Appeal

Alberta Appeal Court Ruling Confirms Automatic Registration for Convicted Sex Offenders

Written on Behalf of Affleck & Barrison LLP

Alberta’s highest court has ruled that automatically adding the names of sex offenders to a national sex offender registry for life does not violate the offender’s rights under the Charter of Rights and Freedoms.

The Alberta Court of Appeal’s split decision held that the current federal law requiring the mandatory placement of those convicted of more than one sex offence to the national sex offender registry is constitutional.  However, given the 2-1 ruling on appeal, Eugen Ndhlovu has the right to appeal this decision to the Supreme Court of Canada.

THE HISTORY AND THE COURT OF APPEAL DECISION

Last fall, the Alberta appeal court heard submissions about whether a judge should have the discretion to place an offender on Canada’s sex offender registry.  The court also heard submissions from counsel regarding whether or not placing an offender with more than one sexual offence conviction on the sex offender registry is a violation of his/her Charter rights.

In 2011, Eugen Ndhlovu (“Ndhlovu”) attended a party where he sexually touched two women.  Ndhlovu pled guilty to two counts of sexual assault and was given a six-month jail sentence and three years probation.  The sentencing judge found Ndhlovu to be remorseful and considered to be at a low risk of reoffending.  Ndhlovu was to be automatically placed on the sex offender registry for life according to sections 490.012 and 490.013(2.1) of the Criminal Code .  However, the sentencing judge found that the legislation was “overbroad and grossly disproportionate” and violated Ndhlovu’s Charter rights to life, liberty and security of the person.  The sentencing judge also proceeded to strike down these sections of the Criminal Code as she determined they could not be saved under section 1 of the Charter.

Alberta’s Crown prosecutor disagreed with this decision and launched an appeal arguing that the Criminal Code sections are not overbroad, that Parliament is entitled to drawn an inference that multiple convictions increase the risk of re-offending, and that the reporting requirements for the national sex offender registry are not onerous or invasive.

Ndhlovu’s lawyer argued that it is not appropriate to place every offender with more than one sexual offence conviction on the national registry and that the court should be given the right to weigh the risk to public safety with the individual’s right to liberty.

Two of the three judges on the Court of Appeal panel found that the sentencing judge erred in finding that Ndhlovu had established a deprivation of his rights under section 7 of the Charter to life, liberty or security of the person and that the sections of the Criminal Code in question was constitutionally valid.  Therefore, the appeal court held that Ndhlovu’s Charter rights were not breached, the finding that sections 490.012 and 490.013(2.1) were of not force and effect was to be set aside, and Ndhlovu was required to be registered and report under the Sex Offender Information Registration Act (“SOIRA”).

WHAT IS CANADA’S NATIONAL SEX OFFENDER REGISTRY?

Canadian courts have required those convicted of designated sex related crimes to be registered in the National Sex Offender Registry (“Registry”) since 2004.  However, unlike the United States, the Canadian Registry is not designed for use by the public. 

The National Sex Offender Registry is a registration system for sex offenders who have been convicted of designated sex crimes and ordered by the courts to report to the police annually. The Registry is maintained by the RCMP and is available to all Canadian police agencies.  The purpose of the database is to provide police services with valuable information that will increase their capacity to investigate and prevent crimes of a sexual nature. 

In Canada, a person convicted of a designated offence must be placed on the Registry.  Designated offences are listed in section 490.011(1) of the Criminal Code of Canada, which include the following sex crimes:

  • Sexual assault;
  • Sexual interference;
  • Invitation to sexual touching;
  • Sexual exploitation;
  • Incest;
  • Bestiality;
  • Child pornography (making, possession, distribution);
  • Parent or guardian procuring sexual activity;
  • Aggravated sexual assault;
  • Sexual assault with a weapon, threats to a third party or causing bodily harm;
  • Indecent exposure;
  • Select offences where it can be proven that the offence was committed with the intent to commit an offence of a sexual nature.

The SOIRA does not apply to a young person convicted of a designated sexual offence unless the young person is sentenced as an adult.

In 2011, two notable changes were made to the law governing sex crimes.  One of the changes was that the SOIRA was amended to remove judicial discretion with respect to whether an individual who committed one of the designated sex crimes must be placed on the Registry.  The other amendment required that a lifetime SOIRA order was made mandatory for certain situations, including when an accused person is convicted of more than one sexual assault.  These were the two specific issues that were considered by the appeal court in Ndhlovu’s appeal.

We will continue to follow this case and will report in this blog if Ndhlovu decides to appeal this decision to the Supreme Court of Canada.

If you are facing criminal charges for sex related offences or have any other questions or concerns about your legal rights, please contact 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.

Requesting Enhanced Pre-Sentencing Reports: R. v. Morris Appeal

Written on Behalf of Affleck & Barrison LLP

The long awaited appeal in the 2018 case of R. v. Morris is expected to be argued before the Ontario Court of Appeal sometime this fall.  The case, which was to be heard last September 2019 (which we previously blogged about), was delayed due to the death of a key lawyer and COVID-19.

The case includes numerous prominent human rights, legal and ethnic organizations that have been granted special status to act as interveners on the appeal.  The interveners will speak to the court about the value in admitting evidence included in enhanced pre-sentencing reports during the sentencing hearing that address unique historical and systemic factors.  The organizations include the Criminal Lawyers’ Association, the Canadian Civil Liberties Association, the Canadian Association of Black Lawyers, Urban Alliance on Race Relations and the David Asper Centre for Constitutional Rights. 

