Recent Decisions

Ontario Courts Consider COVID-19 on Bail Review

Written on Behalf of Affleck & Barrison LLP

The subject of the COVID-19 virus has made its way into Ontario’s criminal courts and has been considered a “material change” in circumstances in a recent decision by the Ontario Superior Court of Justice.

In considering bail review applications in the cases of R. v. J.S and R v. Nelson, the Judges both acknowledged that the practice of social distancing and self-isolation is limited in Ontario’s prisons.

J v. J.S.

A suspected drug dealer, identified as J.S., requested a bail review by teleconference.  The defence argued that the Justice of Peace erred and that there were material changes in circumstances to allow for a house arrest surety bail.  A surety is someone who agrees to supervise an accused person while he/she is released into the community, or in this case on house arrest, as he/she awaits a court date to resolve a criminal matter.

In Canada, bail decisions are made following the consideration of the following three sets of factors:

  1. Whether detention is needed to ensure an accused will attend court;
  2. To protect the public safety;
  3. The strength of the Crown’s case and the consideration of other circumstances surrounding a case.

In the case of J.S., Justice Copeland acknowledged that there were two material changes in circumstances, which included new proposed sureties and the fact that COVID-19 had developed in Canada.

According to Justice Copeland:

In my view, the greatly elevated risk posed to detained inmates from the coronoavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground. …

[B]ased on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home.  The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects.  The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells.  … If more people are infected, those resources will be more strained.

Justice Copeland granted Mr. S’s bail review application and ordered the following terms:

  • $15,000 surety recognizance;
  • to reside with his surety K.S.;
  • to remain in his residence at all times, except in the continuous presence of a surety or for a medical emergency of himself or an immediate family member;
  • to have no contact whatsoever with J.C.; and
  • to not possess any unlawful drugs, except with a valid prescription.

R v. NELSON

In another recent case in the Ontario Superior Court of Justice, Justice M. L. Edwards was asked to consider whether to release on bail 27-year-old Nathaniel Nelson (“Nelson”), who was suspected of robbing a jewelry store while armed.

Nelson’s lawyer argued that his client should not face “the heightened risk of contracting the virus – a risk that is heightened because of the conditions that exist in a prison environment”.  However, his lawyer also “conceded that but for the virus, he fully recognized that the new plan of release was not one that had much, if any, chance of success”.

Justice Edwards ruled that those seeking bail on the grounds of COVID-19 must present “at least some rudimentary evidence” that they are more susceptible to the virus due to underlying health issues.  He stated:

An incarcerated person who is advancing in age and who has underlying health issues will almost, without doubt, be at a greater health risk of contracting the virus, with possible serious ramifications.

The heightened risk facing those in jail due to the unlikelihood of practicing social distancing while in a jail cell with double or triple bunking was a factor considered by Justice Edwards on this bail review.  Nelson’s youth, lack of pre-existing physical or mental health conditions, his prior criminal record and the fact that his charges were serious were also factors considered by the court. 

Justice Edwards dismissed the bail application and concluded:

I do not take lightly my decision to dismiss Mr. Nelson’s application.  Mr. Nelson previously did not meet his onus on the secondary and tertiary grounds for release. … I am not satisfied that there would be confidence in the administration of justice if Mr. Nelson was released from jail.

We will continue to follow any developments in the law with respect to the impact of COVID-19 and will provides updates in this blog

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Reduced Sentence for Drunk Driver Who Killed Three

Written on Behalf of Affleck & Barrison LLP

The driver of a vehicle who was involved in deadly car accident has had his sentence reduced from nine years to seven years by the Ontario Court of Appeal who found that the trial judge erred in reviewing punishments imposed in similar cases.

WHAT HAPPENED?

On April 10, 2016, Prithvi Randhawa (“Randhawa”), 22 years-old at the time, drove his vehicle, including four friends, at a high rate of speed through a residential neighbourhood after a night of drinking at Luxy night club in Concord.  Randhawa was found to have twice the legal limit of alcohol in his system.

