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Update: see previous posts – May 20, 2014 Ontario: Police Records Destroy Lives: No Criminal Charges, No Trial.

Imagine driving up to the U.S. border crossing with your passport in hand, only to be denied entry into the U.S.A. because of a incident three (3) decades ago, in which a charge, that did not result in a criminal conviction were the grounds that you were denied entry, indefinitely.

Imagine driving up to the U.S. border crossing with your passport in hand, only to be denied entry into the U.S.A. because of a incident three (3) decades ago, in which a charge, that did not result in a criminal conviction, were the grounds used by border officials to justity denial of entry, indefinitely. Apparently this happens all the time at the U.S. border.

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TORONTO - All of a sudden, Uncle Sam doesn’t want him anywhere near their country and their ridiculous lack of hospitality has cost him his career.

Is Terry Potvin a terrorist? A convicted killer, rapist, robber or drug dealer? Not at all. The 48-year-old Wasaga Beach auto parts executive and father of two is so squeaky clean that he had no idea why he was pulled over for secondary screening by U.S. Customs and Border Protection.

All he knew was that being grilled for six hours about his past was going to make him late for his business trip to Nashville as part of the new job he’d started just two weeks before as lead quality engineer.

But after being photographed and fingerprinted, he was told he wasn’t going anywhere but home. Not only has Potvin been barred entry to the U.S., but that decision has cost him his job and livelihood.

And his “crime?”

Even after an individual has been criminally charged and the charges have been dropped or dismissed by the courts, the police still maintain a “record” of those charges, which are released to a third party upon request. This “record” of dropped or dismissed charges are enough to destroy someone’s hopes and aspirations.

Even after an individual has been criminally charged and the charges have been dropped or dismissed by the courts, the police still maintain a “record” of those charges, which are released to a third party upon request. This “record” of dropped or dismissed charges are enough to destroy someone’s hopes and aspirations.

According to Canada, he never committed one. When he was 19 — a whopping 29 years ago — he was arrested with a small amount of “crappy hash oil” while he and his pals were searched outside a pool hall. For what he acknowledges was “being young and dumb,” he got a conditional discharge, two years probation — but no criminal record.

He forgot all about it. He married, had a family, has been a hard-working, contributing member of society. His career has required him to travel to the U.S. — which he has done without incident more than 50 times, until that day in May.

“I was absolutely in shock,” Potvin recalls. “I’m a grown man but this brought me almost to tears.”

He had to call his new boss and tell him that he wasn’t being allowed into the U.S. because of a three-decade old pot charge. Potvin understood when his employer had to let him go because of his travel problems. Another position with an auto parts company also fell through when he told them he couldn’t go into the States.

“The Canadian and United States governments have ruined my life,” he says.

Potvin’s story is one that immigration lawyer Guidy Mamann hears increasingly from clients who, until recently, never had problems entering the U.S. He blames Canada’s increasingly generous “information dump” about its citizens that it sends to its American counterparts. Even Canadian police incident reports — any interaction you may have with law enforcement whether it results in a charge of not — are now being handed over freely to the Americans, he says, all in the name of homeland security.

“This is very sinister,” Mamann says.

Canadians who value their privacy and the confidentiality of their medical information would be surprised if they discovered how much of it is transferred to the U.S. authorities by different police forces upon request. In February 2014, the Ontario Association of Chiefs of Police proposed new guidelines advising forces “against disclosure of non-conviction records” with a “narrow public safety exception” for cases where disclosure would protect vulnerable people. Government must come up with strict guidelines as to what will be shared and won't be shared about Canadians (police charges, medical information, etc.) with American authorities. This should be a priority for Canadian authorities at the Federal, Provincial and Municipal levels, given the lack of clear, consistent and uniform policies within different police policies within these various jurisdictions. Why are Canadians being denied travel based on U.S. policies that stems back half a century ago?

