Recent Decisions

Guilty Verdict for Man Accused of Killing Cindy Gladue 10 Years Ago

Written on Behalf of Affleck & Barrison LLP

Following eight hours of deliberation, a jury found Bradley Barton (“Barton”) guilty of manslaughter for the killing of Cindy Gladue (“Gladue”) in June 2011.

Barton plead not guilty to the charge of manslaughter in his second trial.  He testified that he arranged to pay Gladue for sex at an Edmonton hotel.  When he woke up the next morning, he was shocked to find Gladue dead in the bathtub.

According to medical experts, Gladue hemorrhaged from an 11-centimetre vaginal wound. 

LEGAL HISTORY OF THIS CRIMINAL CASE

This was Barton’s second trial for the death of Gladue.  In 2015, a jury acquitted him of both manslaughter and first-degree murder.  The first trial garnered a great deal of attention with respect to issues of injustices for sexual assault complainants, and more specifically those of Indigenous people, in the criminal justice system.

During Barton’s first trial, Gladue was repeatedly referred to as “Native” and a “prostitute”.

Following Barton’s acquittal in 2015, the Crown prosecutor appealed the verdict.  The Alberta Court of Appeal overturned the acquittal and ordered a new murder trial.  Barton took his case to the Supreme Court of Canada where the highest court in the country concluded that there should be a new trial, limited to the charge of manslaughter.

The judges of the Court of Appeal and the Supreme Court rejected the language used by counsel and witnesses to describe the victim, Gladue.  The Court of Appeal admonished the trial judge’s jury charge, which it felt was “inadequate to counter the stigma and potential bias …that arose from the repeated references to Gladue as a ‘prostitute’, ‘Native girl’ and ‘Native woman’”.

In the reasons of the Court of Appeal, the court wrote:

Those references implicitly invited the jury to bring to the fact-finding process discriminatory beliefs or biases about the sexual availability of Indigenous women and especially those who engage in sexual activity for payment.

DIFFERENCES BETWEEN BARTON’S TWO CRIMINAL TRIALS

There were four significant differences between Barton’s first trial in 2015 and his second trial in 2021, which are outlined below:

  1. The Crown discarded the theory that Gladue’s injury was caused by a sharp object.  Both the Crown and the defence agreed that her wound was caused by blunt force when Barton inserted his hand into her vagina past his knuckles (a width of approximately 11cm).
  2. The second jury heard details regarding Barton’s internet search history.  The jury heard that nine days before Gladue’s death, Barton had searched for porn related to vaginas being ripped or torn by large objects.  This evidence was excluded from his first trial.
  3. The language used in the second trial was different when referring to Gladue.  The judge in Barton’s second trial instructed the jury on several occasions to discard any stereotypical notions regarding sex workers and Indigenous people. 
  4. At Barton’s second trial, the Crown did not use Gladue’s physical tissue as an exhibit.  Photographs of the autopsy and the crime scene were used to explain Gladue’s injuries to the jury.

THE CIRCUMSTANCES SURROUNDING GLADUE’S DEATH

Barton, a trucker from Mississauga, was in Edmonton for a moving job in June of 2011.  He rented a room at the Yellowhead Inn.  While outside the hotel bar, Barton asked a man whether he had any “lady friends”.  The man returned with Gladue. 

Barton testified that he negotiated a price to have sex with Gladue in his hotel room.  That night he inserted his fingers into her vagina and the night ended amicably.

The next night, Barton texted Gladue and she met him for a drink at the bar until last call.  According to Barton, they went back to his room and he once again inserted his fingers into Gladue’s vagina.  When he removed his fingers, he noticed blood.  He assumed she was on her period and told her he wouldn’t pay her.  He then fell asleep, while Gladue used the bathroom.  When Barton woke the next morning, he found Gladue’s body in the blood soaked tub.  In a state of panic, Barton cleaned some blood off of his feet, left the room, disposed of the towel he used, made a coffee and then checked out of his hotel room. 

Barton maintained that due to his panicked state, he lied to the 911 operator, the police on scene and when interviewed at police headquarters.  Barton’s defence lawyer acknowledged that his lies were “pathetically inept, half-baked, easily disproved” and not the lies of an individual who had been “plotting how to get away with it”.  It was Barton’s defence that the physical evidence supports his version of the events.

