Criminal Trials & Appeals Regulatory Matters Professional Discipline Matters
Bernadette Saad, B.A. (HONS), LL.B.
With experience of over 15 years and approximately 600 cases, Bernadette provides effective and strategic legal representation with a primary focus on criminal matters. She appears regularly before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Court of Appeal for Ontario, and the Ontario Review Board. She has represented clients on a wide range of matters, from the most minor of offences to the most serious.
Having a particular interest in mental health matters, Bernadette has assisted as amicus curiae before the Ontario Court of Appeal and as Duty Counsel before the Ontario Superior Court of Justice on appeals involving Ontario Review Board dispositions and “not criminally responsible” verdicts.
Bernadette embraces any opportunity to contribute to the education and training of law students. In this regard, she regularly assists the University of Toronto’s student legal clinic, Downtown Legal Services (“DLS”), as acting Review Counsel. She has also attended as a guest panelist in their seminar course to discuss the intersection of employment, criminal and human rights laws when dealing with allegations of sexual assault and harassment in the workplace. On a number of occasions, Bernadette has also attended as a guest panelist for the University of Windsor’s advanced criminal law seminar course on various topics.
A large part of Bernadette’s work is dedicated ensuring access to justice. In addition to having contributed to a number of pro bono initiatives and programs, Bernadette makes her services available to those relying on Legal Aid Ontario. She is on Legal Aid Ontario’s Duty Counsel roster and proudly appears as per diem Duty Counsel on a regular basis before the Ontario Court of Justice in a number of courthouse locations throughout Toronto. She also accepts Legal Aid Certificates on select individual matters and is approved on the following Legal Aid panels: Criminal; Mental Health; Gladue; Ontario Review Board; and Extremely Serious Matters.
Bail Hearings and Reviews
Criminal Trials and Appeals
Quasi-criminal Trials and Appeals
Independent Legal Advice for Sureties and Witnesses
Ontario Review Board Hearings and Appeals
Regulatory Offence Trials and Appeals
Provincial Offence Trials and Appeals
Representation on Select Civil Matters*
*Limited to Consent and Capacity Board Hearings and Small Claims Matters
Legal fees can be unpredictable and daunting. With a view to bringing as much predictability and comfort to this unavoidable aspect of facing legal proceedings, Bernadette works with each client on a case by case basis to arrive at a fair and manageable retainer agreement. Most clients will have the option to choose either a block fee or an hourly fee arrangement. In some cases, Bernadette will also accept Legal Aid Certificates.
Sampling of Successful Outcomes
Facing legal proceedings can take over your whole life – from restricting your liberty to impacting your mental,physical and financial well-being. With this in mind, Bernadette’s goal is always to have her clients’ matters dealt with as favourably and expeditiously as possible. For a sampling of some of the types of cases she’s dealt with, their successful outcomes, and strategies for arriving there, read on.
Withdrawals Before Trial
R. v. P.S.
Charge: Careless Driving
The client was charged with careless driving under the Highway Traffic Act. The traffic incident at issue resulted in the death of a young man. The handling of this matter would have had significant implications for a civil lawsuit. After thoroughly reviewing the disclosure and findings of the accident re-construction report, Bernadette was able to persuade the prosecutor at a pre-trial meeting that her client’s version of events was independently supported – specifically that, due to a broken streetlight, her client was unable to see the pedestrian dressed in black who was crossing the street mid-intersection at night. The charge was withdrawn prior to a trial date being set.
R. v. J.C.
Charge: Domestic Assault
The client was charged with assault against her long-term boyfriend after a third party bystander witnessed an altercation and called police. The client was released by police, but had restrictions prohibiting contact with her boyfriend. Bernadette was able to have a Crown Attorney review this matter prior to the first court appearance and agree to withdraw the charge in exchange for the client entering into a peace bond, which would allow for contact with her boyfriend upon his written consent. As a result, the client’s charge was withdrawn on her very first court appearance.
R. v. M.H.
Charge: Attempt to Obstruct Justice, Conspiracy to Commit Indictable Offence, Accessory After the Fact
The client was charged with attempt to obstruct justice, conspiracy to commit indictable offence, and accessory after the fact arising out of her role as surety on her son’s bail, and in relation to events that transpired during and after the bail hearing. Upon review of the transcript of the bail proceedings at issue, Bernadette was able to demonstrate to the Crown Attorney at a pre-trial meeting that her client would not have had the intent necessary for conviction. All charges were withdrawn.