Other interveners, which include the South Asian Legal Clinic of Ontario, Chinese and Southeast Asian Legal Clinic, Colour of Poverty/Colour of Change Network, Aboriginal Legal Services, the Canadian Muslim Lawyers’ Association, will also be asking the court for these “cultural assessments” to apply to all minority groups, not just Black offenders.

MORRIS’ TRIAL AND SENTENCING

Following a jury trial, Kevin Morris (“Morris”) was convicted of possession of an unauthorized firearm, possession of a prohibited firearm with ammunition and carrying a concealed weapon. 

In July 2018, Ontario Superior Court Justice Shaun Nakatsuru sentenced Morris to one year in jail.  The Crown prosecutor had requested that the court put Morris in jail for 4 to 4 ½ years.  Morris’ lawyers asked for a one year sentence, minus credit for various Charter breaches that were found.

Justice Nakatsuru applied the same analysis to Morris’ case as he did to one of his earlier decisions in the case of R. v. JacksonHe stated:

The criminal law has recognized that there are cases where, in order to determine a fit and proportionate sentence, consideration must be given to an individual’s systemic and social circumstances.  These circumstances may extend beyond a person who is being sentenced to include factors such as systemic discrimination and historical injustice. 

Justice Nakatsuru acknowledged that criminal courts have recognized systemic discrimination and historical injustice in the case of Indigenous offenders.  He stated that the consideration of social context in a sentencing decision is allowed further to section 718.2(e) of the Criminal Code.  Thus, consideration of the social history of Black Canadians is also allowed in the context of sentencing. 

Justice Nakastsuru’s sentencing decision was in part influenced by an enhanced pre-sentencing report submitted by Morris’ lawyers on his behalf.

During the sentencing hearing, Justice Nakatsuru was presented with two reports on Morris’ behalf.  One report dealt with anti-Black racism in Canada and the other one dealt with Morris’ social history.  Although the Crown prosecutor objected to the admission of the first report, Justice Nakatsuru found the report to be useful.  The report concluded that young Black Canadian men in particular feel discrimination in the criminal justice system and are overrepresented in the practices by local police and in the jails.

Justice Nakatsuru also admitted the second report submitted by the defence into evidence, which described the impact that systemic racism had on Morris’ experiences inside and outside of the justice system.  He stated that judges can take a broader view of the materials that should be admissible.

THE UPCOMING APPEAL

The Crown is challenging what they believe was a lenient sentence given to Morris by taking this case before the Ontario Court of Appeal.  The issue before the court is how much weight should be given to systemic racism when faced with sentencing Black offenders. 

It is the Crown prosecutor’s position that there was no clear evidence of a link between systemic discrimination and the crimes Morris committed.  Furthermore, given the rise in gun violence in Toronto this is not the time to show leniency for this type of behaviour.

Although the courts consider the systemic disadvantages Indigenous offenders experience when sentencing (called the Gladue principle), there is no such principle available to Black offenders.  This may change in Ontario depending upon the result of this appeal. 

THE SENTENCING AND PAROLE PROJECT

A new organization, the Sentencing and Parole Project (“SPP”), is dedicated to encouraging Ontario courts to consider the impact of systemic racism when sentencing Black offenders.  The organization is focused on the creation of “enhanced pre-sentencing reports”, similar to Gladue reports for Indigenous offenders.  These reports will explore an offender’s background and use established research to analyze how experiences shaped by systemic racism should weigh in the context of sentencing. 

These cultural assessment reports would be prepared by experienced social workers following extensive interviews with the offender, family members and close friends, and will include recommendations on programs and other supports that could help the offender’s rehabilitation.

The organization officially launched in May and has been involved in 10 sentencing decisions dating back to 2018.  Due to lack of funding, SPP is selective in deciding on appropriate clients to provide their services to.  SPP would like to see the practice of the “cultural assessments” or enhanced pre-sentencing reports instituted across Canada and funded by the justice system.

SPP maintains that an enhanced pre-sentencing report is an important element for sentencing judges and parole boards to consider the influence of anti-Black racism as a mitigating factor when considering a fair sentence.

We will continue to follow this case and will report the results of this appeal decision in this blog when it becomes available.

In the meantime, if you have been charged with weapons offences or have questions regarding your legal rights, please contact the experienced criminal lawyers at 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.

Appeal Court Upholds Decision Finding Man with HIV Guilty of Aggravated Sexual Assault

Written on Behalf of Affleck & Barrison LLP

An HIV-positive man had his aggravated sexual assault conviction upheld by the Ontario Court of Appeal.

In October 2013, the man, identified as N.G., had been advised to tell prospective partners that he was HIV-positive.  He proceeded to have sex repeatedly with three women over several months and failed to inform them of his medical history.

N.G. was charged with multiple offences occurring between July 2013 and April 2014, including three counts of aggravated sexual assault.  At the trial, the question was whether N.G.’s failure to disclose his HIV status prior to intercourse constituted fraud and made the women’s consent ineffective. 

