Charter of Rights

Extreme Intoxication Can be Used as a Defence for Sexual Assault in Ontario

Written on Behalf of Affleck & Barrison LLP

An Ontario judge has ruled that the defence of extreme intoxication in sexual assault cases is once again valid in Ontario.

Superior Court Justice Nancy Spies ruled recently in the case of R. v. Cameron McCaw (“McCaw”) that section 33.1 of the Criminal Code, which states that self-induced intoxication is not a defence, is unconstitutional as it violates a defendant’s right to be presumed innocent and the right to fundamental justice.

HISTORY OF THE DEFENCE OF EXTREME INTOXICATION

The Supreme Court of Canada (“SCC”) ruled in 1994 that drunkenness in its extreme is a defence to sexual assault. This is known as the Daviault decision. The SCC upheld a trial judge’s acquittal of chronic alcoholic, Henri Daviault. Daviault was permitted to use extreme intoxication as a defence against charges that he sexually assaulted a disabled 65-year-old woman. Daviault had consumed up to eight beers and almost an entire large bottle of brandy. The court ruled that depriving Daviault of the drunkenness defence would violate his Charter of Rights and Freedoms (“Charter”).

Following this ruling, the federal government quickly introduced a law abolishing the defence of self-induced intoxication for crimes involving assault (section 33.1 of the Criminal Code).

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

33.1 (2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

WHAT HAPPENED IN THE CASE OF R. v. MCCAW?

On July 11, 2015, the alleged victim, referred to as K.B., and her ex-boyfriend (also the roommate of McCaw) attended a pool party from 5 p.m. to 11 p.m. where they consumed a lot of alcohol. K.B., her ex-boyfriend, and another man then met up with McCaw at his apartment . They had a few more drinks and then went outside to the parking lot to smoke. K.B. was so intoxicated that she had to be carried inside the apartment and placed on the couch in the living room where she passed out, fully clothed. McCaw and his two friends went to a nearby bar to continue drinking. McCaw and the ex-boyfriend then returned to the apartment. At some point during the evening, McCaw allegedly consumed marijuana and GBD, the “date-rape drug”.

K.B. alleges that “she awoke to find Mr. McCaw touching her sexually and kissing her and then engaging in sexual intercourse with her.” She initially thought this was her ex-boyfriend, so she did not resist. She then realized that it was McCaw. The victim left the apartment with her ex-boyfriend, leaving McCaw sitting in an arm chair, where he appeared to be sleeping and holding a pair of scissors.

The victim reported the sexual assault to police around 5 a.m. the next morning. Police proceeded to arrest and charge McCaw with sexual assault.

JUSTICE SPIES’ DECISION

Prior to McCaw’s trial, an application was filed by McCaw’s lawyer seeking an order affirming that section 33.1 of the Criminal Code was not in effect as it violated McCaw’s rights under the Charter. Allegedly, McCaw will testify at trial that he had sexual intercourse with A.B., but performed these acts without having intended to do so.

Justice Spies stated that section 33.1 “relieves the Crown of proving the specific mens rea for the charged offence and instead allows for proof of guilt on a different, and arguable lower, standard. It does this even where the state of the accused’s intoxication is so extreme that it reasonably gives rise to a doubt about whether the accused intended the offending action. The prospect of conviction in the face of a reasonable doubt offends both s. 7 and s. 11(d) of the Charter.”

Justice Spies also maintained that section 33.1 relieves the Crown of proving the voluntariness of the act (a mental element of the crime), again infringing an accused’s Charter rights.

In conclusion, Justice Spies allowed McCaw’s application and affirmed that section 33.1 of the Criminal Code is of no force and effect in Ontario. Thus, this decision does not apply directly to any other province in Canada.

Justice Spies provided her ruling on the defence of extreme drunkenness prior to McCaw’s trial. This allows McCaw to use the defence at trial on the charge that he sexually assaulted a woman in a Toronto apartment.

McCaw must prove at trial that it was more likely than not that he was intoxicated to the point of automatism. This is described as a robotic state where he was not aware of his actions.

McCaw’s trial begins on September 12. 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.

Convicted Armed Robber Released Due to Sentencing Delay

Written on Behalf of Affleck & Barrison LLP

The Ontario Superior Court of Justice has released Ammaan Charley (“Charley”) from custody due to an excessive sentencing delay. Charley was facing a mandatory minimum sentence of seven years for his conviction of armed robbery, aggravated assault, and possession of a restricted firearm in January 2017.

WHAT HAPPENED?

On January 15, 2015, Charley, 22-years-old at the time, entered Mr. Jerk’s West Indian Grocery on Eglinton Avenue West with a loaded revolver. He proceeded to pistol whip the clerk on his forehead and skull, ripped the gold chain off of his neck and demanded money at gunpoint. The clerk believed he was going to be killed and began wrestling over the gun. The struggle ended up in the laneway outside of the store and the clerk accidentally fired two shots.

