Appeal

Conviction Upheld for Toronto Cop

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal unanimously upheld the 2016 conviction of attempted murder and six-year jail sentence of Toronto Police Constable James Forcillo (“Forcillo”).

We have previously blogged about the trial court decision where a jury found Forcillo guilty of attempted murder in the death of 18-year-old Sammy Yatim (“Yatim”).

WHAT HAPPENED?

On July 27, 2013, police were called to the scene with reports about a disturbance aboard the 505 Dundas streetcar.  At trial, the jury heard evidence that Yatim had consumed the drug ecstasy before boarding the westbound streetcar at Yonge Street. He then proceeded to expose himself to women on the streetcar and withdrew a switchblade. The streetcar stopped near Grace Street and all passengers exited the doors.

Forcillo and his partner were the first officers to arrive and found Yatim alone on the streetcar. Forcillo fired nine shots from the street at Yatim after repeatedly requesting that the youth drop a small knife that he was holding as he stood aboard an empty streetcar. Forcillo fired two separate rounds of shots. Yatim was critically injured by the first round of shots, which caused him to fall on the floor of the streecar.

At trial, Forcillo faced two charges: second-degree murder for the first round of gunfire and attempted murder for the second round. The jury found Forcillo was justified in firing the first three shots at Yatim, and therefore not guilty of second-degree murder. However, the jury concluded that Forcillo was not justified in firing the second round of shots, and therefore convicted him of attempted murder.

THE SENTENCE AT TRIAL

Justice Edward Then sentenced Forcillo to six years in jail after the jury convicted him of attempted murder.

At the sentencing hearing, Forcillo’s lawyers argued that a minimum sentence should apply to a police officer on duty.

Justice Then stated that the second round of gunfire was “unreasonable, unnecessary and excessive” and contrary to Forcillo’s police training. He went on to explain that the sentence must match the crime. Furthermore, he expressed his belief that police officers should be held to a higher standard than members of the public and that Forcillo should have used de-escalation techniques to convince Yatim to release his weapon.

Forcillo had been granted bail pending the appeal decision, but he has been behind bars since late last year as a result of breaching his bail conditions. He has been charged with perjury and attempting to obstruct justice and is currently suspended without pay from the Toronto police.

THE APPEAL

In October, 2017, Forcillo launched an appeal. Forcillo requested that the Court of Appeal substitute a not guilty verdict or order a new trial. On appeal, Forcillo’s lawyers raised several questions about the trial and the sentence, including:

  • Whether the conviction for attempted murder can stand?
  • Whether the trial judge erred in excluding evidence regarding Mr. Yatim’s state of mind?
  • Whether the trial judge erred in sentencing Forcillo beyond the five-year mandatory minimum sentence?

This week, the Court of Appeal dismissed Forcillo’s appeal of both his conviction and sentence. In a unanimous decision, the Court held that the six-year prison sentence was “fit” considering the surrounding circumstances of the crime, including Forcillo’s failure to express remorse.

The Court of Appeal found that the jury’s verdict was reasonable as there were obvious differences between the circumstances when Forcillo fired the first set of shots and when he discharged the second set of gunfire (given that Yatim was hit and laying on his back during the second round of gunfire).

The Court of Appeal stated:

[Forcillo] knew from his training that Mr. Yatim did not pose an imminent threat to anyone merely by re-arming himself with a knife. He knew that he was not entitled to kill Mr. Yatim in these circumstances, yet he proceeded to fire six additional rounds fixed with that lethal intent.

Forcillo has the option of appealing this decision to the Supreme Court of Canada. In order to do so, Forcillo would have to demonstrate that there is an issue of national importance. Forcillo’s lawyers are currently considering whether to appeal. We will keep you updated as this matter continues to develop.

If you have been charged with a serious 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.

Supreme Court Upholds First Degree Murder Convictions for Death of 6-Year-Old

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada (“SCC”) has upheld the first-degree murder convictions of Spencer Jordan (“Jordan”) and Marie Magoon (“Magoon”), who were charged in the death of six-year-old Meika Jordan (“Meika”).

Defence lawyers requested that the SCC reverse a decision by the Alberta Court of Appeal, which upgraded Jordan and Magoon’s second-degree murder convictions after ruling that Meika had been confined prior to her death (a condition that automatically increases the severity of a murder offence).

Under the original second-degree murder convictions, Jordan and Magoon had been sentenced to life in prison without parole for a minimum of 17 years. The upgraded first-degree murder convictions carry an automatic life sentence with no chance of parole for 25 years.

WHAT HAPPENED?

On November 14, 2011, Meika died after spending the weekend at the home of her father, Jordan, and stepmother, Magoon. The six-year-old was tortured for days leading up to her death by being forced to run stairs, dragged up and down the stairs by her ankles, repeatedly hit and even burned. She suffered damage to her internal organs and a subdural hematoma and cerebral swelling caused by at least five blows to her head. No medical attention was sought until Meika was in complete cardiac and respiratory failure. Jordan and Magoon told police that Meika had fallen down the stairs, however, the medical evidence supported a pattern of frequent and intentional violence.