On November 19, 2017, Superior Court Justice Edward Gareau convicted and sentenced N.G. to three and a half years in prison.  N.G. appealed his conviction and sought to introduce fresh evidence to prove that the use of a condom alone prevents the possibility of transmission of HIV during sexual intercourse. 

APPEAL COURT ASKED TO RULE THAT CONDOM USE IS ENOUGH TO PREVENT THE TRANSMISSION OF HIV

N.G. asked the appeal court to resolve the issue as to whether, at law, the use of a condom alone is enough to remove HIV non-disclosure cases from being criminally prosecuted.

The leading 2012 Supreme Court of Canada case, R. v. Mabior, provides the legal threshold triggering a duty to disclose.

This case holds that an accused may be found guilty of aggravated sexual assault if he or she fails to disclose an HIV-positive status to a sexual partner in the case when consent to the sexual activity would not have been given had the partner known about the HIV-positive status and there is a realistic possibility of transmission of HIV during the sexual activity.  The Supreme Court of Canada held that a realistic possibility of HIV transmission is negated when both the non-disclosing individual’s viral load (the quantity of HIV circulating in his or her blood) is low and a condom is used during sexual activity. 

In N.G.’s case, the trial judge held that condoms were not enough as he did not have a low viral load, therefore increasing the possibility of transmission even with the use of a contraceptive. 

At his appeal, N.G.’s lawyers argued that new evidence demonstrates that condoms are sufficient to prevent the transmission of HIV even in cases where an individual’s viral load is not low.  N.G. requested that the conviction be overturned and that the common law should reflect this new information.

The Appeal Court rejected N.G.’s arguments that the use of condoms alone are sufficient to prevent transmission of HIV.    

Justice Fairburn stated:

There is no dispute that a perfectly functioning latex condom provides a perfect barrier to HIV transmission.  … But, as the Supreme Court of Canada also understood,  condoms do not always work as they are intended to work.  …  Indeed, from time-to-time despite the very best intentions and efforts of sexual partners, condoms sometimes fail to work.

LAWMAKERS ARE CALLED UPON TO MAKE LEGISLATIVE CHANGES BASED ON SCIENCE AND END THE CRIMINALIZATION OF THOSE LIVING WITH HIV

The Canadian HIV/AIDS Legal Network, an intervener on the appeal, is concerned about the stigma surrounding the HIV virus.  On behalf of N.G., this organization claimed that the offence of aggravated sexual assault and the penalty imposed were disproportionate in a case of consensual sexual activity and where an individual had taken all precautions to avoid transmission.

This organization maintains that scientific experts across Canada agree that HIV transmission is not possible while using a condom correctly during intercourse. 

In a statement on the Canadian HIV/AIDS Legal Network’s website, the organization states:

The Court’s decision underscores the importance of the federal government bringing forward legislative changes to the Criminal Code to prevent the continued misuse of criminal charges that are contrary to science, lead to unjust convictions and ultimately undermine public health.  …  It’s time for the law to catch up with the science and recognize that condoms can also negate a realistic possibility of transmission.

The statement also mentions that in June of 2019, the House of Commons Standing Committee on Justice and Human Rights recognized a need for reforms to the Criminal Code limiting the prosecution of cases to only those dealing with HIV non-disclosure and the actual transmission of the disease.  To date, these changes have not been implemented.

We will continue to follow any developments in the case law or legislation with respect to the criminalization of individuals living with HIV and will report them in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1047.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting their client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Kalen Schlatter Appeals Guilty Murder Verdict Claiming Unlawfully Obtained Evidence

Written on Behalf of Affleck & Barrison LLP

In March 2020, Kalen Schlatter (“Schlatter”) was convicted of first degree murder in the highly publicized death of Tess Richey (“Richey”), and sentenced to 25 years in prison with no parole.

Schlatter was tried before a jury for the first degree murder of Richey in Toronto on November 25, 2017.  Justice Michael Dambrot, in sentencing Schlatter, noted that his “appetite for violent sex” led him to strangle Richey only hours after they met. 

Schlatter has filed a notice of appeal regarding his conviction on the basis that the trial judge made errors in instructing the jurors and admitting evidence at the trial.

WHAT IS AN APPEAL?

In general, an appeal is a request made by a party to a higher court to review a lower court trial or other decision.  In Ontario, the Court of Appeal is the proper forum to review decisions of serious criminal matters.  An appeal from the decision of a trial court judge of the Superior Court of Justice in Ontario is typically heard before a panel of three judges at the Ontario Court of Appeal.

The first step in commencing the appeal process is to file a form called a notice of appeal.  The notice must state what is being appealed, i.e. the conviction, the sentence or both.  The notice must also briefly describe the grounds of the appeal or the mistakes that were allegedly made at the trial.

SCHLATTER’S APPEAL WILL FOCUS ON TRIAL JUDGE’S ERRORS

On appeal, Schlatter will argue that the trial judge gave “unbalanced” instructions to the jurors.  Furthermore, he alleges that the trial judge erred in admitting the evidence of two undercover officers who testified regarding their conversations with Schlatter from adjacent jail cells after his arrest.

In February 2018, Schlatter was arrested and taken to 13 Division where he was booked and placed in one of the cells in the police station.  Two undercover police officers were placed in the cells adjacent to him.  Schlatter had lengthy conversations with both officers over the course of his incarceration. 

