Courts & Trials

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.

20,000 Watch Livestream of Judgment as Off-Duty Officer is Found Guilty of Assault

Written on Behalf of Affleck & Barrison LLP

Last week, an unprecedented event took place when more than 20,000 people watched Justice Joe Di Luca read his 62 page ruling for four hours in an online livestream.

Justice Di Luca found off-duty Toronto police Constable Michael Theriault (“Michael”) guilty of assaulting Dafonte Miller (“Miller”). Michael was acquitted of the charges of obstruction of justice and his brother, Christian Theriault (“Christian”), was acquitted of all charges of aggravated assault and obstruction of justice.

PUBLIC INTEREST DEMANDS LIVESTREAM OF JUDGE’S DECISION

In his judgment, Justice Di Luca recognized the immense public interest that the case before him generated given the issues of racism and police accountability. However, he stated that his duty was not to “conduct a public inquiry into matters involving race and policing”, his responsibility was to decide “whether the Crown has proven the offences charged beyond a reasonable doubt based on the evidence that was presented in court”.

The fact that so many people were watching the decision streaming live demonstrates that the public wants to have access to the court process and see justice in action. The decision by Justice Di Luca to livestream his decision also shows the court’s dedication to legitimacy and authenticity.

Justice Di Luca stated in his decision:

This case has attracted significant public and media interest. This interest is welcome as the openness of the court process is one of its core defining principles. It is also welcome because public and media interest fosters legitimate debate, criticism and change, all of which are essential features of a functioning modern democracy.

WHAT HAPPENED?

The depiction of the events that occurred in the early morning hours of December 28, 2016 were incompatible between Miller and the Theriault brothers.

According to Miller, he was walking down the sidewalk with friends when he was approached and questioned by the Theriault brothers. Miller and his friends ran, but he was eventually caught and viciously beaten. Michael allegedly used a metal pipe and Christian used his hands and feet. Miller was struck in the eye with the metal pipe and suffered serious injuries to the bones around his face, his wrist was broken, he lost vision in his left eye and had difficulty seeing out of his right eye. As a result of this incident, Miller underwent two surgeries and had to have his damaged eyeball removed and fitted for a prosthesis.

According to the Theriault brothers, they were inside the garage at their parents’ home when they heard a commotion outside. They opened the garage to find two males inside one of their vehicles. The individuals ran in different directions. The brothers chased Miller, with the intention of arresting him and waiting for police to arrive. The cornered him in between two houses at which time Miller produced a metal pipe and began swinging it. Christian alleges that he was hit in the head and a struggle ensued. Michael proceeded to punch Miller multiple times in the face, likely causing Miller’s eye injury. Michael denies hitting Miller with the metal pipe. The Theriault brothers contend that they used reasonable force in their attempt to arrest Miller and acted in self-defence when Miller used the metal pipe as a weapon.

Miller was arrested at the scene and charges were laid, including theft under $5,000 and assault with a weapon. In the end, these charges were withdrawn by the Crown.

The Special Investigations Unit investigated the incident and the Theriault brothers were jointly charged with aggravated assault and separately charged with attempting to obstruct justice given their dishonesty with the Durham Regional Police Service.

JUSTICE DI LUCA’S DECISION AT TRIAL

Justice Di Luca specifically acknowledged that there were credibility issues with multiple witnesses and therefore he could not conclusively determine a number of important facts in this case. Specifically, he could not positively determine where the metal pipe came from or who first handled it.

Justice Di Luca found that Miller and his friends were stealing items from cars and that Michael’s initial plan was “likely not to arrest Mr. Miller, but rather to capture him and assault him”. Michael never identified himself as a police officer or mentioned an arrest during the chase or the fight. Justice Di Luca stated:

To be blunt, I would have expected the first thing out of Michael Theriault’s mouth as he was chasing Mr. Miller while wearing only socks would have been “Stop…you are under arrest…I’m a police officer,” or words to that effect.

Although it was not clear as to the origin of the metal pipe, Justice Di Luca stated:

Even assuming that the pipe was first introduced by Mr. Miller, it was quickly removed from him and the incident became one-sided, with Mr. Miller essentially being beaten by Michael and Christian Theriault.

