Murder

Conviction Upheld for Toronto Cop

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

THE SENTENCE AT TRIAL

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

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

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

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

THE APPEAL

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

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

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

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

The Court of Appeal stated:

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

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

WHAT HAPPENED?

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

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

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

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

MURDER IN THE FIRST DEGREE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

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

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

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

WHAT DOES “NOT CRIMINALLY RESPONSIBLE” MEAN?

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

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

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

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

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

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

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

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

 

 

 

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

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?  CONFLICTING ACCOUNTS

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

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

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

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

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

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

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

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

DEFENCE AND PROSECUTION

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

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

INSTRUCTIONS TO THE JURY

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

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

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

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

THE ROLE OF THE JURY

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

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

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

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

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

Ontario Court of Appeal Upholds Adult Sentence

Written on Behalf of Affleck & Barrison LLP

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

WHAT HAPPENED?

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

LIFE SENTENCE UPHELD

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

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

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

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

The Court said,

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

IMPOSING ADULT SENTENCES ON YOUTHS 

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

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

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

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

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

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

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

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

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

What Happened?

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

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

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

The Extradition Order

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

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

The Court of Appeal

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

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

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

The Supreme Court

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

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

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

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

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

In the meantime, if you have questions or have been charged with murder or manslaughter here in Canada, contact Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Man Found Not Criminally Responsible for Killing Police Officer Has Been Released

Written on Behalf of Affleck & Barrison LLP

A man who was found not criminally responsible for killing a Toronto police officer in 2011 by running him over with a stolen snow plow has been released from a psychiatric hospital and is living in Durham Region.

What Happened?

In winter 2011, Richard Kachkar was in the midst of a psychotic breakdown and behaving erratically when he stole a snow plow, barefoot and without a jacket on. After an hour of driving around Toronto, he was apprehended by Sergeant Ryan Russell, and ran him over with the plow as the Sergeant tried to stop him, killing the officer.

At trial, Kachkar’s defense lawyers conceded that he had killed Russell, but argued that Kachkar was not legally blameworthy (i.e.- culpable) because he had been influenced by a mental disorder.

The Crown (i.e- prosecution) acknowledged that it was more likely than not that Kachkar had been suffering from a mental disorder, but argued that it was not serious enough to meet the threshold of “not criminally responsible”. Instead, the prosecutor suggested that Kachkar had been influenced by his anger and frustration by the direction his life had taken.

In 2013, after a seven-week trial, a jury found Kachkar not criminally responsible for the crime and he was sent to the Ontario Shores Centre for Mental Health Sciences in Whitby.

Not Criminally Responsible

Currently, s. 16 of the Criminal Code recognizes the defense of not criminally responsible on account of mental disorder, referred to more often as NCR.

The NCR defense depends on the answer to two fundamental questions:

  • Did the accused have a mental disorder at the time the act was committed?
  • Did the mental illness render the accused either a) incapable of appreciating the nature of the act or b) incapable of understanding that the act was wrong.

In order for a jury or judge to deliver an NCR verdict, they must answer yes to the first question and to at least one of the two options in the second question.

During an NCR trial, it is up to the person who wants to rely on the NCR defense to prove that the accused is not criminally responsible- in this case, Kachkar’s lawyers. The standard of proof is a “balance of probabilities” (i.e.- more likely than not).

An NCR verdict is not a guilty verdict, but it is also not an acquittal. Rather, it recognizes that a person who did not have the mental capacity to have a criminal intent cannot be found guilty. An accused who is found to be NCR is treated as a patient, not a criminal, and are remanded to a mental health institution of hospital. The intention is not to punish them, but to rehabilitate and mitigate their future risk to the public. Eventually the goal is to slowly reintegrate the individual into the community.

If you or someone you know has become involved in the criminal process, or have questions about your rights, contact Affleck & Barrison LLP. We provide skilled criminal defence, including for murder, manslaughter, and other serious offences. Located in in Oshawa, we serve clients throughout Ontario in the Durham Region, the Greater Toronto Area and points east. Call 905-404-1947 or contact us online.

