Criminal Law

Supreme Court Rules a Crucial Element of Child Luring Law is Unconstitutional

Written on Behalf of Affleck & Barrison LLP

Last month the highest court in Canada ruled that a provision in the law forbidding the luring of children over the internet is unconstitutional and ordered a new trial for alleged offender Douglas Morrison (“Morrison”).  This decision may result in a number of child luring convictions being overturned across Canada.

In this landmark decision regarding the validity of child luring laws in Canada, the Supreme Court of Canada struck down two parts of the child luring laws found under section 172.1 of the Criminal Code.  The decision in R. v. Morrison will affect those cases where police officers pretend to be minors in an effort to apprehend suspected online predators.

WHAT IS THE CHILD LURING LAW IN CANADA?

The offence of child luring in Canada can be found in section 172.1 of the Criminal Code.  Child luring is defined as using the internet to communicate with an individual who is, or who the perpetrator believes to be, under the age of 18 for the purposes of committing the offence of sexual exploitation, incest, child pornography or sexual assault. 

You may also be charged with child luring if you communicate with an individual you know, or believe to be, under the age of 16 for the purposes of committing the offence of sexual exploitation, invitation to sexual touching, indecent exposure to a person under the age of 16 or abduction of a person under 16 years old.

If the Crown chooses to proceed by indictment (more serious offences) and you are found guilty of child luring, you will face a minimum of one year in prison, up to a maximum of 14 years in prison.  If the Crown chooses to proceed summarily (less serious offences), you will face a minimum of 6 months in jail, up to a maximum of 2 years less a day.

WHAT HAPPENED IN R. v. MORRISON?

Morrison was charged with child luring under section 172.1 of the Criminal Code.  He posted an online ad on Craigslist pursuing sexual conversations and stating he was interested in younger girls.  His ad was entitled “Daddy looking for his little girl”. 

Over the course of two months, police posed as a 14 year old girl named “Mia”.  Morrison began a sexual discussion with Mia, requested that she touch herself sexually, suggested she watch pornography, asked her for photographs, and arranged to pick Mia up after school (the encounter never occurred).  Consequently, Morrison was charged with child luring. 

During his trial, Morrison argued that he believed he was speaking to an adult online who was role playing as a character of a 14 year old girl.  He maintained that the rules on Craigslist require that users are to be 18 years old or older.  He was convicted at trial and the conviction was upheld by the Ontario Court of Appeal.

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

On appeal to the Supreme Court of Canada, Morrison brought three Charter of Rights and Freedoms (“Charter”) challenges pertaining to section 172.1 of the Criminal Code. The Charter arguments before the court were the following:

  • Section 172.1(3) violated his right to be presumed innocent under section 11(d) of the Charter;
  • Section 172.1(4) contains presumptions (requiring a person to take reasonable steps to ascertain the age of the individual they are contacting and to ensure he/she is not underage) that were not in accordance with the principles of fundamental justice and violated section 7 of the Charter, which protects the right to life, liberty and security of a person; and
  • Section 172.1(2)(b) contains a mandatory minimum sentence of one year in prison which violated the guarantee against cruel and unusual punishment found in section 12 of the Charter.

The Supreme Court of Canada overturned Morrison’s conviction citing errors made by the trial judge.  The Court ruled unanimously that the government’s wording of the child luring law violates the presumption of innocence guaranteed by the Charter.  It is the role of the Crown to prove beyond a reasonable doubt that an accused genuinely believed he/she was communicating with an individual who was underage.

Justice Michael Moldaver, writing for the majority of the Court, stated:

In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage.  Nothing less will suffice.

The accused, in his/her defence, may prove that he/she took “reasonable” steps to determine if the alleged victim was underage.  If this cannot be shown, then the accused cannot argue that he/she believed the alleged victim was of legal age.

The Supreme Court was also asked to consider the appeal by the Crown that Morrison was not given the mandatory one-year minimum sentence.  The trial judge gave Morrison a four month sentence, and ruled that the one year mandatory minimum sentence found in the Criminal Code was unconstitutional as it violated the guarantees found in the Charter against cruel and unusual punishment. However, the majority of the justices did not rule on this issue.

Given the potential ramifications resulting from the Supreme Court of Canada’s decision in R. v. Morrison, we will continue to follow any developments in the news and the case law and will report any updates that become available in this blog.

In the meantime, if you are facing child luring charges or have any questions regarding your legal rights, please contact the knowledgeable criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service.  We are available when you need us most.

Strip Searches in Ontario are Occurring Too Often

Written on Behalf of Affleck & Barrison LLP

A new report released by the Office of the Independent Police Review Director (an independent civilian oversight agency responsible for overseeing all complaints regarding the police in Ontario) concludes that police officers in Ontario are conducting unnecessary, and sometimes unlawful, strip searches which interfere with privacy rights and negatively impact criminal court cases.

Gerry McNeilly, the Independent Police Review Director since June 2008, authored the report entitled “Breaking The Golden Rule:  A Review of Police Strip Searches in Ontario” (the “report”).

WHAT IS A STRIP SEARCH?

In 2001, the Supreme Court of Canada, in the case of R. v. Golden (“Golden”), defined the elements of a strip search and explained how strip searches are to be lawfully conducted.  A strip search is defined as the removal or rearrangement of some or all of someone’s clothing to allow for an officer to visually inspect their genitals, buttocks, breasts or undergarments.   