At the time of the incident, Charley had a criminal record of violent crime and gun possession.

In January, 2017, Justice E.M. Morgan ruled that Charley was guilty of armed robbery, aggravated assault, and possession of a loaded, restricted firearm.

Charley has remained in custody at the Toronto South Detention Centre from the date of his arrest through to the date of his section 11(b) Charter of Rights and Freedoms application regarding sentencing delay.

WHAT HAPPENED POST TRIAL?

Following Charley’s conviction, the Crown brought an Application detaining Charley for the purposes of having a psychiatric assessment to be used as evidence in a proposed application to have him declared a dangerous or long-term offender. It took seven months to receive his records. The request for the psychiatric assessment was dismissed on June 22, 2017.

The defence brought a number of constitutional challenges regarding pre-trial detention and the manner in which inmates are treated at the Detention Centre. These accusations included no outside yard time, no recreational facilities, double bunking in cells designed for a single inmate, no visitation rights except using a screen through a video camera, and routine invasive searches. These challenges resulted in several days of evidentiary hearings and legal arguments. Some of these constitutional challenges were dismissed on February 22, 2018. At the time of the application regarding sentencing delay, the balance of the evidence regarding the constitutional challenges was still waiting to be completed.

SENTENCING DELAY

In late June, 2018, Justice Edward Morgan stayed the charges against Charley relying upon the Supreme Court of Canada’s R. v. Jordan decision. The charges were stayed by the court on the basis that too much time had passed since Charley’s conviction and that his constitutional rights had been breached by the unreasonable delay.

According to the Jordan decision, which we have previously blogged about, cases tried in the Superior Court must be concluded within 30 months. To date, most of the cases reviewed by the courts for violating the Jordan decision concern pre-trial delays. In this case, the court was looking at a sentencing delay that occurred after the accused had been found guilty. Charley was convicted 24 months after charges were laid and his sentencing was not scheduled to occur until 17 months later.

The Jordan decision only briefly referenced sentencing delays. The Supreme Court wrote:

[W]e make no comment about how this ceiling should apply to [Jordan] applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.

Justice Morgan reviewed the history of proceedings in detail in his written decision, making appropriate calculations for any delays attributed to the defence. He concluded that the total delay in this case was 32 months (24 months of pre-trial delay and 8 months of sentencing delay).

Justice Morgan concluded that this delay was above the presumptive ceiling as set out in the Jordan decision. That decision upholds the protection of security of the person and the right to be tried within a reasonable time. Therefore, Justice Morgan concluded that Charley’s rights under the Charter of Rights and Freedoms had been infringed, the proceedings were stayed, and Charley was released.

It is unclear at this time whether the Crown prosecutor will appeal this decision. It is possible that the Ontario Attorney General’s Office will request that the Court of Appeal review this decision as it is sure to have a significant impact on the justice system.

We will continue to follow any developments in this case and will provide updates in this blog should they occur.

In the meantime, if you have been charged with a criminal offence or have questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience. We are not afraid to fight for your rights and protect your interests.

Ontario Sets 12 Month Ceiling for Youth Cases

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged about, the Supreme Court of Canada in R. v. Jordan established that adult criminal cases decided in the provincial courts must be resolved within 18 months. In circumstances where cases exceed the 18 months ceiling, it has been found that the accused’s rights under section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) have been violated and a stay of proceedings may be granted, except under “exceptional circumstances”.

The Ontario Youth Court of Justice recently held that a 12-month ceiling should apply for youth cases. In the case of R. v. D.A., the Court applied section 3(1)(b) of the Youth Criminal Justice Act (“YCJA”) which states that youth court proceedings should be carried out with “promptness and speed…given young persons’ perception of time”. This is the first reported decision to specifically establish a lower ceiling for youth cases than adult cases.

The accused, D.A., applied for an order for a stay of proceedings under section 24(2) of the Charter arguing that his rights have been infringed pursuant to section 11(b). He maintained that it will take 18 months and 7 days for the completion of his trial, which is unreasonable and exceeds the presumptive ceiling set by the SCC in R. v. Jordan. Furthermore, the accused submitted that a young person should be subject to a lower presumptive ceiling.

WHAT HAPPENED?

On a date between January 1, 2015 and November 4, 2016, the accused allegedly was observed to be grinding his penis into a three years old’s buttocks as he lay on the floor.

During this same time period, the accused allegedly pulled down his pants and underwear exposing his penis to a nine-year-old boy (the accused’s first cousin) and a four-year-old boy. The accused allegedly asked the boys to touch his penis, which they did.

On December 6, 2016, the accused was interviewed by police without the presence of his mother. At that time, he provided a partially incriminating statement.

The accused was then charged with 8 offences, including sexual assault, sexual interference and invitation to sexual touching. He was released on an undertaking to a peace officer and a promise to appear.

