Access to Justice

Court of Appeal Ordered Two Jail Guards to Stand Trial for their Role in Inmate’s Death

Written on Behalf of Affleck & Barrison LLP

On March 5, 2014, corrections officers, Leslie Lonsbary (“Lonsbary”) and Stephen Jurkus (“Jurkus”), were charged with failing to provide the necessaries of life following the death of inmate, Adam Kargus (“Kargus”).

Kargus was beaten by his cellmate at the Elgin Middlesex Detention Centre (“EMDC”) and was found dead in a jailhouse shower stall on November 1, 2013.  Anthony George pleaded guilty to second-degree murder and was sentenced to life in prison (with no possibility of parole for 10 years) last year for beating Kargus to death.

The Ontario Court of Appeal has recently reversed an earlier decision made by Justice A.K. Mitchell of the Ontario Superior Court of Justice.   At that time, charges against the two guards were dismissed as a result of too much time having passed since they were charged.

LOWER COURT DECISION

At the time of Kargus’ beating and subsequent death, Lonsbary and Jurkus were both employed by the Ministry of Correctional Services at EMDC and on duty.

Following a four month investigation by police, the two men were arrested and charged with failing to provide the necessaries of life to Kargus thereby endangering his life contrary to section 215(1)(c) of the Criminal Code of Canada.

In February, 2017, Lonsbary and Jurkus brought an application before the Ontario Superior Court of Justice arguing that their constitutional rights had been infringed due to the delay in bringing their case to trial.

A three week jury trial was scheduled to commence on May 8, 2017. The guards submitted that the delay from arrest to the expected completion date of trial would be 1,178 days or 39.3 months. They attributed the delay to the Crown prosecutor and the court.

Applying the formula for delay as set out by the Supreme Court of Canada (“SCC”) in the R. v. Jordan (“Jordan”) decision, the lower Court found that the accuseds’ right to be tried within a reasonable period of time was breached. The Court stayed the charges against Lonsbary and Jurkus as the case against them had surpassed the 30-month time limit for trials as set out in the Jordan decision.

WHY IS THE JORDAN DECISION RELEVANT TO THIS CASE?

We have previously blogged about access to justice issues and, more specifically, the commonly criticized length of time it takes for a case to get to trial. The SCC in 2016 set strict time limits for the completion of criminal cases, where there are no exceptional circumstances.

The SCC released its decision in R. v. Jordan on July 8, 2016. In this case, the accused had faced several delays while awaiting his preliminary inquiry and trial. Jordan was eventually convicted of five drug-related offences after 49.5 months. At the beginning of his trial, Jordan brought an application requesting a stay of proceedings due to his constitutional rights being infringed by an unreasonable delay. His application was dismissed. Jordan’s appeal to the Supreme Court of British Columbia was also dismissed.

Jordan proceeded to appeal to the SCC. His appeal was granted, his convictions were set aside and the proceedings were stayed. In this decision, the SCC clearly set out a formula to calculate the amount of time between the initial charge and the actual or anticipated end of trial. The SCC set a ceiling for unreasonable delays at 18 months for cases tried in provincial courts and 30 months for cases to be tried in provincial and superior courts after a preliminary inquiry, except under exceptional circumstances that were reasonably unforeseen or unavoidable.

ONTARIO COURT OF APPEAL

Crown prosecutors appealed the lower court decision to stay proceedings against Lonsbary and Jurkus to the Ontario Court of Appeal (“ONCA”). The Crown argued that the lower court Judge made errors in applying the time frame rules.

According to Justice Fairburn, writing on behalf of the ONCA, delays that were caused by the defence or by “exceptional circumstances” (which can include specific incidents or the general complexity of the case) do not count toward the 30-month ceiling for criminal proceedings.

In conclusion, the ONCA found that there was “no unreasonable delay” and ordered Lonsbary and Jurkus to stand trial.

The two jail guards have the right to appeal the Ontario Court of Appeal ruling. We will continue to follow this case and report on any developments as they take place in this blog.

