Murder

Sentencing Hearing Delayed for Man Who Killed His Mother While in ‘Cannabis-Induced Psychosis’

Written on Behalf of Affleck & Barrison LLP

Jason Dickout pleaded guilty to manslaughter last November.  His sentencing hearing was to begin in early September, but has been postponed to early next year pending the completion of a forensic assessment.  Dickout has remained in custody for almost a year since entering his guilty plea.

According to Dickout’s defence lawyer, psychological assessments completed shortly after his client’s arrest indicated underlying mental health issues and therefore the defence was willing to wait for a complete forensic assessment.  Due to a clerical error, the assessment will not be completed until the end of the year. 

WHAT HAPPENED?

In April 2017, Dickout spent the Easter weekend with his parents in northeast Edmonton.  After his father left for work and his mother went grocery shopping on Monday evening, Dickout “smoked two inhalations of dried marijuana” with his sister, Ashley.

Dickout began almost immediately “exhibiting signs of erratic and anxious behaviour, making other animalistic noises and talking nonsensically”.  Hoping to calm her brother down, Ashley gave him some prescribed cannabis oil, which he had never consumed in the past. 

Two hours later, Ashely called 911 to report that her brother was screaming and repeatedly stabbing their mother in the neck with a six-inch knife.

Police arrived to find Dickout naked from the waist down with blood on his face, t-shirt and his bare feet.  A knife covered in blood and a pair of men’s pyjama bottoms lay on the floor beside Dickout’s mother, Kathy Dickout.  Dickout was found behaving erratically and alternating between screams and hysterical laughing.  He said, “this was all for a laugh”.

Kathy Dickout died as a result of knife wounds, which had severed her jugular vein and carotid artery.

EMTs had to sedate Dickout and he was taken to hospital before he was taken into police custody and arrested.  He told officers, “I killed my mom.  She was so beautiful.  She was always thinking of me.  My mom deserves to live.”

Two doctors examined Dickout at Alberta Hospital and determined that he “experienced acute cannabis-induced psychosis, which was both self-induced and transient with the symptoms, with the symptoms abating within  a couple of days”. 

Two doctors examined Dickout and determined that he “experienced acute cannabis-induced psychosis, which was both self-induced and transient with other symptoms, with the symptoms abating within a couple of days”.

WHAT IS CANNABIS-INDUCED PSYCHOSIS?

Cannabis-induced psychosis is a possible side effect of cannabis consumption after recreational or chronic use of the drug.  Symptoms can include anxiety, illusions, visual and auditory hallucinations, impaired thinking, paranoia, an inability to focus, loss of touch with reality, disassociation, loss of motivation, disorganized thoughts, suspiciousness, grandiosity, catatonia, agitation and delusions.

Psychosis triggered by the use of cannabis typically begins suddenly and ceases soon after the psychoactive substances in the drug have left the body.  In some cases, there may be an underlying mental illness present that makes it more likely for the drug to cause psychotic symptoms. 

Research has proven that cannabis may cause a psychosis-like state in those that were already at high risk for psychotic disorders.  There may also be a genetic predisposition to cannabis-induced psychosis.  Researchers have found a gene called catechol-O-methyltransferase, which could make individuals more vulnerable to negative side effects of cannabis consumption.

The use of cannabis may also adversely affect medication compliance in those that are using prescription medication to treat psychotic illnesses. 

Studies have also proven that cannabis use in adolescence can be a factor that worsens the symptoms of serious psychotic mental illnesses, such as schizophrenia.

Most individuals who experience cannabis-induced psychosis are not dangerous.  However, there is a possibility that an individual who has lost touch with reality will engage in risky or paranoid behaviours.  They may also suffer from delusions of grandiosity which can lead to dangerous behaviours, such as reckless driving or jumping from a hazardous height. 

STUDY LINKS VAPED THC TO “DAMPENED” BRAIN ACTIVITY

New research from the University of Guelph found that rats exposed to a single dose of tetrahydrocannabinol, also known as THC (the vapourized psychoactive component of marijuana), experienced dampened brain activity lasting one week, similar to those suffering from schizophrenia and cannabis-induced psychosis.

The research team surgically implanted electrodes into the brains of eight healthy rats that had never been exposed to THC.  In a sealed rat chamber, the rats became exposed to pure vapourized THC or a saline solution.  The rats’ brain activity was then monitored. 

