First-time Shoplifters Will Not Be Charged In Toronto

Written on Behalf of Affleck & Barrison LLP

According to Toronto Police, the number of reported shoplifting incidents are at a five year high in Toronto.  As of October 30, 2018 there were 16,667 shoplifting incidents reported.

On November 1, 2018, Toronto Police Service launched a pilot project called “Shop Theft”, allowing first-time shoplifters to avoid prosecution in two of Toronto’s busiest police divisions.

This project allows privately employed theft prevention officers to release an accused shoplifter after the details of the incident are called in to a police division. In the normal course, the accused would be held waiting for hours for police to arrive at the store in response to the low-priority calls.

WHAT IS THE “SHOP THEFT” PROJECT?

This pilot project will run for six months in divisions 51 and 52 in Toronto, which includes the area south of Bloor Street from Spadina Avenue east to the Don River.

Alleged offenders will be released for non-violent shoplifting incidents through the project as long as they meet the following criteria:

  • They must be 18 years of age or older;
  • The items they are accused of stealing must be worth less than $1,000; and
  • They must have identification.

Paul Rinkoff, a Toronto Police staff sergeant who is in charge of running the project, explains that the investigation will proceed as usual, it will just take place over the telephone. However, a police officer will attend the premises, if requested by any party involved.

Those that are apprehended through the Shop Theft project will not be charged, however, the police reserve the right to lay a charge at a later date depending on the circumstances of the crime.

In each case of shoplifting, the theft prevention officer will be required to fill out a form which will include details about the alleged occurrence and the accused. This form will then be forwarded to Toronto Police. The accused will be read their right to counsel and advised that they are being released. They will be given a notice of apprehension, which states why they were detained and specifies that a criminal summons may be obtained at a later date by the Toronto Police Service on that charge. This summons is unrelated to any civil proceedings that the store may commence against the accused.

The Shop Theft project will be reviewed 90-days following its commencement and again at the end of six months to determine whether Toronto Police will implement this practice in all of its divisions.

Meaghan Gray, acting director of corporate communications for the Toronto Police Service, states:

What we’ve been trying to do through the modernization process is make sure that our police officers are where the public needs them the most. And maybe responding to … shoplifting calls – that can be held just as efficiently by a theft prevention officer partnered with us over the phone – allows us to reassign those officers to more pressing calls for service.

WHAT IS SHOPLIFTING?

Shoplifting is the common term used when stealing something from a store and is an offence found under section 322 of the Criminal Code. Shoplifting can be categorized in two ways depending upon the value of the items stolen: theft over $5,000 or theft under $5,000.

Section 322 of the Criminal Code reads as follows:

Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent.

The term “colour of right” refers to the person having the authority to take it. The term “converts” means to deprive someone else of their property to use for your own enjoyment.

The term “intent” in reference to shoplifting refers to the intent to take someone else’s property. The intent needs to be proven in Court beyond a reasonable doubt by the Crown prosecutor.

Shoplifting occurs when an item has been taken from a store without paying and does not occur while you are still in the store, even if the item is in your pocket.

WHAT IS THE PUNISHMENT FOR SHOPLIFTING?

Approximately 50,000 Canadians are charged with shoplifting and theft under $5,000 each year. Most shoplifters rarely attempt to steal property valued at more than $5,000. The most common items stolen include alcohol, clothing or apparel, jewelry, food, and cosmetic and beauty products.

Shoplifting is a form of theft and is therefore a serious offence, and should not be treated lightly as this offence carries with it severe penalties.

Pursuant to section 334(b) of the Criminal Code, depending on the severity of the crime, the punishment for shoplifting (theft under $5,000) is a summary offence with a maximum penalty of a fine of up to $5,000 and/or imprisonment for up to 6 months. However, the Crown prosecutor may choose to proceed by way of indictment, which carries a punishment of imprisonment for a term not exceeding two years.

If you are convicted of the crime of theft, you may also be subject to court fines and fees, damage to your reputation and career, and restrictions on travel.

Once you have been convicted of shoplifting (unless you were a minor at the time), the charge and conviction are permanently recorded on your criminal record.  The charge, arrest, and your fingerprints are all a matter of public record even if you are not convicted of the offence.  Therefore, when travelling or on some forms for your employment you will need to answer “yes” if you are asked if you have ever been arrested or charged with a crime.

If you are facing shoplifting or theft charges, or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer. The lawyers at Affleck & Barrison LLP have years of experience defending clients against theft and stolen property charges. Contact our office today online or at 905-404-1947 to speak with our knowledgeable criminal defence lawyers that specialize in defending clients who face theft charges. We offer a free initial consultation for all prospective clients.

12 Year Sentence for Vigilante Justice Upheld

Written on Behalf of Affleck & Barrison LLP

The Alberta Court of Appeal, in a 2-1 decision, upheld Steven Vollrath’s (“Vollrath”) 12-year prison sentence for cutting off his victim’s thumb during an abduction in a case of vigilantism.

Two of the three judges at the Court of Appeal ruled that Vollrath’s sentence at trial was appropriate for the well planned “revenge kidnapping”.

The Appeal Court denounced vigilantism and stated:

Vigilantism undermines the rule of law and interferes with the administration of justice. As a general rule, those who engage in it should be dealt with severely.

WHAT HAPPENED?

In May, 2013, Richard Suter (“Suter”) was parked next to a restaurant when he and his wife began having an argument. He failed to put his car in park, and as the car proceeded forward, he unintentionally pushed on the accelerator instead of the brake. The car advanced onto the restaurant’s patio striking and killing a two-year-old child.

