Legislation

Changes to Jury Selection Upheld in Ontario Court

Written on Behalf of Affleck & Barrison LLP

An Ontario Superior Court of Justice has ruled that the changes to peremptory challenges of jurors should be applied to jury selection beginning September 19, 2019. 

The decision in R. v Chouhan upholds the constitutionality of the new legislation found in Bill C-75 that removed the ability for lawyers to challenge potential jurors.

WHAT HAPPENED?

On September 19, 2019, Pardeep Singh Chouhan was scheduled to select a jury for a first-degree murder trial.  This was also the day that Bill C-75 came into force. 

The amendments set out in Bill C-75 reform the procedure for jury selection in the following three ways:

  1. The trial judge will be the one to determine whether the prospective juror is likely to decide the case impartially in the circumstances when either party has challenged the juror for cause.  Previously, the court used lay triers to make this determination.
  2. The ability to challenge prospective jurors by means of peremptory challenges by either party has been eliminated.
  3. The trial judge has been given the discretion to stand aside a juror for the purpose of maintaining public confidence in the administration of justice.

In court, Chouhan’s lawyers argued that the provisions of Bill C-75, specifically the elimination of peremptory challenges, violates sections 7 (the right to life, liberty and security), 11(d) (the right to be presumed innocent until proven guilty) and 11(f) (the right to trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment) of the Charter of Rights and FreedomsChouhan’s lawyers argued that the new procedures would breach their client’s right to an independent and impartial jury by giving the trial judge the discretion to make the determination in circumstances of either party challenging the juror for cause.

Justice John McMahon concluded that Bill C-75 does not violate an individual’s rights under the Charter.  Justice McMahon wrote in his decision:

The ability to exclude a potential juror based simply on their appearance, their look, or a person’s gut feeling, without furnishing a reason, is not transparent.  The elimination of the peremptory challenge does make the justice system more transparent, but without removing either parties’ ability to set aside potential jurors for articulate reasons.  The representativeness of the panel, the randomness of its selection and the ability for either party to challenge the process provide sufficient safeguards.

Justice McMahon held that an accused is not entitled to a jury that “reflects the proportionality of the population” or those of members of the same demographic group.  He concluded that there are safeguards in place to ensure that the jury remains independent and impartial, including the ability to screen prospective jurors for bias and the trial judge’s ability to excuse or reject prospective jurors for specific reasons.  He explained:

It appears that if either party can articulate reasons why a prospective juror would not be impartial, the judge would clearly have the ability to stand aside a prospective juror to maintain public confidence in the administration of justice.

Chouhan’s lawyers also argued that the changes to jury selection should not apply to those whose alleged offence occurred before Bill C-75 came into force.  Justice McMahon dismissed this argument and maintained that the new rules should be applied for every jury selected after they went into force, including Chouhan’s pending trial.

WHAT IS THE NEW LAW REGARDING JURY SELECTION?

Section 634 of the Criminal Code provided the rules for peremptory challenges.  Bill C-75 was established by the government in an effort to make juries more representative following the divisive acquittal of Gerald Stanley.  We have previously written a blog regarding the case of Stanley, who was charged with second-degree murder in the death of an Indigenous man, Colten Boushie.  In this case, there were no Indigenous members sitting in the jury.

Bill C-75 includes the removal of peremptory challenges from the jury selection process.  Peremptory challenges were a means by which lawyers for both the prosecution and defence could dismiss a certain number of prospective jurors, without any explanation.  The number of peremptory challenges allowed to a given party depended upon the seriousness of the crime, the number of jurors and whether there are co-accused.  Some believe that this process was used to ensure a particular composition of the jury.

Under the provisions of Bill C-75, lawyers have the ability to disqualify prospective jurors that they believe cannot be impartial.  However, under the new provisions, the judge makes the final decision.  This change is meant to address a growing concern that the jury selection process may discriminate unfairly against potential jurors. 

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.

Edibles Will Be Available Mid-December

Written on Behalf of Affleck & Barrison LLP

Health Canada has recently announced that Canadians can anticipate the ability to purchase a “limited variety” of cannabis-infused edibles, cannabis extracts, vaporizable concentrates and cannabis topicals in legal stores no earlier than mid-December 2019.

