of enforcement is to deter people (individually and collectively) from committing the offence in the future.  Obviously one way to do this is through issuing tickets, but if an officer perceives that an individual’s remorse is evidence of the fact that they are less likely to speed again, they may feel there is no need to issue a ticket in order to deter future speeding.

That being said, the study still only found that this excuse worked in about 30% of cases where motorists apologized and it only worked for motorists going about 40 km/hr over the limit.  When it did work, it lowered the fine, on average, by about $51.

This is definitely an interesting study, but it certainly doesn’t pave the way for people to speed and expect to get off scott free!  The study will be published in June in the Journal of Law and Human Behaviour and you can read more about it in an article in the Kitchener-Waterloo Record.

What this study doesn’t address is whether excuses for speeding work in court.  While, “I’m sorry” might help you get the fine lowered if you are pleading guilty, no excuse is likely to help you be found “not guilty”.

The reason for this is that speeding is an absolute liability offence, which means that if you take your ticket to trial, once all the elements of the offence are proven, you can not raise any defence other than that of duress (which basically means that you were speeding in response to a threat of death or serious bodily harm to yourself or another person).  For an absolute liability offence it doesn’t matter why you were doing it and if you try to offer an excuse in court the Justice of the Peace will likely explain to you what I just said and tell you that the “why” is irrelevant.

So if you get caught speeding, you might want to just say, “I’m sorry”.  If you get the ticket anyway you can try saying it again in court, but if that doesn’t help, save your breath.

About the author: Simon Borys is a former police officer who is currently studying law at Queen’s University in Kingston, Ontario to become a criminal lawyer.