Recent Decisions

12 Year Sentence for Vigilante Justice Upheld

Written on Behalf of Affleck & Barrison LLP

The Alberta Court of Appeal, in a 2-1 decision, upheld Steven Vollrath’s (“Vollrath”) 12-year prison sentence for cutting off his victim’s thumb during an abduction in a case of vigilantism.

Two of the three judges at the Court of Appeal ruled that Vollrath’s sentence at trial was appropriate for the well planned “revenge kidnapping”.

The Appeal Court denounced vigilantism and stated:

Vigilantism undermines the rule of law and interferes with the administration of justice. As a general rule, those who engage in it should be dealt with severely.

WHAT HAPPENED?

In May, 2013, Richard Suter (“Suter”) was parked next to a restaurant when he and his wife began having an argument. He failed to put his car in park, and as the car proceeded forward, he unintentionally pushed on the accelerator instead of the brake. The car advanced onto the restaurant’s patio striking and killing a two-year-old child.

Suter was convicted of failing to provide a breath sample. The trial judge found that the accident was caused by driver error and not drunkenness. The Supreme Court of Canada reduced Suter’s 26-month sentence to the 10 months he had already served in jail.

While Suter was awaiting trial, Vollrath, dressed as a police officer, and two accomplices rang Suter’s doorbell and abducted him in front of his wife. His captors revealed that the reason he was being abducted was that he had hit and killed a child with his car. Suter was taken to a snowy field, his thumb was cut off with pruning shears, and he was left unconscious in the snow.

Vollrath was convicted in 2016 of kidnapping, aggravated assault, possession of a weapon, and impersonating a police officer. Vollrath had a lengthy criminal record, including violent and weapons offences.

SENTENCING PRINCIPLES

According to section 718 of the Criminal Code, the purpose of sentencing is to protect society and to impose sanctions that meet the following objectives:

  • denounce unlawful conduct;
  • deter the offender and others from committing offences;
  • separate offenders from society;
  • assist in rehabilitating offenders;
  • provide reparations for harm done to victims or the community; and
  • promote a sense of responsibility in offenders and acknowledge the harm done to victims or to the community.

Sentencing must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In deciding on an appropriate sentence, the Court must consider aggravating and mitigating factors, sentences imposed on similar offenders for similar offences, and all available sanctions other than imprisonment must be considered.

In Mr. Vollrath’s case, the Court considered the following aggravating factors:

  • he did not act alone;
  • there was advance planning involved in committing the offences;
  • he impersonated a police officer with the purpose of facilitating another offence;
  • the incident began at the Suter’s home;
  • the kidnapping and assault were targeted;
  • leaving Suter maimed and unconscious in a deserted area showed a callous indifference to whether he lived or died;
  • the lasting physical harm to Suter;
  • the psychological impact to both Mr. and Mrs. Suter;
  • Vollrath’s extensive criminal record; and
  • Vollrath was on release at the time of the offences.

The Court is also obligated to consider background factors for aboriginal offenders and to consider how these factors affect the offending behaviour. In Mr. Vollrath’s case, the Court found that he had no connection with his aboriginal culture at the time he became incarcerated. Furthermore, the Court held that Vollarth’s dysfunctional background was not connected to his aboriginal history as his biological father, who was a Metis man, left him when he was very young.

In coming to a conclusion in her 2016 sentencing decision, Justice E. A. Johnson of the Provincial Court of Alberta felt that the most important objective was to “denounce the acts and to deter Mr. Vollrath and others from engaging in this kind of behaviour.” Justice Johnson also considered the objectives of separating the offender from society and rehabilitation. Therefore, Justice Johnson concluded that 12 years of incarceration were fitting given the seriousness of the offence, the degree of responsibility of the offender, the aggravating factors, and the need for denunciation and deterrence.  The majority of the Alberta Court of Appeal agreed with this sentencing decision.

WHAT COMES NEXT FOR VOLLRATH?

At the Court of Appeal, the dissenting judge held that Vollrath should have been sentenced to nine years in jail after taking into account the deprivations of his childhood.

Given that there was a dissenting opinion on appeal, Vollrath has the option of appealing his case to the Supreme Court of Canada. However, the Supreme Court of Canada will only hear a case if it is convinced that the case involves a question of public importance. Approximately 1 out of 10 cases that request “leave” to appeal to the Supreme Court of Canada receive permission.

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

‘Sexsomnia” Defence Rejected by Ontario Judge

Written on Behalf of Affleck & Barrison LLP

A Judge has rejected the defence of “sexsomnia” and ruled that Ryan Hartman (“Hartman”) is criminally responsible for the sexual assault of a woman despite his claim that he was sleepwalking at the time of the criminal act.

Hartman was found guilty of sexual assault in 2012 and sentenced to 14 months in jail. He appealed and lost. He appealed again and admitted to the crime, but offered new evidence claiming that he was suffering from a condition called “sexsomnia” and maintained that he was sleeping when he raped the woman.

The Ontario Court of Appeal granted Hartman a new trial. The trial began in April 2017 and concluded this week with a Judge ruling that Hartman is guilty of sexual assault.

WHAT HAPPENED?

In February 2011, the woman, whose identity is protected by a court order, was attending a house party in Spencerville, Ontario with her boyfriend. The couple fell asleep on an air mattress to sleep off all of the alcohol they had consumed before driving home.