Travelling at 135 km/h on Jane Street, Randhawa collided with a traffic signal pole near Sheppard Avenue West, the vehicle went airborne and crashed upside down.  The four passengers were all ejected from the vehicle.  Three of them died and one was serious injured.  The passengers ranged in age between 19 to 24 years-old.

The surviving passenger, Atul Verma, suffered a traumatic brain injury, a fractured ankle, knee damage, a lacerated liver and lumbar spine fractures.  At the time of the trial, he continued to suffer from constant pain, sleepless nights and the deprivation of some of the activities that he used to enjoy.

As a result of the crash, Randhawa sustained a traumatic brain injury and collapsed lung.   He regained consciousness in hospital two days following the accident.  Due to the injuries he suffered, he lost all memory of the events starting from his time inside the nightclub until he regained consciousness.

Randhawa was found guilty of three counts of impaired driving causing death and one count of impaired driving causing bodily harm.  Justice James Chaffe sentenced him to nine years in jail and a driving ban of 93 months.

Justice Chaffe reviewed three similar cases before imposing a sentence.  He held that Randhawa’s conduct was “egregious” and worse than the cases he reviewed. One of the cases reviewed by Justice Chaffe was the sentencing of Marco Muzzo who killed three children and their grandfather while impaired in 2016.  The sentence Justice Chaffe imposed on Randhawa was a year less than the sentence in the Muzzo case.

THE APPEAL

Randhawa appealed Justice Chaffe’s sentencing decision arguing that the trial judge erred in determining his sentence within the ranges available.  More specifically, it was argued that the sentencing judge failed to consider or misconstrued facts regarding other similar cases when considering an appropriate sentence.

On behalf of the Court of Appeal, Justice Nordheimer found that Justice Chaffe failed to explain why Randhawa’s offence was worse than two of the cases that he had reviewed.  Justice Nordheimer stated:

I am unable to find a basis upon which the sentencing judge’s finding could be supported.  This is of concern because, as I have said, it is this finding that clearly drove the sentencing judge to determine that a sentence of nine years was appropriate.

Justice Nordheimer ruled that Randhawa’s conduct was most similar to two of the cases under consideration, involving impairment, driving too fast and multiple deaths.  Justice Nordheimer also found that the sentencing judge failed to give consideration to Randhawa’s young age and the fact that Randhawa suffered very serious injuries, including a traumatic brain injury, in the crash.

Randhawa also argued that the sentencing judge did not consider that he will be facing numerous civil lawsuits arising from the accident, and subject to large judgments.  Justice Nordheimer did not find this to be an error made by the sentencing judge and is not a mitigating factor that is required to be considered when determining a sentence.

In a dissenting opinion, Justice Alexandra Hoy was of the opinion that the sentencing decision was appropriate.  She felt that it was within Justice Chaffe’s discretion to conclude that Randhawa’s conduct was more egregious than the drivers in two of the cases.  Furthermore, Randhawa was driving even faster than Muzzo and in a busier area.  She also made note that Randhawa had a worse driving record than Muzzo, including infractions for speeding and running a red light. 

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

Ontario Court Finds Prostitution Laws Unconstitutional

Written on Behalf of Affleck & Barrison LLP

An Ontario court judge in London has recently ruled that parts of Canada’s prostitution laws are unconstitutional.  Justice Thomas McKay ruled that the charges of procuring, receiving a material benefit and advertising sexual services laid against a couple who ran an escort business should be stayed or set aside as they violate the Charter of Rights and Freedoms.

Although the judgement is significant, it does not nullify the law as the decision was made in provincial court and is not binding.  Therefore, the law remains in effect unless an appellate court agrees with Justice McKay’s lower court decision.

WHAT HAPPENED?

Hamad Anwar (“Anwar”) and Tiffany Harvey (“Harvey”) are common law spouses.  They ran an escort business called Fantasy World Escorts from December 2014 to November 2015.  Anwar owned the business and Harvey performed the management duties for the business.  Sexual services were provided in exchange for cash at two apartments in London, Ontario or other prearranged locations in London, Calgary and Edmonton. 

