Recent Decisions

Woman Asleep in Her Vehicle Convicted of Impaired Driving

Written on Behalf of Affleck & Barrison LLP

An Ontario Court judge has convicted Erin Medakovic (“Medakovic”) of impaired driving when she was found asleep in a parked vehicle with the engine running and the driver’s door open.

Justice Vanessa Christie ruled that the Crown prosecutor had demonstrated “there was a realistic risk that Ms. Medakovic, who admittedly was impaired behind the wheel, may unintentionally set the vehicle in motion”.

WHAT HAPPENED?

On April 24, 2017, in the Town of Northeastern Manitoulin, the police were contacted by a man returning from working the night shift who noticed a car driver’s door open, the engine running and a woman in the driver’s seat. Officers attended at 1:50 a.m. and found a woman in a deep sleep in the reclined driver’s seat, with the door open and the engine running. The woman woke up after the officers tapped on the car window for 30 seconds. She sat up, had slow, slurred and laboured speech.

Inside the car, the officers found an LCBO bag with six empty cans and inside a purse they found Medakovic’s identification.

The officers administered a breath sample test which showed readings of 195 and 193, which were double the legal allowable level.

Medakovic told the officers she had eight beers and had been drinking since 2 p.m. She informed the officers that her last drink was at 11 p.m. and she had been asleep in her car for an hour. Medakovic told officers she thought it was ridiculous that she could not remain in her car and “sleep it off”.

At trial, Medakovic gave evidence that she had driven to Little Current from Sudbury on April 22 and was visiting friends. She parked in her male friend’s driveway, but her friend needed access to his driveway so he moved her car to the grass shoulder in front of his home. She told her male friend that she was trying to stay the night with a couple of friends and if that did not work out, she would sleep in her car. Medakovic gave evidence that her plans did not work out, so she decided to sleep in her car and turned the vehicle on to keep her warm. She could not comment on how or why the driver’s door was ajar.

Medakovic was charged with impaired driving and having more than the legal allowable level of alcohol in her system while driving.

CARE OR CONTROL OF A MOTOR VEHICLE

Medakovic was charged and convicted under Section 253 of the Criminal Code (“CC”), which reads as follows:

253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railways equipment, whether it is in motion or not,

 (a)  while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or drug; or

(b)  having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred mililitres of blood.

In her judgment, Justice Christie relied upon the Supreme Court of Canada decision of R. v. Boudreault, which outlined the essential elements of “care or control” as it applies to section 253(1) of the CC. The elements are as follows:

  • an intentional course of conduct associated with a motor vehicle;
  • by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
  • in circumstances that create a realistic risk of danger to persons or property.

Justice Christie applied the facts of the case and found that Medakovic did not have an intention to drive that evening after she had consumed alcohol. She also found that the evidence at trial established that the stationary vehicle was positioned in a way that would not cause any safety concern and therefore not a realistic risk of danger. However, Justice Christie did find that the Crown had proven, based upon the evidence, that there was a realistic risk that Medakovic may unintentionally set the vehicle in motion.

Justice Christie found that Medakovic had care or control of a vehicle while impaired based upon the following facts that came out of the trial:

  • Medakovic was seated in the driver’s seat;
  • Medakovic locked the doors of the vehicle after she got in;
  • Medakovic became cold after she entered the vehicle and put the key in the ignition, turned the car on and put the heat on high;
  • Medakovic admitted she was impaired while in the driver’s seat and she was confused when she was awakened by the officers;
  • The officers testified that it took longer than usual to wake Medakovic up and she was initially disoriented and confused;
  • Medakovic’s feet were approximately one foot away from the car pedals;
  • Medakovic admitted she thrashes in her sleep and does not know what she is doing;
  • Medakovic admitted she is a deep sleeper and has slept walked in the past;
  • Medakovic admitted she has done things in her sleep that she is not aware of;
  • Medakovic admitted she could easily sit up and grip the steering wheel;
  • Medakovic had no explanation as to how the driver’s door became open and did not recall opening it; and
  • The vehicle was parked on a residential street, which could cause an immediate safety hazard.

Based on this evidence, Justice Christie found that the Crown had established that there was a realistic risk that Medakovic may unintentionally set the vehicle in motion while she was impaired and therefore Medakovic had the care and control of the vehicle contrary to section 253(1)(a) of the CC.