On October 17, 2019, edibles will become legal in Canada (exactly one year after the first recreational cannabis store opened), however it will take time for these new cannabis products to become available for purchase.

DETAILS REGARDING NEW CANNABIS PRODUCTS AVAILABILITY

According to a new report published by Deloitte entitled “Nurturing New Growth:  Canada Gets Ready for Cannabis 2.0”, it is estimated that the new cannabis products are worth approximately $2.7 billion annually (with edibles accounting for more than half of that amount).  A number of new products, such as beverages infused with cannabidiol, will likely not be available until 2020, with the majority of products making their way to market in 2021.  

According to the law, federal licence holders must provide 60-days notice to Health Canada of their intention to sell new cannabis products. 

According to the Health Canada news release:

…as with any new regulatory framework, federally licensed processors will need time to become familiar with and prepare to comply with the new rules and to produce new products.

The Honourable Bill Blair, Minister of Border Security and Organized Crime Reduction stated:

The amended regulations are the next step in our process to reduce the risks to public health and safety from edible cannabis, cannabis extracts and cannabis topicals and displace the illegal market for these products in Canada.  We are committed to working closely with the provinces and territories as well as industry in the weeks ahead to prepare for effective implementation of these new regulations.

REGULATIONS FOR ADDITIONAL CANNABIS PRODUCTS

The regulations for a single package of edibles, either food or beverage, can have no more than 10 milligrams of THC (the main psychoactive component found in cannabis).  This number is 10 times less than the amount regulated by the states that have legalized marijuana, namely California, Colorado and Washington.

There are many that are complaining that this regulation will result in a lot of packaging waste, as consumers are going to need to purchase more packages of the cannabis product.

The regulations also limits extracts to be capped at 10 mg of THC per capsule or 1,000 mg per package. 

Companies are also prohibited from using sweeteners, colourants or other ingredients that could “increase the appeal” for minors.  Whether a product would be appealing to children will depend upon its shape, colour, flavour, scent, and packaging. 

Products must only use plain packaging that is child-resistant, displays a standardized cannabis symptom and a health warning.  They must not display any claims about health benefits or nutrition.  Whether a product violates the regulations will be decided on a case-by-case basis.

According to the regulations, topicals (such as creams and make-up) will only be allowed 1,000 mg of THC per package.

Edibles and extract products are prohibited from containing nicotine, caffeine or alcohol, and must be safe to consume without refrigeration or freezing.  They must also not be associated with alcoholic beverages, tobacco products or vaping products. 

DANGER TO CHILDREN INGESTING EDIBLES

The Canadian Paediatric Surveillance Program has already reported that there have been 16 cases of “adverse events” affecting children under the age of 18 involving recreational cannabis between September and December, 2018.  One of these cases involved a seven-month old baby.  Of these 16 cases, 6 of them involve children consuming edibles and one case of accidental exposure.  All of the 16 cases involve cannabis products belonging to a parent or caregiver.

The Surveillance Program defines “adverse events” as all cases in which children are harmed by cannabis consumption.  This can include injuries that may arise from the use of cannabis by another individual who is under the influence of the recreational drug.

This paediatric research is a two-year study, which will conclude in October 2020.  It will monitor trends following the legalization of edibles in the fall. 

Christina Grant, a paediatrician and co-principal investigator, stated:

These early results highlight the urgency of prioritizing the needs of children and youth in policy and education initiatives, especially as edibles become legalized later this year.

Last May, the Montreal Children’s Hospital published a warning to parents that cannabis intoxication was on the rise and children who accidentally ingest cannabis may experience more severe symptoms than adults.  Between October 2018 and May 2019, the hospital had admitted 26 children after consuming cannabis.

Debbie Friedman, hospital trauma director, stated:

Just because cannabis is legal doesn’t mean it’s safe for consumption by children and it doesn’t mean it should just be left around where it’s easily accessible to a child who’s curious, who is very attracted to the colour of gummy bears or a chocolate bar or a hash brownie.

We will continue to provide updates regarding the legalization of cannabis in Canada as this information becomes available, and will blog about updates as they arise.