Suddenly, the woman felt a strong pain in her buttocks. She realized that her jeans were pulled down and that someone was penetrating her anally while her boyfriend remained asleep.

Hartman gave evidence at his first trial that he crawled onto the double air mattress with a sleeping couple. When he awoke, he was alone on the air mattress with an erection and his pants were unzipped.

As the woman and her boyfriend drove away from the house party, she observed Hartman sitting at a picnic table in the garage looking wide awake.

During the trial, Hartman’s lawyer argued that his client was asleep during the sexual assault and was therefore not criminally responsible for his “involuntary” acts.

Hartman relied upon evidence provided by Dr. Julian Gojer, a forensic psychiatrist, who determined that Hartman was likely asleep during the assault. Dr. Gojer’s opinion relied upon a family history of sleepwalking and evidence from Hartman’s girlfriend who had once found Hartman masturbating beside her in bed while apparently asleep.

The Crown prosecutor relied upon affidavit evidence from a U.S. sleep expert Dr. Mark Pressman who opined that Hartman was likely awake, but drunk during the assault.

At trial, evidence before the court included the fact that Hartman had consumed as many as 21 alcoholic beverages during the party and that his blood-alcohol level was estimated to be three to four times the legal limit.

Judge Kimberly Moore rejected Hartman’s defence of sexsomnia and ruled that Hartman was “awake and aware” and his “actions were not involuntary” when he pulled down the victim’s pants and anally penetrated the woman without her consent.

 WHAT IS SEXSOMNIA?

Sexsomnia is a type of parasomnia, an abnormal activity that occurs while an individual is asleep. It is a sleep disorder that causes individuals to engage in sexual behaviour while asleep.

Sexsomnia is similar to sleepwalking and occurs during non-rapid eye movement sleep. Most individuals are experiencing such a deep sleep that they will not even remember that the event occurred the following day.

Sexsomnia was added to the DSM-5 in 2013, the American Psychiatric Association’s relied upon classification of mental disorders.

WHAT IS THE DEFENCE OF SEXSOMNIA?

In Canada, sexsomnia has been raised by defence lawyers as a legal defence in at least a dozen criminal cases since 2005. The defence of sexsomnia has resulted in a “not criminally responsible” ruling five times.

A 2003 incident that occurred in Toronto set the precedent for the sexsomnia defence in Canada when Jan Luedecke was found not criminally responsible after being accused of sexually assaulting a woman at a party by the Ontario Court of Appeal.  In 2009, Luedecke was granted an absolute discharge by the Ontario Review Board based upon two risk assessments by a forensic psychiatrist and a forensic psychologist. He was found not to pose a significant threat to public safety.

In another case, a man from Blue Mountain, Ontario was found not criminally responsible for the sexual touching of a young girl as a result of sexsomnia in February 2015. In June 2016, the Newfoundland and Labrador Supreme Court ordered a new trial for a man convicted of sexually touching his younger sister on the basis of a sexsomnia defence.

Sexsomnia is a difficult defence as it requires a great deal of medical evidence, including expert testimony.

The victim of Hartman’s assault maintains that the assault has changed her life, her sexual relationships, her personal relationships, and her career path. Hartman will be sentenced on November 30, 2018.

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 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.

 

 

 

 

 

Woman Found Not Criminally Responsible in Fatal PATH Stabbing

Written on Behalf of Affleck & Barrison LLP

Rohinie Bisesar (“Bisesar”), accused of fatally stabbing 28-year-old Rosemarie Junor (“Junor”) in a Shoppers Drug Mart in Toronto’s underground PATH system in 2015, has been found not criminally responsible.

Bisesar pleaded not guilty last week to the first-degree murder charge. Bisesar’s lawyers maintained that she was not criminally responsible due to her mental illness. Her trial was held before a judge only.

Ontario Superior Court Justice John McMahon ruled that he was satisfied, on a balance of probabilities, that Bisesar, who suffered from schizophrenia, “was incapable of knowing the killing was morally and legally wrong”.

WHAT HAPPENED?

On December 11, 2015, while shopping at a make-up counter beneath Bay and Wellington streets, Junor was fatally stabbed. She was taken by ambulance to hospital where she succumbed to her injuries.

The unprovoked attack took a mere 54 seconds and was recorded on the store’s surveillance video. Bisesar walked into the pharmacy and stabbed Junor once in the heart with a small knife purchased at a dollar store. She did not speak to Junor during the attack, placed the knife on the counter following the stabbing, and immediately left the store.

According to Bisesar’s lawyers, she was experiencing hallucinations that took control of her physically. A forensic psychiatrist, Dr. Ian Swayze, the only witness at the trial, gave evidence that at the time of the incident Bisesar was experiencing a psychiatric breakdown due to untreated schizophrenia.

According to Dr. Swayze’s report, Bisesar was hearing voices in her head. The voice commanded her to buy a knife, and walk into the Shoppers Drug Mart. Dr. Swayze wrote that “The voice and movements raised my hand, pushed forward … it was like the knife was sticking to my hand and couldn’t be dropped.”

As a result of the not criminally responsible verdict, Bisesar remains in a secure wing of the Centre for Addiction and Mental Health in Toronto until an Ontario Review Board hearing is held.

WHAT DOES IT MEAN TO BE NOT CRIMINALLY RESPONSIBLE?