The majority of the Supreme Court of Canada emphasized the importance of preventing unjustified strip searches and recognized that these searches are “inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy”.

The Court went on to explain that strip searches are only constitutionally valid when they are “conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest.  In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest”.

However, despite this decision, it has been found that courts in Ontario repeatedly find that strip searches conducted by police officers are unlawful or unreasonable, resulting in the exclusion of evidence or the stay of charges.

STRIP SEARCH FINDINGS BY THE NUMBERS

The report found that police in Ontario conduct approximately 22,000 strip searches a year, with the majority being conducted by Toronto Police Service. 

According to the report, in 2016 Toronto police conducted 17,654 strip searches (occurring in approximately 37.5% of all arrests that year).  Strip searches were found to have occurred in more than 40% of all arrests in Toronto in 2014 and 2015.  This was found to be 40 times higher than the rate of strip searches conducted by police services in Hamilton, Durham Region, Ottawa, Windsor and the Ontario Provincial Police during the same time period.

A spokesperson for the Toronto police, Meaghan Gray, has advised that the Toronto police are “addressing the challenges and sensitivities associated to strip searches for the last few years”.  Toronto police are reviewing procedures and training of their officers and have recently launched a full body scan pilot project, which is aimed at reducing strip searches.  Ms. Gray emphasized that when strip searches are conducted appropriately, “they can be a necessary safety requirement resulting in the seizure of weapons and drugs which pose a significant risk to the person and those around them.”

According to the report, since the ruling in the case of Golden, Toronto police were involved in 40 of the 89 criminal court decisions where a judge found that a police strip search had violated the defendant’s Charter rights.

RECOMMENDATIONS

The report provides a template for strip search procedures and a sample strip search form.  The report also offers 50 recommendations on how Ontario police services should conduct, document, and train their officers on strip searches.  These recommendations include, but are not limited to the following:

  • ensure that all police services comprehend the law regarding strip searches and the implications of violations;
  • enhance training for strip searches and incorporate strip searches into police services annual or biennial training;
  • clearly define what constitutes a strip search in keeping with the Supreme Court ruling in Golden;
  • strip searches should ordinarily be authorized in advance and be carried out by an officer of the same gender;
  • every Ontario police service should be made aware of judicial findings of Charter violations in strip search cases, and take measures to address the issues raised;
  • all Ontario police service must keep accurate statistics of the number of persons arrested or detained, the number of persons strip searched, and the justifications provided for conducted strip searches; and
  • statistics kept by Ontario police service should identify the race of the person subjected to a strip search in an effort to evaluate whether race plays a role in the decision to conduct strip searches.

We will continue to follow any developments in the news and in case law regarding strip searches in Ontario and will provide updates in this blog as they become available. 

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our clients’ rights.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Court of Appeal Limits Solitary Confinement to 15 Days

Written on Behalf of Affleck & Barrison LLP

As we continue to blog about the ever changing laws regarding solitary confinement in Canada, the Ontario Court of Appeal has ruled that placing inmates in solitary confinement for more than 15 days constitutes cruel and unusual punishment. This is the first time a Canadian court has imposed a specific time limit on solitary confinement.

WHAT HAPPENED?

The Canadian Civil Liberties Association (“CCLA”) launched the challenge of solitary confinement four years ago.

A lower court in Ontario found that solitary confinement could cause serious psychological harm to inmates, but these impairments could be avoided if staff adhered to existing laws requiring close monitoring of prisoners’ health. Justice Marrocco of the Ontario Superior Court of Justice rejected the CCLA’s argument that solitary confinement constituted cruel and unusual punishment and was in violation of Section 12 of the Charter of Rights and Freedoms.

The CCLA appealed Justice Marrocco’s decision and the case was argued before the Ontario Court of Appeal. Justice Mary Lou Benotto, writing on behalf of the three-judge panel of the Ontario Court of Appeal, ruled that the Correctional Service’s use of prolonged administrative segregation could cause permanent harm that no level of medical monitoring could prevent.

Justice Benotto stated:

Legislative safeguards are inadequate to avoid the risk of harm. In my view, this outrages standards of decency and amounts to cruel and unusual treatment.

The Appeal Court did reject the CCLA’s position that solitary confinement should be banned entirely for inmates who are 18 to 21 years of age, those with mental illness, or those in segregation for their own protection.

THE IMPACT OF THE APPEAL COURT DECISION

Michael Rosenberg, co-counsel for the CCLA, stated:

With this decision, the Court of Appeal has brought to an end a sorry chapter in the administration of Canada’s prisons. This is a significant win for the CCLA and for the administration of justice more generally.

What is most unusual about this decision is that the Court of Appeal has applied a short timeline to institute action. The Appeal Court has ruled that the 15-day cap of solitary confinement is to take effect 15 days following the decision.

Noa Mendelsohn Aviv, equality director for the CCLA, stated:

Usually, courts give governments months or a year to fix problems before a declaration of invalidity becomes active. With this short timeline, the court is saying this is enough, this is intolerable, this cannot continue.

The Correctional Service of Canada is currently reviewing the Appeal Court’s ruling. Public Safety Minister Ralph Goodale has not yet commented on the latest decision regarding solitary confinement. A spokesperson for Goodale has advised that his office is also reviewing this recent decision.

