Recent Decisions

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

Written on Behalf of Affleck & Barrison LLP

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

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

THE INVESTIGATION

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

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

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

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

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

THE APPEAL

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

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

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

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

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

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

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

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

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

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

Alberta Appeal Court Ruling Confirms Automatic Registration for Convicted Sex Offenders

Written on Behalf of Affleck & Barrison LLP

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

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

THE HISTORY AND THE COURT OF APPEAL DECISION

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

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

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

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

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

WHAT IS CANADA’S NATIONAL SEX OFFENDER REGISTRY?

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

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

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

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

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

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

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

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

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

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

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

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

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

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

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

Justice Fairburn stated:

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

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

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

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

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

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

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

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

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

Kalen Schlatter Appeals Guilty Murder Verdict Claiming Unlawfully Obtained Evidence

Written on Behalf of Affleck & Barrison LLP

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

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

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

WHAT IS AN APPEAL?

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

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

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

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

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

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

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

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

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

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

UNDERCOVER OFFICER TESTIMONY AT TRIAL

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

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

The officer testified:

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

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

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

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

TRIAL BY ZOOM

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

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

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

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

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

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

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

WHAT HAPPENED AT TRIAL?

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

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

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

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

Justice Lemon stated:

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

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

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

If you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

20,000 Watch Livestream of Judgment as Off-Duty Officer is Found Guilty of Assault

Written on Behalf of Affleck & Barrison LLP

Last week, an unprecedented event took place when more than 20,000 people watched Justice Joe Di Luca read his 62 page ruling for four hours in an online livestream. 

Justice Di Luca found off-duty Toronto police Constable Michael Theriault (“Michael”) guilty of assaulting Dafonte Miller (“Miller”).  Michael was acquitted of the charges of obstruction of justice and his brother, Christian Theriault (“Christian”), was acquitted of all charges of aggravated assault and obstruction of justice.

PUBLIC INTEREST DEMANDS LIVESTREAM OF JUDGE’S DECISION

In his judgment, Justice Di Luca recognized the immense public interest that the case before him generated given the issues of racism and police accountability.  However, he stated that his duty was not to “conduct a public inquiry into matters involving race and policing”, his responsibility was to decide “whether the Crown has proven the offences charged beyond a reasonable doubt based on the evidence that was presented in court”.

The fact that so many people were watching the decision streaming live demonstrates that the public wants to have access to the court process and see justice in action.  The decision by Justice Di Luca to livestream his decision also shows the court’s dedication to legitimacy and authenticity.

Justice Di Luca stated in his decision:

This case has attracted significant public and media interest.  This interest is welcome as the openness of the court process is one of its core defining principles.  It is also welcome because public and media interest fosters legitimate debate, criticism and change, all of which are essential features of a functioning modern democracy.

WHAT HAPPENED?

The depiction of the events that occurred in the early morning hours of December 28, 2016 were incompatible between Miller and the Theriault brothers.

According to Miller, he was walking down the sidewalk with friends when he was approached and questioned by the Theriault brothers.  Miller and his friends ran, but he was eventually caught and viciously beaten.  Michael allegedly used a metal pipe and Christian used his hands and feet.  Miller was struck in the eye with the metal pipe and suffered serious injuries to the bones around his face, his wrist was broken, he lost vision in his left eye and had difficulty seeing out of his right eye.  As a result of this incident, Miller underwent two surgeries and had to have his damaged eyeball removed and fitted for a prosthesis.

According to the Theriault brothers, they were inside the garage at their parents’ home when they heard a commotion outside.  They opened the garage to find two males inside one of their vehicles.  The individuals ran in different directions.  The brothers chased Miller, with the intention of arresting him and waiting for police to arrive.  The cornered him in between two houses at which time Miller produced a metal pipe and began swinging it.  Christian alleges that he was hit in the head and a struggle ensued.  Michael proceeded to punch Miller multiple times in the face, likely causing Miller’s eye injury.  Michael denies hitting Miller with the metal pipe.  The Theriault brothers contend that they used reasonable force in their attempt to arrest Miller and acted in self-defence when Miller used the metal pipe as a weapon.

Miller was arrested at the scene and charges were laid, including theft under $5,000 and assault with a weapon.  In the end, these charges were withdrawn by the Crown.

The Special Investigations Unit investigated the incident and the Theriault brothers were jointly charged with aggravated assault and separately charged with attempting to obstruct justice given their dishonesty with the Durham Regional Police Service.

JUSTICE DI LUCA’S DECISION AT TRIAL

Justice Di Luca specifically acknowledged that there were credibility issues with multiple witnesses and therefore he could not conclusively determine a number of important facts in this case.  Specifically, he could not positively determine where the metal pipe came from or who first handled it.

