THE RIGHT TO SILENCE / JUST SHUT UP!!!
In Canadian law, no one is obliged to talk to the police or to provide a statement of any kind when questioned by the police. The Charter provides that a detained person has a right to consult with a lawyer so that they can be fully advised of their legal rights. Under section 11(c) of the Charter an accused cannot be compelled to be a witness in the proceeding against himself. When the police arrest anyone, they must advise that person of his right to silence and that anything he says to the police can be used against him in court. Despite these Charter-protected rights and the warnings from the police upon arrest or detention, many accused persons provide statements to the police which are frequently video and/or audio-recorded and which become crucial pieces of evidence for the prosecution at trial.
Most experienced criminal defence lawyers will tell you that, in their experience, accused individuals who have provided any kind of a statement to the police are far more likely to be convicted at a trial than people who have kept their mouths shut. I have frequently heard clients state, when asked why they provided a statement to the police, “I am innocent and I have nothing to hide”. Many of these “innocent” people, with nothing to hide, end up spending years in a federal prison.
When an accused provides a statement to the police, even if it is a statement wherein they deny the allegations or, alternatively, say they state they have no recollection of the matter the police are investigating, they end up letting the police determine how their case is going to unfold in court. Once they are released by the police, after having given a statement, they end up visiting an experienced criminal defence lawyer who will obtain a copy of the police file from the Crown Attorney and review it with them. It is at that point that it becomes clear the extreme damage the accused has done to his case by talking to the police. When the police are conducting an interview with a suspect, their objective is to get that person to incriminate himself and made their job of getting a conviction that much easier in court. Many accused individuals think they can talk their way out of being charged. To think that way is to misunderstand how the police work and what the police objectives are in conducting an interview.
When the police interview an accused person, they already have completed an investigation and obtained the evidence they need to make an arrest. Their objective at the interview is to put “icing on the cake” and get admissions which can be used against the accused in court or, alternatively, to trap the accused into making statements, which then ties their lawyer’s hands when the time comes to get ready for a trial. When an accused person has provided a statement to the police, that statement will be used by the prosecutor to cross-examine the accused at trial with the objective of damaging his credibility, which makes it all that much easier for a judge to find an accused guilty.
All experienced criminal defence lawyers will tell their clients not to speak to the police and, if they are arrested, to provide no information other than their name, their address and their date of birth. The only reason to provide that information is because it is required to complete an undertaking to be released from custody. The importance of not talking to the police cannot be overstated. In my experience, cases where accused persons have given statements of any kind to the police are ten times more likely to result in conviction, than cases with people who kept their mouths shut.
Another situation which arises in dealing with impaired driving cases involve scenarios where the accused has driven home and is inside their house with the door closed, when the police come knocking on the door. Very frequently, people who are in their home open the door and end up talking to the police with the result of the police forming the grounds to make a breath demand. It is very unfortunate, from a lawyer’s point of view, to observe in these cases that there was no obligation on the accused to open his door and talk to the police. The police cannot enter someone’s home without a warrant, unless, of course, you invite them in. The unfortunate situation which arises in these cases occurs because people are ignorant of one’s rights when dealing with the police. There is no obligation to answer a knock on your door from the police. There is no obligation to speak to the police. A person in that situation is perfectly entitled to simply go to bed and ignore the police. If the police do eventually show up with a warrant, the legal situation changes and they could legally enter the house.
In these trying days of the Covid-19 Pandemic, governments across Canada have imposed restrictions on individual liberties, claiming to act under emergency public health orders. While many provisions of these orders may be justifiable in this situation, some are not and would not stand scrutiny under the Charter of Rights and Freedoms. As we write this blog, in Nova Scotia, there are numerous restrictions in place which affect Charter-protected rights. While many of these restrictions are common sense response to the current Covid-19 Pandemic, some of the restrictions are clearly overreach and cannot be justified as restrictions on individual rights. Other restrictions, such as provincially imposed bans on interprovincial travel are most likely unconstitutional, being the exclusive jurisdiction of the Federal Government.