Suter was convicted of failing to provide a breath sample. The trial judge found that the accident was caused by driver error and not drunkenness. The Supreme Court of Canada reduced Suter’s 26-month sentence to the 10 months he had already served in jail.

While Suter was awaiting trial, Vollrath, dressed as a police officer, and two accomplices rang Suter’s doorbell and abducted him in front of his wife. His captors revealed that the reason he was being abducted was that he had hit and killed a child with his car. Suter was taken to a snowy field, his thumb was cut off with pruning shears, and he was left unconscious in the snow.

Vollrath was convicted in 2016 of kidnapping, aggravated assault, possession of a weapon, and impersonating a police officer. Vollrath had a lengthy criminal record, including violent and weapons offences.

SENTENCING PRINCIPLES

According to section 718 of the Criminal Code, the purpose of sentencing is to protect society and to impose sanctions that meet the following objectives:

  • denounce unlawful conduct;
  • deter the offender and others from committing offences;
  • separate offenders from society;
  • assist in rehabilitating offenders;
  • provide reparations for harm done to victims or the community; and
  • promote a sense of responsibility in offenders and acknowledge the harm done to victims or to the community.

Sentencing must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In deciding on an appropriate sentence, the Court must consider aggravating and mitigating factors, sentences imposed on similar offenders for similar offences, and all available sanctions other than imprisonment must be considered.

In Mr. Vollrath’s case, the Court considered the following aggravating factors:

  • he did not act alone;
  • there was advance planning involved in committing the offences;
  • he impersonated a police officer with the purpose of facilitating another offence;
  • the incident began at the Suter’s home;
  • the kidnapping and assault were targeted;
  • leaving Suter maimed and unconscious in a deserted area showed a callous indifference to whether he lived or died;
  • the lasting physical harm to Suter;
  • the psychological impact to both Mr. and Mrs. Suter;
  • Vollrath’s extensive criminal record; and
  • Vollrath was on release at the time of the offences.

The Court is also obligated to consider background factors for aboriginal offenders and to consider how these factors affect the offending behaviour. In Mr. Vollrath’s case, the Court found that he had no connection with his aboriginal culture at the time he became incarcerated. Furthermore, the Court held that Vollarth’s dysfunctional background was not connected to his aboriginal history as his biological father, who was a Metis man, left him when he was very young.

In coming to a conclusion in her 2016 sentencing decision, Justice E. A. Johnson of the Provincial Court of Alberta felt that the most important objective was to “denounce the acts and to deter Mr. Vollrath and others from engaging in this kind of behaviour.” Justice Johnson also considered the objectives of separating the offender from society and rehabilitation. Therefore, Justice Johnson concluded that 12 years of incarceration were fitting given the seriousness of the offence, the degree of responsibility of the offender, the aggravating factors, and the need for denunciation and deterrence.  The majority of the Alberta Court of Appeal agreed with this sentencing decision.

WHAT COMES NEXT FOR VOLLRATH?

At the Court of Appeal, the dissenting judge held that Vollrath should have been sentenced to nine years in jail after taking into account the deprivations of his childhood.

Given that there was a dissenting opinion on appeal, Vollrath has the option of appealing his case to the Supreme Court of Canada. However, the Supreme Court of Canada will only hear a case if it is convinced that the case involves a question of public importance. Approximately 1 out of 10 cases that request “leave” to appeal to the Supreme Court of Canada receive permission.

We will continue to follow this case and will report any developments on this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. We are available when you need us most.

‘Sexsomnia” Defence Rejected by Ontario Judge

Written on Behalf of Affleck & Barrison LLP

A Judge has rejected the defence of “sexsomnia” and ruled that Ryan Hartman (“Hartman”) is criminally responsible for the sexual assault of a woman despite his claim that he was sleepwalking at the time of the criminal act.

Hartman was found guilty of sexual assault in 2012 and sentenced to 14 months in jail. He appealed and lost. He appealed again and admitted to the crime, but offered new evidence claiming that he was suffering from a condition called “sexsomnia” and maintained that he was sleeping when he raped the woman.

The Ontario Court of Appeal granted Hartman a new trial. The trial began in April 2017 and concluded this week with a Judge ruling that Hartman is guilty of sexual assault.

WHAT HAPPENED?

In February 2011, the woman, whose identity is protected by a court order, was attending a house party in Spencerville, Ontario with her boyfriend. The couple fell asleep on an air mattress to sleep off all of the alcohol they had consumed before driving home.

Suddenly, the woman felt a strong pain in her buttocks. She realized that her jeans were pulled down and that someone was penetrating her anally while her boyfriend remained asleep.

Hartman gave evidence at his first trial that he crawled onto the double air mattress with a sleeping couple. When he awoke, he was alone on the air mattress with an erection and his pants were unzipped.

As the woman and her boyfriend drove away from the house party, she observed Hartman sitting at a picnic table in the garage looking wide awake.

During the trial, Hartman’s lawyer argued that his client was asleep during the sexual assault and was therefore not criminally responsible for his “involuntary” acts.

Hartman relied upon evidence provided by Dr. Julian Gojer, a forensic psychiatrist, who determined that Hartman was likely asleep during the assault. Dr. Gojer’s opinion relied upon a family history of sleepwalking and evidence from Hartman’s girlfriend who had once found Hartman masturbating beside her in bed while apparently asleep.

