Criminal negligence

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

Written on Behalf of Affleck & Barrison LLP

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

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

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

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

WHAT DO WE KNOW ABOUT THE ALGONQUIN PARK TRIP?

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

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

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

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

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

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

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

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

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

WHAT IS A PRELIMINARY HEARING?

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

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

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

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

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

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

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

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

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

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

Man Sentenced to 6 Years in Prison for Impaired Operation of Canoe

Written on Behalf of Affleck & Barrison LLP

Last summer, David Sillars (“Sillars”), became the first Canadian to be convicted of impaired driving charges while paddling a canoe.  He was recently sentenced to six years in prison for the April 2017 death of an eight-year-old boy.

We have previously blogged about a landmark ruling by an Ontario judge who decided that a canoe is a “vessel” for the purposes of the definition of vessel found in the Criminal Code of Canada, which includes the criminal charges of impaired operation of a vessel causing death, operation of a vessel over 80, and the dangerous operation of a vessel.

WHAT HAPPENED?

On April 7, 2017, Sillars took his girlfriend’s son, Thomas Rancourt (“Rancourt”), for a canoe ride down the Muskoka River to teach him how to paddle a canoe.  Sillars was intending to paddle in the direction of and to retrieve a blue barrel, which appeared to be wedged against a barrier by debris.  The canoe capsized and Rancourt was swept downriver and went over a waterfall at High Falls, and then drowned.  Sillars, on the other hand, swam safely to the shore.

In his lengthy decision, Justice Peter C. West set out the following key findings of fact based upon the evidence presented in court:

  • Temperatures were between 3 and 4 degrees Celsius on April 7, 2017;
  • School buses were cancelled due to slush and ice, resulting in poor road conditions on April 7, 2017;
  • The majority of the ice on the river had melted, although small chunks were visible, resulting in a reasonable inference that the river water was extremely cold;
  • The water levels of the river were very high on April 7, 2017;
  • The current in the river was fast-flowing and extremely strong;
  • The yellow barrier is a warning to caution boaters of the danger created by the water flowing towards the High Falls;
  • Sillars was cautioned by two experienced individuals who warned him of the dangerous water conditions;
  • Sillars did not agree to take or wear an adult sized lifejacket;
  • The PDF worn by Rancourt was too small for him, especially given that he was wearing three layers of clothing beneath it, including his winter jacket;
  • Sillars had consumed alcohol and THC prior to operating the canoe on April 7, 2017;
  • Sillars intention was to paddle to the yellow barrier to retrieve a blue barrel, which was clearly wedged in debris and partially submerged; and
  • Rancourt looked up to Sillars as a father figure, and this relationship created a duty of care for Sillars towards Rancourt.

Based upon the evidence, the court ruled that:

David Sillars’ decision to canoe towards the yellow warning barrier, during the spring run-off with the described dangers and risks…, with the sole purpose to retrieve a blue barrel, partially submerged and wedged against the yellow warning barrier by other debris, was a significant contributing cause of Thomas Rancourt’s death.  …[B]ut for the decision of Mr. Sillars to go to the yellow barrier, Thomas Rancourt would not have fallen out of the canoe and wound not have gone over the waterfalls and drowned. 

With respect to the issue of impaired paddling, the court considered whether Sillars’ drinking impaired his ability to operate a canoe (Sillars’ minimum blood-alcohol content was 128 milligrams of alcohol in 100 mililitres of blood and he had 14 nanograms of THC in his blood).  The court concluded that Sillars’ intellectual abilities, specifically his reaction time, decision making abilities and his ability to respond to an emergency situation, were impaired by his consumption of alcohol.

The fact that Sillars ignored warnings by two individuals as to the potential danger of canoeing in the conditions on the river, refused to wear an adult lifejacket and failed to bring the required safety equipment in the canoe demonstrated to the court that he overestimated his canoeing abilities and underestimated the level of risk he was enduring, which further demonstrated how the alcohol and marijuana impaired his decision making abilities.

THE SENTENCING

Justice West found Sillars guilty of all four charges he was facing and was sentenced in October, 2019.  The Crown asked the court for a jail sentence of six to eight years and an order prohibiting Sillars from operating a vessel for 20 years.  Sillars’ defence team asked the court for a two-year jail term.

