Courts & Trials

Guilty Verdict for Man Accused of Killing Cindy Gladue 10 Years Ago

Written on Behalf of Affleck & Barrison LLP

Following eight hours of deliberation, a jury found Bradley Barton (“Barton”) guilty of manslaughter for the killing of Cindy Gladue (“Gladue”) in June 2011.

Barton plead not guilty to the charge of manslaughter in his second trial. He testified that he arranged to pay Gladue for sex at an Edmonton hotel. When he woke up the next morning, he was shocked to find Gladue dead in the bathtub.

According to medical experts, Gladue hemorrhaged from an 11-centimetre vaginal wound.

LEGAL HISTORY OF THIS CRIMINAL CASE

This was Barton’s second trial for the death of Gladue. In 2015, a jury acquitted him of both manslaughter and first-degree murder. The first trial garnered a great deal of attention with respect to issues of injustices for sexual assault complainants, and more specifically those of Indigenous people, in the criminal justice system.

During Barton’s first trial, Gladue was repeatedly referred to as “Native” and a “prostitute”.

Following Barton’s acquittal in 2015, the Crown prosecutor appealed the verdict. The Alberta Court of Appeal overturned the acquittal and ordered a new murder trial. Barton took his case to the Supreme Court of Canada where the highest court in the country concluded that there should be a new trial, limited to the charge of manslaughter.

The judges of the Court of Appeal and the Supreme Court rejected the language used by counsel and witnesses to describe the victim, Gladue. The Court of Appeal admonished the trial judge’s jury charge, which it felt was “inadequate to counter the stigma and potential bias …that arose from the repeated references to Gladue as a ‘prostitute’, ‘Native girl’ and ‘Native woman’”.

In the reasons of the Court of Appeal, the court wrote:

Those references implicitly invited the jury to bring to the fact-finding process discriminatory beliefs or biases about the sexual availability of Indigenous women and especially those who engage in sexual activity for payment.

DIFFERENCES BETWEEN BARTON’S TWO CRIMINAL TRIALS

There were four significant differences between Barton’s first trial in 2015 and his second trial in 2021, which are outlined below:

The Crown discarded the theory that Gladue’s injury was caused by a sharp object. Both the Crown and the defence agreed that her wound was caused by blunt force when Barton inserted his hand into her vagina past his knuckles (a width of approximately 11cm).
The second jury heard details regarding Barton’s internet search history. The jury heard that nine days before Gladue’s death, Barton had searched for porn related to vaginas being ripped or torn by large objects. This evidence was excluded from his first trial.
The language used in the second trial was different when referring to Gladue. The judge in Barton’s second trial instructed the jury on several occasions to discard any stereotypical notions regarding sex workers and Indigenous people.
At Barton’s second trial, the Crown did not use Gladue’s physical tissue as an exhibit. Photographs of the autopsy and the crime scene were used to explain Gladue’s injuries to the jury.

THE CIRCUMSTANCES SURROUNDING GLADUE’S DEATH

Barton, a trucker from Mississauga, was in Edmonton for a moving job in June of 2011. He rented a room at the Yellowhead Inn. While outside the hotel bar, Barton asked a man whether he had any “lady friends”. The man returned with Gladue.

Barton testified that he negotiated a price to have sex with Gladue in his hotel room. That night he inserted his fingers into her vagina and the night ended amicably.

The next night, Barton texted Gladue and she met him for a drink at the bar until last call. According to Barton, they went back to his room and he once again inserted his fingers into Gladue’s vagina. When he removed his fingers, he noticed blood. He assumed she was on her period and told her he wouldn’t pay her. He then fell asleep, while Gladue used the bathroom. When Barton woke the next morning, he found Gladue’s body in the blood soaked tub. In a state of panic, Barton cleaned some blood off of his feet, left the room, disposed of the towel he used, made a coffee and then checked out of his hotel room.

Barton maintained that due to his panicked state, he lied to the 911 operator, the police on scene and when interviewed at police headquarters. Barton’s defence lawyer acknowledged that his lies were “pathetically inept, half-baked, easily disproved” and not the lies of an individual who had been “plotting how to get away with it”. It was Barton’s defence that the physical evidence supports his version of the events.

The Crown maintained that Barton violently sexually assaulted Gladue while she was too heavily intoxicated to provide consent and allowed her to bleed to death. It was also argued that Barton’s version of the events did not align with the physical evidence.

The 11-person jury, after hearing six weeks of disturbing details and graphic evidence regarding Gladue’s death, concluded that Barton was guilty of manslaughter.

Barton, who had been out on bail, was taken into custody and will be sentenced at a later date. Barton’s lawyer has advised that his team wants to appeal the conviction due to issues with evidence admissibility, however, that will require the assistance of Legal Aid Alberta to fund his defence.

If you have any questions regarding criminal 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.

Dangerous Driving Causing Death Verdict for Man Who Suffered a Seizure While Behind the Wheel

Written on Behalf of Affleck & Barrison LLP

Fakhreddin Noureddin (“Noureddin”) was found guilty of dangerous driving causing death and was found not guilty of the more serious charge of criminal negligence causing death following a seizure he experienced while driving that ended in a fatality.

