Charter of Rights

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.

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:

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.
The ability to challenge prospective jurors by means of peremptory challenges by either party has been eliminated.
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.

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.

Changes to Jury Selection Upheld in Ontario Court

Written on Behalf of Affleck & Barrison LLP

An Ontario Superior Court of Justice has ruled that the changes to peremptory challenges of jurors should be applied to jury selection beginning September 19, 2019.

The decision in R. v Chouhan upholds the constitutionality of the new legislation found in Bill C-75 that removed the ability for lawyers to challenge potential jurors.

WHAT HAPPENED?

On September 19, 2019, Pardeep Singh Chouhan was scheduled to select a jury for a first-degree murder trial. This was also the day that Bill C-75 came into force.

The amendments set out in Bill C-75 reform the procedure for jury selection in the following three ways:

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. Previously, the court used lay triers to make this determination.
The ability to challenge prospective jurors by means of peremptory challenges by either party has been eliminated.
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.

In court, Chouhan’s lawyers argued that the provisions of Bill C-75, specifically the elimination of peremptory challenges, violates sections 7 (the right to life, liberty and security), 11(d) (the right to be presumed innocent until proven guilty) and 11(f) (the right to trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment) of the Charter of Rights and Freedoms. Chouhan’s lawyers argued that the new procedures would breach their client’s right to an independent and impartial jury by giving the trial judge the discretion to make the determination in circumstances of either party challenging the juror for cause.

Justice John McMahon concluded that Bill C-75 does not violate an individual’s rights under the Charter. Justice McMahon wrote in his decision:

The ability to exclude a potential juror based simply on their appearance, their look, or a person’s gut feeling, without furnishing a reason, is not transparent. The elimination of the peremptory challenge does make the justice system more transparent, but without removing either parties’ ability to set aside potential jurors for articulate reasons. The representativeness of the panel, the randomness of its selection and the ability for either party to challenge the process provide sufficient safeguards.

Justice McMahon held that an accused is not entitled to a jury that “reflects the proportionality of the population” or those of members of the same demographic group. He concluded that there are safeguards in place to ensure that the jury remains independent and impartial, including the ability to screen prospective jurors for bias and the trial judge’s ability to excuse or reject prospective jurors for specific reasons. He explained:

It appears that if either party can articulate reasons why a prospective juror would not be impartial, the judge would clearly have the ability to stand aside a prospective juror to maintain public confidence in the administration of justice.

Chouhan’s lawyers also argued that the changes to jury selection should not apply to those whose alleged offence occurred before Bill C-75 came into force. Justice McMahon dismissed this argument and maintained that the new rules should be applied for every jury selected after they went into force, including Chouhan’s pending trial.

WHAT IS THE NEW LAW REGARDING JURY SELECTION?

Section 634 of the Criminal Code provided the rules for peremptory challenges. Bill C-75 was established by the government in an effort to make juries more representative following the divisive acquittal of Gerald Stanley. We have previously written a blog regarding the case of Stanley, who was charged with second-degree murder in the death of an Indigenous man, Colten Boushie. In this case, there were no Indigenous members sitting in the jury.

Bill C-75 includes the removal of peremptory challenges from the jury selection process. Peremptory challenges were a means by which lawyers for both the prosecution and defence could dismiss a certain number of prospective jurors, without any explanation. The number of peremptory challenges allowed to a given party depended upon the seriousness of the crime, the number of jurors and whether there are co-accused. Some believe that this process was used to ensure a particular composition of the jury.

Under the provisions of Bill C-75, lawyers have the ability to disqualify prospective jurors that they believe cannot be impartial. However, under the new provisions, the judge makes the final decision. This change is meant to address a growing concern that the jury selection process may discriminate unfairly against potential jurors.

If you have any questions regarding charges 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.

Ontario Judge Awards $20 Million to Inmates Placed in Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

A recent decision by a Judge of the Superior Court of Justice of Ontario has ruled that the federal government breached prisoners’ rights and will have to pay $20 million to thousands of individuals who were placed in administrative segregation for long periods of time.

WHAT IS ADMINSITRATIVE SEGREGATION?

Administrative segregation refers to the isolation of inmates for safety reasons in circumstances when authorities believe there is no reasonable alternative. Segregation occurs when a prisoner is placed in a small cell for up to 22 hours without any human contact or programming.

