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Complicated and Disasterous Situation - PLEASE HELP!

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  • Complicated and Disasterous Situation - PLEASE HELP!

    First off, I live in Canada. So anyone having any legal advice on this situation should be aware that it is Canadian law that applies to this situation, not American law, and that, if anyone has any advice for me, I am only interested in advice that comes from someone with a background in Canadian law; I am not interested in the 'maybes' that can come from tenuous comparisons between the laws of our two countries, I am interested in certainties. If you read this, you'll see why. I'm not certain whether this forum is exclusively American or not, but I thought I'd try it, because I am unable to get free legal advice anywhere around me that I've been able to discover, and free legal advice is, frankly, the only legal advice I can afford. And truthfully, I need some.

    First, some background: my girlfriend has two children with two different fathers. The father of her oldest is taking her to court for primary care and control of the child. They hate each other, and nothing between them is ever less than tense, and there are often heated arguments and insults, and almost never is there a moment of interaction between them where there isn't some level of drama. She lives with her two children, and her mother also lives with her. She has no criminal record. Myself, I have a pretty long criminal record. I have spent time in federal prison for 2 armed robberies and break enter and theft. I have a string of theft under $5000s, a few breaches of probation and recognizance, a theft of a firearm charge, a prohibited weapons charge for having a knife that could be opened with one hand, and several other charges not worth mentioning, as well as 3 simple possession charges for small amounts of marijuana, and 2 possession for the purpose of trafficking charges - one for 100 grams of hashish, and another for 650 grams of marijuana. This larger amount was my most recent charge, and I was sentenced to 15 months in provincial jail for it, and also to three years of probation. I haven't quite been out of jail a year, and have a little over 2 years of probation left. Though most of these charges are over 10 years old, my criminal history is almost 20 years long; I am in my mid 30s.

    About 6 weeks ago I was in an acquaintance's apartment with my girlfriend. There were the apartment's 3 occupants, myself, and my girlfriend present. I was weighing up marijuana, and on the table in front of me were scales, baggies, a small pile of pot and a couple rows of grams that had been weighed out but not yet bagged, altogether totalling about 30 grams. There was also about 70-80$ cash laying on the table. While this was going on, a call came in, and a couple friends of one of the people who lived there were coming over was the upshot of it. I asked about them, and was told they were 'cool' and not to worry about it. So I didn't, and continued weighing up the pot. They came, and after awhile, they left. Shortly after, so did my girlfriend and I. After we left, as we were walking down the hall of the apartment building, my girlfriend told me that the couple who had come over had been the cousin of the father of her oldest child who was taking her for custody, and his girlfriend. I was shocked, but she assured me that she didn't believe he would involve himself in anything. She was wrong. Unbeknownst to myself or anyone else in the apartment, his girlfriend, during the process of showing pictures on her cellphone to the people who lived there, used the phone to take pictures of what I was doing at the table, including my girlfriend sitting across the table from me.

    The next night, while we were out of her apartment, her mother sent her a message on her cellphone saying that the girlfriend of this father who is taking her for custody had called and said that they had pictures of me weighing up pot, with scales, baggies, pot, and money all on the table in front of me, and showing my girlfriend sitting across the table from me. I went to their apartment that night and had a long discussion with her. She said that they would 'only' be using the pictures to force my girlfriend to come to a discussion with them about changing the present custody arrangement to her oldest staying with them during the school week for the duration of the school year, and that if she declined to agree, they would not use the pictures, but would be taking the case they have prepared for custody to a judge to force her to acquiesce. She had recently moved, and is no longer in the same school district, and there are academic concerns that they believe dictate that the child remain in the same school to continue in the Individual Progress Plan program he is in with the same Reading Recovery teacher he is with now, as a shift to another school would mean he was with a brand new teacher who would have to learn about him all over again from the very beginning, and with him making progress with the current one, this is deemed unacceptably detrimental, even aside from shifting schools mid-year, which would be an issue for his learning on its own. They all lived very close together before this move, and the father and his girlfriend are still living in the same school district, very close to a bus stop, and want him there during the school week so they can make sure he gets to school and back everyday. Though my girlfriend was told he could still go to school there for the rest of the year regardless of her new location, the father and his girlfriend do not believe that she will be responsible enough to take public transit to a bus stop within the school district consistently in order to make sure he gets to school every single day. They fully believe that the contents of their case will cause a judge to agree to this interim agreement at the very least, and that the pictures aren't necessary to accomplish this. And further, the father's girlfriend told me during this conversation that, if this case goes in front of a judge, it is possible that my girlfriend may lose custody of her youngest child as well, due to likely eventually being declared an unfit mother after the investigation they are certain would result from the presentation of the case before a judge. However, she assured me at this time that, outside causing my girlfriend to come to the discussion on this topic, these pictures wouldn't be used, and that they didn't want to 'toss me into the fire' as I am an innocent in this situation between them, and have done nothing in any way to warrant them desiring me to get into trouble. However, she also did tell me that this cousin and his girlfriend are willing to testify as to what they witnessed in the apartment that night, if they ever decided to give these pictures to police, and upon seeking reassurance on the phone recently, she was not definite when I asked if there was anything my girlfriend could possibly do that could cause them to use the pictures, and appeared to avoid answering that question directly.