While bans on public gatherings of large numbers of people are sensible, one questions the legality of restrictions which affect the rights of responsible individuals from walking their dog in a park, hiking, and engaging in other manners of exercise, all the while keeping the required social distance. While bans on gatherings of large groups of people may be a proportionate response to the Covid-19 Pandemic and the object of limiting transmission of this virus, it is hard to see how restrictions on an individual walking her dog alone is in any way proportionate to the end of restricting transmission of this virus. Some of these restrictions make no sense, are not proportionate, and would not survive a legal challenge in court.
The order restricting public gatherings and activities in Nova Scotia is in many respects overbroad and allows excessive discretion to the police in terms of enforcement. This was further complicated by the daily musings of Stephen McNeil and Robert Strang which some police officers seem to have interpreted as having the force of law; they are not. The net effect of such overbroad regulation, coupled with the inappropriate comments of persons in authority, is that the police have issued Covid-19 tickets to people who are doing nothing that could be interpreted as risking the transmission of the virus. Nova Scotia police have issued Covid-19 tickets to a woman alone walking her dog; a man who walked across the Commons in Haliax; a senior who wandered onto a street where he did not reside, to give a few examples. Nova Scotia has a long and sad history of police enforcement which unfairly targets minorities; witness the recent “carding” issue.
It was unfortunate to see the premier and the chief public health officer push the police to issue tickets as opposed to a process which emphasizes education, which was very successful in British Columbia and other jurisdictions. The whole process of ticketing individuals who are posing no risk to spreading the virus is not a proportionate response. In responding to this pandemic, the Nova Scotia Government appears to have emphasized petty and inappropriate police enforcement of over-broad regulations at the expense of focusing on areas of high risk; witness the debacle at the Northwood Seniors’ Facility in Halifax.
We would strongly recommend that anyone who was ticketed by the police under the Covid-19 regulations contest these tickets in court. In our opinion, many of the tickets issued by the police violate constitutional and Charter-protected rights and can be successfully challenged in Court. We suggest that the Nova Scotia government reconsider the prosecution of individuals ticketed by the police in regard to Covid-19 restrictions. Given that the Government and its police agencies were operating on overbroad regulations which were poorly communicated to the public at large, the Government should consider an amnesty in regard to these tickets and not overwhelm the court system with prosecutions if and when some semblance of normality returns.
DEFENDING THE FALSELY ACCUSED IN SEXUAL ASSAULT CASES
The current public climate punctuated by catch phrases such as “believe the victim” and the “me too” movement has lead to the police laying far more charges of sexual assault. If you follow the victims’ right’s advocates, the police should readily believe the complainant and lay criminal charges. From a defence perspective, there is a real risk that these charges are false; being falsely accused of sexual assault can have horrendous consequences for the innocent. See a recent article in the National Post entitled “Handbook for Men Falsely Accused of Sexual Assault” (December 20, 2017, by Barbara Kay) which recounts the nightmare experience of a young man falsely accused of sexual assault. Judges have also recognized the danger posed by these populist slogans to the fairness of the criminal justice system. In R. v. Nyznik, 2017 ONSC 4392, Justice Malloy stated at paragraph 17:
Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.
Our courts place a huge emphasis on the presumption of innocence in sexual assault cases because these are very serious offences with horrendous consequences should the accused be convicted. Among the consequences of being charged with sexual assault are publicity in the local media which can lead to the loss of employment, and social stigma in the community. As well, the accused can be subject to release conditions which severely restrict free movement and the ability to communicate via the internet or cellular telephone devices. A person accused of sexual assault will usually be facing a lengthy legal process before a trial which can sometimes be years away. All the while, the accused remains under restrictive conditions and has the possibility of a conviction at trial hanging over his/her head. This can be extremely costly and nerve-racking for anyone. Most people accused of sexual assault, have never been charged with a criminal offence and have no idea of what lays ahead. A conviction at trial can result in a sentence of years in prison and being registered as a sex offender.
