Charter of Rights

Supreme Court Finds In Favour of Racialized Man and Overturns Convictions

Written on Behalf of Affleck & Barrison LLP

A recent decision by the Supreme Court of Canada is sending a strong message regarding the harm of over-policing racial minorities in inner-city neighbourhoods.

In a 3-2 decision, the Supreme Court of Canada held that the police had no reasonable cause to enter a backyard and question an Asian-Canadian man and therefore set aside his convictions for possessing a gun, drugs and illicit cash.

WHAT HAPPENED?

In the evening of May 25, 2012, twenty year old Tom Le (“Le”) was speaking with four young black men in the backyard of a Toronto housing complex.

Police officers were tipped off by security guards who patrolled the complex that there were concerns of drug trafficking in the backyard of this address and that a suspect had been observed there.

Two police officers entered the backyard without consent or a judicial warrant and began to question and request identification from the young men. A third officer patrolling the perimeter of the property stepped over a low fence and told one of the men to keep his hands where he could see them.

One officer demanded that Le provide his ID and he was asked about the contents of a bag that was slung across his body. Le then attempted to flee the scene and was quickly tackled and apprehended. His bag was found to contain a loaded handgun and a considerable amount of cash. At the police station, Le turned over 13 grams of cocaine to police.

At his trial, Le argued that the evidence should be excluded under section 24(2) of the Charter of Rights and Freedoms as police violated his constitutional rights to be free from arbitrary detention and unreasonable search (contrary to sections 8 and 9 of the Charter).

At trial, the judge rejected Le’s position that police violated his rights under the Charter and found that police had legally detained Le. He was found guilty of several gun and drug offences and was also unsuccessful in challenging his convictions at the Ontario Court of Appeal. Le proceeded to commence an appeal to the Supreme Court of Canada.

SUPREME COURT OF CANADA’S DECISION AND REASONS

Contrary to the lower court decisions, the majority of the highest level of court in Canada threw out the convictions as a result of serious violations of Le’s rights under the Charter. The court ruled that the police actions amounted to an arbitrary detention and serious violation of Le’s rights and therefore the evidence must be excluded.

The purpose of section 9 of the Charter, prohibiting arbitrary detention, is to protect Canadians against unjustified state interference. A detention may not necessarily involve physical restraint, but may exist in a situation where “a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave”.

The Supreme Court found that in this case the detention was arbitrary as the police were trespassers and had no legal authority to detain the accused. Furthermore, their intimidating behaviour made Le feel as though he was unable to leave, even though he had the right to do so.

Although the incident occurred in a high-crime neighbourhood, the court found that the police did not have the authority to enter a private yard. The court stated:

Indeed, that a neighbourhood is policed more heavily imparts a responsibility on police officers to be vigilant in respecting the privacy, dignity and equality of its residents who already feel the presence and scrutiny of the state more keenly than their more affluent counterparts in other areas of the city.

The majority judges also found that the police had engaged in “carding” (a topic that we have previously blogged about), which is the police practice of randomly stopping and questioning individuals who are not suspected of any crime. This is a practice that unjustifiably affects racialized individuals.

The court found that the incident of the police entry into the backyard was another example of the experience of racialized young men who are targeted, stopped and questioned.

The court stated:

The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonable suspicion of criminal activity is more than an inconvenience. Carding takes a toll on a person’s physical and mental health. It impacts their ability to pursue employment and education opportunities.

Le’s lawyers, were thankful for the Supreme Court decision in favour of their client and the message that is being distributed. Emily Lam stated:

We’re grateful that the court heard us, that they heard the voices of marginalized and racialized communities, all of whom have been saying that they are police differently, and the court recognizing that their experience has been different.

Samara Secter stated:

I think this is a push from the Supreme Court to have police recognize that everyone’s rights deserve respect.

There has been no real response from Toronto Police Services other than its spokesperson stating that the ruling is being “reviewed and considered by the Toronto Police Service’s professional standards unit”.

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.

Sex Offender Registries Found to Discriminate Against those with Mental Illness

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal was asked to review sex offender registries in Ontario and Canada and assess whether individuals who are found not criminally responsible on account of a mental disorder (“NCRMD”) for a sexual offence should be included on these registries.

The Ontario Court of Appeal, in the case of G. v. Ontario (Attorney General), recently concluded that the sex offender registry schemes discriminate against individuals with a mental illness.

WHAT HAPPENED?

The appellant, G (the name used to protect his identity), is a middle-aged executive who lives in a middle-class GTA neighbourhood with his second wife.

In 2001, G’s father unexpectedly died, he endured an exhausting business trip to South America and he experienced anguish following the September 11^th attacks. In early September 2001, G began undergoing symptoms of grandiosity, paranoia, difficulty sleeping and irritability. He began spending excessive amounts of money, drinking heavily and experiencing a heightened sex drive.