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 have a 24-hour phone service for your convenience. We are available when you need us most.

Judge Who Took Nine Months to Reach Verdict Did Not Violate the Accused’s Right to Timely Trial

Written on Behalf of Affleck & Barrison LLP

We have frequently blogged about access to justice issues, including the government’s attempts to make Ontario’s criminal law system “faster and fairer”, and the right to timely trial.

A commonly criticized issue within the criminal law system is the length of time it sometimes takes a case to get to trial.  There have been situations in which Ontario judges have halted cases involving serious criminal charges because they have taken too long to get to trial, however, this is not always the case. A lengthy sexual abuse case in Manitoba recently made the news, when a court decided that the trial process, which ultimately took well over 3.5 years, did not violate the accused’s right to a timely trial.

What Happened?

The accused in question was charged with sexually abusing one of his children. The trial itself lasted 33 months, and the judge took 9 months following the end of the trial to reach a guilty verdict.

The trial occurred in the wake of the Supreme Court’s decision in R.v. Jordan, in which the Court established that any trial lasting more than 30 months can be presumed to violate the accused person’s constitutional right to trial within a reasonable period, and that the charges must be thrown out (unless the prosecution could point to exceptional circumstances).

In this case, Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench ultimately found that the time that a judge takes to arrive at a decision of guilty or not guilty should not be included in considering whether the length of a trial falls within the parameters established by Jordan. Otherwise, a judge making a decision following a short trial would have a long time to render their verdict, whereas a judge making a decision following a long trial would have a shorter period of time to make their final decision. Moreover, trials would have to be finished well within the time limits established by Jordan in order to provide enough time for a verdict. Lastly, including a judge’s decision-making time in the Jordan time limits would have an impact on that judge’s independence, which would violate a key feature of our legal system.

Chief Justice Joyal stated that only where a judge took so much time to render a verdict that the delay was “shocking, inordinate and unconscionable” that the judge will be found to have violated the accused’s right to a trial within a reasonable period. In this case, the Chief Justice found that the 9 month delay “would not create, in a reasonable person with the full knowledge of the justice system, the sort of shock or sense of alarm that would cause that reasonable person to conclude that the nine-month judicial delay is significantly in excess of acceptable standards”.

Judicial Independence a Factor

Because of how the principle of judicial independence is interpreted by courts, the original trial judge in this case could not be asked why it had taken 9 months to reach a verdict, and could not be questioned whether the delay was due to the complexity of the case, the judge’s workload, or other personal reasons, such as illness.

The accused’s lawyer has indicated that she will appeal Chief Justice Joyal’s decision after sentencing. She argued that judicial delay is not just a matter of length of time it takes a judge to render a decision, but also their general availability.

The president of Manitoba’s Criminal Lawyers’ Association also disagreed with the Chief Justice’s findings in this case, stating:

The judges are independent but they have to comply with the law, too. [Chief Justice Joyal] is forgetting the admonition of Jordan – hard-cap limits which are meant to shock the system out of a ‘culture of complacency.’

We will continue to follow developments in this and other access to justice issues and will blog about them regularly.

In the meantime, if you have questions about your rights, contact one of the experienced Oshawa criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled lawyers have significant experience defending a wide range of criminal charges and protecting our client’s legal interests. Whatever the nature of your offence, we can help.

Canadian Judges Urged to Consider History of Systemic Racism When Sentencing Black Offenders

Written on Behalf of Affleck & Barrison LLP

A Call for Greater Consideration

Canadian defence lawyers are urging judges to give greater consideration to how systemic racism may have played a role in the actions of black criminals, similar to the consideration given to aboriginals.

The National Post reports “Defence lawyers behind the push say asking judges to consider how historic discrimination and marginalization may have influenced their clients’ behaviour is not meant to be a ‘get-out-of-jail-free’ card; it simply gives judges a fuller picture of their clients before their fates are decided.”

