Courtroom vs. Classroom

My kid? A registered sex offender?”

Talking about sex with kids is hard enough. Having the sex offence talk might seem unfathomable.

Still, refusing to think or talk about a problem does not cure it. Ignoring an issue does not dispel it. Paradoxically, keeping students in the dark about sexual offences is exactly what our teachers are supposed to do this year.

On one hand, talking about sex crimes might seem too sophisticated and too dark for children.

However, sexual crimes range in severity. They can seem trivial at first glance. Indeed, many sexual offences have euphemisms:

  • A stolen kiss
  • Surprise butt slap
  • Drunk sex
  • Sexting
  • Peeping Tom

What makes these offences even trickier is that they are not always crimes. Is all sexting criminal? Of course not. Is sex after consuming any alcohol always rape? Nope. Do all students know where the law draws the line?

Does your child?

Here is the problem. Criminal law dealing with sex offences is complex. Sex offences are not just about stranger rape. Sex offences happen online, on phones, in grocery stores, at parties, amongst friends.

Courts and lawyers are still grappling with issues of consent, inebriation and sex, child pornography and texting, and sexual bullying.

All-things-sex are getting more complicated every year. This year, Ontario educators are being told to provide even LESS information on the topic of sex.

Pop quiz!

  1. When Johnny sexts a naked picture of himself to his girlfriend, is he breaking the law?
  2. When a high school senior hooks-up with a junior, is it a sexual assault even with clear consent?
  3. Is the explicit Sailor Moon cartoon that kids googled on the internet “illegal pornography”?

If you fail this quiz in real life, there is no re-test. A failing grade when it comes to breaking the law is a conviction. The punishment? Sex offender registry, minimum jail sentences, probation, prohibition from internet/parks/pools…

Surprised? With proper sex education you wouldn’t be.

Lack of information is a wicked trap. You can easily commit a crime you did not know existed. You can easily be found guilty of a crime you did not know existed. It happens all the time.

In the eyes of the court, the fact that a person did not know what they did was illegal makes them ignorant, not innocent. Ignorance of the law is not a defence to a crime.

Closing our eyes does not stop sexual offences, it abets them. The #MeToo movement aimed to open the public’s eyes to sexual offences we had been blind to. Shutting down reality-based sex education places the blindfold back on.

In every subject, students need to know material before they are tested on it. Educators must have an up-to-date and accurate curriculum to navigate these difficult and complicated issues.

The time to learn about the legal landscape of sex is not in the courtroom – it is in the classroom.

What’s Bail and Why Should I Care?

This morning, the Attorney General, Yasir Naqvi, announced a new ‘strategy’ to tackle Ontario’s growing bail problem. The ongoing attention to bail in the province has a lot of Ontarians questioning their knowledge of what is bail, really, and… who cares?

A keystone of the Criminal Justice System is that, as citizens, we are all presumed innocent until we are proven guilty beyond a reasonable doubt. Being charged, alone, cannot take away that presumption of innocence. However, once you are charged under the Criminal Code, the State (the police and the Crown) have the ability to hold you in jail (detain you) if it can show that you are a flight risk, pose a danger to the public, or that releasing you would be contrary to the public interest.

In other words, innocent or not, getting charged with a criminal offence may mean that you are going to be spending months in jail if you can’t “get bail”.

How does one get bail? Without getting into the nitty-gritty of the legal tests, most people will need a couple of key things: an address to live in pending trial and a surety. However, to be successful, these requirements are nuanced by the prevailing attitudes of Courts and Crowns:

  • Address: An address won’t likely be approved if it is where the offence took place or where the complainant (alleged victim) lives. Courts and Crowns may resist addresses that aren’t permanent (think shelters, or short-term hotel rooms). For many alleged offences, courts will want an address where the surety will live.
  • Surety: A surety needs to promise a bond (an amount of money – usually a minimum of $500) to secure their role – the surety will likely need to show that they are able to fulfill that monetary promise if needed. Sureties should know the accused person and should be able to justify their belief that the accused person will behave while released. Bail is less likely to be granted with sureties who have criminal records. Sureties cannot be co-accused, and should not be complainants (victims) of the alleged offences.