THE FATAL CAR ACCIDENT

In the late afternoon of February 14, 2019, Noureddin’s Toyota Camry was witnessed swerving abruptly and entering an oncoming lane on Goulbourn Forced Road in Kanata where it proceeded to strike and kill Hendrikas Welten (“Welten”), 59-years old, while he was jogging on the road’s shoulder.

The roadways were clear and there was no precipitation at the time of the accident. Welton was wearing a dark track suit with reflective piping while running in the fading daylight hours.

According to the evidence given at his trial, Noureddin experienced a dyscognitive epileptic seizure while he was behind the wheel. This type of condition does not include convulsions, but it does impair the individual’s awareness or consciousness. The seizure usually lasts for approximately two to four minutes and is often followed by a period of confusion.

Noureddin had suffered a similar dyscognitive episode many years ago, which led to medical intervention for his condition. He had been effectively treated for epilepsy with medication for many years. In June of 2018, his doctor changed his medication.

During a routine appointment with his neurologist on October 31, 2018, Noureddin had been advised not to operate a motor vehicle for three months and only to resume driving once he had clearance from one of his doctors.

In making his ruling in this case, Justice Jean Legault of the Ontario Court of Justice stated:

Based on my findings, Mr. Noureddin would have appreciated the risk associated with suddenly losing the physical ability to operate a motor vehicle as a result of the epilepsy. …

It is self-evident that the risk caused by a dyscognitive epileptic seizure and loss of awareness while operating a motor vehicle can be significant, if not catastrophic, as it was in this case. …

Justice Legault found that Noureddin was aware of the reason for his doctor’s orders and was aware of the risk of suffering an epileptic seizure while driving. Justice Legault reasoned:

His decision to drive contrary to his doctor’s instruction, coupled with his understanding of the risk and potential result of suffering an epileptic seizure while driving, constituted a marked departure from the conduct of a reasonable person in the circumstances. …

He failed to demonstrate the expected degree of thought and attention required for the activity of driving. More specifically, he attempted the inherently dangerous activity of driving voluntarily, without accounting for his disorder and the risk he created to other motorists and pedestrians on the roadway at that specific time.

In considering the more serious charge of criminal negligence causing death, which requires a “higher threshold” to reach a guilty finding, Justice Legault did not find that Noureddin’s behaviour on the day in question amounted to a “reckless disregard for the lives and safety of others”. Justice Legault considered the following in coming to this decision:

Noureddin monitored his epilepsy as directed;
His condition had improved on new medication;
There was a lack of any “significant manifestation of his epilepsy for many years”;
That he was past his three-month driving prohibition;
That he took his disorder seriously and had regular contact with his doctor; and
That his neurologist did not revoke his driving privileges with the Ministry of Transportation.

CRIMINAL NEGLIGENCE CAUSING DEATH VS. DANGEROUS DRIVING CAUSING DEATH

The offence of dangerous driving is a serious criminal offence found under section 320.13 of the Criminal Code of Canada. The only requirement to be charged with this offence is that a driver operated a motor vehicle in a manner that was dangerous to the public.

If convicted of dangerous driving causing death, the driver faces the possibility of imprisonment for life and a minimum punishment for a first offence of a fine of $1,000, for a second offence imprisonment for 30 days and for each subsequent offence imprisonment for a term of 120 days.

The offence of criminal negligence causing death is an offence found under sections 219 and 220 of the Criminal Code of Canada. An individual will be found guilty of criminal negligence if he/she did anything or omitted to do anything within his/her duty or shows a wanton or reckless disregard for the lives or safety of others. It must be proven that a reasonable person acting in the situation would know that the action would jeopardize the life or physical integrity of the person.

If convicted of criminal negligence causing death, the driver is guilty of an indictable offence and the maximum sentence is imprisonment for life.

If convicted of either or these offences, the driver’s license will automatically be suspended for one-year if it is the first conviction, and the length of time increases for subsequent convictions.

If you have been charged with a driving 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 offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Alek Minassian Pleads Not Criminally Responsible for Van Attack

Written on Behalf of Affleck & Barrison LLP

The accused, Alek Minassian (“Minassian”), who has admitted that he planned the van attack and purposely drove onto the sidewalk with the intent to kill on April 23, 2018, has plead not guilty and is asking the court to find him not criminally responsible for his actions.

Minassian has been charged with 10 counts of first-degree murder and 16 counts of attempted murder. He faces 10 mandatory life sentences and potentially 26 life sentences, if found guilty.

NOT CRIMINALLY RESPONSIBLE DEFENCE

Minassian’s trial has finally begun and is being conducted entirely online through Zoom video teleconferencing due to COVID-19 restrictions.

Both the Crown prosecutors and the defence have agreed upon a lengthy set of facts setting out the events that occurred on the day of the attack. The only issue before the court is Minassian’s state of mind at the time of the attack.

Minassian’s defence is claiming that Minassian’s autism prevented him from knowing it was wrong to kill.