R. v. Gladue

The consideration being urged is similar to the Gladue report, which judges, defence counsel, or Crown Attorneys are able to request during pre-sentencing or bail hearings of Aboriginal offenders.

Gladue reports stem from a 1998 Supreme Court of Canada decision, R. v. Gladue, in which the Court ordered “ it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person.  Whether the offender resides in a rural area, on a reserve or in an urban centre the sentencing judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender.  The alternatives existing in metropolitan areas must, as a matter of course, also be explored.  Clearly the presence of an aboriginal offender will require special attention in pre‑sentence reports.”

Conflicting Points of View

Wayne van der Meide, regional manager of case management and litigation for Legal Aid Ontario told the National Post that his organization wants to encourage Ontario judges to employ cultural assessments, allocating funds for test cases.

Nova Scotia has used cultural assessments in a small number of cases, and van der Meide stated that courts in Ontario have recognized that black people have faced systemic racism for decades, but this has always been done without a formal mechanism.

The hope of Van der Meide and others pushing for this type of consideration is that the Canada’s black population will cease to be overrepresented in Canada’s prison system. According to Vice News, 9.5% of Canada’s prisoners are black, compared to only 3% of the Canadian population.

However, Canada’s federal prison ombudsman, Ivan Zinger, says that he isn’t sure cultural assessments will do anything to change the black population’s overrepresentation in prison. He told the National Post that Aboriginal Canadian’s still account for 26% of Canada’s prisoners, while making up less than 5% of the population despite years of use of Glaude reports. He said “Adopting the same Gladue approach for Canadians of African descent may also not yield the desired outcome,” adding, “Investments in improving socioeconomic, cultural and political rights of vulnerable segments of the Canadian population may be a better approach.”

If you are facing criminal charges, contact the skilled Oshawa criminal lawyers at Affleck & Barrison online or at 905 404 1947. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.

Woman Who Insisted on Self-Representation Found Guilty of Murdering Husband

Written on Behalf of Affleck & Barrison LLP

At the culmination of a very strange trial in which the accused insisted on representing herself, a jury recently found Xiu Jin Teng guilty of the first-degree murder of her husband.

The Trial

Teng had originally been charged with committing an indignity to a body, after she told her landlord (upon the landlord locating the husband’s dead body in the closet) that her husband had died of a heart attack. The charge was elevated to first degree murder when the investigation revealed that Teng, who worked for London Life, had purchased a $2 million life insurance policy on her husband and had named herself the beneficiary.  Prosecutors argued that this had been Teng’s motive for the crime, and that the husband’s body was discovered by the landlord before she was able to dispose of it using various items she purchased at a hardware store.

Accused Insisted on Self-Representation

The jury was never told why Teng did not have a defence lawyer, though presiding judge Justice MacDonnell did inform them that Teng’s frequent allegation that she was being denied a lawyer was not true.

In fact, Teng had fired her first lawyer after several months, and subsequently went through three additional lawyers before finally deciding on a lawyer she seemed OK with in 2013. At that time, her trial was scheduled for September 2015. Just prior to the start of the trial, the lawyer informed the court that he needed to be removed as counsel due to the breakdown of his lawyer-client relationship with Teng.

Teng refused to have another lawyer take over and for the trial to proceed that November.  The next available trial date was not until October 2016. Teng continued to refuse to hire a lawyer, despite the court urging her to obtain counsel from Legal Aid.

Accused’s Request for Stay due to Delay Denied

Before her trial began in late 2016, Teng attempted to have her charges stayed due to unreasonable delay, arguing that almost give years will have passed between her arrest in 2012 and the foreseeable end of her trial.

In support of her request for a stay, Teng cited the Supreme Court’s recent decision in R.v. Jordan (an important recent case which we’ve previously blogged about) which sets a 30-month time limit between an accused arrest and the end of their trial. Teng argued that the delay had already had serious consequences for her, including the fact that she had been unable to see her young daughter (who now resides in China with the husband’s family after an order by the Children’s Aid Society- CAS). Teng believed that the CAS might not have made that decision had the trial proceeded faster.

