Murder

‘Spiderman’ Has Murder Conviction Overturned

Written on Behalf of Affleck & Barrison LLP

 

Shawn Vassel (“Vassel”) has spent seven years in prison and has recently had his conviction overturned and a new trial ordered by the Ontario Court of Appeal.

In 2011, Vassel was convicted of second-degree murder in the death of a Mississauga man during a drug deal turned robbery that occurred in 2007.

WHAT HAPPENED?

Vassel was nicknamed the “Spiderman killer” after he scaled down 11 floors of a North York apartment building in his attempt to flee the police.

Vassel was confronted by police at his mother’s apartment on the 18th floor. He exited the balcony and began rappelling from one floor to the next, finally appearing outside of the building and was eventually caught by the police after a chase on foot.

Vassel was arrested and charged for the murder of Husam Dagheim (“Dagheim”). Dagheim was shot at point-blank range in the parking lot of the Coliseum movie theatre in Mississauga during an attempted drug deal.

Vassel testified at his trial that he “risked his life” in his attempt to escape the police because he didn’t want to go to jail for a crime that he alleged he did not commit.

Vassel was sentenced to an automatic life sentence with eligibility for parole at 16 years. He has an extensive criminal record, which includes robbery, drug trafficking, and assault.

THE TRIAL

At issue at Vassel’s trial was the identity of Dagheim’s killer.

The Crown’s star witness, a former friend of Vassel, Michael Agba (“Agba”), testified that he was present during the botched drug deal and witnessed Vassel holding the loaded gun before the murder took place. During cross-examination by Vassel’s lawyer, Agba was accused of lying in order to secure a plea deal. Agba was originally charged with murder, but pleaded guilty to manslaughter.

There were no other witnesses that could identify the shooter, including the deceased’s wife who was seated beside her husband in a minivan at the time of his death.

Vassel testified at his own trial that he was not at the crime scene. He also testified that he lent his friends his girlfriend’s rental car for the planned robbery at the drug deal. Vassel suggested that the real killer was either Agba or another friend who were both present during the drug deal.

Cellphone records were introduced as evidence to prove that Vassel was at a townhouse complex on Ridgeway Drive in Mississauga at the time of the killing.

THE APPEAL

Vassel appealed both his conviction and the period of parole fixed by the trial judge. Vassel’s counsel argued that the trial judge made several errors regarding the admissibility of evidence and his instructions to the jury.

One of the grounds of appeal argued by Vassel’s counsel was that the trial judge erred by instructing the jury to take caution and particular care with Vassel’s evidence at trial.

In a criminal trial, all parties are entitled to a properly instructed jury. An appellate court ,when assessing a judge’s jury charge, must take a functional approach to determine whether the instructions, read as a whole, provide the jury with the necessary tools to render a verdict.

The trial judge instructed the jurors to apply the same factors in assessing Vassel’s testimony as they would any other witness. Justice Tulloch specifically stated:

Mr. Vassel has given evidence that may tend to show that either Mr. David Grant or Mr. Agba was the shooter as he was not on at the scene of the crime on the night in question. You should consider that testimony of Mr. Vassel with particular care because he may have been more concerned about protecting himself than about telling the truth. Bear that in mind when you decide how much or little you can believe of and rely upon what Mr. Vassel told you about Mr. Grant’s involvement in deciding this case.

Vassel argued, on appeal, that the trial judge erred in instructing the jury about the manner in which the jury was to assess the testimony of the appellant (the person who applies to a higher court for a reversal of the decision of a lower court).

The Appeal Court agreed with Vassel’s arguments and held that the trial judge’s instruction was problematic in terms of its impact regarding Vassel’s alibi (Vassel’s primary defence).

The Court of Appeal held that this instruction to the jury by the Judge was one of several errors. The Court stated:

In these circumstances, the inclusion of this reference had the effect of adding a level of scrutiny to the alibi evidence that was unwarranted and constitutes error.

Given that the Court of Appeal determined that the trial judge made multiple errors, Vassel’s appeal was allowed, his conviction was set aside, and a new trial was ordered. Vassel can apply for bail as he awaits his retrial.