According to section 16 of the Criminal Code, a person is not criminally responsible for something that he/she did if they were 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.

WHAT HAPPENS NEXT FOR BISESAR?

Bisesar’s release is controlled by the Ontario Review Board (“Board”). This is an independent tribunal that oversees and annually reviews every person found to be not criminally responsible or unfit to stand trial for criminal offences due to a mental health condition.

The Board consists of a five person panel, which includes a psychiatrist, a lawyer, a mental health professional, a member of the public, and a Chairperson.  The Chairperson must either be a practicing or retired judge or someone who can be appointed to a judicial office (i.e. a lawyer who has 10 years of experience).  All members of the Board are appointed by the Lieutenant Governor.

The Board hears evidence from the individual and his/her lawyer, the Crown prosecutor, a psychiatrist, and possibly others that may include a family member or other specialist. The hospital facility also provides a report to the Board detailing the individual’s history and progress.

The Board’s decisions are made by a majority vote. The most important concern of the Board is whether the individual poses a significant risk to the safety of the public. If the individual is found to be a significant risk, the Board will consider other factors. The most important being the protection of public from dangerous persons, the re-integration of the person into society, and the liberty interests of the person.

The Board reviews the disposition annually to determine whether changes need to be made depending on the progress made by the individual. The Board can make one of three dispositions:

  • Detention Order: The individual should continue to be detained in the hospital and makes a decision regarding whether the individual stays at a minimum, medium or maximum secure unit and what access the individual would have to the community;
  • Conditional Discharge: The individual is allowed to live in the community while subject to certain requirements (i.e. having to report to a hospital, refrain from using alcohol or drugs, reporting any change in address, or refrain from contact with certain individual); or
  • Absolute Discharge: The individual is granted a full release with no further supervision.

Victims can provide victim impact statements at the annual Board hearings. The statements do not have an impact on the decision the Board makes, unlike at a sentencing hearing. The Board’s decision must be based on the individual’s current level of risk to public safety.

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

‘Spiderman’ Has Murder Conviction Overturned

Written on Behalf of Affleck & Barrison LLP

 

Shawn Vassel (“Vassel”) has spent seven years in prison and has recently had his conviction overturned and a new trial ordered by the Ontario Court of Appeal.

In 2011, Vassel was convicted of second-degree murder in the death of a Mississauga man during a drug deal turned robbery that occurred in 2007.

WHAT HAPPENED?

Vassel was nicknamed the “Spiderman killer” after he scaled down 11 floors of a North York apartment building in his attempt to flee the police.

Vassel was confronted by police at his mother’s apartment on the 18th floor. He exited the balcony and began rappelling from one floor to the next, finally appearing outside of the building and was eventually caught by the police after a chase on foot.

Vassel was arrested and charged for the murder of Husam Dagheim (“Dagheim”). Dagheim was shot at point-blank range in the parking lot of the Coliseum movie theatre in Mississauga during an attempted drug deal.

Vassel testified at his trial that he “risked his life” in his attempt to escape the police because he didn’t want to go to jail for a crime that he alleged he did not commit.

Vassel was sentenced to an automatic life sentence with eligibility for parole at 16 years. He has an extensive criminal record, which includes robbery, drug trafficking, and assault.

THE TRIAL

At issue at Vassel’s trial was the identity of Dagheim’s killer.

The Crown’s star witness, a former friend of Vassel, Michael Agba (“Agba”), testified that he was present during the botched drug deal and witnessed Vassel holding the loaded gun before the murder took place. During cross-examination by Vassel’s lawyer, Agba was accused of lying in order to secure a plea deal. Agba was originally charged with murder, but pleaded guilty to manslaughter.

There were no other witnesses that could identify the shooter, including the deceased’s wife who was seated beside her husband in a minivan at the time of his death.

Vassel testified at his own trial that he was not at the crime scene. He also testified that he lent his friends his girlfriend’s rental car for the planned robbery at the drug deal. Vassel suggested that the real killer was either Agba or another friend who were both present during the drug deal.

Cellphone records were introduced as evidence to prove that Vassel was at a townhouse complex on Ridgeway Drive in Mississauga at the time of the killing.

THE APPEAL

Vassel appealed both his conviction and the period of parole fixed by the trial judge. Vassel’s counsel argued that the trial judge made several errors regarding the admissibility of evidence and his instructions to the jury.

One of the grounds of appeal argued by Vassel’s counsel was that the trial judge erred by instructing the jury to take caution and particular care with Vassel’s evidence at trial.

In a criminal trial, all parties are entitled to a properly instructed jury. An appellate court ,when assessing a judge’s jury charge, must take a functional approach to determine whether the instructions, read as a whole, provide the jury with the necessary tools to render a verdict.

The trial judge instructed the jurors to apply the same factors in assessing Vassel’s testimony as they would any other witness. Justice Tulloch specifically stated:

Mr. Vassel has given evidence that may tend to show that either Mr. David Grant or Mr. Agba was the shooter as he was not on at the scene of the crime on the night in question. You should consider that testimony of Mr. Vassel with particular care because he may have been more concerned about protecting himself than about telling the truth. Bear that in mind when you decide how much or little you can believe of and rely upon what Mr. Vassel told you about Mr. Grant’s involvement in deciding this case.

Vassel argued, on appeal, that the trial judge erred in instructing the jury about the manner in which the jury was to assess the testimony of the appellant (the person who applies to a higher court for a reversal of the decision of a lower court).