If you have been charged with a driving 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 for your convenience.

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.

Two Ontario Cases Fall Apart As a Result of Police Failure to Immediately Inform of Right to Counsel

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Justice has recently excluded significant evidence in two criminal cases involving impaired driving after ruling that police had violated the accuseds’ Charter rights by failing to immediately inform them of their right to counsel.

In the first case, Justice Craig Parry excluded breath samples from the driver’s trial due to a Charter breach, which resulted in a charge of driving with a blood-alcohol content above the legal limit to be dismissed.

In another case earlier this month, a man was found not guilty of having care or control of a vehicle while impaired by a drug when Justice Scott Latimer threw out the evidence after ruling that police had violated his Charter rights.

RIGHT TO COUNSEL

The right to counsel is a fundamental right included in the Canadian Charter of Rights and Freedoms (“Charter”).

10.  Everyone has the right on arrest or detention:

b.  to retain and instruct counsel without delay and to be informed of that right;

Under the Charter, the detainee must be informed of the right to retain and instruct counsel “without delay”, which has been interpreted to mean “immediately”. The Supreme Court of Canada has made it clear in the case of R. v. Suberu that avoiding delay helps to protect against the risk of self-incrimination and interference with an individual’s liberty. This obligation also requires police to abstain from obtaining incriminatory evidence from the detainee until he/she has had a reasonable chance to contact a lawyer, or the detainee has unequivocally waived the right to do so.

The police have both an informational duty and an implementational duty upon arrest or detention. The police must both inform the accused of the right to retain counsel and must provide the detainee with a reasonable opportunity to retain and instruct counsel. Justice Abella, speaking for the Supreme Court of Canada in the case of R. v. Taylor, stated:

The duty to inform a detained person of his or her right to counsel arises ”immediately” upon arrest or detention (Suberu, at paras 41-42) and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to counsel at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances.

WHAT HAPPENED IN THE CASE OF COLIN MITCHELL?

On October 9, 2016, a report was received by police of a possible impaired driver exiting Highway 401 at Highway 8. Constable Karen Marquis received the dispatch and pulled over the vehicle that Colin Mitchell (“Mitchell”) was driving. Mitchell failed a breathalyzer test and was then arrested. The officer waited 11 minutes after the arrest to read Mitchell his rights to counsel. In the back of the police cruiser Mitchell told the officer that he wanted to call a lawyer. He was not allowed to make the call until he arrived at the police station. Mitchell was finally given the chance to make a phone call to duty counsel 51 minutes after being placed under arrest.

On February 22, 2018, Justice Parry found that the officer breached her obligation to inform Mitchell of his right to counsel without delay and breached her implementational duty to facilitate access to counsel at the first reasonable opportunity. Justice Parry concluded that the evidence gathered in this case (the breath samples) was evidence that was attained in a manner that infringed the accused’s right to counsel. Justice Parry stated,

Exclusion of the evidence is the only remedy that can, in these circumstances, prevent bringing the administration of justice into further disrepute. To do otherwise would be to condone a perpetual indifference to the knowledge of the basic obligations created by one of the most important Charter rights.

Justice Parry, therefore, excluded the results of the breathalyzer test due to the delay in informing Mitchell of his right to counsel. The charge of driving with more than the legal limit of alcohol in his blood was dismissed.

WHAT HAPPENED IN THE CASE OF ANDREW DAVIS?

On July 17, 2016, a civilian reported a case of bad driving to the Waterloo Regional Police. Constable Tyler Shipp located the vehicle in question in a parking lot in Waterloo and Andrew Davis (“Davis”) was found in the driver’s seat. The officer spoke to Davis through an open window. Davis had sunglasses on, no shirt and was slightly dishevelled. Davis’ speech was described by the officer as garbled. The officer directed Davis to remove his sunglasses and observed Davis’ eyes to be “swollen, half open, very drowsy”.  Another officer, Constable McKenna, arrived on scene to administer a Standard Field Sobriety Test.

Following the sobriety test, Davis was arrested, handcuffed and placed in the back of the police cruiser. Drug paraphernalia, prescription drugs and what the officer thought was a meth pipe were located inside Davis’ vehicle. Eight minutes after his arrest, Davis was read his rights to counsel by police. These rights should have been read immediately following his arrest.

