Criminal Law

Court of Appeal Ordered Two Jail Guards to Stand Trial for their Role in Inmate’s Death

Written on Behalf of Affleck & Barrison LLP

On March 5, 2014, corrections officers, Leslie Lonsbary (“Lonsbary”) and Stephen Jurkus (“Jurkus”), were charged with failing to provide the necessaries of life following the death of inmate, Adam Kargus (“Kargus”).

Kargus was beaten by his cellmate at the Elgin Middlesex Detention Centre (“EMDC”) and was found dead in a jailhouse shower stall on November 1, 2013.  Anthony George pleaded guilty to second-degree murder and was sentenced to life in prison (with no possibility of parole for 10 years) last year for beating Kargus to death.

The Ontario Court of Appeal has recently reversed an earlier decision made by Justice A.K. Mitchell of the Ontario Superior Court of Justice.   At that time, charges against the two guards were dismissed as a result of too much time having passed since they were charged.

LOWER COURT DECISION

At the time of Kargus’ beating and subsequent death, Lonsbary and Jurkus were both employed by the Ministry of Correctional Services at EMDC and on duty.

Following a four month investigation by police, the two men were arrested and charged with failing to provide the necessaries of life to Kargus thereby endangering his life contrary to section 215(1)(c) of the Criminal Code of Canada.

In February, 2017, Lonsbary and Jurkus brought an application before the Ontario Superior Court of Justice arguing that their constitutional rights had been infringed due to the delay in bringing their case to trial.

A three week jury trial was scheduled to commence on May 8, 2017. The guards submitted that the delay from arrest to the expected completion date of trial would be 1,178 days or 39.3 months. They attributed the delay to the Crown prosecutor and the court.

Applying the formula for delay as set out by the Supreme Court of Canada (“SCC”) in the R. v. Jordan (“Jordan”) decision, the lower Court found that the accuseds’ right to be tried within a reasonable period of time was breached. The Court stayed the charges against Lonsbary and Jurkus as the case against them had surpassed the 30-month time limit for trials as set out in the Jordan decision.

WHY IS THE JORDAN DECISION RELEVANT TO THIS CASE?

We have previously blogged about access to justice issues and, more specifically, the commonly criticized length of time it takes for a case to get to trial. The SCC in 2016 set strict time limits for the completion of criminal cases, where there are no exceptional circumstances.

The SCC released its decision in R. v. Jordan on July 8, 2016. In this case, the accused had faced several delays while awaiting his preliminary inquiry and trial. Jordan was eventually convicted of five drug-related offences after 49.5 months. At the beginning of his trial, Jordan brought an application requesting a stay of proceedings due to his constitutional rights being infringed by an unreasonable delay. His application was dismissed. Jordan’s appeal to the Supreme Court of British Columbia was also dismissed.

Jordan proceeded to appeal to the SCC. His appeal was granted, his convictions were set aside and the proceedings were stayed. In this decision, the SCC clearly set out a formula to calculate the amount of time between the initial charge and the actual or anticipated end of trial. The SCC set a ceiling for unreasonable delays at 18 months for cases tried in provincial courts and 30 months for cases to be tried in provincial and superior courts after a preliminary inquiry, except under exceptional circumstances that were reasonably unforeseen or unavoidable.

ONTARIO COURT OF APPEAL

Crown prosecutors appealed the lower court decision to stay proceedings against Lonsbary and Jurkus to the Ontario Court of Appeal (“ONCA”). The Crown argued that the lower court Judge made errors in applying the time frame rules.

According to Justice Fairburn, writing on behalf of the ONCA, delays that were caused by the defence or by “exceptional circumstances” (which can include specific incidents or the general complexity of the case) do not count toward the 30-month ceiling for criminal proceedings.

In conclusion, the ONCA found that there was “no unreasonable delay” and ordered Lonsbary and Jurkus to stand trial.