Jordan and Magoon were charged with first degree murder and convicted of second degree murder at trial in 2015. They appealed their convictions and the Crown prosecutors appealed the first degree murder acquittals. The Alberta Court of Appeal dismissed the accuseds’ appeals, but allowed the Crown appeals. The Appeal Court held that the accused unlawfully confined Meika rendering them liable for first degree murder under section 231(5) of the Criminal Code of Canada (“CC”).

The SCC refused to hear an appeal to have the convictions entirely quashed, but did hear arguments on the Alberta Court of Appeal’s decision to upgrade the charge from second-degree murder to first-degree murder.

The nine SCC justices took less than 10 minutes to come to the decision to dismiss all appeals in November, 2017. The SCC found that the Court of Appeal did not err in substituting verdicts of guilty of murder in the first degree. The written reasons for the ruling were released on April 13, 2018.

MURDER IN THE FIRST DEGREE

The crime of murder is deemed as the most vicious of crimes in Canadian society. This is reflected in the harshness of the sanctions and punishments for this crime.

In Canada, there are two divisions of murder and one of manslaughter. First degree murder is planned and deliberate (with a few exceptions), whereas second degree murder is defined as murder that is not first degree (not premeditated). Manslaughter is defined as a homicide committed without the intention to cause death.

First degree murder bears an automatic life sentence with no possibility of parole for 25 years. Once on parole, offenders remain on parole for the rest of their life and must report to a parole officer and are subject to conditions of their parole. If any of the conditions of parole are broken, they are sent directly back to prison without a hearing.

WHAT IS FIRST DEGREE MURDER UNDER SECTION 231(5) OF THE CRIMINAL CODE?

There are some homicides automatically deemed first degree murder, even if they were not intentional or planned. These include assassination of a police officer or prison employee on duty (section 231(4) of the CC) or murder committed in conjunction with one of the following offences (section 231 (5) of the CC):

  • hijacking;
  • sexual assault;
  • sexual assault with a weapon;
  • aggravated sexual assault;
  • kidnapping;
  • forcible confinement;
  • hostage taking;
  • terrorism;
  • intimidation;
  • criminal harassment; or
  • any offence committed on behalf of a criminal organization.

The section of the CC that was applied in Meika’s case was section 231(5)(e), which reads as follows:

(5)       Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

            (e) section 279 (kidnapping and forcible confinement);

The case of R. v. Pritchard explained Parliament’s intention to “treat murders committed in connection with crimes of domination as particularly blameworthy and deserving of more severe punishment”.

The applicable test to be applied in determining guilt of first degree murder under section 231(5)(e) of the CC was set out in R. v. Harbottle. The Crown must establish beyond a reasonable doubt that:

  1. the accused was guilty of the underlying crime of domination or of attempting to commit that crime;
  2. the accused was guilty of the murder of the victim;
  3. the accused participated in the murder in such a manner that he/she was a substantial cause of the death of the victim;
  4. there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and
  5. the crimes of domination and murder were part of the same transaction.

In Meika’s case, the SCC found that although there were no physical restraints used, Meika was physically restrained and restricted to remain in her bedroom or the basement. Furthermore, given the parent child relationship there is less of a requirement for physical restraints due to the unequal relationship that exists. “[D]isciplining a child by restricting his or her ability to move about freely (by physical or psychological means), contrary to the child’s wishes, which exceeds the outer bounds of punishment that a parent or guardian could lawfully administer, constitutes unlawful confinement.” Therefore, the SCC found that the Harbottle test was met.

If you have been charged with a serious 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.

Nova Scotia’s Top Court Orders New Trial for Taxi Driver Acquitted of Sexual Assault

Written on Behalf of Affleck & Barrison LLP

Nova Scotia’s Court of Appeal has ordered a new trial for a taxi driver who was acquitted of sexually assaulting an intoxicated female passenger because he could not determine whether the victim consented before she passed out.

WHAT HAPPENED?

On May 22, 2015, police found taxi driver, Bassam Al-Rawi, in a parked cab in Halifax’s south end. An unconscious female was found in the back seat with her legs propped up on the front seats, naked from the waist down with her breasts exposed. Al-Rawi was discovered leaning between the female’s open legs with his zipper undone and the back of his pants partly down. Al-Rawi was also found to be hiding a pair of the female’s urine-soaked pants and underwear.

Police woke the female complainant, who could only tell them her name, but not why she was there or what had happened.

Al-Rawi was charged with sexual assault (section 271 of the Criminal Code of Canada). He was tried before Judge Gregory E. Lenehan on March 1, 2017.

