Criminal Law

Sextortion Crimes in Canada

Written on Behalf of Affleck & Barrison LLP

Sextortion in Canada is on the rise. The RCMP have been investigating 24 incidents of sextortion since May, 2018.

Sextortion is a form of exploitation that involves the threat of releasing shared intimate videos, images, or explicit messages online.

Experts have found a spike in reported online sextortion cases involving teenage boys. According to the Canadian Centre for Child Protection (a national charity dedicated to the personal safety and protection of children), 65 boys reported incidents to Cybertip.ca in 2015-2016, an 89% increase from the previous two-year period. Reports made by girls in 2015-2016 increased by 66% from the previous two-year period.

Boys, usually between the ages of 13 to 15, are targeted through a social media website by strangers who show a romantic interest. The perpetrator then sends a pre-recorded video of a young girl and solicits the teen boy to reciprocate by sending sexually explicit images or videos of themselves. When the perpetrator has the explicit material, the boy is led to believe that the images or video will not be shared with the public as long as cash is delivered.

RECENT ARREST FOR SEXTORTION

In Manitoba, a 22-year-old woman met a 25-year-old man on Tinder (no names have been disclosed due to privacy concerns). The two began chatting online, and then went on a couple of dates over a two week period of time. The man received “sensitive images” of the woman that were consensual.

The woman reported to police that there were occasions when the man would rip off her clothes and take pictures of her, without her consent.

The woman later found videos that the man took without her consent of occasions where he was “taking advantage of her in his truck”.

The woman refused to see the man again, at which point he began to threaten her. The man claimed that if she did not come over, he would send the videos and photographs to her work.

In a text message, the man wrote “It’s called f-ing leverage. It’s called blackmail. … If you are not here by 9:30 by yourself then all the videos go out. There is no if’s and or butts.”

The woman reported the blackmail to the police, and the RCMP proceeded to obtain a search warrant and attended at the man’s home on March 20, 2018. At that time, they proceeded to seize all electronics (laptop, Xbox one, and two iPhones), along with 15 other items.

The man has been charged with extortion, voyeurism, and indecent phone calls. He has also been charged with “sextortion”, a newly added crime in the Criminal Code (section 162.1), referencing someone who distributes an intimate image of someone without that person’s consent.

The man is awaiting his court date, but a protection order has been grant requiring the man to stay at least 100 metres away from the woman until 2020.

RCMP WARNINGS

RCMP are warning the public of various types of sextortion scenarios that they have been investigating.

One scenario occurs where a victim receives unsolicited friend requests on social media or a pornographic website and an online relationship develops. The relationship builds and the victim is encouraged and coerced to use his/her computer’s camera to perform a sexual act on camera. The victim later learns that this event was recorded and is threatened to make a payment or the video will be released.

Another scheme occurs when a victim receives an email advising that someone has infiltrated their computer and knows that they have been visiting a pornographic website. The hacker provides the victim’s password in the email and reveals that they have a sexually explicit recording of the victim. Then a demand for payment is made, usually in the form of Bitcoins.

In all of these scenarios, the victims are threatened with the release of intimate videos or images if a payment, in the form of a money transfer or Bitcoin, is not received.

TIPS TO PREVENT SEXTORTION

The following are some recommendations to protect yourself from becoming a victim of sextortion:

  1. Do not accept friend requests from unknown individuals on social media;
  2. Do not talk to people online who you do not know;
  3. Do not perform an illicit act over the internet;
  4. Disable your webcam or any other camera connected to the internet when you are not using it;
  5. Do not open attachments from individuals you do not know;
  6. Do not share explicit videos and/or photographs with anyone;
  7. Parents should review and approve all applications downloaded to their children’s electronic devices and regularly monitor the content of all applications and social media websites used by their children;
  8. Parents should discuss internet safety with their children and reinforce the need to tell an adult if anyone threatens them or asks for sexual acts or sexually explicit images;
  9. If you have been targeted, stop communicating with the individual, save all correspondence and immediately report the incident to the police.

We will continue to follow any developments that take place in the latest sextortion case in Manitoba as it makes it way through the courts and will report on them in this blog.

In the meantime, if you are facing sextortion charges or charges related to any other sexual offence, 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.

Lawyer Convicted of Murder Granted Bail Pending Appeal

Written on Behalf of Affleck & Barrison LLP

Demitry Papasotiriou-Lanteigne (“Papasotiriou”) and his lover, Michael Ivezic (“Ivezic”), were found guilty of first degree murder in the death of Allan Lanteigne (“Lanteigne”) last June following a lengthy trial. Both were sentenced to life imprisonment with no parole eligibility for 25 years.