The Crown prosecutor relied upon affidavit evidence from a U.S. sleep expert Dr. Mark Pressman who opined that Hartman was likely awake, but drunk during the assault.

At trial, evidence before the court included the fact that Hartman had consumed as many as 21 alcoholic beverages during the party and that his blood-alcohol level was estimated to be three to four times the legal limit.

Judge Kimberly Moore rejected Hartman’s defence of sexsomnia and ruled that Hartman was “awake and aware” and his “actions were not involuntary” when he pulled down the victim’s pants and anally penetrated the woman without her consent.

 WHAT IS SEXSOMNIA?

Sexsomnia is a type of parasomnia, an abnormal activity that occurs while an individual is asleep. It is a sleep disorder that causes individuals to engage in sexual behaviour while asleep.

Sexsomnia is similar to sleepwalking and occurs during non-rapid eye movement sleep. Most individuals are experiencing such a deep sleep that they will not even remember that the event occurred the following day.

Sexsomnia was added to the DSM-5 in 2013, the American Psychiatric Association’s relied upon classification of mental disorders.

WHAT IS THE DEFENCE OF SEXSOMNIA?

In Canada, sexsomnia has been raised by defence lawyers as a legal defence in at least a dozen criminal cases since 2005. The defence of sexsomnia has resulted in a “not criminally responsible” ruling five times.

A 2003 incident that occurred in Toronto set the precedent for the sexsomnia defence in Canada when Jan Luedecke was found not criminally responsible after being accused of sexually assaulting a woman at a party by the Ontario Court of Appeal.  In 2009, Luedecke was granted an absolute discharge by the Ontario Review Board based upon two risk assessments by a forensic psychiatrist and a forensic psychologist. He was found not to pose a significant threat to public safety.

In another case, a man from Blue Mountain, Ontario was found not criminally responsible for the sexual touching of a young girl as a result of sexsomnia in February 2015. In June 2016, the Newfoundland and Labrador Supreme Court ordered a new trial for a man convicted of sexually touching his younger sister on the basis of a sexsomnia defence.

Sexsomnia is a difficult defence as it requires a great deal of medical evidence, including expert testimony.

The victim of Hartman’s assault maintains that the assault has changed her life, her sexual relationships, her personal relationships, and her career path. Hartman will be sentenced on November 30, 2018.

If you have been charged with a sexual assault offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  We are available when you need us most.

 

 

 

 

 

Inmate Escapes from Healing Lodge in Saskatchewan

Written on Behalf of Affleck & Barrison LLP

Joely Lambourn (“Lambourn”) escaped last Friday afternoon from the Okimaw Ohci Healing Lodge near Maple Creek, Saskatchewan. Staff at the lodge discovered Lambourn missing during a routine count at 12:25 p.m.. A warrant is now out for her arrest.

Lambourn was serving a 2 ½ year sentence for dangerous driving causing death after being convicted of the death of a cyclist in May 2015 near Okotoks, Alberta.

At the time of the accident, Lambourn was a suspended driver and had a history of traffic violations for speeding and careless driving. The Judge found that Labourn was distracted while driving, likely by her cell phone, when she veered off the road and hit the cyclist, Deric Kryvenchuk.

WHAT ARE HEALING LODGES?

In 1992, the federal government passed legislation to allow Aboriginal communities to provide correctional services. This legislation was intended to improve the over-representation of Indigenous offenders in Canada’s correctional system and to address concerns that mainstream prisons do not work for Aboriginal offenders.

In 2017, more than 25% of men and 36% of women incarcerated in Canada were Indigenous. In all of Canada, Indigenous people make up 5% of the population.

Aboriginal Healing Lodges are correctional institutions where Aboriginal values, traditions, and beliefs are used to design services and programs for offenders. A holistic and spiritual approach is taken with guidance and support from Elders and Aboriginal Communities.

Healing lodges are minimum/medium–security facilities for Aboriginal women offenders. Healing lodges for Aboriginal men are minimum-security facilities. Non-Aboriginal offenders may also live at a healing lodge, but must agree to follow Aboriginal programming and spirituality.

Lodge residents have “healing plans”, similar to correctional plans. These specify areas the offender has to work on, which may include such issues as substance abuse, employment, education and family.

There are nine Correctional Service Canada (“CSC”) healing lodges across Canada. Four are managed and operated by CSC and five are managed by community partner organizations.

Okimaw Ohci Healing Lodge for women offenders in Maple Creek, Saskatchewan is managed by CSC. This was the first healing lodge to open in Canada and it has 30 beds. This facility contains both single and family residential units. Offenders may have children stay with them. Each unit contains a bedroom, bathroom, kitchenette and eating area, and a living room.

Programs in this healing lodge help offenders build strength to make changes in their lives and address vocational training, family, and children. The offenders learn how to live independently by cooking, doing laundry, cleaning, and completing outdoor maintenance chores.

Before a decision is made to move an offender to a healing lodge, an offender’s risk to public safety must be thoroughly assessed. The inmate must require a limited amount of supervision and control within the institution allowing the offender to take on responsibilities as he/she is preparing to reintegrate into the community.

TERRI-LYNNE MCCLINTIC’S STAY AT A HEALING LODGE

Okimaw Ohci Healing Lodge is the same facility that Terri-Lynne McClintic (“McClintic”) was transferred to earlier this year (the date is unknown). McClintic was only eight years into serving a life sentence for first-degree murder in the death of an eight-year-old girl, Tori Stafford (“Stafford”).