Section 16 of the Criminal Code codifies the defence of “not criminally responsible”. This defence typically arises when an accused who is mentally ill, does not understand either:

The nature and quality of the act that he/she has committed, or
That the act was wrong.

As Minassian has raised a not criminally responsible defence, the onus shifts from the Crown prosecutor to prove its case beyond a reasonable doubt to the defence to prove on a balance of probabilities that more likely than not Minassian had a mental disorder that affected his behaviour and he didn’t understand that what he was doing was wrong.

If an individual is found “not criminally responsible” he/she will fall under the jurisdiction of the Ontario Review Board (“ORB”). The ORB will hold an initial hearing shortly after the finding of not criminally responsible and additional hearings will be held once every year. The Board is made up of five members including two lawyers, a psychiatrist, a psychologist and an appointed public member who determine based on an assessment and the accused’s risk to the public whether he/she should remain in hospital, be allowed to remain in the community or absolutely discharged.

AUTISM SPECTRUM DISORDER IS MINASSIAN’S DEFENCE

Minassian’s own lawyer, Boris Bytensky, admits that it is very rare to use autism as a mental disorder when pursuing a defence of not criminally responsible.

Minassian was diagnosed with autism spectrum disorder at age five. Autism is a neurological condition that affects how the brain functions. Those living with autism often find it hard to connect with others, may have difficulty communicating, repeat certain patterns of behaviour and may show interest in a limited number of activities.

Minassian’s defence team will argue that he “only understood wrongfulness at the intellectual level” and lacked the ability to rationally choose whether his behaviour was right or wrong. It is anticipated that the defence will be calling psychiatric experts to testify that Minassian had an “autistic way of thinking” that was similar to psychosis.

UNPRECEDENTED RULING BY JUSTICE MOLLOY

Justice Anne Molloy reluctantly agreed to the never before granted demand by Dr. Alexander Westphal to guarantee that his videos of the accused are never publicly released.

Dr. Westphal, retained by Minassian’s legal team to provide expert opinion on their client’s mental state at the time of the attack, is a forensic psychiatrist specializing in autism and a professor at Yale University.

Dr. Westphal made it clear that he would not testify if the tapes of interviews with the accused were to be recorded via Zoom or released for publication or distribution. It was his belief that the footage of Minassian may be an inspiration to some vulnerable individuals and serve “as a catalyst for further violence”. Dr. Westphal also noted that he wanted to protect the autism community from misinformation.

In justifying her ruling regarding the videos, Justice Molloy stated:

Either I do it or proceed directly to sentencing. … I made the analogy of a gun to my head. Another one that occurs to me is a ransom demand. I know it’s wrong to give into those kinds of demands. As a general proposition kidnappers should not be paid ransom but that said, if somebody kidnapped my child, I’d probably pay. …

That’s my ruling. Not happy about it. (It’s) the least wrong thing to do in the circumstances.

In ordinary circumstances, Dr. Westphal’s bold request would not be entertained by a Judge. However, Dr. Westphal is an American living in the United States. If he were living in Canada, Justice Molloy could simply send a police officer to bring a hostile witness to court at a specific date and time.

Bytensky argued that he could not put forward the defence for Minassian without Dr. Westphal’s testimony and stated:

Mr. Minassian, without Dr. Westphal, will be asked to fight with both hands tied behind his back. That’s really what it comes down to. And while that may be popular with some people who are watching the trial, that is not the test your Honour has to be concerned with.

The videos in question have been described as high-definition, close-up recordings of Minassian’s face as he responds to questions by Dr. Westphal and describes the attack.

A number of media organizations opposed the sealing of the videos and argued that courts are to be open and transparent. Further, it was argued that it was an infringement of the rights set out in section 2 of the Charter which guarantee freedom of the press.

We will continue to follow the Minassian trial and will report on any further developments in this blog.

If you have been charged with a criminal offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. 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 24 hours a day, seven days a week.

Court Rules New Trial for Couple Convicted in Child’s Death

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has ruled that a couple convicted of manslaughter in the suspected starvation of their two-year-old daughter should receive a new trial to put forward new evidence.

A jury convicted Sean and Maria Hosannah in October 2014 following the death of their 27-month-old daughter, Matinah, in February 2011. Maria Hossanah was sentenced to two years in jail and her husband was sentenced to two years less a day.

In February 2011, Matinah stopped breathing while in her mother’s arms. Her father called 911, but paramedics could not resuscitate Matinah and she was pronounced dead in hospital. Both of her parents, Sean and Maria Hosannah, were charged with manslaughter for allegedly failing to provide their daughter with the necessaries of life.

Following their convictions, the Hosannahs began the appeal process and were therefore released from custody pending their appeal.

THE TRIAL

At trial, the Crown prosecution argued that the Hosannahs had failed to provide Matinah with the necessaries of life by not feeding her properly or obtaining medical attention for her.

The jury heard evidence that Matinah was underweight and poorly developed. She was unable to walk or crawl by the age of two. A family doctor allegedly told the parents to take her to a specialist, however, Matinah had not received any medical attention in the last year of her life.