The Crown maintained that Barton violently sexually assaulted Gladue while she was too heavily intoxicated to provide consent and allowed her to bleed to death.  It was also argued that Barton’s version of the events did not align with the physical evidence. 

The 11-person jury, after hearing six weeks of disturbing details and graphic evidence regarding Gladue’s death, concluded that Barton was guilty of manslaughter.

Barton, who had been out on bail, was taken into custody and will be sentenced at a later date.  Barton’s lawyer has advised that his team wants to appeal the conviction due to issues with evidence admissibility, however, that will require the assistance of Legal Aid Alberta to fund his defence.

If you have any questions regarding criminal charges laid against you or 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 clients’ rights.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Dangerous Driving Causing Death Verdict for Man Who Suffered a Seizure While Behind the Wheel

Written on Behalf of Affleck & Barrison LLP

Fakhreddin Noureddin (“Noureddin”) was found guilty of dangerous driving causing death and was found not guilty of the more serious charge of criminal negligence causing death following a seizure he experienced while driving that ended in a fatality. 

THE FATAL CAR ACCIDENT

In the late afternoon of February 14, 2019, Noureddin’s Toyota Camry was witnessed swerving abruptly and entering an oncoming lane on Goulbourn Forced Road in Kanata where it proceeded to strike and kill Hendrikas Welten (“Welten”), 59-years old, while he was jogging on the road’s shoulder.

The roadways were clear and there was no precipitation at the time of the accident.  Welton was wearing a dark track suit with reflective piping while running in the fading daylight hours.

According to the evidence given at his trial, Noureddin experienced a dyscognitive epileptic seizure while he was behind the wheel.   This type of condition does not include convulsions, but it does impair the individual’s awareness or consciousness.  The seizure usually lasts for approximately two to four minutes and is often followed by a period of confusion.

Noureddin had suffered a similar dyscognitive episode many years ago, which led to medical intervention for his condition.  He had been effectively treated for epilepsy with medication for many years.  In June of 2018, his doctor changed his medication. 

During a routine appointment with his neurologist on October 31, 2018, Noureddin had been advised not to operate a motor vehicle for three months and only to resume driving once he had clearance from one of his doctors.

In making his ruling in this case, Justice Jean Legault of the Ontario Court of Justice stated:

Based on my findings, Mr. Noureddin would have appreciated the risk associated with suddenly losing the physical ability to operate a motor vehicle as a result of the epilepsy. …

It is self-evident that the risk caused by a dyscognitive epileptic seizure and loss of awareness while operating a motor vehicle can be significant, if not catastrophic, as it was in this case. …

Justice Legault found that Noureddin was aware of the reason for his doctor’s orders and was aware of the risk of suffering an epileptic seizure while driving.  Justice Legault reasoned:

His decision to drive contrary to his doctor’s instruction, coupled with his understanding of the risk and potential result of suffering an epileptic seizure while driving, constituted a marked departure from the conduct of a reasonable person in the circumstances. …

He failed to demonstrate the expected degree of thought and attention required for the activity of driving.  More specifically, he attempted the inherently dangerous activity of driving voluntarily, without accounting for his disorder and the risk he created to other motorists and pedestrians on the roadway at that specific time.

In considering the more serious charge of criminal negligence causing death, which requires a “higher threshold” to reach a guilty finding, Justice Legault did not find that Noureddin’s behaviour on the day in question amounted to a “reckless disregard for the lives and safety of others”.  Justice Legault considered the following in coming to this decision:

  • Noureddin monitored his epilepsy as directed;
  • His condition had improved on new medication;
  • There was a lack of any “significant manifestation of his epilepsy for many years”;
  • That he was past his three-month driving prohibition;
  • That he took his disorder seriously and had regular contact with his doctor; and
  • That his neurologist did not revoke his driving privileges with the Ministry of Transportation.

CRIMINAL NEGLIGENCE CAUSING DEATH VS. DANGEROUS DRIVING CAUSING DEATH

The offence of dangerous driving is a serious criminal offence found under section 320.13 of the Criminal Code of Canada.  The only requirement to be charged with this offence is that a driver operated a motor vehicle in a manner that was dangerous to the public.