McClintic confessed to luring Stafford into the car of her boyfriend on April 8, 2009. Stafford was then sexually assaulted, murdered, and buried in a farmer’s field.

McClintic was transferred from the Grand Valley Institution for Women near Kitchener, Ontario to the healing lodge located in southern Saskatchewan.

McClintic’s transfer to the healing lodge generated passionate debate within the House of Commons and public outcry and protests. This quickly prompted changes to how the Correctional Service of Canada would decide on transferring inmates.

McClintic has been transferred back to a women’s prison in Edmonton. She is not eligible for parole until 2031.

TOUGHER RULES FOR PRISON TRANSFERS FOLLOWING MCCLINTIC TURMOIL

Earlier this month, Public Safety Minister Ralph Goodale ordered CSC to improve its policies related to the transfer of medium-security women offenders to facilities that do not have a directly controlled perimeter. These changes were effective immediately for existing and future cases.

Transfers will be required to be authorized by CSC’s deputy commissioner for women, under the new policy.

Factors considered in evaluating the suitability of transfers to facilities without a controlled perimeter, include:

  • The length of an offenders’ sentence.
  • The time remaining before an offender is eligible for an Unescorted Temporary Absence.
  • A requirement that long-term offenders be in the “preparation for release” phase of their correctional plan.
  • The institutional behaviour of the offender.

We will continue to follow any developments in the circumstances surrounding the escape of Lambourn and the transfer of McClintic as they become available and provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about any charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Woman Found Not Criminally Responsible in Fatal PATH Stabbing

Written on Behalf of Affleck & Barrison LLP

Rohinie Bisesar (“Bisesar”), accused of fatally stabbing 28-year-old Rosemarie Junor (“Junor”) in a Shoppers Drug Mart in Toronto’s underground PATH system in 2015, has been found not criminally responsible.

Bisesar pleaded not guilty last week to the first-degree murder charge. Bisesar’s lawyers maintained that she was not criminally responsible due to her mental illness. Her trial was held before a judge only.

Ontario Superior Court Justice John McMahon ruled that he was satisfied, on a balance of probabilities, that Bisesar, who suffered from schizophrenia, “was incapable of knowing the killing was morally and legally wrong”.

WHAT HAPPENED?

On December 11, 2015, while shopping at a make-up counter beneath Bay and Wellington streets, Junor was fatally stabbed. She was taken by ambulance to hospital where she succumbed to her injuries.

The unprovoked attack took a mere 54 seconds and was recorded on the store’s surveillance video. Bisesar walked into the pharmacy and stabbed Junor once in the heart with a small knife purchased at a dollar store. She did not speak to Junor during the attack, placed the knife on the counter following the stabbing, and immediately left the store.

According to Bisesar’s lawyers, she was experiencing hallucinations that took control of her physically. A forensic psychiatrist, Dr. Ian Swayze, the only witness at the trial, gave evidence that at the time of the incident Bisesar was experiencing a psychiatric breakdown due to untreated schizophrenia.

According to Dr. Swayze’s report, Bisesar was hearing voices in her head. The voice commanded her to buy a knife, and walk into the Shoppers Drug Mart. Dr. Swayze wrote that “The voice and movements raised my hand, pushed forward … it was like the knife was sticking to my hand and couldn’t be dropped.”

As a result of the not criminally responsible verdict, Bisesar remains in a secure wing of the Centre for Addiction and Mental Health in Toronto until an Ontario Review Board hearing is held.

WHAT DOES IT MEAN TO BE NOT CRIMINALLY RESPONSIBLE?

According to section 16 of the Criminal Code, a person is not criminally responsible for something that he/she did if they were suffering from a mental disorder at the time of the offence, and:

  • the mental disorder made it impossible for him/her to understand the nature and quality of what he/she did; or
  • the mental disorder made it impossible for him/her to understand that what he/she did was morally wrong.

WHAT HAPPENS NEXT FOR BISESAR?

Bisesar’s release is controlled by the Ontario Review Board (“Board”). This is an independent tribunal that oversees and annually reviews every person found to be not criminally responsible or unfit to stand trial for criminal offences due to a mental health condition.

The Board consists of a five person panel, which includes a psychiatrist, a lawyer, a mental health professional, a member of the public, and a Chairperson.  The Chairperson must either be a practicing or retired judge or someone who can be appointed to a judicial office (i.e. a lawyer who has 10 years of experience).  All members of the Board are appointed by the Lieutenant Governor.

The Board hears evidence from the individual and his/her lawyer, the Crown prosecutor, a psychiatrist, and possibly others that may include a family member or other specialist. The hospital facility also provides a report to the Board detailing the individual’s history and progress.

The Board’s decisions are made by a majority vote. The most important concern of the Board is whether the individual poses a significant risk to the safety of the public. If the individual is found to be a significant risk, the Board will consider other factors. The most important being the protection of public from dangerous persons, the re-integration of the person into society, and the liberty interests of the person.

The Board reviews the disposition annually to determine whether changes need to be made depending on the progress made by the individual. The Board can make one of three dispositions:

  • Detention Order: The individual should continue to be detained in the hospital and makes a decision regarding whether the individual stays at a minimum, medium or maximum secure unit and what access the individual would have to the community;
  • Conditional Discharge: The individual is allowed to live in the community while subject to certain requirements (i.e. having to report to a hospital, refrain from using alcohol or drugs, reporting any change in address, or refrain from contact with certain individual); or
  • Absolute Discharge: The individual is granted a full release with no further supervision.