Justice McDonnell did not stay the charges, finding that the period of time that had elapsed since Teng’s arrest was justified under the legal framework which had existed prior to the Jordan decision.

The Accused’s Outbursts and Inappropriate Behaviour Throughout the Trial

Throughout the trial, Teng regularly interrupted the proceedings, occasionally prompting Justice MacDonnell to order her removal from the courtroom, and placing her in a separate room with a video-link through which she could continue to watch the proceedings but not participate.

At various points during the proceedings Teng accused Justice MacDonnell of “fooling the jury”, “rejecting her constitutional right” to “speak for herself”, and later telling the Justice that he was “biased” and “not trustable” and an “evil judge”. On one occasion she shouted “you are wrong! You are wrong!” and “you do everything illegally in this courtroom. You are an illegal judge”.

In Justice MacDonnell’s final instructions to the jury, the judge reminded them that they were not to take Teng’s courtroom behaviour into consideration when making their decision.

It is never a good idea to represent yourself in criminal proceedings. If you have been charged with an offense and require legal counsel, contact the criminal defense lawyers at Affleck Barrison in Oshawa. We are located at 201 Bond Street East in Oshawa, within easy walking distance of the Durham Consolidated Courthouse. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times and accept cases on private retainers as well as Legal Aid. Do not hesitate to contact our firm online or at 905-404-1947 to discuss your charges

Ontario Taking Steps to Improve Criminal Justice System

Written on Behalf of Affleck & Barrison LLP

Earlier this month, the Ministry of the Attorney General announced that the Ontario government is taking proactive steps to make the province’s criminal justice system “faster and fairer”, including improving the bail system, and reducing the time it takes for matters to get to trial.

Highlights of the Government’s Plan

The government intends to enhance public safety through expediting the resolution of criminal matters and creating more supports for vulnerable individuals who come into contact with the legal system.

The plan includes:

  • The appointment of 13 provincial court judges, 32 Crown attorneys, 16 duty counsel (i.e.- lawyers who are paid by Legal Aid), and 26 court staff;
  • The appointment of three prominent legal experts, including a former Chief Justice, former Deputy Attorney General, and a deputy Crown attorney to provide insights on modernizing Crown (i.e- prosecution) policies on bail;
  • Several measures intended to improve the bail system, including a province-wide expansion and enhancement of the existing Bail Verification and Supervision Program, making the program available at several court locations on weekends, and extending eligibility for the program. This is intended to facilitate successful release of low-risk individuals on bail, pending trial, and ensure that they are not behind bars until their trial is completed;
  • Launching a new “bail beds” program in five Ontario communities to provide supervised and safe housing for low-risk individuals;
  • Embedding duty counsel in six correctional facilities province-wide to allow for more effective bail hearings;
  • Developing a new, culturally sensitive program providing support to Indigenous individuals going through the bail process.

Quick Facts about Bail

  • The decision to grant or deny a person bail is complex and based on the specific circumstances of each individual matter;
  • Some key factors considered by Crown when recommending bail are: public safety (particularly the safety of any victims), attendance in court, rights of the accused, and public confidence in the justice system;
  • If an accused is not released on bail, they will be held in hail until their trial is heard. This can take many months, or even a year or more;
  • Denial of bail causes significant damage to the life and career of the accused, as well as the life of their family.

Delays in the Current Justice System

Ontario Attorney General Yasir Naqvi has stated that:

Our criminal courts are bottlenecked, daily dockets are jammed and early trial dates are hard to come by…This is not good for anyone.

The province’s announcement follows the Supreme Court’s landmark decision in R.v. Jordan, which set time limits by which all matters must get to trial. In the wake of the Jordan decision a case may be dismissed due to delay if it takes more than 18 months to get to trial in provincial court, or 30 months in Superior Court. As we’ve previously blogged about, Ontario courts subsequently changed their practices with respect to any cases that entered the system after the SCC’s ruling.

