Criminal Law

Jury Finds Anne Norris Not Criminally Responsible in Death of Marcel Reardon

Written on Behalf of Affleck & Barrison LLP

A Newfoundland jury found Anne Norris (“Norris”) not criminally responsible in the death of 46-year-old Marcel Reardon (“Reardon”).

Following the verdict, Norris has been placed in the custody of the Newfoundland and Labrador Criminal Mental Disorder Review Board for psychiatric treatment.


Norris pleaded not guilty to first-degree murder in Reardon’s death, but admitted to repeatedly hitting him in the head with a hammer early in the morning of May 9, 2016.

The following details admitted by Norris were presented to the jury:

  • Norris socialized with Reardon and two others downtown in St. John’s on May 8, 2016, before leaving alone and going to Walmart on Topsail Road;
  • Norris purchased a knife and a 16 oz. Stanley hammer at a Walmart hours before the incident;
  • Norris returned downtown and in the early morning hours of May 9, 2016 she and Reardon took a cab to Harbour View Apartments on Brazil Street, where she lived;
  • Norris killed Reardon by striking him several times in the head with the hammer, then moved his body under a set of concrete steps;
  • Norris put the murder weapon, her jeans and some rope into a borrowed backpack and threw it in St. John’s harbour;
  • The backpack was recovered two days later and turned over to the police; and
  • Norris admitted to owning a sock, scarf, bathrobe and a pair of sneakers taken by police from her apartment, which were found to contain Reardon’s blood.

The issues at trial were whether or not Norris was mentally sound enough to be criminally responsible for Reardon’s death, and if so, whether or not the killing included the intent and planning required for first-degree murder.

Norris’ lawyers maintained that she was suffering from a mental disorder when she attacked Reardon and therefore should be found “not criminally responsible”. Her lawyers suggested that Norris was “a ticking time bomb” and had been on a “downward spiral” since the age of 24. She has received treatment in the past for psychosis and has a longtime belief that she was being sexually assaulted by various men while she slept. She had been released from the Waterford Hospital practically untreated days before she killed Reardon. Lawyers argued that Norris thought Reardon was going to sexually assault her and that’s why she attacked him.

On the other hand, Crown prosecutors argued that the evidence demonstrated that Norris was not delusional and planned a deliberate killing, even going so far as to dispose of the weapon. Lawyers for the Crown reasoned that although Norris had a mental illness, there was no evidence of her being symptomatic at the time of the attack.

The trial lasted one month and 31 witnesses were called, including police officers, friends of Norris, Norris’ father, employees of Walmart, the province’s chief medical examiner, five psychiatrists and one psychologist.


Not criminally responsible (“NCR”) is defined in section 16 of the Criminal Code. An individual is NCR if he/she was suffering from a mental disorder at the time of the offence, and:

  • the mental disorder made it impossible for him/her to understand the nature and quality of what he/she did; or
  • the mental disorder made it impossible for him/her to understand that what he/she did was morally wrong, not just legally wrong.

The party raising the issue of NCR has the burden. More likely than not it is the defence who must prove the accused is NCR on the “balance of probabilities”.

Once an individual is found NCR, he/she is not acquitted. Instead the individual is diverted to a provincial or territorial review board (pursuant to section 672.38 of the Criminal Code), which are independent tribunals made up of at least five people, including a licensed psychiatrist. Each year cases are heard by the board at which point the board can impose one of the following:

  • that the individual remain detained in a hospital with varying levels of privileges;
  • that the individual be released on a conditional discharge (individuals are allowed into the community where they have substantial freedom and relatively light conditions); or
  • that the individual be released on an absolute discharge (individuals are released into the community without any supervision).

Absolute discharges are only granted when the board finds the individual is not a “significant threat” to public safety.

The Crown, in this case, has 30 days to decide whether it will seek to appeal the verdict. In the meantime, Norris will remain in psychiatric care until a review board deems her fit to be released into the community.

If you have been charged with a serious 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.




Canada’s Prostitution Laws are Under Review in London, Ontario

Written on Behalf of Affleck & Barrison LLP

A court hearing is underway in London, Ontario regarding the constitutionality of Canada’s prostitution laws.

Hamad Anwar and Tiffany Harvey face more than two dozen sex-related charges each, including profiting from the sex trade, advertising sexual services and forcing someone into the sex trade. In November 2015, the two accused were charged after London police raided the escort agency where they worked, Fantasy World Escorts, following a seven month investigation.


The Crown prosecution takes the position that the new prostitution laws protect women by decriminalizing the sale of sex, but penalize the purchase of it and consequently reduce the demand.