We will continue to follow developments in this case as it makes it way through the court system and will provide updates 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. We are available when you need us most.

Former Reservist Found Not Guilty in Fatal Shooting of Unarmed Man

Written on Behalf of Affleck & Barrison LLP

After six hours of deliberations, a Hamilton jury found Peter Khill (“Khill”), a former Canadian Forces reservist, not guilty in the fatal shooting of Jon Styres (“Styres”), an unarmed First Nations man from Ohsweken, Ontario.

WHAT HAPPENED?

In the early morning hours of February 4, 2016, Khill and his girlfriend were woken up by two loud, banging noises. When he looked outside, Khill saw that the lights were on in his 2001 GMC pickup truck.

Khill proceeded to grab a 12 gauge shotgun from his bedroom closet. He loaded it with two shells and ran outside in a t-shirt and boxers to confront Styres, who was trying to steal his truck. He came up behind Styres, who was leaning over the passenger-side seat, and shouted “Hey, hands up!”. Styres reacted by turning toward Khill with his hands sweeping forward in a motion that allegedly led Khill to believe that he had a gun. This provoked Khill to fire two close-range shots that killed Styres.

The Superior Court of Ontario was told that Styres did not have a gun that night and was only carrying a knife in his pocket.

The Crown prosecutor told the court that Khill was not acting in self-defence and that he “took the law into his own hands”. Khill could have stayed safe in his home and called the police when he realized his truck was broken into. Furthermore, the Crown lawyer argued that Khill’s action in shouting instructions caused Styres to jump in surprise, which caused Khill to feel frightened and open fire in response.

Assistant Crown attorney, Steve O’Brien, argued that Khill only followed the parts of his training that allowed him to slyly approach and kill an enemy. O’Brien stated that Khill “completely ignored, that civilian life is not a war zone, that soldiers must take time to genuinely assess the situation. There is not one law for ex-soldiers and one law for everybody else.”

Khill pleaded not guilty to a charge of second-degree murder. His lawyer argued that his actions were justified on the basis of self-defence as Khill feared for his life and believed that Styres had a gun. It was argued that Khill was only acting in accordance with his military training and experience. Khill’s lawyer, Jeff Manishen, stated:

This young man who lived to defend his country wanted to continue to defend his own life. That young man should be found not guilty.

JURY SELECTION

This trial raises some of the same legal issues that were raised during the controversial trial of Gerald Stanley (“Stanley”) who was accused of killing Colten Boushie (“Boushie”).

In the Stanley case, an all-white jury in Saskatchewan acquitted Stanley of second-degree murder in the death of Boushie, an Indigenous man. Many critics suggested that the all-white jury had reached the wrong verdict. Furthermore, some believed that the defence used their peremptory challenges to dismiss any potential jurors who appeared to be Indigenous. Peremptory challenges are given in equal number to both the defence and the prosecutor to allow them to disqualify any juror, without reason.

In the Khill case, the jury was screened for possible racial bias. Each candidate was asked a challenge for cause question: “Would your ability to judge the evidence in this case without bias, prejudice or partiality, be affected by the fact that the deceased victim is an Indigenous person and the person charged with this crime is a white person?”. Each of the 12 jurors responded “no”.

It was reported that none of the jury members were Indigenous, however, the jury did include at least one non-white individual.

Mere weeks after the Stanley verdict, the government introduced legislation to eliminate peremptory challenges (Bill C-75). We have previously blogged about this new Bill, which has passed second reading.

Khill’s lawyer stated that getting rid of peremptory challenges is “wrong-headed” and that bias can be avoided through the use of challenge for cause questions, such as the one used in the Khill trial. He went on to suggest that the federal government should review Bill C-75 and re-consider the elimination of peremptory challenges.

We will continue to provide updates regarding the status of Bill C-75 as information becomes available. 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 at 905-404-1947 or online. 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 phone service. We are available when you need us most.

Man Sentenced to Life in Prison After Killing Woman Who Begged for It

Written on Behalf of Affleck & Barrison LLP

Joseph D’Arcy Schluter (“Schluter”) pleaded guilty to a reduced charge of 2nd-degree murder and was sentenced to life in prison in the shooting death of Cindy Enger (“Enger”).