At his trial, Schlatter asked the court for a ruling that his right to silence guaranteed under section 7 of the Charter was infringed when he made statements to undercover police officers in adjacent jail cells and that these statements should be excluded from evidence. 

The trial judge heard arguments from counsel for both parties and ultimately ruled that Schlatter’s right to silence was not violated and therefore allowed the statements made to the undercover officers to be entered at the trial.

Justice Dambrot explained the circumstances by which undercover officers can elicit information and how the officers interacted with Schlatter:

An undercover police officer may be placed in the police cells with a detained suspect and make observations.  If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.  But the undercover officer may not actively elicit information in violation of the suspect’s choice to remain silent.

Importantly, UCI did not ask the accused what he had done, but only why he was in police custody.  The natural answer would have been to say that the police thought he had murdered someone, not to give an account of his involvement.  … They did not encourage the accused to keep on telling them about his connection to Ms. Richey or his account of what happened.

UNDERCOVER OFFICER TESTIMONY AT TRIAL

At the trial, one of the officers testified from behind a large black screen to preserve his anonymity regarding his conversations with Schlatter (these conversations were not recorded).  

According to the evidence at trial, Schlatter boasted to the undercover officers about  his ability to pick up women.  He told the officers that he “likes a challenge” and that “sometimes you have to push the boundaries with women to see where it goes”. 

The officer testified:

Mr Schlatter said that what he did was something big…  He then asked us if we know a girl named Tess Richey.

Schlatter told the undercover officers that he had met Richey at a nearby nightclub and as the night progressed he ended up on the street with Richey and her friend.  The friend took a streetcar home and left Schlatter alone with Richey.  Schlatter told the undercoverofficer that he was making out with her in an alley.  He wanted to have sex with her, but she told him she couldn’t because she was on her period.  Schlatter said that Richey was falling over drunk and that he had her up against the wall at the bottom of the stairs.  Schlatter told the officers that they stopped kissing and Richey said she wanted to stay at the bottom of the stairwell, so he left on his own. 

We will continue to follow this criminal case as it makes its way to the Court of Appeal and will provide updates in 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 criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Supreme Court of Canada Clarifies Entrapment by Police in Dial-a-Dope Cases

Written on Behalf of Affleck & Barrison LLP

Canada’s highest court recently released its written decision in a pair of related cases regarding the issue of entrapment.  Javid Ahmad (“Ahmad”) and Landon Williams (“Williams”) were each charged with drug offences after police purchased cocaine from them. 

The Supreme Court of Canada confirmed that police must form a reasonable suspicion that the individual on the phone is dealing drugs before asking to buy drugs.

WHAT HAPPENED?

Toronto police responded to tips to investigate alleged dial-a-dope schemes.  This type of scheme involves a seller communicating with their customers over cell phones and arranging to purchase drugs at an agreed upon location.  In each case, officers called a particular phone number and following a brief conversation requested drugs and arranged a meeting spot to complete the transaction. 

Ahmad and Williams were each arrested and charged with drug-related offences.  Both accused argued at trial that their proceedings should be stayed on the basis of entrapment.

In the case of Ahmad, the police received a tip that “Romeo” was selling drugs over the phone.  Following a short conversation with “Romeo”, a deal was struck to sell the officer cocaine and a location was agreed upon.  The officer met “Romeo” (Ahmad) in person to sell him the cocaine, at which time he was arrested and searched.  At Ahmad’s trial, he was convicted and the judge concluded that he was not entrapped as police had not offered him an opportunity to traffic drugs until their tip had been corroborated during the course of the phone conversation. 

In the case of Williams, police received a tip that “Jay” was selling cocaine.  The officer called “Jay” and arranged a meeting time and place to buy crack cocaine.  The drug deal took place.  Eleven days later, another drug deal was arranged.  A month later, the police arrested Williams.  At Williams’ trial, the judge concluded that he was entrapped because the officer who contacted him provided him with the option to sell drugs before forming a reasonable suspicion that he was drug trafficking.  Thus resulting in a stay of the drug-related charges.

Both Ahmad’s and Williams’ cases were heard together on appeal.  The majority of the Court of Appeal held that where reasonable suspicion relates to the phone number, the police can provide opportunities to commit a crime even if there is no reasonable suspicion about the person who answers the phone.  Therefore, at their appeals both Ahmad and Williams were convicted of drug offences.

WHAT IS ENTRAPMENT?

Entrapment takes place when the police encourage an individual to commit a crime or provide an individual with the opportunity to commit a crime without having a reasonable suspicion that the individual is involved in that particular criminal activity. 

The Supreme Court of Canada set out two categories for the defence of entrapment in the case of R. v. Mack

  1. The police may present an opportunity to commit a crime only without acting upon a reasonable suspicion that either a specific person is engaged in criminal activity or people are carrying out criminal activity at a specific location;
  2. The police, while having a reasonable suspicion, go beyond providing an opportunity and induce the commission of an offence.

WHAT DID THE SUPREME COURT OF CANADA DECIDE?

On appeal to the Supreme Court of Canada, both Ahmad and Williams argued that the police did not have the required reasonable suspicion that either individual was involved in criminal activity before asking them over the phone to buy drugs.

The majority of the judges of the Supreme Court concluded that Ahmad was not entrapped and that Williams was entrapped by the police.

