Charter of Rights

Errors by Police Officer and Trial Judge Leads to Appeal Court Overturning Child Pornography Conviction

Written on Behalf of Affleck & Barrison LLP

In a recent decision by the Ontario Court of Appeal, a man convicted on pornography charges had evidence obtained in accordance with a production order and search warrant excluded resulting in his acquittal on all counts.

Former Hamilton minor hockey coach, Steven West (“West”), was charged in 2017 with accessing, possession of, and making child pornography available.  At trial, he was convicted and sentenced to three years in prison. 

THE INVESTIGATION

In August 2016, Hamilton Police were alerted to a pornographic picture that West had uploaded to the mobile messaging app Kik.  The image was of a five year old girl sitting in an explicitly indecent sexual pose on a beach wearing only a bikini top.

The Kik app detected the picture and reported it to the RCMP’s National Child Exploitation Co-ordination Centre, who forwarded it to the Hamilton Police Service.  The police were provided with information regarding the account that the image had been uploaded to and two Internet Protocol addresses associated with the use of the account.  Police determined that both IP addresses belonged to Cogeco Cable. 

Detective Constable Jeremy Miller prepared an Information to Obtain for a general production order under section 487.014 of the Criminal Code.  Detective Miller attached an affidavit which stated “that the information set out herein constitutes the grounds to suspect” that the subscriber committed the child pornography related offences.

After receiving court approval to obtain subscriber information from Cogeco Cable, the police were informed that Steve West was the subscriber and provided his address.  The police then obtained a search warrant to search West’s residence for electronic devices and documents that contain suspected evidence of child pornography. 

When police searched West’s home they seized five digital devices and found 19,687 files containing child pornography, including images and 51 videos.  West was subsequently charged with possession of child pornography, distribution of child pornography and accessing child pornography.

THE APPEAL

The issue before the appeal court was whether West’s rights under section 8 of the Charter (the right to be secure against unreasonable search and seizure) were infringed and if the evidence against him should have been excluded.

West argued that the production order should not have been issued as the police officer incorrectly worded his affidavit by using the wrong legal test in an attempt to obtain the information from Cogeco.  The appeal court agreed with West and in its decision explained the law and the legal test for production orders.

A production order under section 487.014 of the Criminal Code allows police to obtain documents, including electronic documents, from individuals who are not under investigation.  This section allows a justice or judge to make a production order if he/she is satisfied, by the information placed before him/her, that there are reasonable grounds to believe that:

  1. An offence has been or will be committed;
  2. The document or data is in the person’s possession or control; and
  3. The production order will provide evidence of the commission of the named offence.

In West’s case, the officer misstated the standard throughout his affidavit.  He stated he had grounds to “suspect” and the correct standard is grounds to “believe”.  Despite this flaw, the justice authorized the production order. 

The trial judge also failed to address this error.  Given the trial judge’s error, no deference was given by the appeal court to the trial judge’s decision and the three member panel was allowed to consider afresh whether there was a basis on which the production order could have been issued.  The appeal court concluded that the production order was issued in error, therefore the search warrant could not have been issued and the search of West’s residence was unreasonable. 

The Appeal Court ruled that the officer erred when he swore in his affidavit that he had the “grounds to suspect” a crime had been committed, as opposed to the “grounds to believe” a crime had been committed. 

According to Justice Michael Tulloch, Hamilton Police “were effectively fishing for a connection to the offence”.  Thus, the search of West’s residence and electronic devices was unlawful and a violation of the Charter.

Although the Crown prosecutors can appeal this decision to the Supreme Court of Canada, we do not have any information at this time as to whether this decision will be appealed.  We will report any developments in this blog when further information becomes available.

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 reputation for effective results in defending all types of criminal legal charges.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  We are available when you need us most.

Provincial and Federal Government Being Challenged on the Status of Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

As we continue to blog about the devastating effects of solitary confinement in Canada, the latest development is that the Ontario Human Rights Commission (“OHRC”) filed a motion last week with the Human Rights Tribunal of Ontario.  The OHRC is requesting an order to make Ontario accountable for failing to meet its obligation to keep prisoners with mental health conditions out of segregation.