R. v. P.I-D.
Charge: Forcible Confinement x2, Assault x2
The client was charged with forcible confinement and assault. The serious nature of these charges would normally render a matter such as this ineligible for mental health diversion. Bernadette was able to persuade the Crown Attorney to approve mental health diversion given the client’s recent onset of symptoms. The client obtained the medial and psychiatric treatment he required and diversion was successful. All charges were withdrawn.
R. v. P.L.
Charge: Sexual Assault
The client was charged with sexual assault against a woman he met one night. He maintained that their intimate encounter was consensual. Bernadette believed that the client’s version of events had a “ring of truth” to it and requested that the police conduct a follow-up interview with the complainant prior to the scheduled preliminary hearing. The police agreed to do so and learned through their follow-up interview that the complainant had either likely consented or led the accused to honestly, but mistakenly, believe that she had consented. As a result of this second interview, the Crown withdrew the charge on the morning of the scheduled preliminary hearing.
R. v. P.O-B.
Charge: Possession of Prohibited Firearm
The client was charged with possessing an unauthorized firearm after his apartment was searched following the tip of a confidential informant. The charge was withdrawn prior to the scheduled preliminary hearing date, after Bernadette provided the Crown with notice of an alternate suspect.
Discharges or Withdrawals at Preliminary Hearing Stage
R. v. O.B.
Charge: Conspiracy to Commit Indictable Offence, Participate in Criminal Organization
This client was charged along with a significant number of other co-accused in a guns and gang prosecution called “Project Corral.” Through strategic cross-examination of police witnesses and focussed legal arguments, Bernadette was able to undermine the sufficiency of the wiretap evidence against her client. As a result, her client was one of only two accused who were discharged at the preliminary hearing.
R. v. P.S.
Charge: Utter forged Document, Fraud Over $5,000.00
The client was alleged to have cashed a forged cheque. He did not have permanent status in Canada and could have faced deportation proceedings if found guilty. At the preliminary hearing, Bernadette’s cross-examination of the Crown’s material witness focussed on highlighting the weaknesses in the Crown’s case. While the client was committed to trial, the Crown subsequently determined that there was no reasonable prospect of conviction upon review of the preliminary hearing evidence. The client’s charges were withdrawn at the next court date.
R. v. C.A.
Charge: Assault Cause Bodily Harm
The client was charged, along with two other co-accused, with assaulting two individuals. The incident arose out of the client’s position as a security guard and his employment would be terminated if he were to be found guilty. Upon review of the video taped incident, and upon hearing from each witness at the preliminary inquiry, Bernadette chose not to cross-examine any of the witnesses. In her final submissions, she argued that there was no evidence identifying her client as one of the assailants. Her client alone was discharged at this stage.
Dismissals or Withdrawals at Trial
R. v. S.C.
Charge: Preventing a Canada Border Services Officer from Completing his Duties by Failing to Follow Instructions for the Inspection of Personal Goods (Customs Act)
The client was charged under the Customs Act after refusing to produce an item for inspection upon the demand of Border Services Officers. At trial, through cross-examination of three Border Services Officers, Bernadette was able to establish that her client did nothing to prevent the officers from completing their duties. No defence evidence was called. In closing argument, Bernadette argued that her client’s refusal did not constitute prevention, particularly when the officers had enforcement powers to search the accused, yet failed to act on those powers. The trial judge agreed with the defence and the charge was dismissed.
R. v. P.S.
Charge: Impaired driving, Refusing to provide a breath sample
The client was charged with impaired driving after hitting a streetlight pole one icy winter evening. While at the police station, he was further charged with refusing to provide a suitable breath sample when the police officer formed the opinion that the accused was “playing games” and failing to follow clear instructions in providing the breath sample. The video of the taking of the breath sample clearly revealed that the accused struggled with English as his second language. At trial, Bernadette raised two defences. In relation to the impaired driving offence, Bernadette argued that any “indicia of impairment” observed by officers were also consistent with her client just having been in an accident, and that the icy road conditions were a possible explanation for the accident. In relation to the refusal of breath sample, Bernadette sought to exclude evidence relating to this charge on the basis that her client’s right to counsel under s. 10(b) of the Charter of Rights and Freedoms was infringed when the officers failed to offer him the opportunity to speak to counsel with the assistance of an interpreter, in order to ensure he understood the officer’s instructions and the consequences of failing to provide a suitable sample. Both defences were successful and the client was acquitted on both counts.
