Recent Decisions

Jury Finds Anne Norris Not Criminally Responsible in Death of Marcel Reardon

Written on Behalf of Affleck & Barrison LLP

A Newfoundland jury found Anne Norris (“Norris”) not criminally responsible in the death of 46-year-old Marcel Reardon (“Reardon”).

Following the verdict, Norris has been placed in the custody of the Newfoundland and Labrador Criminal Mental Disorder Review Board for psychiatric treatment.


Norris pleaded not guilty to first-degree murder in Reardon’s death, but admitted to repeatedly hitting him in the head with a hammer early in the morning of May 9, 2016.

The following details admitted by Norris were presented to the jury:

  • Norris socialized with Reardon and two others downtown in St. John’s on May 8, 2016, before leaving alone and going to Walmart on Topsail Road;
  • Norris purchased a knife and a 16 oz. Stanley hammer at a Walmart hours before the incident;
  • Norris returned downtown and in the early morning hours of May 9, 2016 she and Reardon took a cab to Harbour View Apartments on Brazil Street, where she lived;
  • Norris killed Reardon by striking him several times in the head with the hammer, then moved his body under a set of concrete steps;
  • Norris put the murder weapon, her jeans and some rope into a borrowed backpack and threw it in St. John’s harbour;
  • The backpack was recovered two days later and turned over to the police; and
  • Norris admitted to owning a sock, scarf, bathrobe and a pair of sneakers taken by police from her apartment, which were found to contain Reardon’s blood.

The issues at trial were whether or not Norris was mentally sound enough to be criminally responsible for Reardon’s death, and if so, whether or not the killing included the intent and planning required for first-degree murder.

Norris’ lawyers maintained that she was suffering from a mental disorder when she attacked Reardon and therefore should be found “not criminally responsible”. Her lawyers suggested that Norris was “a ticking time bomb” and had been on a “downward spiral” since the age of 24. She has received treatment in the past for psychosis and has a longtime belief that she was being sexually assaulted by various men while she slept. She had been released from the Waterford Hospital practically untreated days before she killed Reardon. Lawyers argued that Norris thought Reardon was going to sexually assault her and that’s why she attacked him.

On the other hand, Crown prosecutors argued that the evidence demonstrated that Norris was not delusional and planned a deliberate killing, even going so far as to dispose of the weapon. Lawyers for the Crown reasoned that although Norris had a mental illness, there was no evidence of her being symptomatic at the time of the attack.

The trial lasted one month and 31 witnesses were called, including police officers, friends of Norris, Norris’ father, employees of Walmart, the province’s chief medical examiner, five psychiatrists and one psychologist.


Not criminally responsible (“NCR”) is defined in section 16 of the Criminal Code. An individual is NCR if he/she was suffering from a mental disorder at the time of the offence, and:

  • the mental disorder made it impossible for him/her to understand the nature and quality of what he/she did; or
  • the mental disorder made it impossible for him/her to understand that what he/she did was morally wrong, not just legally wrong.

The party raising the issue of NCR has the burden. More likely than not it is the defence who must prove the accused is NCR on the “balance of probabilities”.

Once an individual is found NCR, he/she is not acquitted. Instead the individual is diverted to a provincial or territorial review board (pursuant to section 672.38 of the Criminal Code), which are independent tribunals made up of at least five people, including a licensed psychiatrist. Each year cases are heard by the board at which point the board can impose one of the following:

  • that the individual remain detained in a hospital with varying levels of privileges;
  • that the individual be released on a conditional discharge (individuals are allowed into the community where they have substantial freedom and relatively light conditions); or
  • that the individual be released on an absolute discharge (individuals are released into the community without any supervision).

Absolute discharges are only granted when the board finds the individual is not a “significant threat” to public safety.

The Crown, in this case, has 30 days to decide whether it will seek to appeal the verdict. In the meantime, Norris will remain in psychiatric care until a review board deems her fit to be released into the community.