Justice Di Luca found that Miller and his friends were stealing items from cars and that Michael’s initial plan was “likely not to arrest Mr. Miller, but rather to capture him and assault him”.  Michael never identified himself as a police officer or mentioned an arrest during the chase or the fight.  Justice Di Luca stated:

To be blunt, I would have expected the first thing out of Michael Theriault’s mouth as he was chasing Mr. Miller while wearing only socks would have been “Stop…you are under arrest…I’m a police officer,” or words to that effect.

Although it was not clear as to the origin of the metal pipe, Justice Di Luca stated:

Even assuming that the pipe was first introduced by Mr. Miller, it was quickly removed from him and the incident became one-sided, with Mr. Miller essentially being beaten by Michael and Christian Theriault.

Justice Di Luca was “left with reasonable doubt” that Michael was acting in self-defence.  When Miller headed towards the door of the nearby home to seek assistance and was badly injured, he was essentially in retreat.  Justice Di Luca stated:

The already razor thin self-defence justification evaporates at this stage.

Justice Di Luca was satisfied beyond a reasonable doubt that when Michael struck Miller with the pipe he was not acting in self-defence or in the course of an arrest, and therefore committed an unlawful assault.

WHAT HAPPENS NEXT?

Michael is currently suspended from the Toronto Police Service and has been since July 2017.  He will continue to remain out on bail until his sentencing hearing. 

A professional standards investigation is underway on behalf of the Toronto Police Service with respect to the events that transpired and the Office of the Independent Police Review Director is also continuing to investigate this incident.

We will provide additional information regarding any developments as they take place in this blog.

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

Supreme Court of Canada Clarifies Entrapment by Police in Dial-a-Dope Cases

Written on Behalf of Affleck & Barrison LLP

Canada’s highest court recently released its written decision in a pair of related cases regarding the issue of entrapment.  Javid Ahmad (“Ahmad”) and Landon Williams (“Williams”) were each charged with drug offences after police purchased cocaine from them. 

The Supreme Court of Canada confirmed that police must form a reasonable suspicion that the individual on the phone is dealing drugs before asking to buy drugs.

WHAT HAPPENED?

Toronto police responded to tips to investigate alleged dial-a-dope schemes.  This type of scheme involves a seller communicating with their customers over cell phones and arranging to purchase drugs at an agreed upon location.  In each case, officers called a particular phone number and following a brief conversation requested drugs and arranged a meeting spot to complete the transaction. 

Ahmad and Williams were each arrested and charged with drug-related offences.  Both accused argued at trial that their proceedings should be stayed on the basis of entrapment.

In the case of Ahmad, the police received a tip that “Romeo” was selling drugs over the phone.  Following a short conversation with “Romeo”, a deal was struck to sell the officer cocaine and a location was agreed upon.  The officer met “Romeo” (Ahmad) in person to sell him the cocaine, at which time he was arrested and searched.  At Ahmad’s trial, he was convicted and the judge concluded that he was not entrapped as police had not offered him an opportunity to traffic drugs until their tip had been corroborated during the course of the phone conversation. 

In the case of Williams, police received a tip that “Jay” was selling cocaine.  The officer called “Jay” and arranged a meeting time and place to buy crack cocaine.  The drug deal took place.  Eleven days later, another drug deal was arranged.  A month later, the police arrested Williams.  At Williams’ trial, the judge concluded that he was entrapped because the officer who contacted him provided him with the option to sell drugs before forming a reasonable suspicion that he was drug trafficking.  Thus resulting in a stay of the drug-related charges.

Both Ahmad’s and Williams’ cases were heard together on appeal.  The majority of the Court of Appeal held that where reasonable suspicion relates to the phone number, the police can provide opportunities to commit a crime even if there is no reasonable suspicion about the person who answers the phone.  Therefore, at their appeals both Ahmad and Williams were convicted of drug offences.

WHAT IS ENTRAPMENT?

Entrapment takes place when the police encourage an individual to commit a crime or provide an individual with the opportunity to commit a crime without having a reasonable suspicion that the individual is involved in that particular criminal activity. 

The Supreme Court of Canada set out two categories for the defence of entrapment in the case of R. v. Mack

  1. The police may present an opportunity to commit a crime only without acting upon a reasonable suspicion that either a specific person is engaged in criminal activity or people are carrying out criminal activity at a specific location;
  2. The police, while having a reasonable suspicion, go beyond providing an opportunity and induce the commission of an offence.