Solitary confinement is defined by the United Nations as more than 22 hours a day in a cell with no meaningful human contact.  It is to be limited to no more than 15 days.

As we have previously blogged, last year both the courts of appeal in Ontario and British Columbia found aspects of solitary confinement to be cruel and unusual punishment and in contravention of the rights and freedoms set out in the Charter.

In 2018, the government of Ontario agreed to only use segregation for inmates with mental health disabilities as a last resort.

HUMAN RIGHTS COMMISSION HOLDS THE GOVERNMENT ACCOUNTABLE

In 2013, the Ontario government settled a human rights case with Christina Jahn, a woman with mental-health disabilities and addictions, who was placed in solitary confinement for more than 200 days.  According to the terms of the settlement, prisoners with mental health conditions would only be placed in solitary confinement as a last resort. 

According to the OHRC, 46% of the 12,000 individuals placed in segregation in Ontario prisons between July 2018 and June 2019 had mental health alerts on their files.

In fact, an Ontario judge ruled that the federal government breached prisoners’ rights and ordered it to pay $20 million to thousands of individuals who were placed in solitary confinement for long periods of time.  Many of the almost 9,000 inmates were placed in isolation since the 2013 settlement.

According to the OHRC, the government of Ontario has failed to accomplish the following:

  • to ensure that people with mental health conditions are only placed in segregation as a last resort;
  • to conduct adequate mental health screenings and reassessments to identify those with mental health conditions in custody;
  • to implement a clear definition of segregation based upon the internationally accepted standard of being isolated in a prison cell for up to 22 hours per day;
  • to implement a system to accurately track segregation placements;
  • to comply with requirements to perform internal segregation reviews and ensure that those with mental health conditions are only placed in segregation as a last resort; and
  • to establish care plans to address the individualized care needs of those with mental illnesses.

All of these problems were similarly highlighted in a report published early in 2020 by Justice David Cole who completed an independent review of Ontario’s implementation of segregation in its prisons.

The OHRC is requesting that the Human Rights Tribunal of Ontario make the following orders:

  • prohibition on segregation for individuals with mental health disabilities;
  • strict limitation on segregation placement beyond 15 continuous days and a maximum limit of 60 days in a year; and
  • the creation of an independent monitor role to provide oversight on Ontario’s correctional system.

PRISON REFORM 2019

Last year, the Liberal government passed legislation creating a new system to replace solitary confinement.  Under the new system, prisoners are to be held in structured intervention units (“SIU”), a more civilized alternative to previous solitary confinement practices, where they are guaranteed fours hours outside of their cells on a daily basis and two hours of meaningful human contact.

According to the Correctional Service of Canada (“CSC”), the new structured intervention units are operating “humanely”.  The CSC has also set up a group of independent external decision makers to oversee the conditions and duration of each prisoner’s detention in a structured intervention unit.

PUBLIC SAFETY MINISTER TO REVIVE PANEL ON ABOLITION OF SOLITARY CONFINEMENT

Public Safety Minister, Bill Blair, has promised to revitalize the Implementation Advisory Panel as its term has ended before anything was completed.  The eight member panel was created in September 2019 to monitor the progress of the new SIUs and to ensure greater transparency. 

Anthony Doob (“Doob”), a criminologist and member of the panel, maintains that the panel never received the data it had requested from the Correctional Service of Canada (“CSC”) on numerous occasions regarding how the new system to replace solitary confinement was to operate.  Requests for records regarding why inmates were sent to SIUs, how long they were detained there and whether they received the freedoms they were promised under the new legislation were never provided to the panel.

Responding to questions by The Globe and Mail, Doob stated:

How much confidence do we have that the experience of a prisoner has changed?  My answer is none, because we don’t have any information. 

Minister Blair has promised to reappoint the panel members and provide them with the data requested.  He stated:

I have spoken to …chair Dr. Anthony Doob about the panel’s serious concerns and have asked my officials to work with the chair to develop a work plan that will help ensure the panel gets the information it needs to complete its work in a timely manner.

We will continue to follow developments in the matter of solitary confinement in Canada and blog about updates as they become available.