The accuseds’ lawyers are arguing that some of the charges against their clients violate sex workers’ constitutional right to security of the person. They take the position that the specific charges of procuring, advertising and materially benefiting from the sexual services of someone else should be struck down.

The defence called academic, Chris Atchison, as their first expert witness. He gave evidence that the new prostitution laws make it less safe for people in the sex trade to do their jobs. Atchison stated in court, “I believe the application of these laws makes things worse for the most vulnerable people on the street but also for others in the sex industry.”


Bill C-36 was the Conservative government’s response to the prostitution laws that were struck down in December 2013 by the Supreme Court of Canada in the decision of Canada (Attorney General) v. Bedford.

The Supreme Court, in a unanimous decision, held that the laws prohibiting bawdy houses, living off the benefits of prostitution and communicating in public with clients infringed the rights of prostitutes by depriving them of security of the person. The Supreme Court gave the government one year to draft new laws that would not infringe on the constitutional rights of prostitutes.

Prostitution is legal in Canada, however, under Bill C-36 several activities surrounding it are criminalized. Bill C-36 came into force on December 6, 2014, encompassing prostitution and human trafficking-related amendments. The new law criminalizes the advertising and buying of sex, but decriminalizes the sale of sex.

The Bill specifically targets the buyers of sex, with penalties including jail time (up to five years in some cases) and minimum cash fines that increase after a first offence.

Authorities anticipated that Bill C-36 would be challenged in court at some point. Advocates who support the new laws appreciate that it punishes those individuals who buy sex, not those who sell it. On the other hand, opponents of the new law feel that the legislation forces sex workers underground due to fear of arrest and criminalizes advertising sex. The concern is that sex workers and their clients seek out more isolated and dangerous locations. This legislation also decreases the ability for those in the sex trade to screen their clients prior to meeting, which increases the risk of violence.

We will continue to provide updates on this blog regarding any developments of this case as it continues to be heard before the court.

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.

Appeal Court Upholds Parents’ Conviction in Son’s Meningitis Death

Written on Behalf of Affleck & Barrison LLP

A panel of Appeal Court judges in Alberta dismissed the appeal of a couple who were found guilty of failing to provide the necessaries of life to their 19 month old son, who died of meningitis in 2012.


In 2016, David and Collet Stephan were convicted by a jury for failing to provide the necessaries of life in their son Ezekiel’s 2012 death. They had treated their son with natural remedies rather than taking him to a doctor when he had become ill.

A panel of Appeal Court judges in Alberta dismissed the appeal. Justice Bruce McDonald, writing for the majority, wrote,

This evidence supports the conclusion that they actively failed to do what a reasonably prudent and ordinary parent would do.

During the trial, jurors heard evidence that the Stephans used natural remedies and homemade smoothies containing hot pepper, ginger root, horseradish and onion rather than seek medical care. Ezekiel became too stiff to sit in his car seat and had to lie on a mattress when his father drove him from his home to a naturopathic clinic to pick up additional herbal supplements.

The Stephans did not call for medical assistance until their son stopped breathing. He was then rushed to a local hospital, but died after being transported by air ambulance to a Children’s Hospital in Calgary.


According to the Stephans’ lawyers, the trial was a “battle of experts”. The Stephans argued that the convictions should be overturned because the trial judge erred in allowing too many Crown experts to testify, the medical jargon confused jurors, and the defence expert’s testimony was restricted. The majority of the Appeal Court dismissed all grounds of appeal.

The Stephans’ lawyers also argued that their clients’ Charter rights had been violated because of the unreasonable delay between the time they were charged to the date they were convicted. This aspect of the appeal was also dismissed with the Court finding the delay was not unreasonable.


Justice Brian O’Ferrall wrote a dissenting opinion in favour of a new trial. He felt that the trial judge’s charge to the jury was confusing and misleading. Justice O’Ferrall did, however, agree with the majority of the Court in finding that the Stephans’ right to be tried within a reasonable time had not been infringed.


David Stephan was sentenced to four months in jail and his wife, Collet, was sentenced to three months of house arrest. They were both ordered to complete 240 hours of community service. The trial Judge also ordered that the Stephans’ three other children see a medical doctor at least once a year.


Given that one of the three judges on the appeal panel dissented, the Stephans have an automatic right to have the Supreme Court of Canada hear arguments in their case. The Supreme Court has set a tentative date to hear arguments on May 15, 2018 for the couple.

The Crown prosecutors have filed their own appeal where they will argue that the couple should face stiffer sentences before another panel of Court of Appeal judges. A date for these arguments has not yet been set.