During the trial, a forensic alcohol specialist testified that the female was extremely intoxicated after drinking 5 beers, two tequila shots and one vodka-cranberry drink. The expert testified that she was drunk enough to forget events and lose track of her surroundings. It was determined that the woman’s blood-alcohol level was three times the legal limit.

Judge Gregory Lenehan set out the requirements for finding Al-Rawi guilty of sexual assault. He stated:

In order for Mr. Al-Rawi to be convicted of the offence that’s before the court, the Crown have to establish beyond a reasonable doubt that Mr. Al-Rawi touched (the complainant), that it was in such a way it violated her sexual integrity and that it was not done with her consent. In other words, it was done without her consent.

At trial, Judge Lenehan found it reasonable to conclude that Al-Rawi was engaging in or about to engage in sexual activity, but he acquitted Al-Rawi on the basis that the Crown had produced “no evidence” of lack of consent or lack of capacity to consent when Al-Rawi was touching the complainant. Judge Lenehan could not determine when the female had lost the capacity to communicate. He wrote that “[c]learly, a drunk can consent.” Judge Lenehan ruled that “[a] lack of memory does not equate to a lack of consent.”

THE DECISION ON APPEAL

The Crown prosecutor appealed the trial decision to a higher court on the basis of several legal errors made by the Judge at trial and requested an order for a new trial.

In the unanimous decision, the appeal court agreed that Judge Lenehan had made several errors in law. The appeal was allowed and a new trial was ordered.

Although the Court of Appeal did not find that Judge Lenehan had erred in law by stating that “a drunk can consent”, his application of the legal test for a person’s capacity to consent to sexual activity was a legal error. The trial judge held that the Crown had not proven incapacity beyond a reasonable doubt because it was unknown the “moment the complainant lost consciousness”. Thus, Judge Lenehan implied that prior to becoming unconscious the complainant would have had the capacity to consent. The Court of Appeal held that the trial judge erred in law by equating incapacity solely with unconsciousness.

The Court of Appeal also found that Judge Lenehan had erred in discounting the extensive circumstantial evidence that would have allowed him to infer that the complainant had not voluntarily agreed to engage in sexual activity, or that she lacked the capacity to do so. Some of the circumstantial evidence noted by the Court of Appeal included:

  • the complainant was unconscious when found by police;
  • Al-Rawi was trying to hide the urine-soaked pants and underwear from the police;
  • the location of the cab was not near the complainant’s home or on the route to the complainant’s home;
  • the complainant had no memory of her time in the cab;
  • the complainant’s blood alcohol level was between 223 and 244 mg/100mL; and
  • the complainant had to be shaken awake by police in the cab and woke up confused and upset.

Justice Duncan Beveridge wrote:

…there was ample circumstantial evidence that would permit a trier of fact to infer that the complainant did not consent or lacked the capacity to do so.

THE CAPACITY TO CONSENT

The trial judge or jury must determine if it has been established beyond a reasonable doubt that the complainant did not consent, or lacked the capacity to consent. In the Court of Appeal decision in this matter, Justice Beveridge set out the test for determining whether a complainant has the requisite capacity to consent.

In order to prove that the complainant did not have the required capacity to consent, the Crown must establish beyond a reasonable doubt that the complainant did not have an operating mind capable of:

  • appreciating the nature and quality of the sexual activity; or
  • knowing the identity of the person or persons wishing to engage in the sexual activity; or
  • understanding he/she could agree or decline to engage in, or to continue, the sexual activity.

In cases where drugs or alcohol are involved and the complainant has little or no memory of the event, difficulties arise in determining whether the complainant had the capacity to consent. Absent direct evidence from the complainant that he/she did not consent, the judge or jury must rely on circumstantial evidence to determine the absence of consent.

WHAT HAPPENS NEXT?

A new trial was ordered by the Court of Appeal. The date for the new trial has not been set. We will provide updates in this blog as new developments regarding this case become available.

In the meantime, 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 have a 24-hour phone service for your convenience.

Acquittal Upheld for Ontario Teacher Who Secretly Videotaped Female Students

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal upheld a trial court’s decision to acquit a teacher who used a camera pen to video record the chest and cleavage of his female students. The top court in Ontario found that although the recording had been done for sexual purposes and was therefore inappropriate, the students had no reasonable expectation of privacy.

WHAT HAPPENED?

High school teacher, Ryan Jarvis, used a camera pen to video record the chest and cleavage of female students and one female teacher. The secret recordings were made in various locations in and around the school and involved 27 female students aged 14 to 18. Jarvis was observed by the principal of the school talking to a female student while holding a pen with a flashing red light at its top. The principal seized the pen and sent it to the police. The police found several recordings of female students focused on their breasts stored on the pen.

Jarvis was charged with voyeurism under section 162(1)(c) of the Criminal Code of Canada (“CC”).

