Murder

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.

‘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.