Recent Decisions

Alberta Appeal Court Ruling Likely to Limit Electronic Device Searches at Canadian Border

Written on Behalf of Affleck & Barrison LLP

Sheldon Canfield (“Canfield”) and Kent Townsend (“Townsend”), both Canadian citizens, were charged with possession of child pornography contrary to section 163.1(4) and with importing child pornography contrary to section 163.1(3) of the Criminal Code.

The criminal charges against both men took place when they re-entered Canada at the Edmonton International Airport in 2014.  Although the charges against the men are unrelated, both men sought an order from the Court under the Charter of Rights and Freedoms that the evidence of the search of Canfield’s cell phone and Townsend’s computer by border officers be excluded at their trials. 

Both Canfield and Townsend had their electronic devices searched by border officers and were found to have child pornography in their possession.  They were both arrested, convicted and appealed the Court of Queen’s Bench of Alberta’s decision not to exclude the evidence obtained during the search of their electronic devices by border officials.  The Alberta Court of Appeal has ruled that the searches by the Canada Border Services Agency (“CBSA”) officers of the digital devices were unconstitutional as the Customs Act imposes no limits on the search of these types of devices at the border.

THE CRIMINAL CHARGES

At the Canadian border, Canfield was flagged for a secondary screening due to his travel patterns and “overly friendly demeanor” after returning home from Cuba.  During this screening, an officer suspected that Canfield had child pornography on his phone.  Canfield confirmed that he did and showed the officer an image of child pornography on his device. 

Townsend was also arrested after being flagged by border officials when returning home from Seattle.  Townsend was selected for a secondary screening due to his five-month travel pattern, his lack of eye contact with border officials and his lack of employment.  He was also carrying 12 electronic devices.  Child pornography images were found on Townsend’s laptop and he was arrested.

At trial, Canfield and Townsend were convicted of possession of child pornography and importing child pornography.  Canfield was sentenced to 18 months in jail and Townsend was sentenced to two years.

THE APPEAL

At their appeal, it was argued that section 99(1)(a) of the Customs Act (“Act”) was unconstitutional as it permitted unlimited searches of electronic devices at the Canadian border.

Section 99(1)(a) of the Customs Act permits Canada Border Services Agency officers to examine “goods” that have been brought into Canada.  This section has been interpreted to allow CBSA officers to search personal electronic devices without restriction.

The written decision by the three judge panel of the Court of Appeal stated:

While the search of a computer or cellphone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy.  … To be reasonable such a search must have a threshold requirement.

According to the Court of Appeal, the trial judge failed to assess the application of section 99(1)(a) of the Act considering the developing technology of personal digital devices.

There is no doubt that there have been significant developments in the technology of personal electronic devices and the way they are used by Canadians (since 1988).  Individuals were not travelling and crossing borders with personal computers or cell phones that contained massive amounts of highly personal information.

The Court ruled that the definition of “goods” in the Act is “of no force” when it comes to personal electronic devices.

The Alberta Court of Appeal found that section 99(1)(a) of the Act was unconstitutional as it imposed no limits on searches of electronic devices by CBSA officers at the border.  The Appeal Court ruled that this section will be of no force and effect for one year to allow Parliament the opportunity to amend the Act.

Despite the Appeal Court’s ruling on the constitutional validity of the section, the convictions of Canfield and Townsend were upheld by the Court based upon the finding that the border officers acted in good faith in carrying out the searches and uncovered real evidence of serious offences.  Furthermore, society’s confidence in the justice system was best maintained through the admission of the evidence obtained through the unconstitutional searches. 

The CBSA, in a statement to CBC News, reported that it is currently reviewing the appeal court decision and assessing the next steps.  According to the CBSA:

The CBSA’s policy is to examine a digital device only if there are indicators that evidence of a contravention will be found.  It is important to note that examinations of digital devices are not conducted as a matter of course. …

This is a pretty big change in the law for the 98 million people who come through our Canadian border every year.

