Murder

Alek Minassian Pleads Not Criminally Responsible for Van Attack

Written on Behalf of Affleck & Barrison LLP

The accused, Alek Minassian (“Minassian”), who has admitted that he planned the van attack and purposely drove onto the sidewalk with the intent to kill on April 23, 2018, has plead not guilty and is asking the court to find him not criminally responsible for his actions.

Minassian has been charged with 10 counts of first-degree murder and 16 counts of attempted murder.  He faces 10 mandatory life sentences and potentially 26 life sentences, if found guilty.

NOT CRIMINALLY RESPONSIBLE DEFENCE

Minassian’s trial has finally begun and is being conducted entirely online through Zoom video teleconferencing due to COVID-19 restrictions.

Both the Crown prosecutors and the defence have agreed upon a lengthy set of facts setting out the events that occurred on the day of the attack.  The only issue before the court is Minassian’s state of mind at the time of the attack.

Minassian’s defence is claiming that Minassian’s autism prevented him from knowing it was wrong to kill.

Section 16 of the Criminal Code codifies the defence of “not criminally responsible”.  This defence typically arises when an accused who is mentally ill, does not understand either:

  • The nature and quality of the act that he/she has committed, or
  • That the act was wrong.

As Minassian has raised a not criminally responsible defence, the onus shifts from the Crown prosecutor to prove its case beyond a reasonable doubt to the defence to prove on a balance of probabilities that more likely than not Minassian had a mental disorder that affected his behaviour and he didn’t understand that what he was doing was wrong.

If an individual is found “not criminally responsible” he/she will fall under the jurisdiction of the Ontario Review Board (“ORB”).  The ORB will hold an initial hearing shortly after the finding of not criminally responsible and additional hearings will be held once every year.  The Board is made up of five members including two lawyers, a psychiatrist, a psychologist and an appointed public member who determine based on an assessment and the accused’s risk to the public whether he/she should remain in hospital, be allowed to remain in the community or absolutely discharged.

AUTISM SPECTRUM DISORDER IS MINASSIAN’S DEFENCE

Minassian’s own lawyer, Boris Bytensky, admits that it is very rare to use autism as a mental disorder when pursuing a defence of not criminally responsible. 

Minassian was diagnosed with autism spectrum disorder at age five.  Autism is a neurological condition that affects how the brain functions.  Those living with autism often find it hard to connect with others, may have difficulty communicating, repeat certain patterns of behaviour and may show interest in a limited number of activities.

Minassian’s defence team will argue that he “only understood wrongfulness at the intellectual level” and lacked the ability to rationally choose whether his behaviour was right or wrong.  It is anticipated that the defence will be calling psychiatric experts to testify that Minassian had an “autistic way of thinking” that was similar to psychosis.

UNPRECEDENTED RULING BY JUSTICE MOLLOY

Justice Anne Molloy reluctantly agreed to the never before granted demand by Dr. Alexander Westphal to guarantee that his videos of the accused are never publicly released.

Dr. Westphal, retained by Minassian’s legal team to provide expert opinion on their client’s mental state at the time of the attack, is a forensic psychiatrist specializing in autism and a professor at Yale University. 

Dr. Westphal made it clear that he would not testify if the tapes of interviews with the accused were to be recorded via Zoom or released for publication or distribution.  It was his belief that the footage of Minassian may be an inspiration to some vulnerable individuals and serve “as a catalyst for further violence”.  Dr. Westphal also noted that he wanted to protect the autism community from misinformation. 

In justifying her ruling regarding the videos, Justice Molloy stated:

Either I do it or proceed directly to sentencing.   … I made the analogy of a gun to my head.  Another one that occurs to me is a ransom demand.  I know it’s wrong to give into those kinds of demands.  As a general proposition kidnappers should not be paid ransom but that said, if somebody kidnapped my child, I’d probably pay. …

That’s my ruling.  Not happy about it.  (It’s) the least wrong thing to do in the circumstances.

In ordinary circumstances, Dr. Westphal’s bold request would not be entertained by a Judge.  However, Dr. Westphal is an American living in the United States.  If he were living in Canada, Justice Molloy could simply send a police officer to bring a hostile witness to court at a specific date and time.   

Bytensky argued that he could not put forward the defence for Minassian without Dr. Westphal’s testimony and stated:

Mr. Minassian, without Dr. Westphal, will be asked to fight with both hands tied behind his back.  That’s really what it comes down to.  And while that may be popular with some people who are watching the trial, that is not the test your Honour has to be concerned with.

The videos in question have been described as high-definition, close-up recordings of Minassian’s face as he responds to questions by Dr. Westphal and describes the attack.

A number of media organizations opposed the sealing of the videos and argued that courts are to be open and transparent.  Further, it was argued that it was an infringement of the rights set out in section 2 of the Charter which guarantee freedom of the press.

We will continue to follow the Minassian trial and will report on any further developments in this blog.

If you have been charged with a criminal offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week. 

Supreme Court Rules New Changes to Jury Selection are Constitutional

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada ruled in the case of R. v. Chouhan that a law passed by the federal Liberal government that changed the jury selection process in an effort to diversify juries and prevent the rejection of potential jurors based on their race is constitutional.