Lead author and assistant professor of neuroscience at the University of Guelph, Jibran Khokhar stated:

We found across all the regions [of the brain] the single exposure of THC changed the individual activities of these brain regions, but also altered how these regions communicate, or jive, with one another. 

Vaporized cannabis is gaining popularity and as more concentrates come on the market, we see an increase in wax and shatter – high concentrate forms of THC – and will probably be vapourized with these vape pens.

We will continue to follow Jason Dickout’s case and will provide updates in this blog when more 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 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.

Conviction Changed from First to Second-Degree for Man Who Planned to Kill his Ex

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has ruled that a Toronto man who planned to kill his estranged wife, but killed her uncle instead, should not be convicted of first-degree murder as the uncle was not the intended target.

At his trial, Willy Ching (“Ching”) was convicted by a jury of first-degree murder. The appeal court dismissed his conviction and substituted a conviction for second-degree murder. 

WHAT HAPPENED?

Ching has a history of mental illness and attempted suicide.  He had been on medication for depression, which was changed in October, 2009.  He was also prescribed sleeping pills and had attempted to overdose on them and had to be hospitalized for three days.

The marriage of Ching and Maria Ching dissolved on September 2, 2009 at which time Ms. Ching moved out of her home and went to live with her uncle Ernesto Agsaulio (“Agsaulio”).  Ching was unhappy with the end of his marriage and repeatedly tried to be in contact with Ms. Ching.

On October 25, 2009, Ching rented a car and drove to Agsaulio’s home to see Ms. Ching.  Ching’s daughters became aware that he was going to see Ms. Ching and called her to warn her.  She proceeded to call Ching and told him to go home.  He asked her to come outside so they could talk, and she refused.  She then advised Agsaulio that Ching was coming over. 

Ching rang the doorbell and Agsaulio opened the door, but refused to allow him to see Ms. Ching.  The two men spoke for a few minutes, then Ching pulled out a knife and hatchet that he had brought with him and began slashing at Agsaulio.  Agsaulio, his son and some neighbours managed to subdue Ching.

The police arrived and arrested Ching.  He gave a statement and stated that he only wanted to talk to his wife, he did not try to kill anyone, and repeatedly stated that the judge should give him the death sentence.

Later, the police informed Ching that Agsaulio had died and he would be charged with first-degree murder.  Ching went to use the washroom, began running toward the stairwell and attempted to fling himself headfirst over the railing.  A police officer grabbed his waistband and pulled him back.

Ching gave a second statement to the police the next day stating that he brought the weapons with him not to hurt anyone, only to threaten to hurt himself so that his wife would come back to him. 

THE APPEAL

Ching appealed his conviction to the Ontario Court of Appeal arguing that several errors were made in the trial judge’s instructions to the jury. 

The trial judge instructed the jury that if it concluded that Ching had planned and deliberated the murder of his estranged wife, this could change the murder of Agsaulio from second to first-degree murder as it was committed in the course of carrying out his plan to murder Ms. Ching.

A murder is considered first-degree murder when it is planned and deliberate.  The issue, in this case, is whether Ching could be found guilty of first-degree murder when the jury found that he had planned to kill his wife, but ended up taking the life of another person.

The Court of Appeal concluded that the trial judge’s instruction to the jury regarding the charge of first-degree murder was incorrect.  The appeal court wrote:

A finding that the appellant had planned and deliberated the murder of Ms. Ching and that Mr. Agsaulio’s murder was committed while carrying out that plan does not satisfy the statutory requirement for the first-degree murder. ..

There is a sound policy reason for concluding that an accused who intentionally kills person B when in the course of carrying out the planned and deliberate murder of person A will be guilty of second-degree murder, whereas an accused who accidentally or mistakenly kills person B when person A was the target will be convicted of first-degree murder. … This result reflects the fact that in the first case the actual killing may well have been impulsive while in the second, it was the result of a planned and deliberate act.

The appeal court rejected Ching’s arguments that the trial judge erred in his instructions to the jury regarding Ching’s attempt to jump over a staircase upon hearing about Agsaulio’s death, and instructions regarding conflicting statements made by Ching in his testimony and police interviews.

The appeal court dismissed Ching’s conviction for first-degree murder and substituted a conviction for second-degree murder. 

The offence of second-degree murder carries an automatic life sentence, with no chance of parole for 10 to 25 years.

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.

Life in Prison for Man Who Murdered His Pregnant Wife

Written on Behalf of Affleck & Barrison LLP

Nicholas Baig (“Baig”) has been sentenced to life in prison for the murder of his pregnant wife, Arianna Goberdhan (“Goberdhan”) (27 years old). 