We will continue to follow any developments in the law with respect to the limits imposed on officers to search electronic devices at border crossings in Canada and will report them in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1047.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting their client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Supreme Court Rules New Changes to Jury Selection are Constitutional

Written on Behalf of Affleck & Barrison LLP

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

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

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

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

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

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

PARDEEP CHOUCHAN’S CONSTITUTIONAL FIGHT

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

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

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

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

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

THE DECISION BY THE SUPREME COURT OF CANADA

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

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

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

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

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

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

Court Rules New Trial for Couple Convicted in Child’s Death

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has ruled that a couple convicted of manslaughter in the suspected starvation of their two-year-old daughter should receive a new trial to put forward new evidence.

A jury convicted Sean and Maria Hosannah in October 2014 following the death of their 27-month-old daughter, Matinah, in February 2011.  Maria Hossanah was sentenced to two years in jail and her husband was sentenced to two years less a day. 

In February 2011, Matinah stopped breathing while in her mother’s arms.  Her father called 911, but paramedics could not resuscitate Matinah and she was pronounced dead in hospital.  Both of her parents, Sean and Maria Hosannah, were charged with manslaughter for allegedly failing to provide their daughter with the necessaries of life. 

Following their convictions, the Hosannahs began the appeal process and were therefore released from custody pending their appeal.

THE TRIAL

At trial, the Crown prosecution argued that the Hosannahs had failed to provide Matinah with the necessaries of life by not feeding her properly or obtaining medical attention for her. 

The jury heard evidence that Matinah was underweight and poorly developed.  She was unable to walk or crawl by the age of two.  A family doctor allegedly told the parents to take her to a specialist, however, Matinah had not received any medical attention in the last year of her life.

The Hosannahs defence was that they were good parents and were distressed by their daughter’s death.

The prosecution’s case rested largely on the evidence of Ontario’s chief forensic pathologist, Dr. Michael Pollanen.  Dr. Pollanen testified that Matinah was severely malnourished and lacked protein.  She was also found to have suffered from rickets and a blood disorder caused by vitamin deficiency.  Matinah also showed signs of chronic and severe asthma.  According to Dr. Pollanen, Matinah suffered an asthma attack while in a critical state of illness due to protein malnutrition and vitamin deficiency, which led to a lack of oxygen, shock and ultimately death.

Dr. Stanley Zlotkin, a pediatric nutritionist, testified that Matinah’s protein and vitamin deficiencies were the result of an unbalanced diet that stunted her growth.  He concurred with Dr. Pollanen that she was severely malnourished.

The defendants did not submit any evidence from a medical expert to challenge the prosecution’s expert reports. 

At the trial, the court learned that the Hosannahs maintained a strict vegetarian diet and only ate to live.  They also had an aversion to doctors, vaccinations and were suspicious that their daughter had been poisoned at birth.  Although the prosecution accepted that the Hosannahs did not want to hurt their daughter, it was argued that the choices they made led to their daughter’s death.

THE APPEAL

On appeal, the Hossanahs were allowed to present new evidence from two experts.

Fresh evidence can be entered on appeal if it is in the interest of justice, while preserving the integrity of the criminal justice process according to section 683(1)(d) of the Criminal Code. 

Dr. Michael Shkrum, a forensic pathologist, disagreed with Dr. Pollanen’s finding that asthma played a part in Matinah’s death.  According to Dr. Shkrum, there was no evidence that she suffered from protein malnutrition and he found that Matinah died of congestive heart failure due to her enlarged heart, conceivably caused by anemia and/or vitamin D deficiency. 

A second expert in pediatric bone disorders and genetics, Dr. Miller, confirmed that Matinah suffered from severe vitamin D deficiency rickets, which severely compromised her health and affected her growth. 

According to the Hosannahs’ lawyer at their appeal, Dr. Pollanen’s report relied upon a blood sample that was taken while doctors attempted to resuscitate Matinah. Matinah had more than half a litre of saline injected in her bloodstream to revive her, which may have diluted her blood and could explain her blood protein levels.