The Oshawa criminal defence lawyers at Affleck & Barrison LLP and its predecessors have been protecting client rights since 1992.  Our skilled team has extensive experience defending a wide range of criminal charges.  Whatever the nature of your criminal offence, we can help.  Please call us today at 905-404-1947 or contact us online for a free consultation.

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.

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.

Constitutional Challenge Filed by Prisoner Alleging Breach of Charter Rights

Written on Behalf of Affleck & Barrison LLP

Sean Johnston, a federal prisoner serving a life sentence for murder, has filed an application in federal court against Canada’s Attorney General and Correctional Service of Canada (“CSC”).  Johnston is currently serving his sentence in Ontario’s medium security Warkworth Institution.

Johnston, along with five human rights organizations including the Canadian Civil Liberties Association and the Canadian Prison Law Association, allege that CSC cannot keep prisoners safe as they are unable to ensure proper physical distancing measures are implemented without reducing the prison population.

According to CSC, two prisoners have died of COVID-19 and 333 prisoners have tested positive with COVID-19 in Canada.

ALLEGATIONS AGAINST THE GOVERNMENT

Johnston’s application alleges that the government’s failure to protect the health of the prisoners during the COVID-19 pandemic violates the liberties set out in the Charter of Rights and Freedoms

As there is currently no vaccine or approved treatment for COVID-19, physical distancing is the principal protection against contracting the virus.  It is alleged that the government has failed to take steps to transfer low-risk inmates to community supervision and has failed to implement appropriate infection control measures in their facilities, including testing, hand-washing and comprehensive cleaning of common areas.

According to Johnston:

Physical distancing measures in prison have been grossly inadequate.  Some of us remain double-bunked and cannot achieve physical distancing within our own cells, let alone throughout the institution.

The lawsuit alleges that:

Federal prisoners are disproportionately at risk both of contracting COVID-19 due to the nature of the penitentiary environment, and of suffering severe adverse outcomes including death, due to the prevalence among the federal inmate population of pre-existing vulnerabilities.

The lawsuit also alleges that some prisoners are resorting to the use of lockdowns (being confined to their own cells for indefinite periods of time), which is similar to segregation, in order to reduce the spread of the virus. 

According to the lawsuit, Johnston has served 28 years in prison and suffers from diabetes, heart problems, asthma, sleep apnea, post traumatic stress disorder and experiences blood clots.  He also uses a medical machine for asthma, which may increase the spread of the virus.  It is alleged that Johnston is a medically-vulnerable inmate and he and prisoners like him should be released and allowed to self isolate in the community.  Failing to do so is a breach of his rights under the Charter.

None of the allegations by Johnston have been proven in court. 

CLASS ACTION LAWSUIT AGAINST CORRECTIONAL SERVICE CANADA

Representative plaintiff, Joelle Beaulieu (“Beaulieu”), an inmate at the federal women’s prison in Joliette, Quebec that reports the most confirmed cases of COVID-19, has commenced an application for a class action lawsuit against CSC. 

It is alleged that CSC failed in their duty to protect vulnerable inmates from the spread of the deadly virus.  It is further alleged that federal prison officials were slow to implement preventative measures at the prison. 

Beaulieu’s action seeks $100 per day for all federal inmates since March 13, 2020 (the day when Quebec declared a medical emergency), and an additional $500 lump sum for those who contracted COVID-19.

Beaulieu claims that she was “patient zero” in the outbreak of the virus that has affected more than half of the 82 residents at Joliette Women’s Institution.  It is alleged that Beaulieu was forced to clean high-traffic common areas wearing only gloves.  Her requests for masks or other protective equipment were denied on three occasions.

According to the Statement of Claim, when Beaulieu began experiencing symptoms that included fever and muscle pain, she was given Tylenol and sent back to her unit.  Beaulieu alleges that a nurse told her she couldn’t have contracted COVID-19 as she had not travelled.  She was finally tested for the virus after suffering from symptoms for a week and had transferred units several times.

It is further alleged that as a result of testing positive, Beaulieu was detained in her cell all day, except for 15 minutes per day.  Her requests to speak with an Indigenous elder or mental health consultant were ignored.

None of the allegations have been proven in court and the Quebec Superior Court has not as of yet authorized the class action application.

