Criminal Law

Alberta Appeal Court Ruling Likely to Limit Electronic Device Searches at Canadian Border

Written on Behalf of Affleck & Barrison LLP

Sheldon Canfield (“Canfield”) and Kent Townsend (“Townsend”), both Canadian citizens, were charged with possession of child pornography contrary to section 163.1(4) and with importing child pornography contrary to section 163.1(3) of the Criminal Code.

The criminal charges against both men took place when they re-entered Canada at the Edmonton International Airport in 2014.  Although the charges against the men are unrelated, both men sought an order from the Court under the Charter of Rights and Freedoms that the evidence of the search of Canfield’s cell phone and Townsend’s computer by border officers be excluded at their trials. 

Both Canfield and Townsend had their electronic devices searched by border officers and were found to have child pornography in their possession.  They were both arrested, convicted and appealed the Court of Queen’s Bench of Alberta’s decision not to exclude the evidence obtained during the search of their electronic devices by border officials.  The Alberta Court of Appeal has ruled that the searches by the Canada Border Services Agency (“CBSA”) officers of the digital devices were unconstitutional as the Customs Act imposes no limits on the search of these types of devices at the border.

THE CRIMINAL CHARGES

At the Canadian border, Canfield was flagged for a secondary screening due to his travel patterns and “overly friendly demeanor” after returning home from Cuba.  During this screening, an officer suspected that Canfield had child pornography on his phone.  Canfield confirmed that he did and showed the officer an image of child pornography on his device. 

Townsend was also arrested after being flagged by border officials when returning home from Seattle.  Townsend was selected for a secondary screening due to his five-month travel pattern, his lack of eye contact with border officials and his lack of employment.  He was also carrying 12 electronic devices.  Child pornography images were found on Townsend’s laptop and he was arrested.

At trial, Canfield and Townsend were convicted of possession of child pornography and importing child pornography.  Canfield was sentenced to 18 months in jail and Townsend was sentenced to two years.

THE APPEAL

At their appeal, it was argued that section 99(1)(a) of the Customs Act (“Act”) was unconstitutional as it permitted unlimited searches of electronic devices at the Canadian border.

Section 99(1)(a) of the Customs Act permits Canada Border Services Agency officers to examine “goods” that have been brought into Canada.  This section has been interpreted to allow CBSA officers to search personal electronic devices without restriction.

The written decision by the three judge panel of the Court of Appeal stated:

While the search of a computer or cellphone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy.  … To be reasonable such a search must have a threshold requirement.

According to the Court of Appeal, the trial judge failed to assess the application of section 99(1)(a) of the Act considering the developing technology of personal digital devices.

There is no doubt that there have been significant developments in the technology of personal electronic devices and the way they are used by Canadians (since 1988).  Individuals were not travelling and crossing borders with personal computers or cell phones that contained massive amounts of highly personal information.

The Court ruled that the definition of “goods” in the Act is “of no force” when it comes to personal electronic devices.

The Alberta Court of Appeal found that section 99(1)(a) of the Act was unconstitutional as it imposed no limits on searches of electronic devices by CBSA officers at the border.  The Appeal Court ruled that this section will be of no force and effect for one year to allow Parliament the opportunity to amend the Act.

Despite the Appeal Court’s ruling on the constitutional validity of the section, the convictions of Canfield and Townsend were upheld by the Court based upon the finding that the border officers acted in good faith in carrying out the searches and uncovered real evidence of serious offences.  Furthermore, society’s confidence in the justice system was best maintained through the admission of the evidence obtained through the unconstitutional searches. 

The CBSA, in a statement to CBC News, reported that it is currently reviewing the appeal court decision and assessing the next steps.  According to the CBSA:

The CBSA’s policy is to examine a digital device only if there are indicators that evidence of a contravention will be found.  It is important to note that examinations of digital devices are not conducted as a matter of course. …

This is a pretty big change in the law for the 98 million people who come through our Canadian border every year.