The Hosannahs defence was that they were good parents and were distressed by their daughter’s death.

The prosecution’s case rested largely on the evidence of Ontario’s chief forensic pathologist, Dr. Michael Pollanen. Dr. Pollanen testified that Matinah was severely malnourished and lacked protein. She was also found to have suffered from rickets and a blood disorder caused by vitamin deficiency. Matinah also showed signs of chronic and severe asthma. According to Dr. Pollanen, Matinah suffered an asthma attack while in a critical state of illness due to protein malnutrition and vitamin deficiency, which led to a lack of oxygen, shock and ultimately death.

Dr. Stanley Zlotkin, a pediatric nutritionist, testified that Matinah’s protein and vitamin deficiencies were the result of an unbalanced diet that stunted her growth. He concurred with Dr. Pollanen that she was severely malnourished.

The defendants did not submit any evidence from a medical expert to challenge the prosecution’s expert reports.

At the trial, the court learned that the Hosannahs maintained a strict vegetarian diet and only ate to live. They also had an aversion to doctors, vaccinations and were suspicious that their daughter had been poisoned at birth. Although the prosecution accepted that the Hosannahs did not want to hurt their daughter, it was argued that the choices they made led to their daughter’s death.

THE APPEAL

On appeal, the Hossanahs were allowed to present new evidence from two experts.

Fresh evidence can be entered on appeal if it is in the interest of justice, while preserving the integrity of the criminal justice process according to section 683(1)(d) of the Criminal Code.

Dr. Michael Shkrum, a forensic pathologist, disagreed with Dr. Pollanen’s finding that asthma played a part in Matinah’s death. According to Dr. Shkrum, there was no evidence that she suffered from protein malnutrition and he found that Matinah died of congestive heart failure due to her enlarged heart, conceivably caused by anemia and/or vitamin D deficiency.

A second expert in pediatric bone disorders and genetics, Dr. Miller, confirmed that Matinah suffered from severe vitamin D deficiency rickets, which severely compromised her health and affected her growth.

According to the Hosannahs’ lawyer at their appeal, Dr. Pollanen’s report relied upon a blood sample that was taken while doctors attempted to resuscitate Matinah. Matinah had more than half a litre of saline injected in her bloodstream to revive her, which may have diluted her blood and could explain her blood protein levels.

The judges of the Court of Appeal concluded that had the new evidence been admitted at trial it may have affected the verdict.

Although the jury could have concluded that reasonable parents would be aware of the absence of protein in their child’s diet and the risk that it posed, a jury could conclude that a reasonable parent may not realize that their child’s diet lacked adequate vitamins D and B12.

The proposed evidence is relevant because of its tendency to show what caused the deceased to die and, by inference, whether her death originated in any unlawful conduct by the appellants.

The Court of Appeal accepted the Hossanahs’ new reports, allowed the appeal of their convictions and ordered a new trial.

We will continue to follow the developments of this case as it proceeds to trial and will report on any updates in this blog.

In the meantime, if you are facing criminal charges 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.

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

Written on Behalf of Affleck & Barrison LLP

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

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

APPLICATION TO DISMISS ADMISSIONS MADE TO POLICE

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

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

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

Durham Officer Kevin Park testified at trial:

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

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

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

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

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

SECTION 10(B) OF THE CHARTER

According to section 10(b) of the Charter:

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

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

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

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

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

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

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

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

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

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

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a reputation for effective results in defending all types of criminal legal charges. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Police Officer Sentenced to 12 Months in Jail for Death of Woman in Custody

Written on Behalf of Affleck & Barrison LLP

A new decision by the Ontario Superior Court of Justice, and for the first time in Canada, a police officer has been convicted and sentenced for failing to provide medical assistance to an individual in their custody.

In November 2019, London Police Constable Nicholas Doering (“Doering”) was convicted of criminal negligence causing death and failing to provide the necessaries of life in the death of Debralee Chrisjohn (“Chrisjohn”).

THE FACTS

On September 7, 2016, Chrisjohn, while in police custody, died of a heart attack as a result of having consumed a toxic level of methamphetamine.

A video of Chrisjohn being taken into the Ontario Provincial Police detachment showed her to be limp, silent and demonstrating no signs of movement. She was witnessed to being dragged into a cell. At that point, EMS was called, however, by the time they arrived they were unable to save her life.

Chrisjohn was in the custody of Constable Doering, who had arrested her for an outstanding OPP warrant, and transferred Chrisjohn to OPP custody.

At his trial, Constable Doering testified that he did not believe that Chrisjohn required medical attention and was simply suffering from the effects of methamphetamine. According to the defence, Constable Doering made an error in judgement that was reasonable based upon his experience with methamphetamine users and his conversation with an EMS supervisor early on in her detention. Doering denied that he deliberately misled OPP officers.