In the meantime, if you are facing a drug-related charge 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 to ensure that you have access to justice at all times.

New Changes to Animal Cruelty Laws in Canada

Written on Behalf of Affleck & Barrison LLP


A new law has been passed to crack down on animal cruelty in Canada.  Bill C-84, “An Act to Amend the Criminal Code Pertaining to Bestiality and Animal Fighting”, addresses many flaws that are found in the current Criminal Code with respect to animals in Canada.

WHAT IS BESTIALITY?

The new law, Bill C-84, was created partly in response to a 2016 Supreme Court of Canada decision (R. v. D.L.W.) that found a convicted sexual offender not guilty of bestiality related to charges arising out of sexual activity involving one of his stepdaughters and the family dog.

The majority of the justices of the highest court in Canada ruled that the Criminal Code provisions on bestiality did not effectively define which sexual acts with animals are illegal.  They essentially requested that the government revisit the definition.

Justice Thomas Cromwell, on behalf of the majority of the court, wrote:

Penetration has always been understood to be an essential element of bestiality.  Parliament adopted the term without adding a definition of it, and the legislative history and evolution of the relevant provisions show no intent to depart from the well-understood legal meaning of the term.  … Any expansion of criminal liability for his offence is within Parliament’s exclusive domain.

The new law specifically provides an update of the legal definition of bestiality to broaden the definition and include any contact for a sexual purpose between a person and an animal (previously there had to be evidence of penetration before charges could be made).

Anyone convicted of bestiality in Canada will now be added to Canada’s National Sex Offenders Registry and can be banned from owning animals. 

According to the CEO of Humane Canada, Barbara Cartwright:

Many studies have proven a clear link between animal abuse and child abuse, so adding convicted animal abusers to the National Sex Offenders Registry protects children as well as animals.

HOW WILL THE LAW CHANGE REGARDING ANIMAL FIGHTING?

The new legislation will prohibit promoting or profiting from fighting or baiting animals, as well as breeding or training animals to fight.  The law also prohibits the building or maintaining of any arena established for the purpose of animal fighting. 

Furthermore, the new law applies to anyone who “in any manner encourages, aids, promotes, arranges, assists, receives money for or takes part in the fighting or baiting of animals.”

There is currently a growing trend of animal fighting, which occurs covertly and online.  This trend is also increasingly linked to guns and gangs.

One incredibly dreadful activity is called “trunking”, whereby two dogs are sealed together in the trunk of a car.  The car is driven around as the dogs fight to the death.  Eventually the car is stopped, and the results of the dog fight is revealed to an online audience.

There are several other important elements found in Bill C-84 to protect animals in Canada that include:

  • Granting a judge the discretion to make an order banning an offender from owning or living with an animal for a period of time up to a lifetime ban;
  • Granting a judge the ability to order the offender to make financial restitution to a person or organization that cared for an animal which was harmed by an offence;
  • Repealing a section of the Criminal Code that required a peace officer to seize and destroy any animals found fighting in a cockpit.

“FREE WILLY” BILL ALSO PASSES IN CANADA

The government has also passed Bill S-203, “The Ending the Captivity of Whales and Dolphins Act”, often referred to as the “Free Willy Act”.  This law phases out the captivity of cetaceans (i.e. whales, dolphins and porpoises) in Canada, except for rescues, rehabilitation, licensed scientific research or in the cetaceans’ best interests.  

The new law also prohibits the trade, possession, capture and breeding of cetaceans.  Those acting in contravention of the new law may be fined up to $200,000.

The law does provide an exception for those that are taking care of an injured or distressed animal in need of assistance.  Also, researchers must obtain a license from the government in order to hold a cetacean for research purposes.

The Vancouver Aquarium and Marineland in Niagara Falls are the only two facilities in Canada that are allowed to house cetaceans and keep the animals that they have as long as they do not breed them.  The Vancouver Aquarium has a Pacific white-sided dolphin and Marineland has an orca and more than 50 beluga whales.

Lori Marino of the Whale Sanctuary Project wrote in her statement about the new law:

This is a major victory for cetaceans.  They are among the most cognitively complex of all animals.  Confining them to life in a concrete tank is truly unbearable for them.

If you have any questions regarding charges that have been laid against you or regarding 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.