Critics of administrative segregation argue that this method of isolation causes severe psychological harm and amounts to cruel and unusual punishment.

Courts in both Ontario and British Columbia have also ruled that this practice of segregating prisoners is unconstitutional.

WHO IS INVOLVED IN THIS CASE?

Julian Reddock (“Reddock”), the representative plaintiff (the individual who brings a case against another in a court of law), began his action in March 2017. His case was certified as a class action last year. The class comprises almost 9,000 inmates who were placed in isolation in federal penitentiaries for more than 15 days between November 1, 1992 and March 2015.

The class action claim alleges that the Federal Government breached the inmates rights to the following under the Canadian Charter of Rights and Freedoms (“Charter“):

to life, liberty, and security of the person (section 7);
not to be arbitrarily detained (section 9);
not to be tried or punished again for an offence (section 11(h)); and
not to be subjected to cruel and unusual treatment or punishment (section 12).

The class members also bring a claim in systemic negligence against the Federal Government.

According to Reddock, he spent days without leaving his cell and never knew when he would be allowed out. Reddock would find ways to consume anti-anxiety drugs, which he would use to knock himself out. He testified:

All I wanted was to pass out cold for as long as possible, again and again. It was all I could think to do to cope with the hopelessness of not knowing they would let me out.

WHAT WAS THE RULING?

Justice Paul Perell provided a lengthy written ruling, which was based upon 22,500 pages of evidence. The ruling held that the Federal Government breached the class member’s rights to life, liberty and security of the person and to be free of cruel and unusual punishment under the Charter by placing inmates in administrative segregation for more than fifteen days.

In regards to the negligence claim made by the class members, Justice Perell also ruled that the Federal Government had a duty of care in operating and managing the federal institution. The Judge concluded that the Federal Government’s breach of its duty of care resulted in damages to each of the class members.

Justice Perell concluded that Correctional Service of Canada violated the inmates rights protected under Canada’s Charter due to an absence of independent oversight and the lengthy terms of segregation, which caused numerous detrimental effects including anxiety, hallucinations, delusions, panic attacks and psychosis.

Justice Perell ruled that an inmate is considered to be “cruelly and unusually treated” once the placement in administrative segregation is more than 15 days.

In his ruling, Justice Paul Perell stated:

The Correctional Service operated administrative segregation in a way that unnecessarily caused harm to the inmates. Class members suffered harm because of a systemic failure. …Many of the administrative or disciplinary cells are very poorly maintained. They are filthy and unsanitary.

Even if some form of segregation were necessary to ensure the safety or security of the penitentiary and its population, there never has been an explanation and hence no justification for depriving an inmate of meaningful human contact. This form of segregation is not rationally connected to the safety of the penitentiaries.

Justice Perell awarded the class of inmates $20 million, but did not award any punitive damages. Each inmate is entitled to $500 for each placement in administrative segregation for more than 15 days for “vindication, deterrence, and compensation”. The individual class members have the right to pursue claims for punitive and other damages at individual issues trials, if they can prove individual harm.

The decision in the Reddock class action case is expected to be appealed by the Federal Government. We will continue to follow the developments in the legislation and case law regarding the legality of administrative segregation in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please contact Affleck & Barrison 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.

Ontario Judge Strikes Down Mandatory Minimum Sentence for Indigenous Offender Convicted for Impaired Driving

Written on Behalf of Affleck & Barrison LLP

Justice Paul Burstein has declared that Canada’s impaired driving laws are unconstitutional.

Justice Burstein ruled in the case of R. v. Luke that the mandatory requirement for a criminal conviction of a first impaired driving offence violates the Charter of Rights and Freedoms protections against cruel and unusual punishment.

WHAT HAPPENED?

Morgan Luke (“Luke”) is a 22-year-old Indigenous woman from the Mississaugas of Scugog Island First Nation. She was raised by her mother and maternal grandparents. Her Aboriginal ancestry is derived from her father, who she did not see much as she was growing up. He was a drug addict, alcoholic and had a lengthy criminal record.

As she grew older, Luke began to spend time at the Scugog Island reserve, participating in cultural activities and working summer jobs. She also had contact with her paternal family on the reserve.