Because the consequences are so severe for anyone accused of sexual assault, we follow a very pro-active strategy to ensure that every defence possible is employed on behalf of our clients.
A person facing a possible charge of sexual assault should consult with an experienced criminal defence lawyer before making any statement to the police. The consequences of a conviction for sexual assault are so serious that a person facing such an accusation should say absolutely nothing to the police. The police will always want to interview a sexual assault suspect because any admissions they can get will make it more likely that there will be a conviction at trial.
When the police invite a sexual assault suspect to come in for an interview, the purpose of the interview is to obtain incriminating admissions which will make the prosecutor’s job easier at a trial. In our experience an accused who provides a statement to the police is far more likely to be convicted than a person who exercises his right to silence. In advising clients who are about to be arrested by the police or have been invited to come in for an interview at the police station, we tell clients they should exercise the right to silence. We tell them to remind themselves of the importance of exercising their right to silence, that they should write two words on the palm of their hand in black ink, “SHUT UP”. The police investigators plan their interviews with suspects and employ every tactic possible to obtain incriminating admissions. The police objective is always to obtain evidence to support a conviction, not to let an accused talk his way out of a charge.
Our first step in representing an accused charged with sexual assault is to write the prosecutor seeking the entire contents of the police file in regard to the charge. These file materials will usually include audio/video recorded statements from the complainant and possibly other witnesses, as well as any statement which the accused gave the police. In our experience, the prosecutor’s office will attempt to conceal any information which will lead to the address and other contact information for the complainant and other prosecution witnesses. At Singleton & Associates, we will routinely fight efforts by the prosecutor to restrict access to this information which we consider to be crucial in properly defending our client. In fact, we went to court and challenged the prosecutor’s attempts to conceal such information. The decision of the Honourable Judge Michael Sherar in R. v. Nickerson, 2016 NSPC 72, is the leading decision in Nova Scotia and it states that the prosecutor to provide all relevant information to Defence Counsel.
Once we obtain full and complete disclosure from the prosecutor, we meet with our client to determine the best way to proceed in defending them against the sexual assault charge.
In most sexual assault cases, the prosecutor will proceed by “Indictment,” which means the Crown is treating the matter as a very serious offence. If the prosecutor proceeds by “Indictment,” an Accused has a right to be tried by a Judge and Jury, by a Judge alone, or to proceed to a trial in the Provincial Court.
If the prosecutor proceeds “summarily” with a sexual assault charge, the maximum sentence is eighteen months in a provincial jail and mandatory registration as a sex offender. Serving time in a provincial jail is often worse than serving a sentence in a federal prison given the maximum security detention and lack of parole.
In most sexual assault cases, the issue is whether or not the complainant consented to the sexual activity. Consent can be by words and/or actions. A person can consent to some sexual activity and not to other sexual activity. Consent may exist at the beginning of the sexual encounter and be withdrawn at some point afterwards. A person who is intoxicated can consent to sexual activity. A judge will determine, based on the facts of the case, whether the complainant was able to consent despite having consumed alcohol. In consent cases, evidence of earlier interactions between the complainant and the accused, for example at a party before the sexual activity, may be highly relevant in determining a complainant’s state of sobriety and her ability to consent to the sexual activity.
An accused facing a charge of sexual assault has an uphill battle in defending himself/herself given the enormous power and resources of the state in prosecuting such a case. The police and the prosecutor’s office have virtually unlimited resources at their disposal. In comparison, an accused has to pay for the services of a competent criminal defence lawyer and all other costs associated with his/her defence. While the prosecutor has all of the resources of the police available for further investigation, an accused often has to come up with additional funds so that his/her lawyer can hire an investigator to obtain background information on the complainant and other witnesses. Given the great imbalance in resources between the prosecutor and an accused, an experienced criminal defence lawyer must aggressively pursue all defences available to his/her client and must be extremely alert to attempts by the prosecutors to use evidence, such as statements, that may not be admissible at trial.