We will continue to follow any developments in the law with respect to the limits imposed on officers to search electronic devices at border crossings in Canada and will report them in this blog.

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

APPLICATION TO DISMISS ADMISSIONS MADE TO POLICE

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

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

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

Durham Officer Kevin Park testified at trial:

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

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

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

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

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

SECTION 10(B) OF THE CHARTER

According to section 10(b) of the Charter:

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

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

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

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

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

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

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

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

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

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

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

Public Petitions for Police to be Outfitted with Body-Worn Cameras

Written on Behalf of Affleck & Barrison LLP

Pressure has begun to mount throughout Canada for police officers to wear body cameras while on the job.

Growing anger and demands for answers by Canadians has escalated following the death of 29-year-old Regis Korchinski-Paquet, who fell from a 24th floor balcony on May 27, 2020 during an encounter with police, the death of Ejaz Choudry, who was shot and killed by police during a mental health crisis call in Mississauga, and the fatal death of D’Andre Campbell at his home in Brampton.

These cases, and other similar ones, are sparking a global mission to eradicate systemic racism in policing.  One of the proposed solutions is for the police to utilize body-worn cameras, which are currently in use by a only a few police services across the country.  The biggest one being the Calgary Police Service which has 1,150 front-line officers equipped with body cameras.

A petition addressed to Toronto Police Chief Mark Saunders has gathered more than 100,000 signatures.  The petition asks that all officers wear body cameras whenever responding to a call in an effort to hold officers accountable for their actions.

Chief Saunders is in support of mandatory body cameras for his officers and is hoping to begin outfitting his officers with this technology sometime this year, especially in response to the death of Korchinski-Paquet.  He stated:

This is a textbook case as to why I have been advocating for body-worn cameras and I’m now fast-tracking to the best of my ability to allow that process to speed up.

Last month, Prime Minister Justin Trudeau stated he was advocating to provincial premiers to equip police with body-worn cameras in an effort to eradicate allegations of racism and brutality.  These cameras would effectively document the police interaction with the public.

CALGARY POLICE SERVICE EXPERIENCE WITH BODY-WORN CAMERAS

Staff Sgt. Travis Baker is in charge of the body camera project for the Calgary Police Service, which has been in operation for the past 15 months.  Officers are trained to turn on the camera any time they begin an interaction with the public and are required to tell people that the camera is running. 

According to Sgt. Baker the body cameras have had positive results on policing in Calgary.  He stated:

We’re not out there to hurt people, we are out there to help people, and we want to capture all those interactions that we have with everyone regardless of what it is. 

… Pretty much if you run into a uniformed officer on the street, they’re going to be wearing a body-worn camera.  It’s pretty easy to spot – it’s right in the middle of their chest and it usually has a big glowing red light on it when it’s recording. … I think it keeps everybody on an even playing field… the camera’s unbiased, it doesn’t have an opinion.  It just records what happens in front of it.  …

Sgt. Baker believes that the body-worn cameras de-escalate the situation when officers are interacting with the public:

I think it changes the behaviour of both the officer and the person they’re dealing with, be it victim, witness or accused, because they can see the camera running.  We can get that kind of de-escalation right off the hop.  People know it’s running so they slow down and start thinking about what they’re doing.

The cameras are also an evidence gathering tool which can be used in court.  The video footage can provide details that may have been missed and if there are multiple cameras in use at an incident, it can provide views from different angles. 

DURHAM POLICE BODY CAMERA STUDY ON HIATUS

We have previously blogged about a pilot project in Durham, which ran between June 2018 and June 2019, wherein officers in Pickering and Ajax and traffic enforcement officers involved in the Festive RIDE team were equipped with body-worn cameras.  Those officers recorded more than 26,616 videos.  Approximately half of the video footage has been categorized as evidence and 30% of the recorded footage has been or will be used as evidence in court.