Police Services Launch Project ERASE to Target Dangerous Drivers

Written on Behalf of Affleck & Barrison LLP

On May 10, 2019, Durham Regional Police, OPP and police services across Ontario launched their annual campaign “Project E.R.A.S.E.” to eliminate street racing from our roadways. 

The operation utilizes police in the air and on the ground to stop dangerous driving that endangers the safety of the participants, spectators and other innocent vehicles on the streets.

WHAT IS PROJECT ERASE?

ERASE stands for “Eliminate Racing Activity on Streets Everywhere”.  This campaign started in 1996 and includes 22 police services (some of which include York, Durham, Peel, Halton, South Simcoe, Barrie, Waterloo and Toronto), the Ministry of the Environment and the Ministry of Transportation.  These police forces work together and provide resources such as planes, helicopters, unmarked vehicles and specially trained officers aimed at cracking down on street racing, stunt and aggressive driving in Ontario.

High speeds on our roadways is extremely dangerous.  Driving in this manner makes it difficult to stop safely if there is an emergency, if a car pulls out in front of the driver, or if a child runs into the roadway. 

Excessive speed was directly related to 10,000 motor vehicle collisions on OPP-patrolled roads last year alone.  In 2018, OPP laid a total of 5770 street racing charges.   According to the OPP, there have been more than 750 stunt driving charges laid in the Greater Toronto Area this year.

York Regional Police Insp. Ed Villamere stated:

Our mission is to change aggressive driving behaviour through education, awareness and strict enforcement of both the Highway Traffic Act and the Criminal Code of Canada. … If you are hooked on street racing, rest assured you will be hooked up in handcuffs, your car will be hooked up and impounded, and your driver’s licence will be suspended.

WHAT IS STREET RACING AND STUNT DRIVING?

Street racing is illegal and is defined under the Ontario Highway Traffic Act (section 172(1)):

No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.

A regulation entitled “Races, Contests and Stunts” found in the Highway Traffic Act provides a list of behaviours that can encompass “stunt driving”.  Such behaviours that violate the law may include:

  • Exceeding the speed limit by 50 km/h or more;
  • Causing a vehicle to spin or circle;
  • Causing one or more wheels of a vehicle to leave the ground;
  • Driving without due care or attention;
  • Preventing another vehicle from passing;
  • Two or more vehicles driving side-by-side where at least one of the vehicles occupies a lane intended for oncoming traffic;
  • High speeds decreasing a driver’s ability to react to pedestrians and other motorists;
  • Loss of control of a vehicle because of speed or unsafe maneuvers;
  • Rollover hazards.

Unlike a typical speeding ticket, if you are charged with street racing or stunt driving, you will be subject to a 7 day administrative driving suspension, a 7 day vehicle impound and impound fees. 

If you are convicted of these offences, pursuant to section 172(2) of the Highway Traffic Act, there are even more severe penalties, which may include:

  • A fine ranging from $2,000 to $10,000; and/or
  • Imprisonment for a term of not more than six months; and
  • A driving suspension, which can last up to 10 years in some cases.

The consequences of street racing and stunt driving become even more serious if charges of careless driving or careless driving causing bodily harm or death are involved. 

If a driver is convicted of careless driving, he/she will face a fine of up to $2,000, six demerit points, and/or a jail term of six months, and a licence suspension of up to two years.

If a driver is convicted of careless driving causing bodily harm or death, he/she will face a fine of no less than $2,000 to the maximum of $50,000, six demerit points, and/or imprisonment up to two years, and a licence suspension of up to five years.

STREET RACES AND SOCIAL MEDIA

Some drivers communicate and coordinate illegal activities, such as street racing, through social media. 

OPP Supt. Tony Cristilli advises:

They run so-called qualifying races in municipalities around the GTA and often hold final races on our 400 series highways patrolled by the OPP.  Take it to the race track where it belongs.

Police are encouraging the public to report any information regarding street racing activity or videos found on social media of street racing or dangerous driving behaviours in Ontario.

According to OPP Supt. Tony Cristilli:

There are different forms of communication these days and social media is definitely one platform that’s used to communicate these activities.  Obviously that reaches a broad spectrum of people that are out there that’s on social media who could easily advise the police.