The punishment, if an accused is convicted of sexual assault, is very severe. If the prosecutor proceeded by way of “indictment”, an accused convicted of sexual assault is liable to imprisonment for a term of up to ten years. If the complainant was under sixteen years of age at the time the assault occurred, the maximum punishment could be up to fourteen years, with a minimum punishment of a term of one year in prison. If the prosecutor proceeded by way of “summary conviction”, the maximum punishment is eighteen months in a provincial jail. If the complainant was under the age of sixteen years, the maximum punishment is a term of two years, less a day, in a provincial jail with a minimum punishment of six months. In addition to a term of incarceration, an accused convicted of sexual assault is also subject to a mandatory sex offender registry order (SOIRA) and will also be ordered to provide a DNA sample and not be permitted to possess or use firearms. In some cases a person convicted of sexual assault can also be ordered not to be near schools, playgrounds or other places frequented by children and be subject to an order not to use any device capable of accessing the internet.
Other consequences of a conviction for sexual assault may well be worse then the sentence imposed by the Court. The notoriety which comes with a conviction may render the offender unemployable. The sex offender registry order (SOIRA) will make it next to impossible to escape the stigma of a sexual assault conviction even if the offender moves to a new town in a different province.
Thomas J. Singleton
Singleton & Associates
ARRESTED – GETTING OUT OF JAIL
The most terrifying experience for anyone is getting arrested by the police. At the time of your arrest you are detained and are no longer free to leave and go about your business. The police take possession of your personal belongings, handcuff you and place you in the back of the police car for transport to the police station. After being processed at the police station, some people get released upon signing a “Promise to Appear” in court and some don’t. This article outlines the various forms of release from custody, who gets released and under what circumstances.
Promise to Appear in Court
The simplest form of release from custody is a “Promise to Appear” in court. This is sometimes referred to as an “Appearance Notice”. This is a form which the police complete and the Accused person signs. Upon signing, the Accused is released from custody on his promise to appear in court on a later date and to attend at the police station for fingerprinting and to have his photograph taken pursuant to the Identification of Criminals Act. Accused persons who normally reside in the area of the province under the jurisdiction of the court who are charged with relatively minor criminal and drug offences are usually released on a Promise to Appear. (An accused person who is not arrested can be issued a “summons” to appear in court.)
Undertaking with Conditions
The police may also ask an Accused to enter into an “Undertaking with Conditions” to secure his release from custody. This form of release is frequently used in domestic violence and sexual assault cases where the Accused will be asked to undertake to have no contact with the complainant or alleged victim. There can be other conditions such as abstaining from alcohol or drugs or residing at a particular address. The police have the burden of justifying these conditions should the Accused request a variation before a judge of the Provincial Court.
If the police decide not to release an Accused on a Promise to Appear, Recognizance or Undertaking, they must take him to court for a bail review within twenty-four hours of his arrest. At a bail hearing a judge will decide if the Accused will be released and the conditions of release. If a judge determines that an Accused can be released it will be in the form of a Recognizance entered into before a judge or justice. The Recognizance may be with or without a surety. A “Surety” is an individual who accepts responsibility for the Accused and promises to pay an amount of money to the court should the Accused fail to attend at court or fail to abide by his release conditions. Not everyone can act as a surety; for example, the court would not accept as a surety an individual without a fixed address or an individual who has a criminal record.
Who May be Refused Bail
If an Accused has a history of failing to show up at court or has a history of committing the same offence, he may be denied bail. Similarly, if the Accused was already out on bail and breached his release conditions, he may be denied bail. In some cases if an Accused was already on release conditions for an indictable offence, he may have to show cause as to why he should be released. As a general rule, if an Accused has already been released on conditions and is arrested again, the release conditions will be more onerous and may include a curfew and house arrest. If an Accused habitually breaches his release conditions, the court may decline to release him under any conditions and he will have to remain in custody until his trial. In some cases, after an Accused has been arrested, the Crown Attorney may request that the Court not proceed with a bail hearing for three days to permit the police to investigate further.