Schluter admitted to fatally shooting Enger in the head 8 times with a .22 calibre firearm on January 22, 2016 after she begged him to kill her.

Both Schluter and Enger expressed their love for each other in a cellphone video taken just minutes before Enger’s death. Enger faced the camera and admitted she wanted to end her life due to pain. Schluter can be heard off-camera telling her that he loves her and Enger replied that she loves him too.

WHAT HAPPENED?

On January 24, 2016, police were called to Enger’s home by her ex-husband after he tried for two days to drop off their son at her home. When there was no response, police forced their way inside Enger’s home and discovered that she was dead.

The Crown prosecutor read an agreed statement of facts in Court before Justice Alan Macleod. According to the statement, Enger had suffered from chronic pain possibly related to a car accident. She had attempted suicide on one previous occasion, but was not successful.

Schluter and Enger had previously dated and then began spending time together again as friends in December, 2015. On numerous occasions, Enger tried to convince Schluter to kill her and make it look like an unsolved homicide. Schluter refused and tried to change Enger’s mind.

Schluter first brought a gun to Enger’s home on January 8, 2016, but he was not able to carry out the plan that they had come up with. Enger continued to beg Schluter to end her life.

On January 22, 2016 on his way to see Enger, Schluter stopped to buy a movie ticket as an alibi. When he arrived at her home, he continued to try to convince Enger to abandon the plan. They proceeded to her laundry room where Schluter inserted ear plugs, said a prayer, and proceeded to shoot Enger in the back of the head several times. Then Schluter vacated the premises, drove to his father’s home and burned his clothing and put the gun away.

Schluter pleaded guilty to second-degree murder after a plea deal was reached between the Crown prosecutor and Schluter’s lawyer. The two lawyers proposed a life sentence without parole for a period of 10 years. The Judge accepted these terms.

In his sentencing submissions, defence lawyer Steve Wojick submitted that this “ is not a case of hate, it is not a case of revenge, it is not a case of jealousy, it is not a case of monetary gain.”

Crown prosecutor Mike Ewenson was sympathetic to the situation that Schluter was in, but felt that he should have reached out for help and sought assistance.

Justice Macleod called the case “a very tragic, tragic event”.

 WHAT IS MURDER?

In Canada, there is no offence more serious than an allegation of homicide. This offence carries with it some of the most serious penalties available, if convicted. Homicide is defined in section 222 of the Criminal Code as follows:

222 (1)          A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

According to the Criminal Code, culpable homicide is murder when the person who causes the death either means to cause death or means to cause bodily harm knowing that it is likely to cause death (section 229).

First degree murder is premeditated. In order to be convicted of first degree murder, Crown prosecutors must prove that the accused took the life of another in the following situations:

  • When it is planned and deliberate;
  • When a police officer or prison worker is murdered; or
  • When it occurs during the commission of certain offences, such as sexual assault, kidnapping, hijacking, terrorism, intimidation or certain gang-related activities.

According to the Criminal Code, second degree murder is defined as all other murder other than first degree murder. Second degree murder is a deliberate killing that occurs without planning.

Anyone convicted of murder, in any degree, must be sentenced to imprisonment for life. An adult convicted of second degree murder typically serves prison time of 10 years to 25 years until he/she is eligible for parole, which is at the discretion of the judge. This can be found codified in section 745 of the Criminal Code.

Following time served in prison on a sentence for murder, the individual will continue to report to a parole officer for the rest of his/her life. If any of the conditions set by the court for release on parole are not met, there is no hearing and the individual will return to jail.

If you require a lawyer for any type of homicide offence, or any other serious criminal charge, the lawyers at Affleck & Barrison LLP can help. Contact our office online or at 905-404-1947 to speak with one of our experienced lawyers who can handle your case. We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Jury Finds Lovers Guilty of First-Degree Murder

Written on Behalf of Affleck & Barrison LLP

After five days of deliberations, a Toronto jury have found Michael Ivezic (“Ivezic”) and Demitry Papasotiriou-Lanteigne (“Papasotiriou-Lanteigne”) guilty of first-degree murder in the death of Allan Lanteigne (“Lanteigne”).