The court held that police can ask a person during a telephone conversation to commit a crime, but only if there is already reasonable suspicion that the person is involved in criminal activity.  The reasonable suspicion must relate to the specific person committing a crime or a crime occurring in a specific location.  Given the digital world that we live in, a specific location can include a phone number.  Thus, police can have a reasonable suspicion that the phone number is being used for the crime before asking the person who answers the phone to commit a crime.  The court was concerned about the risks to privacy of allowing the location to be expanded to virtual spaces and stated:

…to properly protect these interests, police must have reasonable suspicion over an individual or a well-defined virtual space, like a phone number, before providing an opportunity to commit a crime.

Although in both cases, the police didn’t have reasonable suspicion before calling the phone numbers, the court concluded that the police became reasonably suspicious in Ahmad’s case to suspect he was selling drugs while talking with him on the phone and before asking to buy drugs from him.  In Williams case, the police asked to buy drugs from him prior to having a reasonable suspicion that he was selling drugs during their phone conversation. 

The majority of the court stated:

As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. …

At the same time, police require various investigative techniques to enforce the criminal law.  While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.

Based upon the specific circumstances in each case, Ahmad’s conviction was upheld and the stay of proceedings for Williams was reinstated.

If you have been charged with a drug-related offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise. 

Supreme Court of Canada Rules Bail Conditions Must Be Knowingly Violated

Written on Behalf of Affleck & Barrison LLP

In its unanimous decision last week, the Supreme Court of Canada ordered a new trial for Chaycen Michael Zora (“Zora”), who had been convicted of breaching his bail conditions. 

The highest court in Canada concluded that an individual accused of breaching his/her bail conditions must knowingly or recklessly violate those conditions in order to be found guilty of breaching them.

WHAT HAPPENED?

Zora was charged with several drug offences in British Columbia.  He was released on bail and required to abide by twelve conditions.  These conditions included that he keep the peace and be of good behaviour, report to his bail supervisor, not possess any non-prescribed controlled substances, not possess or have a cell phone, obey a curfew and be present at his front door within five minutes if and when the police or bail supervisor appeared to check on him, amongst other conditions. 

In October 2015, police rang Zora’s doorbell on two occasions and he did not answer.  He was therefore charged with two counts of breaching his curfew and two counts of failing to meet the condition of responding to police at his home during a curfew check.

At his trial, Zora was acquitted of charges of breaching curfew as it could not be proven beyond a reasonable doubt that Zora had been outside of his home after curfew.  However, Zora was fined $920 and found guilty of two counts of failing to appear at the door in response to curfew compliance checks.

Zora argued that he did not hear the doorbell as it was difficult to hear it from where he slept.  Furthermore, he testified that he was undergoing methadone treatment, which made him very tired, and was in the process of withdrawal from his heroin addiction.

Zora also testified that he changed where he slept in his home and set up an audio-visual system at his front door to help alert him to further police checks, which ensured that he was complying with his conditions of bail. 

Zora unsuccessfully appealed the trial judge’s decision.  He then proceeded to take his appeal to the Supreme Court of Canada

THE DECISION OF THE SUPREME COURT

Zora appeals his conviction for failing to comply with his bail conditions by not answering the door when police appeared at his residence to ensure that he was complying with his bail conditions.  In failing to do so, Zora had committed the actus reus of the crime (the physical act of the crime).

The Supreme Court of Canada was asked to determine whether Zora had committed the mental element, also known as the mens rea, of the crime, which also must be present, in order to secure a conviction under section 145(3) of the Criminal Code.

It is a criminal offence, under section 145(3) of the Criminal Code, to breach bail.  This crime carries a maximum penalty of two years in prison.  Therefore, an accused may be subject to imprisonment for breaching conditions of their bail even if he/she is not found guilty of any of the original charges. 

In writing on behalf of the Supreme Court, Justice Martin explained what was required to satisfy the mental element of the crime:

I conclude that the Crown is required to prove subjective mens rea and no lesser form of fault will suffice.  Under s.145(3), the Crown must establish that the accused committed the breach knowingly or recklessly.  Nothing in the text or context of s. 145(3) displaces the presumption that Parliament intended to require a subjective mens rea. 

…The realities of the bail system further support Parliament’s intention to require subjective fault to ensure that the individual characteristics of the accused are considered throughout the bail process.

…Not only is this conclusion consistent with the presumption of subjective fault for crimes like s. 145(3), it is supported by its place and purpose in the overall bail system, the serious consequences which flow from its breach, and how the consideration of individual circumstances is the proper focus both for setting conditions and determining the mental element for their breach.

The Supreme Court held that subjective mens rea can be established when the Crown has proven:

  1. The accused had knowledge of the conditions of the bail order, or they were willfully blind to those conditions; and
  2. The accused knowingly (or were willfully blind to the circumstances) failed to act according to their bail conditions despite the knowledge of them; or
  3. The accused recklessly failed to act in accordance with their bail conditions (i.e. perceived an unjustified risk that their conduct would fail to comply with their bail conditions).

In conclusion, the Supreme Court held that subjective fault is required for a conviction under s. 145(3) of the Criminal Code.  The court found that the lower courts erred in law by applying an objective rather than a subjective standard of fault.  The Supreme Court allowed Zora’s appeal, quashed his convictions and ordered a new trial on the two counts of failing to appear at his door. 