Canadians who value their privacy and the confidentiality of their medical information would be surprised if they discovered how much of it is transferred to the U.S. authorities by different police forces upon request. In February 2014, the Ontario Association of Chiefs of Police proposed new guidelines advising forces “against disclosure of non-conviction records” with a “narrow public safety exception” for cases where disclosure would protect vulnerable people. Government must come up with strict guidelines as to what will be shared and won’t be shared about Canadians (police charges, medical information, etc.) with American authorities. This should be a priority for Canadian authorities at the Federal, Provincial and Municipal levels, given the lack of clear, consistent and uniform policies within different police policies within these various jurisdictions. Why are Canadians being denied travel based on U.S. policies that stems back half a century ago?

Big Brother, it seems, knows everything. The lawyer had an anorexic client barred from returning to her U.S. treatment program after they accessed her medical records and found that she’d used recreational drugs. Another woman was stopped at the border because police were once called to her home when she attempted suicide many years before.

“I don’t think we should be giving up that kind of information,” argues Mamann. “We didn’t agree to sacrifice our privacy. We agreed to share information that would enhance security and these are not cases that pose security risks.

“It’s time we rethought this. It’s been 13 years since 9/11.”

After all Potvin’s years of American travel, even post 9/11, why has this become a problem now? Mamann believes U.S. customs’ increasing access to our databases probably turned up the conditional discharge — and while our justice system treated the possession charge as a misdemeanour not even worthy of a criminal record, the Americans view it as a drug crime.

Ironically, a spokesman for U.S. Customs and Border Protection said they couldn’t comment on the case because of privacy issues.

Now Potvin has a U.S. document that says he’s been denied entry into the U.S because he has a criminal record and a Canadian document telling him he doesn’t need a pardon because he has no criminal record.

He must wait up to a year and spend about $1500 to get a U.S. waiver that will hopefully let him back into their country and allow him to reapply for positions in his industry that require American travel.

It all seems ridiculous.

“The information we’re releasing to the U.S. should be about truly bad people — drug dealers, sex offenders, murderers. Don’t throw Terry Potvin in there,” he says. “That’s insane.

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Update:

The Ontario Court of Appeal ruled a Harper government tough-on-crime law unconstitutional because, among other things, it could create sentencing disparities for similarly placed offenders. On September 10, 2014 the Ontario Court of Appeal released its' decision in R. v. Safarzadeh-Markhali, 2014 ONCA 627 which struck down strike down the provision the Conservative government enacted in 2009 — specifically Section 719(3.1) of the Criminal Code — that eliminated the court’s discretion to give more than one day credit for each day spent in pretrial custody.

The Ontario Court of Appeal ruled a Harper government tough-on-crime law unconstitutional because, among other things, it could create sentencing disparities for similarly placed offenders. On September 10, 2014 the Ontario Court of Appeal released its’ decision in R. v. Safarzadeh-Markhali, 2014 ONCA 627 which struck down the provision that the Harper Conservative government enacted in 2009 — specifically Section 719(3.1) of the Criminal Code — that eliminated the court’s discretion to give more than one day credit for each day spent in pre-trial custody.This ruling from the  means that if an offender spent time in jail while awaiting his trial (“dead time”), the Judge or Justice of the Peace, is still allowed to exercise his/her discretion and decide what passage of time will be deducted from the sentence (“credit for pre-trial custody”) based on the amount of “dead time” that was spent in pre-trial custody. The Canadian Criminal Code states that similar crimes should get similar sentences. Credit for dead time ensures that those convicted of a crime and held in pre-trial custody get similar sentences to those who are released on bail. The Ontario Court of Appeal rejected the Harper Conservative’s “Truth in Sentencing Act“.

The Ontario Court of Appeal ruled a Harper government tough-on-crime law unconstitutional because, among other things, it could create sentencing disparities for similarly placed offenders.

see source

The Harper government’s tough-on-crime agenda took another hit Wednesday when Ontario’s top court struck down provisions that limit pretrial sentencing credit.

In its decision, the Court of Appeal ruled the law unconstitutional because, among other things, it could create sentencing disparities for similarly placed offenders.

“Both the offender and the public must have confidence in the fairness of the sentencing process and in the results,” the court ruled.

