Charter of Rights

SCC Rules Ontario’s Sex Offender Registry Unconstitutional for Those with Mental Illness

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada upheld an Ontario Court of Appeal decision which ruled in favour of a man who was found not criminally responsible for a sexual offence on account of a mental disorder (“NCRMD”) and who was later absolutely discharged. The decision held that he should be relieved of reporting requirements and his name be removed from the provincial sex offender registry.

The Road to the Supreme Court

Mr. G, whose name is unpublished due to a publication ban, was found not criminally responsible of two sexual offence charges against his wife. As we have previously blogged, these charges occurred as a result of Mr. G’s one and only manic episode that took place in September 2001.

Although the Ontario Review Board granted Mr. G an absolute discharge as he no longer posed a significant risk to the safety of the public, he was still required to register with Ontario’s sex offender registry under Christopher’s Law and to report to provincial authorities for life. Mr. G was also required to register and report under the federal sex offender registry.

Mr. G brought an application before the court arguing that placing individuals who are found NCRMD and are later absolutely discharged on federal and provincial sex offender registries infringes their rights guaranteed under the Charter. This application was dismissed by the Court.

Mr. G appealed the lower court’s decision to the Ontario Court of Appeal. The higher court allowed Mr. G’s appeal and concluded that Christopher’s Law be of no force or effect as it applies to those individuals who were found NCRMD and were granted an absolute discharge. The Attorney General of Ontario appealed this decision to the Supreme Court of Canada.

What is ‘Christopher’s Law’?

The Ontario Sex Offender Registry was established following the abduction and murder of 11-year old Christopher Stephenson by a convicted sex offender. Following the Coroner’s Inquest, it was recommended that a registry be created for convicted, dangerous, high-risk sexual offenders, requiring them to register with the police in the jurisdiction where the offender resides.

On April 23, 2001, the government of Ontario proclaimed that Christopher’s Law was in effect. This was the first province to establish a sex offender registry.

Christopher’s Law requires that those in Ontario who are either convicted or found NCRMD of a sexual offence to report to a police station to have their personal information added to the Ontario sex offender registry. Those who are on the registry musts report in person at least once a year and whenever their personal information changes.

Based upon an individualized assessment, an individual found guilty of a sexual offence can be removed or exempted from the registry and the reporting requirements. However, an individual found NCRMD of a sexual offence can never be removed from the registry or exempted from reporting.

Constitutional Implications

According to Christopher’s Law, those that are found NCRMD have no opportunity to be exempted or removed from the sex offender registry or to be relieved of their reporting requirements. Therefore, it is clear that those found NCRMD are subjected to different treatment simply based upon their mental illness.

One of the functions of section 15(1) of the Charter is to prevent discrimination of those facing stigma and prejudicial treatment due to mental illnesses.

The Supreme Court dismissed the appeal by the Attorney General of Ontario and agreed with the appeal court that Ontario’s sex offender registry law unconstitutionally prohibits those found NCRMD, but given an absolute discharge, an opportunity to be relieved of the requirements of the registry.

According to Justice Karakatanis, writing on behalf of the majority of the Supreme Court:

In my view, Christopher’s Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter. These discriminatory distinctions cannot be justified in a free and democratic society.

I have no difficulty concluding that the denial of exit ramps to those found NCRMD and discharged is discriminatory. …

The distinction drawn by Christopher’s Law reinforce and further the stigmatizing idea that those with mental illness are inherently and permanently dangerous, and in so doing, perpetuate the disadvantage they experience. …

[F]orced compliance with registry requirements, … can also contribute to a “double stigma” for those found NCRMD, as a result of being both “mentally ill” and a “sexual offender”. …

By withholding exit ramps, Christopher’s Law signals that the law considers G a perpetual threat to the public. That the state will not take its eyes off G suggests that, in the opinion of the law, he will always be dangerous.

According to the Supreme Court decision, Mr. G’s name will remain off of the Ontario registry. This decision also requires that the Ontario government amend Christopher’s Law in order to comply with the Supreme Court decision.

We will report in this blog on the government’s response to this recent decision and any amendments made to the legislation as ordered by the Supreme Court of Canada.