    Since the time when the call was first made to my girlfriend's place to relay that they had these pictures, the threat of exposure to the police has been used - albeit subtly and without any actual direct reference to it - to pressure my girlfriend into making compromises with them regarding her son. She agreed to this temporary shift in the custody arrangement for the sole reason that she was afraid they would expose these pictures if she did not, and I would end up in prison as a result. Regardless of what they said, she is adamant that they will use them to accomplish their goals, and that my innocence in the matter and the consequences I could experience as a result of this are irrelevant to them. I had been convinced by them I was safe, but after this recent conversation, and knowing my girlfriend wants to return the current custody arrangement back to its original state, keeping her child during the school week, and actually changing his schools, I am no longer as certain as I was, and I am, frankly, quite frightened; I do NOT want to go back to jail. I had been essentially cornered into involving myself with the pot temporarily due to circumstances I don't feel need to be included here, and would be sick if that all came back to haunt me, considering that it wasn't even personal gain, but being able to financially help my girlfriend out of a mess she was in that was my motivator. I know if I am convicted of another possession for the purpose of trafficking charge, considering my criminal record, and considering how soon it is after getting out of jail for my last one, and still being on probation for it as well, that I would be looking at federal prison time. The thought makes me nauseous. And even if I wasn't, a breach of probation would mean jail time for me, and even if I was simply charged, but never convicted, I would wind up on remand until a trial, which could be anywhere up to 6-8-10 months from now.

    I could continue to fill in a huge amount of details surrounding this, but I think that this sums the essence of the facts pertinent to my questions. So, to come to them:

    1. If these pictures are exposed to police, are they usable as evidence? Are pictures taken of someone without their permission admissible in court in Canada? And if there is, in addition to the pictures, the testimony of the couple who took them stating what they witnessed - even without actual physical evidence, i.e. any marijuana or scales actually found in my possession - between the pictures and the testimony, is it possible that I can actually be convicted of possession for the purpose of trafficking, if charged? If that isn't a certainty, is any of this enough to actually be charged with it? And either way, could I be charged with a breach of probation based on those things?

    2. Would her presence in this situation that night, if this were exposed, have any major effect on my girlfriend's custody case? Or would a judge look at it and say that, while she was clearly aware of her boyfriend being involved with pot, it wasn't something that was happening around the child or in her apartment, and that there was no evidence to indicate that she was involved in it herself, and discard it as being irrelevant to the case?

    3. If I were to record a conversation between myself and the father of my girlfriend's child, and/or his girlfriend without their knowledge that indicated that they were using these pictures to coerce my girlfriend into cooperation with them, would this be admissible in court for an extortion charge against one or both of them? If not, and they could still be caused to make direct statements to this effect to my girlfriend and myself, and if my girlfriend and I made sworn statements about that, would this be enough evidence to convict them of extortion, if the pictures were discovered in their possession? Truthfully I don't even WANT to get them into trouble, however, I can't stand having the threat hanging over myself. What I am wondering is that, if they were charged with extortion, would these pictures, having been used in the commission of that offence, still be admissible as evidence against me?

    Anyone who can provide any CERTAIN answers about any of this, PLEASE let me know. The fear of prison is something that I am finding intolerable to deal with anymore

  • #2
    Re: Complicated and Disasterous Situation - PLEASE HELP!

    Firstly, this is a WORLD law forum, so yes, there are many people from many different countries seeking advice.

    Secondly, your request for only CERTAIN outcomes is unrealistic, as each case is different and even attorneys cannot guarantee CERTAIN answers about what MIGHT happen.

    Thirdly, this is a forum where anyone can reply, and very rarely, if at all, do actual attorneys reply, as they get paid for their time and do not give advice away for free. They certainly are not trolling free internet forums where practically all people who reply are laymen.