The Criminal Code of Canada requires that every parent, foster parent, or guardian is required to provide necessaries of life for a child under the age of 16 years of age.

A parent is responsible for the care, supervision, maintenance and support of his/her children. At a minimum, this obligation entails the provision of food and shelter. The Courts have also found that the failure to seek medical attention can be categorized as a “failure to provide the necessaries of life”.

The prosecution, in a case such as the Stephans, is required to prove that:

  1. The accused was under a legal duty to provide the necessaries of life to a child under the age of 16 years;
  2. The accused failed to provide the necessaries of life to a child under the age of 16 years;
  3. This failure endangered the child’s life or was likely to cause the health of that child to be endangered permanently; and,
  4. The conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, or guardian in the same circumstances.

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

In the meantime, if you are facing charges or have 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.


Is Your Home Safe this Holiday Season?

Written on Behalf of Affleck & Barrison LLP

The holiday season is upon us and this means lots of Canadians will be travelling away from home. During the holidays, the potential for thefts and robberies increase. Each of us can reduce the risk to our homes and property from being victimized by eliminating the opportunity.

While you are away on vacation, its important to make your home appear inhabited. Here are a few suggestions to keep your home safer:

  • Reinforce your door locks;
  • Trim your trees;
  • Light up the night;
  • Install an alarm system;
  • Use timers to maintain normal lighting patterns;
  • Keep your travel plans off of social media;
  • Stop all mail delivery;
  • Arrange for a neighbour to cut the grass or shovel snow;
  • Cancel all deliveries during the time you will be away;
  • Maintain normal lighting patterns by using electronic timers;
  • Leave a radio on, with a timer if necessary, to simulate normal use;
  • Ask a neighbour to park in your driveway;
  • Arrange for neighbours to pick up flyers; and,
  • Lock your garage door.

Theft is a very broad category of legal offences found in the Criminal Code of Canada (“CC”). There are a number of other offences in the CC related to theft, such as:

  • Motor vehicle theft;
  • Breaking and entering;
  • Home invasion;
  • Theft while breaking and entering;
  • Unlawfully in a dwelling house; and,
  • Robbery.


The charge of theft has three components that the Crown (i.e. prosecutors) must prove:

  1. The accused took or converted the property;
  2. The accused did so without permission and without good faith belief that he/she had permission; and,
  3. The accused intended to do so.

The intent component is an important one so as to avoid charging individuals who accidentally or mistakenly take or use property that does not belong to them.

Punishment for theft depends upon the value of the stolen goods in question. A conviction for theft under $5,000 carries a maximum penalty of up to 2 years imprisonment. A conviction for theft over $5,000 carries a maximum penalty of up to 10 years imprisonment.


Breaking and entering charges will be laid in cases where an individual enters or trespasses onto private property with the intention of committing a criminal offence. A break and enter offence usually occurs when someone is attempting to steal property, but the charge can be laid without any theft or damage to property. In fact, walking through an open door has been found to constitute “breaking and entering”.

The most serious form of break and enter is a “home invasion”, which occurs when an accused breaks and enters into a property knowing that there are people present and is prepared to use force or violence against them. The fact that the accused knew that the property was occupied is an aggravating factor that can be used during sentencing and will attract higher penalties.

Breaking and entering is considered a serious offence and punishment can be severe, especially if it is committed in relation to a dwelling house. If the offence was committed in relation to a dwelling house the maximum penalty is imprisonment for life. If the offence was committed in relation to any place other than a dwelling house the maximum penalty is imprisonment not exceeding ten years for an indictable offence or an offence punishable on summary conviction (maximum fine of $5,000 or six months in jail or both).


The offence of robbery shares some of the same characteristics as theft, but includes the component of violence. Thus, charges of robbery can arise if during the course of a theft the individual uses violence, threats of violence, a weapon, or imitation weapon to obtain property.

Robbery is a serious charge and is always an indictable offence (i.e. the most serious offence), which means it involves the right of the accused to have a preliminary inquiry and a trial by judge and jury, if the accused wishes to.

There are a number of factors that could affect the severity of the penalties imposed upon a robbery conviction, including the nature and use of any weapons; the degree of violence used; the injuries suffered by the victim; the vulnerability of the victim; the value of the goods stolen; and, the offender’s prior criminal record. An individual accused of robbery could potentially face a maximum penalty of life imprisonment (in the case where a firearm is used).