The two jail guards have the right to appeal the Ontario Court of Appeal ruling. We will continue to follow this case and report on any developments as they take place in this blog.

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

Supreme Court Upholds First Degree Murder Convictions for Death of 6-Year-Old

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada (“SCC”) has upheld the first-degree murder convictions of Spencer Jordan (“Jordan”) and Marie Magoon (“Magoon”), who were charged in the death of six-year-old Meika Jordan (“Meika”).

Defence lawyers requested that the SCC reverse a decision by the Alberta Court of Appeal, which upgraded Jordan and Magoon’s second-degree murder convictions after ruling that Meika had been confined prior to her death (a condition that automatically increases the severity of a murder offence).

Under the original second-degree murder convictions, Jordan and Magoon had been sentenced to life in prison without parole for a minimum of 17 years. The upgraded first-degree murder convictions carry an automatic life sentence with no chance of parole for 25 years.

WHAT HAPPENED?

On November 14, 2011, Meika died after spending the weekend at the home of her father, Jordan, and stepmother, Magoon. The six-year-old was tortured for days leading up to her death by being forced to run stairs, dragged up and down the stairs by her ankles, repeatedly hit and even burned. She suffered damage to her internal organs and a subdural hematoma and cerebral swelling caused by at least five blows to her head. No medical attention was sought until Meika was in complete cardiac and respiratory failure. Jordan and Magoon told police that Meika had fallen down the stairs, however, the medical evidence supported a pattern of frequent and intentional violence.

Jordan and Magoon were charged with first degree murder and convicted of second degree murder at trial in 2015. They appealed their convictions and the Crown prosecutors appealed the first degree murder acquittals. The Alberta Court of Appeal dismissed the accuseds’ appeals, but allowed the Crown appeals. The Appeal Court held that the accused unlawfully confined Meika rendering them liable for first degree murder under section 231(5) of the Criminal Code of Canada (“CC”).

The SCC refused to hear an appeal to have the convictions entirely quashed, but did hear arguments on the Alberta Court of Appeal’s decision to upgrade the charge from second-degree murder to first-degree murder.

The nine SCC justices took less than 10 minutes to come to the decision to dismiss all appeals in November, 2017. The SCC found that the Court of Appeal did not err in substituting verdicts of guilty of murder in the first degree. The written reasons for the ruling were released on April 13, 2018.

MURDER IN THE FIRST DEGREE

The crime of murder is deemed as the most vicious of crimes in Canadian society. This is reflected in the harshness of the sanctions and punishments for this crime.

In Canada, there are two divisions of murder and one of manslaughter. First degree murder is planned and deliberate (with a few exceptions), whereas second degree murder is defined as murder that is not first degree (not premeditated). Manslaughter is defined as a homicide committed without the intention to cause death.

First degree murder bears an automatic life sentence with no possibility of parole for 25 years. Once on parole, offenders remain on parole for the rest of their life and must report to a parole officer and are subject to conditions of their parole. If any of the conditions of parole are broken, they are sent directly back to prison without a hearing.

WHAT IS FIRST DEGREE MURDER UNDER SECTION 231(5) OF THE CRIMINAL CODE?

There are some homicides automatically deemed first degree murder, even if they were not intentional or planned. These include assassination of a police officer or prison employee on duty (section 231(4) of the CC) or murder committed in conjunction with one of the following offences (section 231 (5) of the CC):

  • hijacking;
  • sexual assault;
  • sexual assault with a weapon;
  • aggravated sexual assault;
  • kidnapping;
  • forcible confinement;
  • hostage taking;
  • terrorism;
  • intimidation;
  • criminal harassment; or
  • any offence committed on behalf of a criminal organization.

The section of the CC that was applied in Meika’s case was section 231(5)(e), which reads as follows:

(5)       Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

            (e) section 279 (kidnapping and forcible confinement);

The case of R. v. Pritchard explained Parliament’s intention to “treat murders committed in connection with crimes of domination as particularly blameworthy and deserving of more severe punishment”.

