Criminal Law

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.

Couple Found Not Guilty in Death of Son

Written on Behalf of Affleck & Barrison LLP

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

WHAT HAPPENED?

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

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

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

HISTORY OF THE CRIMINAL PROCEEDINGS

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

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

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

WHAT HAPPENED AT THE STEPHANS’ SECOND TRIAL?

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

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

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

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

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

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

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

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

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

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

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

In the meantime, if you are facing criminal charges or have questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a 24-hour phone service for your convenience.  We are available when you need us most.

Appeal Court Convicts Violin Teacher Who Measured Girls’ Breasts

Written on Behalf of Affleck & Barrison LLP

In an unusual decision, the Ontario Court of Appeal has convicted Claude Trachy (“Trachy”), a retired violin teacher, on numerous sexual and indecent assault charges for touching his young female students’ breasts and nipples during class. 

THE CHARGES LAID AGAINST TRACHY

Trachy was charged with the following four types of sexual offences:

  1. Sexual interference:  This offence is committed when a person indirectly or directly touches any part of the body of a person under the age of 16 for a sexual purpose. 
  2. Sexual exploitation:  This offence occurs when a person in a position of authority or trust towards a young person touches any part of the body of the young person for a sexual purpose or invites or incites a young person to touch anyone for a sexual purpose.
  3. Indecent assault:  This offence is an assault committed of an indecent nature such that the victim is violated and was superseded by the offence of sexual assault in 1983.
  4. Sexual assault:  This offence includes any unwanted sexual activity such that the sexual integrity of the victim is violated and does not require proof of sexual purpose or sexual gratification.  The Crown prosecutor must prove beyond a reasonable doubt that the accused intentionally touched the complainant without consent in circumstances of a sexual nature. 

WHAT HAPPENED AT THE TRIAL?

The trial court found Trachy not guilty of 51 charges of sexual interference, sexual exploitation, sexual assault and indecent assault. 

The court heard from 21 former female violin students of Trachy in Chatham, Ontario.  The incidents took place between 1971 and 1993, at which time the victims were young girls.

The alleged charges resulted from Trachy measuring his female students’ bodies in order to fit them for shoulder rests. 

During the trial, Trachy admitted that he asked his female students to undo their blouse on the left side and remove their bra.  He would use a ruler to measure from the top of the collarbone to the nipple, from the jaw to the collarbone and the underside of the breast.  There were also times that he would ask his students to play the violin undressed to confirm that the shoulder rest was properly fitted. 

Trachy denied having any “sexual intent” in measuring or receiving any sexual gratification.  Trachy admitted that he did not measure his male students and only measured his female students.  He also admitted at trial that he did not measure his daughter, although he taught her as well.

At trial, Justice Thomas Carey accepted all of the female complainants’ testimony, however, believed that Trachy measured his female students’ breast area not for a “sexual purpose”, but to improve their playing ability by properly fitting them for shoulder rests on their instruments. 

WHAT HAPPENED AT THE APPEAL?

Justice Mary Lou Benotto, writing on behalf of the unanimous three-judge panel of the appeal court, found that the trial judge made an error of law and that the evidence established that the charges of sexual assault and indecent assault were proven beyond a reasonable doubt.  The trial judge erred by mistaking the issue of touching for a “sexual purpose” with the issue of touching in the circumstances of a “sexual nature”. 

Justice Benotto wrote:

A reasonable observer viewing the respondent’s admitted conduct in touching and manipulating the breasts and nipples of young girls and young women both over and under their clothes would perceive a sexual context to the conduct.  These were largely girls who were in the process of developing breasts, and who were alone with the respondent in a private room with the door closed.  Their sexual integrity was violated, regardless of the respondent’s purpose. 

The appeal court convicted Trachy on 28 charges in the case of 20 out of 21 student victims.  The appeal court stayed the proceedings for one student, who was 23 at the time of her lessons.  It was the appeal court judges’ opinion that given her age, in this case, additional legal questions would arise with respect to consent. 

The appeal court upheld Trachy’s acquittals on all charges of sexual exploitation and sexual interference.