The following facts were admitted by Constable Doering at his trial:

Chrisjohn was unable to provide herself with the necessaries of life while in the custody of Constable Doering;
Methamphetamine is a powerful stimulant drug and users often experience confused cognitive function, paranoia, elevated sensory stimulation and agitation and restlessness;
Medical treatment is available for those who have ingested methamphetamine, which typically includes monitoring and treating the user’s symptoms in a hospital until the effects have dissipated;
Medical treatment is not always warranted for those who experience side-effects from using methamphetamines;
If treatment or intervention is required, the sooner treatment is received the better;
On September 7, 2016, Chrisjohn required medical treatment due to the effects of using methamphetamines at the time of her transfer to the OPP;
Chrisjohn was in a critical state and required urgent medical intervention from the time of her arrival at the Elgin OPP detachment and onwards;
The delay in providing Chrisjohn with medical treatment impacted her chance of survival. If she had received medical attention prior to the arrival of EMS at the Elgin OPP detachment, she may have survived.

THE ALLEGATIONS AND CRIMINAL OFFENCES

At trial, Crown prosecutors alleged that Constable Doering knowingly provided false and incomplete information regarding Chrisjohn’s medical condition to the OPP when he transferred custody and told OPP that she had been medically cleared. Thus, demonstrating a wanton and reckless disregard for her life and providing the elements of criminal negligence causing death. Furthermore, it was alleged that Constable Doering’s behaviour was a marked and substantial departure from the standard of care of a reasonable and prudent police officer.

Section 215 of the Criminal Code outlines the offence of failing to provide the necessaries of life. According to the law, where a person is in charge of another, he/she has a duty to provide the necessaries of life. The standard is not of perfection. The Crown prosecutor must prove that there was a marked departure from that of a reasonably prudent person having charge of another, in circumstances where it is reasonably foreseeable that a failure to provide the necessaries of life would lead to a risk of danger to the life of the victim.

Section 219 of the Criminal Code outlines the offence of criminal negligence. This offence requires proof that the accused did something or failed to do something that was his/her legal duty to do that demonstrates a wanton and reckless disregard for the lives and safety of others. The offence also requires that the accused’s conduct was a marked and substantial departure from the standard of care that a reasonably prudent person would observe in the circumstances.

Justice Pomerance, in her reasons for judgement, stated:

The evidence in this case suggests that stereotypes and generalized assumptions played a role in the events leading to Ms. Chrisjohn’s death. …

In short, Cst. Doering had pre-conceived notions about drug users and he held fast to those notions when dealing with Ms. Chrisjohn. Rather than moulding his theory to fit the facts, he seems to have moulded the facts to fit his theory. …

I am satisfied that a reasonably prudent police officer would have appreciated the need for medical assistance at the time of the transfer to the OPP, if not before, and would have been aware of the risk that failure to obtain such medical assistance would endanger Ms. Chrisjohn’s life.

Justice Pomerance found that Constable Doering failed to provide Chrisjohn with the necessaries of life and in providing erroneous and incomplete information about Chrisjohn’s medical condition to OPP demonstrated a wanton and reckless disregard for her life, thus contributing to Chrisjohn’s death. He was therefore found guilty of criminal negligence causing death.

Justice Renee Pomerance sentenced Constable Doering to 12 months in jail. In her sentencing decision, she stated:

The sentence must convey the irrefutable message that Ms. Chrisjohn’s life was valued and valuable. … [I]n some cases, loss of life will, practically and symbolically, command the most significant form of penalty. This is one of those cases.

Constable Doering has been suspended from his duties with the London Police with pay and is currently appealing the decision.

We will continue to follow this criminal case as it makes its way through the appeal process and will report any developments in this blog.

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

Alberta Appeal Court Ruling Confirms Automatic Registration for Convicted Sex Offenders

Written on Behalf of Affleck & Barrison LLP

Alberta’s highest court has ruled that automatically adding the names of sex offenders to a national sex offender registry for life does not violate the offender’s rights under the Charter of Rights and Freedoms.

The Alberta Court of Appeal’s split decision held that the current federal law requiring the mandatory placement of those convicted of more than one sex offence to the national sex offender registry is constitutional. However, given the 2-1 ruling on appeal, Eugen Ndhlovu has the right to appeal this decision to the Supreme Court of Canada.

THE HISTORY AND THE COURT OF APPEAL DECISION

Last fall, the Alberta appeal court heard submissions about whether a judge should have the discretion to place an offender on Canada’s sex offender registry. The court also heard submissions from counsel regarding whether or not placing an offender with more than one sexual offence conviction on the sex offender registry is a violation of his/her Charter rights.

In 2011, Eugen Ndhlovu (“Ndhlovu”) attended a party where he sexually touched two women. Ndhlovu pled guilty to two counts of sexual assault and was given a six-month jail sentence and three years probation. The sentencing judge found Ndhlovu to be remorseful and considered to be at a low risk of reoffending. Ndhlovu was to be automatically placed on the sex offender registry for life according to sections 490.012 and 490.013(2.1) of the Criminal Code . However, the sentencing judge found that the legislation was “overbroad and grossly disproportionate” and violated Ndhlovu’s Charter rights to life, liberty and security of the person. The sentencing judge also proceeded to strike down these sections of the Criminal Code as she determined they could not be saved under section 1 of the Charter.

