Courts & Trials

Ontario Court Finds Prostitution Laws Unconstitutional

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

CONSTITUTIONAL CHALLENGE

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

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

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

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

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

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

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

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

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

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

In the meantime, if you have been charged with a sexual offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  For your convenience, we offer 24-hour phone services.  We are available when you need us most.

New Report Provides Concerning Depiction of Ontario’s Jails

Written on Behalf of Affleck & Barrison LLP

Bonnie Lysyk (“Lysyk”), Ontario’s Auditor General, has recently released a report examining the province’s adult correctional system.  This is the first review of its kind in more than a decade.

The report is entitled “Annual Report 2019:  Reports on Correctional Services and Court Operations”.  The report focused on adult correctional institutions, court operations and the criminal court system, and family court services.

Ontario spends approximately $820 million a year to keep people in jail.  It costs over $300 a day to keep an inmate in jail.  The cost of incarceration has increased almost 90% over the last ten years.  Despite these excessive figures, Lysyk has revealed a disturbing picture of the reality of the correctional system in Ontario.

THE AUDITOR GENEREAL’S FINDINGS REGARDING ONTARIO JAILS

According to the report, overcrowding is a major problem in Ontario’s correctional facilities.  The research suggests that 16 out of 25 of the province’s correctional institutions have increased capacity by 81% in comparison to the capacity that they were intended for. 

During an interview on CBC Radio, Lysyk advised:

In some places, they’ve added two beds to a cell [designed for one person].  We’ve seen in terms of Sudbury, there’s four beds to a cell.  That type of living condition also [contributes] to anxiety.

In terms of mental illness, Lysyk describes this issue as a “huge concern”.  It was found that 33% of Ontario inmates had been diagnosed or suspected of suffering from a mental illness.  This number has increased from previous years.  Contributing to the concern is that correctional officers did not receive sufficient or continuing mental health training to cope with these inmates. 

The Auditor General’s report discloses that correctional officers are feeling the affects and pressures of dealing with inmates that suffer from mental illness and it is manifesting itself in anxiety.  This is resulting in more correctional officers taking additional sick leaves.   According to Lysyk:

And the correctional institutions don’t have sufficient help from nurses, psychologists and psychiatrists, which puts the correctional officers in a difficult situation, because they’re having to deal with these inmates and don’t have the training to help, as well.

A review of the correctional system uncovered that a backlog of cases in the courts is contributing to the overcrowding in the correctional institutions.  It was revealed that 71% of inmates were on remand (those who are held in custody awaiting a future court appearance) or had not yet been convicted.  Lysyk found this statistic to be “disturbing”.  It has been suggested that these numbers are as result of the cuts to legal aid.  Many of these inmates do not have a lawyer or are waiting for their legal aid application to be processed.  Some critics of the justice system suggest that there is a dependence by Ontario judges on incarceration rather than bail.  Furthermore, cases are taking longer to be completed.

OTHER FINDINGS BY THE AUDITOR GENERAL

Lysyk also examined the province’s court operations.  According to her findings, there is a backlog of criminal cases and courtrooms are only operating an average of 2.8 hours per day.  This hourly operation is below the targeted average of 4.5 hours per day. 

It was also revealed that the number of criminal cases waiting to be resolved had increased by 27% (approximately 114,000 cases) and the average number of days needed to complete a court case had increased by 9%.

Lysyk found that as a result of the Supreme Court of Canada’s 2016 ruling that criminal cases must be tried within a tight timeline, 191 cases in Ontario had been stayed in the past 3 years.  Lysyk’s office commented:

These cases … denied justice to victims and may have had a significant impact on public confidence in the justice system.

Another important finding was that Ontario’s court system is heavily reliant on paper.  It was disclosed that paper made up more than 96% of the 2.5 million documents filed in 2018-2019.  Lysyk found that the paper-based courts were leading to more delays.  This paper-based system also proved to be a roadblock during her investigation.  Lysyk also commented that her office had difficulty getting certain information from the chief justices and the staff at the Ministry of the Attorney General.

Lysyk wrote in her report:

A main takeaway from the access-to-information issues we experienced was that Ontario’s court operations need to be more transparent and accountable to the taxpayers who fund it.  Transparency, accountability and effectiveness are also significantly hindered by the fact that the overall pace of court system modernization in Ontario remains slow.

