Renting during COVID-19??

If you are a residential Tenant or Landlord, you know there are a lot of rumours around about changes to rent and evictions during this crisis. Here are three hard facts:

  1. Tenants still need to pay rent.
  2. If Tenant’s don’t pay rent, Landlords cannot evict them during the COVID-19 crisis.
  3. When the crisis is over, Landlords will be able to evict Tenants again, including for unpaid rent during the crisis.

What does that mean? Landlords and Tenants need to communicate and work together to find a way to keep Tenants in their home now and avoid evictions in the future.

Let’s go through this in more detail…

  1. Tenants still have to pay rent

Tenants are still legally required to pay their rent. This has not changed. The Ontario Government has asked Landlords to consider the reality that Tenants who are asked to self-isolate or who can’t work during this crisis may have difficulty paying their rent.  Landlords and Tenants are encouraged to talk to each other and find a fair solution that will keep Tenants in their homes with a plan for Landlords to be paid.

  1. What happens if Tenants don’t pay rent?

Normally, if a Tenant does not pay rent, a Landlord can go through a process to evict them. This process usually has 5 stages:

  1. NOTICE: The Landlord gives the Tenant a Notice of Eviction which gives the reason for the notice, for example, the Tenant has failed to pay their rent. The Tenant is usually given some time to fix the problem, for example, by paying rent.
  2. APPLICATION: If the Tenant does not fix the problem, the Landlord can bring an application to the Landlord and Tenant Board (“LTB”) to evict the Tenant. The LTB is a Tribunal that deals with disputes between Landlords and Tenants.
  3. HEARING: A hearing will be scheduled at the LTB where the Landlord and Tenant can each state their cases and have an LTB Board Member decide whether or not the Tenant will be evicted.
  4. ORDER: The Board Member will make a decision about the eviction in writing which will be sent to the Landlord and Tenant. If the Order is for the eviction of the Tenant, it will give a date by which the Tenant must move out.
  5. ENFORCEMENT: If the Tenant does not move out by the date on the Order, the Landlord can have the Order enforced through the Sheriff’s Office. The Sheriff is allowed to change the locks to rental unit. After that, the Tenant has 72 hours to arrange to remove their property or the Sheriff may remove the property. Landlords are NOT allowed to enforce eviction orders on their own. They must go through the Sheriff’s Office.

Since the COVID-19 crisis, the Government of Ontario has changed the process to thwart a Landlord’s ability to properly evict a tenant right now.

  1. Can Tenants be evicted right now? In the future?

The evictions process during this crisis has temporarily changed. The goals of these changes are to protect Tenants who cannot pay rent from homelessness, and to protect the community by ensuring people have somewhere to stay so they can socially distance and help decrease the spread of COVID-19.

New Eviction Rules:

No new eviction orders related to unpaid rent will be issued until further notice.  Sheriff’s offices will postpone any scheduled enforcement of eviction orders unless the grounds relate to serious illegal acts or safety concerns. In short, if a Tenant is just not paying rent, they cannot be evicted right now.

If Tenants do not pay rent now, Landlords can evict… later. Landlords can still give eviction notices. This means that, when this crisis ends, Landlords will be able to enforce eviction orders and pursue Tenants for unpaid rent during the crisis..

What does this mean?

The COVID-19 pandemic will be a financial crisis for many Residential Landlords and Tenants alike. Landlords and Tenants should communicate with each other and work to find a fair arrangement that keeps Tenants in their homes and allows for ultimate (even deferred) repayment for Landlords.

How? Tips and Resources:

For both Landlords and Tenants, a main concern right now is how to make sure you have enough money to meet your payment obligations. Like Tenants, Landlords have bills to pay too and often rely on income from rent to meet their obligations.

The Government of Ontario has recently announced some funding sources and other resources for both Landlords and Tenants. Please find some helpful tips and links below.

For Tenants

If you need financial help you can:

The Emergency Response Benefit is in the process of being made available through an online portal. Further information is available at https://www.canada.ca/en/department-finance/news/2020/03/introduces-canada-emergency-response-benefit-to-help-workers-and-businesses.html

For Landlords

  • talk to your municipality about help with property taxes and municipal service fees. Information is available through the following websites:

https://www.pembroke.ca/media-releases/2019-novel-coronavirus-covid-19-1990.html

http://www.deepriver.ca/departments/public-works/public-notices/covid-19-information-update-town-facilities-9965.html

https://www.petawawa.ca/townhall/finance-taxation/property-tax-bills/

 

This is a confusing and scary time for everyone. If you are a Landlord or Tenant and have further questions about your legal obligations and rights, please feel free to contact Primeau Law at 613-584-4884 to schedule a free 30 minute consultation.

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.

Impaired by Drug – How Can They Prove It?

This week, the OPP launched their annual Festive RIDE campaign with a bit of a twist. Inspector Mark Wolfe has explained that the OPP will be partnering with Petawawa Military Police, Deep River Police and the Ministry of Transportation to target drivers who are impaired by drugs as well as drivers impaired by drinking.

The new focus of the RIDE program might come as a bit of a surprise to some. Can the police detect if a driver has consumed drugs? Perhaps more significantly, Can a Court determine, beyond a reasonable doubt, that a driver is impaired by drugs?  In short, the answer is Yes and Yes.