One day, G asked his wife to have sex with him and began pulling her upstairs to their bedroom. He then stopped for a cigarette and a beer, at which point his wife called the police. The police arrived and advised G to move out for a few days. He left, but then returned to apologize to his wife. G apparently ran 22 miles to return home, while hearing voices telling him to jump in front of traffic. He asked his wife again to have sex with him and he “mistook her acquiescence due to fear of upsetting me as agreement”. His wife did not consent.

G’s wife proceeded to obtain a restraining order. G voluntarily went to a hospital and was diagnosed with a bipolar disorder. G then proceeded to break the restraining order and was put in jail. Prior to these incidents, G had no history of mental illness and no criminal record.

In June 2002, G was found NCRMD for two sexual offences against his wife, forcible confinement and violating the restraining order. He appeared before the Ontario Review Board in July 2002 and received a conditional discharge and was allowed to live in the community under certain conditions.

In August 2003, G received an absolute discharge from the Ontario Review Board, while he continued to receive treatment, take medication and return to work. He learned at this time that he would be on Ontario’s sex registry for life and would be added to the federal sex registry (where he could apply for removal after 20 years).

G was required to report to the parole and bail office regularly, provide physical details of his body parts, report all travel plans, and attend an annual check-in. He described these requirements as “punishing psychologically”.

G stated:

Every time I report, it takes time to prepare and gather my emotions, which is arduous. I have to prepare for possible negative interactions with some really tough cops.

G maintains that during the last 15 years he has remained law-abiding, and the fact that he has continued to be listed on the sex offender registry causes him significant angst and stress.

G’s ex-wife’s affidavit set out that G’s mental health “impacted his thoughts and actions when the sexual assaults took place”. She believes that being on the sex offender registries was a “significant hardship for him”.

THE ONTARIO COURT OF APPEAL DECISION

The Ontario sex offender registry was established in 2001 pursuant to Christopher’s Law. In December 2004, the federal sex offender registry became law pursuant to the Sex Offender Information Registration Act (“SOIRA”).

G’s lawyers, along with lawyers for the Canadian Civil Liberties Association, the Empowerment Council and the Criminal Lawyer’s Association, argued that the federal SOIRA and Ontario’s Sex Offender Registry violate G’s rights under the Canadian Charter of Rights and Freedoms.

Justice David Doherty, writing for the unanimous three-judge panel, agreed that G’s rights had been violated under section 15 of the Charter, which state that every individual should be equal before and under the law without discrimination, including for mental or physical disability.

Justice Doherty wrote:

the absence of any “exit ramp” from the sex offender registries (apart from a termination order after 20 years in the case of SOIRA) reflects an assumption that persons who committed criminal acts while NCRMD do not change, but rather pose the same ongoing and indeterminate risk they posed at the time of the offence. This assumption feeds into the stereotypical notion that persons found NCRMD are inherently and indefinitely dangerous.

Justice Doherty went on to state:

I hold that the equality command of s. 15(1) dictates that NCRMD persons who have received an absolute discharge must have some opportunity to address both their risk of reoffending and the potentially negative effects of sex offender registry orders on their mental health and continued recovery.

The Court of Appeal concluded that the provisions of Christopher’s Law and the SOIRA are of no force or effect as they impose mandatory registration and reporting requirements with no possibility of exemption on persons found NCRMD who have received an absolute discharge.

The Court ordered that the declaration of invalidity of both Christopher’s Law and the SOIRA be suspended for twelve months to allow for Parliament to provide an appropriate legislative response. Furthermore, it was ordered that G be removed from the sex offender registries and that he was no longer required to comply with the obligations as set out in the infringing legislation.

We will continue to keep on top of any changes to the sex offender registries in both Ontario and Canada and will report in this blog the government’s legislative response to the Ontario Court of Appeal’s latest decision.

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.

B.C. Judge Finds Provocation Defence Unconstitutional

Written on Behalf of Affleck & Barrison LLP

A British Columbia Supreme Court judge has ruled that a 2015 amendment to the Criminal Code, which limits when an accused killer can use the defence of provocation, is unconstitutional.

Justice Douglas Thompson ruled that the amendment in question only allowed for the partial defence of provocation in murder cases if the victim committed an indictable offence (most serious of offences) punishable by a sentence of five or more years, which is contrary to the rights and freedoms set out in the Charter.

THE DEFENCE OF PROVOCATION

Stephen Harper’s Conservative government amended the definition of provocation prior to the 2015 election through the Zero Tolerance for Barbaric Cultural Practices Act.

This legislation changed the definition of provocation from “a wrongful act or an insult that is of such nature as to be sufficient to deprive an ordinary person of the power of self-control …if the accused acted on it on the sudden and before there was time for his passion to cool” to “conduct of the victim that would constitute an indictable offence …punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool”.