In November 2015, Superior Court Justice Andrew Goodman found Jarvis not guilty of that offence. Justice Goodman held that Jarvis’ behaviour had been “morally repugnant and professionally objectionable”, but he did not find that the videos were sexually motivated.

The Crown prosecutor appealed this ruling and argued that Jarvis’ behaviour was sexually motivated since the subjects were all females and the camera was deliberately focused on their breasts.

The Court of Appeal was unanimous in concluding that the recording was both “surreptitious” and “done for a sexual purpose”. However, the majority of the Court found that the recording was made under circumstances that did not give rise to a reasonable expectation of privacy and therefore upheld Jarvis’ acquittal at trial.

The majority of the Court stated “that we live in an open society where visual interaction is part of everyday life and is valued” and that students know they can be observed in places where they gather.

If a person is in a public place, fully clothed and not engaged in toileting or sexual activity, they will normally not be in circumstances that give rise to a reasonable expectation of privacy.

WHAT IS VOYEURISM?

The criminal offence of voyeurism was added to the CC in 2005 to address public concerns that technology could be used to easily spy on individuals for sexual purposes.

According to section 162 of the CC, the offence of voyeurism can be committed in two ways, either through observation or by visual recording.

There are two separate conditions that must exist in order to be convicted of the offence of voyeurism:

  • the “surreptitious” nature of the observation/recording; and
  • the reasonable expectation of privacy.

The secret observation or recording must capture the image of a person’s genitals and/or breasts or sexual activity, or the observation/recording must occur for a sexual purpose.

It is also a crime to print, copy, publish, distribute, circulate, sell, advertise or make available the recording or image that was secretly obtained.

A secret or “surreptitious” recording has been interpreted by the courts using its ordinary dictionary meaning.   Some examples of surreptitious recordings that have been prosecuted as voyeurism include:

  • Video images captured by a camera concealed in a stepdaughter’s bedroom;
  • Video recording of teenage girl in a hotel shower by a camera concealed in a shaving bag;
  • Video images captured by a camera hidden in a wastebasket in an office washroom; and,
  • Video images of a man at a urinal in an office washroom taken through a cubicle.

Voyeurism is considered a hybrid offence. If the Crown proceeds by way of indictment (most serious), the maximum sentence is five years imprisonment. If the Crown proceeds by summary conviction, the maximum sentence is six months imprisonment.

A person convicted of voyeurism will be placed on Canada’s sexual offender registry for at least 10 years. A person convicted of multiple counts of voyeurism will placed on the registry for life.

If you are facing voyeurism charges, or charges related to any other sexual offences, or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. For your convenience, we offer 24-hour phone services. We are available when you need us most.

Appeal Court Upholds Parents’ Conviction in Son’s Meningitis Death

Written on Behalf of Affleck & Barrison LLP

A panel of Appeal Court judges in Alberta dismissed the appeal of a couple who were found guilty of failing to provide the necessaries of life to their 19 month old son, who died of meningitis in 2012.

WHAT HAPPENED?

In 2016, David and Collet Stephan were convicted by a jury for failing to provide the necessaries of life in their son Ezekiel’s 2012 death. They had treated their son with natural remedies rather than taking him to a doctor when he had become ill.

A panel of Appeal Court judges in Alberta dismissed the appeal. Justice Bruce McDonald, writing for the majority, wrote,

This evidence supports the conclusion that they actively failed to do what a reasonably prudent and ordinary parent would do.

During the trial, jurors heard evidence that the Stephans used natural remedies and homemade smoothies containing hot pepper, ginger root, horseradish and onion rather than seek medical care. Ezekiel became too stiff to sit in his car seat and had to lie on a mattress when his father drove him from his home to a naturopathic clinic to pick up additional herbal supplements.

The Stephans did not call for medical assistance until their son stopped breathing. He was then rushed to a local hospital, but died after being transported by air ambulance to a Children’s Hospital in Calgary.

THE TRIAL AND APPEAL

According to the Stephans’ lawyers, the trial was a “battle of experts”. The Stephans argued that the convictions should be overturned because the trial judge erred in allowing too many Crown experts to testify, the medical jargon confused jurors, and the defence expert’s testimony was restricted. The majority of the Appeal Court dismissed all grounds of appeal.

The Stephans’ lawyers also argued that their clients’ Charter rights had been violated because of the unreasonable delay between the time they were charged to the date they were convicted. This aspect of the appeal was also dismissed with the Court finding the delay was not unreasonable.

DISSENTING OPINION ON APPEAL

Justice Brian O’Ferrall wrote a dissenting opinion in favour of a new trial. He felt that the trial judge’s charge to the jury was confusing and misleading. Justice O’Ferrall did, however, agree with the majority of the Court in finding that the Stephans’ right to be tried within a reasonable time had not been infringed.