Both Anwar and Harvey were responsible for the company’s advertising, which included a website used to promote sexual services and to recruit new employees.  They also advertised on bus stop locations throughout the City of London.  They promised an average salary of $2,500 to $5,000 a week, paid annual vacation, benefits and help with tuition and book payments for students. 

In October 2015, an undercover police officer booked an encounter at a hotel in London.  The officer met the escort in the hotel room and gave her $220.  He then explained that he became nervous and was having second thoughts.  The escort texted Harvey to ask if she could return the money, but did not receive a response, so she left the hotel. 

The couple were charged with receiving a material benefit from sexual services (section 286.2(1)), procuring (section 286.3(1)) and advertising an offer to provide sexual services for consideration (section 286.4) in contravention of the Criminal Code.

CONSTITUTIONAL CHALLENGE

In 2014, Bill C-36, the Protection of Communities and Exploited Persons Act, received Royal Assent and altered Canada’s prostitution laws.  This bill criminalized the purchase of sex and communication, the actions of third parties who economically benefit from the sale of sex and any advertising of the sale of sexual services.  However, it did grant immunity to those individuals who advertise or sell their own sexual services.

The couple brought an Application before the court to challenge the constitutionality of the Criminal Code provisions that they were charged under.  They argued that these sections violate their Charter rights.

Anwar and Harvey argued before Justice McKay that the law did not provide sex worker protections to other sectors of society, including third-party managers, and did not allow sex workers the ability to form their own associations to protect themselves.  They also argued that the law violated their freedom of expression and the freedom from unreasonable government interference.

In short, the couple maintained that these laws endanger sex workers by forcing them to work alone, without any protection or ability to outline terms or conditions or to screen clients. 

Following eight days of evidence, Justice McKay found that the three provisions of the Criminal Code violated the rights set out in the Charter, and these violations could not be justified. 

McKay ruled that the criminalization of third-parties makes it almost impossible for most sex workers to work together, for health and safety reasons or to share staff.  He wrote that the effect of the current law is, “at a basic level to deprive sex workers of those things that are natural, expected and encouraged in all other sectors of the economy.  As a result, sex workers, who are more likely in need of protection than most workers, are denied the benefits accorded to mainstream labour.

McKay also ruled that the criminalization of procuring has the effect of isolating marginalized or inexperienced sex workers and prevents them from seeking advice and support from more experienced peers.

Although this is a lower level decision, it is an important decision for judges who consider similar cases. Defence lawyer, James Lockyer, stated:

In order for the sections to be considered null and void, it would have to go up to the next level of court to the Ontario Court of Appeal.  And that’s up to the Crown whether or not they appeal it.   That’s in their hands, not ours.  And if the Ontario Court of appeal gives a decision, if there was an appeal, then ultimately one or the other parties could take it on to the Supreme Court of Canada.

We will continue to provide updates on this blog regarding any developments with respect to prostitution law in Canada and specifically with respect to this case if Justice McKay’s decision is appealed.

In the meantime, if you have been charged with a sexual 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.  For your convenience, we offer 24-hour phone services.  We are available when you need us most.

New Trial Ordered for Homeowner Who Killed Car Thief

Written on Behalf of Affleck & Barrison LLP

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

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

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

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

WHAT HAPPENED?

On February 4, 2016 at approximately 3 a.m., Khill and his girlfriend were woken up by two loud, banging noises.  When he looked outside, Khill saw that the lights were on in his 2001 GMC pickup truck.

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

At his trial, Khill told the court:

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

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

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

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

THE APPEAL

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

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

The Appeal Court said:

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

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

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

We will continue to follow any updates regarding this case and will provide any new developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise. 

Joyriding Teen Pleads Guilty to Manslaughter in 2011 Police Death

Written on Behalf of Affleck & Barrison LLP

A young man, known only as S.K., has recently pleaded guilty to charges of manslaughter for the death of York Regional Police Constable Garrett Styles. 

Following an appeal of his conviction and sentence, the Court of Appeal ordered a new trial for S.K.  Both the Crown prosecutors and lawyers for S.K. agreed on a plea deal.  S.K. was sentenced to two years probation and several conditions are in place regarding his operation of a motor vehicle. 