Goberdhan’s family and friends are outraged that Baig was charged and sentenced for the murder of one person, not two.  Under Canadian law, Goberdhan’s unborn child is not considered a person and is therefore not the victim of a crime.

WHAT HAPPENED?

Goberdhan and Baig were married in November, 2016 and lived for a period of time with his parents in Pickering.  Goberdhan moved back into her parent’s home in January, 2017 as their relationship had deteriorated.

During the sentencing hearing, the court heard evidence of “vile” texts from Baig to his wife and was made aware that the police had been called on a few occasions.  In fact, a week before the murder, the police were called when Baig came to the Goberdhan’s home and broke down a door when he was refused entry.

On April 7, 2017, Goberdhan left her parent’s home in Ajax at 6:30 p.m. and drove to see Baig in Pickering.  Goberdhan called 911 at 9:42 p.m. that evening.  Although she did not speak to the operator, Goberdhan was overheard pleading with Baig to let her go home.  The 911 operator called her back when the call ended and she confirmed that she needed the police.  Security cameras recorded Baig leaving the residence at 9:44 p.m., and driving off in Goberdhan’s vehicle.

When police arrived on scene, they found Goberdhan deceased, with a large knife beside her body.  She was nine months pregnant at the time.  It was determined that Baig had stabbed Goberdhan 17 times.  Baig was arrested the following day and has remained in custody since his arrest.

Baig pleaded guilty to the second degree murder of Goberdhan. 

Given his guilty plea to second-degree murder, Baig faced a mandatory sentence of life in prison.  However, it was up to the judge to decide when he would be eligible to apply for parole.  The minimum period of parole ineligibility for the offence is 10 years. 

The Crown prosecutor recommended parole ineligibility for a term of 20 years given the “reprehensible nature of Baig’s offence”.  Prosecutor George Hendry stated in his submissions to the court:

In making this submission the Crown is recognizing this is above the sentencing range for domestic homicides.  The nature and circumstances surrounding the commission of this offence elevate that range.

On the other hand, Baig’s lawyer argued for a 12 to 15 year term for parole eligibility.

Superior Court Justice Jocelyn Speyer sentenced Baig to life in prison, with no chance of parole for 17 years.

FETAL HOMICIDE AND THE LAW

Under the Criminal Code (section 223(1)), a fetus becomes a human being when it has “completely proceeded, in a living state, from the body of its mother”.   

Given this definition, an unborn child cannot be the victim of a homicide and has no legal recourse.  In order to be charged with the murder of an infant, the child has to be born alive first, and then die.  Therefore, Baig was not charged or prosecuted for the death of his unborn daughter, who was to be named Asaara.

In accordance with the law, Justice Speyer sentenced Baig for the murder of Goberdhan only.  Goberdhan’s friends and family were not satisfied with the court’s decision on sentencing Baig.  They filled the courtroom and wore shirts with Goberhan’s image and the name of a new campaign entitled the “Phenomenal Women Project” aimed to establish new law that holds those who kill pregnant women accountable for the deaths of both the mother and child.

Goberdhan’s parents are petitioning for legislative changes.  They call the petition “Arianna’s Law”.  They are asking the government to “pass legislation that recognizes that, when an assailant in a commission of a crime attacks a pregnant woman and injures or kills her pre-born child, then the assailant may be charged with an offence on behalf of the pre-born child.”

Laws of this nature have been proposed in the past, but have all failed.  The concern is that these types of laws will pave the way to criminalize abortion.

The Goberdhans argue that the “law has to be defined in such a way that it’s a violence against women crime.  It has nothing to do …with pro-life or pro-choice.  It’s specific to violence.”  The proposed law is intended to deter abusive partners from harming pregnant women. 

We will continue to follow any updates in the law regarding the murder of an unborn child in Canada and will report on developments in this blog.

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.

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.

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

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

JUSTICE FREGEAU’S DECISION TO ORDER A STAY

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

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

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

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

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

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

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

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

Justice Fregeau wrote in his decision:

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

                        …

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

RECOMMENDATIONS MADE TO THE CORRECTIONAL SERVICES MINISTER

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

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

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

Mandhane wrote:

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

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

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

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

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

Eaton Centre Shooter Found Guilty of 2 Counts of Manslaughter

Written on Behalf of Affleck & Barrison LLP

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

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

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

WHAT HAPPENED?