Justice Di Luca was “left with reasonable doubt” that Michael was acting in self-defence. When Miller headed towards the door of the nearby home to seek assistance and was badly injured, he was essentially in retreat. Justice Di Luca stated:

The already razor thin self-defence justification evaporates at this stage.

Justice Di Luca was satisfied beyond a reasonable doubt that when Michael struck Miller with the pipe he was not acting in self-defence or in the course of an arrest, and therefore committed an unlawful assault.

WHAT HAPPENS NEXT?

Michael is currently suspended from the Toronto Police Service and has been since July 2017. He will continue to remain out on bail until his sentencing hearing.

A professional standards investigation is underway on behalf of the Toronto Police Service with respect to the events that transpired and the Office of the Independent Police Review Director is also continuing to investigate this incident.

We will provide additional information regarding any developments as they take place in this blog.

In the meantime, if you have been charged with an assault or related offence or have any questions regarding your legal rights, please contact the knowledgeable 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. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Supreme Court of Canada Clarifies Entrapment by Police in Dial-a-Dope Cases

Written on Behalf of Affleck & Barrison LLP

Canada’s highest court recently released its written decision in a pair of related cases regarding the issue of entrapment. Javid Ahmad (“Ahmad”) and Landon Williams (“Williams”) were each charged with drug offences after police purchased cocaine from them.

The Supreme Court of Canada confirmed that police must form a reasonable suspicion that the individual on the phone is dealing drugs before asking to buy drugs.

WHAT HAPPENED?

Toronto police responded to tips to investigate alleged dial-a-dope schemes. This type of scheme involves a seller communicating with their customers over cell phones and arranging to purchase drugs at an agreed upon location. In each case, officers called a particular phone number and following a brief conversation requested drugs and arranged a meeting spot to complete the transaction.

Ahmad and Williams were each arrested and charged with drug-related offences. Both accused argued at trial that their proceedings should be stayed on the basis of entrapment.

In the case of Ahmad, the police received a tip that “Romeo” was selling drugs over the phone. Following a short conversation with “Romeo”, a deal was struck to sell the officer cocaine and a location was agreed upon. The officer met “Romeo” (Ahmad) in person to sell him the cocaine, at which time he was arrested and searched. At Ahmad’s trial, he was convicted and the judge concluded that he was not entrapped as police had not offered him an opportunity to traffic drugs until their tip had been corroborated during the course of the phone conversation.

In the case of Williams, police received a tip that “Jay” was selling cocaine. The officer called “Jay” and arranged a meeting time and place to buy crack cocaine. The drug deal took place. Eleven days later, another drug deal was arranged. A month later, the police arrested Williams. At Williams’ trial, the judge concluded that he was entrapped because the officer who contacted him provided him with the option to sell drugs before forming a reasonable suspicion that he was drug trafficking. Thus resulting in a stay of the drug-related charges.

Both Ahmad’s and Williams’ cases were heard together on appeal. The majority of the Court of Appeal held that where reasonable suspicion relates to the phone number, the police can provide opportunities to commit a crime even if there is no reasonable suspicion about the person who answers the phone. Therefore, at their appeals both Ahmad and Williams were convicted of drug offences.

WHAT IS ENTRAPMENT?

Entrapment takes place when the police encourage an individual to commit a crime or provide an individual with the opportunity to commit a crime without having a reasonable suspicion that the individual is involved in that particular criminal activity.

The Supreme Court of Canada set out two categories for the defence of entrapment in the case of R. v. Mack.

The police may present an opportunity to commit a crime only without acting upon a reasonable suspicion that either a specific person is engaged in criminal activity or people are carrying out criminal activity at a specific location;
The police, while having a reasonable suspicion, go beyond providing an opportunity and induce the commission of an offence.

WHAT DID THE SUPREME COURT OF CANADA DECIDE?

On appeal to the Supreme Court of Canada, both Ahmad and Williams argued that the police did not have the required reasonable suspicion that either individual was involved in criminal activity before asking them over the phone to buy drugs.

The majority of the judges of the Supreme Court concluded that Ahmad was not entrapped and that Williams was entrapped by the police.