Justice West described numerous aggravating factors that he considered when deciding on the terms of Sillars’ sentence.  The fact that Sillars was in a position of trust and authority in relation to Rancourt was one such factors, as well as his previous criminal record. 

In his reasons, Justice West commented on how this is a “unique” case as there are no precedent cases of criminal negligence causing death or impaired operation causing death in the case of a capsized canoe.  However, Justice West used precedent cases of those who have been found guilty of operating a motor vehicle while impaired and sentenced Sillars to six years in prison, an order requiring that samples of bodily substances be taken for the purposes of forensic DNA analysis  and an order prohibiting Sillars from operating a vessel for 10 years.

Justice West stated:

In my view general deterrence and denunciation are particularly important in cases where alcohol or drugs have impacted an offender’s ability, as in this case, to operate a vessel and the factor that a motor vehicle was not … involved makes no difference.

Sillars has already filed an appeal and has been released on $1,500 bail pending his appeal.  He must remain at home under house arrest and abstain from drinking alcohol. 

We will continue to follow any developments that may arise in this case and will report any updates in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact Affleck Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Charges Laid after Children Left in Hot Car Alone

Written on Behalf of Affleck & Barrison LLP

In the small space of a car, temperatures can rise rapidly. This can result in an individual being unable to regulate their internal temperature. In this type of environment, the body (especially a small body) can go into shock quickly, and circulation to vital organs can fail.

Due to their size, infants and small children can dramatically be affected by extreme temperatures. Their core temperature can increase three to five times faster than that of an adult. Hyperthermia can occur when the body’s temperature rises to dangerously high levels and threatens your health. The average body temperature is 37 degrees Celsius.  An individual is considered to be suffering from hyperthermia when the body’s core temperature reaches 40.5 degrees Celsius.

General Motors of Canada funded a study that found that on a 35 degree Celsius day a previously air-conditioned small car when exposed to the sun can rise in temperature to over 50 degrees Celsius within 20 minutes. Within 40 minutes, the temperature inside the car can rise to 65.5 degrees Celsius.

More than half of all children left in hot cars were trapped there unintentionally. These children were often left behind in a moment of forgetfulness or trapped after playing unsupervised in an unlocked vehicle.

According to the Canada Safety Council, an average of 37 people die each year in the United States as a result of being locked in a hot car. There are no statistics of this nature available for Canada.

RECENT EVENTS

Earlier this week, a 29-year-old woman, Thuy Thanh Tam Nguyen (“Nguyen”), was criminally charged after leaving her infant in a locked parked car.

Halton police attended a plaza at Trafalgar Road and Dundas in Oakville last Sunday afternoon following a 911 call. Paramedics were called to examine the 11 month old infant boy. Fortunately, the infant suffered no physical harm. Nguyen was allegedly shopping at a nearby store for approximately 90 minutes.

Nguyen has been charged with abandoning a child and failing to provide the necessaries of life. She will return to court in Milton in July.

Just two weeks ago, police charged a 53-year-old Hamilton man after he left his friend’s young child alone in a locked car. A woman walking in a Walmart parking lot spotted the child in the car and coached him on how to unlock the vehicle. The 7-year-old child ”was soaking wet from head to toe in sweat”. He was examined by paramedics and cleared at the scene. The man is to appear in court on June 20, 2018.

CRIMINAL NEGLIGENCE CAUSING DEATH

In the circumstances when a child dies after being left alone in a car, the adult who was entrusted with taking care of the child is often charged with criminal negligence causing death.

This was the case when a three-year-old boy died in Burlington after being left in a hot car on May 23, 2018. By the time police arrived on scene, the boy was outside of the car and was pronounced dead. The temperature that day had reached 26.6 degrees Celsius. An autopsy determined that the preliminary cause of death was hyperthermia. Shaun Pennell faces one count of criminal negligence causing death and one count of failing to provide the necessaries of life. Pennell will appear back in court in Milton on June 27.

Typically, a conviction of criminal negligence causing death occurs when the accused person does not mean to injure or cause bodily harm through their reckless actions. Section 219 of the Criminal Code defines the accused as showing “wanton or reckless disregard for the lives or safety of other persons”. The maximum sentence is life in jail.

There are a wide range of sentences available in cases of criminal negligence causing death due to the numerous ways in which the offence can be committed.