WHAT HAPPENED?

On June 28, 2011, 15 year-old S.K. took his father’s minivan for a drive with his friends, without his parents’ consent.

At 4:45 a.m., S.K. was stopped by Constable Styles for traveling 147 km/h in an 80 km/h zone.  S.K. was advised that the minivan would be impounded and he was repeatedly ordered to get out of the vehicle.  S.K. refused and pleaded with the officer to let him go.  Constable Styles proceeded to open the driver’s door and attempted to undo S.K.’s seat belt.  At that point, S.K.’s van began to move and Constable Styles was caught between S.K. and the steering wheel.  Constable Styles eventually jerked the steering wheel to the left causing the van to leave the highway, enter a ditch, proceed up an embankment, become airborne and roll 360 degrees.  Constable Styles was ejected from the van, which then fell on top of him.  He was pronounced dead shortly after arriving at the hospital.

As a result of this incident, S.K. suffered a spinal fracture that rendered him quadriplegic.

S.K. was charged with first-degree murder.  The key question at the trial was whether S.K. intended to drive away (alleged by the Crown prosecutor) or whether he accelerated by accident (alleged by the defence). 

S.K. was tried and a jury found that he intentionally accelerated and should have known that his actions were “likely” to lead to the death of the police officer.  S.K. was convicted and was sentenced to one day in custody in addition to time served (8 months) and a conditional supervision order for nine years to be served in the community. 

THE APPEAL

S.K. appealed his conviction on 5 separate grounds alleging that the trial judge made several legal errors. 

The three judge panel all agreed that the trial judge erred in failing to instruct the jury of the importance of S.K.’s age and level of maturity in assessing whether he knew his dangerous driving was likely to cause Constable Style’s death.

Justice Janet Simmons wrote:

This was a tragic case in which a police officer was killed as a result of the irresponsible acts of a headstrong 15-year-old.  In these circumstances, it was necessary for the trial judge to caution the jury that 15-year-olds do not have the same life experience as adults and that, as a result, a 15-year-old may not have the level of maturity to foresee the consequences of a particular course of action.

However, the judges of the appeal court panel disagreed as to whether the trial judge erred in excluding a statement that S.K. made to his father 26 days after the crash.  Following the crash, S.K. was intubated and unable to speak for three weeks. S.K. had told his father that he did not intentionally set the van in motion.  S.K.’s lawyers sought to introduce the statement as evidence of his state of mind during the police incident, however, the judge ruled against it.

Justice Simmons held that the statement should have been admitted “to respond to an implicit allegation of recent fabrication and to provide overall context for the jury about what the appellant had said close in time to the incident.” 

On the other hand, Justice Michael Tulloch and Justice David Brown ruled that the trial judge had made the right decision in not admitting the statement as evidence. 

On October 1, 2019, the appeal court allowed the appeal, set aside S.K.’s conviction and ordered a new trial.

GUILTY PLEA

Earlier this month, York Regional Police Services released a statement to confirm that a plea agreement had been reached between the Crown and S.K.  In coming to this decision, the Crown considered whether the family of Constable Styles could bear another trial and the impact another trial would have on witnesses, including first responders. 

Following numerous discussions between the parties, S.K. agreed to plead guilty to manslaughter and was sentenced to two years probation and conditions were placed on his ability to operate a motor vehicle.

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

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

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

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

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

WHAT HAPPENED AT CHOUHAN’S TRIAL?

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

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

WHAT HAPPENED AT CHOUHAN’S APPEAL?

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

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

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

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

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

(ii) been directly indicted; or

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

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

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

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

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

Two Convictions Overturned in Ontario Due to Rights Violations by Police

Written on Behalf of Affleck & Barrison LLP

As we begin the new decade, in two separate Ontario court decisions, police violations of the accused’s rights resulted in quashing convictions for child pornography and weapons offences.  The Ontario Court of Appeal found that the breaches of the convicted individuals’ Charter rights by police brought the administration of justice into disrepute.