The intention of the government in amending the law was that a victim had to have committed a crime so serious against an accused to argue that the accused was provoked into killing, not merely upset by the victim. However, Justice Thompson found that the law as it was written denied vulnerable victims of domestic abuse and racism the ability to claim provocation when they are incited to respond violently by behaviour that is not quite criminal.

Justice Thompson wrote in his ruling:

It is an unfortunate but notorious fact that people of colour and members of other marginalized communities are sometimes subject to despicable and hateful rhetoric, and that women are sometimes subject to intense psychological abuse by their male partners. … Although the provoking behaviour does not constitute an indictable offence punishable by at least five years’ imprisonment, it is reasonably foreseeable that the targets of this conduct may respond violently.

WHAT HAPPENED?

Michael Philip Simard (“Simard”) was in an “on again, off again” relationship with Leanne Larocque since 2014. On October 5, 2016, Simard, armed with an assault rifle, entered the home of Larocque and proceeded to kill her and Gordon Turner. Simard called 911 and then proceeded to shoot himself before the police arrived.

Simard was charged with two counts of second-degree murder.

Michael Philip Simard challenged the constitutionality of amendments to section 232(2) of the Criminal Code arguing that the wording infringed his section 7 rights to life, liberty and security of person under the Charter, preventing him from raising a partial defence to reduce his charges of second-degree murder to manslaughter.

Justice Thompson agreed with Simard’s Charter arguments and found that the section in question in the Criminal Code to be overly broad and arbitrary. Justice Thompson stated in his ruling:

…it is clear that s. 232(2) engages s. 7 of the Charter. Second-degree murder carries a mandatory minimum sentence of life in prison. On the other hand, manslaughter has no mandatory minimum sentence (unless a firearm is used in the commission of the offence…). Circumscribing the available of the partial defence affects the liberty of anyone who would previously have been able to advance a provocation defence.

Justice Thompson struck down the current wording, thus returning the law to its original wording. However, he proceeded to convict Simard of second-degree murder.

The government’s objective in amending the definition of provocation in the Criminal Code in 2015 may have been to protect vulnerable women by ensuring that those who might attack them would not be allowed to argue the defence of provocation after the fact. However, Justice Thompson ruled that the “amended provisions extend to behaviour far beyond the object of the legislation. Provocation has never been confined to situations in which the victims are vulnerable women.”

Simard’s lawyer, Matthew Nathanson, considered Justice Thompson’s ruling to be significant as it was the first time a court had considered the new limits on the defence of provocation in Canada. Nathanson stated:

The court found that the purpose of the law was to protect vulnerable women. Clearly this is an important and appropriate goal. However, the court also found that in certain situations the law would deny the defence of provocation to women who killed in the context of serious domestic violence. In this way, a law designed to protect vulnerable women would deny them an important defence. This is counterintuitive and unfair. In constitutional terms, it means the law is arbitrary, overbroad, and had to be struck down.

Simard will return to court on May 7, 2019 for sentencing. The offence of second-degree murder carries a mandatory sentence of life imprisonment.

Supreme Court Rules a Crucial Element of Child Luring Law is Unconstitutional

Written on Behalf of Affleck & Barrison LLP

Last month the highest court in Canada ruled that a provision in the law forbidding the luring of children over the internet is unconstitutional and ordered a new trial for alleged offender Douglas Morrison (“Morrison”). This decision may result in a number of child luring convictions being overturned across Canada.

In this landmark decision regarding the validity of child luring laws in Canada, the Supreme Court of Canada struck down two parts of the child luring laws found under section 172.1 of the Criminal Code. The decision in R. v. Morrison will affect those cases where police officers pretend to be minors in an effort to apprehend suspected online predators.

WHAT IS THE CHILD LURING LAW IN CANADA?

The offence of child luring in Canada can be found in section 172.1 of the Criminal Code. Child luring is defined as using the internet to communicate with an individual who is, or who the perpetrator believes to be, under the age of 18 for the purposes of committing the offence of sexual exploitation, incest, child pornography or sexual assault.

You may also be charged with child luring if you communicate with an individual you know, or believe to be, under the age of 16 for the purposes of committing the offence of sexual exploitation, invitation to sexual touching, indecent exposure to a person under the age of 16 or abduction of a person under 16 years old.

If the Crown chooses to proceed by indictment (more serious offences) and you are found guilty of child luring, you will face a minimum of one year in prison, up to a maximum of 14 years in prison. If the Crown chooses to proceed summarily (less serious offences), you will face a minimum of 6 months in jail, up to a maximum of 2 years less a day.

WHAT HAPPENED IN R. v. MORRISON?