If you have been charged with a bail related offence or have any questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Appeal Court Expunges the Defence of Self-Induced Intoxication

Written on Behalf of Affleck & Barrison LLP

Last week, amidst great controversy, the Ontario Court of Appeal released its decision in the cases of R. v. Sullivan and R. v. Chan regarding the application of the defence of self-induced intoxication. 

This significant decision declared that section 33.1 of the Criminal Code of Canada (“CC”) is unconstitutional and of no force or effect.

SECTION 33.1 OF THE CRIMINAL CODE

Section 33.1 of the CC established that if an accused caused his/her own intoxication and commits a violent offence, he/she cannot claim that he/she was too intoxicated to be found guilty of even general intent offences (i.e. assault and sexual assault).  This applies even if he/she was intoxicated to the point of automatism (the performance of an action unconsciously or involuntarily), even if his/her acts were involuntary or he/she lacked the mental state to commit the violent act.

In its latest decision, the Ontario Court of Appeal determined that this law breached “virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence”.

WHAT HAPPENED IN THE SULLIVAN CASE?

In the case of David Sullivan, the accused over-consumed prescription medication in an attempt to take his own life.  The medication left him in a state of extreme psychosis.  During the psychotic episode, he believed he had captured an alien and proceeded to stab his mother.

At trial, Sullivan was found guilty of the violent offence despite Sullivan’s contention that his intoxication was involuntary as it resulted from a suicide attempt. 

WHAT HAPPENED IN THE CHAN CASE?

Thomas Chan, a high school student, stabbed and killed his father and severely injured his father’s partner during a psychotic episode after consuming magic mushrooms.  Chan believed he was a deity and that his father was the devil. 

At trial, Chan also attempted to rely upon the defence of non-mental disorder automatism.  Given section 33.1, which prohibits the use of automatism as a defence in cases of violence when an accused’s intoxication was self-inflicted, this defence failed and Chan was convicted.

THE COURT OF APPEAL’S DECISION REGARDING SECTION 33.1 OF THE CRIMINAL CODE

The Court of Appeal found that section 33.1 of the CC violated the following sections of the Charter of Rights and Freedoms:

  1. The right to life, liberty and security of the person (section 7); and
  2. The right to the presumption of innocence (section 11(d)).

Under Canadian law, if a law violates a Charter right, in certain circumstances it can be justified by the Crown and upheld despite the violations.  In this case, the Appeal Court could not find benefits to the law, and instead found that the law was contrary to the principles of fundamental justice.

In its decision, the Court of Appeal wrote:

Put simply, the deleterious effects of s.33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence. …

With very little true gain, Parliament has attempted to cast aside the bedrock of moral fault.

The Court of Appeal held that a person must act voluntarily to commit a crime.  Although lawmakers attempted to help victims attain justice with the introduction of section 33.1 of the CC, the law in actuality violated an accused’s rights by making them responsible for violence they had no control over.  Justices David Paciocco and David Watt wrote:

As for recognizing and promoting the equality, security and dignity of crime victims, it is obvious that those few victims who may see their offenders acquitted without s.33.1 will be poorly served.  They are victims, whether their attacked willed or intended the attack.  However, to convict an attacker of offences for which they do not bear the moral fault required by the Charter to void this outcome, is to replace on injustice for another, and at an intolerable cost to the core principles that animate criminal liability.

The Court of Appeal ordered a new trial for Chan as he was only convicted of offences that included an element of assault and those convictions depended upon section 33.1.  On the other hand, the Court of Appeal acquitted Sullivan of all of his charges.

WHAT HAPPENS NEXT?

The Crown prosecutor has advised that it will be seeking leave to appeal these decisions to the Supreme Court of Canada.

The Women’s Legal Education and Action Fund has strongly expressed its frustration over this Court of Appeal decision and believes that this decision sends a message “that men can avoid accountability for their acts of violence against women and children through intoxication”.

However, the Canadian Civil Liberties Association has expressed that the concern that the floodgates have been opened to men arguing the defence of intoxication are unwarranted.  An accused must still prove that he/she was in a state of automatism, not merely drunk.

Cara Zwibel, Director with the Canadian Civil Liberties Association, stated:

This is a rarely used provision.  It’s not this widespread, systemic concern.

We will continue to follow the law as it evolves in response to the recent Ontario Court of Appeal decisions and will report any developments in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1047.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting their client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Supreme Court Finds Driver Guilty as Risks are Reasonably Foreseeable When Driving Three Times the Speed Limit

Written on Behalf of Affleck & Barrison LLP

Earlier this spring, the Supreme Court of Canada determined that a reasonable person should foresee the risk of excessive speeding towards a major intersection and that this behaviour can be a departure from the reasonable standard of care required of drivers in Canada.

The highest court in Canada found that the trial judge in the case of R. v. Chung made two errors of law in a case of dangerous driving causing death.

WHAT HAPPENED?

On November 14, 2015, Ken Chung (“Chung”) drove his vehicle almost three times the speed limit towards a major intersection in a mixed residential-commercial area in Vancouver.  Chung crashed into a left turning vehicle, resulting in the death of the driver at the scene of the accident. 