This ruling is significant as there were 45 convictions in cases involving violent crimes that were awaiting the Supreme Court’s decision in the Chouhan case regarding the issue of whether the law could apply retroactively. 

WHAT WERE THE CHANGES IN THE JURY SELECTION PROCESS BROUGHT ON BY THE NEW LEGISLATION? 

Bill C-75, An Act to Amend the Criminal Code, was enacted in response to the public outrage over the 2018 trial of Gerald Stanley (“Stanley”), a white Saskatchewan farmer who was acquitted of second-degree murder by an all-white jury in the shooting death of an Indigenous man, Colten Boushie.  During Stanley’s trial, all visibly Indigenous jury contenders were challenged and excluded using peremptory challenges by Stanley’s defence lawyers.

As we previously blogged, this new legislation revised the jury selection practice by eliminating the right of Crown prosecutors and the defence lawyers to make peremptory challenges (to object to a proposed juror without stating a reason).  This Bill became law on September 19, 2019. 

The new legislation still allows for “challenges for cause”, whereby either the Crown or the defence can give reasons to object to a potential juror, though the objection does not have to be accepted by the judge.  The law also grants judges the discretion to stand aside jurors in order to protect public confidence in the justice system. 

PARDEEP CHOUCHAN’S CONSTITUTIONAL FIGHT

Pardeep Chouchan (“Chouchan”), a South Asian man who was charged with first-degree murder, was scheduled to select a jury on September 19, 2019 (the same day that Bill C-75 came into effect).  Chouchan argued that the changes to jury selection by Bill C-75 infringed his rights under the Charter of Rights and Freedoms.  Chouchan also maintained that his right to a fair trial depended upon his ability to use peremptory challenges to eliminate potential racists from his jury.

Chouchan brought a constitutional challenge regarding the amendments to the Criminal Code prior to the jury section process in his trial and prior to Bill C-75 coming into effect.  Chouchan also argued that the amendments should not apply retroactively.

In September 2019, the Ontario Superior Court of Justice dismissed Chouchan’s constitutional challenge.  Chouchan then proceeded to trial with a jury that was created under the new legislation and he was found guilty of first-degree murder.

Chouchan proceeded to appeal the constitutional decision to the Ontario Court of Appeal, who unanimously upheld the legislation.  Chouchan argued that eliminating peremptory challenges infringed his rights under the Charter.  The Court of Appeal disagreed with Chouchan’s arguments and found that the abolishment of peremptory challenges does not infringe Chouchan’s rights under the Charter.

However, the appeal court ruled that the trial court did not apply the new rules regarding juries appropriately.  The appeal court found that the elimination of peremptory challenges should not apply retroactively to all pending cases and should only apply to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019.  Thus, the new law should not have applied to the jury selection process in Chouchan’s case.  As such, Chouchan’s conviction was overturned by the appeal court with a new trial set for the fall of 2021.

THE DECISION BY THE SUPREME COURT OF CANADA

The Crown prosecutor appealed the Court of Appeal’s decision and Chouchan cross-appealed on the issue of the constitutional validity of the Criminal Code amendments. 

At the Supreme Court, counsel for Muslim, Black, South-Asian and Asian-Canadian legal groups intervened to put forth the argument that peremptory challenges allow those in racialized communities to realize that a fair trial is possible.  They argued that although there are “challenges for cause” and judges can eliminate jurors to protect public confidence in the justice system, neither approach is as effective in addressing presumed bias as peremptory challenges are. 

According to Janani Shanmuganathan, a lawyer speaking before the Supreme Court on behalf of the South Asian Bar Association:

When the juror doesn’t look the accused in the eyes right away, or looks away quickly, or doesn’t look at all, or just looks plain hostile, and we get that feeling, how can we articulate it in words that provide a legal basis for excluding a juror?

Although the judges of the Supreme Court of Canada did not provide their reasons, they ruled that the legislation is constitutional.  Furthermore, it was concluded that the appeal court should not have dismissed Chouchan’s conviction as the changes to the jury rules were merely procedural and could therefore apply retroactively.  Chouchan’s conviction was restored and he now awaits his sentence.

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 have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  We are available when you need us most.

DNA Solves 1984 Murder of Christine Jessop

Written on Behalf of Affleck & Barrison LLP

Toronto Police have announced that they have identified a suspect in the 1984 murder of nine-year-old Christine Jessop (“Christine”).

Investigators used a DNA investigative technique to identify Calvin Hooper (“Hooper”), 28 years old at the time of the murder, as the individual who sexually assaulted and stabbed Jessop to death.

Decades after her death, a DNA sample found on Christine’s underwear was determined to have belonged to Hoover.

THE DISAPPEARANCE AND MURDER OF CHRISTINE JESSOP

Christine went missing on October 3, 1984 in Queensville, Ontario.  She had plans to meet up with a friend that evening at a nearby park, however, she never showed up.  She was last spotted buying a pack of gum at a local convenience store.

Christine’s remains were found three months later on New Year’s Eve in a wooded area in Durham Region, approximately 56 kilometres from her home.  It was discovered that Christine had been raped and murdered. 