SENTENCING

David Stephan was sentenced to four months in jail and his wife, Collet, was sentenced to three months of house arrest. They were both ordered to complete 240 hours of community service. The trial Judge also ordered that the Stephans’ three other children see a medical doctor at least once a year.

WHAT COMES NEXT?

Given that one of the three judges on the appeal panel dissented, the Stephans have an automatic right to have the Supreme Court of Canada hear arguments in their case. The Supreme Court has set a tentative date to hear arguments on May 15, 2018 for the couple.

The Crown prosecutors have filed their own appeal where they will argue that the couple should face stiffer sentences before another panel of Court of Appeal judges. A date for these arguments has not yet been set.

NECESSARIES OF LIFE

The Criminal Code of Canada requires that every parent, foster parent, or guardian is required to provide necessaries of life for a child under the age of 16 years of age.

A parent is responsible for the care, supervision, maintenance and support of his/her children. At a minimum, this obligation entails the provision of food and shelter. The Courts have also found that the failure to seek medical attention can be categorized as a “failure to provide the necessaries of life”.

The prosecution, in a case such as the Stephans, is required to prove that:

  1. The accused was under a legal duty to provide the necessaries of life to a child under the age of 16 years;
  2. The accused failed to provide the necessaries of life to a child under the age of 16 years;
  3. This failure endangered the child’s life or was likely to cause the health of that child to be endangered permanently; and,
  4. The conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, or guardian in the same circumstances.

We will continue to follow the developments in this case and will provide updates on this blog as they become available.

In the meantime, if you are facing charges or have questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. For your convenience, we offer 24-hour phone services. We are available when you need us most.

 

Supreme Court of Canada Finds That Some Texts Are Considered Private

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about the topic of whether there is a reasonable expectation of privacy in text messages. The Supreme Court of Canada (“SCC”) ruled last week that Canadians can expect the text messages that they send to remain private even after they reach their destination (i.e. depending on the circumstances, there may be a reasonable expectation of privacy in text messages even after they have been sent to another person).

In a 5-2 ruling, the SCC in R. v. Marakah set aside the firearms convictions of a man whose incriminating text messages were found on the phone of an alleged accomplice by Toronto police.

WHAT HAPPENED?

An Ontario man, Nour Marakah, sent text messages regarding illegal transactions in firearms to his accomplice, Andrew Winchester. The police obtained and executed warrants for both Marakah’s and Winchester’s homes. While conducting the search, the police found Marakah’s Blackberry and Winchester’s iPhone and proceeded to search both devices, which revealed the incriminating text messages. These messages were then used as evidence to charge Marakah.

At trial, Marakah argued that the messages should not be admitted as evidence against him because they were obtained in violation of his rights against unreasonable search or seizure under the Canadian Charter of Rights and Freedoms (“Charter”).

The Ontario application judge found that the warrant for Marakah’s home had been invalid and that the text messages recovered from his own Blackberry could not be used against him. However, the court admitted the text messages from Winchester’s iPhone as evidence. Based on these messages, Marakah was convicted of multiple firearms offences.

The Court ultimately found that while someone who sends a text message has a reasonable expectation of privacy, this expectation ends when the message reaches the intended recipient.

Marakah appealed to the Court of Appeal, where he was unsuccessful. The majority of the Court agreed that Marakah could have no expectation of privacy in the text messages retrieved from Winchester’s iPhone, and therefore could not make a case against their admissibility. Marakah appealed further to the SCC.

SUPREME COURT OF CANADA RULING

The SCC allowed Marakah’s appeal, set aside the convictions and entered acquittals on all charges against him.

The Court found that Marakah had a reasonable expectation of privacy concerning his text messages. Therefore, the texts used as evidence to convict him had violated his guaranteed right to be protected against unreasonable search or seizure under the Charter.

In this case, Marakah was found to be the author of the text messages that he expected to remain private.  He had asked the recipient of the messages, Winchester, on numerous occasions to delete the messages. Marakah’s conviction was thrown out because the search was unreasonable and violated his right under section 8 of the Charter.

Chief Justice Beverly McLachlin, writing for the majority, stated,

I conclude that depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that, in this case, Mr. Marakah had standing to argue that the text messages at issue enjoy s. 8 protection.

The SCC did set out a four-step test to determine if and when one can reasonably expect privacy:

  1. What was the subject matter of the alleged search?
  2. Did the claimant (i.e. the person claiming privacy) have a direct interest in the subject matter?
  3. Did the claimant have a subjective expectation of privacy in the subject matter?
  4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

The SCC found that Marakah had standing to challenge the search based upon the following:

  1. The subject matter of the search was the electronic conversation between Marakah and Winchester;
  2. Marakah had a direct interest in the subject matter;
  3. Marakah subjectively expected the subject matter to be private;
  4. Marakah’s expectation was objectively reasonable.