THE CANADIAN GOVERNMENT’S RESPONSE

Public Safety Minister Bill Blair reported earlier this month in a government briefing that “literally hundreds” of Canadian inmates have been released from prison given the COVID-19 pandemic.  He has also assured the public that the government, CSC and the Parole Board have taken “a number of significant steps” to ensure the health and safety of the inmate populations.

It is unclear as to how many inmates have actually been released in an effort to prevent the spread of COVID-19 amongst the prison population in Canada.

Minister Blair has declined to comment on Johnston’s application and the CSC has responded that it is reviewing the application.

Esther Mailhot, a spokesperson for the CSC, has written:

CSC is working diligently to protect the safety of staff, inmates and the public.  Since the start of COVID-19 pandemic, management teams at all levels are engaging with local, provincial and federal public health authorities to navigate these unprecedented times.

We will continue to follow new developments regarding how the COVID-19 pandemic is affecting the Canadian justice system and will provide updates in this blog.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Ontario Court Finds Prostitution Laws Unconstitutional

Written on Behalf of Affleck & Barrison LLP

An Ontario court judge in London has recently ruled that parts of Canada’s prostitution laws are unconstitutional.  Justice Thomas McKay ruled that the charges of procuring, receiving a material benefit and advertising sexual services laid against a couple who ran an escort business should be stayed or set aside as they violate the Charter of Rights and Freedoms.

Although the judgement is significant, it does not nullify the law as the decision was made in provincial court and is not binding.  Therefore, the law remains in effect unless an appellate court agrees with Justice McKay’s lower court decision.

WHAT HAPPENED?

Hamad Anwar (“Anwar”) and Tiffany Harvey (“Harvey”) are common law spouses.  They ran an escort business called Fantasy World Escorts from December 2014 to November 2015.  Anwar owned the business and Harvey performed the management duties for the business.  Sexual services were provided in exchange for cash at two apartments in London, Ontario or other prearranged locations in London, Calgary and Edmonton. 

Both Anwar and Harvey were responsible for the company’s advertising, which included a website used to promote sexual services and to recruit new employees.  They also advertised on bus stop locations throughout the City of London.  They promised an average salary of $2,500 to $5,000 a week, paid annual vacation, benefits and help with tuition and book payments for students. 

In October 2015, an undercover police officer booked an encounter at a hotel in London.  The officer met the escort in the hotel room and gave her $220.  He then explained that he became nervous and was having second thoughts.  The escort texted Harvey to ask if she could return the money, but did not receive a response, so she left the hotel. 

The couple were charged with receiving a material benefit from sexual services (section 286.2(1)), procuring (section 286.3(1)) and advertising an offer to provide sexual services for consideration (section 286.4) in contravention of the Criminal Code.

CONSTITUTIONAL CHALLENGE

In 2014, Bill C-36, the Protection of Communities and Exploited Persons Act, received Royal Assent and altered Canada’s prostitution laws.  This bill criminalized the purchase of sex and communication, the actions of third parties who economically benefit from the sale of sex and any advertising of the sale of sexual services.  However, it did grant immunity to those individuals who advertise or sell their own sexual services.

The couple brought an Application before the court to challenge the constitutionality of the Criminal Code provisions that they were charged under.  They argued that these sections violate their Charter rights.

Anwar and Harvey argued before Justice McKay that the law did not provide sex worker protections to other sectors of society, including third-party managers, and did not allow sex workers the ability to form their own associations to protect themselves.  They also argued that the law violated their freedom of expression and the freedom from unreasonable government interference.

In short, the couple maintained that these laws endanger sex workers by forcing them to work alone, without any protection or ability to outline terms or conditions or to screen clients. 

Following eight days of evidence, Justice McKay found that the three provisions of the Criminal Code violated the rights set out in the Charter, and these violations could not be justified. 

McKay ruled that the criminalization of third-parties makes it almost impossible for most sex workers to work together, for health and safety reasons or to share staff.  He wrote that the effect of the current law is, “at a basic level to deprive sex workers of those things that are natural, expected and encouraged in all other sectors of the economy.  As a result, sex workers, who are more likely in need of protection than most workers, are denied the benefits accorded to mainstream labour.