A dashboard camera video caught 4.9 seconds of the accident showing Chung passing one car on the right and accelerating from 50 km/h to 140km/h before entering the intersection.  Chung was observed almost hitting a Toyota that was making a right turn in front of him and then colliding with the victim’s vehicle at a speed of 119 km/h.

The trial judge concluded that Chung’s speeding through the intersection was objectively dangerous to the public and fulfilled the actus reus (the physical act of the crime) of dangerous driving.  However, there was reasonable doubt as to whether Chung’s conduct met the mens rea (the intention, knowledge or recklessness of the accused) requirement for the crime of dangerous driving.  The test for mens rea in driving cases refers to a marked departure from the standard of care of a reasonable person in similar circumstances.  The trial judge held that the momentariness of Chung’s speeding did not demonstrate criminal fault.

At his trial, Chung was acquitted of dangerous driving causing death under section 249(4) of the Criminal Code (this section has been repealed and replaced with section 320.13(3) of the Criminal Code).  This crime requires two components:

  1. The prohibited conduct:  Operating a motor vehicle in a dangerous manner resulting in death; and
  2. The required degree of fault:  A marked departure from the standard of care that a reasonable person would have exercised while driving in the circumstances when the incident occurred.

On appeal, it was found that the trial judge had erred in law by finding that Chung had lacked the mens rea of the driving offence, and in finding that the momentary acceleration in speed could not satisfy the mens rea component of the crime  Therefore, the acquittal was overturned and a dangerous driving conviction was entered.

Chung appealed the conviction and took his case to the Supreme Court of Canada (“SCC”).

THE SUPREME COURT OF CANADA DECISION

The SCC found that the trial judge made two errors of law by applying the wrong legal principle and by failing to apply the correct legal test by not assessing what a reasonable person would have foreseen and done in the circumstances.

Justice Sheilah Martin, writing for the majority of the SCC, found that Chung’s actions were not comparable to momentary mistakes that a reasonable driver may make.  She wrote:

A reasonable person would have foreseen that rapidly accelerating towards a major intersection at a high speed creates a very real risk of a collision occurring within seconds.  This is what actually occurred in Mr. Chung’s case.  Risky conduct at excessive speeds foreseeably can result in immediate consequences. 

… A reasonable person understands that driving is an inherently risky activity.  It is made all the more risky the faster we drive, the harder we accelerate, and the more aggressively we navigate traffic.  Although even careful driving can result in tragic consequences, some conduct is so dangerous that it deserves criminal sanctions.

The SCC concluded that the test for mens rea is whether a reasonable person would have foreseen the immediate risk of travelling almost three times the speed limit towards a major intersection.  Therefore, it held that Chung’s driving was a “marked departure from the norm”.

Justice Martin warned that there may be cases where excessive speed may not be a discrepancy from the standard of care.  She explained:

Only when there has been an active engagement with the full picture of what occurred can the trial judge determine whether the accused’s conduct was a marked departure from the conduct of a reasonable and prudent driver.

The SCC dismissed the appeal and restored Chung’s conviction.

If you have been charged with a driving related offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Reduced Sentence for Drunk Driver Who Killed Three

Written on Behalf of Affleck & Barrison LLP

The driver of a vehicle who was involved in deadly car accident has had his sentence reduced from nine years to seven years by the Ontario Court of Appeal who found that the trial judge erred in reviewing punishments imposed in similar cases.

WHAT HAPPENED?

On April 10, 2016, Prithvi Randhawa (“Randhawa”), 22 years-old at the time, drove his vehicle, including four friends, at a high rate of speed through a residential neighbourhood after a night of drinking at Luxy night club in Concord.  Randhawa was found to have twice the legal limit of alcohol in his system.

Travelling at 135 km/h on Jane Street, Randhawa collided with a traffic signal pole near Sheppard Avenue West, the vehicle went airborne and crashed upside down.  The four passengers were all ejected from the vehicle.  Three of them died and one was serious injured.  The passengers ranged in age between 19 to 24 years-old.

The surviving passenger, Atul Verma, suffered a traumatic brain injury, a fractured ankle, knee damage, a lacerated liver and lumbar spine fractures.  At the time of the trial, he continued to suffer from constant pain, sleepless nights and the deprivation of some of the activities that he used to enjoy.

As a result of the crash, Randhawa sustained a traumatic brain injury and collapsed lung.   He regained consciousness in hospital two days following the accident.  Due to the injuries he suffered, he lost all memory of the events starting from his time inside the nightclub until he regained consciousness.

Randhawa was found guilty of three counts of impaired driving causing death and one count of impaired driving causing bodily harm.  Justice James Chaffe sentenced him to nine years in jail and a driving ban of 93 months.

Justice Chaffe reviewed three similar cases before imposing a sentence.  He held that Randhawa’s conduct was “egregious” and worse than the cases he reviewed. One of the cases reviewed by Justice Chaffe was the sentencing of Marco Muzzo who killed three children and their grandfather while impaired in 2016.  The sentence Justice Chaffe imposed on Randhawa was a year less than the sentence in the Muzzo case.

THE APPEAL

Randhawa appealed Justice Chaffe’s sentencing decision arguing that the trial judge erred in determining his sentence within the ranges available.  More specifically, it was argued that the sentencing judge failed to consider or misconstrued facts regarding other similar cases when considering an appropriate sentence.