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 905-404-1947. 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 telephone service to protect your rights and to ensure that you have access to justice.

Latest Developments Regarding the Use of Segregation in Prisons

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged, last year the federal government passed legislation to eliminate the use of “administrative segregation” following decisions by the courts in Ontario and British Columbia, which found that placing prisoners in isolation for more than 15 days violated their rights under the Charter and was found to cause long-term psychological damage. This type of segregation, commonly referred to as solitary confinement, allowed prisoners to be isolated in their cells for more than 22 hours a day with no meaningful human contact.

The government replaced administrative segregation with “structured intervention”, which requires prisoners who need to be separated from the general prison population to receive four hours a day outside of their cells and at least two hours of meaningful human contact.

Despite the legislative changes to solitary confinement in prisons, a recent report discloses that prisoners give the structured intervention units a failing grade.

PRELIMINARY REPORT ON STRUCTURED INTERVENTION UNITS

An independent review panel, chaired by professor emeritus of criminology at the University of Toronto, Anthony Doob, appointed by the Liberal government to monitor the solitary confinement reforms released a preliminary report last month. The results showed that nearly 50% of the structured intervention unit (“SIU”) placements lasted beyond the 15-day threshold. Of the 1,646 prisoners placed in SIUs, less than 6% of prisoners in the new units were allowed to spend found hours outside of their cell every day. The report stated that only 46% of prisoners had received the two hours of meaningful human contact on at least half of days in the SIUs.

According to the report, Indigenous and Black prisoners make up a disproportionate amount of prisoners being placed in SIUs. Approximately 40% of prisoners sent to SIUs were Indigenous and 13% were Black prisoners.

The authors wrote:

The failure to achieve the four hours out of the cell and two hours of meaningful human contact are, obviously, a special cause for concern.

Public Safety Minister Bill Blair, in response to this report, stated:

This preliminary report raises serious concerns with our progress in implementing the SIUs. We take the findings of this report very seriously, and we won’t hesitate to address them. …

There is more work that needs to be done to address systemic racism and barriers within justice system, and the federal correctional system is no exception. By working to eliminate these barriers, we can ensure better equitable reintegration outcomes for Indigenous, Black and other racialized inmates.

‘DRY CELLING’ VIOLATES THE CHARTER

In other news regarding prisons in Canada, a New Brunswick woman argues that “dry cell” segregation violates her rights under the Charter due to its cruelty and lack of basic legal protections.

“Dry celling” occurs when an inmate suspected of concealing drugs is confined to a cell without running water or toilets so that their human waste can be examined for drugs.

Lisa Adams (“Adams”), who was incarcerated for drug trafficking at the Nova Institution for Women, was placed in segregation due to correctional officers suspicion that she had been hiding methamphetamine in her vagina while she was outside of prison on parole. Adams argues that a section of the Corrections and Conditional Release Act, which allows for the segregation and monitoring of prisoners for suspected drug concealment, violates the rights of Canadians guaranteed under the Charter and should be struck down.

Adams was given the choice of producing the drugs or being placed for 14 days in segregation for observation. According to Adams, she could not provide the drugs as she was not hiding them. After 14 days in segregation, she required medical attention for health reasons at which time she submitted to a vaginal exam. This examination revealed that she did not have the drugs on her, however, Adams was subjected to another two days in isolation.

Adams maintains that she suffered mental anguish due to the prolonged segregation and nearly constant observation by correctional officers, even when she showered or went to the bathroom. Furthermore, she was only allowed out in the prison yard five times and had no meaningful human contact except for a daily ten to fifteen minute visit by prison mental health staff during her isolation.

Adams argues that while in isolation her Charter rights prohibiting “cruel and unusual punishment”, the “right to life, liberty and security of the person” and her “right to be secure against unreasonable search or seizure” were violated.

The lawyer representing the federal Crown acknowledges that although Adams’ detention was unlawful as the law was not administered properly in Adams’ case, the practice of dry celling can be carried out appropriately and should not be struck down.

Justice John Keith has reserved his decision on this case.