Victims can provide victim impact statements at the annual Board hearings. The statements do not have an impact on the decision the Board makes, unlike at a sentencing hearing. The Board’s decision must be based on the individual’s current level of risk to public safety.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Convicted Drunk Driver Marco Muzzo Could Receive Parole Next Month

Written on Behalf of Affleck & Barrison LLP

Marco Muzzo (“Muzzo”), an Ontario man convicted of impaired driving in a 2015 accident that killed three children and their grandfather, is scheduled to appear for a parole hearing on November 7, 2018.

Muzzo is seeking day parole and is eligible to apply for full parole in May 2019 and statutory release on June 18, 2022.

The children’s parents, Jennifer Neville-Lake and Ed Lake, plan to attend the parole hearing at the Beaver Creek Institution in Gravenhurst.

WHAT HAPPENED?

On September 27, 2015, Muzzo had returned home on a private jet from his bachelor party in Miami and picked up his Jeep SUV from the airport parking lot. He was speeding when he drove through a stop sign and plowed into the driver’s side of a minivan transporting the Neville-Lake family.

Muzzo was driving at least 120 km/h on a 60 km/h road at the time of the accident. Muzzo’s blood-alcohol content ranged from 0.19 to 0.25 per cent at the time of the crash, which is more than twice the legal limit in Ontario. Police officers at the scene reported that Muzzo smelled of alcohol, his eyes were glassy, he used the car to keep his balance, he was unable to understand instructions from the officers, and he urinated on himself.

Muzzo pleaded guilty to four counts of impaired driving causing death and two counts of impaired driving causing bodily harm for the crash that killed nine-year-old Daniel Neville-Lake, his five-year-old brother Harrison, his two-year-old sister Milly, and the children’s 65-year-old Grandfather, Gary Neville.

Neriza Neville, the children’s grandmother, and Josefina Frias, the children’s great-grandmother, were also injured in the accident, but survived the crash.

Ontario Superior Court Justice Michelle Fuerst sentenced Muzzo to 10-years in prison and banned him from driving for 12 years after he gets out of prison. This was the harshest sentence in Canadian history for an impaired driver without a prior record.

Justice Fuerst intended for her sentence to send a message to deter others from committing the same crime. She considered the aggravating factors of Muzzo choosing to drive drunk and that his prior speeding convictions reflected an “irresponsible attitude toward the privilege of driving”.

WHAT IS PAROLE?

According to the Corrections and Conditional Release Act, all offenders must be considered for some form of conditional release during their sentence. However, although an offender may be eligible for release does not mean that the release will be granted. The Parole Board of Canada must assess an offender’s risk to determine if a conditional release is warranted.

Parole is a conditional release from jail for offenders to serve the remainder of their sentence outside of the confines of the institution. The goal of parole programs is to provide a gradual, controlled, and supervised path between jail and freedom.

Day parole permits offenders to participate in community-based activities in preparation for full parole or statutory release. Day parole requires the offender to return each night to a community-based residence, otherwise known as a halfway house.

The Parole Board does not automatically grant parole, each individual case must be reviewed to determine suitability for release. The Parole Board will consider the following factors in determining whether an offender should be granted parole:

  • The offender’s criminal record;
  • The seriousness and nature of the offence;
  • The offender’s behaviour while in prison;
  • The offender’s release plan; and
  • The remorse he/she has expressed for the crime, and in Muzzo’s case, his guilty plea.

Victims are also allowed to provide written victim information to the Parole Board detailing any continuing impact the crime has on their life and any concerns they have for their own safety or the safety of their family.

The Parole Board can impose conditions to the day parole release in order to lessen the risk of re-offending, such as ordering abstinence or counselling. Offenders must also obey the law and report regularly to a parole officer.

Jennifer Neville-Lake, the mother of the three children killed in this devastating accident, has posted a plea on Facebook asking supporters to write to the Parole Board of Canada to oppose Muzzo’s conditional release. She has also posted a petition on Facebook requesting that Muzzo remain in prison for the remainder of his ten year sentence. She is attempting to make an example of Muzzo in an effort to prevent future drinking and driving accidents.  Over 9,100 people have signed the petition to date, with a goal of 10,000 signatures.

We will continue to follow the Muzzo case and will report any developments on this blog.

In the meantime, if you or a loved one have been charged with an impaired driving offence or any other driving offence or have any questions regarding your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. Contact our office online or at 905-404-1947.

Proposed Legislation to End Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

Following the Ontario and British Columbia Superior Court decisions that found that the use of segregation was unconstitutional (which we have previously blogged about), a new piece of legislation has been introduced which proposes to overhaul how federal inmates are separated from the general prison population.

Public Safety Minister Ralph Goodale has introduced Bill C-83 to amend the Corrections and Conditional Release Act. These changes would eliminate solitary confinement and replace it with “structured intervention units” (“SIUs”). The SIUs will allow inmates to be separated from the general population if they are unable to exist safely with the other prisoners.

HOW WILL SEGREGATION IN PRISONS CHANGE UNDER BILL C-83?

As it stands today, inmates placed in solitary confinement are allowed two hours a day outside of their cell, but are not entitled to any human contact. Under Bill C-83, prisoners who are found to be at risk to themselves or others will be placed in SIUs.

Prisoners placed in SIUs will have access to rehabilitative programming, interventions, and mental-health care. They will be visited daily by a registered health care professional and be provided access to patient advocates. These inmates will be given at least four hours a day outside of their cell and at least two hours a day with “meaningful” human contact.