“Public confidence in the criminal justice system would be undermined by an artificial distinction that results in longer jail terms for some offenders.”

At issue is part of the Truth in Sentencing Act. The provision prohibits a trial judge from giving more than one-for-one pretrial credit if a justice of the peace denies bail to the person because of a previous conviction.

The situation occurred in the case of Hamidreza Safarzadeh-Markhali, of Pickering, who was arrested in November 2010 on drug and weapons charges.

At a bail hearing, the justice of the peace noted his previous convictions as the reason for his ongoing detention.

The sentencing “discount” had evolved to recognize that pre-trial custody in a remand jail is hard time, in overcrowded conditions with no access to treatment or rehabilitative programs. It is also “dead time” that doesn’t count toward any eventual parole or early release eligibility. The Criminal Code allowed sentence credits of 2-to-1 for each day in pre-trial custody, sometimes even rising to 3-to-1 in exceptional circumstances.

The sentencing “discount” had evolved to recognize that pre-trial custody in a remand jail is hard time, in overcrowded conditions with no access to treatment or rehabilitative programs. It is also “dead time” that doesn’t count toward any eventual parole or early release eligibility.
The Criminal Code allows sentence credits of 2-to-1 for each day in pre-trial custody, sometimes even rising to 3-to-1 in exceptional circumstances. This recent decision by the Ontario Court of Appeal will allow Justices to continue to exercise their discretion.

Following Safarzadeh-Markhali’s conviction in 2011, his lawyers called on the trial judge to strike down the provision the Conservative government enacted in 2009 — specifically Section 719(3.1) of the Criminal Code — that eliminated the court’s discretion to give more than one day credit for each day spent in pretrial custody.

Ontario Court of Justice Judge Michael Block agreed, and awarded Safarzadeh-Markhali 1.5 days credit for each day he spent in custody awaiting trial.

Among other things, Block found the law gave too much say to a justice of the peace in determining credit for pre-sentence custody. He also found it had a disproportionate effect on equally-placed offenders.

The Crown appealed, arguing Block had made legal errors. The law, the Crown said, aimed to target offenders with long criminal histories.

In siding with Block, the Appeal Court noted that three offenders with the same criminal records and given the same sentence could effectively end up serving substantially different amounts of time depending on whether they received bail.

In fact, the court found, a person who does not even apply for bail and is therefore not listed as detained because of a criminal record could end up with a shorter sentence than someone explicitly denied bail. The Appeal Court called that clearly unfair.

One effect, the court found, is that the most vulnerable members of society could be reluctant to exercise their bail rights out of concern that denial of bail could mean more time spent in custody.

“Like many attempts to replace the scalpel of discretion with a broadsword, its application misses the mark and results in unfairness, discrimination and ultimately unjust sentences,” the Appeal Court said.

The Conservative government’s attempt to crack down on crime has run afoul of the courts on several occasions.

Earlier this year, the Supreme Court affirmed the long-standing principle that offenders can receive extra credit for time spent in custody before sentencing. It has also struck down retroactive changes to parole eligibility, while other courts have refused to apply a new mandatory victim surcharge.

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Update:

Queens Park (above) passed the Civil Remedies Act of Ontario and it has been in effect since 2001; the highest court in Canada, the Supreme Court, upheld this law eight (8) years after it came into effect.  The Toronto Police Financial Crimes Unit (formerly the Fraud Squad) Asset Forfeiture Section seized $44 millions of dollars and In addition to cash, Asset Forfeiture investigators seized 63 vehicles, including the boat featured in this story - all of this was done using the Civil Remedies Act of Ontario.

Queens Park (above) passed the Civil Remedies Act of Ontario and it has been in effect since 2001; the highest court in Canada, the Supreme Court, upheld this law eight  (8) years after it came into effect. Since 2003 the Toronto Police Financial Crimes Unit (formerly the Fraud Squad) Asset Forfeiture Section seized $44.6 million in property, including cash and 63 vehicles, including the 25-foot boat featured in this story – all of this was done using the Civil Remedies Act of Ontario.

see source

Last summer, police pulled a man from the Toronto harbour, apparently drunk and soaked to the bone. Valentin Chygyrynskyy had allegedly steered his sailboat into another vessel parked along the harbour’s west wall and was tossed into the drink.