If you are facing a street racing or stunt driving charge or any another driving offence, please call the experienced criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or contact us online.  We offer a free consultation, and are available 24 hours a day, seven days a week.

B.C. Judge Finds Provocation Defence Unconstitutional

Written on Behalf of Affleck & Barrison LLP

A British Columbia Supreme Court judge has ruled that a 2015 amendment to the Criminal Code, which limits when an accused killer can use the defence of provocation, is unconstitutional.

Justice Douglas Thompson ruled that the amendment in question only allowed for the partial defence of provocation in murder cases if the victim committed an indictable offence (most serious of offences) punishable by a sentence of five or more years, which is contrary to the rights and freedoms set out in the Charter.

THE DEFENCE OF PROVOCATION

Stephen Harper’s Conservative government amended the definition of provocation prior to the 2015 election through the Zero Tolerance for Barbaric Cultural Practices Act.

This legislation changed the definition of provocation from “a wrongful act or an insult that is of such nature as to be sufficient to deprive an ordinary person of the power of self-control …if the accused acted on it on the sudden and before there was time for his passion to cool” to “conduct of the victim that would constitute an indictable offence …punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool”.

The intention of the government in amending the law was that a victim had to have committed a crime so serious against an accused to argue that the accused was provoked into killing, not merely upset by the victim.  However, Justice Thompson found that the law as it was written denied vulnerable victims of domestic abuse and racism the ability to claim provocation when they are incited to respond violently by behaviour that is not quite criminal. 

Justice Thompson wrote in his ruling:

It is an unfortunate but notorious fact that people of colour and members of other marginalized communities are sometimes subject to despicable and hateful rhetoric, and that women are sometimes subject to intense psychological abuse by their male partners. … Although the provoking behaviour does not constitute an indictable offence punishable by at least five years’ imprisonment, it is reasonably foreseeable that the targets of this conduct may respond violently.

WHAT HAPPENED?

Michael Philip Simard (“Simard”) was in an “on again, off again” relationship with Leanne Larocque since 2014.  On October 5, 2016, Simard, armed with an assault rifle, entered the home of Larocque and proceeded to kill her and Gordon Turner.   Simard called 911 and then proceeded to shoot himself before the police arrived.

Simard was charged with two counts of second-degree murder. 

Michael Philip Simard challenged the constitutionality of amendments to section 232(2) of the Criminal Code arguing that the wording infringed his section 7 rights to life, liberty and security of person under the Charter, preventing him from raising a partial defence to reduce his charges of second-degree murder to manslaughter.

Justice Thompson agreed with Simard’s Charter arguments and found that the section in question in the Criminal Code to be overly broad and arbitrary.  Justice Thompson stated in his ruling:

…it is clear that s. 232(2) engages s. 7 of the Charter.  Second-degree murder carries a mandatory minimum sentence of life in prison.  On the other hand, manslaughter has no mandatory minimum sentence (unless a firearm is used in the commission of the offence…).  Circumscribing the available of the partial defence affects the liberty of anyone who would previously have been able to advance a provocation defence.

Justice Thompson struck down the current wording, thus returning the law to its original wording.  However, he proceeded to convict Simard of second-degree murder.

The government’s objective in amending the definition of provocation in the Criminal Code in 2015 may have been to protect vulnerable women by ensuring that those who might attack them would not be allowed to argue the defence of provocation after the fact.  However, Justice Thompson ruled that the “amended provisions extend to behaviour far beyond the object of the legislation.  Provocation has never been confined to situations in which the victims are vulnerable women.”

Simard’s lawyer, Matthew Nathanson, considered Justice Thompson’s ruling to be significant as it was the first time a court had considered the new limits on the defence of provocation in Canada.  Nathanson stated:

The court found that the purpose of the law was to protect vulnerable women.  Clearly this is an important and appropriate goal.  However, the court also found that in certain situations the law would deny the defence of provocation to women who killed in the context of serious domestic violence.  In this way, a law designed to protect vulnerable women would deny them an important defence.  This is counterintuitive and unfair.  In constitutional terms, it means the law is arbitrary, overbroad, and had to be struck down.