The client was charged with accessing and possessing child pornography after his estranged wife brought his computer into the police station claiming to have found child pornography images on the computer. Working closely with a computer forensic expert allowed Bernadette to focus her cross-examination of the Crown’s computer forensic witness on the time and date stamps connected to the images and other computer activity. After the Crown’s evidence was called, Bernadette moved for a directed verdict finding that the Crown did not produce any evidence showing that any child pornography images were accessed by the accused or anyone during the material time alleged by the Crown. Her argument was successful and her client was discharged of accessing child pornography charges at this stage of the trial. In defending the remaining charge of possessing child pornography, Bernadette called her witness to testify. He testified that he was not aware of the images found on his computer. His evidence, supported by the computer forensic evidence, also revealed that his computer was not password protected and that his ex-wife had ongoing easy access to the computer. His evidence, corroborated by the evidence of his ex-wife who was called as a witness by the Crown, was that he and his ex-wife were in a contentious custody battle while still residing in the same home. His ex-wife was attempting to obtain sole custody so that she could move out of the country with their child. Bernadette argued that her client’s denial of the charge, coupled with his ex-wife’s access to the computer and a motive to fabricate the charges, raised a reasonable doubt as to his guilt. The trial judge agreed that a reasonable doubt had been raised and as a result the client was acquitted of the remaining count of possessing child pornography.
R. v. F.D.
Charge: Possession of Prohibited Weapon
The client was charged with possessing a prohibited knife after police responded to a call by a fellow bar patron claiming that the accused had a gun. Upon their arrival on the scene, two police officers grabbed the accused and demanded that he attend outside with them. The initial pat down search yielded only a toy gun and handcuffs. The accused was placed under arrest, and a search incident to arrest yielded the prohibited knife. Bernadette’s client claimed that the officers did not advise him of their reason for investigation or for arrest, and that he was not provided with an opportunity to speak with counsel upon his arrest. At trial, Bernadette applied for exclusion of evidence on the basis that her client’s rights under s. 8, 9, and 10 of the Charter of Rights and Freedoms were infringed. In cross-examination of the police witnesses, Bernadette was able to demonstrate that the officers’ had contradicted themselves and each other. Her client did not testify. The trial judge found that the accused’s s. 8, 9 and 10 rights were violated and granted the application to exclude the knife from evidence. As a result, the client was acquitted.
R. v. M.P.
Charge: Possession of Cocaine
The client was observed by two police officers leaving a known crack house. Within minutes he was detained, questioned and searched by the officers. A small amount of cocaine was located on him. The client’s defence rested on an application to exclude the cocaine from evidence on the basis that his rights under s. 8, 9, and 10 of the Charter were infringed. The evidence at trial consisted of the testimony of one of the arresting police officers and that of the accused. The trial judge found that the accused testified in a “straightforward, natural, and guileless fashion”, but that the same could not be said for the officer. The judge further commented that during cross-examination the judge could sense that the officer was less than forthcoming and increasingly defensive. The defence application to exclude evidence was successful, and as a result the client was found not guilty.
R. v. J.J.
Charge: Domestic Assault
The client was charged with assaulting his girlfriend at home, with no other witnesses present. He denied that the alleged events took place, despite the complainant having visible bruises and scratches. The defence strategy was to demonstrate through cross-examination of the complainant that she had a pattern of lying to others about the nature of her relationship with the accused and that she had violent tendencies that would find her in physical altercation with others (besides the accused) on a regular basis (as an explanation for the bruises). As a result of Bernadette’s cross-examination of the complainant, the Crown had concerns about the strength of its case and invited the court to dismiss the charges against the accused. The trial judge accepted the Crown’s invitation, and as a result the client was acquitted.