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




Jury Finds Gerald Stanley Not Guilty in Shooting Death of Colten Boushie

Written on Behalf of Affleck & Barrison LLP

After deliberating for 13 hours, an all-white jury in Battleford, Saskatchewan found Gerald Stanley, a farmer from rural Saskatchewan, not guilty in the 2016 death of 22-year-old Colten Boushie (“Boushie”), a resident of the Red Pheasant First Nation.

Widespread attention has surrounded this trial and the verdict reveals a deep racial divide in Saskatchewan. Some advocates believe that this case highlights a long standing need for more diversity on Canadian juries.


On August 9, 2016, Gerald Stanley (“Gerald”) and his son, Sheldon Stanley, (“Sheldon”) heard an SUV traveling down their gravel driveway leading to the family farmhouse, garage and shop.

Boushie, his girlfriend Kiora Wuttunee, and three other passengers (Cassidy Cross-Whitstone, Eric Meechance and Belinda Jackson) were inside the SUV. After a day of swimming and drinking they had a flat tire. They had initially pulled into a farm, where they tried and failed to steal a truck. They then drove onto Gerald’s property where they tried to start an ATV.

Gerald and his son saw two men jump back into the SUV, which quickly backed up and started to drive away. Gerald kicked the tail light of the SUV and his son smashed the front windshield with a hammer.

As the SUV drove away, it crashed into Gerald’s car. Gerald proceeded to his shed to grab a semi-automatic handgun as he was afraid for his son’s safety. He testified that he loaded two shells in the magazine. He then fired two warning shots.

Gerald testified he feared that the SUV had run over his wife. He then ran as fast as he could back to the SUV. When he heard the SUV engine rev, he went to the driver’s window to reach in with his left hand to turn off the ignition. He testified that the gun went off accidently at that moment, but he never pulled the trigger.

Jackson testified that she heard Gerald tell his son to “go get a gun”. She stated that Gerald retrieved a gun from the shop and she saw him shoot Boushie twice in the head.

Sheldon testified that he heard a gunshot as he walked up the deck leading to his house, and then another one as he entered the home. He then heard a third gunshot when he came out of the house. He saw his father by the SUV’s driver’s window with a semi-automatic pistol in one hand. Sheldon recalled his dad saying, “It just went off. I just wanted to scare them.”

Forensic investigation determined that Boushie was shot with a Tokarev semiautomatic pistol that was found in Gerald’s home.


In addressing the jury, Gerald’s defence lawyers emphasized the inconsistencies in the testimony of the witnesses from the SUV. The defence argued that there was no evidence that Gerald meant to kill Boushie. The defence took the position that it was a freak accident that ended in tragedy.

On the other hand, the Crown prosecutors argued that Gerald had fired two warning shots in the air and then walked up to the SUV Boushie was in and intentionally shot Boushie in the head. The Crown also explained to the jury that if they were not convinced that Gerald had an intention to kill Boushie, they must consider him guilty of manslaughter. It was argued that a verdict of manslaughter would be appropriate because Gerald acted unlawfully by carelessly using a firearm.


Chief Justice Martel Popescul addressed the jury following the lawyers’ closing arguments and set out the three possible verdicts:

  • Guilty of second degree murder;
  • Guilty of manslaughter; or
  • Not guilty.

The Crown bears the burden of proving guilt beyond a reasonable doubt. Both the Crown and defence agreed that it was established beyond a reasonable doubt that Gerald caused the death of Boushie. The real question put to the jury was whether Gerald caused Boushie’s death unlawfully by committing an assault or whether the shooting was an unintentional act that had unintended consequences.

Chief Justice Popescul instructed the jury that it was within Gerald’s rights to get his gun and fire warning shots into the air, but the jury must decide whether the actions he took after that continued to be lawful.


Every Canadian charged with a crime has the right to a fair trial before an impartial tribunal, this includes an impartial jury. Jury trials are made up of 12 adult laypersons from the community who are required to listen carefully to the evidence and arguments from both sides and unanimously agree on a verdict. Jury verdicts, representing a cross-section of Canadian society, are meant to symbolize that the community has spoken.