Morrison was charged with child luring under section 172.1 of the Criminal Code. He posted an online ad on Craigslist pursuing sexual conversations and stating he was interested in younger girls. His ad was entitled “Daddy looking for his little girl”.

Over the course of two months, police posed as a 14 year old girl named “Mia”. Morrison began a sexual discussion with Mia, requested that she touch herself sexually, suggested she watch pornography, asked her for photographs, and arranged to pick Mia up after school (the encounter never occurred). Consequently, Morrison was charged with child luring.

During his trial, Morrison argued that he believed he was speaking to an adult online who was role playing as a character of a 14 year old girl. He maintained that the rules on Craigslist require that users are to be 18 years old or older. He was convicted at trial and the conviction was upheld by the Ontario Court of Appeal.

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

On appeal to the Supreme Court of Canada, Morrison brought three Charter of Rights and Freedoms (“Charter”) challenges pertaining to section 172.1 of the Criminal Code. The Charter arguments before the court were the following:

Section 172.1(3) violated his right to be presumed innocent under section 11(d) of the Charter;
Section 172.1(4) contains presumptions (requiring a person to take reasonable steps to ascertain the age of the individual they are contacting and to ensure he/she is not underage) that were not in accordance with the principles of fundamental justice and violated section 7 of the Charter, which protects the right to life, liberty and security of a person; and
Section 172.1(2)(b) contains a mandatory minimum sentence of one year in prison which violated the guarantee against cruel and unusual punishment found in section 12 of the Charter.

The Supreme Court of Canada overturned Morrison’s conviction citing errors made by the trial judge. The Court ruled unanimously that the government’s wording of the child luring law violates the presumption of innocence guaranteed by the Charter. It is the role of the Crown to prove beyond a reasonable doubt that an accused genuinely believed he/she was communicating with an individual who was underage.

Justice Michael Moldaver, writing for the majority of the Court, stated:

In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage. Nothing less will suffice.

The accused, in his/her defence, may prove that he/she took “reasonable” steps to determine if the alleged victim was underage. If this cannot be shown, then the accused cannot argue that he/she believed the alleged victim was of legal age.

The Supreme Court was also asked to consider the appeal by the Crown that Morrison was not given the mandatory one-year minimum sentence. The trial judge gave Morrison a four month sentence, and ruled that the one year mandatory minimum sentence found in the Criminal Code was unconstitutional as it violated the guarantees found in the Charter against cruel and unusual punishment. However, the majority of the justices did not rule on this issue.

Given the potential ramifications resulting from the Supreme Court of Canada’s decision in R. v. Morrison, we will continue to follow any developments in the news and the case law and will report any updates that become available in this blog.

In the meantime, if you are facing child luring charges or have any questions regarding your legal rights, please contact the knowledgeable criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal 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. We are available when you need us most.

Strip Searches in Ontario are Occurring Too Often

Written on Behalf of Affleck & Barrison LLP

A new report released by the Office of the Independent Police Review Director (an independent civilian oversight agency responsible for overseeing all complaints regarding the police in Ontario) concludes that police officers in Ontario are conducting unnecessary, and sometimes unlawful, strip searches which interfere with privacy rights and negatively impact criminal court cases.

Gerry McNeilly, the Independent Police Review Director since June 2008, authored the report entitled “Breaking The Golden Rule: A Review of Police Strip Searches in Ontario” (the “report”).

WHAT IS A STRIP SEARCH?

In 2001, the Supreme Court of Canada, in the case of R. v. Golden (“Golden”), defined the elements of a strip search and explained how strip searches are to be lawfully conducted. A strip search is defined as the removal or rearrangement of some or all of someone’s clothing to allow for an officer to visually inspect their genitals, buttocks, breasts or undergarments.

The majority of the Supreme Court of Canada emphasized the importance of preventing unjustified strip searches and recognized that these searches are “inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy”.

The Court went on to explain that strip searches are only constitutionally valid when they are “conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest”.

However, despite this decision, it has been found that courts in Ontario repeatedly find that strip searches conducted by police officers are unlawful or unreasonable, resulting in the exclusion of evidence or the stay of charges.

STRIP SEARCH FINDINGS BY THE NUMBERS

The report found that police in Ontario conduct approximately 22,000 strip searches a year, with the majority being conducted by Toronto Police Service.

According to the report, in 2016 Toronto police conducted 17,654 strip searches (occurring in approximately 37.5% of all arrests that year). Strip searches were found to have occurred in more than 40% of all arrests in Toronto in 2014 and 2015. This was found to be 40 times higher than the rate of strip searches conducted by police services in Hamilton, Durham Region, Ottawa, Windsor and the Ontario Provincial Police during the same time period.