It was alleged that the Papasotiriou and Ivezic were having an affair and conspired to kill Papasotiriou’s spouse in order to access the victim’s $2 million life insurance policy. We previously blogged about this case on June 7, 2018.

Papasotiriou is appealing his conviction and alleges that the jury’s verdict was unreasonable because it was based on circumstantial evidence. The Court of Appeal has recently granted Papasotiriou bail pending his appeal.

PAPASOTIRIOU’S BAIL HISTORY

Papasotiriou was born in Greece and came to Canada at the age of 11 after his parents split up. As a young man, he attended university and law school, and was called to the Ontario Bar. He is currently 38 years old.

Papasotiriou left Canada in 2010 to live in Greece. Ivezic followed Papasotiriou to Greece and lived with him for six months in 2010, prior to returning to Canada in January of 2011. Lanteigne was killed on March 3, 2011. Ivezic returned to Greece on May 14, 2011 to live with Papasotiriou.

Papasotirou returned to Canada on November 1, 2012 to participate in litigation regarding the proceeds of his deceased spouse’s insurance policy. He was arrested the next day.

Papasotirou applied for bail in August 2013, but was denied. He re-applied in November 2013 and provided an improved plan of release to the Court. He was again denied.

On September 11, 2014, Papasotirou was discharged following a preliminary inquiry. However, the Crown immediately launched a certiorari application (a formal request to a court challenging a legal decision alleging that the decision has been irregular or there has been an error of law) and a direct indictment was ordered on October 28, 2014, at which point Papasotirou was arrested.

Papasotirou again applied for bail, which was granted. He was released on a $400,000 recognizance with his mother, sister, and stepfather acting as sureties (person who promises to a judge to supervise an accused person while they are out on bail and pledges an amount of money). He remained out on bail for 3 ½ years with no compliance issues.

At the Court of Appeal, counsel for Papasotiriou proposed a plan for release pending his client’s appeal as follows:

  • $500,000 recognizance with his mother, stepfather, and stepfather’s mother as sureties;
  • strict house arrest with very narrow exceptions; and
  • GPS ankle bracelet to be monitored by Recovery Science Corporation (funded by Papasotiriou).

GROUNDS FOR GRANTING BAIL PENDING APPEAL

Pursuant to section 679(3) of the Criminal Code, a judge of the appeal court may order an appellant released pending appeal if he/she has established the following:

  • That the appeal is not frivolous;
  • That he/she will surrender into custody in accordance with the terms of any bail order; and
  • That the detention is not necessary “in the public interest”.

The “not frivolous” test is a very low bar, and in Papasotiriou’s case the Crown did not suggest to the Court that the appeal is frivolous.

The Crown did, however, argue that Papasotiriou has not discharged his onus to surrender into custody given his ties to Greece. The Court of Appeal, rejected the Crown’s argument on this ground, and held that Papasotirou’s compliance with his pre-trial bail order was “flawless” and the use of electronic monitoring will provide an “extra layer of assurance against absconding”.

The Court stated:

I accept that, standing alone, Mr. Papasotiriou’s connections to Greece may give pause for concern. However, any lingering concerns about flight are answered by his history of bail compliance and the strict release plan that is proposed. Accordingly, I am satisfied that the applicant will surrender into custody in accordance with his bail order.

The Court of Appeal outlined that there are two components which make up the third provision (public interest) to consider in granting bail pending an appeal. These include public safety and confidence in the administration of justice. The Supreme Court of Canada addressed the provision regarding the “public interest” in the case of R. v. Oland. The judicial discretion to grant bail pending appeal involves balancing enforceability (taking into account the gravity of the offence, the circumstances surrounding its commission, and the potential length of imprisonment) and reviewability interests (taking into account the strength of the grounds of the appeal).

The Crown conceded that Papasotiriou has proven that he will not commit offences if he is released on bail, thus discharging the onus of the public safety component. However, the Crown did take issue with maintaining public confidence in the administration of justice.

The Court of Appeal ruled in favour of Papasotiriou and held:

The “public interest” requires that I balance all of these factors – the circumstances of the applicant, the nature of the offence, the apparent strength of the appeal, and the time it will take to argue the appeal – to determine whether public confidence in the administration of justice would be undermined by Mr. Papasotiriou’s release on bail.