THE NEED FOR TIMELY RESOLUTION OF CRIMINAL COURT MATTERS

The judicious conclusion of criminal court cases is a fundamental right of all accused individuals found within section 11(b) of the Charter. It is also an important factor in ensuring public confidence in the Canadian criminal justice system.

The timely culmination of criminal court matters is also important for witnesses, victims and their families. Proceeding in this manner assists with the accurate recall of information related to the crime and allows for emotional and psychological closure.

The SCC case of R. v. Jordan set out a new framework and timelines for processing criminal court cases in Canada. The Court set out a “presumptive ceiling” for completing criminal court cases and anything beyond these time periods is deemed unreasonable. However, if a delay is caused by the defence it will not count towards the presumptive ceiling (ie. requesting unnecessary adjournments). Once the presumptive ceiling has been exceeded, the burden is on the Crown prosecutor to justify the delay on the basis of exceptional circumstances.

BRINGING YOUTH MATTERS TO TRIAL EXPEDITIOUSLY

Individuals who are charged between the ages of 12 and 17 are processed through youth courts in Canada, which operate independently from adult criminal courts. The YCJA provides more proportionate accountability for young persons through age appropriate sentences and the promotion of rehabilitation.

Canada has acknowledged the necessity that criminal proceedings involving young persons should generally be brought to trial faster than adult matters. This has been codified in section 3 of the YCJA.

The Ontario Court of Appeal has also provided reasoning for the belief that young persons should be brought to trial faster in several its decisions. These reasons include:

The ability of a young person to appreciate the connection between offending behaviour and consequences will weaken the longer the proceedings take to complete;
The perception of time for a young person may be distorted when compared to that of an adult; and
The need to sentence young persons while they remain in his/her formative years.

In the case of R. v. D.A., Justice P.T. O’Marra found that the total delay was 555 days less the defence delay of 28 days, resulting in a total delay of 527 days (17 months and 2 weeks). Justice O’Marra irrefutably stated there should be a reduced presumptive ceiling of 12 months for youth cases that are non-complex cases. Therefore, Justice O’Marra held that the delay in this non-complex case was not reasonable, was well over the “youth presumptive ceiling of twelve months” and accordingly the application was allowed and the proceedings were stayed.

If you are a youth that has been charged with a crime, or are the parent of a young person that has been charged with a crime, 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.

Indefinite Solitary Confinement Ruled Unconstitutional by B.C. Supreme Court

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the B.C. Supreme Court striking down sections of the Corrections and Conditional Release Act (“CCRA”) that permit prolonged and indefinite solitary confinement in federal prisons.

WHAT HAPPENED?

In this case, lawyers for the British Columbia Civil Liberties Association and the John Howard Society of Canada were asking the Court to end administrative segregation in federal penitentiaries in Canada. The Plaintiffs argued that sections 31, 32, 33 and 37 of the CCRA were unconstitutional as they infringe upon an inmate’s rights and freedoms granted by the Canadian Charter of Rights and Freedoms (“Charter”).

The Correctional Service Canada (“CSC”) procedure known as administrative segregation (similar to solitary confinement) authorizes the placement of inmates in small cells for up to 23 hours a day without meaningful human contact. This type of segregation has no legislated time limits and is left to the discretion of the warden.

The B.C. Court ruled that the laws regarding administrative segregation violate section 7 of the Charter guaranteeing life, liberty and security of person. These infringing laws allow indefinite solitary confinement, prevent independent oversight of segregation decisions and deprive inmates from having a lawyer represent them at segregation review hearings.

The Court also ruled that these laws discriminate against mentally ill and Indigenous inmates contrary to section 15 of the Charter, which guarantees equality before and under the law and equal protection and benefit of the law without discrimination.

Justice Peter Leask wrote in his decision:

I am satisfied that the law … fails to respond to the actual capacities and needs of mentally ill inmates and instead imposes burdens in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.

HARMFUL EFFECTS OF SEGREGATION

The B.C. Court heard extensive testimony from former prisoners, researchers and correctional officials who addressed the heath effects of administrative segregation. The Court held that solitary confinement places prisoners at significant risk of serious psychological harm and increased risk of self-harm and suicide.

Justice Leask emphasized that based on the evidence solitary confinement increases destructive symptoms and behaviours, including “anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour.”

The laws pertaining to solitary confinement were found by the Court to be overbroad and damaging to institutional security. Furthermore, the Court held that the laws authorizing solitary confinement do so in circumstances where lesser forms of restriction would achieve the same results.

The Court ruled that a procedure of prisoner segregation must include time limits. Time limits would “create the pressure to ensure that decisions about alleviating an inmate’s segregation were made and implemented promptly, while still allowing CSC to use the practice for short periods to address security concerns.”

International consensus has determined that 15 days is an ideal cap for segregation placements. Justice Leask did not prescribe a set number of days, but considered 15 days “a defensible standard”.