The Appeal Court agreed with Vassel’s arguments and held that the trial judge’s instruction was problematic in terms of its impact regarding Vassel’s alibi (Vassel’s primary defence).

The Court of Appeal held that this instruction to the jury by the Judge was one of several errors. The Court stated:

In these circumstances, the inclusion of this reference had the effect of adding a level of scrutiny to the alibi evidence that was unwarranted and constitutes error.

Given that the Court of Appeal determined that the trial judge made multiple errors, Vassel’s appeal was allowed, his conviction was set aside, and a new trial was ordered. Vassel can apply for bail as he awaits his retrial.

We will continue to follow developments in this case as it makes it way through the court system and will provide updates in this blog.

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

Extreme Intoxication Can be Used as a Defence for Sexual Assault in Ontario

Written on Behalf of Affleck & Barrison LLP

An Ontario judge has ruled that the defence of extreme intoxication in sexual assault cases is once again valid in Ontario.

Superior Court Justice Nancy Spies ruled recently in the case of R. v. Cameron McCaw (“McCaw”) that section 33.1 of the Criminal Code, which states that self-induced intoxication is not a defence, is unconstitutional as it violates a defendant’s right to be presumed innocent and the right to fundamental justice.

HISTORY OF THE DEFENCE OF EXTREME INTOXICATION

The Supreme Court of Canada (“SCC”) ruled in 1994 that drunkenness in its extreme is a defence to sexual assault. This is known as the Daviault decision. The SCC upheld a trial judge’s acquittal of chronic alcoholic, Henri Daviault. Daviault was permitted to use extreme intoxication as a defence against charges that he sexually assaulted a disabled 65-year-old woman. Daviault had consumed up to eight beers and almost an entire large bottle of brandy. The court ruled that depriving Daviault of the drunkenness defence would violate his Charter of Rights and Freedoms (“Charter”).

Following this ruling, the federal government quickly introduced a law abolishing the defence of self-induced intoxication for crimes involving assault (section 33.1 of the Criminal Code).

33.1 (1)  It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

33.1 (2)  For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

WHAT HAPPENED IN THE CASE OF R. v. MCCAW?

On July 11, 2015, the alleged victim, referred to as K.B., and her ex-boyfriend (also the roommate of McCaw) attended a pool party from 5 p.m. to 11 p.m. where they consumed a lot of alcohol. K.B., her ex-boyfriend, and another man then met up with McCaw at his apartment . They had a few more drinks and then went outside to the parking lot to smoke. K.B. was so intoxicated that she had to be carried inside the apartment and placed on the couch in the living room where she passed out, fully clothed. McCaw and his two friends went to a nearby bar to continue drinking. McCaw and the ex-boyfriend then returned to the apartment. At some point during the evening, McCaw allegedly consumed marijuana and GBD, the “date-rape drug”.

K.B. alleges that “she awoke to find Mr. McCaw touching her sexually and kissing her and then engaging in sexual intercourse with her.” She initially thought this was her ex-boyfriend, so she did not resist. She then realized that it was McCaw. The victim left the apartment with her ex-boyfriend, leaving McCaw sitting in an arm chair, where he appeared to be sleeping and holding a pair of scissors.

The victim reported the sexual assault to police around 5 a.m. the next morning. Police proceeded to arrest and charge McCaw with sexual assault.

JUSTICE SPIES’ DECISION

Prior to McCaw’s trial, an application was filed by McCaw’s lawyer seeking an order affirming that section 33.1 of the Criminal Code was not in effect as it violated McCaw’s rights under the Charter. Allegedly, McCaw will testify at trial that he had sexual intercourse with A.B., but performed these acts without having intended to do so.

Justice Spies stated that section 33.1 “relieves the Crown of proving the specific mens rea for the charged offence and instead allows for proof of guilt on a different, and arguable lower, standard. It does this even where the state of the accused’s intoxication is so extreme that it reasonably gives rise to a doubt about whether the accused intended the offending action. The prospect of conviction in the face of a reasonable doubt offends both s. 7 and s. 11(d) of the Charter.”

Justice Spies also maintained that section 33.1 relieves the Crown of proving the voluntariness of the act (a mental element of the crime), again infringing an accused’s Charter rights.

In conclusion, Justice Spies allowed McCaw’s application and affirmed that section 33.1 of the Criminal Code is of no force and effect in Ontario. Thus, this decision does not apply directly to any other province in Canada.

Justice Spies provided her ruling on the defence of extreme drunkenness prior to McCaw’s trial. This allows McCaw to use the defence at trial on the charge that he sexually assaulted a woman in a Toronto apartment.

McCaw must prove at trial that it was more likely than not that he was intoxicated to the point of automatism. This is described as a robotic state where he was not aware of his actions.

McCaw’s trial begins on September 12. 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.

 

Judge Strikes Down Mandatory Minimum Sentences for Sex Crimes

Written on Behalf of Affleck & Barrison LLP

A judge from the Ontario Superior Court of Justice has ruled that mandatory minimum sentences for two sex offences should not apply in the case of Steevenson Joseph (“Joseph”), a 24-year-old first-time offender, who recruited and photographed two underage prostitutes.