The conditions go on; however, I think this gives you a taste.

Now imagine you are charged with an offence against your partner at your home. Overnight, could you find a long-term home and a friend to live with (who will promise a large bond) that would satisfy these burdens? Now think about someone less privileged than you: someone who may not have a home or someone new to the area – how much harder would it be in this case?

With bail being harder and harder to secure, it means more people have the unbearable choice: do I stay in jail until my trial, or do I plead guilty and get a criminal record to get released (even if I didn’t do it)? This is the choice many Ontarians have to make.

On the flip side, provincial detention centers aren’t designed to hold a bunch of innocent people while trials take months to years to happen. This means that the jails are overcrowded, leading to a host of new problems.

Mr. Naqvi has announced proposed changes to our system: new beds (to address some of the address issues), more Crowns (I’m not sure how 32 Crowns across all of Ontario will actually help), and access to duty counsel in some detention centers (to provide more information). Will this change what is broken about our bail system? In my opinion: not really.

Although we can be thankful that bail is receiving some attention, the Minister seems to have overlooked a huge problem with bail: an attitude from many Courts and from Crowns that bail (the release of those presumed innocent) is something that should be heavily guarded and only provided with stringent conditions. Until then, all we can do as defence counsel is argue for change, fairness and the constitutional right to reasonable bail: one client at a time.

Consequences of Being Charged

Have you been accused of committing a crime?

The Criminal Justice System can be a complicated place for anyone charged with a criminal offence. To navigate court appearances, to understand your rights and obligations once you’ve been charged, to explore every defence available and, where it is appropriate, to argue for the most fair sentence is complex work. Criminal defence lawyers are professionals that spend their lives working through, understanding, and even changing this system. If you have been charged, you want a professional to properly advise you and protect your best interests.

Charged, but not guilty

If you have been charged with a criminal offence, regardless of whether you are guilty or innocent, you are required by law to follow the rules of the Canadian criminal justice system. This will include attending court, attending to have fingerprints taken, following rules while you await your trial, and may risk being held in custody until your matter is completed.

Failing to follow the rules of the Court and of the Police while you await the completion of your matter can have significant repercussions: you can find yourself with more strict conditions, land yourself back in jail, and even be charged with further criminal offences. While the presumption of innocence is paramount, the courts require all persons charged with criminal offences to follow the rules of the court and of their release until their matter is complete.

Pitfalls of a criminal record

A criminal record can place a permanent, heavy burden on a person’s livelihood and ability to travel. Criminal records may be suspended by a successful application for a Record Suspension, however, the decision is made by the Parole Board of Canada and the suspension may be revoked at any time on the basis of your behaviour. There are additional provisions for the suspension of a life-time driving ban that may result in the context of impaired driving offences.

With respect to certain international travel, the United States Immigration department officials may choose to deny the admission of individuals with discharges or criminal records.

Apart from a number of issues not listed here, a Criminal Record can also bring serious consequences with regards to obtaining certain licenses, accessing restricted areas, obtaining employment in areas, the assessment of insurance premiums, admittance into some professional organizations, and maintaining current employment.

Avoiding a criminal record in many cases is possible with negotiation and advocacy, depending on the charge, facts of the case and circumstances of the person before the court. A lawyer will advocate on your behalf to try and help you avoid a criminal record through negotiation, legal argument, or trial.

Jodie Primeau, Barrister & Solicitor
Call 613.732.2883 if you have any questions about cases like this or if you are in need of legal assistance. 

This is my personal weblog and the views expressed here are solely the author’s and should not be attributed to my firm or its clients.  The material and information provided on this website are for general information only and should not, in any way, be relied on as legal advice or opinion. The author makes no claims, promises or guarantees about the accuracy, completeness, currency, or adequacy of any information linked or referred to or contained on this weblog. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant province, state, territory or country. This blog is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and Jodie Primeau. Please note that I am only able to provide legal advice to clients and will not provide free legal advice. Please don’t send me any information or questions by email or otherwise because any information sent to me cannot be considered to be solicitor-client privileged or confidential.