We will continue to follow any developments or changes to Ontario’s correctional institutions or court services in reaction to the Auditor General’s 2019 report and will provide updates in this blog.

If you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Man Sentenced to 6 Years in Prison for Impaired Operation of Canoe

Written on Behalf of Affleck & Barrison LLP

Last summer, David Sillars (“Sillars”), became the first Canadian to be convicted of impaired driving charges while paddling a canoe.  He was recently sentenced to six years in prison for the April 2017 death of an eight-year-old boy.

We have previously blogged about a landmark ruling by an Ontario judge who decided that a canoe is a “vessel” for the purposes of the definition of vessel found in the Criminal Code of Canada, which includes the criminal charges of impaired operation of a vessel causing death, operation of a vessel over 80, and the dangerous operation of a vessel.

WHAT HAPPENED?

On April 7, 2017, Sillars took his girlfriend’s son, Thomas Rancourt (“Rancourt”), for a canoe ride down the Muskoka River to teach him how to paddle a canoe.  Sillars was intending to paddle in the direction of and to retrieve a blue barrel, which appeared to be wedged against a barrier by debris.  The canoe capsized and Rancourt was swept downriver and went over a waterfall at High Falls, and then drowned.  Sillars, on the other hand, swam safely to the shore.

In his lengthy decision, Justice Peter C. West set out the following key findings of fact based upon the evidence presented in court:

  • Temperatures were between 3 and 4 degrees Celsius on April 7, 2017;
  • School buses were cancelled due to slush and ice, resulting in poor road conditions on April 7, 2017;
  • The majority of the ice on the river had melted, although small chunks were visible, resulting in a reasonable inference that the river water was extremely cold;
  • The water levels of the river were very high on April 7, 2017;
  • The current in the river was fast-flowing and extremely strong;
  • The yellow barrier is a warning to caution boaters of the danger created by the water flowing towards the High Falls;
  • Sillars was cautioned by two experienced individuals who warned him of the dangerous water conditions;
  • Sillars did not agree to take or wear an adult sized lifejacket;
  • The PDF worn by Rancourt was too small for him, especially given that he was wearing three layers of clothing beneath it, including his winter jacket;
  • Sillars had consumed alcohol and THC prior to operating the canoe on April 7, 2017;
  • Sillars intention was to paddle to the yellow barrier to retrieve a blue barrel, which was clearly wedged in debris and partially submerged; and
  • Rancourt looked up to Sillars as a father figure, and this relationship created a duty of care for Sillars towards Rancourt.

Based upon the evidence, the court ruled that:

David Sillars’ decision to canoe towards the yellow warning barrier, during the spring run-off with the described dangers and risks…, with the sole purpose to retrieve a blue barrel, partially submerged and wedged against the yellow warning barrier by other debris, was a significant contributing cause of Thomas Rancourt’s death.  …[B]ut for the decision of Mr. Sillars to go to the yellow barrier, Thomas Rancourt would not have fallen out of the canoe and wound not have gone over the waterfalls and drowned. 

With respect to the issue of impaired paddling, the court considered whether Sillars’ drinking impaired his ability to operate a canoe (Sillars’ minimum blood-alcohol content was 128 milligrams of alcohol in 100 mililitres of blood and he had 14 nanograms of THC in his blood).  The court concluded that Sillars’ intellectual abilities, specifically his reaction time, decision making abilities and his ability to respond to an emergency situation, were impaired by his consumption of alcohol.

The fact that Sillars ignored warnings by two individuals as to the potential danger of canoeing in the conditions on the river, refused to wear an adult lifejacket and failed to bring the required safety equipment in the canoe demonstrated to the court that he overestimated his canoeing abilities and underestimated the level of risk he was enduring, which further demonstrated how the alcohol and marijuana impaired his decision making abilities.

THE SENTENCING

Justice West found Sillars guilty of all four charges he was facing and was sentenced in October, 2019.  The Crown asked the court for a jail sentence of six to eight years and an order prohibiting Sillars from operating a vessel for 20 years.  Sillars’ defence team asked the court for a two-year jail term.

Justice West described numerous aggravating factors that he considered when deciding on the terms of Sillars’ sentence.  The fact that Sillars was in a position of trust and authority in relation to Rancourt was one such factors, as well as his previous criminal record. 