The Crown prosecutor alleged that Ivezic and Papasotiriou-Lanteigne conspired to kill the latter’s spouse in the foyer of his Ossington Avenue home on March 2, 2011. It was alleged that the two accused were having an affair and plotted the crime to access the victim’s $2 million life insurance policy and depart for Greece to start a life together.

The two men will return to court on June 7, 2018 when victim impact statements will be read from Lanteigne’s family. They will also receive their sentence at that time. A first-degree murder conviction carries with it a mandatory sentence of life in prison with no chance of parole for 25 years.

WHAT HAPPENED?

Lanteigne was found dead in his home on March 3, 2011. There were no signs of forced entry and police did not find the murder weapon. An autopsy revealed that Lanteigne was beaten to death.

Lanteigne and Papsotiriou-Lanteigne were married on November 27, 2004. Their relationship “fizzled out” in 2008, although they continued to live together. At some point in 2009, Ivezic and Papasotiriou-Lanteigne began having an affair. Ivezic was even given a key to the house by Papasotiriou-Lanteigne.

By the spring of 2010, Papasotiriou-Lanteigne moved to Greece where his father lived. He continued to pay for airline tickets for Ivezic to visit him. These expenses were paid for by Lanteigne who was working two jobs at the time in Toronto. There were various emails read to the jury written by Lanteigne that indicated that he was tired of giving Papasotiriou-Lanteigne money. Lanteigne threatened to cut off his cheating spouse.

Papasotiriou-Lanteigne was arrested on a visit to Toronto in November, 2012, when he returned to Canada for court proceedings related to his claim for Lanteigne’s life insurance payout.

Ivezic was arrested by authorities in Greece and extradicted to Canada in June, 2013. Ivezic had left his wife and children and was living in Greece with Papsotiriou-Lanteigne as of May 2011.

Both men denied any involvement in the death of Lanteigne.

Crown prosecutors alleged that Papasotirious-Lanteigne “lured” Lanteigne to their home on the evening of his death. An email dated March 2, 2011 was read to the jury from Papasotiriou-Lanteigne requesting that Lanteigne call him in Greece as soon as he got home.

The key piece of evidence was DNA found under the fingernails of the deceased’s right hand belonging to Ivezic. The prosecution argued that this evidence was left as the victim fought for his life. Ivezic argued that his DNA was planted or ended up there as part of an “innocent transfer”. Ivezic suggested that maybe his DNA was transferred to Lanteigne when he and the victim had touched the same surface or when they shared lunch together days before the murder. However, there was no evidence at trial to suggest that Ivezic was friends with the deceased or that they had lunch together.

This case has lasted for many years with both accused challenging every aspect of the case, including allegations that the Crown prosecutors hid disclosure, tampered with police records and evidence, lied to the defence and the court and colluded with police. Furthermore, the accused had more than a dozen defence lawyers and court-appointed lawyers appear on their behalf since they were charged. There was even a period of time during the trial that Ivezic represented himself before the jury.

Following the victim’s death, Papasotiriou filed claims against two firms that insured his spouse as he was seeking $2 million. Papasotiriou is named as the sole beneficiary on the victim’s life insurance policy.

RARE REINSTATEMENT OF FIRST-DEGREE MURDER CHARGE

In September, 2014 following a preliminary hearing, an Ontario Court judge discharged Papasotiriou-Lanteigne, a Toronto lawyer, on the basis that there was not enough evidence to convict him.

A preliminary hearing is held in cases involving serious crimes where the prosecution must show a judge that there is a bare minimum of evidence to justify a full trial. This is often a chance for an accused’s lawyer to see what case the prosecution has against their client.

In October, 2014, the Ministry of the Attorney General signed a preferred indictment that reinstated the first-degree murder charge against Papsotiriou-Lanteigne.