On March 6, 2018, Justice Latimer held that a violation of section 10(b) of the Charter occurred as a result of the police failure to provide Davis with his rights to counsel without delay upon arrest. Due to the Charter violation, Justice Latimer excluded important evidence, including all of the items seized from Davis’ vehicle and his post-arrest statement made to the police. Justice Latimer concluded that the Crown had failed to prove that Davis was impaired by a drug at the time of his care or control of his motor vehicle.

If you have been charged with impaired driving or any other driving offence, contact one of the experienced Oshawa criminal lawyers at Affleck & Barrison LLP for a free consultation. We have a 24-hour phone service for your convenience. Contact our office online or at 905-404-1947.

Ontario Sets 12 Month Ceiling for Youth Cases

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged about, the Supreme Court of Canada in R. v. Jordan established that adult criminal cases decided in the provincial courts must be resolved within 18 months. In circumstances where cases exceed the 18 months ceiling, it has been found that the accused’s rights under section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) have been violated and a stay of proceedings may be granted, except under “exceptional circumstances”.

The Ontario Youth Court of Justice recently held that a 12-month ceiling should apply for youth cases. In the case of R. v. D.A., the Court applied section 3(1)(b) of the Youth Criminal Justice Act (“YCJA”) which states that youth court proceedings should be carried out with “promptness and speed…given young persons’ perception of time”. This is the first reported decision to specifically establish a lower ceiling for youth cases than adult cases.

The accused, D.A., applied for an order for a stay of proceedings under section 24(2) of the Charter arguing that his rights have been infringed pursuant to section 11(b). He maintained that it will take 18 months and 7 days for the completion of his trial, which is unreasonable and exceeds the presumptive ceiling set by the SCC in R. v. Jordan. Furthermore, the accused submitted that a young person should be subject to a lower presumptive ceiling.

WHAT HAPPENED?

On a date between January 1, 2015 and November 4, 2016, the accused allegedly was observed to be grinding his penis into a three years old’s buttocks as he lay on the floor.

During this same time period, the accused allegedly pulled down his pants and underwear exposing his penis to a nine-year-old boy (the accused’s first cousin) and a four-year-old boy. The accused allegedly asked the boys to touch his penis, which they did.

On December 6, 2016, the accused was interviewed by police without the presence of his mother. At that time, he provided a partially incriminating statement.

The accused was then charged with 8 offences, including sexual assault, sexual interference and invitation to sexual touching. He was released on an undertaking to a peace officer and a promise to appear.

THE NEED FOR TIMELY RESOLUTION OF CRIMINAL COURT MATTERS

The judicious conclusion of criminal court cases is a fundamental right of all accused individuals found within section 11(b) of the Charter. It is also an important factor in ensuring public confidence in the Canadian criminal justice system.

The timely culmination of criminal court matters is also important for witnesses, victims and their families. Proceeding in this manner assists with the accurate recall of information related to the crime and allows for emotional and psychological closure.

The SCC case of R. v. Jordan set out a new framework and timelines for processing criminal court cases in Canada. The Court set out a “presumptive ceiling” for completing criminal court cases and anything beyond these time periods is deemed unreasonable. However, if a delay is caused by the defence it will not count towards the presumptive ceiling (ie. requesting unnecessary adjournments). Once the presumptive ceiling has been exceeded, the burden is on the Crown prosecutor to justify the delay on the basis of exceptional circumstances.

BRINGING YOUTH MATTERS TO TRIAL EXPEDITIOUSLY

Individuals who are charged between the ages of 12 and 17 are processed through youth courts in Canada, which operate independently from adult criminal courts. The YCJA provides more proportionate accountability for young persons through age appropriate sentences and the promotion of rehabilitation.

Canada has acknowledged the necessity that criminal proceedings involving young persons should generally be brought to trial faster than adult matters. This has been codified in section 3 of the YCJA.

The Ontario Court of Appeal has also provided reasoning for the belief that young persons should be brought to trial faster in several its decisions. These reasons include:

  • The ability of a young person to appreciate the connection between offending behaviour and consequences will weaken the longer the proceedings take to complete;
  • The perception of time for a young person may be distorted when compared to that of an adult; and
  • The need to sentence young persons while they remain in his/her formative years.