Last month, a Superior Court judge in Ottawa halted a first-degree murder case because it had taken too long to get to trial.

It will be interesting to follow developments in the province’s plan, and to see what effect it has on the criminal justice system. We will continue to monitor the program as it progresses, and will blog as needed to provide updates.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison online or at 905-404-1947. Our firm and its predecessors have been protecting client rights since 1992. Our skilled lawyers have significant experience defending a wide range of criminal charges and protecting our client’s legal interests.  We are available 24 hours a day, and offer a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help.

 

What is Civil Forfeiture?

Written on Behalf of Affleck & Barrison LLP

 

A new report by the Canadian Constitution Foundation and Institute for Liberal Studies says the civil forfeiture laws are cash grabs for provincial governments, which have collected millions of dollars in assets as proceeds of crime.

Under Ontario’s Civil Remedies Act, the government has had the power since 2001 to seize property deemed to be a proceed or instrument of crime, even without any conviction or charges. According to the Ministry of the Attorney General of Ontario, since November 2003, Ontario has seized $48.6 million worth of property. Any property that is not cash is liquidated, and the proceeds and any cash seized are deposited into an account. Victims of the crime that led to forfeiture may submit a compensation claim from those funds. The funds are also distributed to government and law enforcement agencies in the province.

In recent weeks, Bill 139 has made its way before Ontario legislature. The legislation seeks to provide financial incentives to police forces who make contraband tobacco busts and has raised concerns amongst activists.

In criminal cases, a judge or jury must find the defendant guilty beyond a reasonable doubt. But the same standard does not apply in civil cases, including civil forfeiture. The standard in civil cases is the balance of probabilities. These cases are of further concern because the province does not have to provide property owners with a lawyer as would be the case in criminal proceedings. Someone who is completely innocent of any wrongdoing but unable to afford a lawyer would have no way to defend him- or herself against the seizure of his or her house, car, cash or other property. Even in cases where someone is able to afford a lawyer, it may not be worth it because the legal fees will likely cost more than the value of the property being seized.

Civil forfeiture is problematic because it  goes against a fundamental principle of our justice system: the right to be presumed innocent, and treated as such, until found guilty by a court of law.

To speak to an experienced criminal defence lawyer in the Durham region, please contact Affleck & Barrison online or at 905-404-1947.

Source:

http://www.cbc.ca/news/canada/civil-forfeiture-contraband-tobacco-1.3453200

 

 

 

Ontario Increases Legal Aid Eligibility Threshold

Written on Behalf of Affleck & Barrison LLP

As part of the 2014 provincial budget, the Ontario Liberals promised to increase the eligibility threshold for legal aid services by six per cent each year over three years. This year marks the third increase and amounts to over $48.8 million invested in providing access to legal services to an additional 400,000 people.

Despite the increase, many people in Ontario still fall into the grey area of being too “rich” to qualify for legal aid, but too “poor” to pay the average lawyer’s legal fees. Between legal aid and what the average person can afford, there is a significant gap which has widened since the 1990s. For 20 years, the eligibility threshold in Ontario sat at $10,800 for a single person. This meant that anyone earning even slightly higher than $10,800 a year would not qualify for legal aid. As of April 1, 2016, however the threshold has been raised to $12,863. This figure is still exceptionally low and still leaves many people living at or near the poverty line with no access to legal aid.

Legal aid certificates are still only available for the most serious legal matters, including charges where a jail sentence is likely, child protection or domestic violence issues and immigration and refugee matters. In Family Court, for example, where the majority of cases are not considered to be ‘serious’ under the Legal Aid guidelines, 57 per cent of parties do not have a lawyer. And in a system designed for lawyers, the average person who cannot afford a lawyer is at a serious disadvantage. While the increase to legal aid funding is an important step, further steps must be taken to address the issue of access to justice in Ontario.

If you would like to speak to an experienced criminal defence lawyer in the Durham region, please contact Affleck & Barrison online or at 905-404-1947.

For more information about legal aid eligibility, click here.