THE CASE OF PETER MCSWEENEY

Peter McSweeney (“McSweeney”) was convicted in October 2017 of child pornography offences partly based upon incriminating statements he made to police.

In May 2016, nine police officers arrived at McSweeney’s home with a search warrant.  Durham Regional Police Detective Jeff Lockwood spoke with McSweeney on his porch and began questioning him without reading him his rights.  McSweeney provided a self-incriminating statement and he was then arrested and taken to the police station.

McSweeney again incriminated himself after stating that he wished to remain silent after talking to a lawyer.

During the trial, Judge Mary Teresa Devlin allowed McSweeney’s statements to be entered as evidence despite the defence objecting.  Justice Devlin ruled that McSweeney was not detained when he gave a self-incriminating statement on the porch and therefore the officer was not obliged to advise him of the right to speak to a lawyer.

At the Court of Appeal, the judges found that a “reasonable observer” would have believed that McSweeney was detained at home and also found that the questioning at the police station was improper.

Justice Strathy, writing on behalf of the two other justices hearing the appeal, stated:

The state conduct was willful and in disregard of the appellant’s asserted Charter rights.  It had a serious impact on those rights and on his attempt to exercise them.

As a result of this decision, the appeal court allowed the appeal, quashed the convictions and ordered a new trial.

THE CASE OF BILAAL MOHAMMED

In May 2016, Bilaal Mohammed (“Mohammed”) was convicted of several firearm offences, possession of property obtained by crime, and possession of cannabis for the purpose of trafficking.  At the time of his appeal, he had already served his sentence.

During a routine traffic stop, Mohammed was pulled over by provincial police in a parking lot near Alfred, Ontario for a broken license-plate light.  The officer smelled marijuana and gave Mohammed a “soft caution” (an informal caution) and did not  advise him of his right to speak to a lawyer.

Mohammed was strip-searched in the parking lot, to the point of having his pants dropped to his ankle.  Police did not find a gun.  During the search of his car, police found some cash, a debt list, a grinder, a scale, several cellphones, some cannabis and ammunition.

Mohammed was asked if he had a gun and was told that if he turned it over he would be released.  He admitted that he had a loaded gun strapped to his pant leg.  He was arrested, advised of his rights and taken to the police station, at which point his cellphone was searched.

At his trial, Mohammed was convicted of various offences for which he appealed.  He challenged the trial judge’s ruling to admit evidence obtained during his roadside strip search, his interrogation without counsel, the search of his vehicle, and the search of his cellphone. 

At the appeal, the Crown agreed that failing to initially advise Mohammed of his rights, questioning him before he was able to talk to a lawyer, as well as the strip search and the search of Mohammed’s phone without a warrant were serious Charter breaches.

The judges that heard the appeal agreed with the Crown and stated “each of the breaches is serious.  Taken as a whole, the breaches are so egregious that the evidence must be excluded.”

The appeal court ruled that the first strip search was not authorized by law.  Furthermore, it was conducted in public in a highly invasive fashion.  Mohammed’s section 7 and 10(b) Charter rights were breached as he was questioned without being provided the right to counsel and he was persuaded to turn over the gun on false pretenses.  Finally, the warrantless search of Mohammed’s cellphone used as evidence of drug trafficking was in violation of section 8 of the Charter.

The three justices on the appeal court panel wrote:

This was a series of serious rights violations, committed in apparent ignorance of well-established law, arising out of the appellant’s arrest for smoking a marijuana joint.  These violations had a significant impact on the appellant’s Charter-protected interests.

The Court of Appeal excluded all of the evidence, allowed the appeal and set aside the convictions.

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.  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 to protect your rights and to ensure that you have access to justice at all times. 

Alberta Court of Appeal Sets Minimum Sentencing for Fentanyl Trafficking

Written on Behalf of Affleck & Barrison LLP

As the country copes with the opioid crisis, the highest court in Alberta has now set a new sentencing starting point for those convicted of fentanyl trafficking.  The court recognized the peril that Alberta is in and stressed that it is up to the courts “to protect the public by imposing sentences that will alter the cost-benefit math performed by high-level fentanyl traffickers”.