We will continue to follow any developments in the law regarding solitary confinement and dry celling in Canada’s prisons and will report any updates in 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 contact Affleck & Barrison LLP at 905-404-1947 or contact us online. We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges. For your convenience, we offer 24-hour phone services.

Alberta Appeal Court Ruling Likely to Limit Electronic Device Searches at Canadian Border

Written on Behalf of Affleck & Barrison LLP

Sheldon Canfield (“Canfield”) and Kent Townsend (“Townsend”), both Canadian citizens, were charged with possession of child pornography contrary to section 163.1(4) and with importing child pornography contrary to section 163.1(3) of the Criminal Code.

The criminal charges against both men took place when they re-entered Canada at the Edmonton International Airport in 2014. Although the charges against the men are unrelated, both men sought an order from the Court under the Charter of Rights and Freedoms that the evidence of the search of Canfield’s cell phone and Townsend’s computer by border officers be excluded at their trials.

Both Canfield and Townsend had their electronic devices searched by border officers and were found to have child pornography in their possession. They were both arrested, convicted and appealed the Court of Queen’s Bench of Alberta’s decision not to exclude the evidence obtained during the search of their electronic devices by border officials. The Alberta Court of Appeal has ruled that the searches by the Canada Border Services Agency (“CBSA”) officers of the digital devices were unconstitutional as the Customs Act imposes no limits on the search of these types of devices at the border.

THE CRIMINAL CHARGES

At the Canadian border, Canfield was flagged for a secondary screening due to his travel patterns and “overly friendly demeanor” after returning home from Cuba. During this screening, an officer suspected that Canfield had child pornography on his phone. Canfield confirmed that he did and showed the officer an image of child pornography on his device.

Townsend was also arrested after being flagged by border officials when returning home from Seattle. Townsend was selected for a secondary screening due to his five-month travel pattern, his lack of eye contact with border officials and his lack of employment. He was also carrying 12 electronic devices. Child pornography images were found on Townsend’s laptop and he was arrested.

At trial, Canfield and Townsend were convicted of possession of child pornography and importing child pornography. Canfield was sentenced to 18 months in jail and Townsend was sentenced to two years.

THE APPEAL

At their appeal, it was argued that section 99(1)(a) of the Customs Act (“Act”) was unconstitutional as it permitted unlimited searches of electronic devices at the Canadian border.

Section 99(1)(a) of the Customs Act permits Canada Border Services Agency officers to examine “goods” that have been brought into Canada. This section has been interpreted to allow CBSA officers to search personal electronic devices without restriction.

The written decision by the three judge panel of the Court of Appeal stated:

While the search of a computer or cellphone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy. … To be reasonable such a search must have a threshold requirement.

According to the Court of Appeal, the trial judge failed to assess the application of section 99(1)(a) of the Act considering the developing technology of personal digital devices.

There is no doubt that there have been significant developments in the technology of personal electronic devices and the way they are used by Canadians (since 1988). Individuals were not travelling and crossing borders with personal computers or cell phones that contained massive amounts of highly personal information.

The Court ruled that the definition of “goods” in the Act is “of no force” when it comes to personal electronic devices.

The Alberta Court of Appeal found that section 99(1)(a) of the Act was unconstitutional as it imposed no limits on searches of electronic devices by CBSA officers at the border. The Appeal Court ruled that this section will be of no force and effect for one year to allow Parliament the opportunity to amend the Act.

Despite the Appeal Court’s ruling on the constitutional validity of the section, the convictions of Canfield and Townsend were upheld by the Court based upon the finding that the border officers acted in good faith in carrying out the searches and uncovered real evidence of serious offences. Furthermore, society’s confidence in the justice system was best maintained through the admission of the evidence obtained through the unconstitutional searches.

The CBSA, in a statement to CBC News, reported that it is currently reviewing the appeal court decision and assessing the next steps. According to the CBSA:

The CBSA’s policy is to examine a digital device only if there are indicators that evidence of a contravention will be found. It is important to note that examinations of digital devices are not conducted as a matter of course. …

This is a pretty big change in the law for the 98 million people who come through our Canadian border every year.