This type of technology was being reviewed to weigh the benefits of providing accountability of the officers in their interactions with the public and the costs of the increased workload and associated expenses involved with data processing and storage. 

In April 2020, Durham Police Service announced that the consideration of implementing body-worn cameras was being put on hold as the COVID-19 pandemic progressed.  At this time, there has been no further information regarding when the study will continue and whether any determinations have been made to resume the use of body-worn cameras in Durham region.

We will continue to follow any updates regarding the supply and use of body-worn cameras by police services throughout Ontario and will report any new developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

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

Written on Behalf of Affleck & Barrison LLP

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

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

PUBLIC INTEREST DEMANDS LIVESTREAM OF JUDGE’S DECISION

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

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

Justice Di Luca stated in his decision:

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

WHAT HAPPENED?

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

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

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

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

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

JUSTICE DI LUCA’S DECISION AT TRIAL

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

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

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

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

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

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

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

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

WHAT HAPPENS NEXT?

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

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

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

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

Changes in Crime Patterns During the Pandemic

Written on Behalf of Affleck & Barrison LLP

The COVID-19 pandemic and resulting shelter-in-place orders across Canada have changed the way we currently live.  According to police departments, this new reality has also changed crime rates across communities.

Since the State of Emergency has been declared, Durham Regional Police report that both emergency calls for service (down 11.3%) and urgent calls for service (down 5.5%) have decreased.  However, routine calls for service have increased by 13.5%.

Durham Regional Police report that they have received changes in the following type of calls for service during the time period between March 17 to April 22, 2020 when comparing it to the same time period in 2019:

  • Unwanted persons calls are up by 58%;
  • Suspicious persons calls are up by 38%;
  • Domestic and domestic-related calls are up by 14%;
  • Fight calls are down by 50%;
  • Theft calls are down by 21%; and
  • Motor vehicle collisions are down by 47%.

DOMESTIC VIOLENCE ON THE RISE

Under normal circumstances, a woman in Canada is killed by her intimate partner every six days according to the Canadian Women’s Foundation.  Given the current pandemic, across the globe reports of familial and intimate partner violence is increasing.  In response to this harsh reality, the Canadian government has recently invested $40 million in women’s shelters and sexual assault centres across the country.  The government has also reported that it is providing $10 million for emergency shelters for Indigenous women and children fleeing violence.

Although Durham Regional Police and York Regional Police (increase of 22%) report an increase in domestic violence calls, police departments in Brampton, Mississauga and Caledon are not seeing an increase of this nature.

Experts warn that despite the number of calls made to the police, violence within the home may still be occurring.  Specialists in the field of domestic violence are concerned that women who should leave abusive situations may be afraid to call for help.  Under normal circumstances, abused women can come up with reasons to make contact with shelters by saying they were going to work or dropping children off at school.  Given the pandemic, vulnerable women do not have this justification to leave the home as schools and workplaces are closed.

Abused women and children are stuck in their homes with their abusers.  They may also be at more of a risk due to the overwhelming stress of the current situation.  Individuals who lack coping skills might be more likely to lash out at others in their household.

Given the current situation, women who were saving money to leave an abusive situation may not be in a position to do so now as many have lost jobs and may be afraid they won’t receive child support payments given that courts are not prioritizing child support cases at this time. 

Yasmine Youssef, the National Manager for Nisa Homes, a transitional home for Muslim and immigrant women and children, reported:

We’re seeing reports coming out of China, Italy and other countries that the number of domestic violence cases have tripled since the pandemic started.  We know it’s definitely affection women that are [experiencing] abuse very heavily, because now the resources are very limited, and they’re stuck at home with their abuser 24/7.

Experts are afraid that the numbers from police departments are not reflective of the reality.  They believe that the majority of those affected by domestic violence do not call the police.  According to Marlene Ham, the executive direction of the Ontario Association of Interval and Transition Houses (OAITH):

Our fear is that there are a lot of women who are experiencing violence in their home and they may not be accessing any services or supports.  We really want women to know that those services and supports are available, and there are many entry points to getting the services they need.

