Recent Decisions

Sentence of Life With No Parole for 40 Years for Quebec Mosque Shooter

Written on Behalf of Affleck & Barrison LLP

Last week two sentencing decisions were made in two high profile criminal cases in Canada. In both decisions, the court was left to decide how many years the accused will have to wait until he can apply for parole given the multiple counts of first-degree murder.

As we wrote in our blog last week, Bruce McArthur (“McArthur”), 67 years old, pleaded guilty to eight counts of first-degree murder in the deaths of eight men who disappeared between 2010 and 2017 in Toronto’s Gay Village. Justice John McMahon sentenced McArthur to life in prison for each of the eight counts. Justice McMahon did not order consecutive periods of parole ineligibility and instead decided that McArthur was not eligible for parole for 25 years.

Justice McMahon, in his sentencing reasons, stated:

Due to the accused’s age, I am satisfied that when dealing with the protection of the public, concurrent periods of parole ineligibility can adequately address the protection of the public. It would not be until Mr. McArthur is 91 years of age that he could apply for consideration for parole.

In Quebec, Alexandre Bissonnette (“Bissonnette”), 29 years old, pleaded guilty to killing six men at a Quebec City mosque on January 29, 2017. He was sentenced to life in prison with no possibility of parole for 40 years.

WHAT HAPPENED AT BISSONNETTE’S SENTENCING HEARING?

In March 2018, Bissonnette pleaded guilty to six counts of first-degree murder and six counts of attempted murder as a result of his actions on the evening of January 29, 2017.

Bissonnette, armed with a .223-calibre rifle, a 9-mm Glock pistol, and 108 bullets, shot into a crowded prayer room at the Islamic Cultural Centre as Sunday prayers were ending.

The Crown prosecutor argued before the Quebec Superior Court that the parole periods should be consecutive, which would result in a total of 150 years with no chance of parole. This would have been the longest prison sentence in Canadian history. To date, the longest prison sentence of 75 years without parole has been handed down in five cases involving triple killings. For example, in the case of Justin Bourque who murdered three RCMP officers in New Brunswick in 2014.

Bissonnette’s lawyer argued that his client’s sentences should be served concurrently. This means Bissonnette could seek parole after 25 years in prison. Bissonnette was described by his lawyer as an “anxious” man suffering from depression who required alcohol in order to reduce his inhibitions on the night of the killings. He has been described by his own defence team as a “sick young man” who can be rehabilitated and has shown remorse and shame.

WHAT WAS THE JUDGE’S RULING ON SENTENCING?

Before providing his sentence to Bissonnette, Justice Francois Huot addressed the offender by stating:

By your hate and your racism, you destroyed the lives of dozens and dozens of people, and have irredeemably ruined your own and those of the members of your family.

Justice Huot then proceeded to provide a detailed account of Bissonnette’s actions on the night of the shooting.

In his ruling, Justice Francois Huot rejected the Crown’s argument and instead imposed a concurrent life sentence of a 25-year parole ineligibility period for the first five counts of murder and added a 15-year period of ineligibility for the sixth count. This means that Bissonnette will not be eligible for parole for 40 years.

Justice Huot reasoned that sentences that exceed an offender’s life expectancy and offer no hope of release are “grossly disproportionate and totally incompatible with human dignity” and would constitute cruel and unusual punishment under the Canadian Charter of Rights and Freedoms.

Although Justice Huot did not strike down the section of the Criminal Code which allows for consecutive life sentences, he used his discretion to hand down a consecutive life sentence that was less than the traditional 25 year block (as first-degree murder carries a life sentence with no possibility of parole for 25 years).

According to Justice Huot, the following aggravating factors justified a sentence harsher than the 25-year period:

  • He planned his attack carefully;
  • He targeted vulnerable and unarmed people in their place of worship; and
  • He took aim at Canada’s right to freedom of religion.

Justice Huot also considered that Bissonnette had been struggling with mental health problems in the time leading up to the shootings. He also considered the fact that Bissonnette had no previous criminal record, he pleaded guilty, and he expressed remorse.

Lawyers for both the Crown and the defence will be reviewing Justice Huot’s lengthy 246-page decision to decide whether to appeal the sentence. We will continue to follow this case and will report any developments that occur in this blog.

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our clients’ rights. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Millard Files Appeal of Conviction in Father’s Death

Written on Behalf of Affleck & Barrison LLP

Dellen Millard is appealing his first-degree murder conviction and sentence for the death of his father, Wayne Millard.

WHAT HAPPENED?

In September, 2018, Millard was found guilty of murdering his father. In a judge alone court case, Millard was convicted of shooting his 71-year-old father, Wayne Millard, through his left eye as he slept on November 29, 2012.