Each side, the Crown prosecutor and defence, has a number of peremptory challenges (the number varies with the offence charged). These peremptory challenges allow each lawyer to automatically disqualify potential jurors, no explanations required.

Lawyers can also “challenge for cause”, which involves a judge asking potential jurors pre-approved questions, including whether they may have a bias in the case.

After all of the evidence has been called and the lawyers have presented their arguments, the judge instructs the jury on the law and advises them on what must be taken into account when making their decision. The jurors then proceed to discuss the case amongst themselves and must come to a unanimous agreement on the verdict. After the trial, the jurors are not allowed to divulge the discussions that took place in the jury room.

If you have been charged with a serious offence, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We are available 24/7 to assist you when you need us most.

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

Written on Behalf of Affleck & Barrison LLP

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


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

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

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

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

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

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

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


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

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

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

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

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

Justice Duncan Beveridge wrote:

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


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

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

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

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


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

In the meantime, if you have been charged with a sexual assault offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

Acquittal Upheld for Ontario Teacher Who Secretly Videotaped Female Students

Written on Behalf of Affleck & Barrison LLP

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


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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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


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

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

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

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

Justice Peter Leask wrote in his decision:

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


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

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

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

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

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


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

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


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

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

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

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

30 Days in Jail for Man Convicted of Drinking and Driving

Written on Behalf of Affleck & Barrison LLP

An Ontario man, who was convicted of drunk driving (over 80 driving), was recently sentenced to 30 days in jail despite having no criminal record.


In the early morning hours of September 2, 2016, a serious car accident took place in front of the Riverside Inn in Bracebridge, Ontario.

The driver in question, Brandon Greavette, was in a pick-up truck which left the roadway, knocked down a light standard, and damaged vehicles in the parking lot of the Riverside Inn before coming to a stop on top of the dislodged light standard. The airbags of his truck were set off by the impact. One of the front wheels of a small sedan were knocked off the car and the axle and suspension unit were found lying on the roadway.

Greavette, 26 years of age, only suffered minor cuts to his face as a result of the collision. He admitted to a police officer at the scene that he had been the driver of the pick-up truck and that he had been drinking. He had slurred speech, bloodshot eyes, an inability to focus, and an odour of alcohol on his breath and body. He had trouble balancing and stumbled on his way to the police car. Greavette provided two breath samples into a breathalyzer and was arrested at the scene. His readings were 140 and 130 mg of alcohol in 100 mg of blood.

Greavette was convicted of Over 80 driving following his trial on October 19, 2017 and Justice David Rose provided reasons for sentencing on January 10, 2018.


If an accused pleads guilty or is found guilty at trial, the Court must then determine a sentence that is fair given all of the circumstances, the seriousness of the offence, and the offender’s degree of responsibility.

The Court may increase or decrease a sentence when reviewing all of the aggravating and mitigating factors relating to the offender and the offence.

An aggravating factor is something that can serve to increase the sentence, for example the offender’s criminal record. A mitigating factor is something that can serve to decrease the sentence, such as a good work history which can indicate good character.

Under section 718 of the Criminal Code, Canadian courts must impose just sentences that have one or more of the following objectives:

  • denounce the unlawful conduct and harm to the victim or the community;
  • deter the offender and others from committing crimes;
  • separate offenders from society, when necessary;
  • rehabilitate the offender;
  • provide reparations for harm done to the victim or the community; and
  • promote a sense of responsibility in offenders and acknowledgement of the harm done.


In making his sentencing decision, Justice Rose took into account various factors including rehabilitation, Greavette’s degree of responsibility, the fact that he was a first-time offender, and deterrence.

The mitigating factors in this case included the fact that Greavette is a relatively youthful first-time offender who has a supportive family and a good job. However, Justice Rose noted that this was tempered by the fact that Greavette continues to abuse alcohol socially which leads to assaultive behaviour.