WHAT DID THE SUPREME COURT OF CANADA DECIDE?

On appeal to the Supreme Court of Canada, both Ahmad and Williams argued that the police did not have the required reasonable suspicion that either individual was involved in criminal activity before asking them over the phone to buy drugs.

The majority of the judges of the Supreme Court concluded that Ahmad was not entrapped and that Williams was entrapped by the police.

The court held that police can ask a person during a telephone conversation to commit a crime, but only if there is already reasonable suspicion that the person is involved in criminal activity.  The reasonable suspicion must relate to the specific person committing a crime or a crime occurring in a specific location.  Given the digital world that we live in, a specific location can include a phone number.  Thus, police can have a reasonable suspicion that the phone number is being used for the crime before asking the person who answers the phone to commit a crime.  The court was concerned about the risks to privacy of allowing the location to be expanded to virtual spaces and stated:

…to properly protect these interests, police must have reasonable suspicion over an individual or a well-defined virtual space, like a phone number, before providing an opportunity to commit a crime.

Although in both cases, the police didn’t have reasonable suspicion before calling the phone numbers, the court concluded that the police became reasonably suspicious in Ahmad’s case to suspect he was selling drugs while talking with him on the phone and before asking to buy drugs from him.  In Williams case, the police asked to buy drugs from him prior to having a reasonable suspicion that he was selling drugs during their phone conversation. 

The majority of the court stated:

As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. …

At the same time, police require various investigative techniques to enforce the criminal law.  While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.

Based upon the specific circumstances in each case, Ahmad’s conviction was upheld and the stay of proceedings for Williams was reinstated.

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

Supreme Court of Canada Rules Bail Conditions Must Be Knowingly Violated

Written on Behalf of Affleck & Barrison LLP

In its unanimous decision last week, the Supreme Court of Canada ordered a new trial for Chaycen Michael Zora (“Zora”), who had been convicted of breaching his bail conditions. 

The highest court in Canada concluded that an individual accused of breaching his/her bail conditions must knowingly or recklessly violate those conditions in order to be found guilty of breaching them.

WHAT HAPPENED?

Zora was charged with several drug offences in British Columbia.  He was released on bail and required to abide by twelve conditions.  These conditions included that he keep the peace and be of good behaviour, report to his bail supervisor, not possess any non-prescribed controlled substances, not possess or have a cell phone, obey a curfew and be present at his front door within five minutes if and when the police or bail supervisor appeared to check on him, amongst other conditions. 

In October 2015, police rang Zora’s doorbell on two occasions and he did not answer.  He was therefore charged with two counts of breaching his curfew and two counts of failing to meet the condition of responding to police at his home during a curfew check.

At his trial, Zora was acquitted of charges of breaching curfew as it could not be proven beyond a reasonable doubt that Zora had been outside of his home after curfew.  However, Zora was fined $920 and found guilty of two counts of failing to appear at the door in response to curfew compliance checks.

Zora argued that he did not hear the doorbell as it was difficult to hear it from where he slept.  Furthermore, he testified that he was undergoing methadone treatment, which made him very tired, and was in the process of withdrawal from his heroin addiction.

Zora also testified that he changed where he slept in his home and set up an audio-visual system at his front door to help alert him to further police checks, which ensured that he was complying with his conditions of bail. 

Zora unsuccessfully appealed the trial judge’s decision.  He then proceeded to take his appeal to the Supreme Court of Canada

THE DECISION OF THE SUPREME COURT

Zora appeals his conviction for failing to comply with his bail conditions by not answering the door when police appeared at his residence to ensure that he was complying with his bail conditions.  In failing to do so, Zora had committed the actus reus of the crime (the physical act of the crime).

The Supreme Court of Canada was asked to determine whether Zora had committed the mental element, also known as the mens rea, of the crime, which also must be present, in order to secure a conviction under section 145(3) of the Criminal Code.

It is a criminal offence, under section 145(3) of the Criminal Code, to breach bail.  This crime carries a maximum penalty of two years in prison.  Therefore, an accused may be subject to imprisonment for breaching conditions of their bail even if he/she is not found guilty of any of the original charges. 

In writing on behalf of the Supreme Court, Justice Martin explained what was required to satisfy the mental element of the crime:

I conclude that the Crown is required to prove subjective mens rea and no lesser form of fault will suffice.  Under s.145(3), the Crown must establish that the accused committed the breach knowingly or recklessly.  Nothing in the text or context of s. 145(3) displaces the presumption that Parliament intended to require a subjective mens rea. 

…The realities of the bail system further support Parliament’s intention to require subjective fault to ensure that the individual characteristics of the accused are considered throughout the bail process.