If convicted of dangerous driving causing death, the driver faces the possibility of imprisonment for life and a minimum punishment for a first offence of a fine of $1,000, for a second offence imprisonment for 30 days and for each subsequent offence imprisonment for a term of 120 days.

The offence of criminal negligence causing death is an offence found under sections 219 and 220 of the Criminal Code of Canada.  An individual will be found guilty of criminal negligence if he/she did anything or omitted to do anything within his/her duty or shows a wanton or reckless disregard for the lives or safety of others.  It must be proven that a reasonable person acting in the situation would know that the action would jeopardize the life or physical integrity of the person.

If convicted of criminal negligence causing death, the driver is guilty of an indictable offence and the maximum sentence is imprisonment for life.

If convicted of either or these offences, the driver’s license will automatically be suspended for one-year if it is the first conviction, and the length of time increases for subsequent convictions.

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

New Trial Ordered for Man Convicted of Setting his Girlfriend on Fire

Written on Behalf of Affleck & Barrison LLP

Mark Borel (“Borel”) has had his attempted murder conviction set aside and granted a new trial by the Ontario Court of Appeal.

The appeal court overturned Borel’s conviction where he was found guilty of  dousing his girlfriend in gasoline and setting her afire due to problems with how evidence from three witnesses were handled by the trial judge and her instructions to the jury.

THE CRIME IN QUESTION

Borel and the victim began an affair in September 2010.  Although the victim told her husband that the affair was over in December 2010, she continued to see Borel and began drinking more heavily. 

On July 23, 2011 around 6:00pm, the victim lied to her husband by telling him that she was going shopping and then to a friend’s house when she was really going to meet up with Borel.  The two met in the parking lot of a community centre.  At approximately 6:45 pm, Borel called 911.  Police and ambulance arrived to find the victim lying on the ground in the parking lot badly burned and smelling of gasoline. 

Borel initially told paramedics that he was driving past the community centre and noticed his friend in the parking lot.  In contrast, Borel told the police officer at the scene that he did not know the victim.  Borel also gave a video taped statement later that evening at the police station and said that he knew the victim and that they had arranged to meet that evening.

Four days later, Borel was arrested and charged with attempted murder.  Borel always maintained that he did not douse the victim with gasoline and set her on fire.

At the trial, both Borel and the victim gave conflicting stories of the events that transpired on the night of the alleged incident.  According to the victim, who admitted that she had been drinking before she met him in the parking lot, Borel said he had a present for her in his car and showed her a black jug full of gas and swished the gas at her.  He then allegedly took a match out of his pocket and threw it at her, setting her on fire.

According to testimony by Borel, when they met in the parking lot they argued about the fact that the victim had been drinking and driving.  Borel said that if she wouldn’t take a ride from him or someone else, he was going to the call the police.  He proceeded to his car to make a call and then he heard a scream.  He found the victim screaming loudly, lying face down, rolling around on the ground and she appeared to be burning.  He asked who did this to her and she responded “nobody”.  He then called 911.

EVIDENTIARY ISSUES ON APPEAL

At the trial, the Crown prosecutor led evidence from the 911 dispatcher, homicide detective and EMS attendant.  At his appeal Borel’s counsel argued that such evidence was admitted by the trial judge in error and the jury was not properly instructed on this evidence.

The issues before the appellate court included:

  • The trial judge erred in admitting opinion and demeanor evidence of the 911 dispatcher and in failing to give appropriate instructions to the jury regarding this evidence;
  • The trial judge erred in admitting opinion and demeanor evidence of the homicide detective and in failing to give appropriate instructions to the jury regarding this evidence; and
  • The trial judge erred in admitting statements that the victim made to EMS personnel during the ambulance ride to the hospital and in failing to give appropriate instructions to the jury as to the proper use of those statements.

With respect to evidence given by the homicide detective, speaking on behalf of the three judges hearing the appeal, Justice Nordheimer stated:

For a jury to hear, from what appeared to them to be a highly experienced police officer, evidence that the appellant was in essence, acting like a person who was guilty of the offence, was highly prejudicial.  It was only made worse by the failure of the trial judge to give any form of limiting instruction on its use.  The trial judge ought to have told the jury to ignore the detective’s opinions.