The judges of the Court of Appeal concluded that had the new evidence been admitted at trial it may have affected the verdict.

Although the jury could have concluded that reasonable parents would be aware of the absence of protein in their child’s diet and the risk that it posed, a jury could conclude that a reasonable parent may not realize that their child’s diet lacked adequate vitamins D and B12.

The proposed evidence is relevant because of its tendency to show what caused the deceased to die and, by inference, whether her death originated in any unlawful conduct by the appellants.

The Court of Appeal accepted the Hossanahs’ new reports, allowed the appeal of their convictions and ordered a new trial.

We will continue to follow the developments of this case as it proceeds to trial and will report on any updates in this blog.

In the meantime, if you are facing criminal charges 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.

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

Written on Behalf of Affleck & Barrison LLP

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

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

APPLICATION TO DISMISS ADMISSIONS MADE TO POLICE

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

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

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

Durham Officer Kevin Park testified at trial:

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

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

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

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

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

SECTION 10(B) OF THE CHARTER

According to section 10(b) of the Charter:

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

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

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

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

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

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

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

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

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

We will continue to follow Adam Strong’s trial and will report any developments that occur in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a reputation for effective results in defending all types of criminal legal charges.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. 

Police Officer Sentenced to 12 Months in Jail for Death of Woman in Custody

Written on Behalf of Affleck & Barrison LLP

A new decision by the Ontario Superior Court of Justice, and for the first time in Canada, a police officer has been convicted and sentenced for failing to provide medical assistance to an individual in their custody.

In November 2019, London Police Constable Nicholas Doering (“Doering”) was convicted of criminal negligence causing death and failing to provide the necessaries of life in the death of Debralee Chrisjohn (“Chrisjohn”).

THE FACTS

On September 7, 2016, Chrisjohn, while in police custody, died of a heart attack as a result of having consumed a toxic level of methamphetamine.

A video of Chrisjohn being taken into the Ontario Provincial Police detachment showed her to be limp, silent and demonstrating no signs of movement.  She was witnessed to being dragged into a cell.  At that point, EMS was called, however, by the time they arrived they were unable to save her life.

Chrisjohn was in the custody of Constable Doering, who had arrested her for an outstanding OPP warrant, and transferred Chrisjohn to OPP custody. 

At his trial, Constable Doering testified that he did not believe that Chrisjohn required medical attention and was simply suffering from the effects of methamphetamine.  According to the defence, Constable Doering made an error in judgement that was reasonable based upon his experience with methamphetamine users and his conversation with an EMS supervisor early on in her detention.  Doering denied that he deliberately misled OPP officers.

The following facts were admitted by Constable Doering at his trial:

  • Chrisjohn was unable to provide herself with the necessaries of life while in the custody of Constable Doering;
  • Methamphetamine is a powerful stimulant drug and users often experience confused cognitive function, paranoia, elevated sensory stimulation and agitation and restlessness;
  • Medical treatment is available for those who have ingested methamphetamine, which typically includes monitoring and treating the user’s symptoms in a hospital until the effects have dissipated;
  • Medical treatment is not always warranted for those who experience side-effects from using methamphetamines;
  • If treatment or intervention is required, the sooner treatment is received the better;
  • On September 7, 2016, Chrisjohn required medical treatment due to the effects of using methamphetamines at the time of her transfer to the OPP;
  • Chrisjohn was in a critical state and required urgent medical intervention from the time of her arrival at the Elgin OPP detachment and onwards;
  • The delay in providing Chrisjohn with medical treatment impacted her chance of survival.  If she had received medical attention prior to the arrival of EMS at the Elgin OPP detachment, she may have survived.

THE ALLEGATIONS AND CRIMINAL OFFENCES

At trial, Crown prosecutors alleged that Constable Doering knowingly provided false and incomplete information regarding Chrisjohn’s medical condition to the OPP when he transferred custody and told OPP that she had been medically cleared.  Thus, demonstrating a wanton and reckless disregard for her life and providing the elements of criminal negligence causing death.  Furthermore, it was alleged that Constable Doering’s behaviour was a marked and substantial departure from the standard of care of a reasonable and prudent police officer.