The court held that police can ask a person during a telephone conversation to commit a crime, but only if there is already reasonable suspicion that the person is involved in criminal activity. The reasonable suspicion must relate to the specific person committing a crime or a crime occurring in a specific location. Given the digital world that we live in, a specific location can include a phone number. Thus, police can have a reasonable suspicion that the phone number is being used for the crime before asking the person who answers the phone to commit a crime. The court was concerned about the risks to privacy of allowing the location to be expanded to virtual spaces and stated:

…to properly protect these interests, police must have reasonable suspicion over an individual or a well-defined virtual space, like a phone number, before providing an opportunity to commit a crime.

Although in both cases, the police didn’t have reasonable suspicion before calling the phone numbers, the court concluded that the police became reasonably suspicious in Ahmad’s case to suspect he was selling drugs while talking with him on the phone and before asking to buy drugs from him. In Williams case, the police asked to buy drugs from him prior to having a reasonable suspicion that he was selling drugs during their phone conversation.

The majority of the court stated:

As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. …

At the same time, police require various investigative techniques to enforce the criminal law. While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.

Based upon the specific circumstances in each case, Ahmad’s conviction was upheld and the stay of proceedings for Williams was reinstated.

If you have been charged with a drug-related 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. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Supreme Court of Canada Rules Bail Conditions Must Be Knowingly Violated

Written on Behalf of Affleck & Barrison LLP

In its unanimous decision last week, the Supreme Court of Canada ordered a new trial for Chaycen Michael Zora (“Zora”), who had been convicted of breaching his bail conditions.

The highest court in Canada concluded that an individual accused of breaching his/her bail conditions must knowingly or recklessly violate those conditions in order to be found guilty of breaching them.

WHAT HAPPENED?

Zora was charged with several drug offences in British Columbia. He was released on bail and required to abide by twelve conditions. These conditions included that he keep the peace and be of good behaviour, report to his bail supervisor, not possess any non-prescribed controlled substances, not possess or have a cell phone, obey a curfew and be present at his front door within five minutes if and when the police or bail supervisor appeared to check on him, amongst other conditions.

In October 2015, police rang Zora’s doorbell on two occasions and he did not answer. He was therefore charged with two counts of breaching his curfew and two counts of failing to meet the condition of responding to police at his home during a curfew check.

At his trial, Zora was acquitted of charges of breaching curfew as it could not be proven beyond a reasonable doubt that Zora had been outside of his home after curfew. However, Zora was fined $920 and found guilty of two counts of failing to appear at the door in response to curfew compliance checks.

Zora argued that he did not hear the doorbell as it was difficult to hear it from where he slept. Furthermore, he testified that he was undergoing methadone treatment, which made him very tired, and was in the process of withdrawal from his heroin addiction.

Zora also testified that he changed where he slept in his home and set up an audio-visual system at his front door to help alert him to further police checks, which ensured that he was complying with his conditions of bail.

Zora unsuccessfully appealed the trial judge’s decision. He then proceeded to take his appeal to the Supreme Court of Canada

THE DECISION OF THE SUPREME COURT

Zora appeals his conviction for failing to comply with his bail conditions by not answering the door when police appeared at his residence to ensure that he was complying with his bail conditions. In failing to do so, Zora had committed the actus reus of the crime (the physical act of the crime).

The Supreme Court of Canada was asked to determine whether Zora had committed the mental element, also known as the mens rea, of the crime, which also must be present, in order to secure a conviction under section 145(3) of the Criminal Code.

It is a criminal offence, under section 145(3) of the Criminal Code, to breach bail. This crime carries a maximum penalty of two years in prison. Therefore, an accused may be subject to imprisonment for breaching conditions of their bail even if he/she is not found guilty of any of the original charges.

In writing on behalf of the Supreme Court, Justice Martin explained what was required to satisfy the mental element of the crime:

I conclude that the Crown is required to prove subjective mens rea and no lesser form of fault will suffice. Under s.145(3), the Crown must establish that the accused committed the breach knowingly or recklessly. Nothing in the text or context of s. 145(3) displaces the presumption that Parliament intended to require a subjective mens rea.

…The realities of the bail system further support Parliament’s intention to require subjective fault to ensure that the individual characteristics of the accused are considered throughout the bail process.