According to Justice Nordheimer:

The errors here were not harmless nor trivial.  I do not dispute that the case against the appellant was a strong one, but it does not rise to the very high level of being overwhelming. 

The appeal court found that there were still a number of questions that were left unanswered, including:

  • Why was there gasoline inside the cup holder of the victim’s car?
  • Why did Borel not have any gas on his clothes or on the ground?
  • What happened to the jug of gas?

These questions may have been enough for at least one juror to have found reasonable doubt that Borel committed the crime of attempted murder.

Given the evidentiary errors made by the trial judge, the appeal court concluded that the fairness of the trial was “infected” and ordered a new trial.  The appeal was allowed, the conviction was set aside and a new trial was ordered.

We will continue to follow this case as it proceeds through the courts and will report on any developments in this blog.

In the meantime, if you have any questions regarding criminal charges laid against you or 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 clients’ rights.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Terminally Ill Convicted Killer Granted Full Parole

Written on Behalf of Affleck & Barrison LLP

Convicted murderer Serge Robin (“Robin”) has been granted full parole and allowed to spend his final days outside of prison as he is suffering from a terminal illness.

Robin, a Montrealer, was convicted of killing three people and was a suspect in at least two other homicides.  Two of his victims were killed in British Columbia in 1992 while he was out on day parole for a sentence he was serving for armed robbery and the death of a 17-year-old girl he killed with a crowbar in 1976.

SERGE ROBIN’S CRIMINAL BACKGROUND

According to the Parole Board of Canada’s decision, Robin has a traumatizing background.  His father was convicted of rape and attempted murder and his mother was a sex-trade worker.  Robin grew up in a foster home.  He began serving his time in prison in 1973 when he was only 16 years old. 

Robin’s criminal history included armed robbery and the assault of an individual with a metal ashtray and the murder of 17 year-old Lise Labatie with a crowbar in Quebec City in 1976. 

In 1979, Robin was charged with killing two inmates, but he was acquitted of these charges.

Robin was granted day parole in 1992 at which time he became involved in organized crime.  On October 6, 1992, he shot Roger Daggitt in a hotel in Surrey, B.C.  Two days later, he killed Robert Pelletier in Vancouver, B.C.  It was alleged that he killed Pelletier as he was trying to infiltrate his drug-trafficking turf in Vancouver.  He recently told his parole officer that he killed Pelletier because he believed he was going to kill him. 

According to the parole decision, Robin was contracted to kill Daggitt.  He pleaded guilty to second-degree murder.  This killing appeared to be in retribution for Daggitt having ordered the killing of stockbroker, Ray Ginnetti.  Robin was transferred from a penitentiary in British Columbia to the Port Cartier Institution, a penitentiary in Quebec. 

THE PAROLE BOARD OF CANADA DECISION

Last October, Robin was evaluated by a psychologist who classified him as a psychopath.

In 2018, Robin’s medical condition from cancer became worse and he was transferred to a penitentiary where he could undergo treatment.  Earlier this month, Robin was found to be so weak that he has only 10 to 15 percent of his physical capacities left. 

According to the decision by the Parole Board of Canada, Robin is so ill that he does not pose a threat to the public.  The decision stated:

You currently suffer from an advanced cancer, which significantly limits your physical capacities and provokes confusion as well as disorientation.  You will be in a terminal phase and you have little time left to live.  …

According to your file, you do not wish to die inside a penitentiary.  You still have chemotherapy treatments to receive.  If your health improves, a re-evaluation will be done to see if you match the criteria to be admitted into a palliative care centre.

Robin was granted full parole with the condition that he reside at an undisclosed location, likely a palliative care residence due to his deteriorating medical condition.

WHAT IS PAROLE AND WHO IS ELIGIBLE FOR PAROLE BY EXCEPTION?

The Parole Board of Canada is an independent administrative tribunal.  The members of the Parole Board come from a variety of backgrounds including criminology, policing, education, law and social work.  It is the role of the Board Members to assess the offender’s risk to determine if a conditional release is warranted. 

Parole is a conditional release from jail for offenders to serve the remainder of their sentence outside of the confines of the institution.  The goal of parole programs is to provide a gradual, controlled, and supervised path between jail and freedom. 