This is a unique occurrence permitted by section 577 of the Criminal Code. The purpose of this section was described by Southin J.A. of the British Columbia Court of Appeal in the case of R. v. Charlie as follows:

Such a power is arecognition of the ultimate constitutional responsibility of Attorneys General to ensure that those who ought to be brought to trial are brought to trial.

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

In the meantime, if you have been charged with a criminal offence or have questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience. We are not afraid to fight for your rights and protect your interests.

Conviction Upheld for Toronto Cop

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal unanimously upheld the 2016 conviction of attempted murder and six-year jail sentence of Toronto Police Constable James Forcillo (“Forcillo”).

We have previously blogged about the trial court decision where a jury found Forcillo guilty of attempted murder in the death of 18-year-old Sammy Yatim (“Yatim”).

WHAT HAPPENED?

On July 27, 2013, police were called to the scene with reports about a disturbance aboard the 505 Dundas streetcar.  At trial, the jury heard evidence that Yatim had consumed the drug ecstasy before boarding the westbound streetcar at Yonge Street. He then proceeded to expose himself to women on the streetcar and withdrew a switchblade. The streetcar stopped near Grace Street and all passengers exited the doors.

Forcillo and his partner were the first officers to arrive and found Yatim alone on the streetcar. Forcillo fired nine shots from the street at Yatim after repeatedly requesting that the youth drop a small knife that he was holding as he stood aboard an empty streetcar. Forcillo fired two separate rounds of shots. Yatim was critically injured by the first round of shots, which caused him to fall on the floor of the streecar.

At trial, Forcillo faced two charges: second-degree murder for the first round of gunfire and attempted murder for the second round. The jury found Forcillo was justified in firing the first three shots at Yatim, and therefore not guilty of second-degree murder. However, the jury concluded that Forcillo was not justified in firing the second round of shots, and therefore convicted him of attempted murder.

THE SENTENCE AT TRIAL

Justice Edward Then sentenced Forcillo to six years in jail after the jury convicted him of attempted murder.

At the sentencing hearing, Forcillo’s lawyers argued that a minimum sentence should apply to a police officer on duty.

Justice Then stated that the second round of gunfire was “unreasonable, unnecessary and excessive” and contrary to Forcillo’s police training. He went on to explain that the sentence must match the crime. Furthermore, he expressed his belief that police officers should be held to a higher standard than members of the public and that Forcillo should have used de-escalation techniques to convince Yatim to release his weapon.

Forcillo had been granted bail pending the appeal decision, but he has been behind bars since late last year as a result of breaching his bail conditions. He has been charged with perjury and attempting to obstruct justice and is currently suspended without pay from the Toronto police.

THE APPEAL

In October, 2017, Forcillo launched an appeal. Forcillo requested that the Court of Appeal substitute a not guilty verdict or order a new trial. On appeal, Forcillo’s lawyers raised several questions about the trial and the sentence, including:

  • Whether the conviction for attempted murder can stand?
  • Whether the trial judge erred in excluding evidence regarding Mr. Yatim’s state of mind?
  • Whether the trial judge erred in sentencing Forcillo beyond the five-year mandatory minimum sentence?

This week, the Court of Appeal dismissed Forcillo’s appeal of both his conviction and sentence. In a unanimous decision, the Court held that the six-year prison sentence was “fit” considering the surrounding circumstances of the crime, including Forcillo’s failure to express remorse.

The Court of Appeal found that the jury’s verdict was reasonable as there were obvious differences between the circumstances when Forcillo fired the first set of shots and when he discharged the second set of gunfire (given that Yatim was hit and laying on his back during the second round of gunfire).

The Court of Appeal stated:

[Forcillo] knew from his training that Mr. Yatim did not pose an imminent threat to anyone merely by re-arming himself with a knife. He knew that he was not entitled to kill Mr. Yatim in these circumstances, yet he proceeded to fire six additional rounds fixed with that lethal intent.

Forcillo has the option of appealing this decision to the Supreme Court of Canada. In order to do so, Forcillo would have to demonstrate that there is an issue of national importance. Forcillo’s lawyers are currently considering whether to appeal. We will keep you updated as this matter continues to develop.

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

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

WHAT HAPPENED?