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

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

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

WHAT WAS HUSBANDS’ DEFENCE ARGUMENT?

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

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

Stephanie DiGiuseppe, one of Husbands’ lawyers, stated:

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

WHAT WAS THE CROWN’S ARGUMENT?

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

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

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

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

WHAT IS MANSLAUGHTER?

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

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

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

WHAT HAPPENS NEXT FOR HUSBANDS?

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

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

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

Justice McMahon, in his sentencing reasons, stated:

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

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

WHAT HAPPENED AT BISSONNETTE’S SENTENCING HEARING?

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

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

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

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

WHAT WAS THE JUDGE’S RULING ON SENTENCING?

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

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

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

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

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

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

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

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

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

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

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

McArthur Pleads Guilty and Awaits His Sentence

Written on Behalf of Affleck & Barrison LLP

Last week, Bruce McArthur (“McArthur”) pleaded guilty to eight counts of first-degree murder in the deaths of eight men who disappeared between 2010 and 2017 in Toronto’s Gay Village.

At his sentencing hearing this week, an agreed statement of facts was presented to the court. In the statement, McArthur admitted that he intended to kill all eight men and afterward dismembered the men to avoid getting caught. He admitted that six were sexual in nature and that he kept some of his victims’ personal items as “souvenirs” and “staged” some of his victims.

AGREED STATEMENT OF FACTS

The following are some of the facts included in the Agreed Statement of Facts that were presented before Justice John McMahon in the Ontario Superior Court:

  • McArthur intended and caused each of the eight deaths;
  • Each of the murders was planned and deliberate and the murders were committed in the course of sexually assaulting the victims or committed while the victims were unlawfully confined;
  • The investigation found a duffle bag in McArthur’s bedroom containing duct tape, a surgical glove, rope, zip ties, a black bungee cord, and syringes;
  • To avoid detection, McArthur dismembered his victims’ bodies; and
  • McArthur disposed of the body parts at 53 Mallory Crescent in Toronto, where he worked as a gardener, placing some of the body parts in planters or in the ravine adjacent to the property.

ACCEPTANCE OF A GUILTY PLEA

According to the Criminal Code, a conviction or finding of guilt is not entered until the court accepts the plea.

Under section 606(1.1) of the Criminal Code, a plea of guilty can only be accepted if the Court is satisfied of the following:

  • That the accused is making the plea voluntarily; and
  • That the accused understands that the plea is an admission of the elements of the offence; and
  • That the accused understands the nature and consequences of the plea; and
  • That the accused understands that the court is not bound by any agreement made between the accused and the Crown prosecutor.

Therefore, for a guilty plea to be valid it must possess all of the following features:

  • Voluntary;
  • Unequivocal;
  • Information of the nature of the allegations; and
  • Informed of the consequences of the plea.

Justice McMahon began McArthur’s court proceedings last week by confirming that McArthur understood what is meant to plead guilty and warned him that he could not plead guilty to things he did not do just to get his case over with. McArthur replied “Yes”, when asked if he understood that he was giving up his right to a trial.

McArthur confirmed that he was not pressured by family, friends, lawyers or police officers to plead guilty.

Justice McMahon explained that McArthur would be sentenced to life imprisonment. He specifically asked, “So, you understand you’ll have to serve at least until you’re 91 before you could be eligible to apply for parole?” McArthur responded, “Yes, your honour.”

Once a guilty plea has been entered, there is no burden on the Crown prosecutor to prove the charge beyond a reasonable doubt. Furthermore, a guilty plea also terminates any procedural rights, rights of appeal or the ability to challenge the ruling of guilt.

PROSECUTORS SEEK CONSECUTIVE LIFE SENTENCES

Crown prosecutors have asked the Superior Court of Justice to sentence McArthur to two consecutive life sentences for the eight murders that McArthur committed. This means that McArthur will be behind bars until he is 116 years old, without a chance for parole.

Assistant Crown attorney Craig Harper (“Harper”) argued that McArthur’s crimes were heinous, he preyed on the vulnerable and “[h]e spread fear in a community that, regardless of its multiple strengths, struggles with a tenuous sense of safety.”

In support of his request for two consecutive life sentences, Harper also put before the court that permitting McArthur a parole hearing in 25 years would mean that the families of his victims may have to face him again in court.

McArthur’s lawyer, on the other hand, requested that the court sentence his client to serve all eight sentences concurrently. This would mean that McArthur would serve all the sentences at the same time.