…Not only is this conclusion consistent with the presumption of subjective fault for crimes like s. 145(3), it is supported by its place and purpose in the overall bail system, the serious consequences which flow from its breach, and how the consideration of individual circumstances is the proper focus both for setting conditions and determining the mental element for their breach.

The Supreme Court held that subjective mens rea can be established when the Crown has proven:

The accused had knowledge of the conditions of the bail order, or they were willfully blind to those conditions; and
The accused knowingly (or were willfully blind to the circumstances) failed to act according to their bail conditions despite the knowledge of them; or
The accused recklessly failed to act in accordance with their bail conditions (i.e. perceived an unjustified risk that their conduct would fail to comply with their bail conditions).

In conclusion, the Supreme Court held that subjective fault is required for a conviction under s. 145(3) of the Criminal Code. The court found that the lower courts erred in law by applying an objective rather than a subjective standard of fault. The Supreme Court allowed Zora’s appeal, quashed his convictions and ordered a new trial on the two counts of failing to appear at his door.

If you have been charged with a bail related offence or have any 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. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Ontario Courts Consider COVID-19 on Bail Review

Written on Behalf of Affleck & Barrison LLP

The subject of the COVID-19 virus has made its way into Ontario’s criminal courts and has been considered a “material change” in circumstances in a recent decision by the Ontario Superior Court of Justice.

In considering bail review applications in the cases of R. v. J.S and R v. Nelson, the Judges both acknowledged that the practice of social distancing and self-isolation is limited in Ontario’s prisons.

J v. J.S.

A suspected drug dealer, identified as J.S., requested a bail review by teleconference. The defence argued that the Justice of Peace erred and that there were material changes in circumstances to allow for a house arrest surety bail. A surety is someone who agrees to supervise an accused person while he/she is released into the community, or in this case on house arrest, as he/she awaits a court date to resolve a criminal matter.

In Canada, bail decisions are made following the consideration of the following three sets of factors:

Whether detention is needed to ensure an accused will attend court;
To protect the public safety;
The strength of the Crown’s case and the consideration of other circumstances surrounding a case.

In the case of J.S., Justice Copeland acknowledged that there were two material changes in circumstances, which included new proposed sureties and the fact that COVID-19 had developed in Canada.

According to Justice Copeland:

In my view, the greatly elevated risk posed to detained inmates from the coronoavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground. …

[B]ased on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. … If more people are infected, those resources will be more strained.

Justice Copeland granted Mr. S’s bail review application and ordered the following terms:

$15,000 surety recognizance;
to reside with his surety K.S.;
to remain in his residence at all times, except in the continuous presence of a surety or for a medical emergency of himself or an immediate family member;
to have no contact whatsoever with J.C.; and
to not possess any unlawful drugs, except with a valid prescription.

R v. NELSON

In another recent case in the Ontario Superior Court of Justice, Justice M. L. Edwards was asked to consider whether to release on bail 27-year-old Nathaniel Nelson (“Nelson”), who was suspected of robbing a jewelry store while armed.

Nelson’s lawyer argued that his client should not face “the heightened risk of contracting the virus – a risk that is heightened because of the conditions that exist in a prison environment”. However, his lawyer also “conceded that but for the virus, he fully recognized that the new plan of release was not one that had much, if any, chance of success”.

Justice Edwards ruled that those seeking bail on the grounds of COVID-19 must present “at least some rudimentary evidence” that they are more susceptible to the virus due to underlying health issues. He stated:

An incarcerated person who is advancing in age and who has underlying health issues will almost, without doubt, be at a greater health risk of contracting the virus, with possible serious ramifications.

The heightened risk facing those in jail due to the unlikelihood of practicing social distancing while in a jail cell with double or triple bunking was a factor considered by Justice Edwards on this bail review. Nelson’s youth, lack of pre-existing physical or mental health conditions, his prior criminal record and the fact that his charges were serious were also factors considered by the court.

Justice Edwards dismissed the bail application and concluded:

I do not take lightly my decision to dismiss Mr. Nelson’s application. Mr. Nelson previously did not meet his onus on the secondary and tertiary grounds for release. … I am not satisfied that there would be confidence in the administration of justice if Mr. Nelson was released from jail.

We will continue to follow any developments in the law with respect to the impact of COVID-19 and will provides updates in this blog.

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

Ontario 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.