We will continue to follow any developments in the law with respect to the limits imposed on officers to search electronic devices at border crossings in Canada and will report them in this blog.

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

Judge Rules Adam Strong’s Statement to Police is Admissible as Evidence

Written on Behalf of Affleck & Barrison LLP

Adam Strong (“Strong”) is charged and currently on trial for the first-degree murders of Rori Hache (“Hache”), who went missing in Oshawa during the summer of 2017, and Kandis Fitzpatrick, who went missing in 2008.

Last week, Superior Court Justice Joseph Di Luca dismissed an application made by Strong’s legal team requesting that self-incriminating admissions by Strong not be admitted as evidence as police had violated their client’s Charter rights when he was questioned at his apartment on the night of December 17, 2017.

APPLICATION TO DISMISS ADMISSIONS MADE TO POLICE

Strong’s application to the court, under section 10(b) of the Charter, argues that he was not given proper access to a lawyer before he admitted to police that there was a dead body in his residence.

Justice Di Luca ruled that Strong’s admissions to police were admissible at trial as they were made voluntarily and made prior to his arrest for murder.

According to the evidence at Strong’s trial, police officers approached Strong’s basement apartment after receiving reports from plumbers working on clogged pipes at the house when they extracted 10 to 15 pounds of flesh from the drain in the house. Officers asked Strong what he had been flushing down the toilet, at which point Strong confessed that there were human remains in his basement apartment.

Durham Officer Kevin Park testified at trial:

At first he kind of sighed and dropped his head. He said ‘OK, you got me. The gig is up. It’s a body.

Officer Park testified that when he knocked on Strong’s door he did not plan to arrest him, he was inquiring as to who the tenant was in the basement apartment and what the substance was in the clogged pipe.

According to Officer Park, as he was putting Strong in the back of his cruiser when Strong said, “I want to spill the beans”. He had already read Strong his right to counsel, advised him that he was under arrest for murder and cautioned him that anything he said could be used as evidence.

While Officer Park was sitting in the front seat of his cruiser and writing his notes, Strong said “If you want to recover the rest of her, she’s in my freezer. She’s buried, defleshed.”

Strong has pleaded not guilty and his trial is expected to last three months.

SECTION 10(B) OF THE CHARTER

According to section 10(b) of the Charter:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

Section 10(b) of the Charter contains two parts. There is an information component – to inform the arrested suspect that they have a right to a lawyer. And there is an implementation component – to take steps to put the detained person in touch with a lawyer.

The Supreme Court of Canada, in the case of R. v. Willier, set out the circumstances that evokes the use of section 10(b) of the Charter. Chief Justice McLachlin wrote:

Accordingly, 10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage.

The Supreme Court case of R. v. Bartle, outlines the three duties imposed on police who make an arrest or detention:

To inform the detainee of his/her right to retain and instruct counsel without delay and the existence and availability of legal aid and duty counsel.
If a detainee has indicated a desire to exercise his/her right to counsel, to provide a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances).
To refrain from eliciting evidence from the detainee until he/she has had a reasonable opportunity (except in urgent and dangerous circumstances).

The right to retain counsel “without delay” is important as the detainee is to be afforded the opportunity to retain counsel no matter the time and place of the detention or whether he/she can afford to do so. The police must inform the detainee of the availability of legal aid and duty counsel to assist if the detainee does not have a lawyer. The police must provide the detainee with a free 1-800 number to contact duty counsel and with a means to do so.

The opportunity to contact counsel may not only arise at a police station, in some cases where a phone is available upon arrest and there is no reason to delay access, the police must allow the detainee to use the phone to contact counsel.

One of the key components of section 10(b) of the Charter, which was an issue in Adam Strong’s application to the court, is that the police must refrain from trying to elicit further evidence and undertake further questioning of the detainee until he/she has had a reasonable opportunity to speak with counsel.

We will continue to follow Adam Strong’s trial and will report any developments that occur 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 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.

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:

An offence has been or will be committed;
The document or data is in the person’s possession or control; and
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:

The right to life, liberty and security of the person (section 7); and
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.

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.