In the case of 2-year-old Eva Ravikovich (“Eva”), who died when she was left in a car by a daycare worker in Vaughan, Olena Panfilova (“Panfilova”) was sentenced to 22 months in jail and three years on probation. Panfilova pleaded guilty to criminal negligence causing death. Panfilova had 35 children in her illegal daycare and had forgotten that she left Eva in the car outside the daycare. She also tried to cover up her forgetfulness by pretending that the child died during a nap.

In the recent case of R. v. Simons, Elmarie Simons pleaded guilty to criminal negligence causing death and was sentenced last month in Calgary. Simons, an unlicensed daycare home operator, had left an 18-month-old toddler in a car seat in a dark closet to run errands at Walmart and McDonald’s. The child died from asphyxiation caused by the car seat strap as the leg straps of the seat were not properly buckled and the child slid down in the car seat to such a degree that the chest harness strap choked her. Simons was sentenced to 3 and a half years in prison.

RECOMMENDATIONS

It is recommended to always keep cars locked while in garages or on driveways to prevent children from inadvertently becoming trapped in a vehicle. It is also suggested that adults keep their car keys in a safe place.

It is also recommended to make it a habit to place your cell phone or purse in the back seat. This would require the driver to check the back seat before leaving the vehicle on a regular basis.

If you come across a child or animal in distress that has been left alone in a hot vehicle it is imperative that you call 911 immediately.

It cannot be emphasized enough that no child or pet should be left alone in a hot vehicle, even for a few minutes.

If you have questions about your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

Truck Driver Faces Criminal Negligence Charges After Four Fatalities in Hwy 400 Crash

Written on Behalf of Affleck & Barrison LLP

Three generations of women from one family, as well as a college student nearing graduation were killed in a violent twelve vehicle pile-up on Highway 400 this past June. Three of the twelve vehicles involved were transport trucks.  A 35-year-old truck driver from Winnipeg, Manitoba has since been charged with four counts of criminal negligence causing death, as well as one count of negligence causing bodily harm. These are serious charges with significant consequences.

What is Criminal Negligence?

Criminal negligence is a broadly defined offence under the Criminal Code, but is most commonly applied to driving incidents.

An individual is criminally negligent who in doing or omitting to do anything that is his/her duty to do by law shows “wanton or reckless disregard for the lives or safety of other persons”. Examples of criminally negligent behaviour causing death or bodily harm include street racing, and impaired driving (“operating while impaired” is also a separate offence under the Code).

What are the Potential Consequences of Criminal Negligence Charges?

Anyone convicted of criminal negligence will have a criminal record, and will also lose their Ontario driver’s license for at least one year. Most people found guilty of criminal negligence while operating a motor vehicle receive a jail sentence, whether their actions result in bodily harm or whether they result in death. Sentences will vary depending on the severity of the injury. For criminal negligence causing bodily harm sentences can be up to 10-14 years in prison. For criminal negligence offences causing death sentencing can include a minimum of 3 years in prison and a maximum sentence of life in prison.

An Example of a Serious Sentence for Criminal Negligence

No details have been provided about the June 2016 crash on Hwy 400, and it is unclear what the truck driver may have been doing to contribute to or cause the incident. It may, however, be instructive to discuss another instance of criminal negligence causing death to get an idea of potential consequences he may face.

Nicholas Piovesan made headlines in 2010 after the death of three Sudbury, Ontario teens in a drunk driving incident. Piovesan, who was driving home from a bar while intoxicated, ran into the teens on the side of the road, after which he continued to drive until he ran into a building further down the road. He was convicted of three counts of criminal negligence causing death and sentenced to seven years in prison. He also faced a 10 year driving ban upon his release. To date, this is one of the harshest sentences ever given in Canada for criminal negligence causing death. In handing down the sentence, Justice Nadeau stated that Piovesan had showed a “high level of disregard for public safety”.

Piovesan was released in May 2015, and is serving the remainder of his sentence in the community. The Parole Board imposed a number of conditions upon his release. Piovesan must now abstain from alcohol and must refrain from entering any establishment where alcohol is the primary source of revenue (this includes bars, taverns, as well as beer and liquor stores). The 10 year driving ban began on the day of his release.

While it is unclear whether alcohol was a factor in the June 2016 Hwy 400 crash, the above illustrates the serious consequences that may come with charges of criminal negligence.

If you have been charged with a driving offence, call Affleck Barrison at 905-404-1947 or contact us online. We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experienced lawyers to handle your defence with diligence, strategy, and expertise.