FEDERAL INMATES WIN CLASS-ACTION LAWSUIT

Last week, federal inmates were successful in their class-action lawsuit against the Correctional Service of Canada. A judge found that the practice of isolating approximately 2000 seriously mentally ill inmates breached Sections 7 and 12 of the Charter. These sections protect against arbitrary state actions and cruel and unusual punishment.

Ontario Superior Court Justice Paul Perrell has ordered the federal government to pay $20 million for placing mentally ill inmates in solitary confinement for more than 30 days involuntarily and for those who spent more than 60 days in administrative segregation voluntarily.

Justice Perrell stated:

The placement of a seriously mentally ill inmate in administrative segregation goes beyond what is necessary to achieve the genuine and legitimate aim of securing the safety of the institution. It does not accord with public standards of decency or propriety in the treatment of a mentally ill inmate.

 The funds are to remedy to the harm caused to society which has suffered from the correctional service’s failure to comply with the charter and also its failure to comply with the spirit of the Corrections and Conditional Release Act and its purpose of rehabilitating mentally ill inmates to return to society rather than worsening their capacity to do so by the harm caused by prolonged solitary confinement.

It has not yet been determined how compensation will be distributed amongst individual members of the class. Submissions to the court regarding this issue will be heard by the court at a later date where individual members of the class can put forth personal medical and prison records to make a case for damages. Those inmates who spent less than 30 days in administrative segregation will also be able to put forward claims on an individual basis.

In the meantime, Justice Perrell has ordered that $20-million be put towards mental-health resources and other programming at federal prisons, less legal fees. Therefore, the total amount for damages will be more greater than $20-million.

We will continue to follow developments in the matter of solitary confinement in Canada and blog about updates as they become available.

The Oshawa criminal defence lawyers at Affleck & Barrison LLP and its predecessors have been protecting client rights since 1992. Our skilled team has extensive experience defending a wide range of criminal charges. Whatever the nature of your criminal offence, we can help. Please call us today at 905-404-1947 or contact us online for a free consultation.

Truck Driver in Brocos Bus Crash Sentenced to Prison

Written on Behalf of Affleck & Barrison LLP

Last week, Jaskirat Singh Sidhu (“Sidhu”) was sentenced to eight years in prison after pleading guilty in January to 16 counts of dangerous driving causing death and 13 counts of dangerous driving causing bodily harm.

Sidhu was the semi-truck driver involved in the Humboldt Broncos bus crash in rural Saskatchewan on April 6, 2018.

WHAT HAPPENED?

The accident occurred when Sidhu drove through a stop sign and collided with a bus carrying the Humboldt Broncos junior hockey team that was heading to a playoff game. Sidhu was traveling between 86 and 96 km/h. He passed four signs warning him about the upcoming intersection that had an oversized stop sign with a flashing light.

A forensic collision report found that Sidhu did not brake at the intersection of Highway 335 and 35 before colliding with the bus. The report also indicated that Sidhu’s view of the intersection was not impeded by any environmental factors, such as trees or sunlight.

At the conclusion of the four day sentencing hearing, Sidhu apologized to his victims and took full responsibility for the crash. He stated that the accident occurred due to his inexperience as a truck driver.

More than 90 victim impact statements were presented to the court by friends and families of the victims and hours of arguments were made by lawyers. The victim statements were emotional with some families stating that they were able to forgive Sidhu, while others admitted that they would never be able to forgive him for his role in the accident.

Sidhu’s lawyer explained that he had been hired by a small Calgary trucking company three weeks prior to the accident. He spent two weeks with another trucker and then began driving on his own. Sidhu was apparently distracted by a tarp flapping on the trailer of the truck which resulted in his missing the four warning signs regarding the upcoming intersection. His lawyer advised the court that sentencing in cases of dangerous driving ranged from 18 months to 4 ½ years.

The Crown prosecutor argued that Sidhu had enough time to slow down and stop and described Sidhu’s driving as entering the intersection “like a rocket”.  He argued that Sidhu should receive a 10-year prison sentence, followed by a 10-year driving ban.

THE SENTENCE

Judge Inez Cardinal provided her sentencing decision in a makeshift courthouse at the Kerry Vickar Centre. The victim’s family and friends wore Broncos jerseys with the last names of their loved ones on the back.  Judge Cardinal began handing down her sentencing decision by reading the names of each of the victims aloud. She described the victims as:

…gifted athletes, community leaders, and team builders with hopes and dreams for the future…Some were dreaming of having a family, while others were already raising their families.

 Judge Cardinal recognized that there has been no similar case in Saskatchewan or Canada given the number of fatalities and injuries. She acknowledged that Sidhu’s remorse and guilty plea spared the victims’ families a lengthy trial and saved him from a maximum sentence of 14 years.

Judge Cardinal stated:

It is baffling, and incomprehensible, that a professional driver, even one with little experience, could miss so many markers over such a long distance. His inattention displays risky behaviour given he saw the signs but they did not register because he continued to focus on the trailers behind him.

Sidhu was sentenced to eight years for each count of causing death, and five years for each count of dangerous driving causing bodily harm. The sentences are to be served concurrently as they all arise from the same circumstances, which means the sentences will be served simultaneously.  Sidhu was also given a 10-year driving ban, a firearms prohibition, and is required to provide bodily samples for the purpose of DNA analysis.

WHAT COMES NEXT?

Sidhu grew up in India and came to Canada in 2013. He is a permanent resident, not a Canadian citizen. As a result of his conviction and sentence, Sidhu will face deportation to India.