    That said, you might want to check out the "Ask an Attorney" section of this website and cite your case so that a real attorney can assist you. The charge is $10.00.

    The only thing I can tell you with any sort of certainty is that yes, your criminal behavior and background can have a huge impact on her custody battle. The judge looks at who a child is exposed to and what environment, so it's possible she could lose custody if she remains in your company. She might lose it based on the facts you've presented alone.


    • #3
      Re: Complicated and Disasterous Situation - PLEASE HELP!

      your post is too long and bored me

      visitor from Alberta


      • #4
        Re: Complicated and Disasterous Situation - PLEASE HELP!

        Thank you for pointing out that this forum was not exclusively American. I should have taken a clue from the fact that that is implied by the site name. I never expected any lawyers to respond to my questions; I am well aware that people being paid often several hundred dollars per hour for their time are, as you say, highly unlikely to be spending any time on forums answering questions for free. But regardless of that, there are many people with knowledge of the law who are still perfectly capable of answering my questions with certainty, and I do not think my request for certain information is unrealistic, considering what my questions actually are; I am not asking whether or not any of these things I asked about will happen, I am asking if they can happen.

        To reiterate for the purpose of clarification, and to simplify to the truly important ones, my questions were:

         whether or not photographs taken without permission of the subjects are admissible in court in Canada;

         whether or not, without any actual physical evidence found in my possession – which would constitute an offence regardless of the existence of either pictures or testimony – the pictures, if admissible, supported by the testimony of the couple who took them, are sufficient for a conviction in Canada – not whether they will convict me of possession for the purpose of trafficking, simply whether they can;

         whether or not, if not charged or convicted of possession for the purpose of trafficking, this evidence would still constitute a breach of probation. I already know that, if I was convicted of that offence, there would be no doubt that that conviction would constitute a breach;

         whether or not audio recordings made without the permission of the speakers are admissible in court in Canada;

         based on an audio recording of them incriminating themselves, and/or on the testimony of either myself and/or my girlfriend, whether or not, if one or both the father of my girlfriend’s child and his girlfriend were charged and/or convicted of extortion, since these pictures would then be considered as having been used for the commission of that offence, they could still be used as evidence against me.

        I realize that, when it comes to questions concerning the custody battle, a lot of things fall into a grey area, and that the questions concerning that are really probably unanswerable with any high degree of certainty. There are plenty more things involved in that case – many of which I am certain I know nothing about – but I was asking whether it was thought that this could still have a major impact on her case, considering that there exists no evidence to indicate that any of this had ever been around the child or in the home, or that, outside her presence there that night, she has in any way ever been involved in any of it. Thank you for your opinion on this, and if anyone else has one, I would be interested in hearing it, but as selfish as that makes me sound, I am most concerned about the questions regarding myself. That wouldn’t sound nearly so bad if I presented all the history and facts surrounding this situation, believe me, and the fact is that, a) she was not supposed to have been there that night and had no reason to be (though I allowed it, foolishly, I admit), b) she didn’t make me aware of who these people were at the time when I could have immediately cleaned everything up to prevent these pictures from ever being taken in the first place – which I most assuredly would have done – and c) it will be the actions of my girlfriend that determine whether or not these pictures ever surface, so objectively, if any repercussions come her way, they will have done so because she made her decision(s) with conscious awareness of what it/they may involve. Whether or not these pictures ever are exposed is something I have no power over; believe me, I wish I did.


        • #5
          Re: Complicated and Disasterous Situation - PLEASE HELP!

          Originally posted by Unregistered View Post
          your post is too long and bored me

          visitor from Alberta
          Sorry, but I believe that there are few in the way of extraneous words in my post, and the fact is that I posted this seeking information, not for the purposes of entertaining anyone.


          • #6
            Re: Complicated and Disasterous Situation - PLEASE HELP!

            Again, even an attorney would not be able to tell you for certain what will happen, what can happen, or any other way you phrase it. Every case is individual and every judge is different, as are juries.

            Again, it doesn't matter that she was not supposed to be there on a certain night, or if she was or not. If she is involved in a relationship with you, considering your background and, if I'm reading your posts correctly, impending criminal conviction(s), it could very well affect her custody. Her even being involved with you, especially if you co-habitate (even a couple of days or overnight) can impact her custody position.

            The pictures will be admissible in court if they can be directly related to the charge, but if they were taken for a previous offense that has already seen the light of day in court, they will probably not be admissible. Your attorney should file a motion to have them repressed.


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