The Parole Board does not automatically grant parole, each individual case must be reviewed to determine suitability for release.  The Parole Board will consider the following factors in determining whether an offender should be granted parole:

  • The offender’s criminal record;
  • The seriousness and nature of the offence;
  • The offender’s behaviour while in prison;
  • The offender’s release plan; and
  • The remorse he/she has expressed for the crime.

According to the section 121 of the Corrections and Conditional Release Act (“CCRA”), prisoners can be granted parole at any time if certain criteria are met.  Parole by exception can be granted if a prisoner is:

  • Terminally ill;
  • Likely to suffer serious damage to their physical or mental health if he/she continues to be incarcerated;
  • Experiencing excessive hardship that was not reasonably foreseeable at the time of sentencing; or
  • Subject to an order of surrender under the Extradition Act and to be detained until surrendering.

Prisoners who are serving life sentences or those serving indeterminate sentences are the only prisoners ineligible for parole by exception, except in the case of terminal illness.

Prisoners who apply for parole by exception must be assessed pursuant to section 102 of the CCRA.  These prisoners must show that they do not present an undue risk to society, which was the case with Robin given his deteriorating medical condition and lack of physical capacities.

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.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  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.

Toronto Principal Acquitted of Assault Charge

Written on Behalf of Affleck & Barrison LLP

A Toronto elementary school principal, Sean Hume (“Hume”), was found not guilty of one count of assault last week after his trial finally came to a conclusion.  Hume’s trial began last February and underwent several disruptions, including a change in defence lawyers and the court shutdown due to COVID.

THE PLAYGROUND INCIDENT

The incident before the court occurred on September 19, 2018 during lunchtime recess.  Hume, the principal of Chester Elementary School, was in the schoolyard when he was advised about an upset student in the playground. 

Hume approached the playground and found a nine-year-old boy “in crisis”.   At his trial, Hume described the boy’s behaviour as “calling out for help”.  The young student was spitting, swearing using racial slurs and throwing things.

Hume attempted to de-escalate the situation by speaking calmly and attempted to keep the boy’s attention on himself and not direct his distress towards the other children in the playground.

Hume took out his cellphone to request that the school office call the boy’s parents, and if they couldn’t be reached to call the police.

Earlier in the year, Hume had spoken to the grade 4 child’s parents who had advised of their son’s anger issues and confirmed that once he was triggered, it was difficult to restrain him.  His parents did provide advice regarding one type of restraint that may work in times of crisis, which involved a hug from behind.

On the day in question, Hume attempted the restraint recommended by the boys’ parents, unfortunately it proved disastrous.  

Hume attempted to speak to the child calmly and direct him to the school office.  When Hume went to grab the child near his neck/shoulder area, the boy dropped to the ground and grabbed Hume by the leg.  Hume then lost his balance attempting to break free, at which point he may have made contact with the child.  According to the trial decision by Justice Stephen Clark, “any contact made by his foot was not intentional”. 

The events in the playground finally came to an end when the child’s father arrived.  At this point, Hume’s shirt was ripped and he had been kicked, punched and spat on. 

Hume was charged by police two days following the incident after the child reported that his principal had pinned him to the fence, shoved him back and placed his knee on his stomach for at least a minute causing him to be unable to breathe.  Hume pleaded not guilty to assault.

VIDEO EVIDENCE BEFORE THE COURT

At the trial, the court watched three separate short cellphone videos of the playground occurrence between Hume and the fourth grader that were recorded by a teacher at the school from her second-floor office.

The first clip showed the child throwing objects from the playground at Hume.  The second video showed the child spitting in Hume’s face and within seconds Hume appears to be behind the child and seems to grab him and push him to the ground.  Hume proceeds to stomp on the boy’s arm and tries to release his leg from the boy’s grasp.

The third clip shows the child’s father approach the playground and walk the child away.

According to the teacher who filmed the incident, she testified that the encounter scared her and that the child seemed “clearly out of control”.  She also testified that Hume was “almost egging him on”.  She found the whole incident hard to watch and stated:

It’s hard to watch a kid being pushed, thrown on the ground and stomped on, a kid that I know has a hard time.

TRIAL DECISION

Justice Clark accepted Hume’s evidence at trial and found him to be transparent, acted in a “controlled” way to restrain the student and was “not interested in taking the law into his own hands”.

According to the court’s decision, Hume was attempting a “controlled” method to restrain the child in an attempt to prevent further actions.