In the case of R. v. D.A., Justice P.T. O’Marra found that the total delay was 555 days less the defence delay of 28 days, resulting in a total delay of 527 days (17 months and 2 weeks). Justice O’Marra irrefutably stated there should be a reduced presumptive ceiling of 12 months for youth cases that are non-complex cases. Therefore, Justice O’Marra held that the delay in this non-complex case was not reasonable, was well over the “youth presumptive ceiling of twelve months” and accordingly the application was allowed and the proceedings were stayed.

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, please contact the experienced criminal lawyers at 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.

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.

Nova Scotia’s Top Court Orders New Trial for Taxi Driver Acquitted of Sexual Assault

Written on Behalf of Affleck & Barrison LLP

Nova Scotia’s Court of Appeal has ordered a new trial for a taxi driver who was acquitted of sexually assaulting an intoxicated female passenger because he could not determine whether the victim consented before she passed out.

WHAT HAPPENED?

On May 22, 2015, police found taxi driver, Bassam Al-Rawi, in a parked cab in Halifax’s south end. An unconscious female was found in the back seat with her legs propped up on the front seats, naked from the waist down with her breasts exposed. Al-Rawi was discovered leaning between the female’s open legs with his zipper undone and the back of his pants partly down. Al-Rawi was also found to be hiding a pair of the female’s urine-soaked pants and underwear.

Police woke the female complainant, who could only tell them her name, but not why she was there or what had happened.

Al-Rawi was charged with sexual assault (section 271 of the Criminal Code of Canada). He was tried before Judge Gregory E. Lenehan on March 1, 2017.

During the trial, a forensic alcohol specialist testified that the female was extremely intoxicated after drinking 5 beers, two tequila shots and one vodka-cranberry drink. The expert testified that she was drunk enough to forget events and lose track of her surroundings. It was determined that the woman’s blood-alcohol level was three times the legal limit.

Judge Gregory Lenehan set out the requirements for finding Al-Rawi guilty of sexual assault. He stated:

In order for Mr. Al-Rawi to be convicted of the offence that’s before the court, the Crown have to establish beyond a reasonable doubt that Mr. Al-Rawi touched (the complainant), that it was in such a way it violated her sexual integrity and that it was not done with her consent. In other words, it was done without her consent.

At trial, Judge Lenehan found it reasonable to conclude that Al-Rawi was engaging in or about to engage in sexual activity, but he acquitted Al-Rawi on the basis that the Crown had produced “no evidence” of lack of consent or lack of capacity to consent when Al-Rawi was touching the complainant. Judge Lenehan could not determine when the female had lost the capacity to communicate. He wrote that “[c]learly, a drunk can consent.” Judge Lenehan ruled that “[a] lack of memory does not equate to a lack of consent.”

THE DECISION ON APPEAL

The Crown prosecutor appealed the trial decision to a higher court on the basis of several legal errors made by the Judge at trial and requested an order for a new trial.

In the unanimous decision, the appeal court agreed that Judge Lenehan had made several errors in law. The appeal was allowed and a new trial was ordered.

Although the Court of Appeal did not find that Judge Lenehan had erred in law by stating that “a drunk can consent”, his application of the legal test for a person’s capacity to consent to sexual activity was a legal error. The trial judge held that the Crown had not proven incapacity beyond a reasonable doubt because it was unknown the “moment the complainant lost consciousness”. Thus, Judge Lenehan implied that prior to becoming unconscious the complainant would have had the capacity to consent. The Court of Appeal held that the trial judge erred in law by equating incapacity solely with unconsciousness.

The Court of Appeal also found that Judge Lenehan had erred in discounting the extensive circumstantial evidence that would have allowed him to infer that the complainant had not voluntarily agreed to engage in sexual activity, or that she lacked the capacity to do so. Some of the circumstantial evidence noted by the Court of Appeal included:

  • the complainant was unconscious when found by police;
  • Al-Rawi was trying to hide the urine-soaked pants and underwear from the police;
  • the location of the cab was not near the complainant’s home or on the route to the complainant’s home;
  • the complainant had no memory of her time in the cab;
  • the complainant’s blood alcohol level was between 223 and 244 mg/100mL; and
  • the complainant had to be shaken awake by police in the cab and woke up confused and upset.