Alberta’s Crown prosecutor disagreed with this decision and launched an appeal arguing that the Criminal Code sections are not overbroad, that Parliament is entitled to drawn an inference that multiple convictions increase the risk of re-offending, and that the reporting requirements for the national sex offender registry are not onerous or invasive.

Ndhlovu’s lawyer argued that it is not appropriate to place every offender with more than one sexual offence conviction on the national registry and that the court should be given the right to weigh the risk to public safety with the individual’s right to liberty.

Two of the three judges on the Court of Appeal panel found that the sentencing judge erred in finding that Ndhlovu had established a deprivation of his rights under section 7 of the Charter to life, liberty or security of the person and that the sections of the Criminal Code in question was constitutionally valid. Therefore, the appeal court held that Ndhlovu’s Charter rights were not breached, the finding that sections 490.012 and 490.013(2.1) were of not force and effect was to be set aside, and Ndhlovu was required to be registered and report under the Sex Offender Information Registration Act (“SOIRA”).

WHAT IS CANADA’S NATIONAL SEX OFFENDER REGISTRY?

Canadian courts have required those convicted of designated sex related crimes to be registered in the National Sex Offender Registry (“Registry”) since 2004. However, unlike the United States, the Canadian Registry is not designed for use by the public.

The National Sex Offender Registry is a registration system for sex offenders who have been convicted of designated sex crimes and ordered by the courts to report to the police annually. The Registry is maintained by the RCMP and is available to all Canadian police agencies. The purpose of the database is to provide police services with valuable information that will increase their capacity to investigate and prevent crimes of a sexual nature.

In Canada, a person convicted of a designated offence must be placed on the Registry. Designated offences are listed in section 490.011(1) of the Criminal Code of Canada, which include the following sex crimes:

Sexual assault;
Sexual interference;
Invitation to sexual touching;
Sexual exploitation;
Incest;
Bestiality;
Child pornography (making, possession, distribution);
Parent or guardian procuring sexual activity;
Aggravated sexual assault;
Sexual assault with a weapon, threats to a third party or causing bodily harm;
Indecent exposure;
Select offences where it can be proven that the offence was committed with the intent to commit an offence of a sexual nature.

The SOIRA does not apply to a young person convicted of a designated sexual offence unless the young person is sentenced as an adult.

In 2011, two notable changes were made to the law governing sex crimes. One of the changes was that the SOIRA was amended to remove judicial discretion with respect to whether an individual who committed one of the designated sex crimes must be placed on the Registry. The other amendment required that a lifetime SOIRA order was made mandatory for certain situations, including when an accused person is convicted of more than one sexual assault. These were the two specific issues that were considered by the appeal court in Ndhlovu’s appeal.

We will continue to follow this case and will report in this blog if Ndhlovu decides to appeal this decision to the Supreme Court of Canada.

If you are facing criminal charges for sex related offences or have any other questions or concerns about your legal rights, please contact 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.

Appeal Court Upholds Decision Finding Man with HIV Guilty of Aggravated Sexual Assault

Written on Behalf of Affleck & Barrison LLP

An HIV-positive man had his aggravated sexual assault conviction upheld by the Ontario Court of Appeal.

In October 2013, the man, identified as N.G., had been advised to tell prospective partners that he was HIV-positive. He proceeded to have sex repeatedly with three women over several months and failed to inform them of his medical history.

N.G. was charged with multiple offences occurring between July 2013 and April 2014, including three counts of aggravated sexual assault. At the trial, the question was whether N.G.’s failure to disclose his HIV status prior to intercourse constituted fraud and made the women’s consent ineffective.

On November 19, 2017, Superior Court Justice Edward Gareau convicted and sentenced N.G. to three and a half years in prison. N.G. appealed his conviction and sought to introduce fresh evidence to prove that the use of a condom alone prevents the possibility of transmission of HIV during sexual intercourse.

APPEAL COURT ASKED TO RULE THAT CONDOM USE IS ENOUGH TO PREVENT THE TRANSMISSION OF HIV

N.G. asked the appeal court to resolve the issue as to whether, at law, the use of a condom alone is enough to remove HIV non-disclosure cases from being criminally prosecuted.

The leading 2012 Supreme Court of Canada case, R. v. Mabior, provides the legal threshold triggering a duty to disclose.

This case holds that an accused may be found guilty of aggravated sexual assault if he or she fails to disclose an HIV-positive status to a sexual partner in the case when consent to the sexual activity would not have been given had the partner known about the HIV-positive status and there is a realistic possibility of transmission of HIV during the sexual activity. The Supreme Court of Canada held that a realistic possibility of HIV transmission is negated when both the non-disclosing individual’s viral load (the quantity of HIV circulating in his or her blood) is low and a condom is used during sexual activity.

In N.G.’s case, the trial judge held that condoms were not enough as he did not have a low viral load, therefore increasing the possibility of transmission even with the use of a contraceptive.

At his appeal, N.G.’s lawyers argued that new evidence demonstrates that condoms are sufficient to prevent the transmission of HIV even in cases where an individual’s viral load is not low. N.G. requested that the conviction be overturned and that the common law should reflect this new information.