On behalf of the Court of Appeal, Justice Nordheimer found that Justice Chaffe failed to explain why Randhawa’s offence was worse than two of the cases that he had reviewed.  Justice Nordheimer stated:

I am unable to find a basis upon which the sentencing judge’s finding could be supported.  This is of concern because, as I have said, it is this finding that clearly drove the sentencing judge to determine that a sentence of nine years was appropriate.

Justice Nordheimer ruled that Randhawa’s conduct was most similar to two of the cases under consideration, involving impairment, driving too fast and multiple deaths.  Justice Nordheimer also found that the sentencing judge failed to give consideration to Randhawa’s young age and the fact that Randhawa suffered very serious injuries, including a traumatic brain injury, in the crash.

Randhawa also argued that the sentencing judge did not consider that he will be facing numerous civil lawsuits arising from the accident, and subject to large judgments.  Justice Nordheimer did not find this to be an error made by the sentencing judge and is not a mitigating factor that is required to be considered when determining a sentence.

In a dissenting opinion, Justice Alexandra Hoy was of the opinion that the sentencing decision was appropriate.  She felt that it was within Justice Chaffe’s discretion to conclude that Randhawa’s conduct was more egregious than the drivers in two of the cases.  Furthermore, Randhawa was driving even faster than Muzzo and in a busier area.  She also made note that Randhawa had a worse driving record than Muzzo, including infractions for speeding and running a red light. 

If you have been charged with a driving related offence or have questions regarding your legal rights, please contact the knowledgeable criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

New Trial Ordered for Homeowner Who Killed Car Thief

Written on Behalf of Affleck & Barrison LLP

In a unanimous decision, a Hamilton-area man who killed a car thief in front of his home has been ordered to stand trial on the charge of second-degree murder. 

The Ontario Court of Appeal has overturned Peter Khill’s (“Khill”) finding of not guilty.

On appeal, the court has ruled that the trial judge failed to instruct the jury to consider Khill’s conduct leading up to the moment he pulled the trigger and killed Jon Styres (“Styres”), a First Nations man.

In June 2018 (please see our blog regarding the trial), Khill, a homeowner and former army reservist, was found not guilty following a 12-day jury trial where he maintained that he fired his gun in self-defence.  An individual can use reasonable force to alleviate a threat to themselves or others under the laws of self-defence in Canada.

WHAT HAPPENED?

On February 4, 2016 at approximately 3 a.m., Khill and his girlfriend were woken up by two loud, banging noises.  When he looked outside, Khill saw that the lights were on in his 2001 GMC pickup truck.

Given his military training, Khill proceeded to grab a 12 gauge shotgun from his bedroom closet.  He loaded it with two shells and ran outside to confront Styres, who was trying to steal his truck.  He came up behind Styres, who was leaning over the passenger-side seat, and shouted “Hey, hands up!”.  Styres reacted by turning toward Khill with his hands sweeping forward in a motion that allegedly led Khill to believe that he had a gun.  Khill argued that this response provoked him to fire two close-range shots that killed Styres, almost immediately. 

At his trial, Khill told the court:

I felt that I was being threatened and that I wasn’t in control of the situation.  I needed to gain control of the situation and neutralize any threat that was there. … I thought my life was in danger and I think the right to self-defence is overlapping between military and civilian life.

The Crown prosecutor argued that Styres did not pose a reasonable threat and that Khill and his girlfriend should have called 911 and waited for police to arrive, rather than approach Styres with a loaded shotgun. 

At the trial, the jury learned that Styres did not have a gun that night and was only carrying a folding knife in his pocket.

Khill pleaded not guilty and his lawyer argued that the shooting was “justified” as Khill believed that Styres had a gun and he feared for his life.  Furthermore, it was argued that Khill was following his training as a military reservist and was acting reasonably to defend himself under the circumstances.  A Hamilton jury found Khill not guilty of the murder of Styres.

THE APPEAL

At the appeal, the Crown prosecutor argued that the trial judge made four errors.  It was argued that three of the errors involved instructions to the jury regarding self-defence and the fourth error was in regard to the admissibility of evidence from an expert.

The appeal court agreed with one of the Crown’s submissions of an error by the trial judge, allowed the appeal and ordered a new trial on the basis that the trial judge failed to appropriately instruct the jury.  Specifically, the trial judge failed to instruct the jury to consider Khill’s conduct leading up to the moment the trigger was pulled leaving them incompetent to evaluate the “reasonableness” of his actions.

The Appeal Court said:

Mr. Khil’s role in the incident leading up to the shooting was potentially a significant factor in the assessment of the reasonableness of the shooting.  The failure to explain that relevance and to instruct the jury on the need to consider Mr. Khill’s conduct throughout the incident in assessing the reasonableness of the shooting left the jury unequipped to grapple with what may have been a crucial question in the evaluation of the reasonableness of Mr. Khill’s act.  On this basis, the acquittal must be set aside and a new trial ordered.

Khill’s lawyer has stated that he is reviewing the appeal court decision and considering whether to make an application for an appeal to the Supreme Court of Canada. 

Khill is also facing an ongoing civil lawsuit for more than $2 million brought by Styres’ spouse and two young daughters.

We will continue to follow any updates regarding this case and will provide any new developments in 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 criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.