For those that are experiencing abuse, in an emergency call 911 or contact the Assaulted Women’s Helpline at 1-866-863-0511 or dial #SAFE on your mobile phone.

TRAFFIC VIOLATIONS DURING THE PANDEMIC

Since the pandemic began, across Ontario there are reports of fewer traffic violations, less drunk driving and fewer cases of fraud, however, in addition to the increase in domestic violence, police are finding increases in commercial break-ins and stunt driving.

Given that the roadways are less congested, some are taking this as permission to engage in stunt driving and speeding more than 50 km/h over the limit.

Stunt driving is an offence found under the Highway Traffic Act and anyone found guilty of breaking this law can be subject to a fine between $2,000 to $10,000 and/or imprisonment for a term of not more than six months.  The driver’s licence may also be suspended if convicted.

Last weekend, OPP caught a 18-year-old driver and his 19-year-old passenger driving on the QEW near Burlington travelling at a speed of 308km/h.  The individual was charged with stunt driving under the Highway Traffic Act and was charged with dangerous driving under the Criminal Code.  His driver’s licence has been suspended for seven days and his vehicle has been impounded. 

If you have been charged with a driving related offence or a domestic violence offence, please contact the knowledgeable criminal defence 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.

Dealing Drugs is Not an Essential Business

Written on Behalf of Affleck & Barrison LLP

As COVID-19 continues to spread throughout Ontario and the world, following the advice of the Chief Medical Officer of Health, the government of Ontario has declared a state of emergency and has responded with various out of the ordinary orders and restrictions for all citizens.  This includes the closure of public gathering spaces, physical distancing requirements, travel restrictions and temporary closure orders. 

In declaring an emergency under the Emergency Management and Civil Protection Act, this allowed the government to exercise far-reaching powers to respond to this unprecedented medical emergency. 

On March 23, 2020, Ontario Premier Doug Ford ordered all non-essential workplaces to temporarily close in an effort to battle the spread of the threatening virus.  Essential businesses such as grocery stores, convenience stores, pharmacies, gas stations, liquor stores, licensed cannabis stores and restaurants providing take out or delivery were all allowed to remain open.  The list of non-essential workplaces to temporarily close was expanded effective April 4, 2020, including the closure of licensed cannabis stores.

Police and peace officers, including special constables and bylaw officers, have been granted the power to impose fines for violating an order issued under the Emergency Management and Civil Protection Act ranging from $750 to $100,000 to individuals and a term of imprisonment up to one year.  If the individual is a director or officer of a corporation, they could be subject to a fine up to $500,000 and a term of imprisonment up to one year.  The corporation itself could be fined up to $10,000,000.  These fines can be imposed for each day the offence was committed.  Furthermore, an individual or corporation can be fined an amount equal to the financial benefit that was acquired while the business continued to operate contrary to the issued order.

Premier Ford emphasized how serious this health crisis is by stating:

We are facing a critical moment in the fight against COVID-19 and we must do everything in our power to keep everyone safe and healthy and prevent our health care system from being overwhelmed.  Everyone must do their part to stop the spread and flatten the curve.  If you are not an essential business, you need to close your doors, work from home if possible and play a role to help contain the outbreak.  This is a matter of life and death.

DRUG DEALER FINED FOR OPERATING A NON-ESSENTIAL BUSINESS

On March 27, 2020, investigators observed a man driving a black Jeep Grand Cherokee and making several stops to conduct drug transactions in the area of Main Street West and Norfolk Street South in Hamilton. 

Police found cocaine divided in small plastic bags valued at $3,400 and almost $6,000 in cash.  In addition to criminal charges of possession of drugs for the purpose of trafficking and possession of proceeds of crime, the 29-year-old accused was also issued a provincial offence ticket for operating a non-essential business under the Emergency Management and Civil Protection Act.