Under Canada’s federal law, permanent residents cannot remain in Canada if they commit a crime for which the maximum sentence is at least 10 years or their jail sentence is more than six months.

As a result of this accident, the Saskatchewan government has undertaken to make changes to the intersection where the crash occurred, promising to add rumble strips and better signage.  The government has also promised to put millions of dollars into improvements at other intersections.

Although there is mandatory training for semi-truck drivers in Ontario, training for semi-truck drivers in Saskatchewan only became mandatory last week. Training for drivers across the rest of the country will also become mandatory in 2020.

If you are facing a dangerous driving charge or need to speak with an experienced criminal defence lawyer about criminal 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. We are available when you need us most.

Government Announces Legislation to Pardon Pot Possession

Written on Behalf of Affleck & Barrison LLP

On March 1, 2019, the Minister of Public Safety and Emergency Preparedness Ralph Goodale announced new legislation proposed to allow those previously convicted of simple marijuana possession to be pardoned once their sentence is complete.

The Trudeau government introduced Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, which would amend the Criminal Records Act.

According to Border Security and Organized Crime Reduction Minister Bill Blair, there are approximately 400,000 Canadians with criminal records for simple possession. However, the government expects that there are between 70,000 to 80,000 Canadians eligible to apply for the streamlined pardon process.

WHAT IS BILL C-93?

Bill C-93 proposes to allow those formerly convicted of simple cannabis possession in Canada to apply for a pardon, or record suspension, once their sentence has been served. This proposal will also allow for both the fee ($631) and the five to ten year waiting period to be waived. All individuals would be eligible to apply even if they are not a Canadian citizen or resident of Canada.

The government is hopeful that the elimination of the stigma of a criminal record, in addition to the fee and waiting period for those who have completed their sentence and proven themselves to be law-abiding citizens, will likely increase opportunities for all Canadians.

The Honourable Ralph Goodale describes the proposed legislation as “unique and historic” and stated:

The Cannabis Act’s coming into force marked an important step in the process of legalizing, strictly regulating and restricting access to cannabis in Canada. This proposed legislation will help eliminate what are disproportionate consequences, and reduce barriers to reintegration for Canadians convicted only of simple cannabis possession.

The proposed law would apply to those convicted of simple possession. This refers to those charged with possession of cannabis for personal use, with no intent to traffic (to sell, administer, give, transfer, transport, send or deliver).

The proposed pardon, otherwise known as a record suspension, allows those that have completed their sentence and after they have proven to be law-abiding citizens to have their criminal record removed from the Canadian Police Information Centre database. However, it will not erase the conviction entirely (expungement), but will keep the record separate from other criminal records. The pardon could be reversed if the individual is convicted of new crimes or is “found to no longer be of good conduct”.

A pardon will allow those convicted of simple possession to access educational and employment opportunities, volunteer in their communities, and reintegrate into society.

According to the Honourable Bill Blair, Minister of Border Security and Organized Crime Reduction:

Ensuring timely access to pardons for individuals previously convicted only of simple possession of cannabis will help make things fairer for these Canadians – including visible minority communities, Indigenous communities and those in our most vulnerable neighbourhoods – who should have greater access to employment, volunteering opportunities, educational programs, and housing.

CRITICS ARGUE FOR EXPUNGEMENT

The NDP justice critic Murray Rankin is attempting to improve the proposed bill by pushing for the expungement of cannabis records, rather than the suspension of records for simple possession. An expungement of a criminal record would completely destroy or remove the record of a conviction. Expungement also protects individuals against a future government that may reverse the amnesty proposed by the current government.

MP Rankin had previously tabled a private member’s bill last fall, which we addressed in an earlier blog.

Akwasi Owusu-Bempah, a University of Toronto sociologist, does not believe that the new bill goes far enough. According to Owusu-Bempah, young people over the last 15 years, especially those of colour, have been overrepresented in arrest statistics involving marijuana. However, his research indicates that those that are black, white and Latino in Toronto consume cannabis at approximately the same rate. He believes that destroying cannabis-possession records entirely is the only way to recognize the “profound historical injustices that have stemmed from the war on drugs and cannabis prohibition in particular, especially how those have affected both marginalized and racialized populations”.

MP Goodale defends the government’s position to allow pardons and not expungements by stating that expungements of a criminal record are only applicable for convictions under laws that have been declared unconstitutional, such as the prohibition of same-sex relations. He also maintains that the proposed pardon process is cheaper and faster than expungement.

We will continue to provide updates in this blog regarding the law with respect to criminal records for simple cannabis possession.

In the meantime, if you are facing drug related charges or have any questions concerning your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and offer a free consultation. Trust our experienced lawyers to handle your defence with diligence and expertise.

Seven Year Prison Sentence for Canadian Tire Terror Attack

Written on Behalf of Affleck & Barrison LLP

A woman who attacked Canadian Tire employees with a knife and a golf club while proclaiming support for a terror group has been sentenced to seven years in prison.

Rehab Dughmosh (“Dughmosh”) was found guilty of several terror charges by a jury after admitting to attacking workers at a Canadian Tire Store in east Toronto.

WHAT HAPPENED?

According to the agreed statement of facts, the only evidence presented at the trial, Dughmosh began considering an attack in Toronto almost a year after her return from a trip to join ISIL (a militant Islamic fundamentalist group active in Syria and Iraq). She admitted that she began to assemble store-bought and homemade weapons and created an ISIL banner using black spray paint.