McKay also ruled that the criminalization of procuring has the effect of isolating marginalized or inexperienced sex workers and prevents them from seeking advice and support from more experienced peers.

Although this is a lower level decision, it is an important decision for judges who consider similar cases. Defence lawyer, James Lockyer, stated:

In order for the sections to be considered null and void, it would have to go up to the next level of court to the Ontario Court of Appeal.  And that’s up to the Crown whether or not they appeal it.   That’s in their hands, not ours.  And if the Ontario Court of appeal gives a decision, if there was an appeal, then ultimately one or the other parties could take it on to the Supreme Court of Canada.

We will continue to provide updates on this blog regarding any developments with respect to prostitution law in Canada and specifically with respect to this case if Justice McKay’s decision is appealed.

In the meantime, if you have been charged with a sexual 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.  For your convenience, we offer 24-hour phone services.  We are available when you need us most.

Criminal Convictions are in Jeopardy Following Clarification of New Rules For Jury Selection by the Appeal Court

Written on Behalf of Affleck & Barrison LLP

A recent ruling by the Ontario Court of Appeal in the case of R. v. Chouhan, regarding how jury selection changes should be applied, could require new trials for those recently convicted in Ontario.

Pardeep Singh Chouhan (“Chouhan”) challenged the new rules for jury selection that were set out in Bill C-75 at the court of appeal.  The jury selection process in Chouhan’s first-degree murder trial took place on the same day as the changes to the legislation came into force.  The appeal court upheld the constitutionality of the new rules, however, ruled that the trial judge did not apply the new rules correctly.

WHAT CHANGES OCCURRED AS A RESULT OF BILL C-75?

As we have previously blogged, following the acquittal of Gerald Stanley, who was charged with killing a 22-year-old Indigenous man, Bill C-75 was introduced to modify the jury selection process in Canada.  The changes to jury selection were intended to make juries more representative.

The reform of the jury selection procedure under the new legislation, which came into force on September 19, 2019, is as follows:

  1. The trial judge will be the one to determine whether the prospective juror is likely to decide the case impartially in the circumstances when either party has challenged the juror for cause. 
  2. The ability to challenge prospective jurors by means of peremptory challenges by either party has been eliminated.
  3. The trial judge has been given the discretion to stand aside a juror for the purpose of maintaining public confidence in the administration of justice.

WHAT HAPPENED AT CHOUHAN’S TRIAL?

Chouhan was charged with first-degree murder in the 2016 shooting death of  Maninder Sandhu.  Chouhan was scheduled to select a jury for his murder trial on September 19, 2019, the same day that Bill C-75 and the changes to the jury selection process came into force.  We have previously blogged about this Superior Court decision.

At that time, Chouhan’s lawyers requested that the court use the previous jury selection rules as the new jury selection process violated Chouhan’s Charter rights.  The presiding judge rejected the defence arguments that doing away with peremptory challenges infringed Chouhan’s constitutional right to be tried by an independent and impartial jury.  Ontario Superior Court Justice John McMahon ruled that the new changes to the jury selection process should apply to every jury selected after the legislation came into force and for those cases in the system where the accused had already opted for a jury trial.

WHAT HAPPENED AT CHOUHAN’S APPEAL?

Chouhan’s case made its way to the court of appeal, at which point the unanimous court ruled that the new rules were constitutional and did not infringe Chouhan’s Charter rights.  However, the three judges of the appeal court held that the trial court did not apply the new rules appropriately.

Writing on behalf of the appeal court judges, Justice Watt wrote:

With respect to the temporal application of the amendments, I decide that the abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019.  …[T]he amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019, irrespective of when the right vested.

[N]ot all accused charged with an offence before September 19, 2019 have a vested right to a trial by judge and jury under the former legislation.  For the right to have vested, the accused must have, before September 19, 2019:

(i) been charged with an offence within the exclusive jurisdiction of the Superior Court;

(ii) been directly indicted; or

(iii) elected for a trial in Superior Court by judge and jury.

The Court of Appeal allowed Chouhan’s appeal, set aside his conviction and ordered a new trial on the indictment.