This incident follows another case that also occurred in Hamilton. On March 19, 2020, Hamilton police attended Shisha Kaif Café, a hookah lounge, after complaints were made that business was operating as usual.  Police found that the lounge was operating in violation of the emergency shutdown order.  The owner was issued a summons to appear in court and was given a $750 fine.

STAY OFF ALL PLAYGROUNDS

Emergency measures in place throughout Ontario include the closure of all outdoor recreational facilities, including playgrounds, skate parks, off-leash parks, sports fields and tennis courts.  Most of these outdoor public areas have signs posted and caution tape around them, where possible, to keep individuals away from these closed off areas.

The Ontario government also took action to protect Ontarians by placing a limit on social gatherings to no more than five people, effective immediately.  This order does not apply to private households with five people or more, those operating child care centres for frontline health care workers and first responders, or funerals which may proceed with up to ten people. 

As of March 27, 2020, police officers and municipal bylaw officers can issue a ticket for non-compliance with an official order.  The fine for disobeying the rules start at $750 per occurrence, per person.  You can also be charged multiple days in a row.

In a statement by Matt Gaskell, Whitby chief administrative officer:

We are continuing to see residents who are ignoring the need for physical distancing and using our playgrounds, sports fields and outdoor amenities.  Our message to residents is clear:  these amenities are closed and anyone using them is not only putting their health at risk but the lives of others in our community.  Our bylaw officers are working closely with the Durham Regional Police Service to fine those who are not getting this important message.

Durham police have reported that they have received more than 200 complaints from citizens in relation to the Emergency Management and Civil Protection Act.  The complaints were originally regarding non-essential business that were not closed, but they are now receiving more complaints regarding social gathering, especially as the weather warms up.  Those that want to report someone or groups using outdoor recreation areas can contact the Durham Regional Police at www.drps.ca or call the DRPS Intelligence Branch Hotline at 1-888-579-1529, extension 5802.

As our government continues to respond to COVID-19, we will continue to provide updates on these developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Increase In DUI Charges Following Festive R.I.D.E. Campaign in Durham Region

Written on Behalf of Affleck & Barrison LLP

The presents have been unwrapped and the new year’s confetti has been swept away at the same time as Durham Police’s Festive R.I.D.E. campaign has come to an end for 2019.

Durham Police ran their annual seven week R.I.D.E. campaign (Reduce Impaired Driving Everywhere), which concluded on New Year’s Day 2020.  As a result of this campaign, a grand total of 104 motorists were charged with drinking and driving offences, which was an increase from those charged in 2018.

Prior to the commencement of the Festive R.I.D.E. campaign, Durham Police have charged 644 motorists with impaired driving offences in 2019.  This is a 19% increase in charges from 2018.

CHARGES ARISING OUT OF TRAFFIC STOPS IN 2019

This past year, Durham Police stopped more than 19,000 vehicles during the 2019 R.I.D.E. campaign.  During these traffic stops, 787 motorists were given roadside breath tests.  Of those given breath tests, 86 motorists had their driver’s license suspended for three days for registering in the “warn” range.  There were 104 motorists charged with drinking and driving offences. 

In comparison to the 2018 winter holiday season, less vehicles were stopped by Durham Police this year.  In 2018, 25,110 vehicles were stopped during Durham Police’s annual RIDE campaign and 117 motorists were charged with drinking and driving offences in Durham.  During that year’s R.I.D.E. campaign, 111 motorists had their driver’s license suspended for three days after registering in the “waning range” during their roadside test.

Although the number of motorists charged with impaired driving was lower this year than last year, the rate of impaired charges laid increased.  In 2019, one in every 188 motorists stopped by the police was charged with an offence of drinking and driving in comparison to one in every 214 motorists charged with an offence in 2018.

Durham Police also laid 379 charges for various Highway Traffic Act offences during their traffic stops.  Police also charged 4 motorists with drug offences and 7 motorists with offences related to the Cannabis Act.