In his reasons, Justice West commented on how this is a “unique” case as there are no precedent cases of criminal negligence causing death or impaired operation causing death in the case of a capsized canoe.  However, Justice West used precedent cases of those who have been found guilty of operating a motor vehicle while impaired and sentenced Sillars to six years in prison, an order requiring that samples of bodily substances be taken for the purposes of forensic DNA analysis  and an order prohibiting Sillars from operating a vessel for 10 years.

Justice West stated:

In my view general deterrence and denunciation are particularly important in cases where alcohol or drugs have impacted an offender’s ability, as in this case, to operate a vessel and the factor that a motor vehicle was not … involved makes no difference.

Sillars has already filed an appeal and has been released on $1,500 bail pending his appeal.  He must remain at home under house arrest and abstain from drinking alcohol. 

We will continue to follow any developments that may arise in this case and will report any 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 Affleck Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Supreme Court Rules that Offender Has the Right to Lesser of Two Penalties Available at the Time of Commission of the Offence or Sentencing

Written on Behalf of Affleck & Barrison LLP

In a recent ruling by the Supreme Court of Canada, the Court determined that a convicted individual is entitled to the lesser of two punishments, either the one in effect when the offence took place or the one in effect at the time of sentencing.  This decision overturned the Quebec court’s decision that a convicted offender has the right to the least harsh punishment in effect from the time of the offence until the sentencing.

WHAT HAPPENED?

In the case of R. v. Poulin, the accused was convicted in 2016 of sexual assault and acts of gross indecency from incidents occurring between 1979 to 1987.  Poulin was found guilty of offences against a child between the ages of seven and fifteen.  Crown prosecutors asked for a prison term of 3 ½ to 5 years.  Poulin’s defence team requested a conditional sentence given Poulin’s advanced age (82 at the time) and his poor health.  A Quebec court sentenced Poulin to a conditional sentence of two years less a day, to be served in the community, for the charges of gross indecency.

The Crown was unsuccessful in its appeal to the Quebec Court of Appeal and the decision was appealed to the Supreme Court of Canada.

At issue in this appeal was the interpretation of section 11(i) of the Charter of Rights and Freedoms, which reads as follows:

11.  Any person charged with an offence has the right:

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

The question is whether this provision signifies a comparison of the lesser sentence at two relevant times (i.e. the commission of the offence and the sentencing of the offence) or whether the provision signifies a consideration of variations between the time of the commission of the offence and the sentence.

The judges of the Supreme Court split their decision 4-3 and concluded that Poulin was not eligible for the conditional sentence as it did not exist either at the time of the offence or at the time of his sentencing (it only existed temporarily between these two points in time).

Justice Shellah Martin, writing on behalf of the majority of the court, stated:

The legal rights reflected in our Charter represent the core tenents of fairness in our criminal justice system.  The right to comb the past for the most favourable punishment does not belong among these rights. 

The majority of the court found that the language of section 11(i) of the Charter suggested the application of a “binary approach”, as opposed to a “global approach”.  The binary approach would not permit Poulin to be granted a conditional sentence as it was neither in force at the time of commission or at the time of his sentence. The global approach would permit Poulin to be granted a conditional sentence because it was in force for a period of time between the commission of the crimes and his sentence. 

HOW ARE SENTENCES IMPOSED?

If an accused either pleads guilty or is found guilty at trial, a Judge must impose a sentence that is fair given the circumstances of the offence, the seriousness of the offence and the offender’s degree of responsibility.

The Court will consider both aggravating and mitigating factors relating to both the offender and the offence itself. 

Aggravating factors are those that the court relies upon which may increase the sentence, which may include:

  • Your criminal record;
  • The facts of the offence (i.e. your role in the crime, whether you have committed the crime on multiple occasions, whether a weapon was used and how, whether property was damaged or money was taken);
  • The impact of the crime on the victims (i.e. whether the crime involved a person under the age of 18 years, whether the victim’s health was seriously harmed, whether the victim received permanent physical or psychological injury, whether the victim experienced financial harm due to the crime); and
  • Your association with other criminal organizations (i.e. the crime was committed for the benefit of a criminal organization or committed as an act of terrorism).

Mitigating factors are those that the court relies upon to lighten the sentence, which may include:

  • The absence of a criminal record;
  • The facts of your offence (i.e. your role in the crime, co-operation when you were arrested, addiction or mental health issues);
  • How you’ve behaved since the crime (i.e. whether you have taken steps to address addiction or mental health issues, whether you have followed the release order or volunteered or given money to charity to repair the damage you have caused); and
  • Your personal circumstances (i.e. age, health, cultural background, education, work history and potential work opportunities, children and dependents).