The applicable test to be applied in determining guilt of first degree murder under section 231(5)(e) of the CC was set out in R. v. Harbottle. The Crown must establish beyond a reasonable doubt that:

  1. the accused was guilty of the underlying crime of domination or of attempting to commit that crime;
  2. the accused was guilty of the murder of the victim;
  3. the accused participated in the murder in such a manner that he/she was a substantial cause of the death of the victim;
  4. there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and
  5. the crimes of domination and murder were part of the same transaction.

In Meika’s case, the SCC found that although there were no physical restraints used, Meika was physically restrained and restricted to remain in her bedroom or the basement. Furthermore, given the parent child relationship there is less of a requirement for physical restraints due to the unequal relationship that exists. “[D]isciplining a child by restricting his or her ability to move about freely (by physical or psychological means), contrary to the child’s wishes, which exceeds the outer bounds of punishment that a parent or guardian could lawfully administer, constitutes unlawful confinement.” Therefore, the SCC found that the Harbottle test was met.

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

Major Changes Proposed to Unclog Canada’s Criminal Courts

Written on Behalf of Affleck & Barrison LLP

Last week, the Liberal government proposed a new bill, Bill C-75, to modernize Canada’s criminal justice system and speed up court proceedings by amending the Criminal Code, Youth Criminal Justice Act and other laws. The changes include eliminating preliminary inquiries (except in cases of crimes that carry a life sentence), ending peremptory challenges in jury selection, addressing intimate partner violence, creating a higher threshold for bail and increasing sentences for repeat offenders.

Federal Justice Minister Jody Wilson-Raybould said the new bill aims “to make our criminal justice system more effective and efficient while respecting the Canadian Charter of Rights and Freedoms. More importantly, it will make a significant contribution to a necessary culture shift in the way our criminal justice system operates.”

Here are some of the highlights from Bill C-75:

PRELIMINARY INQUIRIES

One of the most controversial features of Bill C-75 is the proposal to eliminate preliminary inquiries in the majority of criminal proceedings.

A preliminary inquiry is an optional hearing requested by either the accused or the Crown prosecutor. It is available where an adult is charged with an indictable offence and elects to be tried by the Superior Court. Preliminary inquiries determine if there is enough evidence to send the accused to trial. It is a process by which the Crown and the accused test the evidence to be used at trial.

Under the proposed legislation, only an adult accused of a crime punishable by life imprisonment would be able to request a preliminary inquiry. The preliminary inquiry judge would also be able to limit the issues to be considered and the witnesses.

The government justifies this proposal claiming that it will reduce the number of preliminary inquiries, thus freeing up court time and reducing the burden on some witnesses and victims. Specifically, this would protect sexual assault victims from having to testify twice – once at the preliminary inquiry stage and once at the trial.

This proposal will eliminate the number of preliminary inquiries by 87%. There are currently more than 9,000 preliminary inquiries held each year.

Many criminal defence lawyers oppose this proposal. They take the position that the preliminary inquiry process can eliminate cases that do not have enough evidence to proceed to trial. Furthermore, preliminary inquiries can save a lot of time down the road by narrowing issues, shortening trials and sometimes even eliminating the need for trials.

INTIMATE PARTNER VIOLENCE

Under the proposed legislation, the more inclusive “intimate partner” wording would replace “spouse” and “common-law partner” and the definition would be broadened to include past partners.

Bill C-75 also introduces a reverse onus imposed at the bail hearing of an accused charged with an offence involving intimate partner violence and repeat abusers (rather than placing the onus on the Crown to make a case for keeping the accused incarcerated).

The new legislation would make strangulation an elevated form of assault (in conjunction with assault with a weapon and assault causing bodily harm) and allows a higher maximum penalty in cases involving repeat domestic abusers.

BAIL

Bill C-75 proposes to update and modernize bail practices by allowing police and judges more flexibility to deal with criminal charges.   Police would be given the authority to impose appropriate conditions on accused individuals without having to seek court approval.