Given that the appeal decision was made on a question of law, Trachy has an automatic right to appeal to the Supreme Court of Canada.  We will report on any updates regarding this case in this blog when they become available.

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.

Conviction Changed from First to Second-Degree for Man Who Planned to Kill his Ex

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has ruled that a Toronto man who planned to kill his estranged wife, but killed her uncle instead, should not be convicted of first-degree murder as the uncle was not the intended target.

At his trial, Willy Ching (“Ching”) was convicted by a jury of first-degree murder. The appeal court dismissed his conviction and substituted a conviction for second-degree murder. 

WHAT HAPPENED?

Ching has a history of mental illness and attempted suicide.  He had been on medication for depression, which was changed in October, 2009.  He was also prescribed sleeping pills and had attempted to overdose on them and had to be hospitalized for three days.

The marriage of Ching and Maria Ching dissolved on September 2, 2009 at which time Ms. Ching moved out of her home and went to live with her uncle Ernesto Agsaulio (“Agsaulio”).  Ching was unhappy with the end of his marriage and repeatedly tried to be in contact with Ms. Ching.

On October 25, 2009, Ching rented a car and drove to Agsaulio’s home to see Ms. Ching.  Ching’s daughters became aware that he was going to see Ms. Ching and called her to warn her.  She proceeded to call Ching and told him to go home.  He asked her to come outside so they could talk, and she refused.  She then advised Agsaulio that Ching was coming over. 

Ching rang the doorbell and Agsaulio opened the door, but refused to allow him to see Ms. Ching.  The two men spoke for a few minutes, then Ching pulled out a knife and hatchet that he had brought with him and began slashing at Agsaulio.  Agsaulio, his son and some neighbours managed to subdue Ching.

The police arrived and arrested Ching.  He gave a statement and stated that he only wanted to talk to his wife, he did not try to kill anyone, and repeatedly stated that the judge should give him the death sentence.

Later, the police informed Ching that Agsaulio had died and he would be charged with first-degree murder.  Ching went to use the washroom, began running toward the stairwell and attempted to fling himself headfirst over the railing.  A police officer grabbed his waistband and pulled him back.

Ching gave a second statement to the police the next day stating that he brought the weapons with him not to hurt anyone, only to threaten to hurt himself so that his wife would come back to him. 

THE APPEAL

Ching appealed his conviction to the Ontario Court of Appeal arguing that several errors were made in the trial judge’s instructions to the jury. 

The trial judge instructed the jury that if it concluded that Ching had planned and deliberated the murder of his estranged wife, this could change the murder of Agsaulio from second to first-degree murder as it was committed in the course of carrying out his plan to murder Ms. Ching.

A murder is considered first-degree murder when it is planned and deliberate.  The issue, in this case, is whether Ching could be found guilty of first-degree murder when the jury found that he had planned to kill his wife, but ended up taking the life of another person.

The Court of Appeal concluded that the trial judge’s instruction to the jury regarding the charge of first-degree murder was incorrect.  The appeal court wrote:

A finding that the appellant had planned and deliberated the murder of Ms. Ching and that Mr. Agsaulio’s murder was committed while carrying out that plan does not satisfy the statutory requirement for the first-degree murder. ..

There is a sound policy reason for concluding that an accused who intentionally kills person B when in the course of carrying out the planned and deliberate murder of person A will be guilty of second-degree murder, whereas an accused who accidentally or mistakenly kills person B when person A was the target will be convicted of first-degree murder. … This result reflects the fact that in the first case the actual killing may well have been impulsive while in the second, it was the result of a planned and deliberate act.

The appeal court rejected Ching’s arguments that the trial judge erred in his instructions to the jury regarding Ching’s attempt to jump over a staircase upon hearing about Agsaulio’s death, and instructions regarding conflicting statements made by Ching in his testimony and police interviews.

The appeal court dismissed Ching’s conviction for first-degree murder and substituted a conviction for second-degree murder. 

The offence of second-degree murder carries an automatic life sentence, with no chance of parole for 10 to 25 years.

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.