…Not only is this conclusion consistent with the presumption of subjective fault for crimes like s. 145(3), it is supported by its place and purpose in the overall bail system, the serious consequences which flow from its breach, and how the consideration of individual circumstances is the proper focus both for setting conditions and determining the mental element for their breach.

The Supreme Court held that subjective mens rea can be established when the Crown has proven:

  1. The accused had knowledge of the conditions of the bail order, or they were willfully blind to those conditions; and
  2. The accused knowingly (or were willfully blind to the circumstances) failed to act according to their bail conditions despite the knowledge of them; or
  3. The accused recklessly failed to act in accordance with their bail conditions (i.e. perceived an unjustified risk that their conduct would fail to comply with their bail conditions).

In conclusion, the Supreme Court held that subjective fault is required for a conviction under s. 145(3) of the Criminal Code.  The court found that the lower courts erred in law by applying an objective rather than a subjective standard of fault.  The Supreme Court allowed Zora’s appeal, quashed his convictions and ordered a new trial on the two counts of failing to appear at his door. 

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

Appeal Court Expunges the Defence of Self-Induced Intoxication

Written on Behalf of Affleck & Barrison LLP

Last week, amidst great controversy, the Ontario Court of Appeal released its decision in the cases of R. v. Sullivan and R. v. Chan regarding the application of the defence of self-induced intoxication. 

This significant decision declared that section 33.1 of the Criminal Code of Canada (“CC”) is unconstitutional and of no force or effect.

SECTION 33.1 OF THE CRIMINAL CODE

Section 33.1 of the CC established that if an accused caused his/her own intoxication and commits a violent offence, he/she cannot claim that he/she was too intoxicated to be found guilty of even general intent offences (i.e. assault and sexual assault).  This applies even if he/she was intoxicated to the point of automatism (the performance of an action unconsciously or involuntarily), even if his/her acts were involuntary or he/she lacked the mental state to commit the violent act.

In its latest decision, the Ontario Court of Appeal determined that this law breached “virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence”.

WHAT HAPPENED IN THE SULLIVAN CASE?

In the case of David Sullivan, the accused over-consumed prescription medication in an attempt to take his own life.  The medication left him in a state of extreme psychosis.  During the psychotic episode, he believed he had captured an alien and proceeded to stab his mother.

At trial, Sullivan was found guilty of the violent offence despite Sullivan’s contention that his intoxication was involuntary as it resulted from a suicide attempt. 

WHAT HAPPENED IN THE CHAN CASE?

Thomas Chan, a high school student, stabbed and killed his father and severely injured his father’s partner during a psychotic episode after consuming magic mushrooms.  Chan believed he was a deity and that his father was the devil. 

At trial, Chan also attempted to rely upon the defence of non-mental disorder automatism.  Given section 33.1, which prohibits the use of automatism as a defence in cases of violence when an accused’s intoxication was self-inflicted, this defence failed and Chan was convicted.

THE COURT OF APPEAL’S DECISION REGARDING SECTION 33.1 OF THE CRIMINAL CODE

The Court of Appeal found that section 33.1 of the CC violated the following sections of the Charter of Rights and Freedoms:

  1. The right to life, liberty and security of the person (section 7); and
  2. The right to the presumption of innocence (section 11(d)).

Under Canadian law, if a law violates a Charter right, in certain circumstances it can be justified by the Crown and upheld despite the violations.  In this case, the Appeal Court could not find benefits to the law, and instead found that the law was contrary to the principles of fundamental justice.

In its decision, the Court of Appeal wrote:

Put simply, the deleterious effects of s.33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence. …

With very little true gain, Parliament has attempted to cast aside the bedrock of moral fault.

The Court of Appeal held that a person must act voluntarily to commit a crime.  Although lawmakers attempted to help victims attain justice with the introduction of section 33.1 of the CC, the law in actuality violated an accused’s rights by making them responsible for violence they had no control over.  Justices David Paciocco and David Watt wrote:

As for recognizing and promoting the equality, security and dignity of crime victims, it is obvious that those few victims who may see their offenders acquitted without s.33.1 will be poorly served.  They are victims, whether their attacked willed or intended the attack.  However, to convict an attacker of offences for which they do not bear the moral fault required by the Charter to void this outcome, is to replace on injustice for another, and at an intolerable cost to the core principles that animate criminal liability.

The Court of Appeal ordered a new trial for Chan as he was only convicted of offences that included an element of assault and those convictions depended upon section 33.1.  On the other hand, the Court of Appeal acquitted Sullivan of all of his charges.

WHAT HAPPENS NEXT?