Justice Duncan Beveridge wrote:

…there was ample circumstantial evidence that would permit a trier of fact to infer that the complainant did not consent or lacked the capacity to do so.

THE CAPACITY TO CONSENT

The trial judge or jury must determine if it has been established beyond a reasonable doubt that the complainant did not consent, or lacked the capacity to consent. In the Court of Appeal decision in this matter, Justice Beveridge set out the test for determining whether a complainant has the requisite capacity to consent.

In order to prove that the complainant did not have the required capacity to consent, the Crown must establish beyond a reasonable doubt that the complainant did not have an operating mind capable of:

  • appreciating the nature and quality of the sexual activity; or
  • knowing the identity of the person or persons wishing to engage in the sexual activity; or
  • understanding he/she could agree or decline to engage in, or to continue, the sexual activity.

In cases where drugs or alcohol are involved and the complainant has little or no memory of the event, difficulties arise in determining whether the complainant had the capacity to consent. Absent direct evidence from the complainant that he/she did not consent, the judge or jury must rely on circumstantial evidence to determine the absence of consent.

WHAT HAPPENS NEXT?

A new trial was ordered by the Court of Appeal. The date for the new trial has not been set. We will provide updates in this blog as new developments regarding this case become available.

In the meantime, if you have been charged with a sexual assault 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 for your convenience.

Acquittal Upheld for Ontario Teacher Who Secretly Videotaped Female Students

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal upheld a trial court’s decision to acquit a teacher who used a camera pen to video record the chest and cleavage of his female students. The top court in Ontario found that although the recording had been done for sexual purposes and was therefore inappropriate, the students had no reasonable expectation of privacy.

WHAT HAPPENED?

High school teacher, Ryan Jarvis, used a camera pen to video record the chest and cleavage of female students and one female teacher. The secret recordings were made in various locations in and around the school and involved 27 female students aged 14 to 18. Jarvis was observed by the principal of the school talking to a female student while holding a pen with a flashing red light at its top. The principal seized the pen and sent it to the police. The police found several recordings of female students focused on their breasts stored on the pen.

Jarvis was charged with voyeurism under section 162(1)(c) of the Criminal Code of Canada (“CC”).

In November 2015, Superior Court Justice Andrew Goodman found Jarvis not guilty of that offence. Justice Goodman held that Jarvis’ behaviour had been “morally repugnant and professionally objectionable”, but he did not find that the videos were sexually motivated.

The Crown prosecutor appealed this ruling and argued that Jarvis’ behaviour was sexually motivated since the subjects were all females and the camera was deliberately focused on their breasts.

The Court of Appeal was unanimous in concluding that the recording was both “surreptitious” and “done for a sexual purpose”. However, the majority of the Court found that the recording was made under circumstances that did not give rise to a reasonable expectation of privacy and therefore upheld Jarvis’ acquittal at trial.

The majority of the Court stated “that we live in an open society where visual interaction is part of everyday life and is valued” and that students know they can be observed in places where they gather.

If a person is in a public place, fully clothed and not engaged in toileting or sexual activity, they will normally not be in circumstances that give rise to a reasonable expectation of privacy.

WHAT IS VOYEURISM?

The criminal offence of voyeurism was added to the CC in 2005 to address public concerns that technology could be used to easily spy on individuals for sexual purposes.

According to section 162 of the CC, the offence of voyeurism can be committed in two ways, either through observation or by visual recording.

There are two separate conditions that must exist in order to be convicted of the offence of voyeurism:

  • the “surreptitious” nature of the observation/recording; and
  • the reasonable expectation of privacy.

The secret observation or recording must capture the image of a person’s genitals and/or breasts or sexual activity, or the observation/recording must occur for a sexual purpose.

It is also a crime to print, copy, publish, distribute, circulate, sell, advertise or make available the recording or image that was secretly obtained.

A secret or “surreptitious” recording has been interpreted by the courts using its ordinary dictionary meaning.   Some examples of surreptitious recordings that have been prosecuted as voyeurism include:

  • Video images captured by a camera concealed in a stepdaughter’s bedroom;
  • Video recording of teenage girl in a hotel shower by a camera concealed in a shaving bag;
  • Video images captured by a camera hidden in a wastebasket in an office washroom; and,
  • Video images of a man at a urinal in an office washroom taken through a cubicle.