The Court will take all of these factors into account when determining an appropriate sentence in an effort to maintain a just and safe society for all Canadians.

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 offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  We are available when you need us most.

Changes to Jury Selection Upheld in Ontario Court

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

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

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

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

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

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

WHAT IS THE NEW LAW REGARDING JURY SELECTION?

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

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

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

If you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Couple Found Not Guilty in Death of Son

Written on Behalf of Affleck & Barrison LLP

We have previously written in this blog about the criminal case involving the Alberta couple, David and Collet Stephan, who were charged with failing to provide the necessaries of life to their 19-month-old son Ezekiel, who died in 2012.  At their second trial, a judge last week found the couple not guilty.

WHAT HAPPENED?

The Stephans testified that they believed their son was suffering from an upper airway infection (i.e. croup).  They treated him at home with natural remedies, which included a smoothie made of garlic, onion and horseradish.  They also used cool air and a humidifier to help with his breathing.  Ezekiel’s condition seemed to get better one day, then worse the next day, then better again.

On March 12, 2012, Ezekiel’s body remained stiff and he was unable to drink on his own.  Terry Meynders, a registered nurse, attended at the Stephans’ home and suggested to the couple that Ezekiel may have viral meningitis and that he should be taken to a doctor. 

On March 13, 2012, after Ezekiel stopped breathing a few times, the Stephans called for an ambulance.  The breathing equipment available in the ambulance was too large for a small child and he went without oxygen for nine minutes.  Ezekiel attended two area hospitals and was then transported to Alberta Children’s Hospital Calgary, where he was put on life support and died a few days later.

HISTORY OF THE CRIMINAL PROCEEDINGS

At their original trial in 2017, a jury convicted the Stephans of failing to provide the necessaries of life to their son contrary to section 215(2)(b) of the Criminal Code.  David Stephan was sentenced to four months in jail and his wife was sentenced to three months of house arrest.

This trial decision was upheld on appeal and the ruling was further appealed to the Supreme Court of Canada.  The highest court in Canada quashed the Stephans’ convictions and ordered a new trial (please see our blog regarding this decision).

A new trial began on June 3, 2019 before Justice Terry Clackson of the Court of Queen’s Bench, without a jury, lasting over three months. 

WHAT HAPPENED AT THE STEPHANS’ SECOND TRIAL?

Although it was established that Ezekiel had meningitis, the following issues were in dispute at trial:

  • Whether Ezekiel had bacterial or viral meningitis;
  • Whether Ezekiel’s death was the result of meningitis or hypoxic injury (damage to cells resulting from decreased oxygen tension);
  • Whether the Stephans knew Ezekiel had meningitis;
  • Whether the Stephans, knowing that Ezekiel had meningitis, ought to have sought medical intervention.

Based upon the evidence before the court, Justice Clackson came to the following conclusions:

  • Ezekiel had viral meningitis;
  • Ezekiel did not die from meningitis, but from the lack of oxygen;
  • The Stephans did not know Ezekiel had meningitis, but were aware of the possibility and were monitoring his symptoms.

Given these findings, Justice Clackson found that the Stephans were not guilty of the charge against them.

According to Justice Clackson, section 215 of the Criminal Code does not impose a duty on parents or guardians to seek medical attention for every sick child.  A duty is imposed when there is a risk to the child.  Justice Clackson found that, based on the evidence before him, the viral meningitis that Ezekiel suffered from did not constitute a risk to his life.

Justice Clackson ruled that there was no physical evidence that Ezekiel died of meningitis, thus the Crown had failed to prove its case.  The evidence before the court informed that there is no specific means to effectively treat viral meningitis.  Therefore, the Crown did not prove that medical attention could have or would have saved Ezekiel’s life.  Clackson stated:

I have concluded that the Stephans knew what meningitis was, knew that bacterial meningitis could be very serious, knew what symptoms to look for … They thought their son had some sort of croup or flu-like viral infection. … The physical evidence supports … [the] conclusion that Ezekiel died because he was deprived of oxygen.  That occurred because he stopped breathing and the resulting oxygen deprivation lasted long enough to lead to his death.

In response to the verdict, the Alberta Crown Prosecution Service issued the following statement:

We respect the decision of the court.  This has been a challenging case for everyone involved.  The Alberta Crown Prosecution Service will review the decision to determine the next steps.  As such, no further comment will be provided.