Section 215 of the Criminal Code outlines the offence of failing to provide the necessaries of life.  According to the law, where a person is in charge of another, he/she has a duty to provide the necessaries of life.  The standard is not of perfection. The Crown prosecutor must prove that there was a marked departure from that of a reasonably prudent person having charge of another, in circumstances where it is reasonably foreseeable that a failure to provide the necessaries of life would lead to a risk of danger to the life of the victim.

Section 219 of the Criminal Code outlines the offence of criminal negligence.  This offence requires proof that the accused did something or failed to do something that was his/her legal duty to do that demonstrates a wanton and reckless disregard for the lives and safety of others.  The offence also requires that the accused’s conduct was a marked and substantial departure from the standard of care that a reasonably prudent person would observe in the circumstances.

Justice Pomerance, in her reasons for judgement, stated:

The evidence in this case suggests that stereotypes and generalized assumptions played a role in the events leading to Ms. Chrisjohn’s death.  …

In short, Cst. Doering had pre-conceived notions about drug users and he held fast to those notions when dealing with Ms. Chrisjohn.  Rather than moulding his theory to fit the facts, he seems to have moulded the facts to fit his theory. …

I am satisfied that a reasonably prudent police officer would have appreciated the need for medical assistance at the time of the transfer to the OPP, if not before, and would have been aware of the risk that failure to obtain such medical assistance would endanger Ms. Chrisjohn’s life. 

Justice Pomerance found that Constable Doering failed to provide Chrisjohn with the necessaries of life and in providing erroneous and incomplete information about Chrisjohn’s medical condition to OPP demonstrated a wanton and reckless disregard for her life, thus contributing to Chrisjohn’s death.  He was therefore found guilty of criminal negligence causing death.

Justice Renee Pomerance sentenced Constable Doering to 12 months in jail.  In her sentencing decision, she stated:

The sentence must convey the irrefutable message that Ms. Chrisjohn’s life was valued and valuable. … [I]n some cases, loss of life will, practically and symbolically, command the most significant form of penalty. This is one of those cases.

Constable Doering has been suspended from his duties with the London Police with pay and is currently appealing the decision. 

We will continue to follow this criminal case as it makes its way through the appeal process and will report any developments in this blog.

If you are facing a drug related charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Errors by Police Officer and Trial Judge Leads to Appeal Court Overturning Child Pornography Conviction

Written on Behalf of Affleck & Barrison LLP

In a recent decision by the Ontario Court of Appeal, a man convicted on pornography charges had evidence obtained in accordance with a production order and search warrant excluded resulting in his acquittal on all counts.

Former Hamilton minor hockey coach, Steven West (“West”), was charged in 2017 with accessing, possession of, and making child pornography available.  At trial, he was convicted and sentenced to three years in prison. 

THE INVESTIGATION

In August 2016, Hamilton Police were alerted to a pornographic picture that West had uploaded to the mobile messaging app Kik.  The image was of a five year old girl sitting in an explicitly indecent sexual pose on a beach wearing only a bikini top.

The Kik app detected the picture and reported it to the RCMP’s National Child Exploitation Co-ordination Centre, who forwarded it to the Hamilton Police Service.  The police were provided with information regarding the account that the image had been uploaded to and two Internet Protocol addresses associated with the use of the account.  Police determined that both IP addresses belonged to Cogeco Cable. 

Detective Constable Jeremy Miller prepared an Information to Obtain for a general production order under section 487.014 of the Criminal Code.  Detective Miller attached an affidavit which stated “that the information set out herein constitutes the grounds to suspect” that the subscriber committed the child pornography related offences.

After receiving court approval to obtain subscriber information from Cogeco Cable, the police were informed that Steve West was the subscriber and provided his address.  The police then obtained a search warrant to search West’s residence for electronic devices and documents that contain suspected evidence of child pornography. 