Voyeurism is considered a hybrid offence. If the Crown proceeds by way of indictment (most serious), the maximum sentence is five years imprisonment. If the Crown proceeds by summary conviction, the maximum sentence is six months imprisonment.

A person convicted of voyeurism will be placed on Canada’s sexual offender registry for at least 10 years. A person convicted of multiple counts of voyeurism will placed on the registry for life.

If you are facing voyeurism charges, or charges related to any other sexual offences, or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. For your convenience, we offer 24-hour phone services. We are available when you need us most.

Indefinite Solitary Confinement Ruled Unconstitutional by B.C. Supreme Court

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the B.C. Supreme Court striking down sections of the Corrections and Conditional Release Act (“CCRA”) that permit prolonged and indefinite solitary confinement in federal prisons.

WHAT HAPPENED?

In this case, lawyers for the British Columbia Civil Liberties Association and the John Howard Society of Canada were asking the Court to end administrative segregation in federal penitentiaries in Canada. The Plaintiffs argued that sections 31, 32, 33 and 37 of the CCRA were unconstitutional as they infringe upon an inmate’s rights and freedoms granted by the Canadian Charter of Rights and Freedoms (“Charter”).

The Correctional Service Canada (“CSC”) procedure known as administrative segregation (similar to solitary confinement) authorizes the placement of inmates in small cells for up to 23 hours a day without meaningful human contact. This type of segregation has no legislated time limits and is left to the discretion of the warden.

The B.C. Court ruled that the laws regarding administrative segregation violate section 7 of the Charter guaranteeing life, liberty and security of person. These infringing laws allow indefinite solitary confinement, prevent independent oversight of segregation decisions and deprive inmates from having a lawyer represent them at segregation review hearings.

The Court also ruled that these laws discriminate against mentally ill and Indigenous inmates contrary to section 15 of the Charter, which guarantees equality before and under the law and equal protection and benefit of the law without discrimination.

Justice Peter Leask wrote in his decision:

I am satisfied that the law … fails to respond to the actual capacities and needs of mentally ill inmates and instead imposes burdens in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.

HARMFUL EFFECTS OF SEGREGATION

The B.C. Court heard extensive testimony from former prisoners, researchers and correctional officials who addressed the heath effects of administrative segregation. The Court held that solitary confinement places prisoners at significant risk of serious psychological harm and increased risk of self-harm and suicide.

Justice Leask emphasized that based on the evidence solitary confinement increases destructive symptoms and behaviours, including “anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour.”

The laws pertaining to solitary confinement were found by the Court to be overbroad and damaging to institutional security. Furthermore, the Court held that the laws authorizing solitary confinement do so in circumstances where lesser forms of restriction would achieve the same results.

The Court ruled that a procedure of prisoner segregation must include time limits. Time limits would “create the pressure to ensure that decisions about alleviating an inmate’s segregation were made and implemented promptly, while still allowing CSC to use the practice for short periods to address security concerns.”

International consensus has determined that 15 days is an ideal cap for segregation placements. Justice Leask did not prescribe a set number of days, but considered 15 days “a defensible standard”.

WHAT HAPPENS NEXT?

Justice Leask suspended his decision for 12 months to give the government time to draft new legislation, which must include strict limits on the amount of time an inmate can be segregated.

This B.C. decision requires broader legislative changes than the ruling made by the Ontario Superior Court last month, which we previously blogged about. In the Ontario case, the Judge held that the lack of independent review of prisoners placed in solitary confinement means that there is no accountability for the decision to segregate. Justice Marrocco put his decision on hold for a year to allow Parliament to make the legislative changes necessary. The Canadian Civil Liberties Association recently announced it would appeal this Ontario decision.

ORDER STOPPING ONTARIO FROM PLACING MENTALLY ILL INMATES IN SOLITARY CONFINEMENT

One day following this B.C. decision, Ontario announced an agreement between the Ontario government and the Human Rights Commission ensuring that inmates with mental health disabilities will no longer be placed in solitary confinement across the province.

This Order includes the process of properly identifying inmates with mental health disabilities (including those at risk of self-harm or suicide) and issuing appropriate alerts verified by professionals. The alert would indicate that alternatives to segregation must be considered for the particular inmate.

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

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