Police immediately impounded his 25-foot boat, the Kittiwake, and now provincial attorneys are trying to seize it using civil forfeiture laws that target property “related” to crime.

Chygyrynskyy has yet to be convicted for impaired driving in the case, but the seizure of his boat is going ahead regardless. If the case is successful, it could set a precedent with serious implications for drunk drivers on both land and water: not only can you lose your licence and be sent to prison, but soon you might stand to lose your boat — or car — as well.

“I think it’s a brilliant idea,” said lawyer Craig Bottomley, who has experience in defending civil forfeiture cases. “It would have a fabulous deterrent effect.”

“We know jail doesn’t deter people (from drinking and driving), but losing your car might,” he said.

The Ontario Civil Remedies Act is a Robin Hood law conceived as a way to take property from criminals and give the proceeds from its sale to victims. Yet as the Star has previously reported, no conviction — nor even a charge — is necessary for a seizure to take place.

This summer, an Oshawa couple had a portion of the value of their house seized even though drug possession charges against them were dropped. In Orillia, a landlord who rented rooms to homeless people could lose his property because the province contends that tenants paid rent with money made selling drugs.

Critics point out that because it’s easier to prove a case in civil court than in criminal court, the forfeiture process has become a parallel justice system for weak cases.

“The Crown hasn’t established that (Chygyrynskyy) was even driving the boat,” said Joshua Krane, a lawyer who has argued a civil forfeiture case before the Supreme Court, but is not involved in Chygyrynskyy’s case. “Is sitting on a boat and having a drink grounds for taking the boat?”

While many of the targets of civil asset forfeiture may not be sympathetic characters, Krane says seizing their property without a conviction is in tension with the principles behind the presumption of innocence, including proof beyond reasonable doubt.

Last month, Superior Court Justice David Corbett appointed a lawyer to research civil forfeiture and counter the Attorney General’s argument for seizing the boat. In an “endorsement” of the lawyer, Corbett explained that Chygyrynskyy doesn’t speak English and can’t afford to hire counsel, but the issues involved are too important to rule on without both sides represented.

Corbett cautioned the lawyers representing the Ontario Attorney General’s office about the implications of going after a boat for an incident in which no one was hurt.

“It is not alleged that the boat was acquired with the proceeds of crime, or that it is used (as) a criminal enterprise,” wrote Corbett in his decision. “Rather, the basis on which forfeiture is sought is that Mr. Chygyrynskyy operated his sailboat while he was impaired from alcohol or drugs.”

Corbett noted: “There is a significant legal question as to whether the Civil Remedies Act can and does extend to forfeiture of property in these circumstances. These are important issues that could have significant implications for a great many people.”

In August 2013, Chygyrynskyy, 61, was swimming in the inner harbour and arrested after he took a breathalyzer test, blowing almost double the legal limit, said Det. Const. Dwayne King of the Toronto police asset forfeiture unit.

The Star was unable to reach Chygyrynskyy, who has no legal representative in the forfeiture case, for comment Wednesday evening.

Court records show that he has been charged with impaired or dangerous driving on at least five occasions in the past seven years, not including last summer’s boating incident. He was convicted once, had charges withdrawn once, and has two ongoing cases; in April this year, he was again charged with impaired driving and pleaded guilty.

In an interview, King said this “clearly” played a role in the decision to go after his boat.

“Taking away his access to the boat is not going to stop him — we can all go out and buy a new boat — but it then becomes a deterrent: ‘Do I want to lose another boat?’” he said.

King, who has been working on asset forfeiture with the Toronto police for more than six years, says seizing property is a very effective deterrent in a system where criminal charges are often dropped on technicalities or because of a limited budget to prosecute cases.

Unlike the situation in the United States, where billions of dollars of property are seized every year by police forces that get to keep the proceeds, civil forfeiture in Ontario is relatively rare and the proceeds go into general provincial coffers. King said his office passes along fewer than 50 cases a year to the Attorney General.