ALLEGED IMPAIRED DRIVING ACCIDENTS THAT OCCURRED OVER THE HOLIDAYS

Festive R.I.D.E. campaigns ran throughout the Greater Toronto Area this past holiday season.  Despite these efforts, numerous motor vehicle accidents occurred during the holiday season as a result of suspected impaired drivers in the GTA.

On the evening of December 22, 2019, two international students were killed while walking on the sidewalk when a driver lost control of his vehicle, jumped the curb and plowed down the pedestrians in Scarborough.  A third pedestrian was also injured in the accident and was taken to hospital in serious condition.  Michael Johnson of Pickering was arrested at the scene of the collision and is facing nine charges, including two counts of impaired driving causing death and one count of impaired driving causing bodily harm. 

On the evening of December 26, 2019, a four-vehicle collision occurred on the Queen Elizabeth Way in Oakville.  Four individuals were transported to hospital with minor injuries.  One motorist was taken into custody on suspicion of drunk driving.

On December 27, 2019, a man was taken into custody on suspicion of impaired driving after he lost control of his vehicle, veered off the road and slammed into a TTC bus shelter that had people inside of it in the area of Sheppard Avenue and Progress Avenue in Scarborough.   There were no reported injuries as a result of this accident.

On New Year’s Eve, a 68-year-old man died at the scene of a car accident when a suspected impaired driver collided with his Toyota in the area of Elgin Mills Road and Ninth Line in York Region.  Stanley Choy of Whitchurch-Stouffville was charged with impaired driving causing death, operation with a blood alcohol concentration 80 plus causing death, and dangerous operation causing death.

TIPS TO AVOID IMPAIRED DRIVING CHARGES

Impaired driving is a crime under the Criminal Code of Canada and the consequences are very serious.  In Canada, the maximum legal blood alcohol concentration for fully licensed drivers is 80 milligrams of alcohol in 100 millilitres of blood (0.08).  In Ontario, motorists can face serious penalties if their blood alcohol concentration is found to fall between 0.05 and 0.08, considered the “warn” range.

The legal team at Affleck & Barrison LLP would like to provide the following tips to avoid the consequences of an impaired driving charge:

  • Always have a plan to return home safely, either a designated driver, public transit, calling a friend or loved one, a ride share or taxi, or plan to stay overnight and sleep it off;
  • Tell your family and friends about your plan to get home safely;
  • Do not over-indulge in alcohol or cannabis;
  • Be sure to drink plenty of water;
  • Ask your doctor or pharmacist whether there are any side effects related to driving when using prescription medication;
  • Parents should model safe driving behaviours by avoiding driving a vehicle while impaired; and
  • Be aware that fatigue and stress may affect your ability to operate a vehicle safely.

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

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.

High School Teacher to Stand Trial for Student’s Drowning in Algonquin Park

Written on Behalf of Affleck & Barrison LLP

Following a preliminary hearing, Nicholas Mills (“Mills”), a high school teacher, has been ordered to stand trial for the charge of criminal negligence causing the death of Jeremiah Perry (“Perry”), who was 15 years old at the time.

Perry was on a school trip to Algonquin Provincial Park with other students from C.W. Jefferys Collegiate Institute in July 2017.  He went for a swim and vanished underwater.  A police dive team found Perry’s body the next day.

Mills’ lawyer, Philip Campbell, spoke of his belief that a jury will acquit his client.  He stated:

I expect that they will see this case as a matter of tragedy rather than criminality.  We look forward to the day it’s over.

WHAT DO WE KNOW ABOUT THE ALGONQUIN PARK TRIP?

In July 2017, Perry was on a week-long outdoor education excursion as part of the summer-school curriculum to Algonquin Provincial Park with other students from C.W. Jefferys Collegiate Institute.

Mills had organized the field trip and was responsible for the supervision of the students, which was part of the Toronto District School Board’s (“TDSB”) REACH program.  Six adults accompanied the children on the trip.