WHAT HAPPENS NEXT?

Justice Leask suspended his decision for 12 months to give the government time to draft new legislation, which must include strict limits on the amount of time an inmate can be segregated.

This B.C. decision requires broader legislative changes than the ruling made by the Ontario Superior Court last month, which we previously blogged about. In the Ontario case, the Judge held that the lack of independent review of prisoners placed in solitary confinement means that there is no accountability for the decision to segregate. Justice Marrocco put his decision on hold for a year to allow Parliament to make the legislative changes necessary. The Canadian Civil Liberties Association recently announced it would appeal this Ontario decision.

ORDER STOPPING ONTARIO FROM PLACING MENTALLY ILL INMATES IN SOLITARY CONFINEMENT

One day following this B.C. decision, Ontario announced an agreement between the Ontario government and the Human Rights Commission ensuring that inmates with mental health disabilities will no longer be placed in solitary confinement across the province.

This Order includes the process of properly identifying inmates with mental health disabilities (including those at risk of self-harm or suicide) and issuing appropriate alerts verified by professionals. The alert would indicate that alternatives to segregation must be considered for the particular inmate.

We will continue to follow the developments in the law regarding solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison at 905-404-1947 or contact us online. For your convenience, we offer 24-hour phone services.

Court Finds that Solitary Confinement Laws are Unconstitutional

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the Ontario Superior Court striking down Canada’s solitary confinement laws as unconstitutional following a three year challenge by the Canadian Civil Liberties Association (CCLA).

WHAT HAPPENED?

In the court case, lawyers for the CCLA requested a declaration that sections 31 to 37 of the Corrections and Conditional Release Act (“CCRA”), which allow the Correction Service of Canada to remove an inmate from the general population for a non-disciplinary reason, are unconstitutional as they infringe upon the rights granted in sections 7, 11(h) and 12 of the Charter of Rights and Freedoms (“Charter”).

This application referred specifically to administrative segregation, the purpose of which is to maintain the security of the penitentiary and of all persons within the penitentiary. Under the current legislation, a warden is allowed to order solitary confinement when an inmate is at risk from others or poses a risk to the security of the prison. When this occurs, inmates are ordered to spend 22 hours in a cell without any meaningful human contact. There is no cap on the length of time that segregation occurs in the legislation.

Under the current legislative system, prison wardens are responsible for the initial decision to place an inmate in solitary confinement and are involved in the internal tribunal assembled five days later to study and judge that decision. Justice Marrocco found that this lack of independent review means that there is no accountability for the decision to segregate.

CURRENT SEGREGATION PROCESS IS “PROCEDURALLY UNFAIR AND CONTRARY TO THE PRINCIPLES OF FUNDAMENTAL JUSTICE”

Justice Marrocco ruled that this arbitrary and potentially biased system is improper given the severe deprivation of liberty and security of the person that takes place when an inmate is segregated. These are two rights guaranteed under section 7 of the Charter.

Justice Marrocco wrote:

I am satisfied that the statutory review of the decision to segregate is procedurally unfair and contrary to the principles of fundamental justice because the procedure chosen provides that the Institutional Head is the final decision maker for admission, maintenance and release from administrative segregation and is the final institutional decision-maker of required reviews and hearings which occur immediately after an inmate is segregated.

However, Marrocco stated that banning the practice immediately could be disruptive and dangerous. Therefore, Justice Marrocco put his declaration on hold for a year, which he felt was a reasonable time frame to allow Parliament to address the situation.

ADDITIONAL FINDINGS BY JUSTICE MARROCCO

The CCLA argued for a 15-day limit on solitary confinements, a prohibition on the isolation of mentally ill inmates, and, a rule barring prisoners aged 18 to 21 from solitary lockups.

Regarding the effect of solitary confinement, Justice Marrocco agreed with CCLA and wrote that “placing an inmate in administrative segregation imposes a psychological stress, quite capable of producing serious permanent observable negative mental health effects”. He, however, did not find that solitary confinement itself to be unconstitutional, even when applied to inmates aged 18 to 21 or the mentally ill. He rejected any argument that this practice amounts to cruel and unusual punishment. Justice Marrocco also refused to declare placement in solitary confinement for more than 15 days to be unconstitutional.

The CCLA launched this constitutional application shortly after the British Columbia Civil Liberties Association (BCLA) and the John Howard Society of Canada filed a similar, but unrelated, lawsuit in Vancouver. A ruling in the B.C. case is expected within the next three months.

We will continue to follow the developments in the law with regards to solitary confinement in Canada and will provide updates through this blog.

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:

What was the subject matter of the alleged search?
Did the claimant (i.e. the person claiming privacy) have a direct interest in the subject matter?
Did the claimant have a subjective expectation of privacy in the subject matter?
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:

The subject matter of the search was the electronic conversation between Marakah and Winchester;
Marakah had a direct interest in the subject matter;
Marakah subjectively expected the subject matter to be private;
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.