On June 3, 2017, Dughmosh packed several bags with weapons, including a hammer, 31 metal barbecue skewers, 76 straws with screws glued to the tip, scissors, and a child’s shovel converted to claws. She also had an archery bow and a 20-centimetre butcher knife. As she left her apartment, her estranged husband took away the bags of weapons, however, he did not know she still had concealed an archery bow and a butcher knife.

Dughmosh proceeded to Canadian Tire and began collecting tools in a shopping basket. After 5 p.m., she took an ISIL banner from under her robe, tied an ISIL bandana around her head, and took out the archery bow. She then obtained a golf club and began swinging the club at three employees while chanting, “This is for ISIS”. The employees were able to take the club from her hands. She then proceeded to obtain her butcher knife, which the employees were also able to seize after wrestling her to the ground. Shortly thereafter local police and RCMP arrived at the scene.

Dughmosh admitted that she pledged allegiance to ISIL after reading about the terror group and watching videos online. She also admitted that she wanted to hurt people, but not kill them. She confessed that the attack was designed as payback for the public’s implicit agreement with governments killing Muslims.

Following the attack, Dughmosh’s home was searched and bags of weapons were found along with a cellphone that contained propaganda and a handwritten will where Dughmosh asked to be granted martyrdom.

THE TRIAL

Dughmosh was initially facing 21 charges. These charges were reduced to four, including two counts of assault with a weapon and one of carrying a weapon. She was also charged with leaving Canada for the purpose of committing a criminal offence in connection with an attempted trip to Syria in April 2016.

Dughmosh, who represented herself, did not enter a guilty plea on the charges. A not-guilty plea was entered on her behalf. She also did not present a defence and refused to make a closing statement to the jury.

The only evidence that was presented in court was an agreed statement of facts. This is very unusual in a jury trial.

Jason Wakely, federal Crown prosecutor, stated after the verdict,

Ms. Dughmosh was prepared to admit the facts that the Crown was alleging against her but for her own reasons she was not willing to formally enter a guilty plea, to formally elect to be tried by judge alone, she exercised her right to have this matter decided by a jury.

COURT-ORDERED PSYCHIATRIC ASSESSMENT

The Court ordered a psychiatric assessment last year to determine whether Dughmosh was eligible to use the “not-criminally-responsible” defence.

Dr. Sumeeta Chatterjee concluded that Dughmosh suffers from a major mental illness, most likely schizophrenia. He found that she was suffering from “actively psychotic” symptoms and “paranoid and persecutory delusions” at the time of the attack. The report suggested that her mental health began deteriorating in 2014, which may be associated with her adopting the terrorist group’s ideology during this time period.

Dr. Chatterjee concluded that although Dughmosh was suffering “intense psychotic symptoms” at the time of the attack, she was well aware that her actions could cause harm and were legally wrong.

THE SENTENCE

In this case, the Crown prosecutor was seeking a sentence of eight years, reduced from 12 years, due to the well documented mental health issues suffered by Dughmosh.

Superior Court Justice Maureen Forestell, in making her ruling, acknowledged that terrorists must be condemned and punished and that it was clear that Dughmosh’s offences were serious and that she prepared, planned, and intended to attack and cause harm.

Justice Forestell also recognized that Dughmosh’s mental illness played a role and was a mitigating factor. She found that Dughmosh’s mental illness made her vulnerable to extremist beliefs.

Justice Forestell sentenced Dughmosh to seven years in prison and stated that this particular sentence was significantly less than one that would have been imposed on an offender who did not have a mental illness and who did not show progress with treatment.

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 offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. We are available when you need us most.

Ontario Will Not Appeal Decision to Stay Murder Charge Against Adam Capay

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada, and are revisiting this issue given the recent announcement by Ontario Crown prosecutors declaring that they will not appeal Superior Court Justice John Fregeau’s decision to stay the proceedings in the first-degree murder case against Adam Capay (“Capay”).

On January 28, 2019, Justice John Fregeau stayed the first-degree murder charge against Capay due to the “complete and utter failure” of Ontario’s correction system in managing Capay’s solitary confinement for more than four years while awaiting trial. Capay was released to his family following this decision.

WHAT HAPPENED?

On June 3, 2012, Capay fatally stabbed Sherman Quisses (“Quisses”) twice in the neck while they were in a correctional facility in Thunder Bay.

Capay was immediately placed in segregation after his attack on Quisses on the basis that he was a threat to both himself and other prisoners. Capay was kept in a Plexiglass cell with the lights on 24-hours a day for 1,647 days. He was often kept in detention blocks where he was not allowed to flush the toilet from inside the cell.

Capay’s decline became publicly known after Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, visited him during a tour of Thunder Bay District Jail and released the details to the media.

Capay described his lengthy segregation as having impaired his ability to speak and differentiate day from night. On October 18, 2016, The Globe and Mail published the first in a series of stories about Capay and his prolonged isolation.

JUSTICE FREGEAU’S DECISION TO ORDER A STAY

Capay’s lawyers requested a stay (a ruling by the court halting any further legal proceedings) of the first-degree murder charge on the basis that Capay’s rights were violated under the Charter of Rights and Freedoms (“Charter”). Justice Fregeau heard testimony from corrections staff and numerous experts in the field of forensic psychiatry, human rights, and correctional law and policy.