A spokesperson for the Toronto police, Meaghan Gray, has advised that the Toronto police are “addressing the challenges and sensitivities associated to strip searches for the last few years”. Toronto police are reviewing procedures and training of their officers and have recently launched a full body scan pilot project, which is aimed at reducing strip searches. Ms. Gray emphasized that when strip searches are conducted appropriately, “they can be a necessary safety requirement resulting in the seizure of weapons and drugs which pose a significant risk to the person and those around them.”

According to the report, since the ruling in the case of Golden, Toronto police were involved in 40 of the 89 criminal court decisions where a judge found that a police strip search had violated the defendant’s Charter rights.

RECOMMENDATIONS

The report provides a template for strip search procedures and a sample strip search form. The report also offers 50 recommendations on how Ontario police services should conduct, document, and train their officers on strip searches. These recommendations include, but are not limited to the following:

ensure that all police services comprehend the law regarding strip searches and the implications of violations;
enhance training for strip searches and incorporate strip searches into police services annual or biennial training;
clearly define what constitutes a strip search in keeping with the Supreme Court ruling in Golden;
strip searches should ordinarily be authorized in advance and be carried out by an officer of the same gender;
every Ontario police service should be made aware of judicial findings of Charter violations in strip search cases, and take measures to address the issues raised;
all Ontario police service must keep accurate statistics of the number of persons arrested or detained, the number of persons strip searched, and the justifications provided for conducted strip searches; and
statistics kept by Ontario police service should identify the race of the person subjected to a strip search in an effort to evaluate whether race plays a role in the decision to conduct strip searches.

We will continue to follow any developments in the news and in case law regarding strip searches in Ontario and will provide updates in this blog as they become available.

In the meantime, if you have any questions regarding charges laid against you or 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 clients’ rights. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Court of Appeal Limits Solitary Confinement to 15 Days

Written on Behalf of Affleck & Barrison LLP

As we continue to blog about the ever changing laws regarding solitary confinement in Canada, the Ontario Court of Appeal has ruled that placing inmates in solitary confinement for more than 15 days constitutes cruel and unusual punishment. This is the first time a Canadian court has imposed a specific time limit on solitary confinement.

WHAT HAPPENED?

The Canadian Civil Liberties Association (“CCLA”) launched the challenge of solitary confinement four years ago.

A lower court in Ontario found that solitary confinement could cause serious psychological harm to inmates, but these impairments could be avoided if staff adhered to existing laws requiring close monitoring of prisoners’ health. Justice Marrocco of the Ontario Superior Court of Justice rejected the CCLA’s argument that solitary confinement constituted cruel and unusual punishment and was in violation of Section 12 of the Charter of Rights and Freedoms.

The CCLA appealed Justice Marrocco’s decision and the case was argued before the Ontario Court of Appeal. Justice Mary Lou Benotto, writing on behalf of the three-judge panel of the Ontario Court of Appeal, ruled that the Correctional Service’s use of prolonged administrative segregation could cause permanent harm that no level of medical monitoring could prevent.

Justice Benotto stated:

Legislative safeguards are inadequate to avoid the risk of harm. In my view, this outrages standards of decency and amounts to cruel and unusual treatment.

The Appeal Court did reject the CCLA’s position that solitary confinement should be banned entirely for inmates who are 18 to 21 years of age, those with mental illness, or those in segregation for their own protection.

THE IMPACT OF THE APPEAL COURT DECISION

Michael Rosenberg, co-counsel for the CCLA, stated:

With this decision, the Court of Appeal has brought to an end a sorry chapter in the administration of Canada’s prisons. This is a significant win for the CCLA and for the administration of justice more generally.

What is most unusual about this decision is that the Court of Appeal has applied a short timeline to institute action. The Appeal Court has ruled that the 15-day cap of solitary confinement is to take effect 15 days following the decision.

Noa Mendelsohn Aviv, equality director for the CCLA, stated:

Usually, courts give governments months or a year to fix problems before a declaration of invalidity becomes active. With this short timeline, the court is saying this is enough, this is intolerable, this cannot continue.

The Correctional Service of Canada is currently reviewing the Appeal Court’s ruling. Public Safety Minister Ralph Goodale has not yet commented on the latest decision regarding solitary confinement. A spokesperson for Goodale has advised that his office is also reviewing this recent decision.

FEDERAL INMATES WIN CLASS-ACTION LAWSUIT

Last week, federal inmates were successful in their class-action lawsuit against the Correctional Service of Canada. A judge found that the practice of isolating approximately 2000 seriously mentally ill inmates breached Sections 7 and 12 of the Charter. These sections protect against arbitrary state actions and cruel and unusual punishment.

Ontario Superior Court Justice Paul Perrell has ordered the federal government to pay $20 million for placing mentally ill inmates in solitary confinement for more than 30 days involuntarily and for those who spent more than 60 days in administrative segregation voluntarily.

