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www.1law1.com 2008/04/17 Article
"Failure to reproduce full standard probation order results in acquittal"


By Kenneth W. Golish

A judge of the Ontario Court of Justice threw out breach of probation charges in a Windsor court today.  The prosecutor introduced evidence that the accused had been drinking when he was bound by probation conditions not to drink alcohol.  The prosecution then tendered copies of three probation orders apparently signed by the accused.

Justice Lloyd Dean noted that the standard probation document in Ontario was four pages long and included the actual wording from sections of the Criminal Code apprising offenders of the consequences for breaching a term of probation.  The documents before him did not contain those provisions.  He then found the accused not guilty of all charges.

Defence counsel Kenneth Golish argued that a recent decision of the Court of Appeal for Ontario, R. v. Molina, 2008 ONCA 212 (CanLII), stood for the proposition that where a court order binds an offender--in that case a driving prohibition--and where an individual must be informed of a set of statutory provisions, absent other evidence, a signed document that does not clearly demonstrate compliance with the applicable notice requirement will not be saved by a presumption of regularity.


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