The Appeal Court rejected N.G.’s arguments that the use of condoms alone are sufficient to prevent transmission of HIV.

Justice Fairburn stated:

There is no dispute that a perfectly functioning latex condom provides a perfect barrier to HIV transmission. … But, as the Supreme Court of Canada also understood, condoms do not always work as they are intended to work. … Indeed, from time-to-time despite the very best intentions and efforts of sexual partners, condoms sometimes fail to work.

LAWMAKERS ARE CALLED UPON TO MAKE LEGISLATIVE CHANGES BASED ON SCIENCE AND END THE CRIMINALIZATION OF THOSE LIVING WITH HIV

The Canadian HIV/AIDS Legal Network, an intervener on the appeal, is concerned about the stigma surrounding the HIV virus. On behalf of N.G., this organization claimed that the offence of aggravated sexual assault and the penalty imposed were disproportionate in a case of consensual sexual activity and where an individual had taken all precautions to avoid transmission.

This organization maintains that scientific experts across Canada agree that HIV transmission is not possible while using a condom correctly during intercourse.

In a statement on the Canadian HIV/AIDS Legal Network’s website, the organization states:

The Court’s decision underscores the importance of the federal government bringing forward legislative changes to the Criminal Code to prevent the continued misuse of criminal charges that are contrary to science, lead to unjust convictions and ultimately undermine public health. … It’s time for the law to catch up with the science and recognize that condoms can also negate a realistic possibility of transmission.

The statement also mentions that in June of 2019, the House of Commons Standing Committee on Justice and Human Rights recognized a need for reforms to the Criminal Code limiting the prosecution of cases to only those dealing with HIV non-disclosure and the actual transmission of the disease. To date, these changes have not been implemented.

We will continue to follow any developments in the case law or legislation with respect to the criminalization of individuals living with HIV and will report them in this blog.

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

Kalen Schlatter Appeals Guilty Murder Verdict Claiming Unlawfully Obtained Evidence

Written on Behalf of Affleck & Barrison LLP

In March 2020, Kalen Schlatter (“Schlatter”) was convicted of first degree murder in the highly publicized death of Tess Richey (“Richey”), and sentenced to 25 years in prison with no parole.

Schlatter was tried before a jury for the first degree murder of Richey in Toronto on November 25, 2017. Justice Michael Dambrot, in sentencing Schlatter, noted that his “appetite for violent sex” led him to strangle Richey only hours after they met.

Schlatter has filed a notice of appeal regarding his conviction on the basis that the trial judge made errors in instructing the jurors and admitting evidence at the trial.

WHAT IS AN APPEAL?

In general, an appeal is a request made by a party to a higher court to review a lower court trial or other decision. In Ontario, the Court of Appeal is the proper forum to review decisions of serious criminal matters. An appeal from the decision of a trial court judge of the Superior Court of Justice in Ontario is typically heard before a panel of three judges at the Ontario Court of Appeal.

The first step in commencing the appeal process is to file a form called a notice of appeal. The notice must state what is being appealed, i.e. the conviction, the sentence or both. The notice must also briefly describe the grounds of the appeal or the mistakes that were allegedly made at the trial.

SCHLATTER’S APPEAL WILL FOCUS ON TRIAL JUDGE’S ERRORS

On appeal, Schlatter will argue that the trial judge gave “unbalanced” instructions to the jurors. Furthermore, he alleges that the trial judge erred in admitting the evidence of two undercover officers who testified regarding their conversations with Schlatter from adjacent jail cells after his arrest.

In February 2018, Schlatter was arrested and taken to 13 Division where he was booked and placed in one of the cells in the police station. Two undercover police officers were placed in the cells adjacent to him. Schlatter had lengthy conversations with both officers over the course of his incarceration.

At his trial, Schlatter asked the court for a ruling that his right to silence guaranteed under section 7 of the Charter was infringed when he made statements to undercover police officers in adjacent jail cells and that these statements should be excluded from evidence.

The trial judge heard arguments from counsel for both parties and ultimately ruled that Schlatter’s right to silence was not violated and therefore allowed the statements made to the undercover officers to be entered at the trial.

Justice Dambrot explained the circumstances by which undercover officers can elicit information and how the officers interacted with Schlatter:

An undercover police officer may be placed in the police cells with a detained suspect and make observations. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police. But the undercover officer may not actively elicit information in violation of the suspect’s choice to remain silent.

Importantly, UCI did not ask the accused what he had done, but only why he was in police custody. The natural answer would have been to say that the police thought he had murdered someone, not to give an account of his involvement. … They did not encourage the accused to keep on telling them about his connection to Ms. Richey or his account of what happened.

UNDERCOVER OFFICER TESTIMONY AT TRIAL

At the trial, one of the officers testified from behind a large black screen to preserve his anonymity regarding his conversations with Schlatter (these conversations were not recorded).

According to the evidence at trial, Schlatter boasted to the undercover officers about his ability to pick up women. He told the officers that he “likes a challenge” and that “sometimes you have to push the boundaries with women to see where it goes”.