Bill C-83 also proposes to allow staff members to use body scan imaging technology as an alternative to body cavity searches to prevent contraband from entering prisons.

Furthermore, Bill C-83 includes provisions that background and systemic factors should be considered in all correctional decisions in cases involving indigenous inmates.

Correctional Service of Canada Commissioner Anne Kelly supports the proposed legislation and stated:

I believe these legislative changes will transform the federal correctional system while ensuring that our institutions provide a safe and secure environment that is conducive to inmate rehabilitation, staff safety and the protection of the public. They will also help ensure that our correctional system continues to be progressive and takes into account the needs of a diverse offender population.

LIMITATIONS OF BILL C-83

Bill C-83 does not address the time limits for segregation or the independent oversight of segregation decisions, which are both issues that the federal correctional ombudsman and rights advocates have been lobbying for.

Furthermore, if this bill passes, this legislation will have no effect on the use of solitary confinement in all provincial jails. These jails are made up of pretrial prisoners and those inmates serving sentences of less than two years.

Goodale believes that the appeals by the Canadian Civil Liberties Association in Ontario and the federal government in B.C. with respect to the constitutionality of current policies for solitary confinement that are scheduled to begin next month will proceed. But, he is hopeful that this new legislation will address the concerns of all current policies and make further litigation regarding solitary confinement unnecessary.

CLASS ACTION LAWSUIT

A lawsuit has been certified by a Superior Court Judge as a class action lawsuit in Ontario alleging that the Ontario government violated the rights of its inmates by placing them inappropriately in solitary confinement.

The $600 million legal action alleges that the provincial government has been negligent in utilizing segregation by isolating prisoners for weeks, months or even years.

The lawsuit includes inmates diagnosed with severe mental illnesses (i.e. schizophrenia or psychosis) who served time in segregation in provincial facilities since January 1, 2009. Inmates who were placed in solitary confinement for 15 days or longer are also included in the class.

The main issue in the lawsuit is “administrative segregation”. This takes place when inmates are isolated either to ensure their own safety or for the safety of others in the facility. Inmates are kept in tiny cells without any human contact for most of the day.

Conrey Francis (“Francis”) is the representative Plaintiff for this class action lawsuit. Francis is the individual who represents the entire class in the action.

Francis has spent several periods of time in prison since 1982, and was placed in solitary confinement. Francis has been diagnosed with post-traumatic stress disorder and suffers from extreme panic attacks. Francis alleges that his time in isolation worsened his mental health and he began suffering from suicidal thoughts and auditory hallucinations.

We will continue to follow the developments of Bill C-83, the appeals regarding the rulings that administrative segregations are unconstitutional, and the class action lawsuit commenced in Ontario and will report any updates in this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please contact Affleck & Barrison at 905-404-1947 or contact us online. We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges. For your convenience, we offer 24-hour phone services.

Legal Challenges Expected for Drug-Impaired Driving Charges

Written on Behalf of Affleck & Barrison LLP

Now that cannabis has become legal in Canada, there are still many questions that remain unanswered. Impaired driving is one of those murky subjects.

Impaired driving is the leading criminal cause of death and injury in Canada. Drivers that are killed in car accidents that test positive for drugs (40%) now exceed the number of those who test positive for alcohol (33%).

Cannabis can impair everyone differently depending on the method of consumption (smoked, inhaled, ingested), quantity of cannabis consumed, and the variety of cannabis and its THC levels. Therefore, there is no direction as to how much cannabis can be consumed before you are considered an “impaired” driver or how long a driver should wait to drive after consuming cannabis. The Government of Canada is therefore recommending that you should not drive high.

Justice Minister Jody Wilson-Raybould recommends:

For the sake of safety on the roads, we recommend people not get behind the wheels of their car if they’ve consumed any alcohol or drugs.

TRAINED OFFICERS

The Government of Canada reports that they have trained police officers, also known as Drug Recognition Experts, to determine if you are under the influence of drugs while driving.

Durham Police Services has trained 130 officers in standardized field sobriety testing, and an additional 6 officers are trained in drug impairment recognition.

According to the Government of Canada’s website, there are over 13,000 trained Standardized Field Sobriety Test officers across Canada and 833 certified Drug Recognition Experts. As the federal, provincial, and territorial governments continue to invest money into training, these numbers will continue to increase.

THE OFFENCE OF IMPAIRED DRIVING

New impaired driving offences came into force at the end of June setting limits on how much THC (the primary psychoactive element in marijuana) a person can legally have in their system while driving before facing penalties.

According to the new rules, police can lay a summary conviction charge against a person driving with between two and five nanograms of THC per milliliter of blood (subject to a maximum fine of $1,000). Charges may be laid either as a summary or indictable offence for those who have more than five nanograms of THC per milliliter of blood. The latter is a more serious crime with fines and jail time as penalties.

DETECTING DRUG-IMPAIRED DRIVING

Drivers who are suspected of driving high will be asked to take a field sobriety test, this includes an assessment of how the individual’s eyes react to light and movement, and their ability to perform a series of activities designed to gauge their physical co-ordination.

If an officer forms grounds to believe a driver is impaired, they may place the driver under arrest and demand a more extensive examination by a drug recognition officer. This test is conducted at a police station and relies upon physiological evidence, such as blood pressure, pulse rate, and the examination of muscle tone and eye reactions. This examination will also involve the extraction of bodily fluids, in most cases urine, which will be sent to the Centre of Forensic Sciences for analysis.