Police charged Christine’s neighbour, Guy Paul Morin (“Morin”), in 1984.  He was acquitted in 1986 before a new trial was ordered.  Following a second trial, Morin was found guilty and successfully appealed in 1995.  After serving 18 months in prison, Morin was exonerated due to the advancement in DNA testing.

Following the latest development in Christine’s murder investigation, Morin made the following statement:

I am relieved for Christine’s mother, Janet, and her family, and hope this will give some peace of mind.  They have been through a dreadful ordeal for 36 years since they lost Christine in 1984 …

I am grateful that the Toronto Police stayed on the case and have now finally solved it.  When DNA exonerated me in January 1995, I was sure that one day DNA would reveal the real killer and now it has.

HOW DOES GENETIC GENEALOGY WORK?

Genetic genealogy involves DNA analysis combined with matching a sample to a database of DNA to determine a familial relationship.  Investigators can upload a suspect’s DNA to a genetic lineage database, such as 23andme or GEDmatch.  They can then build a family lineage of other known samples that share the same DNA characteristics.  Investigators can search through related names and cross-reference them with their proximity to the crime scene, their relationship to the victim or their family. 

Traditional forensics can identify approximately 20 genetic markers.  In the Jessop case, Toronto Police sent a DNA sample to Othram, a lab in the United States which uses cutting-edge technology to identify hundreds of thousands of genetic markers that can help identify very distant relatives.  Unfortunately, there are no labs in Canada that specialize in genetic genealogy.

The DNA findings from the genetic genealogy test helped investigators in the Jessop case to create two potential family trees.  Investigators plowed through numerous detailed reports and documents and eventually discovered Calvin Hooper, who had a relationship with the Jessop family.

Staff Supt. Peter Code of Toronto Police Services explained:

Simply put, it is not a DNA match.  What it is, is it provides a potential and I must stress a potential family lineage from a DNA sample.  Then it is up to a police investigator to build from that potential family lineage.

Hoover’s wife was Jessop’s father’s co-worker.  According to Kenney Jessop, Christine’s brother, he and his sister played with Hoover’s children.

Hoover died by suicide in 2015. 

Although genetic genealogy is not widely used in Canada, this latest conclusion to the Jessop case may change how investigations take place.

According to Sean Sparling, a former police chief and present of the Investigative Solutions Network:

This is going to be a new emerging technology for Canadian law enforcement.  You’re going to see a lot of cold case units where they have unsolved homicides, unsolved serial rapist cases, they’re going to be turning to this technology.

Genetic genealogy has helped solve several cold cases in the United States, such as the identity of a woman killed near a Lake Tahoe hiking trail in 1982 and the exoneration of a man in California who was falsely accused of murdering a newspaper columnist and spent 14 years in prison.

Genetic genealogy has its fair share of critics warning that there are privacy risks involved in using this technology for investigating crimes.  Many individuals who use genealogical websites may not realize what they are consenting to when they sign up to use them online.  In some cases, when you consent to use a genetic database you are also consenting for your children and their unborn children. 

If you are facing criminal charges or have any other questions or concerns about your legal rights, please contact 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 their client’s rights.  For your convenience, we offer 24-hour phone services.  We are available when you need us most.

Judge Rules Adam Strong’s Statement to Police About Human Remains is Admissible as Evidence

Written on Behalf of Affleck & Barrison LLP

Adam Strong (“Strong”) is charged and currently on trial for the first-degree murders of Rori Hache (“Hache”), who went missing in Oshawa during the summer of 2017, and Kandis Fitzpatrick, who went missing in 2008.

Last week, Superior Court Justice Joseph Di Luca dismissed an application made by Strong’s legal team requesting that self-incriminating admissions by Strong not be admitted as evidence as police had violated their client’s Charter rights when he was questioned at his apartment on the night of December 17, 2017. 

APPLICATION TO DISMISS ADMISSIONS MADE TO POLICE

Strong’s application to the court, under section 10(b) of the Charter, argues that he was not given proper access to a lawyer before he admitted to police that there was a dead body in his residence. 

Justice Di Luca ruled that Strong’s admissions to police were admissible at trial as they were made voluntarily and made prior to his arrest for murder.

According to the evidence at Strong’s trial, police officers approached Strong’s basement apartment after receiving reports from plumbers working on clogged pipes at the house when they extracted 10 to 15 pounds of flesh from the drain in the house.  Officers asked Strong what he had been flushing down the toilet, at which point Strong confessed that there were human remains in his basement apartment.

Durham Officer Kevin Park testified at trial:

At first he kind of sighed and dropped his head.  He said ‘OK, you got me.  The gig is up. It’s a body.

Officer Park testified that when he knocked on Strong’s door he did not plan to arrest him, he was inquiring as to who the tenant was in the basement apartment and what the substance was in the clogged pipe. 

According to Officer Park, as he was putting Strong in the back of his cruiser when Strong said, “I want to spill the beans”.  He had already read Strong his right to counsel, advised him that he was under arrest for murder and cautioned him that anything he said could be used as evidence. 