The Court concluded that without the incorrectly admitted text message evidence, which was found to be inadmissible, Marakah would have been acquitted.

CAUTION BY THE SUPREME COURT OF CANADA

The SCC did caution that the expectation of privacy is not automatic and depends upon the facts of each case and that the outcome may be different in other circumstances. Chief Justice Beverley McLachlin noted,

This is not to say, however, that every communication occurring through an electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing to make arguments regarding s. 8 protection. This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards.

Therefore, we must expect that the law will adapt to changes and developments in technology and communication over time.   As these changes take place in the law, we will continue to provide updates through this blog.

To speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, call Affleck & Barrison at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7.

 

 

What is “Wilful Blindness” in Criminal Law?

Written on Behalf of Affleck & Barrison LLP

In a recent decision, R. v. Downey, the Court of Appeal could find no error by the trial judge in convicting the accused of various firearm related offences arising from having imported three guns into Canada. The appellant argued that the trial judge erred in applying the doctrine of wilful blindness.

WHAT HAPPENED?

Three guns were found hidden in the vehicle that Michelle-Ann Downey drove across the border from Detroit, Michigan into Canada.

The original trial judge concluded beyond a reasonable doubt that Downey had been “wilfully blind” regarding the nature of what she was transporting into Canada.

On appeal, Downey’s counsel argued that the trial judge had erred in his application of the doctrine of wilful blindness. Counsel argued that there was no evidence from which to draw the inference that Downey had suspected that she had guns (rather than some other criminal contraband) in her vehicle. The Court of Appeal disagreed that the trial judge made this error.

WHAT DOES IT MEAN TO BE WILFULLY BLIND?

In Canada, a crime is defined by two things:

  1. the act itself; and,
  2. the intention behind the act.

Wilful blindness applies to the accused’s state of mind. It describes a situation where someone tries to escape criminal liability by intentionally overlooking the obvious.

The Court of Appeal in Downey specifically wrote that “[w]ilful blindness acts as a substitute for actual knowledge”. The court relied on the words of Charron J. in the Supreme Court of Canada decision of 2010 in R. v. Briscoe:

The doctrine of willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.

Wilful blindness has also been described as the state of “deliberate ignorance” of a certain fact. It is not enough that the accused failed to inquire about a certain fact, but instead the accused intentionally and deliberately did not inquire.

DETERMINING WHETHER THERE HAS BEEN WILFUL BLINDNESS

In applying the doctrine of wilful blindness, one does not question what a reasonable person would have done in the circumstances. Instead, one must find that the accused deliberately refrained from making inquiries so as not to have his/her suspicions confirmed.

A court may make the following inquiries when considering the doctrine of wilful blindness:

  • Has the accused’s suspicion been triggered about a fact that would reveal a prohibited consequence or situation?
  • Is the accused’s suspicion about the prohibited consequence or situation probable or at least likely to occur?
  • Did the accused inquire about the suspicion?
  • If the accused inquired about the suspicion did the accused have any remaining suspicion after the inquiry?
  • If the accused had any remaining suspicions after the inquiry, did the accused make further inquiries?

THE DECISION

In the case of R. v. Downey, the trial judge found that the accused’s suspicion had been aroused to the point that there was a need for inquiry, but she deliberately did not inquire so as not to learn the truth. The trial judge gave these examples:

  • Her evidence was inconsistent with text messages located on her phone;
  • She knew it was not illegal to bring $4,000 into the country, yet she told the customs officials she was not carrying cash;
  • It was implausible that she thought she would be paid $1,000 for smuggling $4,000 into the country; and,
  • She admitted that her conscience was telling her she was doing something wrong.

The Court of Appeal dismissed the conviction appeal and dismissed the sentence appeal by concluding that there was no basis to interfere with the sentence of two years less a day.

If you have questions regarding your legal rights, contact the criminal lawyers at Affleck & Barrison LLP. To speak with an experienced criminal defence lawyer, please call us at 905-404-1947 or contact us online for a free consultation.

Ontario Court of Appeal Upholds Adult Sentence

Written on Behalf of Affleck & Barrison LLP

Ontario’s Court of Appeal has upheld an adult sentence against Christopher Ellacott who raped and murdered a senior citizen when he was 15 years old.

WHAT HAPPENED?

The crime was unsolved for almost three decades. The only evidence police had was a thumbprint found at the murder scene. A random test at a fingerprinting convention allowed police to link a thumbprint from the crime scene to Ellacott. Police then secretly obtained DNA samples from him, and testing confirmed the DNA matched semen found at the crime scene.

LIFE SENTENCE UPHELD

A jury in Sarnia, Ontario convicted Ellacott in April 2012. He was sentenced as an adult in March 2013. Ellacott was sentenced to life without parole eligibility for seven years and a lifetime supervision order.

