Courts & Trials

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.

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:

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

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

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

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

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

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

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

WHAT IS THE NEW LAW REGARDING JURY SELECTION?

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

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

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

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.