While Officer Park was sitting in the front seat of his cruiser and writing his notes, Strong said “If you want to recover the rest of her, she’s in my freezer.  She’s buried, defleshed.” 

Strong has pleaded not guilty and his trial is expected to last three months. 

SECTION 10(B) OF THE CHARTER

According to section 10(b) of the Charter:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

Section 10(b) of the Charter contains two parts.  There is an information component –  to inform the arrested suspect that they have a right to a lawyer.  And there is an implementation component – to take steps to put the detained person in touch with a lawyer. 

The Supreme Court of Canada, in the case of R. v. Willier, set out the circumstances that evokes the use of section 10(b) of the CharterChief Justice McLachlin wrote:

Accordingly, 10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy.  The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage.

The Supreme Court case of R. v. Bartle, outlines the three duties imposed on police who make an arrest or detention:

  1. To inform the detainee of his/her right to retain and instruct counsel without delay and the existence and availability of legal aid and duty counsel. 
  2. If a detainee has indicated a desire to exercise his/her right to counsel, to provide a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances).
  3. To refrain from eliciting evidence from the detainee until he/she has had a reasonable opportunity (except in urgent and dangerous circumstances).

The right to retain counsel “without delay” is important as the detainee is to be afforded the opportunity to retain counsel no matter the time and place of the detention or whether he/she can afford to do so.  The police must inform the detainee of the availability of legal aid and duty counsel to assist if the detainee does   not have a lawyer.  The police must provide the detainee with a free 1-800 number to contact duty counsel and with a means to do so.

The opportunity to contact counsel may not only arise at a police station, in some cases where a phone is available upon arrest and there is no reason to delay access, the police must allow the detainee to use the phone to contact counsel.

One of the key components of section 10(b) of the Charter, which was an issue in Adam Strong’s application to the court, is that the police must refrain from trying to elicit further evidence and undertake further questioning of the detainee until he/she has had a reasonable opportunity to speak with counsel.

We will continue to follow Adam Strong’s trial and will report any developments that occur 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 have a reputation for effective results in defending all types of criminal legal charges.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. 

Kalen Schlatter Appeals Guilty Murder Verdict Claiming Unlawfully Obtained Evidence

Written on Behalf of Affleck & Barrison LLP

In March 2020, Kalen Schlatter (“Schlatter”) was convicted of first degree murder in the highly publicized death of Tess Richey (“Richey”), and sentenced to 25 years in prison with no parole.

Schlatter was tried before a jury for the first degree murder of Richey in Toronto on November 25, 2017.  Justice Michael Dambrot, in sentencing Schlatter, noted that his “appetite for violent sex” led him to strangle Richey only hours after they met. 

Schlatter has filed a notice of appeal regarding his conviction on the basis that the trial judge made errors in instructing the jurors and admitting evidence at the trial.

WHAT IS AN APPEAL?

In general, an appeal is a request made by a party to a higher court to review a lower court trial or other decision.  In Ontario, the Court of Appeal is the proper forum to review decisions of serious criminal matters.  An appeal from the decision of a trial court judge of the Superior Court of Justice in Ontario is typically heard before a panel of three judges at the Ontario Court of Appeal.

The first step in commencing the appeal process is to file a form called a notice of appeal.  The notice must state what is being appealed, i.e. the conviction, the sentence or both.  The notice must also briefly describe the grounds of the appeal or the mistakes that were allegedly made at the trial.

SCHLATTER’S APPEAL WILL FOCUS ON TRIAL JUDGE’S ERRORS

On appeal, Schlatter will argue that the trial judge gave “unbalanced” instructions to the jurors.  Furthermore, he alleges that the trial judge erred in admitting the evidence of two undercover officers who testified regarding their conversations with Schlatter from adjacent jail cells after his arrest.

In February 2018, Schlatter was arrested and taken to 13 Division where he was booked and placed in one of the cells in the police station.  Two undercover police officers were placed in the cells adjacent to him.  Schlatter had lengthy conversations with both officers over the course of his incarceration. 

At his trial, Schlatter asked the court for a ruling that his right to silence guaranteed under section 7 of the Charter was infringed when he made statements to undercover police officers in adjacent jail cells and that these statements should be excluded from evidence. 

The trial judge heard arguments from counsel for both parties and ultimately ruled that Schlatter’s right to silence was not violated and therefore allowed the statements made to the undercover officers to be entered at the trial.

Justice Dambrot explained the circumstances by which undercover officers can elicit information and how the officers interacted with Schlatter:

An undercover police officer may be placed in the police cells with a detained suspect and make observations.  If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.  But the undercover officer may not actively elicit information in violation of the suspect’s choice to remain silent.

Importantly, UCI did not ask the accused what he had done, but only why he was in police custody.  The natural answer would have been to say that the police thought he had murdered someone, not to give an account of his involvement.  … They did not encourage the accused to keep on telling them about his connection to Ms. Richey or his account of what happened.

UNDERCOVER OFFICER TESTIMONY AT TRIAL

At the trial, one of the officers testified from behind a large black screen to preserve his anonymity regarding his conversations with Schlatter (these conversations were not recorded).  