A special five-justice panel of the Alberta Court of Appeal heard two appeals by the Crown prosecutor regarding fentanyl trafficking and unanimously ruled that convictions for wholesale fentanyl trafficking should receive a minimum sentence of nine years.

THE APPEAL DECISION REGARDING CAMERON PARRANTO

Last year, Cameron O’Lynn Parranto (“Parranto”), who pleaded guilty, was sentenced to 11 years in prison for trafficking in fentanyl in Edmonton.  Police seized the equivalent of a half-million doses of fentanyl.

Parranto pleaded guilty to possession for the purpose of trafficking in fentanyl and other drugs for two sets of offences. 

After a search warrant was executed at Parranto’s home, police recovered 27.8 grams of fentayl, 182.5 grams of methamphetamine, 82.6 grams of cocaine, 396 morphine pills and 168 oxycodone pills.  They also found $55,575 in cash, a loaded handgun, ammunition, police and sheriff badges, body armour, a dozen cell phones, scales and a cash counter.

Following Parranto’s release for his first set of offences, he was arrested three months later when greater quantities of fentanyl, methamphetamines, cocaine, heroin, oxycodone and the date rape drug GHB were uncovered. 

Parranto pleaded guilty to both sets of offences and was handed an 11-year sentence for eight offences, five years for the March 2016 offences and 6 years for the October 2016 offences. 

The court of appeal increased Parranto’s sentence to 14 years, minus credit of 3 ½ years for pre-sentence custody.

THE APPEAL DECISION REGARDING PATRICK FELIX

Earlier this year, Patrick Felix (“Felix”), a wholesale drug trafficker in Fort McMurray, was sentenced to 7 years in prison for his role in trafficking fentanyl after pleading guilty.  Investigators seized approximately $1 million worth of drugs and 3,000 fentanyl pills.

Felix obtained drugs and stored them at a “stash” location.  He employed “runners” to take orders, retrieve the drugs from the stash location and complete the deals.  “Food bosses” were also used to manage the runners, collect money from the sales and then provide Felix with the proceeds.

In 2015, Felix sold drugs to an undercover police officer on six separate occasions.  Felix provided 2,388 fentanyl pills and 2.5 kilograms of cocaine for a total price of $173,400. 

At trial, Felix pleaded guilty to four counts of trafficking in fentanyl and cocaine.  He was sentenced to seven years for each count of fentanyl trafficking and four years for each count of cocaine trafficking to be served concurrently.  A concurrent sentence occurs when all sentences are served at the same time, with the longest sentence period controlling the length of time in jail. 

The Crown prosecutor appealed the sentence and requested that the appeal court establish a minimum sentence for those convicted of wholesale trafficking in opioids.  On appeal, the Crown also argued that the trial judge made “case-specific errors that affected the fitness of the sentence imposed”. 

At the appeal, Justice Antonio wrote that the sentence imposed by the trial judge was “demonstrably unfit” in part due to the judge’s failure to distinguish between commercial trafficking and wholesale trafficking and failing to take into account Felix’s role in the organization.

Justice Antonio, writing on behalf of all the judges on the bench, stated:

Mr. Felix’s role was at the top of his organization, which is a weighty aggravating factor.  He energetically ran a business that was structured to maximize profit while minimizing the chance of criminal consequences to himself.  He was responsible for pouring poison into his own community and potentially others, jeopardizing the health and lives of untold numbers of end users.

Trafficking in cocaine has a four-and-a-half year starting point for sentencing.  A starting point for sentencing of a low-level commercial dealer of heroin is typically five years. 

The court will take into account the dangerousness of the drug and the scale of the offender’s involvement in the drug operation when establishing a minimum sentence for those convicted.  The court of appeal found that wholesale trafficking is more morally blameworthy than commercial trafficking as it presents a grave danger to individuals, communities and the greater public interest.  The appeal court defined wholesale trafficking as one that traffics large amounts of one or more drugs or distributes drugs on a large scale, possibly for resale.