Simard will return to court on May 7, 2019 for sentencing.  The offence of second-degree murder carries a mandatory sentence of life imprisonment.

If you have any questions regarding charges that have been laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  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.

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.

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.

Justice Tulloch Recommends Police Abolish Random Carding

Written on Behalf of Affleck & Barrison LLP

A new report entitled “Report of the Independent Street Checks Review“, completed by Ontario Appeal Court Judge Michael Tulloch, calls for a complete ban on “carding” by police throughout Ontario.

The report, which was commissioned by the previous Liberal government, came about following consultations with more than 2,200 individuals including representatives from 34 Ontario police services. The report specifically advocates for the widespread ban on carding. Carding has been shown to disproportionately target individuals of colour, including black and indigenous people.

WHAT IS CARDING?

Carding can be described as a street check where police randomly stop an individual to ask for identifying information in an effort to keep it in a police database.

This practice is considered unacceptable as the police do not have the authority to randomly or arbitrarily stop individuals and ask them to produce ID.

The practice of carding began in Toronto in 1957 when street checks were aimed at obtaining information on persons of interest to help detectives. Toronto police were given “Suspect Cards” to document and forward information regarding persons of interest to detectives. By 2015, this practice was formally called “Community Engagements”, and involved random stops of citizens and the collection of personal information, including physical appearance, address, and contact information. As time passed, investigative street checks expanded and police were given more discretion to stop people, including those who were not acting suspiciously. These street checks became a measure of police officer performance and they were incentivized to meet required quotas, with the bar for suspicious behaviour becoming lower and lower, and eventually dropped entirely.

 ONTARIO REGULATION 58/16

In 2016, the Liberal government implemented Ontario Regulation 58/16 under Ontario’s Police Services Act , which became effective January 1, 2017, to regulate carding.

Regulation 58/16 was aimed at stopping arbitrary carding practices by police officers, especially those based on race, and to clarify the rules surrounding street checks. Race is prohibited as constituting any part of a police officer’s cause for trying to collect an individual’s identifying information.

According to the Regulation, police officers were to inform those individuals randomly stopped that their participation is voluntary. It was also specified that officers were required to provide a receipt of the interaction.

Regrettably, Regulation 58/16 has been described as confusing and convoluted and often results in police officers avoiding street checks entirely to avoid accusations of racism for misinterpreting the regulation.

According to Justice Tulloch:

The improper practice of random carding led to the Regulation. The Regulation led many police officers to not conduct any street checks, whether improper or not. The lack of any street checks at all might have encouraged some types of crime to increase. 

The Regulation as it is drafted is a confusing and somewhat convoluted document to read. It was perceived by most stakeholders through my consultations – police and community members alike – as being too complicated and hard to follow. They felt it was written for lawyers, not police officers or community members. They wanted it to be simplified. Even lawyers who I have consulted with agree.

CONCLUSIONS MADE BY TULLOCH’S REVIEW OF THE PRACTICE OF CARDING

Following his extensive review, Justice Tulloch has concluded that police should not engage in carding or performing random street checks based on race alone or stopping people in order to fill a quota.

 According to Justice Tulloch,

There is little to no evidence that a random, unfocused collection of identifying information has benefits that outweigh the social cost of the practice. … Given the social cost involved with a practice that has not definitely been shown to widely reduce or solve crime, it is recommended that the practice of randomly stopping individuals to gather their identifying information for the creation of a database for intelligence purposes be discontinued.

Justice Tulloch did acknowledge that street checks are useful in cases where there are suspicious circumstances, or when police need to identify the identity of a missing person or crime victim.

Justice Tulloch, in his report, provided 104 recommendations on how to improve Regulation 58/16. He has recommended that the government take a harder line on street checks, that definitions such as “identifying information” and “suspicious circumstances” be tightened up, and that protections during vehicle stops be broadened. He has also suggested better police training in order for officers to understand the difference between legitimate street checks and illegitimate carding.  Justice Tulloch also recommended standardized data collection of police interactions and more local hiring.

It is uncertain, at this time, whether any of these recommendations will be implemented by the current Ontario Conservative government.