When police searched West’s home they seized five digital devices and found 19,687 files containing child pornography, including images and 51 videos.  West was subsequently charged with possession of child pornography, distribution of child pornography and accessing child pornography.

THE APPEAL

The issue before the appeal court was whether West’s rights under section 8 of the Charter (the right to be secure against unreasonable search and seizure) were infringed and if the evidence against him should have been excluded.

West argued that the production order should not have been issued as the police officer incorrectly worded his affidavit by using the wrong legal test in an attempt to obtain the information from Cogeco.  The appeal court agreed with West and in its decision explained the law and the legal test for production orders.

A production order under section 487.014 of the Criminal Code allows police to obtain documents, including electronic documents, from individuals who are not under investigation.  This section allows a justice or judge to make a production order if he/she is satisfied, by the information placed before him/her, that there are reasonable grounds to believe that:

  1. An offence has been or will be committed;
  2. The document or data is in the person’s possession or control; and
  3. The production order will provide evidence of the commission of the named offence.

In West’s case, the officer misstated the standard throughout his affidavit.  He stated he had grounds to “suspect” and the correct standard is grounds to “believe”.  Despite this flaw, the justice authorized the production order. 

The trial judge also failed to address this error.  Given the trial judge’s error, no deference was given by the appeal court to the trial judge’s decision and the three member panel was allowed to consider afresh whether there was a basis on which the production order could have been issued.  The appeal court concluded that the production order was issued in error, therefore the search warrant could not have been issued and the search of West’s residence was unreasonable. 

The Appeal Court ruled that the officer erred when he swore in his affidavit that he had the “grounds to suspect” a crime had been committed, as opposed to the “grounds to believe” a crime had been committed. 

According to Justice Michael Tulloch, Hamilton Police “were effectively fishing for a connection to the offence”.  Thus, the search of West’s residence and electronic devices was unlawful and a violation of the Charter.

Although the Crown prosecutors can appeal this decision to the Supreme Court of Canada, we do not have any information at this time as to whether this decision will be appealed.  We will report any developments in this blog when further information becomes available.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a reputation for effective results in defending all types of criminal legal charges.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  We are available when you need us most.

Alberta Appeal Court Ruling Confirms Automatic Registration for Convicted Sex Offenders

Written on Behalf of Affleck & Barrison LLP

Alberta’s highest court has ruled that automatically adding the names of sex offenders to a national sex offender registry for life does not violate the offender’s rights under the Charter of Rights and Freedoms.

The Alberta Court of Appeal’s split decision held that the current federal law requiring the mandatory placement of those convicted of more than one sex offence to the national sex offender registry is constitutional.  However, given the 2-1 ruling on appeal, Eugen Ndhlovu has the right to appeal this decision to the Supreme Court of Canada.

THE HISTORY AND THE COURT OF APPEAL DECISION

Last fall, the Alberta appeal court heard submissions about whether a judge should have the discretion to place an offender on Canada’s sex offender registry.  The court also heard submissions from counsel regarding whether or not placing an offender with more than one sexual offence conviction on the sex offender registry is a violation of his/her Charter rights.

In 2011, Eugen Ndhlovu (“Ndhlovu”) attended a party where he sexually touched two women.  Ndhlovu pled guilty to two counts of sexual assault and was given a six-month jail sentence and three years probation.  The sentencing judge found Ndhlovu to be remorseful and considered to be at a low risk of reoffending.  Ndhlovu was to be automatically placed on the sex offender registry for life according to sections 490.012 and 490.013(2.1) of the Criminal Code .  However, the sentencing judge found that the legislation was “overbroad and grossly disproportionate” and violated Ndhlovu’s Charter rights to life, liberty and security of the person.  The sentencing judge also proceeded to strike down these sections of the Criminal Code as she determined they could not be saved under section 1 of the Charter.

Alberta’s Crown prosecutor disagreed with this decision and launched an appeal arguing that the Criminal Code sections are not overbroad, that Parliament is entitled to drawn an inference that multiple convictions increase the risk of re-offending, and that the reporting requirements for the national sex offender registry are not onerous or invasive.