After a three-week trial last February, Joseph was convicted of receiving a benefit from the prostitution of a person under the age of 18-years; procuring a person to offer to provide sexual services believing that the person was 18-years or older; knowingly advertising an offer to provide sexual services for consideration; and of making and possessing child pornography. A jury acquitted him of more serious charges, which included sexual assault and two charges related to underage prostitution.

WHAT HAPPENED?

At the time of the crime, Joseph was 21-years-old and was depressed and lonely. He received information from a friend, who was involved in the sex trade, about how lucrative the business was. He then met a girl, identified in court as C.A., who was a college student and who he believed was 18-years-old. He asked her if she wanted to make money in the sex trade. C.A. testified that Joseph did not pressure her to take part in prostitution. She also introduced her best friend, identified as R.D., to meet Joseph as she was also interested in the sex trade.

Joseph took provactive photos of both girls and posted them on a website that features escort service ads. The girls, who were in fact in high school and under the age of 18 at the time, also used Joseph’s apartment to service clients.

Joseph was caught by police through an Ottawa police sting operation after a girl identified as M.M. contacted Joseph through social media interested in becoming involved in the escort business.  M.M. was 15 years-old.

All three girls testified at trial that they were never pressured by Joseph, that they lied about their ages, and that they decided freely to join the sex trade.

REASONS FOR SENTENCE

At Joseph’s sentencing hearing, the Crown prosecutor argued that Joseph should be sentenced to a 3-and-a-half year jail term, while the defence requested a suspended sentence (ie. defendant serves a period of probation and receives a criminal record).

Joseph’s lawyer argued that given the facts of the case, the minimum penalties would be a form of “cruel and unusual punishment” and should be struck down as unconstitutional.

Justice Colin McKinnon agreed with Joseph’s lawyer and stated that the minimum penalty prescribed by law “for his offences are grossly disproportionate”. He gave him a suspended sentence, one year probation, and the conditions that he report to a probation officer and not communicate with underage girls identified as C.A., R.D. or M.M.

Justice McKinnon also ordered that Joseph’s DNA be taken pursuant to section 487.051 of the Criminal Code and that he be listed on the Sex Offender Registry for his entire life pursuant to section 490.013(2.1) of the Criminal Code.

Justice McKinnon struck down the mandatory minimums for two offences (receiving a benefit from the prostitution of someone under the age of 18 and making and possessing child porn) as unconstitutional.

This decision took into account that Joseph suffered “irreparable damage” due to inflammatory media reports that were based on exaggerated police assertions regarding human trafficking.

Justice McKinnon stated in his reasons for sentence:

I have sent a number of them to penitentiary, including two child pornographers. In stark contrast to those cases, the facts of this case constitute the least serious conduct witnessed by me in the context of prostitution and child pornography cases. …

An objective view of the facts causes me to conclude that Mr. Joseph has been subjected to sufficient punishment.

WHAT ARE MANDATORY MINIMUM SENTENCES?

Canada’s criminal law sets out mandatory minimum penalties as the lowest possible punishment an individual can receive if convicted of a criminal offence in Canada. These are often crimes that are both serious and violent offences. There are currently more than 70 of these provisions in the Criminal Code and the Controlled Drugs and Substances Act.

The majority of offences found in Canada’s Criminal Code do not have mandatory minimum sentences. In these cases, it is the judge’s discretion to deliver an appropriate sentence.

The codification of mandatory minimums was markedly increased by the former Conservative government in an effort to promote its “tough on crime” agenda.

The Supreme Court of Canada and lower courts have already struck down numerous mandatory minimum sentences related to weapons offences, drug offences, and sexual offences against children as unconstitutional. In fact, the Supreme Court of Canada has decided three of these cases (R. v. Nur and R. v. Charles; R. v. Lloyd) and R. v. Morrison is already on the docket to be heard in the near future.

In the current state of criminal law in Canada, millions of dollars are being used to litigate these sentences on a case-by-case basis. This results in inconsistent legal decisions across the country and uncertainty as to which mandatory minimums are valid.

Sentencing in the Joseph case is currently being reviewed by the Crown Law Office in Toronto to determine if the decision will be appealed. We will provide updates in this blog of any developments in this case as they become available.

If you are facing sexual offence charges or have any questions regarding your legal rights, please contact Durham region criminal defence lawyers Affleck & Barrison LLP. We have a reputation for effective results in defending all types of criminal legal charges. We offer a free initial consultation and a 24-hour phone service.   Contact our office online or at 905-404-1047 to speak with one of our experienced criminal defence lawyers today.

Crown Prosecutors Appealing Decision in Toronto Police Breach of Trust Case

Written on Behalf of Affleck & Barrison LLP

Kyle Upjohn (“Upjohn”), an officer with ten years of experience on the police force, was charged with the offence of breach of trust by a public officer contrary to section 122 of the Criminal Code and following a preliminary inquiry he was committed to stand trial. Upjohn successfully brought an application to the Ontario Superior Court of Justice seeking to quash the order committing him to stand trial.

A Crown prosecutor is appealing the decision to quash Upjohn’s criminal trial to Ontario’s highest court maintaining that the lower court Judge erred. Milan Rupic, Crown prosecutor, claims that Justice Maureen Forestall erred in failing to consider “the whole of the evidence” when considering Upjohn’s intent.

Rupic contends that Upjohn allegedly refused to help stop a young man commit suicide in High Park and should stand trial as the cop “knowingly avoided a duty of vital importance”.

WHAT HAPPENED?