In response to Justice Tulloch’s report, Community Safety and Correctional Services Minister Sylvia Jones stated:

We continue to review and assess the recommendations made by Justice Tulloch. His report will inform our work, as we fix the Liberal’s broken police legislation. Our new police legislation will reflect a simple principle: racism and discrimination have no place in policing. You can count on us to ensure that our legislation enables police to protect the law-abiding people of Ontario.

We will continue to follow any developments regarding Justice Tulloch’s report as they become available, and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about any 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.

 

Harsher Drinking and Driving Laws In Effect Next Week

Written on Behalf of Affleck & Barrison LLP

In Canada, impaired driving is the leading criminal cause of death and injury. Police report that in 2016, there were more than 70,000 impaired driving incidents, including almost 3,000 drug-impaired driving incidents.

On December 18, 2018, Part 2 of Canada’s new impaired driving legislation will come into force. These reforms to the impaired driving provisions of the Criminal Code include mandatory alcohol screening, facilitating the proof of blood alcohol concentration, eliminating and limiting defenses that reward risk-taking behaviour, and clarifying Crown disclosure obligations.

MANDATORY ALCOHOL SCREENING

The new reforms will implement mandatory alcohol screening in Canada. According to Canada’s Department of Justice website, research shows that up to 50% of drivers with a blood alcohol concentration above the legal limit are not detected at roadside check stops. Furthermore, other jurisdictions have found a significant decrease in fatal road accidents where mandatory alcohol screening was enacted.

With these changes, police officers will have an approved screening device on hand to test a breath sample of any driver they lawfully stop, even without reasonable suspicion that the driver has alcohol in their body. Under the current law, police officers must have reasonable suspicion that a driver has alcohol in their body before doing any roadside testing. Drivers who refuse to provide a breath sample could be subject to a criminal offence.

The Honourable Bill Blair, Minister of Border Security and Organized Crime Reduction, stated:

Giving law enforcement the ability to demand a breath sample from anyone following a lawful stop will make it easier to detect impaired drivers and get these drivers off of our roads. Those who get behind the wheel after using alcohol, or a combination of alcohol and drugs, will face serious legal consequences. Do your part in keeping yourself and loved ones safe and don’t mix alcohol or drugs with driving.

PENALTIES FOR IMPAIRED DRIVERS

Starting December 18, 2018, although mandatory minimum terms of imprisonment have not changed, there will be new mandatory minimum penalties including fines, and some higher maximum fines.

The new legislation for first time offenders with high blood alcohol concentrations that have not caused bodily harm or death is as follows:

  • With blood alcohol concentration (“BAC”) of 80 to 119 mg of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $1,000;
  • With BAC of 120 to 159 mg of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $1,500;
  • With BAC of 160 mg or over of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $2,000; and
  • A first time offender who refuses to comply with a lawful demand for a breath sample is subject to a $2,000 minimum fine.

For alcohol-impaired driving that does not cause bodily harm or death, the new mandatory minimum penalties for a second offence include a mandatory minimum 30 days imprisonment, and for third and subsequent offences a mandatory minimum penalty of 120 days imprisonment.

Drivers will also face the maximum penalty of life imprisonment for those convicted of dangerous driving causing death, which is a stiffer penalty than the current laws of a maximum of 14 years in jail.

DURHAM REGIONAL POLICE RELEASE NAMES OF ACCUSED IMPAIRED DRIVERS

Beginning November 15, 2018, Durham Regional Police launched their Festive R.I.D.E. program. Police officers have been conducting R.I.D.E. checks in Ajax, Pickering, Whitby, Oshawa, and Clarington.

Since commencing this campaign, Durham Police have been releasing the names of those charged with impaired driving every Monday under “Hot Topics” on their website. Those drivers that have been charged are identified by their name, age, gender, city, and the specific charges laid against them.

Earlier this month, York Regional Police also reported that they have adopted a “name-and-shame” campaign to keep impaired drivers off of the roads. York Regional Police will now release the names of those charged with impaired driving every Monday for the foreseeable future.