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

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

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

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

MURDER IN THE FIRST DEGREE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

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

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

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

WHAT DOES “NOT CRIMINALLY RESPONSIBLE” MEAN?

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

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

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

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

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

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

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

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

 

 

 

Jury Finds Gerald Stanley Not Guilty in Shooting Death of Colten Boushie

Written on Behalf of Affleck & Barrison LLP

After deliberating for 13 hours, an all-white jury in Battleford, Saskatchewan found Gerald Stanley, a farmer from rural Saskatchewan, not guilty in the 2016 death of 22-year-old Colten Boushie (“Boushie”), a resident of the Red Pheasant First Nation.

Widespread attention has surrounded this trial and the verdict reveals a deep racial divide in Saskatchewan. Some advocates believe that this case highlights a long standing need for more diversity on Canadian juries.

WHAT HAPPENED?  CONFLICTING ACCOUNTS

On August 9, 2016, Gerald Stanley (“Gerald”) and his son, Sheldon Stanley, (“Sheldon”) heard an SUV traveling down their gravel driveway leading to the family farmhouse, garage and shop.

Boushie, his girlfriend Kiora Wuttunee, and three other passengers (Cassidy Cross-Whitstone, Eric Meechance and Belinda Jackson) were inside the SUV. After a day of swimming and drinking they had a flat tire. They had initially pulled into a farm, where they tried and failed to steal a truck. They then drove onto Gerald’s property where they tried to start an ATV.

Gerald and his son saw two men jump back into the SUV, which quickly backed up and started to drive away. Gerald kicked the tail light of the SUV and his son smashed the front windshield with a hammer.

As the SUV drove away, it crashed into Gerald’s car. Gerald proceeded to his shed to grab a semi-automatic handgun as he was afraid for his son’s safety. He testified that he loaded two shells in the magazine. He then fired two warning shots.

Gerald testified he feared that the SUV had run over his wife. He then ran as fast as he could back to the SUV. When he heard the SUV engine rev, he went to the driver’s window to reach in with his left hand to turn off the ignition. He testified that the gun went off accidently at that moment, but he never pulled the trigger.

Jackson testified that she heard Gerald tell his son to “go get a gun”. She stated that Gerald retrieved a gun from the shop and she saw him shoot Boushie twice in the head.

Sheldon testified that he heard a gunshot as he walked up the deck leading to his house, and then another one as he entered the home. He then heard a third gunshot when he came out of the house. He saw his father by the SUV’s driver’s window with a semi-automatic pistol in one hand. Sheldon recalled his dad saying, “It just went off. I just wanted to scare them.”

Forensic investigation determined that Boushie was shot with a Tokarev semiautomatic pistol that was found in Gerald’s home.

DEFENCE AND PROSECUTION

In addressing the jury, Gerald’s defence lawyers emphasized the inconsistencies in the testimony of the witnesses from the SUV. The defence argued that there was no evidence that Gerald meant to kill Boushie. The defence took the position that it was a freak accident that ended in tragedy.

On the other hand, the Crown prosecutors argued that Gerald had fired two warning shots in the air and then walked up to the SUV Boushie was in and intentionally shot Boushie in the head. The Crown also explained to the jury that if they were not convinced that Gerald had an intention to kill Boushie, they must consider him guilty of manslaughter. It was argued that a verdict of manslaughter would be appropriate because Gerald acted unlawfully by carelessly using a firearm.

INSTRUCTIONS TO THE JURY

Chief Justice Martel Popescul addressed the jury following the lawyers’ closing arguments and set out the three possible verdicts:

  • Guilty of second degree murder;
  • Guilty of manslaughter; or
  • Not guilty.

The Crown bears the burden of proving guilt beyond a reasonable doubt. Both the Crown and defence agreed that it was established beyond a reasonable doubt that Gerald caused the death of Boushie. The real question put to the jury was whether Gerald caused Boushie’s death unlawfully by committing an assault or whether the shooting was an unintentional act that had unintended consequences.

Chief Justice Popescul instructed the jury that it was within Gerald’s rights to get his gun and fire warning shots into the air, but the jury must decide whether the actions he took after that continued to be lawful.