Ellacott abandoned his conviction appeal, but appealed his sentence. Ellacott disputed the sentence by arguing that he should have been sentenced as a youth. A youth sentence would mean he would have received a maximum six years in jail and a four-year period of supervision.

The Appeal Court disallowed the argument that Ellacott had been less morally culpable because he had been only 15 years old when he killed his victim.

In upholding the original life sentence, the Court of Appeal found that the punishment given to Ellacott was reasonable and proportionate given the savage killing.

The Court said,

He committed an act of extreme violence against an elderly, vulnerable neighbour who until then had no known reason to fear him. … He sexually assaulted and murdered his elderly, vulnerable neighbour. He went on as though nothing had happened, avoiding justice for nearly 30 years. There is no explanation for his crime; no sense of what motivated him to have committed so heinous an act. 

IMPOSING ADULT SENTENCES ON YOUTHS 

Section 72(1) of the Youth Criminal Justice Act provides guidance to the Courts in imposing an adult sentence. It states:

72(1)  The youth justice court shall order that an adult sentence be imposed if it is satisfied that

  • the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
  • a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

Thus, in order to have the accused sentenced as an adult, the Crown had the onus to satisfy a two prong test:

  • establish the presumption of diminished moral blameworthiness had been rebutted; and
  • establish that a youth sentence would not be sufficient to hold the accused accountable for his behaviour.

The Court of Appeal held that in the Ellacott case the sentencing judge considered all of the required factors, including:

  • the seriousness of the offence;
  • circumstances of the offender;
  • the level of moral judgment demonstrated in the planning and implementation of the offence; and,
  • the youth’s role in carrying out the offence.

The Court of Appeal concluded that the sentencing judge had not failed to consider whether the presumption of diminished moral blameworthiness was disproven.

The Court of Appeal ultimately found that even though the sentencing judge had mistakenly used Ellacott’s testimony and denial of guilt as aggravating factors, the error was found to be of no consequence.   Ellacott had been properly sentenced even though the Superior Court Justice had erred when he used Ellacott’s testimony and his denial of guilt as aggravating factors in his decision. “[T]he sentence imposed is a proportionate sentence that achieves accountability for the serious crime the appellant committed.”

If you have questions about young offenders, sentencing or your rights, contact the Oshawa criminal lawyers at Affleck & Barrison LLP. We represent young people in Oshawa and throughout the Durham Region who are facing charges. We offer a 24-hour phone service for your convenience.  Contact us online or at 905-404-1947.

Pending Sexual Assault Appeal Generates Debate about Complainants Retaining a Criminal Lawyer

Written on Behalf of Affleck & Barrison LLP

In 2016, Mustafa Ururyar, a York university student, was found guilty of sexually assaulting a fellow student and sentenced to 18 months in prison, three years of probation, and, in an unprecedented move, was ordered to pay $8,000 in restitution to the complainant for her legal bills.

While restitution orders can sometimes be made by judges in criminal cases to cover things such as therapy bills and lost wages, this marked the first time that an order has been made to cover legal fees.

The original decision is now being appealed.  The outcome of the appeal will likely have far-reaching consequences for both those accused of an offense, and well as complainants, and has already generated debate about the importance of complainants retaining their own legal counsel, particularly in cases involving sexual assault.

Appeal

The Criminal Law Association

The Criminal Law Association (CLA) has been permitted to intervene in the pending appeal and are expected to argue that is it not appropriate for a criminal court to order restitution for a complainant’s legal fees.

The CLA believes that this would be unfair since accused individuals who are ultimately acquitted do not have recourse to have the Crown (i.e.- prosecution) reimburse their legal fees. Additionally, the Association points to the fact that there are existing resources in place, such as the Victim Witness Assistance Program, that are intended to help complainants through the legal system.

The CLA’s Director stated that the complainant could have asked Crown counsel to answer any questions that she may have had about the proceedings, or about her legal rights, and that if she had any questions subsequent to that, she was free to retain counsel, however, to have the accused then pay her legal bills “wasn’t necessary”:

The general policy that an accused person bears his or her own costs, regardless of the outcome of the litigation, should also apply to a victim who chooses to avail his or herself of counsel.

Defense Counsel

Ururyar’s lawyers are expected to argue that the section of the Criminal Code that addresses damages does not address a complainant’s legal fees, which were “incurred at her own discretion”. If a complainant or an accused who has been acquitted seeks monetary compensation, that individual must go through civil court in order to obtain said compensation, therefore, the issue of restitution for legal fees ought to be dealt with via civil courts, and not criminal courts.

Further, defense counsel has stated that the original trial judge arrived at the $8,000 restitution sum arbitrarily and did not address Ururyar’s ability to may (a necessary requirement in restitution orders).