Three days into the trip, Perry slipped under the water while swimming in Big Trout Lake and didn’t resurface.  The staff called the police. 

It has been disclosed that Perry did not pass a swim test before going on the trip.  According to TDSB, 15 of the 32 students on the trip had failed their swim tests.  Two of the students didn’t take the test at all.

TDSB has since introduced new rules for its field trips, which include mandatory second swim tests at the site of the trip.  The results of the swim test will be disclosed to the student, his/her parents and the school principle.  TDSB is also requiring that swim test results be reviewed by more people to verify the results.  Finally, life jackets will be required to be worn at all times with no exceptions.

Following Perry’s death, the Ontario Provincial Police conducted an extensive investigation.  More than 100 witnesses were interviewed by detectives. 

Mills’ lawyer wrote in an emailed statement on behalf of his client:

The death of Jeremiah Perry, on a canoe trip led by Nic Mills and in his presence, is an incalculable tragedy which will stay with countless people, Mr. Mills among them, for the rest of their lives.  It was, however, a tragedy, not a crime.  Mr. Mills has been charged with criminal negligence causing the death of Jeremiah.  He will defend himself against that charge.  We believe the evidence will establish that he did not commit any crime.

Details of the preliminary hearing are not available as they are covered under a publication ban.

WHAT IS A PRELIMINARY HEARING?

In Canada, a preliminary hearing is a proceeding that is used to determine whether there is sufficient evidence for an individual to stand trial.  A preliminary hearing is not mandatory and either the Crown or the accused may choose to proceed with one.

The legal test on a preliminary hearing is whether “a jury who is properly instructed and acting reasonably, could return a verdict of guilt on the evidence presented”.  This threshold is very low in comparison to a trial.  At trial, the guilt of an accused must be proven by the Crown prosecutor beyond a reasonable doubt.

A preliminary hearing is helpful to all parties as a tool to learn of the evidence available before trial.  It is especially beneficial for the accused as a screening function to evaluate the case against him/her. 

A hearing of this nature is similar to a trial.  The prosecutor has the obligation to present the most important evidence against the accused.  Witnesses must come to court and testify under oath.  Opposing counsel may cross-examine the witnesses and judges are required to make rulings on admissibility of evidence.

Unlike a trial, an accused rarely calls evidence at a preliminary hearing. 

Not everyone who is charged with a crime is entitled to a preliminary hearing.  Hearings of this nature are only applicable to serious cases that are to proceed by way of indictment.  Indictable offences can range from lesser charges such as solicitation of prostitution and marking harassing telephone calls to more serious charges including murder and aggravated assault. 

Although an accused may waive his/her right to a preliminary hearing, the Crown prosecutor has the right to conduct a hearing regardless of the accused’s waiver.

If the Court finds that there is not enough evidence to send the case to trial, charges against the accused will be dismissed.  If the Court finds there is enough evidence to proceed to trial and if the accused pleads not guilty, a trial date will be set.  In some cases, an accused may be “discharged” on some counts and committed to trial on others depending on the charges that the evidence presented at the hearing supports. 

We will continue to follow the criminal case against Mills as it makes its way to trial and will provide updates in this blog.

If you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947 to speak with our knowledgeable criminal defence lawyers.  We offer a free initial consultation for all prospective clients.

More Than 300 Charges Laid in Human Trafficking Investigation ‘Project Convalesce’

Written on Behalf of Affleck & Barrison LLP

Earlier this month, York Regional Police laid more than 300 charges and arrested 31 people as part of “Project Convalesce”, a multi-provincial human trafficking and organized crime investigation.  Approximately 100 of these charges were related directly to human trafficking.

WHAT IS PROJECT CONVALESCE?

In October 2018, two female victims of human trafficking from Quebec contacted police after attempting to escape a hotel in Vaughan.  York Regional Police began an investigation focused on suspected pimp, Jonathan Nyangwila (“Nyangwila”).  Investigators identified a number of suspects involved in various crimes of human trafficking, fraud, drug trafficking and weapons offences run by organized crime.