If you have been charged with an offence against property, as described above, it is imperative to retain a criminal lawyer immediately. Please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

Ontario Will No Longer Prosecute HIV Non-Disclosure Cases

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about criminal charges being laid against individuals living with HIV who fail to disclose their health status prior to engaging in sexual relations. Given the advancements in science and medicine in terms of treatment of the disease, we are beginning to see that changes are necessary to the criminal justice system.


On World AIDS Day (December 1, 2017), Ontario Attorney General, Yasir Naqvi, and Health Minister, Eric Hoskins, announced that Crown attorneys in Ontario will no longer prosecute cases of HIV-positive individuals who do not disclose their health status to their sexual partner if they have a suppressed viral load for six months.

World AIDS Day is recognized as a time to consider the impact that HIV/AIDS has had on Canadians and thank those dedicated to preventing the disease and caring for and treating those that the disease has impacted.

Over the years there have been remarkable medical advances and HIV treatment has slowed disease progression so that many HIV-positive individuals can now consider the disease as a chronic, manageable condition. The criminal justice system must now reflect the current reality of this disease.


Studies have found that sexual activity, whether using a condom or not, with an HIV- positive individual who is receiving prescribed treatment and has maintained a suppressed viral load poses a negligible risk of transmission.

Viral load refers to the amount of HIV virus in a person’s blood. Viral suppression is defined as suppressing or reducing the function and replication of a virus. Reaching viral suppression means that the amount of HIV in an individual is very low. Viral suppression can help HIV positive individuals live healthier and longer lives and can reduce the likelihood of transmitting the virus to another person.


The Supreme Court of Canada in the 2012 R. v. Mabior decision established that HIV-positive individuals have a duty to disclose their HIV status prior to sexual activity that poses a “realistic possibility of transmission”. The Court convicted Mabior on three counts because, although he had a low viral load when he had intercourse with three sexual partners, he did not use a condom. The Court found that Mabior met the test for “a realistic possibility of transmission of HIV” and therefore was convicted. At the time, the law was clear that HIV-positive individuals must disclose their status before engaging in sexual activity that poses a realistic possibility of transmission of HIV in order to avoid criminal liability.

However, the Supreme Court of Canada in the R. v. Mabior decision also recognized that scientific and medical advances regarding HIV/AIDS would progress over time and allowed for the law to evolve in the future as well.

Having reviewed all of the updated medical and scientific evidence, the Ontario government has decided that the criminal law should not apply to individuals living with HIV who have engaged in sexual activity without disclosing their status as long as they have maintained a suppressed viral load as the “realistic possibility of transmission test” is not met in these circumstances. An individual living with HIV who complies with their treatment is viewed as an individual who is acting responsibly.

In general, it is recommended by Canada’s Department of Justice that because the realistic possibility of transmission test is likely not met, the criminal law should not apply to:

  • Individuals living with HIV who are in treatment;
  • Individuals living with HIV who are not in treatment, but use condoms;
  • Individuals living with HIV who only engage in oral sex (unless other risk factors are present and the individual living with HIV is aware of those risks).

We will continue to follow any developments in the provincial and federal review of criminalization of HIV non-disclosure and will blog about updates as they become available.

In the meantime, if you have any questions about your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer 24-hour phone service, 7 days a week for your convenience.

Driver Found Not Guilty in Car Accident that Killed Pedestrian and Her Dog

Written on Behalf of Affleck & Barrison LLP


On November 21, 2017, Mr. Justice Peter Bawden found Gideon Fekre not guilty of dangerous operation of a motor vehicle causing death.


In April 2015, 18-year old Fekre was driving on Dundas St. E. approaching Carlaw Avenue when he crossed a bike lane and drove onto the sidewalk for 20 metres, ultimately striking and killing Kristy Hodgson and one of her two dogs that she was walking.

Fekre told the Court,

I was coming down Dundas from the Eaton Centre….My water bottle dropped, and I reacted, is the best way of putting it. I reached down  with my right hand to pick it up, kept my left hand on the steering wheel. …[I realized] the direction I was heading was onto the sidewalk toward a woman and her dogs.

Fekre testified at trial that he tried to avoid Hodgson by hitting his brakes and turning the steering wheel towards the road, but was unsuccessful.

Police officers testified that Fekre’s car had left the roadway, crossed a bike lane, and driven on the sidewalk for more than 20 metres at approximately 52 kilometres per hour. Fekre had told the officers at the scene that he had taken his eyes off the road for “just a second” while trying to retrieve a water bottle that had fallen onto the floor beneath his feet.