An Accused who has been arrested and not been released by the police pursuant to a “Promise to Appear” should always contact a lawyer to determine how to obtain his release from custody. An experienced criminal defence lawyer can navigate the often complex rules which will determine if you are released from custody and under what conditions. A failure to get it right the first time may result in a costly appeal of the bail decision.
Most Canadians are familiar with the police use of a roadside screening
device to determine if alcohol is present in a driver stopped either at
a police road checkpoint or on suspicion of impaired driving. The
Criminal Code is quite clear that a fail on the roadside screening
device provides the grounds for a police officer to make a demand that a
driver provide a breath sample for the breathalyzer at the police
station. A reading of over .08 on the breathalyzer at the police station
will cause the police to lay the charge of failing the breathalyzer
pursuant to section 253(1)(b) of the Criminal Code. The breathalyzer
certificate, if found to be admissible by the court, will be proof of
impairment for purposes of section 253(1)(b) of the Criminal Code.
When it comes to impairment by a drug, there is no device similar to a screening device or breathalyzer which the police can use to measure impairment by alcohol. When it comes to possible impairment by a drug, the Criminal Code provides a regime outlined at section 254 whereby a police officer who is designated a “drug evaluation expert” can give evidence of tests which the officer conducted to determine whether, in the officer’s opinion, an individual’s ability to drive is impaired by a drug. The regulations made pursuant to section 254(1) of the Criminal Code establish the qualifications of a drug evaluation officer and describes the tests that they perform in making a determination as to whether, in the officer’s opinion, a driver’s ability to drive is impaired by a drug. These tests, which are outlined in the regulations, include measurements of pulse and heart rates. There are also a series of eye examinations and physical divided attention tests. The drug evaluation officer will complete a “Drug Influence Evaluation” form and later prepare a written summary of the tests and their results. The drug evaluation officer will form an opinion as to whether or not the person’s ability to operate a motor vehicle was impaired by a drug and that would serve as the basis for either a demand for a blood sample or a urine sample which would then be sent to a forensic laboratory for analysis.
Drug evaluation expert “DRE” cases tend to be complex because legal issues arise as to the qualification of the drug evaluation expert to give opinion evidence in court. It is usually necessary to have a forensic toxicologist testify to give evidence if drugs were found in the urine or blood sample and their likely effect on a person’s ability to drive.
In Nova Scotia, most courts have found that a police officer who is
qualified as a drug evaluation expert according to the regulations made
pursuant to section 254(1) of the Criminal Code must be qualified to
give expert evidence in court. Even if an officer is qualified to give
expert evidence, there are always arguments which experienced defence
counsel can make about the weight a trial judge should give to such
evidence. Most reported drug evaluation cases in Nova Scotia have
typically taken up to two days of court time and frequently involve
applications based on the Charter rights of the accused given that part
of the drug evaluation expert’s examination involves asking the accused
to provide answers to various questions which can amount to
Any driver charged with impairment which involved an examination by a drug evaluation expert should consult with an experienced criminal defence lawyer before agreeing to answer any questions for the police officer or participating in the test procedure. It is a criminal offence to refuse to participate in the series of tests mandated by the regulations pursuant to section 254(1) of the Criminal Code. However, an accused driver may not have to answer any of the questions posed by the police officer because those questions would tend to violate an accused’s Charter protected right against self-incrimination.
If you are charged with an offence of being impaired by a drug which involves a drug evaluation expert, you should consult with a lawyer who has experience in these complicated legal cases. If you require legal advice in this area please do not hesitate to call Tom Singleton at (902) 492-7000.