Ndhlovu’s lawyer argued that it is not appropriate to place every offender with more than one sexual offence conviction on the national registry and that the court should be given the right to weigh the risk to public safety with the individual’s right to liberty.

Two of the three judges on the Court of Appeal panel found that the sentencing judge erred in finding that Ndhlovu had established a deprivation of his rights under section 7 of the Charter to life, liberty or security of the person and that the sections of the Criminal Code in question was constitutionally valid.  Therefore, the appeal court held that Ndhlovu’s Charter rights were not breached, the finding that sections 490.012 and 490.013(2.1) were of not force and effect was to be set aside, and Ndhlovu was required to be registered and report under the Sex Offender Information Registration Act (“SOIRA”).

WHAT IS CANADA’S NATIONAL SEX OFFENDER REGISTRY?

Canadian courts have required those convicted of designated sex related crimes to be registered in the National Sex Offender Registry (“Registry”) since 2004.  However, unlike the United States, the Canadian Registry is not designed for use by the public. 

The National Sex Offender Registry is a registration system for sex offenders who have been convicted of designated sex crimes and ordered by the courts to report to the police annually. The Registry is maintained by the RCMP and is available to all Canadian police agencies.  The purpose of the database is to provide police services with valuable information that will increase their capacity to investigate and prevent crimes of a sexual nature. 

In Canada, a person convicted of a designated offence must be placed on the Registry.  Designated offences are listed in section 490.011(1) of the Criminal Code of Canada, which include the following sex crimes:

  • Sexual assault;
  • Sexual interference;
  • Invitation to sexual touching;
  • Sexual exploitation;
  • Incest;
  • Bestiality;
  • Child pornography (making, possession, distribution);
  • Parent or guardian procuring sexual activity;
  • Aggravated sexual assault;
  • Sexual assault with a weapon, threats to a third party or causing bodily harm;
  • Indecent exposure;
  • Select offences where it can be proven that the offence was committed with the intent to commit an offence of a sexual nature.

The SOIRA does not apply to a young person convicted of a designated sexual offence unless the young person is sentenced as an adult.

In 2011, two notable changes were made to the law governing sex crimes.  One of the changes was that the SOIRA was amended to remove judicial discretion with respect to whether an individual who committed one of the designated sex crimes must be placed on the Registry.  The other amendment required that a lifetime SOIRA order was made mandatory for certain situations, including when an accused person is convicted of more than one sexual assault.  These were the two specific issues that were considered by the appeal court in Ndhlovu’s appeal.

We will continue to follow this case and will report in this blog if Ndhlovu decides to appeal this decision to the Supreme Court of Canada.

If you are facing criminal charges for sex related offences or have any other questions or concerns about your legal rights, please contact 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.

Appeal Court Upholds Decision Finding Man with HIV Guilty of Aggravated Sexual Assault

Written on Behalf of Affleck & Barrison LLP

An HIV-positive man had his aggravated sexual assault conviction upheld by the Ontario Court of Appeal.

In October 2013, the man, identified as N.G., had been advised to tell prospective partners that he was HIV-positive.  He proceeded to have sex repeatedly with three women over several months and failed to inform them of his medical history.

N.G. was charged with multiple offences occurring between July 2013 and April 2014, including three counts of aggravated sexual assault.  At the trial, the question was whether N.G.’s failure to disclose his HIV status prior to intercourse constituted fraud and made the women’s consent ineffective. 

On November 19, 2017, Superior Court Justice Edward Gareau convicted and sentenced N.G. to three and a half years in prison.  N.G. appealed his conviction and sought to introduce fresh evidence to prove that the use of a condom alone prevents the possibility of transmission of HIV during sexual intercourse. 

APPEAL COURT ASKED TO RULE THAT CONDOM USE IS ENOUGH TO PREVENT THE TRANSMISSION OF HIV

N.G. asked the appeal court to resolve the issue as to whether, at law, the use of a condom alone is enough to remove HIV non-disclosure cases from being criminally prosecuted.