The Ontario government can appeal this decision to the Supreme Court of Canada.  We understand that the Crown is currently reviewing the appeal court decision and we will provide an update in this blog when information regarding the government’s decision on an appeal becomes available.

We will continue to follow the affects of the Chouhan decision on legal cases and will provide updates in this blog.  We can advise that only hours after the appeal court decision in the Chouhan case, two cases being heard in Toronto’s Superior Court (a murder charge and a sexual assault case) were declared mistrials.

If you have questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or contact us online.  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 to help you 24/7.

Two Convictions Overturned in Ontario Due to Rights Violations by Police

Written on Behalf of Affleck & Barrison LLP

As we begin the new decade, in two separate Ontario court decisions, police violations of the accused’s rights resulted in quashing convictions for child pornography and weapons offences.  The Ontario Court of Appeal found that the breaches of the convicted individuals’ Charter rights by police brought the administration of justice into disrepute.

THE CASE OF PETER MCSWEENEY

Peter McSweeney (“McSweeney”) was convicted in October 2017 of child pornography offences partly based upon incriminating statements he made to police.

In May 2016, nine police officers arrived at McSweeney’s home with a search warrant.  Durham Regional Police Detective Jeff Lockwood spoke with McSweeney on his porch and began questioning him without reading him his rights.  McSweeney provided a self-incriminating statement and he was then arrested and taken to the police station.

McSweeney again incriminated himself after stating that he wished to remain silent after talking to a lawyer.

During the trial, Judge Mary Teresa Devlin allowed McSweeney’s statements to be entered as evidence despite the defence objecting.  Justice Devlin ruled that McSweeney was not detained when he gave a self-incriminating statement on the porch and therefore the officer was not obliged to advise him of the right to speak to a lawyer.

At the Court of Appeal, the judges found that a “reasonable observer” would have believed that McSweeney was detained at home and also found that the questioning at the police station was improper.

Justice Strathy, writing on behalf of the two other justices hearing the appeal, stated:

The state conduct was willful and in disregard of the appellant’s asserted Charter rights.  It had a serious impact on those rights and on his attempt to exercise them.

As a result of this decision, the appeal court allowed the appeal, quashed the convictions and ordered a new trial.

THE CASE OF BILAAL MOHAMMED

In May 2016, Bilaal Mohammed (“Mohammed”) was convicted of several firearm offences, possession of property obtained by crime, and possession of cannabis for the purpose of trafficking.  At the time of his appeal, he had already served his sentence.

During a routine traffic stop, Mohammed was pulled over by provincial police in a parking lot near Alfred, Ontario for a broken license-plate light.  The officer smelled marijuana and gave Mohammed a “soft caution” (an informal caution) and did not  advise him of his right to speak to a lawyer.

Mohammed was strip-searched in the parking lot, to the point of having his pants dropped to his ankle.  Police did not find a gun.  During the search of his car, police found some cash, a debt list, a grinder, a scale, several cellphones, some cannabis and ammunition.

Mohammed was asked if he had a gun and was told that if he turned it over he would be released.  He admitted that he had a loaded gun strapped to his pant leg.  He was arrested, advised of his rights and taken to the police station, at which point his cellphone was searched.

At his trial, Mohammed was convicted of various offences for which he appealed.  He challenged the trial judge’s ruling to admit evidence obtained during his roadside strip search, his interrogation without counsel, the search of his vehicle, and the search of his cellphone. 

At the appeal, the Crown agreed that failing to initially advise Mohammed of his rights, questioning him before he was able to talk to a lawyer, as well as the strip search and the search of Mohammed’s phone without a warrant were serious Charter breaches.

The judges that heard the appeal agreed with the Crown and stated “each of the breaches is serious.  Taken as a whole, the breaches are so egregious that the evidence must be excluded.”

The appeal court ruled that the first strip search was not authorized by law.  Furthermore, it was conducted in public in a highly invasive fashion.  Mohammed’s section 7 and 10(b) Charter rights were breached as he was questioned without being provided the right to counsel and he was persuaded to turn over the gun on false pretenses.  Finally, the warrantless search of Mohammed’s cellphone used as evidence of drug trafficking was in violation of section 8 of the Charter.

