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News January 24, 2007 Lorne Sabsay was able to retrieve a substantial amount of cash, onbehalf of our client K.S., from the Peel Regional Police Service. When the client was arrested on certain outstanding warrants, police seized a large sum of cash as well as his eyeglasses, saying they were required in an unrelated murder investigation. The Crown refused to return the items and we brought an application under s. 490 of the Criminal Code, and s. 24(1) of the Charter, to have the property returned. After our submissions to the Honourable Mr. Justice Wake, the Crown changed its position. Both the eyeglasses and cash were ordered returned to the client on January 19th and the Order was complied with in full today. January 9, 2007 Christopher Avery attended at the Ontario Court of Justice in Newmarket in order to resolve a long-standing series of cases for our client J.B. The most serious charge facing Mr. B was that he was in possession of almost three ounces of cocaine for the purpose of trafficking. Mr. B had maintained all along that while he was indeed in possession of a small amount of the drug for personal use, the police mixed a large amount of baking soda with what was found during the search of a vehicle in order to trump up a more serious charge. Despite the ongoing refusal of the officer in charge to attend at any judicial pretrials, through Mr. Avery’s persistence, the materials were tested by Health Canada and proven to in fact be baking soda. The serious charge for which the Crown and police were seeking a penitentiary sentence was withdrawn, an outstanding impaired driving by drugs was reduced to careless driving, and some minor charges were resolved for 1 day in custody. Discussions regarding investigation of the police responsible are ongoing. January 9, 2007 Lorne Sabsay appeared today before Mr. Justice S. Clarke in Brampton Ontario Court of Justice to receive judgment in the case of our client, K. S. The client was charged with dangerous driving and flight from police. He was acquitted of all charges. The main issue in the case was identification. Two police officers wrote in their notebooks that the driver of the vehicle in question was of a “heavy build” with a “round face”. We led evidence to show that our client was of a thin build, with a narrow face both before and after the date of the driving in question. Moreover, we were able to show that the police did not conduct proper pre-trial identification procedures such as a fair photo lineup. Instead, the police simply obtained a photo of the registered owner of the vehicle (who was in fact our client) and came to the conclusion that the photo depicted the driver on the date of the admittedly dangerous driving. Notwithstanding the fact that the Crown could prove that our client was, indeed, the registered owner of the subject motor vehicle, he was found “not guilty” of all charges because of the failure of the Crown to properly prove his identification as the driver. December 11, 2006 Christopher Avery attended at the Ontario Court of Justice in Newmarket for Judgment following a two day trial. Our client was charged with more than seven counts of fraud. He was alleged to have been stealing deposits taken by his company without performing the promised work or any refunds. The client’s business had gone under and the client was unable to pay back the deposits. The business simply failed. The prosecution however, felt that as the client never paid the money back and never did the work, that this constituted fraud. Mr. Avery felt that the full defence of this particular prosecution was of extra importance given the unfortunate tendency of the police to lay fraud charges whenever a business goes south and use the criminal justice system as a collection agency. The client was acquitted of all counts. Both Mr. Avery and his client are pleased with the result and are using the judgment in order to assist in resolving a similar charge in a different jurisdiction where the client carried on business. Mr. Avery in particular is quite pleased to have obtained a recent judgment making clearer the difference between civil breach of contract and a criminal fraud. Merely not getting what was paid for does not make a person a victim of a fraud. August 25, 2006 Christopher Avery attended at the Ontario Court of Justice in Newmarket on behalf of our client J.M. Mr. M was charged with possession for the purpose of trafficking more than two ounces of cocaine and two separate incidents of trafficking. As a result of extensive pretrials and the preparation of a detailed search and seizure brief, the Crown withdrew all charged unconditionally prior to trial. The police had indicated that the search of the client’s vehicle where the alleged narcotics were allegedly found was incident to arrest on another charge and they chose not to obtain a warrant. This was unfortunate, as the client had not yet entered the vehicle when he was arrested. As the search was not truly incident to arrest, it was a violation of the client’s right to be free from unreasonable search and seizure. Aggravating this circumstance was the provable police dishonesty about refusing the client access to his counsel in a timely fashion at the police station. The Crown, upon reviewing all the circumstances, withdrew the charges over the strenuous objections of the police. © Cohen, Sabsay LLP. All rights reserved.
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