Supreme Court of Canada Will Not Hear Appeal of Shafia Honour Killing Case

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada (SCC) recently denied Hamed Shafia’s leave to appeal. Shafia (along with his father and mother) was convicted of murdering his three sisters and his father’s first wife.

Shafia had asked the SCC to hear his appeal, arguing that new evidence that established that he had been a youth at the time of the murders should not have been dismissed by a lower court. The SCC denied Shafia’s request, but provided no reason for the denial.

First Degree Murder

In January 2012, Shafia and his parents were found guilty of four counts of first-degree murder and sentenced to life in prison. The bodies of Shafia’s three older sisters and his father’s first wife from what turned out to be a polygamous marriage were found at the bottom of a canal in Kingston, Ontario in 2009.

The convictions were the culmination of a trial that made headlines for months. After only 15 hours of deliberations, the jury accepted the prosecution’s theory that the sisters had been murdered in an honour killing because they had shamed their conservative Muslim family, and the first wife had been killed as she had not produced any children, and was therefore “no longer needed”.

The Court of Appeal

Shafia had previously appealed to the Ontario Court of Appeal, claiming that new evidence had surfaced that showed that he had been too young at the time of the murders to be tried as an adult, and should have been tried separately.

The Court of Appeal found no reason to permit the appeal to move forward on the basis of the new evidence, as the evidence was “not compelling”.

In the application for leave to appeal to the SCC, Shafia’s lawyers argued that the Court of Appeal had not correctly applied the well-known “Palmer test” for admitting fresh evidence. Under the test, fresh evidence can be accepted by an appeal court where is it in the “interests of justice to do so”, and where the evidence is relevant, credible, and could possible modify the outcome of a previous decision. The new evidence should have been accepted by the Ontario Court of Appeal because it raised the very real possibility that a young person had been tried and convicted by a court that had no jurisdiction as a result of his age.

The Significance of the Alleged Age Difference

Shafia’s claim is based on the argument that he was actually 17 years old when his family members were killed, and not 18 as originally thought. As such, he should have been protected by the Youth Criminal Justice Act (Act), which applies to children and “young persons” (i.e.- anyone under 18).

Under the Act, a young person convicted of first-degree murder cannot serve more than six years in prison. Where prosecutors convince a judge to sentence such as youth as an adult, their eligibility for parole begins after 10 years, rather than the 25 years that applies to adults.

If Shafia could successfully establish that he had actually been 17 at the time of the murders he would either have a shortened prison sentence, or would be eligible for parole in the next few years. However, his opportunity to do so has been denied by Canada’s highest court.

If you are a youth that has been charged with a crime, or are the parent of a young person that has been charged with a crime, or if believe you have a matter that belongs in the youth criminal justice system, the Oshawa criminal lawyers at Affleck & Barrison can help. Contact us online or at 905-404-1947 to schedule a free consultation with one of our Oshawa lawyers representing young offenders.

 

Woman Who Insisted on Self-Representation Found Guilty of Murdering Husband

Written on Behalf of Affleck & Barrison LLP

At the culmination of a very strange trial in which the accused insisted on representing herself, a jury recently found Xiu Jin Teng guilty of the first-degree murder of her husband.

The Trial

Teng had originally been charged with committing an indignity to a body, after she told her landlord (upon the landlord locating the husband’s dead body in the closet) that her husband had died of a heart attack. The charge was elevated to first degree murder when the investigation revealed that Teng, who worked for London Life, had purchased a $2 million life insurance policy on her husband and had named herself the beneficiary.  Prosecutors argued that this had been Teng’s motive for the crime, and that the husband’s body was discovered by the landlord before she was able to dispose of it using various items she purchased at a hardware store.

Accused Insisted on Self-Representation

The jury was never told why Teng did not have a defence lawyer, though presiding judge Justice MacDonnell did inform them that Teng’s frequent allegation that she was being denied a lawyer was not true.

In fact, Teng had fired her first lawyer after several months, and subsequently went through three additional lawyers before finally deciding on a lawyer she seemed OK with in 2013. At that time, her trial was scheduled for September 2015. Just prior to the start of the trial, the lawyer informed the court that he needed to be removed as counsel due to the breakdown of his lawyer-client relationship with Teng.