Ontario Crown Prosecutors Ordered to Get More Individuals Out on Bail

Written on Behalf of Affleck & Barrison LLP

Ontario’s current bail system is simply not working. It has been reported that almost 70% of the individuals held in Ontario’s jails are waiting for their case to come before the courts. Individuals kept in jail may ultimately end up serve more time awaiting trial than if they were convicted.

We’ve previously blogged about the government’s attempts to make the justice system faster and fairer. On October 30, 2017, Ontario’s Attorney General announced a new directive as part of the Crown Prosecution Manual to help make the bail system faster and fairer. This directive will be used to provide support and guidance to Crowns (i.e. prosecutors) and will be released in the coming weeks.

BAIL HEARINGS IN CANADA

Following an arrest, an individual is either released pending the first court date or kept in custody. The right to not be detained before trial is a fundamental right in Canada and is codified in section 11(e) of the Canadian Charter of Rights and Freedoms. This right is based on the presumption of innocence (i.e. everyone is presumed innocent until proven guilty).

Everyone charged with a crime is entitled to reasonable bail unless the Crown can show just cause to deny it. The principle of “reasonable bail” refers to the terms of bail (i.e. monetary conditions and other restrictions).

A bail hearing determines whether an individual accused of a crime will be released from custody for the time leading to their trial date. In order to grant bail, the Court must consider the following three factors:

Whether there is any risk that the accused will flee the Court’s jurisdiction (i.e. leave the city, province, or country) or fail to return to Court when required;
Whether there is substantial likelihood that the accused will reoffend or interfere with the administration of justice if released on bail; and/or,
Whether releasing the individual will undermine public confidence in the justice system.

The following factors must be considered by the Crown when determining whether the individual should be detained:

Age of the individual;
Presence or absence of a criminal record, related offences and breach of court orders;
Concern that the individual will interfere with the administration of justice (i.e. coercion of witnesses, destruction of evidence);
Presence or absence of outstanding charges in any jurisdiction;
Need for and the availability of supervision of the individual while on bail;
Any ties to the community; and,
Availability of community supports.

GUIDANCE FROM THE SUPREME COURT OF CANADA

The Supreme Court of Canada has set the stage for the new bail policies in its recent decisions in R. v. Jordan and R. v. Antic. The Court stated that reasonable bail is a right that should not be denied without a very good reason.

In the case of R. v. Antic, the Supreme Court of Canada reiterated the proper approach for conducting a bail hearing by using the “ladder principle”. The Court sent a strong message that too many individuals are being held unnecessarily in custody before trial and too many individuals are subject to restrictive conditions and forms of release. Under the ladder principle, the starting position at a bail hearing should be unconditional release and only if the circumstances of the individual in question require it should any conditions and financial requirements be added.

In the Supreme Court of Canada case of R. v. Jordan, the Court set strict time limits for the completion of criminal cases, where there are no exceptional circumstances. The Court specified a maximum of 18 months for cases in the Ontario Court of Justice and 30 months for cases in the Superior Court of Justice.

NEW BAIL DIRECTIVE

The main focus of the new bail directive is to keep more individual offenders out of jail while awaiting trial. The new policy should result in allowing more people charged with offences to be released with “realistic” conditions when warranted and only using sureties when necessary (the exception, rather than the rule). A surety is an individual appointed by the courts who promises to ensure that the individual complies with the conditions of their bail, and who puts up money that they may lose if they fail in their surety duties.

The directive recommends that the “ladder principle” be applied during bail hearings. This principle is codified in section 515(3) of the Criminal Code of Canada and simply states that an individual should be released on the least onerous form of bail unless the Crown shows reason to the court to proceed otherwise. The Crown must consider each “rung” of the ladder individually before rejecting it and moving along to a more restrictive form of release.

The new policy recommends that only necessary and appropriate conditions be imposed. Only conditions specific to each case should be recommended and should not be automatic. Conditions of release should be connected to the circumstances of the individual, the facts of the case, and meeting public safety concerns.

The directive further instructs Crowns to consider the unique circumstances that indigenous, low-risk vulnerable individuals and those with mental health and addiction issues face in being granted bail. The government will be introducing more assistance in the community for individuals who may need supervision and support, but who cannot attain a surety. For instance, the government has suggested the use of “bail beds”, which allow low-risk offenders to reside in a supervised home in the community while awaiting trial.

We will continue to monitor how this new directive is affecting the bail process in Ontario and will blog about updates as they become available.

If you have been charged with an offence or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Judge Dismisses Drunk Driving Charges Because Police Officer Assaulted Suspect

Written on Behalf of Affleck & Barrison LLP

In a recent decision, an Ontario judge found that a Toronto police officer had assaulted a man that had been arrested for drunk driving, and showed a “lack of honesty” with respect to what happened that therefore, violating the man’s Charter rights. The results of breath tests taken the night in question were not admissible, and the charges against the man were dropped.