Justice Fregeau found that Capay suffered from pre-existing mental-health issues as a result of his childhood experiences of physical and sexual abuse, domestic violence in his home, parental alcoholism and other intergenerational trauma, and concluded that these issues were exacerbated by his isolation, sleep deprivation, and lack of access to mental health services.

According to Justice Fregeau, Capay’s isolation violated four sections of the Charter, including:

  • The right of life, liberty and security of person (Section 7);
  • The right not to be arbitrarily detained (Section 9);
  • The right not to be subjected to cruel and unusual punishment (Section 12); and
  • The right to be equal before and under the law (Section 15).

Although Capay was responsible for Quisses’ death, his many years of isolation amounted to cruel and unusual punishment and a violation of his Charter rights.

Justice Fregeau ruled that these Charter violations were so “prolonged, abhorrent, egregious and intolerable” that the only appropriate solution was to stay his murder charge and allow Capay to be released.

Justice Fregeau’s decision set out the following issues with the Thunder Bay District Jail, which included:

  • Failing to hold legally mandated reviews of Capay’s segregation status;
  • Advising staff to avoid talking to the inmate; and
  • Neglecting Capay’s declining mental health.

Justice Fregeau wrote in his decision:

When exercising their statutory discretion in making segregation decisions regarding the accused, the complete and utter failure of correctional officials to properly balance the accused’s charter rights with the statutory objectives can only be described as profoundly unreasonable, unacceptable and intolerable.

                        …

The treatment of the accused was, in my opinion, outrageous, abhorrent, and inhumane. There would be ongoing prejudice to the accused if forced to proceed to trial.

RECOMMENDATIONS MADE TO THE CORRECTIONAL SERVICES MINISTER

On February 21, 2019, Renu Mandhane (“Mandhane”), chief commissioner of the Ontario Human Rights Commission, wrote an open letter to the Honourable Sylvia Jones, the Minister of Community Safety and Correctional Services, calling for an end to segregation in Ontario.

Mandhane emphasized that prisoners in Ontario continue to be held in segregation for extended periods of time, despite the fact that it is harmful to their mental and physical health, and undermines institutional safety, rehabilitation and reintegration.

The data from May 2018 reveals that there were nearly 4,000 segregation placements over a two-month period, with 657 of those exceeding 15 days.

Mandhane wrote:

The numbers are large and it can be hard to remember that each number represents a person. Adam Capay’s treatment is a reminder of the lived reality behind the numbers and the long-term negative consequences that segregation has on prisoners, correctional officers, victims of crime, the community and the administration of justice.

Mandhane recommends that the government immediately launch an action plan, including limiting segregation to fifteen-days, judicial reviews of isolation decisions, and bans on the segregation of pregnant, suicidal, mentally ill and physically disabled inmates.

The previous Liberal government passed a bill incorporating many of Mandhane’s recommendations prior to last year’s election, however, this bill has not yet been proclaimed by the Lieutenant-Governor and the new Progressive Conservative government.

We will continue to follow the developments in the law regarding solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison LLP at 905-404-1947 or contact us online. For your convenience, we offer 24-hour phone services.

Eaton Centre Shooter Found Guilty of 2 Counts of Manslaughter

Written on Behalf of Affleck & Barrison LLP

After six days of deliberations, a jury found Christopher Husbands (“Husbands”) guilty of two counts of manslaughter for killing Nixon Nirmalendran (“Nirmalendran”) and Ahmed Hassan (“Hassan”) during a shooting spree at the Eaton Centre in downtown Toronto on June 2, 2012.

Husbands was also convicted of five counts of aggravated assault, one count of criminal negligence causing bodily harm, and one count of reckless discharge of a firearm for injuring bystanders in the crowded food court.

In April 2015, Husbands was sentenced to life imprisonment with no chance of parole for 30 years when he was convicted of two counts of second-degree murder. He launched an appeal and was granted a second trial after the Ontario Court of Appeal found that the trial judge had erred during jury selection.

WHAT HAPPENED?

On June 2, 2012, Husbands was shopping at the Eaton Centre with his girlfriend. They proceeded to the food court after purchasing inline skates and a jacket from Sport Chek.

Husbands began shooting in the food court of the Eaton Centre in the direction of a group of five men, which included the deceased Nirmalendran and his brother Nisan Nirmalendran. Husbands testified at trial that these brothers were part of a group of men that beat and stabbed him more than 20 times three months prior to this incident.

Husbands fired 14 shots during his rampage as seen on surveillance video from the food court. Bullets from Husbands’ gun killed Nirmalendran and Hassan. He also shot, but did not kill, 13-year-old, Connor Stevenson, in the head. Two additional shoppers were shot in the leg and two were grazed by bullets. Husbands actions also caused a stampede of panicked shoppers who trampled a pregnant woman.

WHAT WAS HUSBANDS’ DEFENCE ARGUMENT?

Husbands’ defence team argued that at the time of the shooting their client was in a dissociative state as a result of suffering from PTSD and did not have control over his actions. It was argued that Husbands had been triggered after seeing the Nirmalendran brothers at the Eaton Centre.

Husbands’ defence lawyers infer that the jury either believed that Husbands was provoked into shooting at men who had previously attacked him, or that his PTSD “caused him to react instinctively without forming the intent to kill”.

Stephanie DiGiuseppe, one of Husbands’ lawyers, stated:

It would have been easy for the jury to look at the video and think this was all about revenge, but to look at it through the lens of trauma was something significant, I think, for our community.

WHAT WAS THE CROWN’S ARGUMENT?