The three justices on the appeal court panel wrote:

This was a series of serious rights violations, committed in apparent ignorance of well-established law, arising out of the appellant’s arrest for smoking a marijuana joint.  These violations had a significant impact on the appellant’s Charter-protected interests.

The Court of Appeal excluded all of the evidence, allowed the appeal and set aside the convictions.

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.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. 

Drug Conviction Overturned on Appeal as Police Delayed Access to Lawyer

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has overturned Daniel Marlon Noel’s conviction for drug offences.  The court found that Durham Regional Police breached his Charter rights by not allowing him to promptly speak to a lawyer on the night of his arrest.

WHAT HAPPENED?

On December 21, 2015 at 10:28 p.m., Durham Regional Police entered a residence where Daniel Marlon Noel (“Noel”), his partner and his brother were living pursuant to a search warrant.  All three individuals were suspected of operating a small-scale cocaine trafficking operation, which was under investigation by Durham Regional Police.  That evening, Noel was arrested at gunpoint by Officer Aiello in a bedroom containing his belongings and identification.  Officer Aiello did not advise Noel of his right to counsel.

Noel was taken to a central location in the house and within five minutes of the police’s entry into the residence Officer Gill read him his rights to counsel.  Noel asked to speak to a lawyer, however, no efforts were made to allow for his right to counsel.

The police search of Noel’s bedroom recovered $5,670 Canadian, $71 U.S., 73 grams of cocaine, 55 grams of marijuana and a digital scale.

Noel was transported to the police station at 11:04 p.m. and arrived at the station at 11:10 p.m.  Officer Gill testified that, while being led to the transport vehicle, Noel admitted ownership of the drugs and claimed that his brother was not involved. 

At 12:48 p.m., Officer Capener placed two calls to duty counsel for Noel and his partner, Stacey Long, and left messages requesting a return phone call. 

At 1:25 a.m., Noel learned that his brother had received a call from duty counsel.  Officer Westcott left another message for duty counsel to call Noel.

At his trial, Noel alleged the following Charter breaches:

  • That the entry to his home violated section 8 (right to be secure against unreasonable search and seizure);
  • That his arrest violated section 9 (right not to be arbitrarily detained); and
  • That his right to counsel was breached which violated section 10(b) (right to retain counsel without delay).

The trial judge rejected all arguments regarding Charter violations, except that Noel’s right to counsel without delay was violated.  However, Noel was denied the exclusionary remedy that he sought under the Charter, the evidence was admitted and Noel was convicted of the drug offences.

THE APPEAL

Noel appealed his conviction and argued on appeal that the trial judge erred in failing to find breaches of his Charter rights. 

The appeal court concluded that there was a violation of section 10(b) of the Charter and found that the police had a “cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay”.  Furthermore, the police could not provide a reasonable explanation for the delay. 

The appeal court wrote:

Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide.  … [Noel] asked to speak to counsel promptly but that right was denied. … We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel’s right to counsel without delay.

The appeal court allowed Noel’s appeal, set aside his convictions and substituted a verdict of acquittal. 

RIGHT TO COUNSEL

The right to counsel is one of the most important and recognized rights provided by the Canadian Charter of Rights and Freedoms.  Section 10(b) of the Charter provides:

10.       Everyone has the right on arrest or detention: 

b.         to retain and instruct counsel without delay and to be informed of that right.

The rights afforded under this section are designed to inform a detained individual of the scope of their situation and to ensure that legal advice is available. 

The right to counsel consists of an informational and an implementational component.  Thus, a detained individual must be informed of the right to counsel and this right must be understood by the individual (i.e. an interpreter may be required).  The implementational component involves the obligations and restrictions upon the police in conducting their investigation once the right to counsel has been asserted. 

The right to counsel must be provided without delay.  This is often interpreted to mean immediately in order to protect the detainee from the risk of self-incrimination 

Police must advise the detainee of his/her right to counsel and explain the existence and availability of legal aid and duty counsel if one cannot afford or cannot reach a lawyer.  Thus, the right to counsel also has a corresponding right to retain counsel of one’s choice. 

When a detainee has exercised his/her right to counsel, police must refrain from trying to elicit further evidence and refrain from questioning the individual until he/she has had an opportunity to speak with counsel. 