Nyangwila, a 28-year old from Markham, also known as Zoulou or Skulls, has been described as the “kingpin” at the top of a complicated and sophisticated criminal hierarchy.  Underneath Nyangwila were several “figureheads”, including three of his brothers.  A group of “underbosses” were positioned under the figureheads.  There were several also “strikers” positioned under the underbosses, whose responsibility it was to carry out high-risk frauds in banks and stores. 

It is alleged that the suspected criminal organization made fake identifications to purchase pre-paid credit cards that were then used to pay for expenses to run the human trafficking scheme such as hotel fees, travel and food.

Inspector Thai Truong stated:

Jonathan Nyangwila has been identified as the kingpin of the organization.  … All below him are individuals that have their own stable of girls.  But for the first time, we’re actually seeing girls being traded within, and girls being controlled by other individuals for the benefit of the organization.

Nyangwila is facing more than 30 charges relating to human trafficking, instructing the commission of an offence for a criminal organization, participating in the activities of a criminal organization, uttering threats, firearms possession, harassment and fraud.  He was arrested in July, yet continued to run his criminal operation from jail.

On October 10, 2019, following a full year of police investigation involving four police services from Ontario and one from Quebec, arrest and search warrants were executed in more than 30 locations across the Greater Toronto Area and in Quebec.

Investigating officers identified 12 victims and have information that there are 33 additional women involved in the sex trade and found to be associated with the suspects.  Most of the women involved were from Quebec and had been transported to Ontario and across Canada for the purpose of the sex trade.  The victims ranged in age from 20 to their mid-30s.  The women were found to perform sex acts seven days a week, earning approximately $1,000 a day, and passing on these monies to those that individuals that controlled them.

This investigation remains active and ongoing as police are hopefuly that the 33 additional women will come forward to seek assistance and support. 

York Region Deputy Chief Brian Bigras stated:

These victims endured violent assaults, sexual assaults and other degrading circumstances as they were controlled by these violent criminals.

WHAT IS HUMAN TRAFFICKING?

According to the United Nations Office on Drugs and Crime, approximately 225,000 victims of trafficking have been identified worldwide between 2003 and 2016.

Human trafficking is a crime that exploits and manipulates women, children and men for the purposes of forced labour or sexual services.  Women are often the target of this crime. 

Those trafficking in humans often recruit and groom their victims by becoming a close friend or boyfriend.  Once traffickers lure their victims, they then coerce them into sex work, using psychological manipulation, threats, addiction, violence and isolation.

Police report that marginalized youth, Indigenous youth and youth experiencing homelessness are most often targeted.  Youth who struggle with low self-esteem, bullying, poverty, abuse and family issues are also pursued.

Traffickers often recruit girls online, at malls, high schools, libraries, group homes, bus stops, and parties at hotels.

Victims of this type of crime feel alone, isolated and trapped and have no way to return home.  They become entirely dependent on the trafficker to survive.

THE CRIMINAL OFFENCE OF HUMAN TRAFFICKING

Human trafficking is an offence found in the Criminal Code of Canada (“CC”) and the Immigration and Refugee Protection Act.

The CC includes four indictable offences to address human trafficking, including:

  • Trafficking in persons (section 279.01);
  • Trafficking of a person under the age of eighteen years (section 279.011);
  • Receiving financial or material benefit knowing it results from the commission of an offence under sections 279.01 and 279.011 (section 279.02); and 
  • Withholding or destroying documents (section 279.03). 

There are many other offences contained in the CC that also apply to human trafficking cases including kidnapping, forcible confinement, uttering threats, extortion, assault, sexual assault, prostitution related offences and criminal organization offences.

If you have been charged with human trafficking or a related charge or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a 24-hour phone service for your convenience.  We are available when you need us most.