The leading 2012 Supreme Court of Canada case, R. v. Mabior, provides the legal threshold triggering a duty to disclose.

This case holds that an accused may be found guilty of aggravated sexual assault if he or she fails to disclose an HIV-positive status to a sexual partner in the case when consent to the sexual activity would not have been given had the partner known about the HIV-positive status and there is a realistic possibility of transmission of HIV during the sexual activity.  The Supreme Court of Canada held that a realistic possibility of HIV transmission is negated when both the non-disclosing individual’s viral load (the quantity of HIV circulating in his or her blood) is low and a condom is used during sexual activity. 

In N.G.’s case, the trial judge held that condoms were not enough as he did not have a low viral load, therefore increasing the possibility of transmission even with the use of a contraceptive. 

At his appeal, N.G.’s lawyers argued that new evidence demonstrates that condoms are sufficient to prevent the transmission of HIV even in cases where an individual’s viral load is not low.  N.G. requested that the conviction be overturned and that the common law should reflect this new information.

The Appeal Court rejected N.G.’s arguments that the use of condoms alone are sufficient to prevent transmission of HIV.    

Justice Fairburn stated:

There is no dispute that a perfectly functioning latex condom provides a perfect barrier to HIV transmission.  … But, as the Supreme Court of Canada also understood,  condoms do not always work as they are intended to work.  …  Indeed, from time-to-time despite the very best intentions and efforts of sexual partners, condoms sometimes fail to work.

LAWMAKERS ARE CALLED UPON TO MAKE LEGISLATIVE CHANGES BASED ON SCIENCE AND END THE CRIMINALIZATION OF THOSE LIVING WITH HIV

The Canadian HIV/AIDS Legal Network, an intervener on the appeal, is concerned about the stigma surrounding the HIV virus.  On behalf of N.G., this organization claimed that the offence of aggravated sexual assault and the penalty imposed were disproportionate in a case of consensual sexual activity and where an individual had taken all precautions to avoid transmission.

This organization maintains that scientific experts across Canada agree that HIV transmission is not possible while using a condom correctly during intercourse. 

In a statement on the Canadian HIV/AIDS Legal Network’s website, the organization states:

The Court’s decision underscores the importance of the federal government bringing forward legislative changes to the Criminal Code to prevent the continued misuse of criminal charges that are contrary to science, lead to unjust convictions and ultimately undermine public health.  …  It’s time for the law to catch up with the science and recognize that condoms can also negate a realistic possibility of transmission.

The statement also mentions that in June of 2019, the House of Commons Standing Committee on Justice and Human Rights recognized a need for reforms to the Criminal Code limiting the prosecution of cases to only those dealing with HIV non-disclosure and the actual transmission of the disease.  To date, these changes have not been implemented.

We will continue to follow any developments in the case law or legislation with respect to the criminalization of individuals living with HIV and will report them in this blog.

In the meantime, if you have any questions regarding charges that have been laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1047.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting their client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Kalen Schlatter Appeals Guilty Murder Verdict Claiming Unlawfully Obtained Evidence

Written on Behalf of Affleck & Barrison LLP

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

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

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

WHAT IS AN APPEAL?

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

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

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

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

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

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

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

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

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

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

UNDERCOVER OFFICER TESTIMONY AT TRIAL

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

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

The officer testified:

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

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

We will continue to follow this criminal case as it makes its way to the Court of Appeal and will provide updates in this blog.

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

Ontario’s First Criminal Trial Since Courts Close Takes Place Over Zoom

Written on Behalf of Affleck & Barrison LLP

On March 17, 2020, the courts in Ontario shut down to reduce the transmission of COVID-19.  As time passed, the courts began to hear bail hearings, appeals, motions and some sentencing hearings using a combination of telephone, video and only a few in-person hearings.  All trials were on placed on hold for nearly four months as measures were developed to contain the deadly virus and decisions were made as to how to safely proceed with re-opening the courts.