Durham Regional Police reported that its fourth week of the Festive R.I.D.E. program has led to 20 drivers being charged with drinking and driving offences after stopping more than 4,100 vehicles. In total, Durham Police has charged 63 drivers with drinking and driving offences during the four weeks of the R.I.D.E. program (down from 72 drivers charged at the same time last year). They also report that 51 motorists registered a WARN on a roadside screening device and had their driver’s licence suspended for 3 days.

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

Proposed Legislation to End Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

Following the Ontario and British Columbia Superior Court decisions that found that the use of segregation was unconstitutional (which we have previously blogged about), a new piece of legislation has been introduced which proposes to overhaul how federal inmates are separated from the general prison population.

Public Safety Minister Ralph Goodale has introduced Bill C-83 to amend the Corrections and Conditional Release Act. These changes would eliminate solitary confinement and replace it with “structured intervention units” (“SIUs”). The SIUs will allow inmates to be separated from the general population if they are unable to exist safely with the other prisoners.

HOW WILL SEGREGATION IN PRISONS CHANGE UNDER BILL C-83?

As it stands today, inmates placed in solitary confinement are allowed two hours a day outside of their cell, but are not entitled to any human contact. Under Bill C-83, prisoners who are found to be at risk to themselves or others will be placed in SIUs.

Prisoners placed in SIUs will have access to rehabilitative programming, interventions, and mental-health care. They will be visited daily by a registered health care professional and be provided access to patient advocates. These inmates will be given at least four hours a day outside of their cell and at least two hours a day with “meaningful” human contact.

Bill C-83 also proposes to allow staff members to use body scan imaging technology as an alternative to body cavity searches to prevent contraband from entering prisons.

Furthermore, Bill C-83 includes provisions that background and systemic factors should be considered in all correctional decisions in cases involving indigenous inmates.

Correctional Service of Canada Commissioner Anne Kelly supports the proposed legislation and stated:

I believe these legislative changes will transform the federal correctional system while ensuring that our institutions provide a safe and secure environment that is conducive to inmate rehabilitation, staff safety and the protection of the public. They will also help ensure that our correctional system continues to be progressive and takes into account the needs of a diverse offender population.

LIMITATIONS OF BILL C-83

Bill C-83 does not address the time limits for segregation or the independent oversight of segregation decisions, which are both issues that the federal correctional ombudsman and rights advocates have been lobbying for.

Furthermore, if this bill passes, this legislation will have no effect on the use of solitary confinement in all provincial jails. These jails are made up of pretrial prisoners and those inmates serving sentences of less than two years.

Goodale believes that the appeals by the Canadian Civil Liberties Association in Ontario and the federal government in B.C. with respect to the constitutionality of current policies for solitary confinement that are scheduled to begin next month will proceed. But, he is hopeful that this new legislation will address the concerns of all current policies and make further litigation regarding solitary confinement unnecessary.

CLASS ACTION LAWSUIT

A lawsuit has been certified by a Superior Court Judge as a class action lawsuit in Ontario alleging that the Ontario government violated the rights of its inmates by placing them inappropriately in solitary confinement.

The $600 million legal action alleges that the provincial government has been negligent in utilizing segregation by isolating prisoners for weeks, months or even years.

The lawsuit includes inmates diagnosed with severe mental illnesses (i.e. schizophrenia or psychosis) who served time in segregation in provincial facilities since January 1, 2009. Inmates who were placed in solitary confinement for 15 days or longer are also included in the class.

The main issue in the lawsuit is “administrative segregation”. This takes place when inmates are isolated either to ensure their own safety or for the safety of others in the facility. Inmates are kept in tiny cells without any human contact for most of the day.

Conrey Francis (“Francis”) is the representative Plaintiff for this class action lawsuit. Francis is the individual who represents the entire class in the action.

Francis has spent several periods of time in prison since 1982, and was placed in solitary confinement. Francis has been diagnosed with post-traumatic stress disorder and suffers from extreme panic attacks. Francis alleges that his time in isolation worsened his mental health and he began suffering from suicidal thoughts and auditory hallucinations.

We will continue to follow the developments of Bill C-83, the appeals regarding the rulings that administrative segregations are unconstitutional, and the class action lawsuit commenced in Ontario and will report any updates in 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 contact Affleck & Barrison at 905-404-1947 or contact us online. We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges. For your convenience, we offer 24-hour phone services.