It is the position of McArthur’s defence lawyer that due to his age it is not necessary to extend his parole eligibility beyond the minimum 25 years, which comes with a life sentence. This means he would not be able to apply for parole until he was at least 91 years old. He argues that a longer sentence will be “unduly harsh”.

Justice McMahon will soon make a decision on McArthur’s sentence and we will provide updates in this blog as the information becomes available.

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

Millard Files Appeal of Conviction in Father’s Death

Written on Behalf of Affleck & Barrison LLP

Dellen Millard is appealing his first-degree murder conviction and sentence for the death of his father, Wayne Millard.

WHAT HAPPENED?

In September, 2018, Millard was found guilty of murdering his father. In a judge alone court case, Millard was convicted of shooting his 71-year-old father, Wayne Millard, through his left eye as he slept on November 29, 2012.

Millard’s father’s death was originally ruled a suicide. Following Millard’s convictions in the deaths of Tim Bosma (“Bosma”) and Laura Babcock (“Babcock”), police began to re-examine Wayne Millard’s apparent suicide. Crown Prosecutors alleged that Millard killed his father in order to protect his inheritance.

During the investigation, Millard revealed to the police that his father was depressed and an alcoholic. Millard told police that he found his father dead in bed around 6 p.m. on November 29, 2012. He claimed that he last saw his father alive around noon the day before and spent the night at his friend Mark Smich’s house (his accomplice in the murders of Bosma and Babcock).

Phone records revealed that Millard travelled back to his father’s house in the early hours of the morning on November 29, 2012. The police came to learn that the gun found next to Wayne Millard was a gun purchased illegally by his son and had the younger Millard’s DNA on it.

Justice Maureen Forestall found that Millard had set up a false alibi by leaving his car, a cell phone, and his credit card at Smich’s house and he took a taxi to his father’s house.

MILLARD’S SENTENCE IN HIS FATHER’S DEATH

Following his conviction, Justice Forestall sentenced Millard to his third consecutive life sentence. Thus, Millard will serve 75 years behind bars before he is eligible to apply for parole. This is the longest term of parole ineligibility in the Canadian criminal justice system and the first time that this sentence has been handed down in Ontario.

At the time of sentencing, Justice Forestall stated:

Dellen Millard has repeatedly committed the most serious offence known to our law. He has done so with considerable planning and premeditation. In the murder of his father, he took advantage of the vulnerability of his father and betrayed his father’s trust in him.

In response to Millard’s lawyer argument that the consecutive sentence without parole eligibility is an unduly long and harsh judgement, Justice Forestall stated:

It is necessary to impose a further penalty in order to express society’s condemnation of each of the murders that he has committed and to acknowledge the harm done to each of the victims. It is not unduly long and harsh.

MILLARD’S APPEALS

Two days following Millard’s sentencing, his lawyer filed a notice of appeal with the court. According to Millard’s counsel, it will be argued that the verdict is unreasonable and the sentence is unconstitutional.

Millard will serve 75 years in prison before he will be eligible to apply for parole at 102 years of age.

Millard’s defence attorney argues that the consecutive sentence without parole eligibility is unduly long and harsh.

Millard is also appealing his first-degree murder convictions and sentences in the deaths of Tim Bosma and Laura Babcock.

Millard was found guilty of first-degree murder in the death of Tim Bosma by a jury in June 2016 after a 16-week trial. Bosma’s burnt remains were found in an incinerator on Millard’s farm. Millard is appealing his conviction. He filed a handwritten notice of appeal with 13 itemized arguments on appeal including the length of the proceedings, that the judge failed to sever his trial from that of his co-accused, that the judge failed to grant his request to move the trial out of Hamilton, that the judge allowed post-offence conduct evidence regarding the incineration of the deceased, that the judge allowed evidence which was seized contrary to his Charter rights protecting him against unreasonable search and seizure, and that the judge should have excluded evidence seized from electronic devices, amongst others.

Millard was also found guilty, by a jury of his peers, of killing his former lover, Laura Babcock, and burning her body in an animal incinerator. He filed an appeal following his sentencing arguing that his first-degree murder conviction was unreasonable and the life sentence was too harsh. He specially claims that the judge forced him to represent himself at the murder trial, despite the fact that Justice John McMahon repeatedly advised him to obtain a lawyer and his trial was adjourned twice to allow Millard to retain counsel.