The Night in Question

The man was stopped at a RIDE program and arrested after her blew over 80. He was taken to a police station for further breath tests.

After he took the first breath test upon arrival at the station and blew over the limit, he was handcuffed to a bench outside of the testing room while he waited for the second test. A police officer waited with him (the detaining officer). While the man was waiting, his girlfriend, who had been in the car with him, and who accompanied him to the police station, became upset and vocally agitated, causing what the officers described as “a ruckus” at the front desk. After being contacted by the front desk, the detaining officer asked the man to speak to his girlfriend on the phone to calm her down. The man refused.

At that point, the officer allegedly became so aggressive that as he held the phone up to the man’s ear to get him to speak to the girlfriend, he grabbed the man by the collar, pushed him back and forth, and, in the process of doing so, hit the side of the man’s head with the phone, causing him to bang his head on the wall six or seven times, and injured his collarbone.

The man also claimed that he had asked to use the washroom when he arrived at the station, but that the police officer who arrested him (the arresting officer) had told him that he could urinate in the squad car.

In response to the man’s allegations, the detaining officer claimed that he held the phone up to the man’s ear, and that when the man pushed aside the officer’s hand, it accidentally “snapped back” and hit the man on the side of the head. The officer denied the rest of the man’s allegations.

After this telephone incident, the man took his second breath test, which again registered over 80. The police charged him.

Video Evidence

In-car video from the squad car, introduced at trial, showed the arresting officer telling the man that he is the same age as the officer and that he can “hold it”. He then raised his voice and suggested that the man should urinate in the back seat if he “has to go so bad”.

Video from the testing room shows the man telling the breath technician that the detaining officer “was a problem”, and mentioned something about being punched by an officer. The man appears shaken on the video.

The Decision: Assault

Charter Violations

The issue at trial was whether the police had breached the man’s s. 7 (life, liberty and security of the person) and s. 12 (cruel and unusual punishment) Charter rights.

The man’s defense lawyer argued that the detaining officer had violated his s. 7 rights when he assaulted the man while trying to persuade him to speak to his girlfriend.

The judge was perplexed with the detaining officer’s version of events, stating that the officer’s “evidence about the incident and about what happened afterwards was vague and at times evasive.” The officer claimed that he had spoken to the man about the incident afterwards and had checked for injuries. He also recalled that the man may have mentioned injuries but could not recall whether this was immediately following the incident, or later. He had not made any notes about the incident or about anything that happened afterwards. The judge noted:

I find this difficult to understand. This was an important episode; one about which an officer would be expected to make notes. This shows a lack of diligence with regard to the incident and perhaps an effort to obfuscate it.

The judge also noted that there were two photos submitted as evidence that depicted a significant red mark on the man’s left collarbone. There were no injuries to his head. The judge found it “odd” that the man would not have suffered any head injuries given his allegation that it had hit the wall several times. The man had not offered any explanation for this at trial. However, the judge noted that this alone did not cause him to disbelieve the man about the assault, stating:

I find that [the man] testified in a credible manner. Any flaws in his evidence are not sufficient to cause be to disbelieve his account of the assault. This was a very traumatic event. It is understandable that in those circumstances one might not speak as accurately as one would in a calmer setting.

The Officer’s Evasiveness and Lack of Honesty

The judge also took issue with the officers’ behavior for several reasons. Firstly, the detaining officer’s response to the man’s request to use the bathroom was not sympathetic. Furthermore, the officer demonstrated a “belligerent and demeaning attitude” toward the man by asking him to urinate in a police car.

In addition, the officer had demonstrated evasiveness and lack of honesty by denying to the court that he had said this, and only admitting it once the video evidence was presented. The Judge noted:

I find it hard to believe that [the officer] would have forgotten that he said this to [the man]. It is an astonishing thing to tell someone. Consequently, I find that his testimony on this point was evasive and lacked the candour that one rightfully expects of a witness testifying under oath or affirmation.

The judge ultimately determined that the officer had assaulted the man.

Additionally, the judge found that the officer had used more force than was necessary to accomplish his purpose (which had been to get the man to speak to his girlfriend to calm her down). The man had had no obligation to speak with his girlfriend.

Breathalyzer Results Not Admissible

Lastly, the judge determined that, per s. 24 of the Charter, the results of the breath test had been “obtained in a manner that infringed or denied any rights of freedoms guaranteed by the Charter”, noting:

… this was a grievous breach of [the man’s] rights under s. 7 of the Charter. An assault on a person in custody while handcuffed to a bench to try to persuade him to do something that he has no obligation to do is indeed a grievous breach of the person’s rights under s. 7 of the Charter.

