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The Investigator's Legal Handbook
by Gordon Scott Campbell

 


Le manuel juridique de l’enquêteur
par Gordon Scott Campbell

 

REGQUEST: Regulatory Offences and Compliance Newsletter (Carswell), 12 issues per year
Co-Editor Gordon Scott Campbell

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TEN THINGS YOU NEED TO KNOW ABOUT CANADIAN CRIMINAL AND REGULATORY LAW

1. Ignorance of the law is neither a defence nor an excuse, regardless of whether the law is new, complex or obscure. Verify the law with a lawyer or appropriate government official before taking action.   

2. You are presumed to intend the logical consequences of your voluntary actions. So hitting someone who later dies could result in a much more serious charge than assault, even if you honestly claim you didn’t intend to harm that person.

3. Exercising due diligence in order to avoid contravening the law is a defence in many regulatory matters. If you run a business, consulting a lawyer and other professionals to put in place reasonable measures to prevent contraventions of laws in areas like the environment or occupational health and safety could form the basis of a solid defence to charges instituted after those measures have been implemented.

4. Whether you must provide information or cooperate with the police or other authorities depends on many factors like whether there’s an ongoing investigation of offences or only a routine administrative compliance check being conducted. Don’t presume anything – get legal advice first.

5. Entering a plea of not guilty to a charge does not amount to a complete denial that you had anything to do with the facts of a case; rather, it just means that you are requiring the prosecution to prove its case against you. While a guilty plea may save you some anxiety from going through a trial, you are not guaranteed a lower sentence and you will forfeit any chance of an acquittal. It’s important to carefully review the strength of the prosecution’s evidence against you before deciding how to plead, including considering whether some of the evidence may be inadmissible due to violations of Canadian Charter of Rights and Freedoms rights to counsel or search and seizure protections.

6. There is a great difference between a confidential communication and a privileged one. Only privileged communications are immune from compelled disclosure in court, and even privilege is subject to exceptions. Solicitor-client privilege and spousal privilege usually protect communications between you and your lawyer or you and your spouse (whom you must be legally married to) from disclosure, but communications with non-lawyers are usually not so protected – even where the communication is with a person bound by a duty of confidentiality like your doctor.

7. You cannot be compelled to testify at your own criminal trial. The decision on whether you should testify in your own defence will likely be the most important decision you will make at your trial. You should carefully discuss with your lawyer the pros and cons of taking the stand.

8. The 1982 Canadian Charter of Rights and Freedoms represented the greatest change in Canadian criminal law since the original enactment of the Criminal Code back in 1892. Although after a few decades in existence there are now fewer Charter decisions being issued which shake the foundations of Canadian criminal law, the Charter remains a key consideration in any criminal or regulatory defence. The Charter provides for the exclusion of illegally obtained evidence and other remedies that a court “considers appropriate and just in the circumstances.” Such remedies can include termination of a prosecution, monetary damages, legal costs, or other things really only limited by the creativity of claimants and the courts. Laws that violate the Charter may also be struck down pursuant to section 52 of the Constitution Act, 1982.

9. Arguing for a Charter right requires not just a mere assertion of the right, but also the production of evidence that shows how the right has been violated, and why a particular remedy is appropriate. The required evidence may range from the testimony of the person who claims his or her rights were violated, to expert evidence concerning the law being challenged, to policy material on the background of either the law or right.

10. There is no automatic right of appeal in criminal or regulatory offence matters. Criminal appeal rights are created by statute, depending in part on what level of court heard the trial, and the trial court’s findings of fact and law. You may have to file your appeal within a very short time period after the trial judgment. Even if you represented yourself at trial, you may wish to consider retaining a lawyer to pursue an appeal because of the many technical requirements.

 

This material is for information purposes only, is not advice, and since the law is constantly evolving its accuracy cannot be guaranteed. It may be freely distributed for non-commercial purposes provided you acknowledge the source and copyright.

© 2014 Gordon Scott Campbell, Barrister & Solicitor
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