In addition, although Greavette has no prior criminal record, the Court noted that he had several driving-related offences (i.e. Provincial Offences Act violations) on file which included four speeding tickets, tailgating, failing to stop at a signal or crosswalk, and careless driving. He had also been ticketed in 2016 for consumption of alcohol in public. These were aggravating factors.

In addition to Greavette’s problematic-driving record, additional aggravating factors included the troubling damage from the collision (including damage to the two vehicles, property damage to the light fixture, and damage to other vehicles in the parking lot at the Riverside Inn).

Justice Rose also noted that there were 6 individuals who walked away from the accident virtually and miraculously unharmed. He emphasized the devastating consequences that drunk drivers have on Canadian society and went on to cite various cases which reiterate that drinking and driving offences are serious crimes and must be treated this way by the courts.

Given all of the above these factors, Justice Rose held that this case calls for a deterrent sentence.

The Pre-Sentence Report “supports the finding that Mr. Greavette accepts responsibility for this offence but has not yet understood that when he drinks bad things happen”.

Justice Rose wrote,

After reflection I have come to the conclusion that neither a fine, nor a conditional sentence order will meet the required principals of sentencing. I do not take lightly the decision to jail a first offender, but after reflection I have determined that the sentence will be 30 days in jail.

In addition to time in jail, Greavette is to be placed on probation for 1 year following his jail sentence, must attend counselling for alcohol abuse and obey a curfew set by the probation officer. He will also undergo an 18 month driving prohibition.

If you have been charged with a driving offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

Appeal Court Upholds Parents’ Conviction in Son’s Meningitis Death

Written on Behalf of Affleck & Barrison LLP

A panel of Appeal Court judges in Alberta dismissed the appeal of a couple who were found guilty of failing to provide the necessaries of life to their 19 month old son, who died of meningitis in 2012.


In 2016, David and Collet Stephan were convicted by a jury for failing to provide the necessaries of life in their son Ezekiel’s 2012 death. They had treated their son with natural remedies rather than taking him to a doctor when he had become ill.

A panel of Appeal Court judges in Alberta dismissed the appeal. Justice Bruce McDonald, writing for the majority, wrote,

This evidence supports the conclusion that they actively failed to do what a reasonably prudent and ordinary parent would do.

During the trial, jurors heard evidence that the Stephans used natural remedies and homemade smoothies containing hot pepper, ginger root, horseradish and onion rather than seek medical care. Ezekiel became too stiff to sit in his car seat and had to lie on a mattress when his father drove him from his home to a naturopathic clinic to pick up additional herbal supplements.

The Stephans did not call for medical assistance until their son stopped breathing. He was then rushed to a local hospital, but died after being transported by air ambulance to a Children’s Hospital in Calgary.


According to the Stephans’ lawyers, the trial was a “battle of experts”. The Stephans argued that the convictions should be overturned because the trial judge erred in allowing too many Crown experts to testify, the medical jargon confused jurors, and the defence expert’s testimony was restricted. The majority of the Appeal Court dismissed all grounds of appeal.

The Stephans’ lawyers also argued that their clients’ Charter rights had been violated because of the unreasonable delay between the time they were charged to the date they were convicted. This aspect of the appeal was also dismissed with the Court finding the delay was not unreasonable.


Justice Brian O’Ferrall wrote a dissenting opinion in favour of a new trial. He felt that the trial judge’s charge to the jury was confusing and misleading. Justice O’Ferrall did, however, agree with the majority of the Court in finding that the Stephans’ right to be tried within a reasonable time had not been infringed.


David Stephan was sentenced to four months in jail and his wife, Collet, was sentenced to three months of house arrest. They were both ordered to complete 240 hours of community service. The trial Judge also ordered that the Stephans’ three other children see a medical doctor at least once a year.