R. v. P.O-B.
Charge: Possession of Cocaine for the purpose of trafficking, Possession of Marijuana for the Purpose of Trafficking, Possession of Proceeds of Crime
The accused’s individual apartment was searched while police executed a search warrant relating to another suspect. A large quantity of cash, cocaine and marijuana were located in the accused’s apartment, and the accused provided an inculpatory statement to police. The search warrant specified that apartment of the original suspect could be searched, as could all common areas in the building. The warrant did not permit search of the client’s apartment. Bernadette applied for exclusion of evidence on the basis that her client’s rights under s. 7, 8 9 and 10 of the Charter were infringed. The evidence consisted only of the police officers’ accounts of the search and their perceived authority under the warrant. The trial judge found that the client’s section 8, 9 and 10 rights were breached, and that all evidence located in his apartment would be excluded. As a result, the client was acquitted.
R. v. S.W.
Charge: Failing to Comply with Recognizance
The client was charged with failing to comply with his bail by breaching a condition to remain in his “residence” under house arrest, unless in the company of his surety. When officers attended at the client’s apartment building to conduct a compliance check, the client was not found in his apartment unit, but later found in the stairwell of the building. Bernadette agreed to the Crown’s version of facts and relied solely on legal argument in defence of her client. Bernadette argued that the common areas in the apartment building were included in the definition of “residence.” The trial judge agreed with the defence argument, and the client was acquitted in less than fifteen minutes after being arraigned.
Verdicts, Sentences or Orders Overturned on Appeal
R. v. J.W.
Charge: Possession of Child Pornography
Bernadette was retained to assist co-counsel on appeal to the Ontario Court of Appeal after the client was convicted of possessing child pornography at trial. Three grounds of appeal were raised claiming that the trial judge: 1) engaged in improper propensity reasoning and based his reasons in part on the accused person’s sexual orientation; 2) drew an improper inference of consciousness of guilt; and 3) misapprehended essential facts in evidence. The Court of Appeal for Ontario agreed with all three grounds of appeal and set aside the conviction, ordering a new trial. The Crown Attorney elected not to continue the prosecution and withdrew the charge.
R. v. P.A.
Charge: Break and Enter
This client, who was prosecuted under the Youth Criminal Justice Act, represented himself at first instance when he entered a guilty plea to one count of break and enter. A court-ordered psychiatric assessment was conducted on request of the Crown, resulting in a finding that the unrepresented youth was not criminally responsible on account of mental disorder (“NCR”). Following this finding the client was detained in the only maximum secure detention hospital in Ontario. Bernadette was retained by co-counsel to assist on appeal to the Court of Appeal for Ontario. They raised several grounds claiming that the plea and NCR hearing were “irremediably tainted by a series of procedural errors and that the NCR verdict was unreasonable given the nature of the psychiatric evidence adduced by the Crown.” The Court of Appeal agreed and set aside the NCR verdict and plea. A fresh, valid plea was entered on behalf of the client and he was sentenced to one day in in prison having regard to the time that he had already spent in custody.
R. v. R.H.
Charge: Uttering a Death Threat
The client, who represented himself at first instance, pleaded guilty to one count of uttering a death threat. While he and the Crown joined in their position on a sentence of 45 days in custody to be served intermittently (on weekends), the trial judge disagreed with them and sentenced the accused to four months in custody. Acting as Pro Bono Duty Counsel with the assistance of law students from University of Toronto’s Downtown Legal Services, Bernadette represented the client on appeal to the Ontario Superior Court of Justice. She succeeded in arguing that the trial judge failed to take into consideration any mitigating factors. As a result, the client’s sentence was reduced to “time served”, having regard to the two and half months spent in custody.
R. v. J.W.
Charge: Common Nuisance, Cause Disturbance, Fail to Comply with Recognizance, Fail to Comply with Probation x2 & Fail to Appear in Court
The appellant, who was represented by other counsel in the lower court, pleaded guilty to six charges and, after being ordered to undergo psychiatric assessment, was found not criminally responsible on account of mental disorder (“NCR”). As a result of his NCR finding, he spent several years in the hospital under the jurisdiction of the Ontario Review Board. He eventually appealed his NCR finding alleging ineffective assistance of his trial counsel. Bernadette was retained to assist amicus curiae on appeal before the Court of Appeal for Ontario. In addition to the ground of ineffective assistance of trial counsel, raised by the appellant, amicus curiae raised an additional ground of appeal claiming that the guilty plea entered was not valid. The arguments raised by amicus curiae in relation to the validity of the plea were accepted by the Court of Appeal and the NCR verdict was set aside, with an order for a new trial. The Crown Attorney elected not to proceed with a new trial and instead stayed the charges against the appellant.