According to the evidence at trial, Schlatter boasted to the undercover officers about  his ability to pick up women.  He told the officers that he “likes a challenge” and that “sometimes you have to push the boundaries with women to see where it goes”. 

The officer testified:

Mr Schlatter said that what he did was something big…  He then asked us if we know a girl named Tess Richey.

Schlatter told the undercover officers that he had met Richey at a nearby nightclub and as the night progressed he ended up on the street with Richey and her friend.  The friend took a streetcar home and left Schlatter alone with Richey.  Schlatter told the undercoverofficer that he was making out with her in an alley.  He wanted to have sex with her, but she told him she couldn’t because she was on her period.  Schlatter said that Richey was falling over drunk and that he had her up against the wall at the bottom of the stairs.  Schlatter told the officers that they stopped kissing and Richey said she wanted to stay at the bottom of the stairwell, so he left on his own. 

We will continue to follow this criminal case as it makes its way to the Court of Appeal and will provide updates 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 have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Appeal Court Expunges the Defence of Self-Induced Intoxication

Written on Behalf of Affleck & Barrison LLP

Last week, amidst great controversy, the Ontario Court of Appeal released its decision in the cases of R. v. Sullivan and R. v. Chan regarding the application of the defence of self-induced intoxication. 

This significant decision declared that section 33.1 of the Criminal Code of Canada (“CC”) is unconstitutional and of no force or effect.

SECTION 33.1 OF THE CRIMINAL CODE

Section 33.1 of the CC established that if an accused caused his/her own intoxication and commits a violent offence, he/she cannot claim that he/she was too intoxicated to be found guilty of even general intent offences (i.e. assault and sexual assault).  This applies even if he/she was intoxicated to the point of automatism (the performance of an action unconsciously or involuntarily), even if his/her acts were involuntary or he/she lacked the mental state to commit the violent act.

In its latest decision, the Ontario Court of Appeal determined that this law breached “virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence”.

WHAT HAPPENED IN THE SULLIVAN CASE?

In the case of David Sullivan, the accused over-consumed prescription medication in an attempt to take his own life.  The medication left him in a state of extreme psychosis.  During the psychotic episode, he believed he had captured an alien and proceeded to stab his mother.

At trial, Sullivan was found guilty of the violent offence despite Sullivan’s contention that his intoxication was involuntary as it resulted from a suicide attempt. 

WHAT HAPPENED IN THE CHAN CASE?

Thomas Chan, a high school student, stabbed and killed his father and severely injured his father’s partner during a psychotic episode after consuming magic mushrooms.  Chan believed he was a deity and that his father was the devil. 

At trial, Chan also attempted to rely upon the defence of non-mental disorder automatism.  Given section 33.1, which prohibits the use of automatism as a defence in cases of violence when an accused’s intoxication was self-inflicted, this defence failed and Chan was convicted.

THE COURT OF APPEAL’S DECISION REGARDING SECTION 33.1 OF THE CRIMINAL CODE

The Court of Appeal found that section 33.1 of the CC violated the following sections of the Charter of Rights and Freedoms:

  1. The right to life, liberty and security of the person (section 7); and
  2. The right to the presumption of innocence (section 11(d)).

Under Canadian law, if a law violates a Charter right, in certain circumstances it can be justified by the Crown and upheld despite the violations.  In this case, the Appeal Court could not find benefits to the law, and instead found that the law was contrary to the principles of fundamental justice.

In its decision, the Court of Appeal wrote:

Put simply, the deleterious effects of s.33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence. …

With very little true gain, Parliament has attempted to cast aside the bedrock of moral fault.

The Court of Appeal held that a person must act voluntarily to commit a crime.  Although lawmakers attempted to help victims attain justice with the introduction of section 33.1 of the CC, the law in actuality violated an accused’s rights by making them responsible for violence they had no control over.  Justices David Paciocco and David Watt wrote:

As for recognizing and promoting the equality, security and dignity of crime victims, it is obvious that those few victims who may see their offenders acquitted without s.33.1 will be poorly served.  They are victims, whether their attacked willed or intended the attack.  However, to convict an attacker of offences for which they do not bear the moral fault required by the Charter to void this outcome, is to replace on injustice for another, and at an intolerable cost to the core principles that animate criminal liability.

The Court of Appeal ordered a new trial for Chan as he was only convicted of offences that included an element of assault and those convictions depended upon section 33.1.  On the other hand, the Court of Appeal acquitted Sullivan of all of his charges.

WHAT HAPPENS NEXT?

The Crown prosecutor has advised that it will be seeking leave to appeal these decisions to the Supreme Court of Canada.

The Women’s Legal Education and Action Fund has strongly expressed its frustration over this Court of Appeal decision and believes that this decision sends a message “that men can avoid accountability for their acts of violence against women and children through intoxication”.

However, the Canadian Civil Liberties Association has expressed that the concern that the floodgates have been opened to men arguing the defence of intoxication are unwarranted.  An accused must still prove that he/she was in a state of automatism, not merely drunk.

Cara Zwibel, Director with the Canadian Civil Liberties Association, stated:

This is a rarely used provision.  It’s not this widespread, systemic concern.