We will continue to follow the developments in this case and will provide updates on this blog when they become available.

In the meantime, if you are facing criminal charges or have 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 for your convenience.  We are available when you need us most.

Appeal Court Upholds Dangerous Offender Designation for Man Who Withheld HIV Status

Written on Behalf of Affleck & Barrison LLP

In the recent decision of R. v. Gracie, the Ontario Court of Appeal upheld the lower court’s decision designating Daniel Gracie (“Gracie”) a dangerous offender for withholding his HIV status from women, despite making legal errors.

WHAT HAPPENED?

Gracie, of Indigenous ancestry, was adopted by non-Indigenous parents as an infant.  He moved out of their home at the age of 15, at which point he became involved with the criminal justice system.  He has 25 youth convictions and 10 adult convictions.

In early 2010, Gracie was at the apartment of his friend C.C.  After an evening of drinking, he had asked her to have sex with him several times and she refused each time.  She then went to bed as she was feeling ill and tired.  He was planning on spending the night on the futon in her living room.  When C.C. woke up the next morning, her vagina was sore and semen was leaking out of it.  Gracie eventually admitted that he had sex with her while she was asleep.  Approximately, one year later C.C. found out that she had contracted HIV.

A second complainant, M.N., also accused Gracie of withholding his HIV status.  The two had an on-again off-again relationship between 2008 and 2011.  When the couple began dating again in 2011, they had unprotected sex after Gracie confirmed that he did not have any sexually transmitted diseases.  After watching a police media release naming Gracie as an HIV-infected individual charged with sexual assault, M.N. sought medical treatment and confirmed that she had contracted HIV from Gracie.

In the past, Gracie had been convicted of sexual assault causing bodily harm for the violent rape of a sex worker.  While he served his sentence for this crime, he was charged and convicted of counseling the murder of the police officer who was investigating the sexual assault incident.  He was also convicted of other crimes while he was on probation for these previous offences and committed the sexual assaults that were the substance of the appeal.

THE SENTENCING HEARING

Gracie pleaded guilty to two counts of aggravated sexual assault.  At his sentencing hearing, there was evidence to prove that Gracie had been advised by doctors and his probation officer regarding the risks of having unprotected sex and his legal obligation to disclose his HIV status to all potential sexual partners.

The trial judge at his sentencing hearing designated Gracie as a dangerous offender.  This is a legal designation only reserved for those individuals who are repeatedly convicted of violent or sexual crimes.  Crown prosecutors can apply for this designation under section 753(1) of the Criminal Code during the sentencing hearing where it can be shown that there is a high risk that the offender will commit violent or sexual offences in the future.  This designation results in an automatic imprisonment for an indeterminate period, with no change of parole for seven years.

The sentencing judge ruled that Gracie was to remain incarcerated indefinitely.

THE APPEAL

Gracie appealed the lower court decision granting him the label of dangerous offender and his indeterminate jail sentence.  Gracie argued that the sentencing judge did not properly conduct a prospective risk assessment and failed to take his Indigenous background into account during sentencing.

The three judges on the bench for Gracie’s appeal unanimously agreed that while the sentencing judge did not conduct the risk assessment until the penalty stage, rather than completing it before declaring him a dangerous offender, the verdict would have remained the same.

The appeal court held that the evidence proved that Gracie could not be trusted in the community as he had been found on all assessments to pose a moderate to high risk of violent or sexual reoffending.

The court also found that given his diagnosis of antisocial personality disorder and psychopathic traits, he would be less responsive to treatment.  Furthermore, Gracie had never showed signs of a willingness to take part in corrective programming during his previous incarcerations.

Lastly, although the sentencing judge did not reference having reviewed a report regarding Gracie’s Indigenous background, the appeal court held that those factors would not have affected the sentencing decision.  The appeal court noted that Gracie’s biological mother was Indigenous, however, he was adopted as an infant by a non-Indigenous family and moved to Toronto.  The court stated:

His life of crime began in his teenage years and he did not meet members of his biological family until much later in life, after he committed the predicate offences. …

The risk of sexual and violent recidivism was the product of his serious personality disorder, his poor treatment and supervision history, and the dim prognosis for meaningful change.