JURY SELECTION

The impetus to rework the jury selection process in Bill C-75 comes in response to the public’s reaction to the acquittal of Gerald Stanley, which we have previously blogged about. In this case, an all-white jury found Gerald Stanley not guilty in the shooting death of Colten Boushie, a young Indigenous man.

The government proposes to improve the jury selection process and seeks to encourage diversity by abolishing peremptory challenges. Peremptory challenges allow defence counsel or Crown prosecutors to exclude a potential juror without giving a reason. The government maintains that ending peremptory challenges will prevent counsel from excluding minority candidates from juries. The proposed legislation will allow judges to decide whether to exclude jurors that have been challenged by either the prosecution or defence.

Bill C-75 still needs to be debated and approved before becoming law.  We will continue to provide updates regarding the status of this Bill as it becomes available.

In the meantime, if you have questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7.

Two Ontario Cases Fall Apart As a Result of Police Failure to Immediately Inform of Right to Counsel

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Justice has recently excluded significant evidence in two criminal cases involving impaired driving after ruling that police had violated the accuseds’ Charter rights by failing to immediately inform them of their right to counsel.

In the first case, Justice Craig Parry excluded breath samples from the driver’s trial due to a Charter breach, which resulted in a charge of driving with a blood-alcohol content above the legal limit to be dismissed.

In another case earlier this month, a man was found not guilty of having care or control of a vehicle while impaired by a drug when Justice Scott Latimer threw out the evidence after ruling that police had violated his Charter rights.

RIGHT TO COUNSEL

The right to counsel is a fundamental right included in the Canadian Charter of Rights and Freedoms (“Charter”).

10.  Everyone has the right on arrest or detention:

b.  to retain and instruct counsel without delay and to be informed of that right;

Under the Charter, the detainee must be informed of the right to retain and instruct counsel “without delay”, which has been interpreted to mean “immediately”. The Supreme Court of Canada has made it clear in the case of R. v. Suberu that avoiding delay helps to protect against the risk of self-incrimination and interference with an individual’s liberty. This obligation also requires police to abstain from obtaining incriminatory evidence from the detainee until he/she has had a reasonable chance to contact a lawyer, or the detainee has unequivocally waived the right to do so.

The police have both an informational duty and an implementational duty upon arrest or detention. The police must both inform the accused of the right to retain counsel and must provide the detainee with a reasonable opportunity to retain and instruct counsel. Justice Abella, speaking for the Supreme Court of Canada in the case of R. v. Taylor, stated:

The duty to inform a detained person of his or her right to counsel arises ”immediately” upon arrest or detention (Suberu, at paras 41-42) and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to counsel at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances.

WHAT HAPPENED IN THE CASE OF COLIN MITCHELL?

On October 9, 2016, a report was received by police of a possible impaired driver exiting Highway 401 at Highway 8. Constable Karen Marquis received the dispatch and pulled over the vehicle that Colin Mitchell (“Mitchell”) was driving. Mitchell failed a breathalyzer test and was then arrested. The officer waited 11 minutes after the arrest to read Mitchell his rights to counsel. In the back of the police cruiser Mitchell told the officer that he wanted to call a lawyer. He was not allowed to make the call until he arrived at the police station. Mitchell was finally given the chance to make a phone call to duty counsel 51 minutes after being placed under arrest.

On February 22, 2018, Justice Parry found that the officer breached her obligation to inform Mitchell of his right to counsel without delay and breached her implementational duty to facilitate access to counsel at the first reasonable opportunity. Justice Parry concluded that the evidence gathered in this case (the breath samples) was evidence that was attained in a manner that infringed the accused’s right to counsel. Justice Parry stated,

Exclusion of the evidence is the only remedy that can, in these circumstances, prevent bringing the administration of justice into further disrepute. To do otherwise would be to condone a perpetual indifference to the knowledge of the basic obligations created by one of the most important Charter rights.