On February 2, 2016, a concerned citizen reported to Upjohn, who was parked in his marked police vehicle in High Park, that a young man was preparing to hang himself in the park. Instead of coming to the aid of Alexandre Boucher (“Boucher”), Upjohn allegedly falsely claimed he was on another call and told the man to dial 911 and then drove away.

Subsequently, Upjohn was dispatched to attend to the park where Boucher, a 19-year-old, was later pronounced dead.

Initially, Upjohn was charged with criminal negligence causing death and failing to provide the necessities of life. These charges were withdrawn and Upjohn was charged with breach of trust by a public officer.

THE LOWER COURT DECISION

On application to the Superior Court of Justice, Upjohn’s lawyer argued that a breach of trust case required evidence that the accused had a dishonest or corrupt ulterior purpose for avoiding the call, and that there was no such evidence of this nature.  Justice Forestell agreed with this position and quashed Upjohn’s committal to stand trial.

THE ARGUMENTS ON APPEAL

The Crown prosecutor has filed an appeal at the Ontario Court of Appeal. The Crown argues that Justice Forestell erred in her decision to quash the trial by failing to consider the “whole of the evidence” in terms of Upjohn’s intent.

The Crown argues that the evidence supports the inference that Upjohn “knowingly avoided a duty of vital importance by means of a deceit”. Furthermore, the evidence demonstrates that in avoiding his public duty, Upjohn was untrustworthy and the breach of his duty was not for the public good.

The Crown stated:

This was not an innocent mistake. Upjohn masked his failure to act with dishonesty – by lying about being “on a call”. The lie suggests that Upjohn knew what he was doing wrong, that he was intentionally using his office for a purpose other than the public good.

The appeal in this case is scheduled to be heard in November, 2018.

WHAT IS BREACH OF TRUST?

A charge of breach of trust by a public officer is laid when an official is accused of violating the standard of conduct and responsibility demanded by his/her position.

Section 122 of the Criminal Code reads as follows:

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

The Supreme Court of Canada set out the elements of the offence of breach of trust by a public officer in R. v. Boulanger:

  1. The accused is an official;
  2. The accused was acting in connection with the duties of his office;
  3. The accused breached the standard of responsibility and conduct demanded of him by the nature of the office;
  4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
  5. The accused acted with the intention to use his public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

UPJOHN’S CURRENT STATUS

Currently, Upjohn remains suspended with pay from the Toronto Police Service since May 2016.

Upjohn is also accused of three counts of professional misconduct under Ontario’s Police Services Act, including neglect of duty and acting in a disorderly manner.

Under this Act, disciplinary hearings are conducted by police services.   A hearing officer must decide whether the allegations of misconduct have been proven on clear and convincing evidence. If an officer is found guilty of misconduct, appropriate penalties may be imposed, including:

  • a reprimand;
  • a direction to undergo specific counselling, treatment or training;
  • a direction to participate in a specified program or activity;
  • forfeiture of pay or time off;
  • suspension without pay;
  • demotion; or
  • dismissal.

We will report in this blog any developments in this case as they occur, including the decision on appeal.

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 for your convenience. We are available when you need us most.

Plans to Appeal to the Supreme Court as Seizure of Blood by Police in Dispute

Written on Behalf of Affleck & Barrison LLP

On July 25, 2018, the Ontario Court of Appeal upheld Christie Ann Culotta’s (“Culotta”) convictions on two counts of operating a vessel causing bodily harm while having a blood-alcohol content over the legal limit. This was a split decision, with a two-judge majority and Justice Gladys Pardu dissenting.

It has been reported that Culotta intends to take her case to the Supreme Court of Canada to determine the legality of taking extra blood samples from a suspected impaired boater in a hospital for use by the police.

WHAT HAPPENED?

On August 1, 2013 at approximately 2am, Culotta was driving a boat back to her family cottage from a party at a yacht club on Muskoka Lake. It was raining heavily and visibility was poor. There were four other young women on board.

Culotta was driving the boat at a “relatively high speed, fast enough that the hull planed above the water”. She then crashed into a rocky island, leaving a white V-shaped mark on the rocks above the waterline.

Three of the passengers were ejected from the boat, one landing on the island and two in the water. All three passenger were injured, fortunately there were no fatalities.

Culotta was not seriously injured and spoke with the investigating officer after the boaters were rescued. Ambulances rushed the two seriously injured victims to the hospital, while Culotta and two others with minor injuries were treated by ambulance.

An Ontario Provincial Police officer smelled alcohol in the ambulance and asked Culotta if she had been drinking. She admitted that she had a vodka and tonic and one or two additional drinks at dinner. The officer observed Culotta’s watery eyes and a slight slurring in her speech, but he was unsure whether this was from intoxication, crying, rain, or facial injuries.

Culotta was arrested a little more than an hour after the accident, but the officer did not immediately caution her about her right to silence in order to avoid interference with her medical care. She was cautioned half an hour later at the hospital. The officer tried to contact Culotta’s father in order for her to retain a lawyer, but to no avail.

In hospital, doctors took blood tests for medical purposes, including to test her blood alcohol. At trial, it became apparent that the officer told the lab technician that he wanted to seal some of the blood for investigative purposes. The technician drew more blood than was medically required, without Culotta’s consent. Two of the six vials of blood were sealed by the OPP officer and placed on a shelf in the laboratory refrigerator that was marked “for police use”. The blood was tested for alcohol content after a warrant was granted.