 

Since January 2016, the Upper Ottawa Valley OPP has set-up 260 RIDE spot checks. The spoils of these checks? Twelve impaired by alcohol charges and 2 impaired by drugs.

Unlike alcohol, drug consumption is difficult to identify and even more difficult to quantify. In the broadest of terms, police can gain this evidence through one of two ways: the driver confesses to the drugs (Sorry, officer, I was a little high and lost control for a second) or the officer is able to make an ‘expert opinion’ through his own observations and/or the evidence he collects as a result of those observations.

If the driver confesses, this evidence will be used against him as proof of impairment.

Police do not need a confession to form an opinion about whether the driver is impaired. An officer may perform Standard Field Sobriety Tests to determine the sobriety of the driver. These tests include:

  • Walking in a straight line and turning
  • Standing on one leg
  • Eye movement tracking

If the officer believes the suspect has failed the SFST, they will be taken as soon as possible to a Drug Recognition Evaluator. The Criminal Code of Canada allows an officer (usually referred to as a “Drug Recognition Evaluator” or DRE) to conduct further tests including:

  • Pupil measurement, comparison, pulse, and eye tracking
  • A “gaze nystagmus test”
  • A “lack of convergence” test
  • Balancing, walking and turning, one-legged standing, finger to nose (think: every tv show you’ve ever seen with a roadside)
  • Blood pressure, temperature, pulse
  • Pupil size measurement in different lights
  • Nasal and oral cavity exam
  • Muscle note and pulse exam
  • Exam for injection sites

From these tests, the DRE officer can make the opinion that the person is impaired by drugs. The officer can also demand a saliva, urine or blood sample to send for analysis to determine if the driver has drugs in his system.

 

How does this play out on the road?

  1. Police officer has reasonable suspicion that the suspect has a drug in his body has driven in the past three hours.
  2. Police conduct SFST
  3. Police form reasonable grounds that the suspect is impaired by drug
  4. DRE officer performs DRE evaluation
  5. DRE test allows demand for bodily sample
  6. Bodily sample sent to toxicologist for analysis
  7. Toxicologist provides report that drug was in the body and that what effects that drug might have had at the time of driving

Let’s take, for example, the local case of Robert Conron. One morning in December 2010, Mr. Conron was found in his running vehicle while he was asleep. When officers awoke Mr. Conron, they observed he was slow, lethargic and unsteady on his feet. The officers found no booze or bottles in Mr. Conron’s car nor any smell of alcohol on his breath. The officers then conducted a “Standard Field Sobriety Test”. After the Field Sobriety Test, the officers brought Mr. Conron back to the station and conducted further tests. Officers then demanded that Mr. Conron provide a urine sample. The sample was sealed and sent to the Centre of Forensic Sciences.

On the SFST and the DRE, police testified that Conron didn’t perform particularly well: he was uncoordinated and had issues with his balance, but passed the Gaze nystagmus tests and pupil-measurement test. However, the urine sample he provided returned a report of a number of detected drugs.

To put it simply, the police officers at the scene were satisfied that Mr. Conron’s behavior and performance on the Field Sobriety Tests merited further investigation through further testing which then led to urine analysis. On the totality of that evidence, the Crown prosecuted Mr. Conron. However, at trial, Mr. Conron was acquitted.

 

How does Drug Recognition Evidence get handled at court?

To convict someone of impaired driving by drugs, the trial Judge must be convinced beyond a reasonable doubt that:

  1. The accused was in care and control of the motor vehicle
  2. That the accused’s driving was impaired and
  3. That impairment was the result of drug consumption (as opposed to distraction, for example)

In Mr. Conron’s case, the Crown was able to show that Mr. Conron was in care and control of the vehicle: he was in the driver’s seat while the car was running. However, Mr. Conron’s lawyer argued that his missteps on the Field Sobriety Test and DRE could be explained by the fact that he might have been tired, or simply uncoordinated. Finally, the evidence was not sufficient to prove that the drugs in Mr. Conron’s system would have necessarily impacted his driving.

 

What can we expect going forward?

Since Mr. Conron was stopped in 2010, the education and training surrounding the investigation of impaired driving by drugs has advanced. Since Mr. Conron’s case was heard in 2012, the law, too, has evolved.

In a 2015 Ontario, R. v. Bingley, the Ontario Court of Appeal determined that the evidence of the officer completing the testing after the SFST (the “Drug Recognition Evaluator”) is expert evidence that can be admitted as some proof of driving impairment on its own. In other words, if a police officer qualified as a DRE believes that a driver is impaired, the officer’s opinion of impairment can be used to convict the driver. If this evidence had been admitted as expert evidence in Mr. Conron’s case, he may have had a much different result.

The investigations and prosecutions for driving while impaired by drugs, in the Pembroke region and across Canada are a hot topic, causing much debate and controversy. Nevertheless, a few things can be said for sure:

  1. If you believe you may be impaired by drugs or by alcohol, it is always best to find an alternate form of transportation and avoid driving.
  1. A confession (whether in jest, sincerity or otherwise) to an officer can, and likely will, be used as evidence against a driver in these situations.
  1. If you find yourself charged with the offence of impaired by drugs or impaired by alcohol (also referred to as “DUI”), it is advisable to contact a lawyer immediately to help you navigate this complex and specialized area of law.


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 practise 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.