Justice Perrell stated:

The placement of a seriously mentally ill inmate in administrative segregation goes beyond what is necessary to achieve the genuine and legitimate aim of securing the safety of the institution. It does not accord with public standards of decency or propriety in the treatment of a mentally ill inmate.

The funds are to remedy to the harm caused to society which has suffered from the correctional service’s failure to comply with the charter and also its failure to comply with the spirit of the Corrections and Conditional Release Act and its purpose of rehabilitating mentally ill inmates to return to society rather than worsening their capacity to do so by the harm caused by prolonged solitary confinement.

It has not yet been determined how compensation will be distributed amongst individual members of the class. Submissions to the court regarding this issue will be heard by the court at a later date where individual members of the class can put forth personal medical and prison records to make a case for damages. Those inmates who spent less than 30 days in administrative segregation will also be able to put forward claims on an individual basis.

In the meantime, Justice Perrell has ordered that $20-million be put towards mental-health resources and other programming at federal prisons, less legal fees. Therefore, the total amount for damages will be more greater than $20-million.

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.

Ontario Will Not Appeal Decision to Stay Murder Charge Against Adam Capay

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada, and are revisiting this issue given the recent announcement by Ontario Crown prosecutors declaring that they will not appeal Superior Court Justice John Fregeau’s decision to stay the proceedings in the first-degree murder case against Adam Capay (“Capay”).

On January 28, 2019, Justice John Fregeau stayed the first-degree murder charge against Capay due to the “complete and utter failure” of Ontario’s correction system in managing Capay’s solitary confinement for more than four years while awaiting trial. Capay was released to his family following this decision.

WHAT HAPPENED?

On June 3, 2012, Capay fatally stabbed Sherman Quisses (“Quisses”) twice in the neck while they were in a correctional facility in Thunder Bay.

Capay was immediately placed in segregation after his attack on Quisses on the basis that he was a threat to both himself and other prisoners. Capay was kept in a Plexiglass cell with the lights on 24-hours a day for 1,647 days. He was often kept in detention blocks where he was not allowed to flush the toilet from inside the cell.

Capay’s decline became publicly known after Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, visited him during a tour of Thunder Bay District Jail and released the details to the media.

Capay described his lengthy segregation as having impaired his ability to speak and differentiate day from night. On October 18, 2016, The Globe and Mail published the first in a series of stories about Capay and his prolonged isolation.

JUSTICE FREGEAU’S DECISION TO ORDER A STAY

Capay’s lawyers requested a stay (a ruling by the court halting any further legal proceedings) of the first-degree murder charge on the basis that Capay’s rights were violated under the Charter of Rights and Freedoms (“Charter”). Justice Fregeau heard testimony from corrections staff and numerous experts in the field of forensic psychiatry, human rights, and correctional law and policy.

Justice Fregeau found that Capay suffered from pre-existing mental-health issues as a result of his childhood experiences of physical and sexual abuse, domestic violence in his home, parental alcoholism and other intergenerational trauma, and concluded that these issues were exacerbated by his isolation, sleep deprivation, and lack of access to mental health services.

According to Justice Fregeau, Capay’s isolation violated four sections of the Charter, including:

The right of life, liberty and security of person (Section 7);
The right not to be arbitrarily detained (Section 9);
The right not to be subjected to cruel and unusual punishment (Section 12); and
The right to be equal before and under the law (Section 15).

Although Capay was responsible for Quisses’ death, his many years of isolation amounted to cruel and unusual punishment and a violation of his Charter rights.

Justice Fregeau ruled that these Charter violations were so “prolonged, abhorrent, egregious and intolerable” that the only appropriate solution was to stay his murder charge and allow Capay to be released.

Justice Fregeau’s decision set out the following issues with the Thunder Bay District Jail, which included:

Failing to hold legally mandated reviews of Capay’s segregation status;
Advising staff to avoid talking to the inmate; and
Neglecting Capay’s declining mental health.

Justice Fregeau wrote in his decision:

When exercising their statutory discretion in making segregation decisions regarding the accused, the complete and utter failure of correctional officials to properly balance the accused’s charter rights with the statutory objectives can only be described as profoundly unreasonable, unacceptable and intolerable.

…

The treatment of the accused was, in my opinion, outrageous, abhorrent, and inhumane. There would be ongoing prejudice to the accused if forced to proceed to trial.

RECOMMENDATIONS MADE TO THE CORRECTIONAL SERVICES MINISTER

On February 21, 2019, Renu Mandhane (“Mandhane”), chief commissioner of the Ontario Human Rights Commission, wrote an open letter to the Honourable Sylvia Jones, the Minister of Community Safety and Correctional Services, calling for an end to segregation in Ontario.