THE ROLE OF THE JURY

Every Canadian charged with a crime has the right to a fair trial before an impartial tribunal, this includes an impartial jury. Jury trials are made up of 12 adult laypersons from the community who are required to listen carefully to the evidence and arguments from both sides and unanimously agree on a verdict. Jury verdicts, representing a cross-section of Canadian society, are meant to symbolize that the community has spoken.

Each side, the Crown prosecutor and defence, has a number of peremptory challenges (the number varies with the offence charged). These peremptory challenges allow each lawyer to automatically disqualify potential jurors, no explanations required.

Lawyers can also “challenge for cause”, which involves a judge asking potential jurors pre-approved questions, including whether they may have a bias in the case.

After all of the evidence has been called and the lawyers have presented their arguments, the judge instructs the jury on the law and advises them on what must be taken into account when making their decision. The jurors then proceed to discuss the case amongst themselves and must come to a unanimous agreement on the verdict. After the trial, the jurors are not allowed to divulge the discussions that took place in the jury room.

If you have been charged with a serious offence, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We are available 24/7 to assist you when you need us most.

Ontario Court of Appeal Upholds Adult Sentence

Written on Behalf of Affleck & Barrison LLP

Ontario’s Court of Appeal has upheld an adult sentence against Christopher Ellacott who raped and murdered a senior citizen when he was 15 years old.

WHAT HAPPENED?

The crime was unsolved for almost three decades. The only evidence police had was a thumbprint found at the murder scene. A random test at a fingerprinting convention allowed police to link a thumbprint from the crime scene to Ellacott. Police then secretly obtained DNA samples from him, and testing confirmed the DNA matched semen found at the crime scene.

LIFE SENTENCE UPHELD

A jury in Sarnia, Ontario convicted Ellacott in April 2012. He was sentenced as an adult in March 2013. Ellacott was sentenced to life without parole eligibility for seven years and a lifetime supervision order.

Ellacott abandoned his conviction appeal, but appealed his sentence. Ellacott disputed the sentence by arguing that he should have been sentenced as a youth. A youth sentence would mean he would have received a maximum six years in jail and a four-year period of supervision.

The Appeal Court disallowed the argument that Ellacott had been less morally culpable because he had been only 15 years old when he killed his victim.

In upholding the original life sentence, the Court of Appeal found that the punishment given to Ellacott was reasonable and proportionate given the savage killing.

The Court said,

He committed an act of extreme violence against an elderly, vulnerable neighbour who until then had no known reason to fear him. … He sexually assaulted and murdered his elderly, vulnerable neighbour. He went on as though nothing had happened, avoiding justice for nearly 30 years. There is no explanation for his crime; no sense of what motivated him to have committed so heinous an act. 

IMPOSING ADULT SENTENCES ON YOUTHS 

Section 72(1) of the Youth Criminal Justice Act provides guidance to the Courts in imposing an adult sentence. It states:

72(1)  The youth justice court shall order that an adult sentence be imposed if it is satisfied that

  • the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
  • a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

Thus, in order to have the accused sentenced as an adult, the Crown had the onus to satisfy a two prong test:

  • establish the presumption of diminished moral blameworthiness had been rebutted; and
  • establish that a youth sentence would not be sufficient to hold the accused accountable for his behaviour.

The Court of Appeal held that in the Ellacott case the sentencing judge considered all of the required factors, including:

  • the seriousness of the offence;
  • circumstances of the offender;
  • the level of moral judgment demonstrated in the planning and implementation of the offence; and,
  • the youth’s role in carrying out the offence.

The Court of Appeal concluded that the sentencing judge had not failed to consider whether the presumption of diminished moral blameworthiness was disproven.

The Court of Appeal ultimately found that even though the sentencing judge had mistakenly used Ellacott’s testimony and denial of guilt as aggravating factors, the error was found to be of no consequence.   Ellacott had been properly sentenced even though the Superior Court Justice had erred when he used Ellacott’s testimony and his denial of guilt as aggravating factors in his decision. “[T]he sentence imposed is a proportionate sentence that achieves accountability for the serious crime the appellant committed.”