We will continue to follow the law as it evolves in response to the recent Ontario Court of Appeal decisions and will report any developments in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1047.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting their 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.

Trudeau Calls for More Gun Control in Canada Following Deadly Rampage in Nova Scotia

Written on Behalf of Affleck & Barrison LLP

In response to the recent tragic shooting incident in Nova Scotia, Prime Minister Justin Trudeau announced that his government will work towards strengthening gun control legislation in Canada as soon as possible.

It is the Prime Minister’s intention to introduce legislation to ban assault-style weapons across Canada when Parliament resumes. 

PM Trudeau stated:

The tragedy in Nova Scotia simply reinforces and underlines how important it is for us to continue to move forward on strengthening gun control. … We were on the verge of introducing new measures to restrict assault type weapons in Canada before Parliament was suspended because of COVID-19.

Public Safety Minister Bill Blair has also indicated that the federal government is working towards efforts to reinforce gun control, which will include new legislation to strengthen gun storage rules to prevent firearms from getting into the hands of those who could commit crimes, decrease smuggling of firearms across the border and introduce new laws to ensure that individuals that are at a significant risk of harming themselves or others do not have access to firearms.

FIREARMS ACT CHANGES OF 2019 ARE STILL PENDING

Bill C-71, an act to amend legislation in relation to firearms in Canada, was passed into law in May 2019 and provided approximately 30 amendments to the Firearms Act.  This legislation enhances background checks, compels retailers to keep records of firearms sales (dates, references, license numbers, firearm’s make, model, type and serial number) and varies the authorization to transport rules (a licensed gun owner must possess an authorization to transport document if they want to travel with a restricted firearm). 

Bill C-71 also requires that the police examine an applicant’s life history for potential red flags, including criminal charges, violence and spousal abuse.  However, these amendments are still pending. 

A spokesperson for Minster Blair advised that Bill C-71 provisions will come into force “once the necessary administrative changes have been made, funding has been approved and the associated regulations have been tabled in Parliament for review”.  In February 2020, Minister Blair advised that the enactment of C-71 amendments were ongoing and would be addressed in the upcoming budget.  However, the federal budget has been disrupted by the COVID-19 pandemic.

WHAT HAPPENED IN NOVA SCOTIA?

On April 18, 2020 at 10:26 p.m., RCMP officers arrived in Portapique, Nova Scotia following 911 calls reporting gunshots.  The officers found a man that had been shot.  He reported that as he drove out of Portapique he was shot by a man driving what looked like a police car towards the beach.

As more officers responded to the scene, they located several deceased individuals lying in the roadway and several structures fully engulfed in flames. 

The suspect at the time, Gabriel Wortman (“Wortman”), a 51-year-old denturist, was identified by several witnesses. 

On Sunday morning, a woman who had previously been in a relationship with Wortman emerged from the woods and explained that she had escaped from Wortman and hid in the woods until it was safe to emerge.  It seems that the deadly events began when Wortman assaulted this woman and she escaped.  She told police that the suspect was in possession of a fully modern and equipped replica RCMP vehicle, was wearing a police uniform and had several firearms, including pistols and long barrel weapons.

Wortman proceeded to go on a 14-hour killing spree, targeting individuals he knew and strangers in a string of small communities in central Nova Scotia.  There were 16 crime scenes along a 40-mile stretch north of the Bay of Fundy.  He set fire to five properties, including his own log cabin in Portapique. 

Wortman was traveling south near Shubenacadie, Nova Scotia, when he collided with a police cruiser.  He proceeded to exchange gunfire with Constable Heidi Stevenson, a 23-year veteran of the RCMP, and killed her.  He then set fire to both Stevenson’s vehicle and his own. 

Wortman then killed another individual and stole her silver Chevrolet Tracker.  When he finally stopped to fill up the car with gas, he was spotted by an officer in an unmarked cruiser.  Wortman was eventually killed following an exchange of gunfire with police at the gas station in Enfield, north of Halifax.

We have come to learn that Wortman had been previously convicted of assault in 2002 and received a conditional discharge.  He was ordered to undergo counselling for anger management and banned from possession of firearms, explosives and any prohibited weapons for nine months.  He was also ordered to pay a fine.

At this time, investigators continue to piece together details of Wortman’s rampage and how he was able to obtain the firearms used during his deadly attack, as well as the decals for his fake police car.  Police believe that one of the weapons can be traced back to Canada, but others may have been obtained in the United States. 

As information becomes available, we will continue to report changes in the law regarding firearms in Canada in this blog.

If you have been charged with a weapons offence or have any questions regarding your legal rights, please contact the experienced criminal defence 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.

New Trial Ordered for Homeowner Who Killed Car Thief

Written on Behalf of Affleck & Barrison LLP

In a unanimous decision, a Hamilton-area man who killed a car thief in front of his home has been ordered to stand trial on the charge of second-degree murder. 

The Ontario Court of Appeal has overturned Peter Khill’s (“Khill”) finding of not guilty.

On appeal, the court has ruled that the trial judge failed to instruct the jury to consider Khill’s conduct leading up to the moment he pulled the trigger and killed Jon Styres (“Styres”), a First Nations man.