The Complainant

Mandi Gray, who chose not to have her identity masked by a publication ban, has stated that hiring a lawyer was the best decision she made, and one which she views as “completely necessary”. Gray’s counsel, a criminal defense lawyer, will be seeking leave to intervene in the appeal. He has pointed to the fact that courts, appropriately, order restitution for therapy where an accused is found guilty. Like therapy, legal representation is another “key service” that can help complainants cope with a legal process that can be demeaning, isolating, and traumatic.

Gray herself has stated that:

Without legal counsel, I would have been up against the university and the criminal justice system without a single ally. Rape costs a lot more than just emotional and career opportunities. . .  I hope future victims of the crime are empowered to retain legal counsel. This is a matter of access to justice and who should be paying for it.

The appeal is scheduled to take place on March 14th. We will continue to follow developments in this matter and will blog updates when more information becomes available.

If you are facing sexual assault or related charges, or have been a victim of an assault, contact the skilled Oshawa criminal lawyers at Affleck Barrison online or at 905 404 1947 for legal guidance. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.

New Brunswick Appeal Court Overturns Murder Conviction

Written on Behalf of Affleck & Barrison LLP

New Brunswick’s highest court recently quashed Dennis Oland’s second-degree murder conviction in the death of his father, stating that the jury had sufficient evidence to reasonably convict Dennis Oland of murder, but had been improperly instructed on what was needed to arrive at that conclusion.

Error by Original Trial Judge

In a 41-page decision written by Chief Justice Ernest Drapeau on behalf of a three-judge panel, the Chief Justice stated that the original trial judge had erred in his instructions to the jury on an issue of “significant importance.”

The ultimate verdict was not unreasonable, but the case was not one “where the evidence pointing to guilt is so overwhelming that the outcome would necessarily have been the same, with or without the [trial judge’s] error,”

Chief Justice Drapeau stated that:

No accused is entitled to a perfectly instructed jury. However, the appellant, like all who elect to be tried by judge and jury, had the right to a properly instructed jury

Key Piece of Evidence: Hugo Boss Jacket

The error pertains to a key piece of evidence that had been used against Oland: a brown Hugo Boss sports jacket. Oland had told police that he had been wearing a navy-blue blazer when he visited his father at his office (where he was later found bludgeoned to death). Oland was the last known person to have seen his father alive. It later emerged that Oland had actually been wearing a brown Hugo Boss sports jacket when he visited his father.

A brown sport jacket was seized from Oland’s bedroom closet a week after his father’s death. Forensic evidence shoes that the jacket (which had been dry cleaned) had four small bloodstains matching his father’s DNA on it.

The original trial judge had informed the jurors that if they found Oland’s statement about which jacket he was wearing was an “intentional lie” related to the commission of the murder, they could consider this evidence, along with all other evidence in the case, in making their ultimate decision.

Chief Justice Drapeau stated that these instructions were “erroneous in law” and prejudicial to the defence.

The Appeal Court believes that there was “independent” evidence at the trial to suggest that Oland’s “false statement” to St. John police about what jacket he had been wearing the night his father was murdered was “concocted”.

The Court stated that the jury could have reasonably concluded that Oland’s story that he had been wearing a navy-blue blazer when he visited his father, instead of the brown sports jacket that he had actually been wearing was “a lie and not an honest mistake as he alleged”. In addition, there had been evidence from which the jury could have inferred that Oland was involved in the delivery of the blood-stained sport jacket to the dry cleaners.

The jury should have been told that it cannot rely on a deliberately false statement as a piece of circumstantial evidence in favour of the prosecution unless there was independent evidence that the statement had been made up. In addition, any such independent evidence should have been pointed out to the jury.

Chief Justice Drapeau stated that he expects the issue will be “fully debated” at Oland’s retrial, and that the burden of presenting any independent evidence will be on the prosecutors.

Request for Supreme Court of Canada Review

The court’s written reasons in support of their decision to quash the guilty verdict were not released until January 11. Prior to the release of the written decision, prosecutors had announced that they plan to ask the Supreme Court to Canada to review the decision to quash.

In order to obtain leave to appeal to the Supreme Court, prosecutors must successfully argue that the legal issues involved are of national importance and that they are worthy of review by the highest court in the land.

Waiting for the appeal court’s written decisions may help the prosecutors with their application for leave to appeal.  Generally, parties have 60 days from the date of a decision to file an application for leave. In this instance, that 60-day period lapsed on December 23, 2016. However, both prosecutors and Oland’s defense team had filed a joint request earlier in December seeking an extension. It remains to be seen what will happen with the status of the application.

Retrial

A retrial will not be scheduled until the Supreme Court decides whether it will agree to the extension requested by the prosecution and defense, and hear the appeal.

The Court is expected to make a decision as soon as April. If a new trial proceeds, it likely will not be heard until 2018. In the interim, Oland is out on bail.

We will continue to follow developments in this matter and will blog updates as they become available.

If you have questions about your rights, contact the skilled Oshawa defense 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.