Mandhane emphasized that prisoners in Ontario continue to be held in segregation for extended periods of time, despite the fact that it is harmful to their mental and physical health, and undermines institutional safety, rehabilitation and reintegration.

The data from May 2018 reveals that there were nearly 4,000 segregation placements over a two-month period, with 657 of those exceeding 15 days.

Mandhane wrote:

The numbers are large and it can be hard to remember that each number represents a person. Adam Capay’s treatment is a reminder of the lived reality behind the numbers and the long-term negative consequences that segregation has on prisoners, correctional officers, victims of crime, the community and the administration of justice.

Mandhane recommends that the government immediately launch an action plan, including limiting segregation to fifteen-days, judicial reviews of isolation decisions, and bans on the segregation of pregnant, suicidal, mentally ill and physically disabled inmates.

The previous Liberal government passed a bill incorporating many of Mandhane’s recommendations prior to last year’s election, however, this bill has not yet been proclaimed by the Lieutenant-Governor and the new Progressive Conservative government.

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

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

Sentence of Life With No Parole for 40 Years for Quebec Mosque Shooter

Written on Behalf of Affleck & Barrison LLP

Last week two sentencing decisions were made in two high profile criminal cases in Canada. In both decisions, the court was left to decide how many years the accused will have to wait until he can apply for parole given the multiple counts of first-degree murder.

As we wrote in our blog last week, Bruce McArthur (“McArthur”), 67 years old, pleaded guilty to eight counts of first-degree murder in the deaths of eight men who disappeared between 2010 and 2017 in Toronto’s Gay Village. Justice John McMahon sentenced McArthur to life in prison for each of the eight counts. Justice McMahon did not order consecutive periods of parole ineligibility and instead decided that McArthur was not eligible for parole for 25 years.

Justice McMahon, in his sentencing reasons, stated:

Due to the accused’s age, I am satisfied that when dealing with the protection of the public, concurrent periods of parole ineligibility can adequately address the protection of the public. It would not be until Mr. McArthur is 91 years of age that he could apply for consideration for parole.

In Quebec, Alexandre Bissonnette (“Bissonnette”), 29 years old, pleaded guilty to killing six men at a Quebec City mosque on January 29, 2017. He was sentenced to life in prison with no possibility of parole for 40 years.

WHAT HAPPENED AT BISSONNETTE’S SENTENCING HEARING?

In March 2018, Bissonnette pleaded guilty to six counts of first-degree murder and six counts of attempted murder as a result of his actions on the evening of January 29, 2017.

Bissonnette, armed with a .223-calibre rifle, a 9-mm Glock pistol, and 108 bullets, shot into a crowded prayer room at the Islamic Cultural Centre as Sunday prayers were ending.

The Crown prosecutor argued before the Quebec Superior Court that the parole periods should be consecutive, which would result in a total of 150 years with no chance of parole. This would have been the longest prison sentence in Canadian history. To date, the longest prison sentence of 75 years without parole has been handed down in five cases involving triple killings. For example, in the case of Justin Bourque who murdered three RCMP officers in New Brunswick in 2014.

Bissonnette’s lawyer argued that his client’s sentences should be served concurrently. This means Bissonnette could seek parole after 25 years in prison. Bissonnette was described by his lawyer as an “anxious” man suffering from depression who required alcohol in order to reduce his inhibitions on the night of the killings. He has been described by his own defence team as a “sick young man” who can be rehabilitated and has shown remorse and shame.

WHAT WAS THE JUDGE’S RULING ON SENTENCING?

Before providing his sentence to Bissonnette, Justice Francois Huot addressed the offender by stating:

By your hate and your racism, you destroyed the lives of dozens and dozens of people, and have irredeemably ruined your own and those of the members of your family.

Justice Huot then proceeded to provide a detailed account of Bissonnette’s actions on the night of the shooting.

In his ruling, Justice Francois Huot rejected the Crown’s argument and instead imposed a concurrent life sentence of a 25-year parole ineligibility period for the first five counts of murder and added a 15-year period of ineligibility for the sixth count. This means that Bissonnette will not be eligible for parole for 40 years.

Justice Huot reasoned that sentences that exceed an offender’s life expectancy and offer no hope of release are “grossly disproportionate and totally incompatible with human dignity” and would constitute cruel and unusual punishment under the Canadian Charter of Rights and Freedoms.

Although Justice Huot did not strike down the section of the Criminal Code which allows for consecutive life sentences, he used his discretion to hand down a consecutive life sentence that was less than the traditional 25 year block (as first-degree murder carries a life sentence with no possibility of parole for 25 years).

According to Justice Huot, the following aggravating factors justified a sentence harsher than the 25-year period:

He planned his attack carefully;
He targeted vulnerable and unarmed people in their place of worship; and
He took aim at Canada’s right to freedom of religion.