The Crown prosecutor has advised that it will be seeking leave to appeal these decisions to the Supreme Court of Canada.

The Women’s Legal Education and Action Fund has strongly expressed its frustration over this Court of Appeal decision and believes that this decision sends a message “that men can avoid accountability for their acts of violence against women and children through intoxication”.

However, the Canadian Civil Liberties Association has expressed that the concern that the floodgates have been opened to men arguing the defence of intoxication are unwarranted.  An accused must still prove that he/she was in a state of automatism, not merely drunk.

Cara Zwibel, Director with the Canadian Civil Liberties Association, stated:

This is a rarely used provision.  It’s not this widespread, systemic concern.

We will continue to follow the law as it evolves in response to the recent Ontario Court of Appeal decisions and will report any developments 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 Finds Driver Guilty as Risks are Reasonably Foreseeable When Driving Three Times the Speed Limit

Written on Behalf of Affleck & Barrison LLP

Earlier this spring, the Supreme Court of Canada determined that a reasonable person should foresee the risk of excessive speeding towards a major intersection and that this behaviour can be a departure from the reasonable standard of care required of drivers in Canada.

The highest court in Canada found that the trial judge in the case of R. v. Chung made two errors of law in a case of dangerous driving causing death.

WHAT HAPPENED?

On November 14, 2015, Ken Chung (“Chung”) drove his vehicle almost three times the speed limit towards a major intersection in a mixed residential-commercial area in Vancouver.  Chung crashed into a left turning vehicle, resulting in the death of the driver at the scene of the accident. 

A dashboard camera video caught 4.9 seconds of the accident showing Chung passing one car on the right and accelerating from 50 km/h to 140km/h before entering the intersection.  Chung was observed almost hitting a Toyota that was making a right turn in front of him and then colliding with the victim’s vehicle at a speed of 119 km/h.

The trial judge concluded that Chung’s speeding through the intersection was objectively dangerous to the public and fulfilled the actus reus (the physical act of the crime) of dangerous driving.  However, there was reasonable doubt as to whether Chung’s conduct met the mens rea (the intention, knowledge or recklessness of the accused) requirement for the crime of dangerous driving.  The test for mens rea in driving cases refers to a marked departure from the standard of care of a reasonable person in similar circumstances.  The trial judge held that the momentariness of Chung’s speeding did not demonstrate criminal fault.

At his trial, Chung was acquitted of dangerous driving causing death under section 249(4) of the Criminal Code (this section has been repealed and replaced with section 320.13(3) of the Criminal Code).  This crime requires two components:

  1. The prohibited conduct:  Operating a motor vehicle in a dangerous manner resulting in death; and
  2. The required degree of fault:  A marked departure from the standard of care that a reasonable person would have exercised while driving in the circumstances when the incident occurred.

On appeal, it was found that the trial judge had erred in law by finding that Chung had lacked the mens rea of the driving offence, and in finding that the momentary acceleration in speed could not satisfy the mens rea component of the crime  Therefore, the acquittal was overturned and a dangerous driving conviction was entered.

Chung appealed the conviction and took his case to the Supreme Court of Canada (“SCC”).

THE SUPREME COURT OF CANADA DECISION

The SCC found that the trial judge made two errors of law by applying the wrong legal principle and by failing to apply the correct legal test by not assessing what a reasonable person would have foreseen and done in the circumstances.

Justice Sheilah Martin, writing for the majority of the SCC, found that Chung’s actions were not comparable to momentary mistakes that a reasonable driver may make.  She wrote:

A reasonable person would have foreseen that rapidly accelerating towards a major intersection at a high speed creates a very real risk of a collision occurring within seconds.  This is what actually occurred in Mr. Chung’s case.  Risky conduct at excessive speeds foreseeably can result in immediate consequences. 

… A reasonable person understands that driving is an inherently risky activity.  It is made all the more risky the faster we drive, the harder we accelerate, and the more aggressively we navigate traffic.  Although even careful driving can result in tragic consequences, some conduct is so dangerous that it deserves criminal sanctions.

The SCC concluded that the test for mens rea is whether a reasonable person would have foreseen the immediate risk of travelling almost three times the speed limit towards a major intersection.  Therefore, it held that Chung’s driving was a “marked departure from the norm”.

Justice Martin warned that there may be cases where excessive speed may not be a discrepancy from the standard of care.  She explained:

Only when there has been an active engagement with the full picture of what occurred can the trial judge determine whether the accused’s conduct was a marked departure from the conduct of a reasonable and prudent driver.

The SCC dismissed the appeal and restored Chung’s conviction.

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