Given the appeal court’s comments, the Crown was successful on appeal and set a starting point for those found guilty of commercial trafficking at nine years.  Felix’s overall sentence was increased by the court to 10 years.

If you have been charged with a drug related charge or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice. 

Drug Conviction Overturned on Appeal as Police Delayed Access to Lawyer

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has overturned Daniel Marlon Noel’s conviction for drug offences.  The court found that Durham Regional Police breached his Charter rights by not allowing him to promptly speak to a lawyer on the night of his arrest.

WHAT HAPPENED?

On December 21, 2015 at 10:28 p.m., Durham Regional Police entered a residence where Daniel Marlon Noel (“Noel”), his partner and his brother were living pursuant to a search warrant.  All three individuals were suspected of operating a small-scale cocaine trafficking operation, which was under investigation by Durham Regional Police.  That evening, Noel was arrested at gunpoint by Officer Aiello in a bedroom containing his belongings and identification.  Officer Aiello did not advise Noel of his right to counsel.

Noel was taken to a central location in the house and within five minutes of the police’s entry into the residence Officer Gill read him his rights to counsel.  Noel asked to speak to a lawyer, however, no efforts were made to allow for his right to counsel.

The police search of Noel’s bedroom recovered $5,670 Canadian, $71 U.S., 73 grams of cocaine, 55 grams of marijuana and a digital scale.

Noel was transported to the police station at 11:04 p.m. and arrived at the station at 11:10 p.m.  Officer Gill testified that, while being led to the transport vehicle, Noel admitted ownership of the drugs and claimed that his brother was not involved. 

At 12:48 p.m., Officer Capener placed two calls to duty counsel for Noel and his partner, Stacey Long, and left messages requesting a return phone call. 

At 1:25 a.m., Noel learned that his brother had received a call from duty counsel.  Officer Westcott left another message for duty counsel to call Noel.

At his trial, Noel alleged the following Charter breaches:

  • That the entry to his home violated section 8 (right to be secure against unreasonable search and seizure);
  • That his arrest violated section 9 (right not to be arbitrarily detained); and
  • That his right to counsel was breached which violated section 10(b) (right to retain counsel without delay).

The trial judge rejected all arguments regarding Charter violations, except that Noel’s right to counsel without delay was violated.  However, Noel was denied the exclusionary remedy that he sought under the Charter, the evidence was admitted and Noel was convicted of the drug offences.

THE APPEAL

Noel appealed his conviction and argued on appeal that the trial judge erred in failing to find breaches of his Charter rights. 

The appeal court concluded that there was a violation of section 10(b) of the Charter and found that the police had a “cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay”.  Furthermore, the police could not provide a reasonable explanation for the delay. 

The appeal court wrote:

Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide.  … [Noel] asked to speak to counsel promptly but that right was denied. … We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel’s right to counsel without delay.

The appeal court allowed Noel’s appeal, set aside his convictions and substituted a verdict of acquittal. 

RIGHT TO COUNSEL

The right to counsel is one of the most important and recognized rights provided by the Canadian Charter of Rights and Freedoms.  Section 10(b) of the Charter provides:

10.       Everyone has the right on arrest or detention: 

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

The rights afforded under this section are designed to inform a detained individual of the scope of their situation and to ensure that legal advice is available. 

The right to counsel consists of an informational and an implementational component.  Thus, a detained individual must be informed of the right to counsel and this right must be understood by the individual (i.e. an interpreter may be required).  The implementational component involves the obligations and restrictions upon the police in conducting their investigation once the right to counsel has been asserted. 

The right to counsel must be provided without delay.  This is often interpreted to mean immediately in order to protect the detainee from the risk of self-incrimination 

Police must advise the detainee of his/her right to counsel and explain the existence and availability of legal aid and duty counsel if one cannot afford or cannot reach a lawyer.  Thus, the right to counsel also has a corresponding right to retain counsel of one’s choice. 

When a detainee has exercised his/her right to counsel, police must refrain from trying to elicit further evidence and refrain from questioning the individual until he/she has had an opportunity to speak with counsel. 