“The only items we send to civil (forfeiture) have some criminal taint to them,” he said. “We’ve got the checks and balances in place to make sure those borderline cases don’t make it.”

Since 2003, the Ontario government has seized $44.6 million in property, including 18 vehicles, using the Civil Remedies Act. The Attorney General’s office said at least three of the vehicles were involved in “repeat drinking and driving offences.”

The Civil Remedies Act stipulates that a vehicle can be seized if it “was or is likely to be used” in impaired driving and the driver has had his or her licence suspended twice in the past 10 years.

“(Chygyrynskyy’s case) seems to fit within the criteria of the act,” said Bottomley. “But one would hope that the civil office would wait for the criminal charges to be determined before they made their application.”

Chygyrynskyy’s charges are due to be heard in court in February.

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Update:

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Ontario Government Committed to Keeping Drivers Safe

Drivers who live in northern Ontario can now put on studded tires earlier and keep them on longer, providing motorists with more options to stay safe during severe or extended winter weather.

Northern Ontario residents can now use studded tires from Sept. 1 to May 31. Previously, studded tires were only allowed from Oct. 1 to April 30. The change is based on advice and recommendations from the Ontario Provincial Police (OPP).

Northern Ontario residents can now use studded tires from Sept. 1 to May 31. Previously, studded tires were only allowed from Oct. 1 to April 30. The change is based on advice and recommendations from the Ontario Provincial Police (OPP).

Northern Ontario residents can now use studded tires from Sept. 1 to May 31. Previously, studded tires were only allowed from Oct. 1 to April 30. The change is based on advice and recommendations from the Ontario Provincial Police (OPP).

Studded tires can be used on vehicles that have an ownership address in northern Ontario, which includes the districts of Algoma, Cochrane, Kenora, Manitoulin, Nipissing, Parry Sound, Rainy River, Sudbury, Thunder Bay, and Temiskaming. They can also be used on out-of-province vehicles travelling in Ontario for less than a month.

Ensuring Ontario’s roads and highways are safe is part of the government’s plan to invest in people, build modern infrastructure and support a dynamic and innovative business climate.

Quick Facts

  • Studded tires are proven to be more effective than other tires on wet, icy road conditions.
  • Only lightweight, Scandinavian studs can be used in northern Ontario.

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Update: see previous posts – February 26, 2014 – Ontario: Chief Justice Increases Distracted Driving Fines to $280 on March 18, 2014, November 6, 2013 Ontario: Driver’s Talking/Texting Deadlier Than Impaired Drivers, October 24, 2013 Ontario: Liberals Will Increase Sanctions (Demerit Points) Against Driver’s On Their Cells, October 4, 2013 Guelph: Court Rulings Mean Police Will Ticket When Motorist Simply Hold Their Phone, September 27, 2013 Ontario: Highest Court of Ontario Rules Simply “Holding” a Cellphone in Vehicle is Sufficient to Convict, August 16, 2013 Toronto: Motorists Using Phones to Talk,Text,Email Four Years After Law Prohibing It

Distracted Laws/Demerits/Fines in Canada

Since 2008, every province and territory in Canada — with the exception of Nunavut — has created laws to deal with cellphone use by drivers.

Location What is banned? Demerit Fine
B.C. Hand-held devices, plus novice drivers using hands-free equipment 3 $167
Alberta Holding or viewing a communications device, reading, writing and any other distraction None $172
Sask. Hand-held communication equipment, plus novice drivers going hands-free 4 $280
Manitoba Hand-held electronic devices None $199.80
Ontario Hand-held wireless communication devices None* $280*
Quebec Hand-held devices that include a phone function, plus using it hands-free 3 $115-154
N.B. Hand-held electronic devices 3 $172.50
Nova Scotia Hand-held cell phones, plus text messaging on any device None $164-$337
P.E.I. Hand-held wireless communication devices 3 $250-400
N.L. Hand-held cell phones, plus text messaging on any device 4 $100-400
Yukon Hand-held devices for talking, texting and emailing, plus graduated licence holders can’t go hands-free 3 $250
N.W.T. Hand-held electronic devices 3 $100
Nunavut None
Source: Transport Canada, CAA

*Drivers endangering others by using hand-held or hands-free devices can be charged with careless driving, which brings fines up to $2,000. Under proposed legislation, judges would be able to fine offenders between $300 and $1,000 for distracted driving alone and add demerit points to the driver’s provincial licence.