R. v. D.W.
Charge: Impaired Driving
The client was convicted of operating a motor vehicle while impaired. He retained Bernadette to appeal his conviction to the Ontario Superior Court of Justice. She raised two grounds of appeal claiming that the trial judge erred by: 1) failing to address conflicting evidence re. indicia of impairment (failing to provide reasons for accepting the evidence of a police officer over that of an independent witness to the accident), and 2) shifting the burden of proof onto the defendant. The appeal was successful and the conviction was set aside, with a new trial ordered.
Plea Negotiation and Sentencing Successes
R. v. A.G.
Charge: Aggravated Assault
Bernadette was retained to represent the client on sentence after the client was found guilty at trial on the charge of aggravated assault. The Crown sought a term of imprisonment of 9-12 months. In highlighting the mitigating circumstances, which included some traumatic past life experiences, Bernadette sought a suspended sentence with probation for 3 years. The trial judge agreed with Bernadette’s submissions and suspended the passing of sentence, placing the client on probation for three years.
R. v. K.W.
Charge: Arson, Mischief Over $5,000.00
The client was charged with arson and mischief over $5,0000.00 arising out of the G20 protest. He was alleged to have spray-painted a police car and then set it on fire. After thorough review of disclosure and careful examination of numerous video accounts of the incidents, Bernadette was able to persuade the Crown that her client was not responsible for the fire. Upon withdrawal of the arson charge, the client accepted responsibility for the spray-painting and, upon pleading guilty, was sentenced to a $25.00 fine.
Applications to Set Aside Finding of Guilt
R. v. R.M.
Charge: Attempt Murder
Bernadette was retained by co-counsel to assist in bringing an application to set aside the trial judge’s finding of guilt, after this client was found guilty of attempt murder, but before the imposition of any sentence. The application centred around the client’s claim that he was advised by trial counsel that the charge of attempt murder was “off the table”, and that this mis-information led directly to his decision not to testify at trial. The application was successful. The trial judge set aside the guilty verdict and allowed the client to re-open the case and call defence evidence.
R. v. P.W.
Charge: Access Child Pornography, Possess Child Pornography, Sexual Assault, Sexual Interference
The client retained Bernadette for an application to withdraw his guilty plea after he pleaded guilty to one count of possessing child pornography. Bernadette argued that the guilty plea was not voluntary, and that the client was given an unfair inducement to have charges of sexual assault in relation to his daughter withdrawn by the Crown in exchange for his guilty plea to one count of possessing child pornography. Her argument was successful, and the guilty plea was set aside, allowing the client to proceed to trial on all charges.
The hospital and Crown sought continuation of a conditional discharge for this client who had been under the jurisdiction of the Ontario Review Board (“ORB”) for seven years following a finding of not criminally responsible (“NCR”) on a simple assault charge. Bernadette persuaded the ORB panel that her client was no longer a significant risk to the safety of the public and was successful in obtaining an absolute discharge for her client.
Charge: Assault with Weapon, Uttering Death Threats, Mischief Under $5,000.00
The hospital and Crown sought continuation of a conditional discharge for this client who had been under the jurisdiction of Ontario Review Board (“ORB”) for six years following a finding of not criminally responsible (“NCR”) on violent offences. Bernadette persuaded the ORB panel that her client was no longer a significant risk to the safety of the public. As a result, her client was absolutely discharged.
Charge: Unlawfully in Dwelling Place, Fail to Appear in Court x2
After failed attempts at Mental Health and Gladue (Aboriginal) diversion, the client instructed Bernadette to enter a guilty plea with a defence of not criminally responsible on account of mental disorder (“NCR”). After being found NCR, the client was referred to the jurisdiction of the Ontario Review Board (“ORB”) and ordered detained in hospital on a minimum secure unit. By working closely with his doctors and legal counsel, the client managed to get his illness under control and became a model patient and leader in peer-counselling sessions. He was absolutely discharged from the jurisdiction of the ORB in less than three years from his NCR finding.
Know Your Rights
What You Need To Know
The Canadian Charter of Rights and Freedoms is a part of the Constitution Act, 1982. It describes the rights and freedoms guaranteed to all Canadians and persons in Canada in regards to political and civil rights.
Familiarizing yourself with the rights and freedoms guaranteed to you by the Canadian Federal Government is essential for acquiring a basic knowledge of the Canadian legal system and how it applies to you.