The court heard evidence that the child was diagnosed with anxiety and is prone to outbursts both in school and at home, at which time he will scream, swear, throw objects, punch and kick. 

Justice Clark determined that the young boy’s capacity for observation and recollection were inconsistent.  In his decision, Justice Clark stated:

I assure him, and his parents, that he is not the “bad guy” in this unfortunate incident.  However I do not find his account to be particularly reliable.

Hume was acquitted of the charge of assault

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

Supreme Court Rules Equal Justice for Victims of Assault with Intellectual Disabilities

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada has ruled that sexual-assault complainants with intellectual disabilities who testify should have their credibility and reliability assessed free from stereotypes.

Women and girls with intellectual disabilities are disproportionately victims of  sexual violence, and these assaults often go unreported and are under-prosecuted in comparison to those victims who do not suffer from a disability.  Furthermore, females with intellectual disabilities also face barriers in having their allegations believed due to stereotypes about their credibility and reliability as witnesses.

Cases that deal with sexual assault often turn on the credibility and reliability of witnesses, especially the complainant.

Credibility deals with a witness’ veracity or truthfulness, while reliability deals with the accuracy of a witness’ testimony.  Both the credibility and reliability of a witness are factual determinations to be made by a trial judge or jury.

R v. SLATTER

In the case of R. v. Slatter, the adult complainant testified that between 2009 and 2013, when she was in her late teens and early 20s, her neighbor, Thomas Slatter (“Slatter”), sexually assaulted her on numerous occasions.  The assaults ranged from fondling to sexual intercourse.

At the Slatter’s trial in 2017, Ontario Superior Court Justice Wolfram Tausendfreund believed the complainant’s evidence and found Slatter guilty of sexual assault, sentencing him to 27 months in prison. 

Justice Tausendfreund found the complainant’s testimony to be compelling, detailed and specific and found that others had corroborated instances where she and Slatter were located together. 

Slatter appealed this decision and argued that Justice Tausendfreund did not explain in his reasoning the issue of the complainant’s reliability and alleged suggestibility.

Dr. Jessica Jones, a forensic clinic psychologist and professor of psychiatry at Queen’s University, testified at trial that she had diagnosed the complainant as having an intellectual developmental disorder and found her to academically function at the level of a 10 to 12 year old. 

Dr. Jones testified specifically regarding the complainant’s predisposition to be overly suggestible when being questioned regarding her allegations of sexual assault.  Dr. Jones found that the complainant was at the 75th percentile on a suggestibility curve (the average person is at the 50th percentile). 

Justices David Doherty and Gary Trotter of the Ontario Court of Appeal agreed with Slatter’s argument, allowed his appeal and ordered a new trial. 

However, Justice Sarah Pepall provided a dissenting opinion and found that the trial judge’s explanation of his judgment to be adequate. Justice Pepall wrote in her reasoning:

In the context of the whole of the record, it is evident that the trial judge grasped the substance of the case and that the basis for his verdict is obvious.  He considered the complainant’s evidence on the core issue of her repeated sexual assaults by the appellant to be reliable and credible, and based on the evidence before him, he was satisfied beyond a reasonable doubt.  There is not reason to interfere with the execution of his role as a trial judge.

Justice Pepall’s dissent provided the Crown prosecutor with an automatic right of appeal to the Supreme Court of Canada.

THE SUPREME COURT OF CANADA

The Supreme Court agreed unanimously with Justice Pepall’s dissenting opinion.  The court emphasized the value of assessing the individual giving the testimony, rather than an expert opinion, with respect to determining a witness’ credibility and reliability.

On behalf of the court, Justice Michael Moldaver wrote:

Courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence.

Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice.

Susan Fraser, a lawyer who made submissions to the Supreme Court on behalf of the organizations intervening on this case which included, Women’s Legal Education and Action Fund, DisAbled Women’s Network Canada and ARCH Disability Law Centre, responded to the Supreme Court ruling:

It makes it clear that, just because a person is labelled with a disability, we should be wary of treating that reliability differently based on what I would say are actuarial scores.

The Supreme Court allowed the Crown’s appeal and restored Slatter’s conviction.

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 to speak with our knowledgeable criminal defence lawyers.  We offer a free initial consultation for all prospective clients.