In June 2018 (please see our blog regarding the trial), Khill, a homeowner and former army reservist, was found not guilty following a 12-day jury trial where he maintained that he fired his gun in self-defence.  An individual can use reasonable force to alleviate a threat to themselves or others under the laws of self-defence in Canada.

WHAT HAPPENED?

On February 4, 2016 at approximately 3 a.m., 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.

Given his military training, Khill proceeded to grab a 12 gauge shotgun from his bedroom closet.  He loaded it with two shells and ran outside 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.  Khill argued that this response provoked him to fire two close-range shots that killed Styres, almost immediately. 

At his trial, Khill told the court:

I felt that I was being threatened and that I wasn’t in control of the situation.  I needed to gain control of the situation and neutralize any threat that was there. … I thought my life was in danger and I think the right to self-defence is overlapping between military and civilian life.

The Crown prosecutor argued that Styres did not pose a reasonable threat and that Khill and his girlfriend should have called 911 and waited for police to arrive, rather than approach Styres with a loaded shotgun. 

At the trial, the jury learned that Styres did not have a gun that night and was only carrying a folding knife in his pocket.

Khill pleaded not guilty and his lawyer argued that the shooting was “justified” as Khill believed that Styres had a gun and he feared for his life.  Furthermore, it was argued that Khill was following his training as a military reservist and was acting reasonably to defend himself under the circumstances.  A Hamilton jury found Khill not guilty of the murder of Styres.

THE APPEAL

At the appeal, the Crown prosecutor argued that the trial judge made four errors.  It was argued that three of the errors involved instructions to the jury regarding self-defence and the fourth error was in regard to the admissibility of evidence from an expert.

The appeal court agreed with one of the Crown’s submissions of an error by the trial judge, allowed the appeal and ordered a new trial on the basis that the trial judge failed to appropriately instruct the jury.  Specifically, the trial judge failed to instruct the jury to consider Khill’s conduct leading up to the moment the trigger was pulled leaving them incompetent to evaluate the “reasonableness” of his actions.

The Appeal Court said:

Mr. Khil’s role in the incident leading up to the shooting was potentially a significant factor in the assessment of the reasonableness of the shooting.  The failure to explain that relevance and to instruct the jury on the need to consider Mr. Khill’s conduct throughout the incident in assessing the reasonableness of the shooting left the jury unequipped to grapple with what may have been a crucial question in the evaluation of the reasonableness of Mr. Khill’s act.  On this basis, the acquittal must be set aside and a new trial ordered.

Khill’s lawyer has stated that he is reviewing the appeal court decision and considering whether to make an application for an appeal to the Supreme Court of Canada. 

Khill is also facing an ongoing civil lawsuit for more than $2 million brought by Styres’ spouse and two young daughters.

We will continue to follow any updates regarding this case and will provide any new 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 defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise. 

Parole Board of Canada Under Scrutiny After Convicted Killer Allegedly Kills Again

Written on Behalf of Affleck & Barrison LLP

A federal investigation has been launched to examine the Parole Board of Canada following charges laid against a convicted murderer who had been out on day parole.  A Canadian parole board granted a convicted murderer supervised release on day parole and gave permission for him to avail himself of the services of prostitutes at a Montreal erotic massage parlour.  He has now been charged with second-degree murder and questions about why he was granted permission to seek sexual satisfaction have not yet been answered.

WHAT HAPPENED?

Eustachio Gallese (“Gallese”) was found to have beaten his wife with a hammer before stabbing her to death with two knives on October 21, 2004.  In 2006, he was convicted and sentenced to life in prison without parole for 15 years for the murder of his wife. 

Prior to this incident, in 1997, Gallese was also convicted of sexual assault against a romantic partner.

In 2007, the parole board concluded that Gallese was at “high risk” of violently re-offending. 

In 2016, the parole board reduced Gallese’s status of re-offending to “moderate” and further dropped it to “low to moderate” in 2019. 

In March of 2019, according to parole board documents, Gallese was granted supervised release on day parole at a halfway house based on his good behaviour.

Gallese was required to adhere to several conditions, including to report any relationships with women (sexual or otherwise) and he was forbidden to consume drugs or alcohol.

Gallese apparently discussed his concern about relations with women with his case workers.  Parole board records indicate the he was encouraged by his case workers to satisfy his “sexual needs” and was allowed to meet women “only for the purpose of responding to [his] sexual needs”.   

The parole board’s decision stated:

During the hearing, your parole officer underlined a strategy that was developed with the goal that would allow you to meet women in order to meet your sexual needs.  The hearing allowed us to realize you managed, and this with the approval of your case-management team, relations with women that the board considers inappropriate. 

The parole board found that the strategy “paradoxically constitutes a worrying and significant risk factor” and ordered that Gallese be re-evaluated for the terms of his parole in six months.

Two months prior to Gallese’s re-evaluation date, he turned himself in to police and told them where to find the body of Marylene Levesque (“Levesque”).  Her body was found in a hotel room in Quebec City’s Sainte-Foy neighbourhood.

Levesque had been working out of an erotic massage parlour.  Gallese had been banned from entering the massage parlour as he had been violent with other women, therefore he and Levesque met at a hotel.