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

Supreme Court Rules that 18 Month Time Limits Also Apply to Youth Cases

Written on Behalf of Affleck & Barrison LLP

The highest court in Canada has ruled that the 18-month time limit required to bring an accused individual to justice, set out in the decision of R. v. Jordan, also applies to cases involving youth. 

According to Statistics Canada, there were 2,767 criminal cases that took longer than 12 months to complete in youth court in 2017-2018 (approximately 10% of all cases).  However, these numbers do not account for whether any of the delays were the result of actions on behalf of the defence.

WHAT HAPPENED?

In the case of R. v. K.J.M, a 15-year-old Alberta teen was charged with various offences arising out of fight that occurred during a house party in 2015.  K.J.M. was accused of stabbing a teen with a box cutter while intoxicated.  At his trial, K.J.M.  was found guilty of aggravated assault and possession of a weapon for a dangerous purpose almost 19 months after charges were first laid against him.  By the time his trial concluded in November 2016, K.J.M was nearly 17-years-old. 

Although the trial judge found that the total delay exceeded the 18-month ceiling, K.J.M.’s Charter application was dismissed as “it was not the clearest of cases where a stay should be granted”.  This decision was appealed to the Court of Appeal where it was again dismissed by the court and each of the three judges took a different approach in their reasons as to whether the 18-month ceiling applies to youth cases.

WHAT IS THE PRESUMPTIVE 18-MONTH CEILING?

We have previously blogged about the 2016 R. v. Jordan decision wherein the Supreme Court ruled that unreasonable delays in criminal cases violate an individual’s guaranteed rights under the Charter of Rights and Freedoms.

The Supreme Court specifically spelled out the rule that court proceedings could not exceed 18 months for provincial court cases and 30 months for more serious cases heard before the Superior Court.

However, the Jordan decision did not specifically address whether these timelines apply to individuals under the age of 18 who fall under the youth court system. 

THE SUPREME COURT RULING IN R. v. K.J.M.

In a 5-4 decision, the majority of the Supreme Court concluded that there is no evidence that the youth criminal justice system is suffering from the same delays as the adult system that would justify setting a lower ceiling for youth cases. 

Justice Michael Moldaver, on behalf of the majority, wrote:

Unless and until it can be shown that Jordan is failing to adequately serve Canada’s youth and society’s broader interest in seeing youth matters tried expeditiously, there is in my view no need to consider, much less implement, a lower constitutional ceiling for youth matters.

The majority of judges of the Supreme Court found that although K.J.M.’s trial exceeded the 18-month timeline, some of the delays were caused by the defence and therefore dismissed his appeal.

Three judges of the Supreme Court offered a dissenting opinion and concluded that a 15-month time limit would be appropriate for cases of young offenders.  Writing on behalf of the dissenting judges, Justice Rosie Abella and Justice Russell Brown wrote:

Doing so gives effect to Parliament’s intention in enacting a separate youth criminal justice system, to Canada’s international commitments, to the recognition in pre-Jordan case law that youth proceedings must be expeditious, and to the consideration that led to setting the presumptive ceilings for adults in Jordan.  … Just as the court in Jordan determined the appropriate ceiling for adult proceedings, a separate analysis is required for youth proceedings.

Graham Johnson, K.J.M.’s lawyer, is of the opinion that timely trials profoundly impact young people and delays can impact the prospect of rehabilitation. Johnson argued that a 12-month limitation for youth court proceedings would be more appropriate.  Mr. Johnson told CBC News:

In Canada, children as young as 12 can be charged with a criminal offence, and if it takes 18 months to get the case to court and there’s a guilty verdict, you’re then punishing a 14-year-old for what the 12-year-old did.  And there’s a certain, in my view, injustice in that, given how quickly children develop, mature and can change their behaviour.

Mary Birdsell, executive director of the organization Justice For Children and Youth, who was an intervenor in this case and advocated for lower time limits for youth court proceedings was disappointed with the Supreme Court ruling.  Ms. Birdsell stated:

Speedy justice is really important for young people because their sense of time is different, because their development is ongoing, and because you want to capture the moments for addressing underlying consequences in meaningful ways.

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.