Given that one of the three judges on the appeal panel dissented, the Stephans have an automatic right to have the Supreme Court of Canada hear arguments in their case. The Supreme Court has set a tentative date to hear arguments on May 15, 2018 for the couple.

The Crown prosecutors have filed their own appeal where they will argue that the couple should face stiffer sentences before another panel of Court of Appeal judges. A date for these arguments has not yet been set.


The Criminal Code of Canada requires that every parent, foster parent, or guardian is required to provide necessaries of life for a child under the age of 16 years of age.

A parent is responsible for the care, supervision, maintenance and support of his/her children. At a minimum, this obligation entails the provision of food and shelter. The Courts have also found that the failure to seek medical attention can be categorized as a “failure to provide the necessaries of life”.

The prosecution, in a case such as the Stephans, is required to prove that:

  1. The accused was under a legal duty to provide the necessaries of life to a child under the age of 16 years;
  2. The accused failed to provide the necessaries of life to a child under the age of 16 years;
  3. This failure endangered the child’s life or was likely to cause the health of that child to be endangered permanently; and,
  4. The conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, or guardian in the same circumstances.

We will continue to follow the developments in this case and will provide updates on this blog as they become available.

In the meantime, if you are facing charges or have 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.


Court Finds that Solitary Confinement Laws are Unconstitutional

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the Ontario Superior Court striking down Canada’s solitary confinement laws as unconstitutional following a three year challenge by the Canadian Civil Liberties Association (CCLA).


In the court case, lawyers for the CCLA requested a declaration that sections 31 to 37 of the Corrections and Conditional Release Act (“CCRA”), which allow the Correction Service of Canada to remove an inmate from the general population for a non-disciplinary reason, are unconstitutional as they infringe upon the rights granted in sections 7, 11(h) and 12 of the Charter of Rights and Freedoms (Charter”).

This application referred specifically to administrative segregation, the purpose of which is to maintain the security of the penitentiary and of all persons within the penitentiary. Under the current legislation, a warden is allowed to order solitary confinement when an inmate is at risk from others or poses a risk to the security of the prison. When this occurs, inmates are ordered to spend 22 hours in a cell without any meaningful human contact. There is no cap on the length of time that segregation occurs in the legislation.

Under the current legislative system, prison wardens are responsible for the initial decision to place an inmate in solitary confinement and are involved in the internal tribunal assembled five days later to study and judge that decision. Justice Marrocco found that this lack of independent review means that there is no accountability for the decision to segregate.


Justice Marrocco ruled that this arbitrary and potentially biased system is improper given the severe deprivation of liberty and security of the person that takes place when an inmate is segregated. These are two rights guaranteed under section 7 of the Charter.

Justice Marrocco wrote:

I am satisfied that the statutory review of the decision to segregate is procedurally unfair and contrary to the principles of fundamental justice because the procedure chosen provides that the Institutional Head is the final decision maker for admission, maintenance and release from administrative segregation and is the final institutional decision-maker of required reviews and hearings which occur immediately after an inmate is segregated.

However, Marrocco stated that banning the practice immediately could be disruptive and dangerous. Therefore, Justice Marrocco put his declaration on hold for a year, which he felt was a reasonable time frame to allow Parliament to address the situation.


The CCLA argued for a 15-day limit on solitary confinements, a prohibition on the isolation of mentally ill inmates, and, a rule barring prisoners aged 18 to 21 from solitary lockups.

Regarding the effect of solitary confinement, Justice Marrocco agreed with CCLA and wrote that “placing an inmate in administrative segregation imposes a psychological stress, quite capable of producing serious permanent observable negative mental health effects”. He, however, did not find that solitary confinement itself to be unconstitutional, even when applied to inmates aged 18 to 21 or the mentally ill. He rejected any argument that this practice amounts to cruel and unusual punishment. Justice Marrocco also refused to declare placement in solitary confinement for more than 15 days to be unconstitutional.