The lives of many Ontarians have been put on hold awaiting trial, whether in jail or those released on strict bail conditions.  Witnesses and victims have also been placed in a holding pattern with many likely suffering from anxiety and stress of not knowing when and how their proceedings will be handled.

Those trials that were scheduled for the spring of 2020 have been re-scheduled.  Courts are now proceeding with trials and preliminary hearings that were already scheduled in July and August. 

Recently, Ontario courts began resuming operations with strict health and safety protocols in place.  In Ontario, the first criminal trial was finally successfully held in provincial court through video conferencing.

TRIAL BY ZOOM

The first and only trial to be conducted through video conferencing in Ontario took place between June 8 to 12.  This was the only trial to take place in Ontario during the province wide court shutdown due to COVID-19.  The case was R. v. S.L..  Both parties requested that the trial take place over Zoom and also requested that the judge provide written reasons allowing such proceeding to take place for the benefit of all parties as the pandemic continues to affect criminal justice in our country.

Justice Lemon agreed with counsel that the case before him was an appropriate trial to be held by video conferencing, along with the assistance of counsel, the parties and the court staff. 

The case took place over 5 days on the Zoom platform (4 days of trial and 1 day or argument) with no significant technological issues.  The lawyers did not wear the customary black robes and the judge did not wear his sash.  There were only two witnesses and a mid-trial voir dire to address the issue of opinion evidence. 

The accused had signed a “Waiver and Consent” to allow for a virtual trial.  Justice Lemon relied upon section 650(2)(b) of the Criminal Code to grant him the jurisdiction to allow the trial process to proceed in the absence of the accused, on consent, subject to appropriate terms and conditions.

Justice Lemon noted that this was an appropriate case to proceed by Zoom as the charge against the accused allowed for trial by judge alone, there were only a few witnesses involved, a few documents and a few issues before the court.  Furthermore, all parties were agreeable to proceed by Zoom and were experienced with the process.  Justice Lemon did not have any concerns with his ability to assess credibility over Zoom. 

Justice Lemon permitted the trial to proceed with the accused “out of the court” with the following conditions:

  1. The accused must participate in the trial using video conferencing software for the entirety of the proceedings; and
  2. The accused must alert the court or his counsel if he is unable to see or hear  the trial proceedings.

WHAT HAPPENED AT TRIAL?

Sherman Lai was charged with sexually assaulting D.H., who was 22 years old at the time, in 2005 when she was a patient at his Traditional Chinese Medicine clinic.  S.L. testified that she attended the clinic as she was suffering from digestive issues causing bloating and gas and she was concerned about facial acne.  She alleged that at her last appointment Lai performed a vaginal exam on her at his clinic.

Although Justice Lemon found S.L. to be a credible witness, he found her to be unreliable due to changes in her testimony.  He found that there were several inconsistencies between S.L.’s statements on the stand and the information that she gave prior to the trial regarding the year of the incident and her initial reasons for visiting Lai.

The Crown provided an expert witness to prove that internal vaginal exams were not part of the practice of traditional medicine.  However, Justice Lemon questioned the breadth of the expert’s knowledge and stated that the testimony did not account for the entirety of traditional Chinese practices.

The question before Justice Lemon was whether what occurred in the exam room was part of Traditional Chinese Medicine.  If it was not, was the physical contact by Lai of a sexual nature. 

Justice Lemon stated:

[T]here may be circumstantial evidence of a sexual assault, but the totality of the evidence leaves open the reasonable conclusion that what S.L. did was perform Traditional Chinese Medicine.  Other than the part of the body touched, there was nothing to suggest other than a clinical practice.

Justice Lemon was not satisfied beyond a reasonable doubt that S.L.’s treatment by Lai was contrary to Traditional Chinese Medicine and therefore found Lai not guilty of the charge against him.

We will continue to follow the government’s response to the pandemic and how it will affect the Canadian justice system and will provide updates in this blog.

If you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today 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.