Luke’s mother became ill when she was 15 years old, at which point she began spending more time with her father and moved to the Scugog Island reserve for 2 years. She began abusing drugs and alcohol and dating an older man who was a serious drug addict.

On November 4, 2017, Luke took her mother’s car without consent. She accelerated quickly out of the parking lot, causing the back of the car to slide out. She overcorrected and the car hit a curb and left the ground. The car landed on the sidewalk, just missing a lamp post.

Luke proceeded along Highway 7A when she was stopped by the police. The officer noticed a strong odour of alcohol on her breath and she admitted to having consumed alcohol. She was arrested for impaired driving and breath tests showed that her blood alcohol concentration was almost three times the legal limit.

According to Luke, she had been drinking all afternoon as she was upset after seeing her cousin with her boyfriend.

Following her arrest, Luke began counselling with two professionals associated with the Scugog First Nation. She has stopped using drugs and alcohol and has plans to finish high school and become a youth worker on the reserve.

THE CONSTITUTIONAL ARGUMENTS

Luke pleaded guilty to the charge of driving while impaired by alcohol. Section 255(1) of the Criminal Code provides a mandatory minimum sentence of a fine of not less than $1,000 to an individual who has been found guilty of impaired driving for the first time. This would result in a conviction and a criminal record.

According to section 730 of the Criminal Code, a court may grant an absolute or conditional discharge when it is in the best interest of the individual and is not against the public interest. A discharge of this nature does not result in a criminal conviction or a criminal record. However, under this section of the Criminal Code, discharges are not available to offenders who have been found guilty of offences that hold a mandatory minimum punishment.

Luke challenged the constitutionality of section 255 of the Criminal Code as it applies to the sentencing in her case. It was Luke’s position that section 255(1), which prevents the consideration of a discharge, violates her rights under the Charter. It was argued that the legislation provides a mandatory minimum sentence rather than allowing for a consideration of a discharge, thus allowing a punishment that is “grossly disproportionate” to an otherwise appropriate sentence.

On the other hand, the prosecuting Crown lawyers argued that section 255 does not violate the Charter, given the seriousness of the offence of impaired driving. Although the mandatory minimum punishment may seem disproportionate in some cases, it is not “grossly” disproportionate, which is the requirement for a Charter violation.

It is well-established law that legislative provisions which provide mandatory minimum sentences that are “grossly disproportionate” to an appropriate sentence will be found to infringe the Charter. A court must consider the following in these circumstances:

What would be the appropriate sentence for the offence taking into account the circumstances of the offence and of the offender?
Is the prescribed mandatory minimum sentence grossly disproportionate to the otherwise appropriate sentence for the offender?
If not grossly disproportionate for the offender before the court, could “reasonable foreseeable applications” of the mandatory minimum sentence result in grossly disproportionate sentences for other hypothetical offenders?

If the court finds that the mandatory minimum sentence would be grossly disproportionate for either the offender or another hypothetical offender, it must find that the provision is inconsistent with section 12 of the Charter.

OFFENDER’S INDIGENOUS STATUS CONSIDERED IN RULING

Justice Burstein stated that the mandatory minimum sentence prevents him from considering several factors fundamental to a just and appropriate sanction, including:

She is a young first time offender with strong rehabilitative potential;
The offence was motivated by her alcohol addiction and her continued treatment is expected to effectively deal with this issue; and
The offence was connected to her Aboriginal background and her Aboriginal heritage provides for rehabilitative and restorative sentencing options.

Justice Burstein found that imposing the shame of a criminal record for impaired driving would amount to a grossly disproportionate sentencing implication for Luke. Justice Burstein wrote:

On the facts of this particular case, I find that it would not be contrary to the public interest to grant Ms. Luke a conditional discharge and thereby relieve her of the lasting consequences of a criminal record. I am satisfied that a driving prohibition and two years of probation will adequately achieve the level of denunciation and deterrence required in this particular case, while still respecting the importance of Ms. Luke’s rehabilitative potential.

Justice Burstein granted Luke a conditional discharge with various conditions, including to attend counselling and treatment, perform community service work, attend school or maintain a job, and to only operate a motor vehicle when travelling to or from work, school or counselling appointments.

If you have been charged with impaired driving or any other driving offence, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer 24-hour phone service to ensure you have access to justice at all times.