Blood tests revealed 107 mg of alcohol in 100 mL of blood, which is over the legal limit of 80.

The trial judge excluded the blood sample evidence, but admitted Culotta’s hospital records, which showed a blood alcohol level over the legal limit. The trial judge also found that Culotta’s statements to the police were found to be voluntary.

Culotta was convicted in a judge alone trial.

ONTARIO COURT OF APPEAL

At the Court of Appeal, Culotta contested the trial judge’s rulings with respect to the admissibility of evidence that she maintains were obtained in violation of her rights under the Canadian Charter of Rights and Freedoms (“Charter”).

The two judge majority agreed with the trial judge in finding that Culotta’s statements to the police were voluntary and that her hospital records were properly obtained with a search warrant.  Justice V.B. Nordheimer, writing on behalf of the majority, wrote:

Whether the lab technician did or did not take other blood samples for the police, some blood would have been taken from the appellant, and it would have been tested for blood-alcohol concentration regardless. Consequently, the Charter infringement regarding the two vials of blood is independent of the other blood samples taken. The exclusion of one does not undermine the admissibility and evidentiary value of the other.

JUSTICE PARDU’S DISSENTING OPINION

Justice Pardu, in her dissenting opinion at the Court of Appeal, was of the opinion that the Charter breaches were serious grounds to quash the convictions and order a new trial.

Justice Pardu found that Culotta’s hospital records, which included an analysis of her blood, should be excluded. She was especially concerned that the hospital had a tray in its refrigerator specifically reserved for police blood samples and a special form for when blood is taken at the request of police.

Justice Pardu, in her dissenting opinion, wrote:

Co-opting extra blood samples was a serious breach by police. There are statutory regimes prescribed for the taking of breath or blood samples where impaired driving offences are suspected. These regimes must be well known to police. For police to sidestep these procedures by inserting themselves into an accused person’s medical care is a grave misstep.

Calutta’s lawyers have disclosed their intention to appeal this decision to the Supreme Court of Canada. Given that the Court of Appeal was a split decision, Calutta can automatically appeal the decision without seeking leave from the Court.

We will continue to follow any developments in this case as it proceeds to the Supreme Court of Canada in this blog. In the meantime, if you have been charged with an impaired 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 take all steps necessary to protect your best interests. We maintain a 24-hour emergency service line and offer free confidential consultation to all prospective clients.

 

 

Acquittal for Man Convicted in Violent Home Invasion

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal acquitted Dino Phillips (“Phillips”) of 19 convictions, which included possession of a firearm, uttering death threats, kidnapping, unlawful confinement, robbery, breaking and entering, mischief, and pointing a firearm.

Phillips’ case took almost six years to get through the courts. It was one of the longest ever at the London courthouse.

He was sentenced in October, 2015 to eight years in prison after a jury found him guilty of 19 charges stemming from a home invasion and armed robbery in 2009.  The question at the trial was whether Phillips was one of the three men involved in the crimes.

Phillips was identified from a photo lineup by one of the participants of the crimes. However, there was no physical or forensic evidence linking Phillips to the crimes.

The Ontario Court of Appeal held that the trial judge erred in her instructions on how the jury should treat the identification evidence, particularly the in-dock identification and the photo lineup evidence.

As the Court of Appeal found that the verdict was unreasonable in that no reasonable jury could convict Phillips on the evidence in the case, a new trial was not ordered and Phillips was acquitted of all charges.

WHAT HAPPENED?

On May 8, 2009, Shawn George (“George”), Floyd Deleary (“Deleary”), and an unidentified man set out to rob George’s drug dealer at his apartment in London, Ontario.

At the time of the intrusion, the dealer’s girlfriend, her infant daughter, and sister were also at the dealer’s apartment. Deleary held a gun to the girlfriend’s head and the other two men tied up the dealer and girlfriend. The girlfriend’s sister was forced to look for money. The intruders were angered by the amount of money that was in the apartment and threatened to kill all of its occupants.

George and Deleary did not cover their faces and referred to each other by their first names. The third intruder was described as a “black man” who had his face covered and threatened to kill anyone who looked at him.

Unsatisfied with the amount of money in the dealer’s home, the “black man” and Deleary stole the girlfriend’s car and forced their way into the home of the drug dealer’s parents. They proceeded to tie up the occupants of the home and rob them at gunpoint. George was driving another vehicle with the intention of meeting up with the robbers, but drove off when he thought he saw an undercover police car.

After they heard sirens, the “black man” jumped out of the bedroom window and ran away.

Deleary was later arrested in the stolen car, while George was not arrested until February 23, 2010.

Phillips was arrested shortly thereafter following his identification by George in a photo lineup.

PHOTO LINEUP IDENTIFICATION

Following his arrest, George told police that he only knew the “black man” as “Virus”, but would be able to identify him.

Detective Constable Ellyatt prepared a photo lineup of twelve different men. Phillips was the fifth in the lineup. George identified Phillips as the man he knew as Virus.

The police did not perform a photo lineup for any of the other witnesses.

The Court of Appeal held that the photo lineup was so problematic as to render George’s identification of Phillips as worthless. Further, the trial judge failed to properly instruct the jury regarding the nature of identification problems, thus causing the trial to be unfair.