The CCLA launched this constitutional application shortly after the British Columbia Civil Liberties Association (BCLA) and the John Howard Society of Canada filed a similar, but unrelated, lawsuit in Vancouver. A ruling in the B.C. case is expected within the next three months.

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

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison at 905-404-1947 or contact us online. We are here to help you 24/7.

Former Canadian National Ski Coach Convicted of Sex Crimes

Written on Behalf of Affleck & Barrison LLP

Bertrand Charest, a former Canadian national ski coach, was found guilty of 37 charges including sexual assault and sexual exploitation for the abuse of athletes he coached between 1991 and 1998 in June, 2017. He has been in custody since his arrest in March, 2015.


Charest was facing 57 charges including sexual assault, sexual exploitation and one charge of sexual assault causing bodily harm. The 12 victims reported that the abuse took place between 1991 and 1998 in Quebec, Whistler, New Zealand, and the United States. The victims ranged in ages from 12 to 18 at the time of the offences.

Charest was found guilty of 37 of the 57 charges laid against him. He was acquitted on 18 charges and the court could not speak to two of the counts as they related to events that occurred in New Zealand. The guilty verdicts pertained to charges involving nine of the twelve women.

The victims’ credibility was central to the case. Judge Lepine stated,

                        The court believes the complainants and their testimonies are credible and reliable.

This is particularly noteworthy as the events in question took place more than two decades ago.

One victim gave evidence that Charest took her to have an abortion when she was 15 years old after having unprotected sex with him on numerous occasions. She stated that the sexual encounters continued after the abortion as Charest purchased contraceptives for her after getting a prescription from his own father.

Although Charest did not testify at the trial, his lawyer, Antonio Cabral, stated that the accused believed that the sexual relations he had with the young skiers was consensual.

Judge Sylvain Lepine emphasized that the victims in this case were vulnerable and compromised because they were afraid to lose Charest as their coach. Some of the victims gave evidence that they were in love with Charest at the time, but eventually came to understand that they had been manipulated. Judge Lepine stated that Charest’s actions represented an unequivocal abuse of trust and power.


Charest was sentenced on December 8, 2017 to 12 years in prison. He has already served time and now has seven years and 10 months remaining in his sentence.

Judge Lepine had many harsh words for Charest and recognized that Charest “did not and does not recognize the gravity or consequences of his actions”. In his sentencing, Judge Lepine emphasized the turmoil that Charest caused in the lives of his victims, including loss of trust, suicidal thoughts, intense stress, problems with intimacy, eating problems, and more.

Charest’s victims delivered emotional impact statements to the court, using phrases such as “being robbed of my childhood”, living with “shame, guilt and disgust”, and describing his behaviour as resembling that of “a predator”.

Judge Lepine stated in his remarks at the sentencing,

 This behaviour is not acceptable in 2017, it wasn’t in 1998, just as it wasn’t in 1950 or any other era.

Judge Lepine also had harsh words for Alpine Canada when he stated,

 Alpine Canada and its leaders failed miserably in their role as guardians and protectors of these young athletes. …Their parents had entrusted them with their safety. Alpine Canada chose rather to close its eyes, to not believe these young women and to hide the truth.

In response, the Chair of the Board of Alpine Canada Martha Hall Findlay provided a statement stating,

 Instead of being there for the athletes, instead of providing support when these activities were discovered, Alpine Canada put itself first, not the victims. In doing so, Alpine Canada failed them. More than 20 years on, I want to say, personally and on behalf of Alpine Canada, that we are profoundly sorry.

Alpine Canada has recently changed its policies and procedures to prevent situations like this from happening in the future. SafeSport has been created to act as an independent body to review claims of abuse and investigate them outside of any conflict of interest from a particular team or organization.


Charest’s lawyer, Antonio Cabral, has appealed the sex-crime convictions on behalf of his client. Cabral alleges a lengthy list of legal errors made by the trial judge. Cabral specifically took issue with Judge Lepine describing Charest as a “veritable predator”.

Cabral has advised that he will ask the Quebec Court of Appeal to have Charest released pending the ruling on the appeal of the convictions.