The officer testified:

Mr Schlatter said that what he did was something big… He then asked us if we know a girl named Tess Richey.

Schlatter told the undercover officers that he had met Richey at a nearby nightclub and as the night progressed he ended up on the street with Richey and her friend. The friend took a streetcar home and left Schlatter alone with Richey. Schlatter told the undercoverofficer that he was making out with her in an alley. He wanted to have sex with her, but she told him she couldn’t because she was on her period. Schlatter said that Richey was falling over drunk and that he had her up against the wall at the bottom of the stairs. Schlatter told the officers that they stopped kissing and Richey said she wanted to stay at the bottom of the stairwell, so he left on his own.

We will continue to follow this criminal case as it makes its way to the Court of Appeal and will provide updates in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Ontario’s First Criminal Trial Since Courts Close Takes Place Over Zoom

Written on Behalf of Affleck & Barrison LLP

On March 17, 2020, the courts in Ontario shut down to reduce the transmission of COVID-19. As time passed, the courts began to hear bail hearings, appeals, motions and some sentencing hearings using a combination of telephone, video and only a few in-person hearings. All trials were on placed on hold for nearly four months as measures were developed to contain the deadly virus and decisions were made as to how to safely proceed with re-opening the courts.

The lives of many Ontarians have been put on hold awaiting trial, whether in jail or those released on strict bail conditions. Witnesses and victims have also been placed in a holding pattern with many likely suffering from anxiety and stress of not knowing when and how their proceedings will be handled.

Those trials that were scheduled for the spring of 2020 have been re-scheduled. Courts are now proceeding with trials and preliminary hearings that were already scheduled in July and August.

Recently, Ontario courts began resuming operations with strict health and safety protocols in place. In Ontario, the first criminal trial was finally successfully held in provincial court through video conferencing.

TRIAL BY ZOOM

The first and only trial to be conducted through video conferencing in Ontario took place between June 8 to 12. This was the only trial to take place in Ontario during the province wide court shutdown due to COVID-19. The case was R. v. S.L.. Both parties requested that the trial take place over Zoom and also requested that the judge provide written reasons allowing such proceeding to take place for the benefit of all parties as the pandemic continues to affect criminal justice in our country.

Justice Lemon agreed with counsel that the case before him was an appropriate trial to be held by video conferencing, along with the assistance of counsel, the parties and the court staff.

The case took place over 5 days on the Zoom platform (4 days of trial and 1 day or argument) with no significant technological issues. The lawyers did not wear the customary black robes and the judge did not wear his sash. There were only two witnesses and a mid-trial voir dire to address the issue of opinion evidence.

The accused had signed a “Waiver and Consent” to allow for a virtual trial. Justice Lemon relied upon section 650(2)(b) of the Criminal Code to grant him the jurisdiction to allow the trial process to proceed in the absence of the accused, on consent, subject to appropriate terms and conditions.

Justice Lemon noted that this was an appropriate case to proceed by Zoom as the charge against the accused allowed for trial by judge alone, there were only a few witnesses involved, a few documents and a few issues before the court. Furthermore, all parties were agreeable to proceed by Zoom and were experienced with the process. Justice Lemon did not have any concerns with his ability to assess credibility over Zoom.

Justice Lemon permitted the trial to proceed with the accused “out of the court” with the following conditions:

The accused must participate in the trial using video conferencing software for the entirety of the proceedings; and
The accused must alert the court or his counsel if he is unable to see or hear the trial proceedings.

WHAT HAPPENED AT TRIAL?

Sherman Lai was charged with sexually assaulting D.H., who was 22 years old at the time, in 2005 when she was a patient at his Traditional Chinese Medicine clinic. S.L. testified that she attended the clinic as she was suffering from digestive issues causing bloating and gas and she was concerned about facial acne. She alleged that at her last appointment Lai performed a vaginal exam on her at his clinic.

Although Justice Lemon found S.L. to be a credible witness, he found her to be unreliable due to changes in her testimony. He found that there were several inconsistencies between S.L.’s statements on the stand and the information that she gave prior to the trial regarding the year of the incident and her initial reasons for visiting Lai.

The Crown provided an expert witness to prove that internal vaginal exams were not part of the practice of traditional medicine. However, Justice Lemon questioned the breadth of the expert’s knowledge and stated that the testimony did not account for the entirety of traditional Chinese practices.

The question before Justice Lemon was whether what occurred in the exam room was part of Traditional Chinese Medicine. If it was not, was the physical contact by Lai of a sexual nature.

Justice Lemon stated:

[T]here may be circumstantial evidence of a sexual assault, but the totality of the evidence leaves open the reasonable conclusion that what S.L. did was perform Traditional Chinese Medicine. Other than the part of the body touched, there was nothing to suggest other than a clinical practice.

Justice Lemon was not satisfied beyond a reasonable doubt that S.L.’s treatment by Lai was contrary to Traditional Chinese Medicine and therefore found Lai not guilty of the charge against him.

We will continue to follow the government’s response to the pandemic and how it will affect 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, it is recommended that you contact an experienced criminal defence lawyer. The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences. 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.