We will continue to follow any developments in these cases as they make their way through the judicial system and will provide updates in this blog.

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

Supreme Court Declines Bid for Appeal by Toronto Cop

Written on Behalf of Affleck & Barrison LLP

The highest court in Canada, the Supreme Court of Canada, has denied the request for leave to appeal made by Toronto Police Constable James Forcillo (“Forcillo”) of his 2016 conviction of attempted murder and six-year jail sentence.

We have previously blogged about both the trial court decision, in which the jury found Forcillo guilty of attempted murder in the death of 18-year-old Sammy Yatim (“Yatim”), and the Ontario appeal court decision, which upheld the trial court decision.

WHAT HAPPENED?

The shooting death of Yatim on July 27, 2013 was recorded on video by a bystander showing Forcillo shooting Yatim in two separate intervals. Forcillo shot Yatim as he stood on the steps of an empty Dundas streetcar, and then resumed firing 5.5 seconds later as Yatim lay on the ground, apparently dying.

The police were called upon after Yatim exposed himself and handled a small knife on a streetcar, prompting both passengers and the driver to flee the streetcar.

Although a jury acquitted Forcillo of second-degree murder for firing the initial fatal shots, he was held guilty of attempted murder for pausing for 5.5 seconds and deciding to fire at Yatim six more times.

Forcillo was sentenced to six years in jail for firing the second set of shots which were found to be “unreasonable, unnecessary and excessive” and an “egregious breach of trust”. Forcillo proceeded to appeal his conviction and sentence, and was granted bail while awaiting his appeal.

In November, 2017, while Forcillo awaited the appeal of his conviction he was placed on house arrest bail and was living with his estranged wife, who was also his surety. During this time, SIU investigators went to his fiancee’s home to assess the apartment’s suitability. Forcillo answered the door and tried to explain that his presence at the home was only temporary. However, a lease agreement of the rental unit was found to be signed by Forcillo and his fiancée, and his name was found on the intercom directory in the apartment lobby. Forcillo was charged with failing to comply with his recognizance.

Forcillo’s bail was revoked and he was sent to prison to await the appeal of his conviction and sentence. During this time, new charges were laid against him alleging that he committed perjury by making a “false statement under oath in an affidavit” and obstructing justice by attempting to cause a judge of the Court of Appeal to act on an affidavit made under oath that contained omissions, misleading, and or false statement.

The charges for obstruction and breach of bail conditions were withdrawn after Forcillo pleaded guilty to perjury. Forcillo was sentenced by Justice Sandra Bacchus to six months in prison, on top of his existing 6 year jail term.

In April, 2018, Forcillo’s case was heard before the highest court in Ontario where his lawyers argued, in part, that the shooting should not have been divided into two separate charges as it was one continuous event. The Ontario Court of Appeal found that there were differences between the two volleys of shots by Forcillo, and therefore upheld Forcillo’s conviction and sentence.

Forcillo applied for leave to appeal to the Supreme Court of Canada. This was Forcillo’s last available remedy to overturn his conviction and jail sentence. The Supreme Court of Canada only hears approximately 11% of all cases that submit applications to be heard by the highest level of court in Canada. The court does not provide any reasons as to why cases are rejected at this level.

WHAT HAPPENS NEXT?

Forcillo officially resigned from Toronto Police Service on September 4, 2018.  He becomes eligible for day parole in July 2019 and eligible for full parole as of January 2020.

Forcillo’s criminal case has now ended with the Supreme Court’s decision not to hear his appeal, however, his legal battles are not yet over. There is still a coroner’s inquest to be held, a date for which has not yet been set. Also, Yatim’s parents have filed separate civil lawsuits against Forcillo.

Sergeant Dusan Pravica (“Pravica”), who arrived on the scene seconds after Yatim was shot, is also facing one count of misconduct under Ontario’s Police Services Act and awaits a hearing before the Toronto Police Disciplinary Tribunal. The Office of the Independent Police Review Director completed an investigation following Yatim’s death (and a complaint filed by Yatim’s father) and concluded that Pravica used unnecessary force, failed to assess the totality of the circumstances, and acted in haste when he Tasered Yatim as he lay on the ground. Pravica gave evidence at Forcillo’s trial that Yatim was still clutching a knife as he approached him and he felt that Yatim still posed a threat.

We will continue to follow Pravica’s case and await the results of the hearing before the Toronto Police Disciplinary Tribunal, and will report any developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact 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.