If you are facing sexual offence charges or have any questions regarding your legal rights, please contact Durham region criminal defence lawyers Affleck & Barrison LLP.  We have a reputation for effective results in defending all types of criminal legal charges.  We offer a free initial consultation and a 24-hour phone service.  Contact our office online or at 905-404-1947 to speak with one of our experienced criminal defence lawyers today.

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

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

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

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

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

THE CONSTITUTIONAL ARGUMENTS

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

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

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

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

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

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

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

OFFENDER’S INDIGENOUS STATUS CONSIDERED IN RULING

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

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

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

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

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

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

SCC Orders New Trial in “Friends with Benefits” Case

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada has ordered a new trial for Patrick Goldfinch (“Goldfinch”), and in doing so sent out a warning to judges in Canada when allowing evidence of past sexual history in the case of sex assault trials.

WHAT HAPPENED?

Goldfinch was charged in 2014 with sexually assaulting a woman he had previously dated and had once lived with.  The two had broken up, but remained friends.  The woman would occasionally visit Goldfinch’s home and stay the night. 

On the evening of May 28, 2014, the complainant contacted Goldfinch, who proceeded to pick her up at her house and bring her back to his residence.  Goldfinch testified that this was a “typical evening” in that the complainant “would call in the middle of the night, want to come over, and we’d end up going to bed together”. The two shared a consensual kiss and Goldfinch suggested that they go to bed.

According to Goldfinch, they went into his bedroom and each removed their own clothing, engaged in consensual foreplay and brief intercourse.  Goldfinch testified that he fell asleep and was later woken by the complainant who stated that he had struck her on the head in his sleep.  He got annoyed and called her a taxi using her phone.

The complainant testified that she told Goldfinch she did not want to have sex and he proceeded to grab her arm and drag her by her hair into the bedroom.  She testified that she became scared and removed her clothes at his direction.  He proceeded to push her onto the bed, hit her in the face and had sexual intercourse with her without her consent.  She got dressed and called a taxi from her cell phone, and then contacted the police shortly after returning home.  Two officers who met the complainant at the hospital confirmed swelling on her left cheek and elbow.

During the trial, the judge allowed evidence to be admitted regarding a “friends with benefits” type of relationship between the complainant and Goldfinch.  The judge regarded this evidence as “relatively benign” and reasoned that keeping it from the jury would harm the accused’s right to make full answer and defence.

At trial, Goldfinch was acquitted by a jury. 

The trial decision was appealed and the majority of the Alberta Court of Appeal allowed the Crown’s appeal and ordered a new trial for Goldfinch in finding that the trial judge had erred in admitting the “friends with benefits” evidence.

THE DECISION BY THE SUPREME COURT OF CANADA

In a 6-1 decision, the highest court in Canada ruled that evidence regarding the sexual relationship between Goldfinch and the alleged victim should not have been heard by the jury.  This evidence was found to be a “reversible error of law” as allowing the evidence showed no other purpose than to “support the inference that because the complainant had consented in the past, she was more likely to have consented on the night in question”. 

The court found that the evidence in question suggested that the alleged victim was likely to have consented to sex because she had done so in the past.  This is the type of evidence that the “rape shield” law found in the Criminal Code is intended to prevent.

Justice Michael Moldaver wrote:

This case serves as a powerful illustration of how a trial can go off the rails where sexual activity evidence is admitted without being anchored to a specific, legitimate purpose.

Justice Andromache Karakatsanis, writing for the largest number of judges, concluded that evidence of past sexual relationships must be handled with care, “even relatively benign relationship evidence” during a sexual assault trial.  If such evidence is allowed, the jury must be instructed by the trial judge that details regarding previous sexual interactions are not relevant in determining whether the complainant had consented to the sexual intercourse that formed the basis of the trial.  She wrote:

No means no, and only yes means yes:  even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one the complainant has routinely consented to in the past.

Joanne Dartana, Alberta Crown prosecutor, stated that the Supreme Court decision “reaffirms the principle that stereotypical reasoning regarding sexual assault victims has no place in a criminal trial and this principle is no less important where the accused and the complainant had a pre-existing relationship”.

The one dissenting judge, Justice Russell Brown, concluded that the evidence was admissible and that the trial judge had made correct evidentiary rulings and had properly instructed the jury.

If you have been charged with a sexual offence or a related charge 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.  We are available when you need us most.