Furthermore, the conduct of the police officers further exacerbated this breach. Neither the arresting officer nor the detaining officer had been forthright with the court. In addition, neither of them had “responded responsibly” to the man’s report of assault or done anything to follow up, investigate, or report the incident to their superior officers. The judge concluded:

…the impact of the breach on [the man’s] Charter-protected interest of the security of his person was gravely impacted by being assaulted by one of the police officers that was holding him in custody.

The results of the breath tests were therefore excluded. Since there was no other evidence against the man on the charge of blowing over 80, the judge found him not guilty and dismissed the charges.

Depending on the specifics of your situation, an impaired driving or drive over 80 conviction can have significant consequences, including jail time, fines, loss of your driving privileges, and damage to your reputation in the community. If you have been charged with drive over 80, contact our office online or at 905-404-1947 to schedule a free consultation with one of the Oshawa impaired driving lawyers at Affleck & Barrison LLP. We have 24-hour phone service for your convenience. Our experienced lawyers to handle your defence with diligence and expertise.

Saskatchewan Court of Appeal Refuses to Consider Pending Changes to Marijuana Legislation when Sentencing

Written on Behalf of Affleck & Barrison LLP

The conversation around pending changes to marijuana legislation and how it relates to those tied up in the criminal justice system today continues to provide us with judicial decisions.

The Saskatchewan Court of Appeal recently overturned a trial judge’s decision to issue a suspended sentence to a man, who was convicted of possession for the purpose of trafficking and trafficking over 20 pounds of marijuana.

A Lenient Trial Judge

At the man’s first trial, the judge considered existing sentencing guidelines and whether ordering jail time would violate the man’s rights under Section 12 of the Charter (which protects individuals from cruel and unusual punishment).

The judge stated, “I understand that my task is to approach the debate in a common‑sense way with a view to determining if the sentencing regime created by Parliament manifests itself in a grossly disproportionate punishment.”

The trial judge went on to consider a previous Supreme Court of Canada decision, which had found that “[Courts] should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.”

This left the trial judge to summarize “’Merely excessive’ is tolerable. It is only when the sentencing result reaches the frontier of “cruel and unusual” or “grossly disproportional” that the Charter remedy is triggered.”

The trial judge then examined the man’s history, which did not include any previous criminal activity. In fact, he played an active role in community involvement and was involved in both academic and business pursuits. The trial judge concluded “No larger good is served sentencing [this man] to jail. He poses no danger to the community. He has conducted himself well as a citizen but for this single unfortunate foray in the mire of the drug world. To be certain, as he attempted to engage in a criminal enterprise, his crimes are deserving of denunciation and deterrence. However, facing the reality that the product in which he dealt is to become legal, it should be said that the decibel level of such denunciation and deterrence may be less than it otherwise would be.” The man was ultimately issued a suspended sentence.

On Appeal

Prosecutors appealed the trial judge’s decision to the Saskatchewan Court of Appeal., which reached a much different conclusion.

The Court of Appeal specifically noted the trial judge’s consideration of pending changes to Canada’s marijuana legislation, writing “After observing that the federal government was taking steps to legalize marijuana, he proceeded to sentence [the man]. The trial judge suspended the passing of sentence for two years subject to certain conditions.”

The Court of Appeal went on to state “Judges are bound to apply the law as it exists not as it might be in the future especially when, as here, it is unknown when the law will be changed, what the terms of it will be and how it will affect the offences of trafficking drugs or possession for the purpose.

The Court added “The possible future legalization of possession of marijuana can have no legal effect on the sentencing regime,” and, “it is an irrelevant extraneous factor that could, in this case, play no part in sentencing considerations. The trial judge’s reliance on this factor was an error of law.”

The man was ultimately given a sentence of 15 months.

To speak with an experienced Oshawa criminal defence lawyer about drug trafficking or possession of drug charges, call Affleck & Barrison at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7. Trust our experienced lawyers to handle your defence with diligence and expertise.

Police Did Not Trespass and No Charter Violation For Arrest of Drunk Driver Who Was Peeing on His Front Porch

Written on Behalf of Affleck & Barrison LLP

In a recent decision, an Ontario judge found that a man who was arrested while peeing on his front porch after an officer received reports of a drunk driver in the area had not been arrested or held in violation of his Charter rights, and the officer had not been trespassing when he made the arrest.

What Happened?

The man in question, Mr. Mali, drove home while intoxicated, parked his car on the driveway, and began to pee on his front porch. A police officer who had responded to a call about a possible drunk driver walked onto Mr. Mali’s property and began to ask him questions.

Mr. Mali initially responded by telling the officer that he “had to pee” and that he did not want to speak with the officer. He eventually began to answer the officer’s questions, and was arrested for impaired driving and taken to the station.

Mr. Mali provided three breath samples at the police station, which revealed that his blood alcohol content (BAC) was almost three times the legal limit. After providing the samples, Mr. Mali was placed in a cell for approximately six and a half hours and then released.