Teng refused to have another lawyer take over and for the trial to proceed that November.  The next available trial date was not until October 2016. Teng continued to refuse to hire a lawyer, despite the court urging her to obtain counsel from Legal Aid.

Accused’s Request for Stay due to Delay Denied

Before her trial began in late 2016, Teng attempted to have her charges stayed due to unreasonable delay, arguing that almost give years will have passed between her arrest in 2012 and the foreseeable end of her trial.

In support of her request for a stay, Teng cited the Supreme Court’s recent decision in R.v. Jordan (an important recent case which we’ve previously blogged about) which sets a 30-month time limit between an accused arrest and the end of their trial. Teng argued that the delay had already had serious consequences for her, including the fact that she had been unable to see her young daughter (who now resides in China with the husband’s family after an order by the Children’s Aid Society- CAS). Teng believed that the CAS might not have made that decision had the trial proceeded faster.

Justice McDonnell did not stay the charges, finding that the period of time that had elapsed since Teng’s arrest was justified under the legal framework which had existed prior to the Jordan decision.

The Accused’s Outbursts and Inappropriate Behaviour Throughout the Trial

Throughout the trial, Teng regularly interrupted the proceedings, occasionally prompting Justice MacDonnell to order her removal from the courtroom, and placing her in a separate room with a video-link through which she could continue to watch the proceedings but not participate.

At various points during the proceedings Teng accused Justice MacDonnell of “fooling the jury”, “rejecting her constitutional right” to “speak for herself”, and later telling the Justice that he was “biased” and “not trustable” and an “evil judge”. On one occasion she shouted “you are wrong! You are wrong!” and “you do everything illegally in this courtroom. You are an illegal judge”.

In Justice MacDonnell’s final instructions to the jury, the judge reminded them that they were not to take Teng’s courtroom behaviour into consideration when making their decision.

It is never a good idea to represent yourself in criminal proceedings. If you have been charged with an offense and require legal counsel, contact the criminal defense lawyers at Affleck Barrison in Oshawa. We are located at 201 Bond Street East in Oshawa, within easy walking distance of the Durham Consolidated Courthouse. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times and accept cases on private retainers as well as Legal Aid. Do not hesitate to contact our firm online or at 905-404-1947 to discuss your charges

Senior Who Beat Fellow Long Term Care Home Resident to Death Gets Life in Prison

Written on Behalf of Affleck & Barrison LLP

We previously blogged about Peter Brooks, a 76-year old man who had been found guilty of second-degree murder after Joycelyn Dickson who was beaten to death at a long term care facility in Scarborough in 2013.  Brooks had used a cane to fatally injure the other resident. He was also charged with attempted murder following an attack on another elderly resident at the same facility.

Brooks has since been sentenced to life in prison, and will not be able to apply for parole for another 10 years, which is the minimum period of time following a second-degree murder conviction.

The Trial

Brooks’ defence lawyer had argued that Brooks was not criminally responsible for his actions. The defence relied on evidence by a forensic psychiatrist who testified that Brooks had been suffering from dementia and delusions at the time of the incident which had caused damage to his brain’s frontal lobe and left him unable to distinguish the consequences of his actions:

We all know that, regardless of what Peter’s belief was, there is nothing that can justify his actions. This is where Peter’s departure from society’s moral code becomes glaringly obvious. He is still unable to appreciate the moral wrongfulness of his actions.

The Crown had argued that despite Brooks’ mild dementia, he had deliberately and intentionally attacked the two residents for “sweet revenge” (which had been Brooks’ own words). Brooks’ belief that the women had been conspiring against him was based in reality as the women had complained to management on a number of occasions about violent or hostile interactions they had previously had with Brooks. It was the Crown’s position that there had been no evidence of “psychotic thinking that can be raised above suspiciousness”, that Brooks had threatened to kill the resident and then took steps to act on the threat, that he ultimately minimized his conduct and blamed the victims, and then lied to the jury about being unable to remember the murder and made up an account of being told to “beat” the women in a dream.

All second degree murder charges have an automatic sentence of life in prison. If you have been charged with murder or manslaughter, or have questions about other criminal charges and your rights, contact the Oshawa criminal lawyers at Affleck Barrison online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.