SCC Rules Ontario’s Sex Offender Registry Unconstitutional for Those with Mental Illness

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada upheld an Ontario Court of Appeal decision which ruled in favour of a man who was found not criminally responsible for a sexual offence on account of a mental disorder (“NCRMD”) and who was later absolutely discharged. The decision held that he should be relieved of reporting requirements and his name be removed from the provincial sex offender registry.

The Road to the Supreme Court

Mr. G, whose name is unpublished due to a publication ban, was found not criminally responsible of two sexual offence charges against his wife.  As we have previously blogged, these charges occurred as a result of Mr. G’s one and only manic episode that took place in September 2001.

Although the Ontario Review Board granted Mr. G an absolute discharge as he no longer posed a significant risk to the safety of the public, he was still required to register with Ontario’s sex offender registry under Christopher’s Law and to report to provincial authorities for life.  Mr. G was also required to register and report under the federal sex offender registry.

Mr. G brought an application before the court arguing that placing individuals who are found NCRMD and are later absolutely discharged on federal and provincial sex offender registries infringes their rights guaranteed under the CharterThis application was dismissed by the Court.

Mr. G appealed the lower court’s decision to the Ontario Court of Appeal.   The higher court allowed Mr. G’s appeal and concluded that Christopher’s Law be of no force or effect as it applies to those individuals who were found NCRMD and were granted an absolute discharge.  The Attorney General of Ontario appealed this decision to the Supreme Court of Canada.

What is ‘Christopher’s Law’?

The Ontario Sex Offender Registry was established following the abduction and murder of 11-year old Christopher Stephenson by a convicted sex offender.  Following the Coroner’s Inquest, it was recommended that a registry be created for convicted, dangerous, high-risk sexual offenders, requiring them to register with the police in the jurisdiction where the offender resides.

On April 23, 2001, the government of Ontario proclaimed that Christopher’s Law was in effect.  This was the first province to establish a sex offender registry.

Christopher’s Law requires that those in Ontario who are either convicted or found NCRMD of a sexual offence to report to a police station to have their personal information added to the Ontario sex offender registry.  Those who are on the registry musts report in person at least once a year and whenever their personal information changes. 

Based upon an individualized assessment, an individual found guilty of a sexual offence can be removed or exempted from the registry and the reporting requirements.  However, an individual found NCRMD of a sexual offence can never be removed from the registry or exempted from reporting.

Constitutional Implications

According to Christopher’s Law, those that are found NCRMD have no opportunity to be exempted or removed from the sex offender registry or to be relieved of their reporting requirements.  Therefore, it is clear that those found NCRMD are subjected to different treatment simply based upon their mental illness.

One of the functions of section 15(1) of the Charter is to prevent discrimination of those facing stigma and prejudicial treatment due to mental illnesses. 

The Supreme Court dismissed the appeal by the Attorney General of Ontario and agreed with the appeal court that Ontario’s sex offender registry law unconstitutionally prohibits those found NCRMD, but given an absolute discharge, an opportunity to be relieved of the requirements of the registry.

According to Justice Karakatanis, writing on behalf of the majority of the Supreme Court:

In my view, Christopher’s Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter.  These discriminatory distinctions cannot be justified in a free and democratic society. 

I have no difficulty concluding that the denial of exit ramps to those found NCRMD and discharged is discriminatory.  …

The distinction drawn by Christopher’s Law reinforce and further the stigmatizing idea that those with mental illness are inherently and permanently dangerous, and in so doing, perpetuate the disadvantage they experience.  …

[F]orced compliance with registry requirements, … can also contribute to a “double stigma” for those found NCRMD, as a result of being both “mentally ill” and a “sexual offender”. …

By withholding exit ramps, Christopher’s Law signals that the law considers G a perpetual threat to the public.  That the state will not take its eyes off G suggests that, in the opinion of the law, he will always be dangerous.

According to the Supreme Court decision, Mr. G’s name will remain off of the Ontario registry.  This decision also requires that the Ontario government amend Christopher’s Law in order to comply with the Supreme Court decision.   

We will report in this blog on the government’s response to this recent decision and any amendments made to the legislation as ordered by the Supreme Court of Canada.

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 905-404-1947.  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.

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.