Justice Parry, therefore, excluded the results of the breathalyzer test due to the delay in informing Mitchell of his right to counsel. The charge of driving with more than the legal limit of alcohol in his blood was dismissed.

WHAT HAPPENED IN THE CASE OF ANDREW DAVIS?

On July 17, 2016, a civilian reported a case of bad driving to the Waterloo Regional Police. Constable Tyler Shipp located the vehicle in question in a parking lot in Waterloo and Andrew Davis (“Davis”) was found in the driver’s seat. The officer spoke to Davis through an open window. Davis had sunglasses on, no shirt and was slightly dishevelled. Davis’ speech was described by the officer as garbled. The officer directed Davis to remove his sunglasses and observed Davis’ eyes to be “swollen, half open, very drowsy”.  Another officer, Constable McKenna, arrived on scene to administer a Standard Field Sobriety Test.

Following the sobriety test, Davis was arrested, handcuffed and placed in the back of the police cruiser. Drug paraphernalia, prescription drugs and what the officer thought was a meth pipe were located inside Davis’ vehicle. Eight minutes after his arrest, Davis was read his rights to counsel by police. These rights should have been read immediately following his arrest.

On March 6, 2018, Justice Latimer held that a violation of section 10(b) of the Charter occurred as a result of the police failure to provide Davis with his rights to counsel without delay upon arrest. Due to the Charter violation, Justice Latimer excluded important evidence, including all of the items seized from Davis’ vehicle and his post-arrest statement made to the police. Justice Latimer concluded that the Crown had failed to prove that Davis was impaired by a drug at the time of his care or control of his motor vehicle.

If you have been charged with impaired driving or any other driving offence, contact one of the experienced Oshawa criminal lawyers at Affleck & Barrison LLP for a free consultation. We have a 24-hour phone service for your convenience. Contact our office online or at 905-404-1947.

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

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

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

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

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

WHAT DOES “NOT CRIMINALLY RESPONSIBLE” MEAN?

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

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

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

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

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

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

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

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

 

 

 

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

Written on Behalf of Affleck & Barrison LLP

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

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

THE PROSECUTION & DEFENCE POSITIONS

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

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

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

BILL C-36, THE PROTECTION OF COMMUNITIES AND EXPLOITED PERSONS ACT

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

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

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

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

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

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

In the meantime, if you have been charged with a sexual offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. For your convenience, we offer 24-hour phone services. We are available when you need us most.

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

Written on Behalf of Affleck & Barrison LLP

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

WHAT HAPPENED?

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

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

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

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

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

THE TRIAL AND APPEAL

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

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

DISSENTING OPINION ON APPEAL

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

SENTENCING

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

WHAT COMES NEXT?

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

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

NECESSARIES OF LIFE

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

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

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

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

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

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

 

Is Your Home Safe this Holiday Season?

Written on Behalf of Affleck & Barrison LLP

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

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

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

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

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

WHAT IS THEFT?

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

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

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

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

WHAT IS BREAKING AND ENTERING?

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

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

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

WHAT IS ROBBERY?

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

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

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

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

Ontario Will No Longer Prosecute HIV Non-Disclosure Cases

Written on Behalf of Affleck & Barrison LLP

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

ONTARIO GOVERNMENT’S ANNOUNCEMENT

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

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

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

HIV TRANSMISSION RISKS

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

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

CRIMINAL JUSTICE SYSTEM RESPONSES TO HIV NON-DISCLOSURE CASES

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

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

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

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

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

 

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

WHAT HAPPENED?

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

Fekre told the Court,

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

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

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

THE OFFENCE: DANGEROUS OPERATION OF A MOTOR VEHICLE CAUSING DEATH

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

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

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

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

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

DECISION BY THE TRIAL JUDGE

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

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

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

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

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

CHANGES IN THE FUTURE

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

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

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