Justice Huot also considered that Bissonnette had been struggling with mental health problems in the time leading up to the shootings. He also considered the fact that Bissonnette had no previous criminal record, he pleaded guilty, and he expressed remorse.

Lawyers for both the Crown and the defence will be reviewing Justice Huot’s lengthy 246-page decision to decide whether to appeal the sentence. We will continue to follow this case and will report any developments that occur in this blog.

In the meantime, if you have any questions regarding charges laid against you or 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 clients’ rights. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Mandatory Victims’ Surcharge Quashed by Supreme Court

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada, the highest court in Canada, has eliminated mandatory victim surcharges for convicted criminals.

The Supreme Court, in a 7-2 ruling, held that the surcharge amounts to cruel and unusual punishment. The court stated that making the victim fine mandatory does not allow sentencing judges to consider mitigating factors, ignores the goal of rehabilitation, and undermines the intention of the government to address the problem of indigenous overrepresentation in prison.

WHAT IS THE MANDATORY VICTIM SURCHARGE?

The victim surcharge, which was established in 1988, is a monetary penalty that is automatically imposed on those convicted in Canada at the time of sentencing. Five years ago, the government removed the ability for judges to waive or lower this fine and made them mandatory in all cases.

The victim surcharge can be found under section 737 of the Criminal Code. The surcharge is calculated at 30% of any fine imposed. If no fine is imposed, the surcharge is $100 for lower-severity offences and $200 for more serious offences. If the offender has the financial means and the court considers it appropriate, the offender may be ordered to pay a higher amount.

The money collected from victim surcharges was intended to be used by the government to make offenders more accountable and help fund programs and services for victims of crime.

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

Alex Boudreault (“Boudreault”), a Quebec man, pleaded guilty to several counts related to breaches of probation orders, breaking and entering, possession of stolen property, and assault with a weapon.

Boudreault, a high-school dropout who was unable to hold a steady job, was sentenced to 36 months in prison and ordered to pay a victim surcharge of $1,400 by a court in Quebec. At that time, Boudreault argued that the victim surcharge infringed his Charter rights guaranteeing him freedom from cruel and unusual punishment. These arguments were rejected by the court.

Boudreault appealed this ruling, which was dismissed by the Quebec Court of Appeal.

The Supreme Court of Appeal agreed to hear Boudreault’s appeal, along with six other similar cases. In all seven cases, the offenders argued that they were living in poverty and suffered from physical and mental illnesses, struggled with addiction in some cases, and could not afford the victim surcharges.

The Crown argued that the fines were not unacceptable as the offenders could ask for more time to pay and that the money collected was put towards improving the lives of the victims. For example, in Ontario, these funds are used to support 39 sexual assault and rape centres and the Ontario Child Witness Project (designed to help children and adolescents who are called to testify as victims or witnesses in court).

The appellants argued that the surcharges were a violation of section 12 of the Charter of Rights and Freedoms, which protects against cruel and unusual punishment. They argued that the surcharge was grossly disproportionate to the crime committed.

The majority of the Supreme Court agreed with the appellants and struck down the entire section of the Criminal Code pertaining to victim surcharges and it was “declared to be of no force and effect immediately”.

The judgment reads:

The surcharge constitutes cruel and unusual punishment and therefore violates s. 12 of the Charter, because its impact and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.

Justice Sheilah Martin, writing for the majority decision, also stated:

Judges have been forced to impose a one-size-fits-all punishment which does not take into account the individual’s ability to pay. In this context, the resulting indeterminate punishment results in a grossly disproportionate public shaming of disadvantaged offenders. It is what most Canadians would call an abhorrent and intolerable punishment.

Although this decision eliminates all fines owed by the seven offenders and no future victim surcharges can be imposed in any circumstances, it does not eliminate outstanding victim surcharge orders. Those offenders who owe these fines, must seek relief in the courts on an individual basis.

The Liberal government is now left to determine the future of the surcharge. There is currently drafted legislation awaiting passage by the Senate giving judges the discretion to waive or apply the victim surcharge. A spokesperson for Justice Minister Jody Wilson-Raybould has advised that she is reviewing the Supreme Court decision “to assess the appropriate next steps”.

We will continue to follow any developments or changes in the law as they become available, and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about any charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week. We are available when you need us most.

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

Written on Behalf of Affleck & Barrison LLP

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

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

HISTORY OF THE DEFENCE OF EXTREME INTOXICATION

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

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

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

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

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

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

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

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

JUSTICE SPIES’ DECISION

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

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

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

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

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

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

McCaw’s trial begins on September 12. We will provide updates in this blog as new developments regarding this case become available.

In the meantime, if you have been charged with a sexual assault offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.