Crown prosecutors argued that Husbands was out for revenge and went on a shooting rampage as a form of “street justice”.

Although the Crown accepted that Husbands had PTSD, it was argued that Husbands was in control of his actions throughout the confrontation.

The psychiatric experts who assessed Husbands all agreed that he had PTSD, but were split on whether he was in a dissociative state at the time of his shooting rampage.

At the time of the shooting rampage, Husbands was out on bail for a sexual assault conviction. He was supposed to be living under house arrest and he was under a weapons ban as well by court order. The jury was not privy to this information.

WHAT IS MANSLAUGHTER?

Manslaughter is defined as a homicide which is committed without the intention to cause death, although there may have been an intention to cause harm.

Manslaughter is found at section 234 of the Criminal Code and the punishment for manslaughter is set out in section 236 of the Criminal Code.

Manslaughter does not carry a minimum sentence, except when it is committed with a firearm. In the case of a conviction of manslaughter committed with a firearm, there is a minimum sentence of four years in prison.

WHAT HAPPENS NEXT FOR HUSBANDS?

Husbands is facing a life sentence in prison with no chance of parole for seven years.

Parole refers to the temporary release of a prisoner who agrees to abide by the conditions set by the court before the completion of the maximum sentence.  However, the ability to apply for parole does not necessarily mean that parole will be granted.

Husbands’ sentencing hearing will begin on April 29, 2019.  He has already been behind bars for seven years.

We will continue to follow this case and will report on any developments in this blog.

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Canada’s Highest Court Finds Teacher Guilty of Voyeurism for Secretly Recording Students’ Cleavage

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada ruled last week that an Ontario high-school teacher, Ryan Jarvis (“Jarvis”), is guilty of voyeurism for using a pen camera to secretly take videos of female students.

The highest court in Canada decided that the teenage students were entitled to a reasonable expectation that they would not be surreptitiously recorded by their teacher.

WHAT HAPPENED?

Jarvis was charged with the criminal offence of voyeurism (section 162(1)(c) of the Criminal Code) after it was discovered that he had taken videos of female students’ faces, chests, and cleavage area with his pen at a high school in London, Ontario.

These videos were recorded during 2010 and 2011 and took place throughout the school, including the hallways, classrooms, cafeteria, staff offices, and even outside of the building. The 27 students who were filmed by Jarvis ranged in age from 14 to 18 years old and did not know that they were being recorded.

At trial in 2015, Jarvis was acquitted as the trial judge held that while the students had a reasonable expectation of privacy, it was not clear that the videos were taken for a sexual purpose.

As we have previously blogged, the Ontario Court of Appeal dismissed the Crown’s challenge of the trial judge’s ruling and upheld Jarvis’ acquittal. The majority of the appeal court found that the videos were taken for a sexual purpose, however, the court found that the students should not have an expectation of privacy in areas of the school where they congregate or learn.

At the Court of Appeal, there was one dissenting judge who was convinced that the students were entitled to a reasonable expectation of privacy in the circumstances and would have entered a conviction on that basis.

This dissenting opinion at the appeal court level allowed the Crown prosecutor a right to appeal the decision to the Supreme Court of Canada. Therefore, the issue before the Supreme Court was whether the Court of Appeal erred in finding that the students recorded by Jarvis should not have a reasonable expectation of privacy in the circumstances and for the purposes of section 162(1) of the Criminal Code.

The offence of voyeurism as set out in the Criminal Code is committed when a person surreptitiously observes or makes a visual recording of another person who is in “circumstances that give rise to a reasonable expectation of privacy”, and in Jarvis’ case the observation or recording is done for a sexual purpose.

WHAT DID THE SUPREME COURT OF CANADA DECIDE?

The nine judges of the Supreme Court of Canada all agreed that Jarvis should be found guilty, although there were two different lines of reasoning followed by the judges in coming to this decision.

The majority of the Supreme Court emphasized that the offence of voyeurism was predicated on concerns of rapidly developing technology, which may be abused for the purpose of secret viewing or recording for a sexual purpose and involving a breach of privacy.

Chief Justice Richard Wagner, writing for the majority of the court, provided a non-exhaustive list to assist a court in determining whether a person was observed or recorded in circumstances that give rise to a reasonable expectation of privacy, including:

  • The location the person was in when he/she was observed or recorded;
  • The nature of the conduct (either an observation or recording);
  • Awareness of or consent to potential observation or recording;
  • The manner in which the observation or recording was made;
  • The subject matter or content of the observation or recording;
  • Any rules, regulations or policies that governed the observation or recording in question;
  • The relationship between the person who was observed or recorded and the person who did the observing or recording;
  • The purpose for which the observation or recording was made; and
  • The personal attributes of the person who was observed or recorded.

The majority of the court was satisfied that the students that had been recorded were in circumstances that give rise to a reasonable expectation of privacy based upon the following considerations:

  • the location of the recording;
  • the fact that the impugned conduct was a recording rather than mere observation;
  • the manner in which the videos were recorded;
  • the fact that that these students were unaware that they were being recorded;
  • the content of the videos which focused on intimate parts of the students’ bodies;
  • a school board policy prohibiting this type of recording;
  • the fact that the recordings were made in breach of a relationship of trust between Jarvis and his students;
  • Jarvis’ purpose in making the recordings; and
  • the fact that the individuals who were recorded were young persons.