IN-DOCK IDENTIFICATION

During the preliminary inquiry (held to determine if there is enough evidence for an individual to be tried on their charges), witnesses were asked to identify who the “black man” was. Phillips was the only black man in the courtroom at the time of the preliminary inquiry.

Several witnesses pointed to Phillips in the courtroom. However, the drug dealer and the girlfriend’s sister could not identify the “black man”.

One witness testified that Phillips looked similar to the “black man”.

The trial judge instructed the jury to be cautious when relying on eyewitness testimony and alerted them to the possibility of mistakes.

The Court of Appeal concluded that the trial judge’s failure to instruct the jury concerning the dangers of in-dock identification was an error that undermined the fairness of the trial. The Court described the circumstances involving the in-dock identification as “egregious”. The victims had not been shown a photo lineup as it “never occurred” to the police to administer one and they only had one black man to choose from in the courtroom (the black man who had been charged with the crimes). The Court described this as highly prejudicial.

UNREASONABLE VERDICT

The question before the Court of Appeal was “whether, considering the evidence as a whole, the verdict was one that a properly instructed jury, acting judicially, could reasonably have rendered”.

Given that George’s pre-trial identification of Phillips was severely flawed, there was no independent confirmatory evidence supporting his identification, and there was no forensic evidence tying Phillips to the crimes, the Court of Appeal was “satisfied that no reasonable jury could have convicted the appellant [Phillips] on the evidence in this case, even assuming the jury had been charged properly”.

Therefore, the Court of Appeal allowed the appeal, set aside the convictions, and entered acquittals on all charges.

To speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, call Affleck & Barrison LLP at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7.

Former Reservist Found Not Guilty in Fatal Shooting of Unarmed Man

Written on Behalf of Affleck & Barrison LLP

After six hours of deliberations, a Hamilton jury found Peter Khill (“Khill”), a former Canadian Forces reservist, not guilty in the fatal shooting of Jon Styres (“Styres”), an unarmed First Nations man from Ohsweken, Ontario.

WHAT HAPPENED?

In the early morning hours of February 4, 2016, Khill and his girlfriend were woken up by two loud, banging noises. When he looked outside, Khill saw that the lights were on in his 2001 GMC pickup truck.

Khill proceeded to grab a 12 gauge shotgun from his bedroom closet. He loaded it with two shells and ran outside in a t-shirt and boxers to confront Styres, who was trying to steal his truck. He came up behind Styres, who was leaning over the passenger-side seat, and shouted “Hey, hands up!”. Styres reacted by turning toward Khill with his hands sweeping forward in a motion that allegedly led Khill to believe that he had a gun. This provoked Khill to fire two close-range shots that killed Styres.

The Superior Court of Ontario was told that Styres did not have a gun that night and was only carrying a knife in his pocket.

The Crown prosecutor told the court that Khill was not acting in self-defence and that he “took the law into his own hands”. Khill could have stayed safe in his home and called the police when he realized his truck was broken into. Furthermore, the Crown lawyer argued that Khill’s action in shouting instructions caused Styres to jump in surprise, which caused Khill to feel frightened and open fire in response.

Assistant Crown attorney, Steve O’Brien, argued that Khill only followed the parts of his training that allowed him to slyly approach and kill an enemy. O’Brien stated that Khill “completely ignored, that civilian life is not a war zone, that soldiers must take time to genuinely assess the situation. There is not one law for ex-soldiers and one law for everybody else.”

Khill pleaded not guilty to a charge of second-degree murder. His lawyer argued that his actions were justified on the basis of self-defence as Khill feared for his life and believed that Styres had a gun. It was argued that Khill was only acting in accordance with his military training and experience. Khill’s lawyer, Jeff Manishen, stated:

This young man who lived to defend his country wanted to continue to defend his own life. That young man should be found not guilty.

JURY SELECTION

This trial raises some of the same legal issues that were raised during the controversial trial of Gerald Stanley (“Stanley”) who was accused of killing Colten Boushie (“Boushie”).

In the Stanley case, an all-white jury in Saskatchewan acquitted Stanley of second-degree murder in the death of Boushie, an Indigenous man. Many critics suggested that the all-white jury had reached the wrong verdict. Furthermore, some believed that the defence used their peremptory challenges to dismiss any potential jurors who appeared to be Indigenous. Peremptory challenges are given in equal number to both the defence and the prosecutor to allow them to disqualify any juror, without reason.

In the Khill case, the jury was screened for possible racial bias. Each candidate was asked a challenge for cause question: “Would your ability to judge the evidence in this case without bias, prejudice or partiality, be affected by the fact that the deceased victim is an Indigenous person and the person charged with this crime is a white person?”. Each of the 12 jurors responded “no”.

It was reported that none of the jury members were Indigenous, however, the jury did include at least one non-white individual.

Mere weeks after the Stanley verdict, the government introduced legislation to eliminate peremptory challenges (Bill C-75). We have previously blogged about this new Bill, which has passed second reading.

Khill’s lawyer stated that getting rid of peremptory challenges is “wrong-headed” and that bias can be avoided through the use of challenge for cause questions, such as the one used in the Khill trial. He went on to suggest that the federal government should review Bill C-75 and re-consider the elimination of peremptory challenges.

We will continue to provide updates regarding the status of Bill C-75 as information becomes available. In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or online. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. For your convenience, we offer a 24-hour phone service. We are available when you need us most.