Gallese has been charged with second-degree murder.

THE GOVERNMENT’S REACTION TO THE TRAGEDY

Last week, the House of Commons unanimously passed a motion to condemn the Parole Board of Canada’s decision with respect to Gallese, which ultimately led to the death of Levesque by an inmate on day parole.

The motion also passed to allow the Public Safety Committee to conduct hearings and review changes made in 2017 to the parole board’s nomination process and recommend measures that need to be taken to avoid another “tragedy”.

Public Safety Minister Bill Blair has also confirmed that a federal investigation has begun “to deal with any issues of misconduct, negligence or error, but also to examine our policies, procedures and training that direct the work of the Parole Board and others involved in these decisions”.

Conservatives Pierre Paul-Hus and Glen Motz also condemned the parole board’s decision and stated:

[A] convicted murderer, with a history of domestic violence, out on day parole so that he could meet women in order to address his sexual needs. … The Liberal appointed Parole Board members demonstrated a clear lack of judgment in this case and must face consequences.

THE CRIMINALIZATION OF SEX WORK

This latest example of violence against a sex worker has reignited the debate regarding the criminalization of sex work in Canada. 

Those that advocate for the decriminalization of sex workers believe that the violence facing sex workers is driven by the devalued status of sex workers and their lack of police protection.  Erotic massage parlours must operate illicitly because clients and those that run, manage and work in the establishments (including security guards) are criminalized under Canadian law.  If violence does occur in these establishments, they are unable to report it to authorities due to the risk of criminal charges. 

We will continue to follow the developments regarding the federal investigation and review of the Parole Board of Canada, as well as any government reaction to those that call for the decriminalization of sex work in Canada, and will report any updates 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.  We are available when you need us most.

Criminal Convictions are in Jeopardy Following Clarification of New Rules For Jury Selection by the Appeal Court

Written on Behalf of Affleck & Barrison LLP

A recent ruling by the Ontario Court of Appeal in the case of R. v. Chouhan, regarding how jury selection changes should be applied, could require new trials for those recently convicted in Ontario.

Pardeep Singh Chouhan (“Chouhan”) challenged the new rules for jury selection that were set out in Bill C-75 at the court of appeal.  The jury selection process in Chouhan’s first-degree murder trial took place on the same day as the changes to the legislation came into force.  The appeal court upheld the constitutionality of the new rules, however, ruled that the trial judge did not apply the new rules correctly.

WHAT CHANGES OCCURRED AS A RESULT OF BILL C-75?

As we have previously blogged, following the acquittal of Gerald Stanley, who was charged with killing a 22-year-old Indigenous man, Bill C-75 was introduced to modify the jury selection process in Canada.  The changes to jury selection were intended to make juries more representative.

The reform of the jury selection procedure under the new legislation, which came into force on September 19, 2019, is as follows:

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

WHAT HAPPENED AT CHOUHAN’S TRIAL?

Chouhan was charged with first-degree murder in the 2016 shooting death of  Maninder Sandhu.  Chouhan was scheduled to select a jury for his murder trial on September 19, 2019, the same day that Bill C-75 and the changes to the jury selection process came into force.  We have previously blogged about this Superior Court decision.

At that time, Chouhan’s lawyers requested that the court use the previous jury selection rules as the new jury selection process violated Chouhan’s Charter rights.  The presiding judge rejected the defence arguments that doing away with peremptory challenges infringed Chouhan’s constitutional right to be tried by an independent and impartial jury.  Ontario Superior Court Justice John McMahon ruled that the new changes to the jury selection process should apply to every jury selected after the legislation came into force and for those cases in the system where the accused had already opted for a jury trial.

WHAT HAPPENED AT CHOUHAN’S APPEAL?

Chouhan’s case made its way to the court of appeal, at which point the unanimous court ruled that the new rules were constitutional and did not infringe Chouhan’s Charter rights.  However, the three judges of the appeal court held that the trial court did not apply the new rules appropriately.

Writing on behalf of the appeal court judges, Justice Watt wrote:

With respect to the temporal application of the amendments, I decide that the abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019.  …[T]he amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019, irrespective of when the right vested.

[N]ot all accused charged with an offence before September 19, 2019 have a vested right to a trial by judge and jury under the former legislation.  For the right to have vested, the accused must have, before September 19, 2019:

(i) been charged with an offence within the exclusive jurisdiction of the Superior Court;

(ii) been directly indicted; or

(iii) elected for a trial in Superior Court by judge and jury.

The Court of Appeal allowed Chouhan’s appeal, set aside his conviction and ordered a new trial on the indictment.

The Ontario government can appeal this decision to the Supreme Court of Canada.  We understand that the Crown is currently reviewing the appeal court decision and we will provide an update in this blog when information regarding the government’s decision on an appeal becomes available.

We will continue to follow the affects of the Chouhan decision on legal cases and will provide updates in this blog.  We can advise that only hours after the appeal court decision in the Chouhan case, two cases being heard in Toronto’s Superior Court (a murder charge and a sexual assault case) were declared mistrials.

If you have questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or contact us online.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available to help you 24/7.