The tragic Rehtaeh Parsons case, which has been front-page news in Nova Scotia and throughout Canada, raises some of the most troubling questions in Canadian criminal law. In the Rehtaeh Parsons case there was an allegation that she was sexually assaulted by four young men and that a photograph of the incident was circulated over the internet. In her case, the police investigated the complaint of sexual assault and, after consultation with the Public Prosecution Service, decided not to lay any criminal charges. Subsequent to the sexual assault incident and the online circulation of the photograph allegedly taken during the incident, Ms. Parsons was bullied to the point where she took her own life. These are very tragic circumstances for her family, friends, and the community at large.
It is in this context that questions have been raised as to why the police did not lay charges against any of the four young men both in regard to the complaint of sexual assault and the circulation of a photograph on the internet which could be considered child pornography. The Rehtaeh Parsons media reports referred to the police investigation and a review of the investigation results by one or more Crown Attorneys before a decision was made not to proceed with criminal charges against any of the four young men involved.
In attempting to understand the Rehtaeh Parsons case it is important to be aware of the different roles the police and the Crown play in our justice system. It is the role of the police to investigate allegations of criminal offences and determine whether or not charges will be laid. The Crown in Nova Scotia does not decide whether criminal charges will be laid in any particular case. On some occasions the police will consult with a Crown Attorney to determine whether the evidence they have gathered in a particular case would justify proceeding with certain charges under the Criminal Code. What a Crown Attorney is usually determining is whether, based on the evidence presented by the police, the elements of a criminal offence are made out and whether there is a reasonable prospect of obtaining a conviction in a criminal court where the evidentiary burden is proof beyond a reasonable doubt. A Crown Attorney will likely have this discussion with the police investigator but, at the end of the day, the decision as to whether or not to lay a criminal charge remains with the police.
If the police do lay criminal charges, the Crown Attorney can later decide whether or not the evidence supports a reasonable prospect of conviction at a trial. If the evidence available to the Crown does not offer a reasonable prospect of conviction then the Crown Attorney has an obligation not to proceed with the prosecution. There are some situations where, even if there is a reasonable prospect of a conviction, the Crown will, nevertheless, decide not to prosecute because the prosecution may not be in the public interest. An example may be the case of an elderly accused who has no prior record who is charged with a very minor offence.
In sexual assault cases where the issue may be whether the complainant consented to the sexual activity, the police will collect evidence which may include statements from the complainant, other witnesses and, sometimes, statements from the alleged perpetrators which may collectively present a less than clear picture on the issue. If the evidence collected by the police is ambiguous on the issue of consent, the police may very well want to consult with a Crown Attorney to determine whether there is a reasonable prospect of a conviction should they lay a charge. It is important to note that consent to sexual activity is not simply a complainant stating “I did not consent” but can also be implied from the complainant’s actions and surrounding circumstances. Experienced criminal defence lawyers and Crown Attorneys who prosecute sexual assault cases run into this situation in some cases which can result in lengthy trials dealing almost entirely with the consent issue.
One of the most immediate consequences of being charged with an impaired driving related offence (drunk driving, DUI or refusal charges) is that your license will be suspended in Nova Scotia for period of ninety days under the Motor Vehicle Act. This suspension occurs because of the mere fact of being charged with an impaired driving related offence. While this kind of a driving license suspension, without the benefit of a trial or hearing is draconian, the situation gets worse when you attempt to get your license back after the ninety day suspension is over.
Numerous persons who have had their license suspended because of an impaired driving or related criminal charge have gone to Service Nova Scotia after their ninety day suspension is up thinking they would get their license back, only to learn that they cannot get their license back unless they have participated in a designated Alcohol Rehabilitation Program which must be completed through Addiction Services at Capital Health in Halifax. When you call the number for the “Driving While Impaired or Interlock Program” at Capital Health in Halifax (902-424-8866, option # 3) you will get an answering machine prompting you to leave your name and telephone number. Recently people who have been applying to participate in the Alcohol Rehabilitation Program have been told that they could only get into the program three or four months down the road. The net effect is that the ninety day license suspension becomes a suspension of six months or longer because of the waiting list for the Alcohol Rehabilitation Program. This is a very severe additional punishment for someone who has not yet been convicted of any offence and is clearly not the intention of section 279A of the Motor Vehicle Act.