The criminal charge of dangerous operation of a motor vehicle causing death is a serious criminal offence punishable by up to 14 years in prison as set out in section 249(4) of the Criminal Code of Canada. This offence consists of two components:

  • the prohibited conduct (operating a motor vehicle in a dangerous manner resulting in death); and,
  • the required degree of fault (marked departure from the standard of care that a reasonable person would observe in all the circumstances).

In the 2012 case of R. v. Roy, the Supreme Court of Canada clarified the legal principles to be applied in determining the criminal standard for dangerous driving. The Court set out the two questions to ask in determining whether the fault component is present:

  • In light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?
  • Was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?

In the case of R. v. Roy, the Supreme Court of Canada found that the trial judge erred in law by inferring from the fact that Roy had committed a dangerous act while driving that his conduct displayed a marked departure from the standard of care expected of a reasonable person in the circumstances. The Supreme Court allowed the appeal, set aside the conviction and entered an acquittal.


The real question before the court was whether Fekre’s reaction in the less than two seconds was a “marked deviation” from what a “reasonably prudent” driver would do under the circumstances.

Was it [reaching for a water bottle] a marked departure from what a reasonable driver would have done?

Justice Bawden found that the Crown prosecutor had not proven beyond a reasonable doubt that Fekre made a conscious decision to divert his attention at an essential moment while driving. He did state that the driving in question could lead to liability in a civil trial, but he did not meet the higher criminal standard for dangerous driving outlined by previous decisions before the Supreme Court of Canada.

Justice Bawden specified that the duration of the interruption in attention while driving was essential in coming to his decision. The evidence showed a period of inattention lasting between 0.74 seconds to 1.18 seconds. This, according to Justice Bawden, qualified as a “momentary lapse of attention” which had been deemed non-criminal by the Supreme Court. He stated, “We cannot hold drivers to a standard of ideal decision-making when making split-second decisions”. He found that Fekre made an “imprudent but reflexive decision”.

Furthermore, Fekre’s behavior at the scene showed concern for the victim and dramatic remorse, which enhanced his credibility.


The Liberal government currently has a proposal on the table to establish new road safety measures, which we have previously blogged about.

The proposed legislation includes the offence of careless driving resulting in death or bodily harm with a maximum fine of $50,000.00, license suspension, and imprisonment. We will provide updates regarding this new legislation as information becomes available.

If you are facing a dangerous driving charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

Ontario Crown Prosecutors Ordered to Get More Individuals Out on Bail

Written on Behalf of Affleck & Barrison LLP

Ontario’s current bail system is simply not working. It has been reported that almost 70% of the individuals held in Ontario’s jails are waiting for their case to come before the courts. Individuals kept in jail may ultimately end up serve more time awaiting trial than if they were convicted.

We’ve previously blogged about the government’s attempts to make the justice system faster and fairer. On October 30, 2017, Ontario’s Attorney General announced a new directive as part of the Crown Prosecution Manual to help make the bail system faster and fairer. This directive will be used to provide support and guidance to Crowns (i.e. prosecutors) and will be released in the coming weeks.


Following an arrest, an individual is either released pending the first court date or kept in custody. The right to not be detained before trial is a fundamental right in Canada and is codified in section 11(e) of the Canadian Charter of Rights and Freedoms. This right is based on the presumption of innocence (i.e. everyone is presumed innocent until proven guilty).

Everyone charged with a crime is entitled to reasonable bail unless the Crown can show just cause to deny it. The principle of “reasonable bail” refers to the terms of bail (i.e. monetary conditions and other restrictions).

A bail hearing determines whether an individual accused of a crime will be released from custody for the time leading to their trial date. In order to grant bail, the Court must consider the following three factors:

  1. Whether there is any risk that the accused will flee the Court’s jurisdiction (i.e. leave the city, province, or country) or fail to return to Court when required;
  2. Whether there is substantial likelihood that the accused will reoffend or interfere with the administration of justice if released on bail; and/or,
  3. Whether releasing the individual will undermine public confidence in the justice system.

The following factors must be considered by the Crown when determining whether the individual should be detained:

  1. Age of the individual;
  2. Presence or absence of a criminal record, related offences and breach of court orders;
  3. Concern that the individual will interfere with the administration of justice (i.e. coercion of witnesses, destruction of evidence);
  4. Presence or absence of outstanding charges in any jurisdiction;
  5. Need for and the availability of supervision of the individual while on bail;
  6. Any ties to the community; and,
  7. Availability of community supports.


The Supreme Court of Canada has set the stage for the new bail policies in its recent decisions in R. v. Jordan and R. v. Antic. The Court stated that reasonable bail is a right that should not be denied without a very good reason.