It is a criminal offence to refuse to submit to the drug recognition officer examination, similar to the refusal to submit to a breathalyzer test during a drunk driving investigation.

ROADSIDE DRUG-SCREENING EQUIPMENT

Durham Police are anticipating that they will be equipped with devices to test saliva samples for the presence of drugs, but they are not currently available.

The Ontario Provincial Police force has confirmed that it will be purchasing federally approved roadside drug-screening equipment to identify impaired drivers. However, it is uncertain at this time how many of these devices will be purchased or when they will become available.

The device is known as the Drager DrugTest 5000, which has the ability to test saliva for cocaine and THC (the main psychoactive agent in cannabis). Canada’s Department of Justice approved this device this past August.

If a driver is suspected of being high, an officer would ask the driver to provide a saliva sample, using a cassette. The cassette is then inserted into the analyzer to be tested. Within approximately four minutes, the results of the test will determine whether the driver is over the nanogram limit (positive or negative). If so, the driver will then proceed to the police station for a blood test.

LEGAL CHALLENGES AHEAD

Government officials have acknowledged that although they are prepared for cannabis legalization, it is expected that the courts will set clearer interpretations of the new impaired driving laws as charges are laid and cases move through the criminal legal system.

It is particularly complicated to measure the concentration of THC in someone’s blood and determine when it came from. Thus, the problem arises when determining how the police can prove that the amount of THC in the blood was impairing the driver or whether the THC was lingering in the driver’s blood from consumption days earlier as THC can be detected several days after someone has smoked.

Justice Minister Jody Wilson-Raybould has said that officers will have to make a decision on a “case-by-case” basis when determining whether a driver will face a charge for drug impaired driving.

Many are concerned that there is no conclusive way to determine that someone is driving high. The roadside saliva drug tests approved by the government have also been criticized for being an unreliable testing method. Furthermore, some criminal defence lawyers have suggested that these tests could face challenges under Canada’s Charter of Rights and Freedoms.

We will continue to provide updates and developments following the legalization of marijuana in Canada in this blog as they become available.

If you have been charged with an impaired driving or any other driving offence, or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. Contact our office online or at 905-404-1947.

Bill Tabled to Expunge Cannabis-Related Criminal Records

Written on Behalf of Affleck & Barrison LLP

A new bill has been introduced in the House of Commons to expunge the records of those individuals who have a criminal record for past minor, non-violent marijuana possession convictions.

New Democrat MP Murray Rankin has tabled the private member’s Bill C-415, An Act to establish a procedure for expunging certain cannabis-related convictions. Rankin estimates that more than 500,000 Canadians have a criminal record for personal possession charges for marijuana.

BILL C-415

The new bill proposes to expunge criminal records for those convicted of personal possession crimes that will no longer be considered illegal pursuant to Bill C-45, which comes into effect on October 17, 2018. This bill will also allow those applying for a pardon to not have to wait five to ten years and pay the current $631 fee. Under Rankin’s proposal, the process will be faster and entirely free.

In 2016, 58% of all charges related to the Controlled Drugs and Substances Act were related to cannabis, and approximately three quarters of those offences were for possession.

Supporters of Bill C-415 maintain that it is unreasonable to have individuals continue to be unable to attain jobs, volunteer in the community or coach a child’s sports team for doing something that will no longer be illegal in a weeks time.

MP Rankin notes that a disproportionate number of non-violent cannabis-related convictions belong to marginalized or racialized Canadians. He reports:

In Toronto, black people without a criminal record were three times more likely to be arrested for cannabis possession than white people. In Halifax, five times as likely. In Regina, it’s nine times more often for Indigenous people.

The federal government has made it clear that it will not consider marijuana pardons until after legalization. However, the possibility of doing so has not been ruled out and the government is currently evaluating the legal implications.

RECORD SUSPENSIONS (PARDONS)

A criminal record can be a barrier to attaining a job, volunteering, or going on a vacation out of the country. In order to remove your criminal record from law enforcement databases, you must be granted a Record Suspension (formerly known as a Pardon).

You do not need to apply for a Record Suspension if charges against you were dismissed, stayed or withdrawn, or did not result in a conviction.

Once you have completed your sentence and proven that you are a law-abiding citizen, you may have your record removed from the Canadian Police Information Centre database by being issued a Record Suspension.

Possession of marijuana up to 30 grams is a summary conviction offence. Those convicted of a summary conviction offence (less serious and punishable by shorter prison sentences and smaller fines, without the right to a jury trial) cannot apply for a Record Suspension until at least 5 years have passed since he/she completed his/her imprisonment, paid his/her fines, and completed his/her term of probation.

Canadians convicted of an indictable offence (more serious crimes) cannot apply for a Record Suspension under the Criminal Records Act until at least 10 years have passed since he/she completed his/her term of imprisonment, paid his/her fine, or completed his/her term of probation.

Those who have been convicted of a sexual assault or sexually-related crime or who have been convicted of more than three indictable offences cannot apply for a Record Suspension. The person applying for a Record Suspension also cannot be convicted of a subsequent offence and must prove to the Parole Board that he/she is of good character.

Clearing your criminal record involves three steps and a waiting period. These steps include data collection, data analysis, and the Canadian pardon application.

Prior to submitting your Record Suspension application to the Parole Board of Canada, it can take from 4 to 6 months to prepare the application and obtain the supporting documents.

An application for a record suspension costs $631, and with added fees for documents and records checks, it could cost in excess of $1,600.