Chief Justice Wagner wrote:

The explicit focus of the videos on the bodies of the students recorded, including their breasts, leaves me in no doubt that the videos were made in violation of the students’ reasonable expectations of privacy.

Justice Wagner made it clear that the concept of privacy is “not an all-or-nothing-concept” and “being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording”.

Justice Rowe, writing for the minority judges, stated:

Had Jarvis placed himself in the position of the pen-camera and simply observed the students, they would undoubtedly have recoiled. It was reasonable in the circumstances for the students to expect not to be observed and recorded in the way that they were.

The Court has confirmed that it is illegal for teachers to secretly take pictures or video of their students for a sexual purpose, even if the students are in a public area or in view of the school’s security cameras.

WHAT HAPPENS NEXT?

Given the findings by the Supreme Court of Canada, a conviction has been entered against Jarvis and he awaits his sentence.

Jarvis is also facing a disciplinary hearing from the Ontario College of Teachers for allegations of sexual, psychological, and emotional abuse, in addition to unprofessional conduct.

We will provide updates regarding this case in this blog as information becomes available.

In the meantime, if you have any questions regarding voyeurism charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges. We offer a 24-hour telephone service and we are available when you need us most.

Sentence of Life With No Parole for 40 Years for Quebec Mosque Shooter

Written on Behalf of Affleck & Barrison LLP

Last week two sentencing decisions were made in two high profile criminal cases in Canada. In both decisions, the court was left to decide how many years the accused will have to wait until he can apply for parole given the multiple counts of first-degree murder.

As we wrote in our blog last week, Bruce McArthur (“McArthur”), 67 years old, pleaded guilty to eight counts of first-degree murder in the deaths of eight men who disappeared between 2010 and 2017 in Toronto’s Gay Village. Justice John McMahon sentenced McArthur to life in prison for each of the eight counts. Justice McMahon did not order consecutive periods of parole ineligibility and instead decided that McArthur was not eligible for parole for 25 years.

Justice McMahon, in his sentencing reasons, stated:

Due to the accused’s age, I am satisfied that when dealing with the protection of the public, concurrent periods of parole ineligibility can adequately address the protection of the public. It would not be until Mr. McArthur is 91 years of age that he could apply for consideration for parole.

In Quebec, Alexandre Bissonnette (“Bissonnette”), 29 years old, pleaded guilty to killing six men at a Quebec City mosque on January 29, 2017. He was sentenced to life in prison with no possibility of parole for 40 years.

WHAT HAPPENED AT BISSONNETTE’S SENTENCING HEARING?

In March 2018, Bissonnette pleaded guilty to six counts of first-degree murder and six counts of attempted murder as a result of his actions on the evening of January 29, 2017.

Bissonnette, armed with a .223-calibre rifle, a 9-mm Glock pistol, and 108 bullets, shot into a crowded prayer room at the Islamic Cultural Centre as Sunday prayers were ending.

The Crown prosecutor argued before the Quebec Superior Court that the parole periods should be consecutive, which would result in a total of 150 years with no chance of parole. This would have been the longest prison sentence in Canadian history. To date, the longest prison sentence of 75 years without parole has been handed down in five cases involving triple killings. For example, in the case of Justin Bourque who murdered three RCMP officers in New Brunswick in 2014.

Bissonnette’s lawyer argued that his client’s sentences should be served concurrently. This means Bissonnette could seek parole after 25 years in prison. Bissonnette was described by his lawyer as an “anxious” man suffering from depression who required alcohol in order to reduce his inhibitions on the night of the killings. He has been described by his own defence team as a “sick young man” who can be rehabilitated and has shown remorse and shame.

WHAT WAS THE JUDGE’S RULING ON SENTENCING?

Before providing his sentence to Bissonnette, Justice Francois Huot addressed the offender by stating:

By your hate and your racism, you destroyed the lives of dozens and dozens of people, and have irredeemably ruined your own and those of the members of your family.

Justice Huot then proceeded to provide a detailed account of Bissonnette’s actions on the night of the shooting.

In his ruling, Justice Francois Huot rejected the Crown’s argument and instead imposed a concurrent life sentence of a 25-year parole ineligibility period for the first five counts of murder and added a 15-year period of ineligibility for the sixth count. This means that Bissonnette will not be eligible for parole for 40 years.

Justice Huot reasoned that sentences that exceed an offender’s life expectancy and offer no hope of release are “grossly disproportionate and totally incompatible with human dignity” and would constitute cruel and unusual punishment under the Canadian Charter of Rights and Freedoms.

Although Justice Huot did not strike down the section of the Criminal Code which allows for consecutive life sentences, he used his discretion to hand down a consecutive life sentence that was less than the traditional 25 year block (as first-degree murder carries a life sentence with no possibility of parole for 25 years).

According to Justice Huot, the following aggravating factors justified a sentence harsher than the 25-year period:

  • He planned his attack carefully;
  • He targeted vulnerable and unarmed people in their place of worship; and
  • He took aim at Canada’s right to freedom of religion.

Justice Huot also considered that Bissonnette had been struggling with mental health problems in the time leading up to the shootings. He also considered the fact that Bissonnette had no previous criminal record, he pleaded guilty, and he expressed remorse.

Lawyers for both the Crown and the defence will be reviewing Justice Huot’s lengthy 246-page decision to decide whether to appeal the sentence. We will continue to follow this case and will report any developments that occur in this blog.

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our clients’ rights. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.