In the case of R. v. Antic, the Supreme Court of Canada reiterated the proper approach for conducting a bail hearing by using the “ladder principle”. The Court sent a strong message that too many individuals are being held unnecessarily in custody before trial and too many individuals are subject to restrictive conditions and forms of release. Under the ladder principle, the starting position at a bail hearing should be unconditional release and only if the circumstances of the individual in question require it should any conditions and financial requirements be added.

In the Supreme Court of Canada case of R. v. Jordan, the Court set strict time limits for the completion of criminal cases, where there are no exceptional circumstances. The Court specified a maximum of 18 months for cases in the Ontario Court of Justice and 30 months for cases in the Superior Court of Justice.


The main focus of the new bail directive is to keep more individual offenders out of jail while awaiting trial. The new policy should result in allowing more people charged with offences to be released with “realistic” conditions when warranted and only using sureties when necessary (the exception, rather than the rule). A surety is an individual appointed by the courts who promises to ensure that the individual complies with the conditions of their bail, and who puts up money that they may lose if they fail in their surety duties.

The directive recommends that the “ladder principle” be applied during bail hearings. This principle is codified in section 515(3) of the Criminal Code of Canada and simply states that an individual should be released on the least onerous form of bail unless the Crown shows reason to the court to proceed otherwise. The Crown must consider each “rung” of the ladder individually before rejecting it and moving along to a more restrictive form of release.

The new policy recommends that only necessary and appropriate conditions be imposed. Only conditions specific to each case should be recommended and should not be automatic. Conditions of release should be connected to the circumstances of the individual, the facts of the case, and meeting public safety concerns.

The directive further instructs Crowns to consider the unique circumstances that indigenous, low-risk vulnerable individuals and those with mental health and addiction issues face in being granted bail. The government will be introducing more assistance in the community for individuals who may need supervision and support, but who cannot attain a surety. For instance, the government has suggested the use of “bail beds”, which allow low-risk offenders to reside in a supervised home in the community while awaiting trial.

We will continue to monitor how this new directive is affecting the bail process in Ontario and will blog about updates as they become available.

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







Cyberbullying Laws in Canada

Written on Behalf of Affleck & Barrison LLP

In this “digital age” and with the prevailing use of social media by an increasing number of Canadians of all ages, challenges exist for legislators and law enforcement.

According to a Statistics Canada study in 2014, the first of its kind in Canada, nearly one in five internet users aged 15 to 29 reported having been cyberbullied or cyberstalked. In 2013, the Federal Government took a step towards addressing cyberbullying in Canada following the suicides of Rehtaeh Parsons and Amanda Todd (where intimate images of them had been shared without their consent), when it introduced Bill C-13, Protecting Canadians from Online Crime Act. This has significant implications, including jail time, for individuals charged under new provisions that have been added to the Criminal Code of Canada (“CC”) in the wake of Bill C-13.


Cyberbullying is a form of bullying involving the use of communication technologies (instant messaging, social media, blogs, texting, or other internet sites) to repetitively intimidate, threaten, embarrass, or torment others.

This type of harassment, unlike face-to-face bullying, can occur 24 hours a day and is persistent and offensive. Due to the anonymity, people can say hurtful and cruel things and it is often harder to identify and stop them.

Examples of cyberbullying include:

  • Sending mean or threatening emails or text/instant messages;
  • Posting embarrassing photos of someone online;
  • Creating a website to make fun of others; or,
  • Tricking someone into revealing personal or embarrassing information and sending it to others.


The CC does not contain a specific provision for cyberbullying. However, when bullying behaviour crosses the line and becomes criminal conduct, the CC contains several provisions that can speak to these actions, including:

  • Criminal harassment (section 264);
  • Uttering threats (section 264.1);
  • Intimidation (section 423(1);
  • Mischief in relation to data (section 430(1.1);
  • Unauthorized use of computer (section 342.1);
  • Identity fraud (section 403);
  • Extortion (section 346);
  • False messages, indecent or harassing telephone calls (section 372);
  • Counselling suicide (section 241);
  • Child pornography offences (section 163.1)
  • Incitement of hatred (section 319);
  • Publication of an intimate image without consent (section 162.1); and,
  • Defamatory libel (sections 298-301).


As of March 2015, a new offence of sharing intimate images of a person without their consent was codified in the CC. This was legislated, in part, due to the increase in “revenge porn” and similar of sharing of intimate images online.

An intimate image is defined in section 162.1(2) of the CC as an image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region, or breast. The image has to be one where the person believed that the photograph was private and did not consent to having it viewed by others.


The CC specifically sets out penalties for those convicted of publishing or transmitting an intimate image of a person without consent in section 162.1(1).