If you are granted a Record Suspension, this means that your record is merely sealed. A member of the public cannot check online to see if you have a record, however, certain legal agencies can still access this information under specific legal circumstances.

On October 17, 2018, the Cannabis Act will become law and in Ontario adults who are 19 or older will be permitted to buy, use, possess, and grow recreational cannabis.  However, until legalization comes into effect Canadians will continue to be charged for cannabis offences.

We will continue to provide updates in this blog regarding the proposed bill to expunge criminal records for minor cannabis possession and the legalization of cannabis in Canada as this information becomes available, and will blog about developments as they arise.

In the meantime, if you are facing drug related charges or have any questions concerning your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Human Trafficking Education in Durham Region

Written on Behalf of Affleck & Barrison LLP

Durham Regional Police Service (“Durham Police”) have launched a human trafficking awareness website to alert parents and teens in Durham to the dangers of human trafficking occurring in their own city.

In 2017, Durham Police dealt with 27 cases of human trafficking. In 2018, the Durham Police human trafficking unit has conducted 80 investigations and laid more than 130 charges. In the last six months, 41 girls have been lured into human trafficking in Durham.

According to Statistics Canada, since 2010 human trafficking cases have increased approximately 580% in Canada (from less than 50 to nearly 350 cases). In fact, two thirds of human trafficking offences that were reported to the police in Canada were found to take place in Ontario.

Durham is considered a breeding ground for human traffickers as it is a common stop along the Highway 401 corridor. Victims are quickly and easily moved around from city to city in hotel rooms up and down the highway.

Traffickers, male or female, lure their victims, then coerce them into sex work, using psychological manipulation, threats, addiction, violence, and isolation to control the young girls.

The website stopht.com, developed by the Durham Region Human Trafficking Coalition, outlines warning signs, myths about human trafficking, targeted individuals, and where to get help.

In the case of preventing human trafficking, knowledge is power. Durham Police urge all parents to become educated about human trafficking. They recommend that parents look for “red flags” and keep an open dialogue with their teens. Unexplained gifts or money, long absences, change in mental health, multiple cell phones, and new friends or boyfriends are signs that someone you know has become a victim of human trafficking.

WHAT IS HUMAN TRAFFICKING?

Human trafficking is often described as a modern day form of slavery. It involves the recruitment, transportation, harbouring, and/or exercising control, direction or influence over the movements of a person in order to exploit that person, ordinarily through sexual manipulation or forced labour.

Victims are deprived of their normal lives and forced to provide labour or sexual services, through terrorizing practices, for the direct benefit of their perpetrators.

EDUCATION IS KEY

According to experts in the field of human trafficking, early education is the crucial component to combat these heinous crimes. Children, at a young age, need to be taught self-worth, empowerment, and the meaning of consent.

Durham Police are taking their knowledge and expertise to local schools to educate students regarding the dangers of sex trafficking. Educating girls, who are the most vulnerable, to recognize the warning signs is essential. Girls believe that they are in love with their traffickers, who lure and groom them into this dangerous lifestyle.

The new website stopht.com features a video, signs to look for, common myths, and what the community can do to help victims of sex trafficking.

Both parents, teachers, and students require education to learn the warning signs in order to prevent someone from becoming a victim in a human trafficking trap.

Parents are encouraged to look for “red flags” and note any changes in their teenagers appearance or behaviour.

Who is Most at Risk for Sex Trafficking?

Women and girls are most often the targets of sex traffickers, however, young men and those in the LGBTQ community are also being targeted.

Approximately 75% of female trafficking victims are under the age of 18-years-old, and some are even as young as 12 or 13-years-old.

Police report that marginalized youth, Indigenous youth and youth experiencing homelessness are most often targeted. Youth who struggle with low self-esteem, bullying, poverty, abuse, and family issues are also targeted.  Risk factors also include addiction, mental health issues, and developmental disabilities.

Traffickers have been found to recruit girls online, at local malls, high schools, libraries, group homes, bus stops, and parties at hotels.

Possible Signs that Someone is Being Groomed for Sex Trafficking

Sex traffickers often recruit young people by becoming their loyal friend or even boyfriend. The following changes may be signs that a young person is being groomed for sex trafficking:

  • Withdrawing from family and friends;
  • Being secretive about their activities;
  • Having a new boyfriend/girlfriend/friend who they will not introduce to friends or family;
  • Staying out more often and later;
  • Absences from school or a decline in school performance;
  • Wearing more sexualized clothing;
  • Wearing new clothing or jewelry that they cannot afford to buy; and
  • Having a new or second cell phone with a secret number.

How Do You Become a Victim?

Human trafficking may start with a tactic called the “boyfriend trafficker”. This occurs when a young pimp lures a girl with affection, romance, and gifts. The relationship proceeds quickly and the boyfriend begins to make promises, such as marriage or moving in together. The vulnerable young girl begins to feel loved and secure. Then the boyfriend tells her that he has fallen into trouble and needs money. He asks the young girl to help him out. This usually starts by asking her to strip or service a client in order to earn money.

Once the girl has begun performing sexual services, she becomes controlled by her boyfriend through psychological manipulation, threats, addiction, violence, and isolation. The victims are often, but not always, moved from hotel to hotel and city to city, to isolate them and keep them away from their loved ones.

Visit the website stopHT.com to learn more about human trafficking in Durham.

If you have been charged with human trafficking or a related charge or have an questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone serve for your convenience. We are available when you need us most.