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 Rules that 18 Month Time Limits Also Apply to Youth Cases

Written on Behalf of Affleck & Barrison LLP

The highest court in Canada has ruled that the 18-month time limit required to bring an accused individual to justice, set out in the decision of R. v. Jordan, also applies to cases involving youth. 

According to Statistics Canada, there were 2,767 criminal cases that took longer than 12 months to complete in youth court in 2017-2018 (approximately 10% of all cases).  However, these numbers do not account for whether any of the delays were the result of actions on behalf of the defence.

WHAT HAPPENED?

In the case of R. v. K.J.M, a 15-year-old Alberta teen was charged with various offences arising out of fight that occurred during a house party in 2015.  K.J.M. was accused of stabbing a teen with a box cutter while intoxicated.  At his trial, K.J.M.  was found guilty of aggravated assault and possession of a weapon for a dangerous purpose almost 19 months after charges were first laid against him.  By the time his trial concluded in November 2016, K.J.M was nearly 17-years-old. 

Although the trial judge found that the total delay exceeded the 18-month ceiling, K.J.M.’s Charter application was dismissed as “it was not the clearest of cases where a stay should be granted”.  This decision was appealed to the Court of Appeal where it was again dismissed by the court and each of the three judges took a different approach in their reasons as to whether the 18-month ceiling applies to youth cases.

WHAT IS THE PRESUMPTIVE 18-MONTH CEILING?

We have previously blogged about the 2016 R. v. Jordan decision wherein the Supreme Court ruled that unreasonable delays in criminal cases violate an individual’s guaranteed rights under the Charter of Rights and Freedoms.

The Supreme Court specifically spelled out the rule that court proceedings could not exceed 18 months for provincial court cases and 30 months for more serious cases heard before the Superior Court.

However, the Jordan decision did not specifically address whether these timelines apply to individuals under the age of 18 who fall under the youth court system. 

THE SUPREME COURT RULING IN R. v. K.J.M.

In a 5-4 decision, the majority of the Supreme Court concluded that there is no evidence that the youth criminal justice system is suffering from the same delays as the adult system that would justify setting a lower ceiling for youth cases. 

Justice Michael Moldaver, on behalf of the majority, wrote:

Unless and until it can be shown that Jordan is failing to adequately serve Canada’s youth and society’s broader interest in seeing youth matters tried expeditiously, there is in my view no need to consider, much less implement, a lower constitutional ceiling for youth matters.

The majority of judges of the Supreme Court found that although K.J.M.’s trial exceeded the 18-month timeline, some of the delays were caused by the defence and therefore dismissed his appeal.

Three judges of the Supreme Court offered a dissenting opinion and concluded that a 15-month time limit would be appropriate for cases of young offenders.  Writing on behalf of the dissenting judges, Justice Rosie Abella and Justice Russell Brown wrote:

Doing so gives effect to Parliament’s intention in enacting a separate youth criminal justice system, to Canada’s international commitments, to the recognition in pre-Jordan case law that youth proceedings must be expeditious, and to the consideration that led to setting the presumptive ceilings for adults in Jordan.  … Just as the court in Jordan determined the appropriate ceiling for adult proceedings, a separate analysis is required for youth proceedings.

Graham Johnson, K.J.M.’s lawyer, is of the opinion that timely trials profoundly impact young people and delays can impact the prospect of rehabilitation. Johnson argued that a 12-month limitation for youth court proceedings would be more appropriate.  Mr. Johnson told CBC News:

In Canada, children as young as 12 can be charged with a criminal offence, and if it takes 18 months to get the case to court and there’s a guilty verdict, you’re then punishing a 14-year-old for what the 12-year-old did.  And there’s a certain, in my view, injustice in that, given how quickly children develop, mature and can change their behaviour.

Mary Birdsell, executive director of the organization Justice For Children and Youth, who was an intervenor in this case and advocated for lower time limits for youth court proceedings was disappointed with the Supreme Court ruling.  Ms. Birdsell stated:

Speedy justice is really important for young people because their sense of time is different, because their development is ongoing, and because you want to capture the moments for addressing underlying consequences in meaningful ways.

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.