If convicted of distributing an intimate image without consent the legal consequences include:

  • Imprisonment for up to five years;
  • Seizure of their computer, cell phone, or other device used to share the image;
  • An order for the removal of intimate images from the internet if the images were posted without the consent of the person or persons in the image; and,
  • An order to reimburse the victim for costs incurred in removing the intimate image from the internet or elsewhere.


As this is a relatively new offence, there are only a few reported cases that deal with this conduct.

In the Ontario case of R. v. A.C., the victim had taken nude photos of herself and sent them to the offender during their relationship who in turn shared the images because he wanted revenge. The sentencing judge in this case imposed a conditional discharge (no conviction is registered as long as conditions are met) with three years probation given that the offender expressed remorse and appreciated the impact that the offence had on the victim.  One of the terms of the probation was that the offender was not to possess any intimate images as defined by section 162.1 of the CC of any person who is known to him personally.

In the British Columbia case of R. v. P.S.D., the offender took two photos of the victim partially clothed, without her consent. The photos were sent to the offender’s two friends with the intention to cause the victim emotional harm. The photographs were found to be blurry and it was difficult to recognize the victim. The accused spent sixty days in pre-sentence custody. The sentencing judge found that there was a “relatively low level of harm” and imposed a two-year term of probation.

In the recent case of R. v. A.C., the accused pleaded guilty to the charge of sharing intimate images without consent. The sentencing judge found that the offender was not remorseful and did not appreciate how seriously the crime had affected the victim. Furthermore, the offender shared the images with the world, posting on more than one website. He also included the victim’s name, age, ethnicity, and place of birth. In this case, the accused was sentenced to five months imprisonment with a probation term of twelve months. He was also ordered to perform sixty hours of community service.

If you are facing criminal charges or have questions regarding your legal rights, please contact the criminal lawyers at Affleck & Barrison online or at 905-404-1947. We offer 24-hour phone service, 7 days a week for your convenience.

What is “Wilful Blindness” in Criminal Law?

Written on Behalf of Affleck & Barrison LLP

In a recent decision, R. v. Downey, the Court of Appeal could find no error by the trial judge in convicting the accused of various firearm related offences arising from having imported three guns into Canada. The appellant argued that the trial judge erred in applying the doctrine of wilful blindness.


Three guns were found hidden in the vehicle that Michelle-Ann Downey drove across the border from Detroit, Michigan into Canada.

The original trial judge concluded beyond a reasonable doubt that Downey had been “wilfully blind” regarding the nature of what she was transporting into Canada.

On appeal, Downey’s counsel argued that the trial judge had erred in his application of the doctrine of wilful blindness. Counsel argued that there was no evidence from which to draw the inference that Downey had suspected that she had guns (rather than some other criminal contraband) in her vehicle. The Court of Appeal disagreed that the trial judge made this error.


In Canada, a crime is defined by two things:

  1. the act itself; and,
  2. the intention behind the act.

Wilful blindness applies to the accused’s state of mind. It describes a situation where someone tries to escape criminal liability by intentionally overlooking the obvious.

The Court of Appeal in Downey specifically wrote that “[w]ilful blindness acts as a substitute for actual knowledge”. The court relied on the words of Charron J. in the Supreme Court of Canada decision of 2010 in R. v. Briscoe:

The doctrine of willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.

Wilful blindness has also been described as the state of “deliberate ignorance” of a certain fact. It is not enough that the accused failed to inquire about a certain fact, but instead the accused intentionally and deliberately did not inquire.


In applying the doctrine of wilful blindness, one does not question what a reasonable person would have done in the circumstances. Instead, one must find that the accused deliberately refrained from making inquiries so as not to have his/her suspicions confirmed.

A court may make the following inquiries when considering the doctrine of wilful blindness:

  • Has the accused’s suspicion been triggered about a fact that would reveal a prohibited consequence or situation?
  • Is the accused’s suspicion about the prohibited consequence or situation probable or at least likely to occur?
  • Did the accused inquire about the suspicion?
  • If the accused inquired about the suspicion did the accused have any remaining suspicion after the inquiry?
  • If the accused had any remaining suspicions after the inquiry, did the accused make further inquiries?


In the case of R. v. Downey, the trial judge found that the accused’s suspicion had been aroused to the point that there was a need for inquiry, but she deliberately did not inquire so as not to learn the truth. The trial judge gave these examples:

  • Her evidence was inconsistent with text messages located on her phone;
  • She knew it was not illegal to bring $4,000 into the country, yet she told the customs officials she was not carrying cash;
  • It was implausible that she thought she would be paid $1,000 for smuggling $4,000 into the country; and,
  • She admitted that her conscience was telling her she was doing something wrong.