At Singleton & Associates when a client is facing an impaired driving related criminal offence, we advise that they should immediately apply to participate in the Alcohol Rehabilitation Program given the wait list at Addiction Services. In other words, you make the application at the beginning of the ninety day license suspension.
The same problem awaits anyone who has been convicted of impaired driving or a related criminal offence and receives a one year driving suspension under the Criminal Code when they go to Service Nova Scotia to attempt to get their license back. If they have not already completed the Alcohol Rehabilitation Program through Addiction Services at Capital Health they will be told that they have to apply to the program and complete it before they can get their license back. They have to participate in the same program and the wait list is three months or longer, which results in the driving suspension of one year imposed by the Court becoming a driving suspension of fifteen months or longer. Again, our advice is to make your application to participate in the Alcohol Rehabilitation Program at the beginning of your suspension.
One would think, in the interest of fairness, that the Alcohol Rehabilitation Program required by the Registry of Motor Vehicles would be readily available especially when every applicant who does the course is paying a fee of hundred of dollars to fund the program. Setting up such a rehabilitation program in a manner which has the effect of extending the license suspension is unjust and should not be tolerated in a democracy which cherishes the rule of law. Yet it is unlikely that anything will be done to correct this injustice, given the existence of well financed lobby groups such as MADD (Mothers Against Drunk Driving).
Sexual offences are among the most serious charges under the Criminal Code and include everything from aggravated sexual assault to pornography charges and child pornography charges. On any given day in courts throughout Nova Scotia persons accused of sexual offences appear to elect their mode of trial or to enter a plea and obtain a trial date or sometimes for a trial itself. While it is bad enough that an accused person will find themselves before a court facing such serious criminal charges, what is worse is the fear that their names will be published in a newspaper, mentioned on radio or television or in some online media. The publication of the name of an accused who is charged but not convicted (i.e. presumed to be innocent) of a sexual offence will frequently have very serious consequences including social stigma and the possible loss of employment.
What determines whether a case gets reported by the media or not? If the accused has the same family name as the victim and publication of the name of the accused would identify the victim, there will almost certainly be a court ordered publication ban on reporting the name of the accused or any other information which might identify the alleged victim of the sexual offence.
If a person accused of a sexual offence is socially prominent, for example a politician, a lawyer, a doctor or some other professional, the odds of the name of the accused being reported are greater. Even if reporters are not present in court, human nature being what it is, the information that such a person has been charged with a sexual offence will often find its way to the media.
In cases which do not involve socially prominent people, whether a criminal accusation gets reported or not will depend on the seriousness of the offence was or the notoriety of the incident which led to the sexual charge being laid.
Most people accused of sexual offences, who are not socially prominent and where the events themselves were not particularly notorious, will often avoid seeing their names published in the newspaper, mentioned on radio or television or in some other media. A skilled criminal defence lawyer will ensure that his client does not appear in court for routine court appearances by having filed a Designation of Counsel with the court which enables the lawyer to appear on behalf of the accused person. A criminal defence lawyer will usually ensure that the criminal charges are not read out in court and that the only times the accused is attending at court is for a preliminary inquiry, a trial or a sentence hearing.
While it may appear unfair, a person accused of a sexual offence in a large centre, such as Halifax, will often remain anonymous while a person accused of such an offence in a smaller centre will usually find their case mentioned in the local newspaper. While our criminal court system is based on the principle of the public having a right to know, whether the name of an accused is actually reported in the media is far from certain and in some cases can be avoided by a skilled criminal defence lawyer.