The fine for contravening section 78.1(1) of the Highway Traffic Act and driving distracted is currently $155. On March 18, 2014 the fine for breaking that law will rise from $155 to $280.

see source

Drivers who text behind the wheel face fines of up to $1,000 and three demerit points under tough new provincial legislation coming this fall.

Transportation Minister Steven Del Duca said the sweeping law aimed at curbing distracted driving will be introduced after the legislature resumes Oct. 20.

“It’s an increase on the fines and also the demerit points,” Del Duca said in an interview Monday.

In fact, scofflaws in Ontario would be slapped with the stiffest penalties in Canada for talking or texting on handheld cellphones while driving.

“We’ve seen tremendous improvements over the years about impaired driving. We definitely do have to raise awareness — particularly amongst younger drivers — with respect to texting and driving and distracted driving,” the minister said.

“Part of it is increasing the fines, part of it is the demerit points and part of it is obviously a very aggressive, robust public awareness campaign to make sure people understand about the dangers.”

Del Duca said Premier Kathleen Wynne’s government plans to revive a bill introduced last March by his predecessor Glen Murray that failed to pass before the June 12 election.

“I look forward to reintroducing this legislation and getting it passed as soon as possible. I think it has broad support in the legislature — it certainly seemed to when it was introduced last time.”

Ontario Provincial Police Commissioner Vince Hawkes told the Star that distracted-driving deaths have surpassed those caused by impaired driving.

Last year, distracted driving contributed to the deaths of 78 people compared to 57 for impaired driving and 44 for accidents related to speeding.

“It is a huge loss of life. It is such a waste. It’s one of those things it is frustrating to see,” the province’s top cop said.

Hawkes noted Monday that his officers will be conducting a blitz against distracted drivers this Labour Day long weekend on Ontario’s 400 series highways.

The OPP laid 19,000 distracted-driving charges in 2013, up from 16,000 the year before.

Toronto police laid 55,000 distracted driving charges between 2010 and 2012 and at least three auto-related deaths over the past two years are blamed on cellphone use.

Del Duca’s bill would hike fines from the $60 to $500 range to between $300 and $1,000 and three demerit points. Currently no points are accumulated for using a smartphone while driving.

By comparison, in British Columbia, fines are up to $167 plus three demerit points; in Alberta it’s $172 with no points; in Quebec, it’s between $115 to $154 and three points; and in New Brunswick, it’s $172.50 and three points.

The proposed legislation would also impose similar sanctions for drivers who door cyclists.

A motorist convicted of injuring a bike rider with their car door would see the fine go from the $60 to $500 range to between $300 and $1,000 and three demerit points instead of two.

The demerit points could prove most costly for motorists as they can affect auto insurance rates.

An experienced driver who accumulates between two and eight points will be sent a warning letter; nine to 14 points could lead to an interview with Ministry of Transportation officials and a possible licence suspension.

Fifteen or more points will lead to the loss of a licence for 30 days.

Demerit points are even more punitive for new drivers.

Two to five points leads to a warning letter; six to eight to an interview or suspension; and nine or more points to the loss of driving privileges for 60 days.

Del Duca’s legislation is also expected to force drivers to maintain a one-metre distance when passing cyclists.

As well, it would require motorists to wait at school crossings and other crosswalks until pedestrians have completely traversed the width of the roadway.

Last February, Annemarie Bonkalo, chief justice of the Ontario Court of Justice, issued a judicial order raising distracted driving fines for the first time since 2009.

At the time, the chief justice’s office said she upped the penalty “in light of the significant public interest in encouraging driver safety.”

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