We will continue to follow this case and provide updates as they develop.

In the meantime, if you are facing sexual assault charges or have questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 90-5404-1947. For your convenience, we offer 24-hour phone services. We are available when you need us most.

Supreme Court of Canada Finds That Some Texts Are Considered Private

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about the topic of whether there is a reasonable expectation of privacy in text messages. The Supreme Court of Canada (“SCC”) ruled last week that Canadians can expect the text messages that they send to remain private even after they reach their destination (i.e. depending on the circumstances, there may be a reasonable expectation of privacy in text messages even after they have been sent to another person).

In a 5-2 ruling, the SCC in R. v. Marakah set aside the firearms convictions of a man whose incriminating text messages were found on the phone of an alleged accomplice by Toronto police.


An Ontario man, Nour Marakah, sent text messages regarding illegal transactions in firearms to his accomplice, Andrew Winchester. The police obtained and executed warrants for both Marakah’s and Winchester’s homes. While conducting the search, the police found Marakah’s Blackberry and Winchester’s iPhone and proceeded to search both devices, which revealed the incriminating text messages. These messages were then used as evidence to charge Marakah.

At trial, Marakah argued that the messages should not be admitted as evidence against him because they were obtained in violation of his rights against unreasonable search or seizure under the Canadian Charter of Rights and Freedoms (“Charter”).

The Ontario application judge found that the warrant for Marakah’s home had been invalid and that the text messages recovered from his own Blackberry could not be used against him. However, the court admitted the text messages from Winchester’s iPhone as evidence. Based on these messages, Marakah was convicted of multiple firearms offences.

The Court ultimately found that while someone who sends a text message has a reasonable expectation of privacy, this expectation ends when the message reaches the intended recipient.

Marakah appealed to the Court of Appeal, where he was unsuccessful. The majority of the Court agreed that Marakah could have no expectation of privacy in the text messages retrieved from Winchester’s iPhone, and therefore could not make a case against their admissibility. Marakah appealed further to the SCC.


The SCC allowed Marakah’s appeal, set aside the convictions and entered acquittals on all charges against him.

The Court found that Marakah had a reasonable expectation of privacy concerning his text messages. Therefore, the texts used as evidence to convict him had violated his guaranteed right to be protected against unreasonable search or seizure under the Charter.

In this case, Marakah was found to be the author of the text messages that he expected to remain private.  He had asked the recipient of the messages, Winchester, on numerous occasions to delete the messages. Marakah’s conviction was thrown out because the search was unreasonable and violated his right under section 8 of the Charter.

Chief Justice Beverly McLachlin, writing for the majority, stated,

I conclude that depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that, in this case, Mr. Marakah had standing to argue that the text messages at issue enjoy s. 8 protection.

The SCC did set out a four-step test to determine if and when one can reasonably expect privacy:

  1. What was the subject matter of the alleged search?
  2. Did the claimant (i.e. the person claiming privacy) have a direct interest in the subject matter?
  3. Did the claimant have a subjective expectation of privacy in the subject matter?
  4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

The SCC found that Marakah had standing to challenge the search based upon the following:

  1. The subject matter of the search was the electronic conversation between Marakah and Winchester;
  2. Marakah had a direct interest in the subject matter;
  3. Marakah subjectively expected the subject matter to be private;
  4. Marakah’s expectation was objectively reasonable.

The Court concluded that without the incorrectly admitted text message evidence, which was found to be inadmissible, Marakah would have been acquitted.


The SCC did caution that the expectation of privacy is not automatic and depends upon the facts of each case and that the outcome may be different in other circumstances. Chief Justice Beverley McLachlin noted,

This is not to say, however, that every communication occurring through an electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing to make arguments regarding s. 8 protection. This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards.

Therefore, we must expect that the law will adapt to changes and developments in technology and communication over time.   As these changes take place in the law, we will continue to provide updates through this blog.

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