The Court of Appeal maintained that Papasotiriou was not being “turned loose”, but rather carefully monitored in accordance with a stringent release plan (i.e. house arrest, GPS electronic monitoring, and the pledge of $500,000 by his sureties), which is consistent with the proper functioning of the Canadian justice system. Therefore, the Court allowed Papasotiriou’s application and granted him bail pending his appeal.

We will continue to follow any developments in this case as it makes its way through the judicial system and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Crown Prosecutors Appealing Decision in Toronto Police Breach of Trust Case

Written on Behalf of Affleck & Barrison LLP

Kyle Upjohn (“Upjohn”), an officer with ten years of experience on the police force, was charged with the offence of breach of trust by a public officer contrary to section 122 of the Criminal Code and following a preliminary inquiry he was committed to stand trial. Upjohn successfully brought an application to the Ontario Superior Court of Justice seeking to quash the order committing him to stand trial.

A Crown prosecutor is appealing the decision to quash Upjohn’s criminal trial to Ontario’s highest court maintaining that the lower court Judge erred. Milan Rupic, Crown prosecutor, claims that Justice Maureen Forestall erred in failing to consider “the whole of the evidence” when considering Upjohn’s intent.

Rupic contends that Upjohn allegedly refused to help stop a young man commit suicide in High Park and should stand trial as the cop “knowingly avoided a duty of vital importance”.

WHAT HAPPENED?

On February 2, 2016, a concerned citizen reported to Upjohn, who was parked in his marked police vehicle in High Park, that a young man was preparing to hang himself in the park. Instead of coming to the aid of Alexandre Boucher (“Boucher”), Upjohn allegedly falsely claimed he was on another call and told the man to dial 911 and then drove away.

Subsequently, Upjohn was dispatched to attend to the park where Boucher, a 19-year-old, was later pronounced dead.

Initially, Upjohn was charged with criminal negligence causing death and failing to provide the necessities of life. These charges were withdrawn and Upjohn was charged with breach of trust by a public officer.

THE LOWER COURT DECISION

On application to the Superior Court of Justice, Upjohn’s lawyer argued that a breach of trust case required evidence that the accused had a dishonest or corrupt ulterior purpose for avoiding the call, and that there was no such evidence of this nature.  Justice Forestell agreed with this position and quashed Upjohn’s committal to stand trial.

THE ARGUMENTS ON APPEAL

The Crown prosecutor has filed an appeal at the Ontario Court of Appeal. The Crown argues that Justice Forestell erred in her decision to quash the trial by failing to consider the “whole of the evidence” in terms of Upjohn’s intent.

The Crown argues that the evidence supports the inference that Upjohn “knowingly avoided a duty of vital importance by means of a deceit”. Furthermore, the evidence demonstrates that in avoiding his public duty, Upjohn was untrustworthy and the breach of his duty was not for the public good.

The Crown stated:

This was not an innocent mistake. Upjohn masked his failure to act with dishonesty – by lying about being “on a call”. The lie suggests that Upjohn knew what he was doing wrong, that he was intentionally using his office for a purpose other than the public good.

The appeal in this case is scheduled to be heard in November, 2018.

WHAT IS BREACH OF TRUST?

A charge of breach of trust by a public officer is laid when an official is accused of violating the standard of conduct and responsibility demanded by his/her position.

Section 122 of the Criminal Code reads as follows:

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

The Supreme Court of Canada set out the elements of the offence of breach of trust by a public officer in R. v. Boulanger:

  1. The accused is an official;
  2. The accused was acting in connection with the duties of his office;
  3. The accused breached the standard of responsibility and conduct demanded of him by the nature of the office;
  4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
  5. The accused acted with the intention to use his public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

UPJOHN’S CURRENT STATUS

Currently, Upjohn remains suspended with pay from the Toronto Police Service since May 2016.

Upjohn is also accused of three counts of professional misconduct under Ontario’s Police Services Act, including neglect of duty and acting in a disorderly manner.

Under this Act, disciplinary hearings are conducted by police services.   A hearing officer must decide whether the allegations of misconduct have been proven on clear and convincing evidence. If an officer is found guilty of misconduct, appropriate penalties may be imposed, including:

  • a reprimand;
  • a direction to undergo specific counselling, treatment or training;
  • a direction to participate in a specified program or activity;
  • forfeiture of pay or time off;
  • suspension without pay;
  • demotion; or
  • dismissal.

We will report in this blog any developments in this case as they occur, including the decision on appeal.

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

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.