If you have questions about young offenders, sentencing or your rights, contact the Oshawa criminal lawyers at Affleck & Barrison LLP. We represent young people in Oshawa and throughout the Durham Region who are facing charges. We offer a 24-hour phone service for your convenience.  Contact us online or at 905-404-1947.

SCC Rules Pair Accused of an Honour Killing Should be Extradited to India

Written on Behalf of Affleck & Barrison LLP

In a unanimous decision issued today, the Supreme Court of Canada (SCC) upheld an extradition order that will send a mother and uncle accused of killing their daughter/niece to India.

The initial extradition order had been issued by then-Justice Minister, Peter McKay in 2014. The B.C. Court of Appeal ultimately stopped the extradition over concerns about whether the accused would be mistreated or even tortured if they returned to India.

Canada’s highest court overturned the Court of Appeal decision, finding that there was no justifiable basis for Canada not to extradite to India, and that it had been reasonable for the Minister to conclude that the pair would not be tortured, based on assurances from India.

What Happened?

The pair are accused of planning the murder of their daughter/niece, who was ambushed and killed by a group of men in India in 2000. The daughter and her new husband had been travelling by scooter when they were attacked by armed assailants, who forced the daughter into a car and drove away. She was found in a canal the next day with her throat slit. The new husband was seriously injured in the ambush and left to die.

The daughter and the husband, a rickshaw driver, had secretly married against the wishes of her family who had “promised” her to a much older, wealthy man.

At the time of the murder, the uncle and mother were Canadian citizens living in the Vancouver area. Indian authorities claimed that they ordered the attack from Canada and paid $10,000 CAD to have their plot carried out. A court in India has already convicted the pair of murder, and wants to try them on further charges of conspiracy to commit murder.

The Extradition Order

The judge who originally committed the pair for extradition to face the charges in India cited evidence that the mother and uncle had viewed the marriage as bringing dishonor to the family. Death threats had been made to both the daughter and the husband and phone calls had been traced from the pair’s B.C. home to some of the perpetrators in India around the time of the attack.

The Minister issued surrender orders that were conditional on several assurances from India, committing to the non-imposition of the death penalty, to meeting the safety and medical needs of the pair, and to permitting them access to Canadian consular officials.

The Court of Appeal

The pair, who are now 67 and 72 years old, fought against their extradition, arguing that they would be placed in substandard prison conditions if extradited, and would not have access to adequate medical care.

They further claimed that the Minister had not received reasonable assurances from India that their health and safety would be protected if they returned to India.

A majority of the Court of Appeal found that there was a “valid basis for concern” that the pair would be subject to violence, torture, and neglect of medical care if they returned to India. The Court held that the Minister’s decision to accept India’s assurances with respect to the pair was not reasonable, as he had not considered whether the assurances meaningfully addressed possible risks, or whether the assurances could actually be implemented by India.

The Supreme Court

The SCC disagreed with the Court of Appeal, finding that the Minister was aware of the health and safety risks and had “treated them seriously”. It had been reasonable for the Minister to conclude that the pair would not face a substantial risk of torture or mistreatment based on the assurances made by the Indian government in response to his concerns.

Furthermore, it was defensible for the Minister to find that the pair’s surrender would “not be otherwise unjust or oppressive”:

The gravity of the alleged offence in this case was particularly relevant to the Minister. Mr. Badesha and Ms. Sidhu are wanted in India for alleged criminal conduct of the most horrific nature — namely, participation in a conspiracy to commit the honour killing of a family member. The Minister noted that the alleged offence “engages, first and foremost, the interests of the Republic of India to prosecute” Mr. Badesha and Ms. Sidhu and stressed the “importance of seeing justice done on India’s territory”

Eleven other individuals were put on trial in India for the murder. At first, seven were convicted and four were acquitted, and then four more were further acquitted on appeal. Three are currently serving life sentences for their roles in the attack.

The mother and uncle have been free on bail while awaiting the SCC’s decision. We will continue to follow updates in this matter, now that a decision has been handed down.

In the meantime, if you have questions or have been charged with murder or manslaughter here in Canada, 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.