The Court of Appeal dismissed the conviction appeal and dismissed the sentence appeal by concluding that there was no basis to interfere with the sentence of two years less a day.

If you have questions regarding your legal rights, contact the criminal lawyers at Affleck & Barrison LLP. To speak with an experienced criminal defence lawyer, please call us at 905-404-1947 or contact us online for a free consultation.

How the Good Samaritan Drug Overdose Act Can Help Prevent Drug Overdoses and Deaths

Written on Behalf of Affleck & Barrison LLP

There is an increasing number of Canadians overdosing or dying from the use of opioids. The Public Health Agency of Canada has estimated that at least 2,458 Canadians died from an opioid-related overdose in 2016, which amounts to almost seven deaths every day.

On May 4, 2017, the Good Samaritan Drug Overdose Act (“Act”) became law as part of the Government of Canada’s approach to address the growing number of overdoses and deaths caused by opioids (pain relieving drugs, including fentanyl). Many of these deaths are avoidable if medical attention is obtained quickly, but evidence demonstrates that witnesses to an overdose do not call 911 for concern of police involvement.

The Honourable Jane Philpott, Minister of Health, was quoted as saying,

During an overdose, a call to 911 can often be the difference between life and death. We hope that this new law, and the legal protection it offers, will help encourage those who experience or witness an overdose to make that important call, and save a life.


This Act provides legal protection for individuals who seek emergency help or witness an overdose. An overdose is defined in the Act as a

 physiological event induced by the introduction of a controlled substance into the body of a person that results in a life-threatening situation and that a reasonable person would believe requires emergency medical or law enforcement assistance.

This Act can protect you from charges for possession of a controlled substance, i.e. drugs, under section 4(1) of the Controlled Drugs and Substances Act.

This Act also protects people in breach of the following conditions under section 4(1) of the Controlled Drugs and Substances Act:

  • Parole;
  • Pre-trial release;
  • Probation orders;
  • Simple possession; and,
  • Conditional sentences.

It does not, however, provide legal protection against more serious offences, such as:

  • Outstanding warrants;
  • Production and trafficking of controlled substances; and,
  • All other crimes not outlined within the act.

The Act applies to all people seeking emergency support during an overdose, including the person experiencing the overdose. It also protects anyone who seeks help, whether they stay or leave the overdose scene before help arrives.


Opioids are drugs with pain relieving properties that are used primarily to treat pain. Over the counter opioids (i.e. Tylenol 1) can be purchased at the pharmacy without visiting a doctor to treat minor aches and pains, like headaches or tooth aches. There are also opioids that are prescribed by a doctor to relieve medium to severe pain, like after surgery.

Fentanyl is an extremely strong opioid that is prescribed for people with extreme pain, like cancer, and should only be used under medical supervision.

This type of drug can produce euphoria, or a high feeling, which leads them to be used improperly. Examples of opioids that can be prescribed medications, such as:

  • Codeine;
  • Fentanyl;
  • Morphine;
  • Oxycodone;
  • Hydromorphone; and,
  • Medical heroin.

Doctors sometimes prescribe opioids for conditions, such as:

  • Acute moderate to severe pain;
  • Chronic pain;
  • Moderate to severe diarrhea; and,
  • Moderate to severe cough.

Dependency, substance use disorder and overdose are serious side effects and risks of using opioids. They have the potential for problematic use because they produce a “high” feeling.


An overdose can occur when one has ingested too much of an opioid. Opioids slow down the part of the brain that controls breathing. If you take more opioids than your body can handle, your breathing slows, which can lead to unconsciousness or death. Signs of an overdose include:

  • Person can’t be woken up;
  • Breathing is slow or has stopped;
  • Snoring or gurgling sounds;
  • Fingernails and lips turn blue or purple;
  • Pupils are tiny (pinned) or eyes are rolled back;
  • Body is limp.


In case of a suspected overdose, the following is recommended:

  • Check to see if the person is breathing. Look, listen and feel.
  • Call 911 immediately. Tell the operator that this is a suspected overdose, so the emergency crew can bring naloxone (a medication that can temporarily stop or reverse an opioid overdose).
  • Do not leave the person alone. Wait until help arrives. If you must leave, turn the person on their side to avoid possible choking.
  • Try to keep the person awake and remind them to take frequent deep breaths.
  • If you are concerned that people you know are using opioids, you can get a naloxone kit from the public health unit or a local pharmacy.

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