Man Who Refused to Wear Condom Found Guilty

Written on Behalf of Affleck & Barrison LLP

Ontario Superior Court Justice Nathalie Champagne has ruled that if a man refuses to wear a condom against his partner’s wishes and after agreeing to do so, it is a sexual assault.  Anibal Rivera (“Rivera”) has been found guilty of committing sexual assault by proceeding to have unprotected sex after agreeing to wear a condom.

WHAT HAPPENED?

In October 2017, Rivera and a woman (who cannot be identified) met on a dating website and they agreed to meet at the woman’s home in Cornwall, Ontario for a sexual encounter. 

Prior to their “date”, the woman texted Rivera and advised him that condoms were mandatory and that “no means no”. Rivera agreed to these terms.

In court, the woman testified that during their encounter she repeated “her rules”, however, Rivera proceeded to have sex with her without a condom, insisting that he was “clean”.  He then left after a few minutes of small talk.

Rivera testified that the woman agreed to proceed without a condom as long as he did not ejaculate inside her. 

The woman went to the hospital the next day for an evaluation and various tests, including tests for pregnancy and sexually transmitted infections, and a sexual-assault kit.  A few days later, she contacted the police.

Rivera drafted a written statement before his first interview with police wherein he wrote that the woman had initiated unprotected sex.  However, on the witness stand during his cross-examination he admitted that he had lied in his written statement.

THE ISSUE OF CONSENT

The issue at trial was whether the complainant consented to intercourse without a condom.  Both the woman and Rivera testified in court.

In her ruling, Justice Champagne wrote:

This is a case of ‘he said, she said’ which raises issues of credibility and reliability.  … In assessing the evidence, if I believe the account of Mr. Rivera, I must acquit.  If I don’t believe Mr. Rivera but the evidence leaves me with a reasonable doubt, I must acquit.  If the evidence does not leave me in doubt the offence occurred, I must assess whether the evidence proves the offence beyond a reasonable doubt.  … Mr. Rivera’s evidence gives rise to serious issues regarding his credibility and reliability…

Although Justice Champagne did not believe Rivera’s claims that the complainant agreed to have sex without a condom, the Crown must still prove the alleged offence beyond a reasonable doubt.

The complainant testified to the following:

  • She agreed to a sexual encounter.
  • She insisted that condoms were required and “no means no”.
  • She told Rivera to put on a condom prior to intercourse and he didn’t.
  • She told Rivera to put on a condom a second time before the second act of intercourse and he didn’t.
  • Rivera had vaginal intercourse with her without a condom followed by forced oral sex, followed by vaginal and anal intercourse with her without a condom.

Justice Champagne found that the woman’s evidence that she insisted that Rivera wear a condom and would not agree to sex without it is consistent with the conditions she had described in her text to Rivera and consistent with her undergoing tests at a hospital the next day. 

The Judge found that the woman’s “evidence to be proof beyond a reasonable doubt that Mr. Rivera committed a sexual assault against her by failing to wear a condom and engaging in sexual intercourse with her”. 

Justice Champagne went even further to say that if there is any uncertainty that failing to wear a condom amounts to a sexual assault in these circumstances, the complaint’s consent was discredited by fraud. 

IMPACT OF THIS DECISION

Justice Champagne noted that she did not draw any negative conclusions regarding the fact that the Rivera and the woman made small talk after sex or that it took the woman a few days before contacting the police.  She stated:

It would be inappropriate for me to do so and would invoke myths and stereotypes about how victims of sexual assault should act.  … It stands to reason that a complainant might make small talk to keep things calm and avoid unwanted contact and it would not be unreasonable for a complainant to take some time to consider whether or not to proceed with a complaint given the stress and scrutiny of intimate details of one’s life involved in the criminal court process.

In my view, Mr. Rivera led the complainant to believe he would wear a condom as he had previously agreed to do so and at the last minute he penetrated her without a condom telling her it would be OK. … I find his failure to wear a condom increased the complainant’s risk of pregnancy and constitutes a significant risk of bodily harm … Her consent was therefore vitiated by this action.

Justice Champagne’s decision is being well-regarded as an example to be set to other judges in Canada. 

It is also in line with the proposed Bill C-337, introduced by former federal Conservative leader Rona Ambrose, requiring those seeking a federal judicial appointment to go through mandatory training on sexual assault law, including rape myths and stereotypes about victims and the impact of trauma on memory.

We will continue to follow any developments in the case law or legislation that may arise from this latest decision regarding sexual assault, rape myths and stereotypes in this blog.

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.