At trial, Mr. Mali’s counsel argued that when Mr. Mali informed the officer that he did not want to speak with him, the officer had been obliged to leave, and that his failure to do so, and Mr. Mali’s subsequent arrest and demand for breath samples violated Mr. Mali’s s. 8 Charter rights to be free from unreasonable search and seizure. The fact that he was held for six hours in a cell at the police station was “overholding” and violated his s. 9 Charter right not to be arbitrarily detained. Mr. Mali’s counsel argued that the breath test results, the statements made by Mr. Mali on the night of his arrest, and the observations made by the police on the night of the arrest should be excluded as evidence as a remedy for the supposed Charter violations.

Justice Schrenk dismissed the Charter application, and found Mr. Mali guilty on two counts of driving while impaired.

The Court’s Reasoning

The Arrest and Breath Samples

Mr. Mali’s defense counsel argued that his arrest on private property and subsequent request for a breath sample violated Mr. Mali’s s. 8 and s.9 Charter rights.

Case law has clearly established that it is permissible for a police officer who has a legitimate basis for entering a driveway- such as seeing a driver driving erratically, and following the driver back to a destination to ensure they have arrived safely before detaining them- to do so. That officer has implied permission to enter onto the property.

In this case, defense counsel for Mr. Mali accepted that the officer was entitled to enter onto Mr. Mali’s property; however, when Mr. Mali informed the officer that he did not want to speak with him, this withdrew the implied invitation, and the officer then became a trespasser.

Justice Schrenk disagreed with this argument for two reasons.

Firstly, there had not been a “clear expression of intent” that Mr. Mali did not wish to communicate further with the officer. Rather, Mr. Mali had stated that he “had to pee” and “didn’t want to talk”. While this could potentially be interpreted as a complete refusal to speak, a more reasonable interpretation is that Mr. Mali did not want to speak until he had finished urinating. Mr. Mali’s subsequent willingness to answer questions made such an interpretation even more reasonable.

Secondly, even though the officer may not have had grounds to arrest Mr. Mali when they initially engaged in conversation, he did once he realized how intoxicated Mr. Mali appeared. Had this interaction taken place on the road, the Highway Traffic Act would have given the officer the authority to detain Mr. Mali. While the Act does not apply on private property, there is a related common law right to detain someone on their private property, as long as the police officer is lawfully entitled to be on the property. It’s clear, based on existing caselaw, that once a police officer has entered onto private property under an implied invitation and arrests a person, that officer can then remain on the property in order to complete the arrest even if the implied invitation is later withdrawn:

In this case, Cst. Leal lawfully entered the property to conduct an investigation. Even if Mr. Mali withdrew the implied invitation, he was by then lawfully detained and Cst. Leal was entitled to remain on the property to continue that detention and to arrest Mr. Mali once he had grounds to do so.

Justice Schrenk concluded that there was no s. 8 violation in this case.

“Overholding” at the Station

After being detained at the police station, Mr. Mali provided three breath samples. The last breath test was administered at 3:28 a.m. He was released around six and a half hours later, at 9:49 a.m. Mr. Mali’s defense counsel argued that this was an instance of “overholding” which violated his s. 9 Charter rights.

“Overholding” claims are common. Caselaw has clearly established that police are entitled to hold someone for a period of time after a breath test is administered, but only if the decision to hold that person is made for legitimate reasons and based on proper considerations. Such considerations, known as “Price factors” after the case they appear in, include:

The person’s BAC;
The person’s level of comprehension;
Whether the person was charged with impaired driving;
Whether the person had a suspended license;
Whether there was a responsible individual to pick the person up;
Whether the person has a criminal record;
Whether the person has any outstanding charges;

The officer in charge can make an informed decision about when to release the person based on the above and other factors. A number of factors should be considered, and the release decision should not be made based on BAC alone.

In this case, the police officer in charge of the station on the evening Mr. Mali was detained testified that he considered the Price factors in deciding when to release Mr. Mali. The officer who relieved the initial officer in charge around 5:45am, testified that it was his general practice to consider the BAC of a detained person by assuming that the person eliminated alcohol at a rate of 15mg per 100 ml of blood per hour. Additionally, it was his general practice to have a cells officer check on detainees every thirty minutes and report their observations of a prisoner’s sobriety. Here, in applying the general calculation of alcohol elimination, Mr. Mali’s BAC would still have been significantly over the legal limit upon his release at 9:49am.

Justice Schrenk found that in these circumstances, he was not persuaded on a balance of probabilities that Mr. Mali was held in violation of his Charter rights.

The Charter application was dismissed.

If you have been charged with impaired driving or another driving offense, contact our office online or at 905-404-1947 to schedule a free consultation with one of our knowledgeable and experienced Oshawa lawyers. We regularly handle drunk driving and over 80 defence. We have 24-hour phone service for your convenience. Our office is located within walking distance of the Durham Consolidated Courthouse.