Millard’s father’s death was originally ruled a suicide. Following Millard’s convictions in the deaths of Tim Bosma (“Bosma”) and Laura Babcock (“Babcock”), police began to re-examine Wayne Millard’s apparent suicide. Crown Prosecutors alleged that Millard killed his father in order to protect his inheritance.

During the investigation, Millard revealed to the police that his father was depressed and an alcoholic. Millard told police that he found his father dead in bed around 6 p.m. on November 29, 2012. He claimed that he last saw his father alive around noon the day before and spent the night at his friend Mark Smich’s house (his accomplice in the murders of Bosma and Babcock).

Phone records revealed that Millard travelled back to his father’s house in the early hours of the morning on November 29, 2012. The police came to learn that the gun found next to Wayne Millard was a gun purchased illegally by his son and had the younger Millard’s DNA on it.

Justice Maureen Forestall found that Millard had set up a false alibi by leaving his car, a cell phone, and his credit card at Smich’s house and he took a taxi to his father’s house.

MILLARD’S SENTENCE IN HIS FATHER’S DEATH

Following his conviction, Justice Forestall sentenced Millard to his third consecutive life sentence. Thus, Millard will serve 75 years behind bars before he is eligible to apply for parole. This is the longest term of parole ineligibility in the Canadian criminal justice system and the first time that this sentence has been handed down in Ontario.

At the time of sentencing, Justice Forestall stated:

Dellen Millard has repeatedly committed the most serious offence known to our law. He has done so with considerable planning and premeditation. In the murder of his father, he took advantage of the vulnerability of his father and betrayed his father’s trust in him.

In response to Millard’s lawyer argument that the consecutive sentence without parole eligibility is an unduly long and harsh judgement, Justice Forestall stated:

It is necessary to impose a further penalty in order to express society’s condemnation of each of the murders that he has committed and to acknowledge the harm done to each of the victims. It is not unduly long and harsh.

MILLARD’S APPEALS

Two days following Millard’s sentencing, his lawyer filed a notice of appeal with the court. According to Millard’s counsel, it will be argued that the verdict is unreasonable and the sentence is unconstitutional.

Millard will serve 75 years in prison before he will be eligible to apply for parole at 102 years of age.

Millard’s defence attorney argues that the consecutive sentence without parole eligibility is unduly long and harsh.

Millard is also appealing his first-degree murder convictions and sentences in the deaths of Tim Bosma and Laura Babcock.

Millard was found guilty of first-degree murder in the death of Tim Bosma by a jury in June 2016 after a 16-week trial. Bosma’s burnt remains were found in an incinerator on Millard’s farm. Millard is appealing his conviction. He filed a handwritten notice of appeal with 13 itemized arguments on appeal including the length of the proceedings, that the judge failed to sever his trial from that of his co-accused, that the judge failed to grant his request to move the trial out of Hamilton, that the judge allowed post-offence conduct evidence regarding the incineration of the deceased, that the judge allowed evidence which was seized contrary to his Charter rights protecting him against unreasonable search and seizure, and that the judge should have excluded evidence seized from electronic devices, amongst others.

Millard was also found guilty, by a jury of his peers, of killing his former lover, Laura Babcock, and burning her body in an animal incinerator. He filed an appeal following his sentencing arguing that his first-degree murder conviction was unreasonable and the life sentence was too harsh. He specially claims that the judge forced him to represent himself at the murder trial, despite the fact that Justice John McMahon repeatedly advised him to obtain a lawyer and his trial was adjourned twice to allow Millard to retain counsel.

We will continue to follow any developments in these cases as they make their way through the judicial system and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day 7 days a week. We are available when you need us most.

Judges Respond to Opioid Deaths on the Rise in Canada

Written on Behalf of Affleck & Barrison LLP

Canada, amongst other countries, is facing an opioid crisis. Between January 2016 and June 2018 more than 9,000 Canadians died from the use of opioids. The Public Health Agency of Canada reports that opioid overdoses are increasing in our country.

Opioids are medications that can relax the body and help relieve pain, such as fentanyl, morphine, oxycodone, and hydromorphone. Opioids are drugs that can affect your mind, mood, and mental processes, which may bring about the feeling of being euphoric or “high”.

In Canada, the majority of those that have accidentally died as a result of opioids (72%) have involved fentanyl, a highly potent and addictive opioid. Fentanyl is considered up to 100 times stronger than morphine and is often mixed into opioids sold on the street. Therefore, users do not know the potency of the drugs that they are ingesting.

Canadian judges are well aware of the opioid crisis in this country and are therefore handing down harsh sentences to those found to be trafficking and importing fentanyl.

THE CASE OF PHARMACIST WASEEM SHAHEEN

In March, 2018, an Ottawa pharmacist, Waseem Shaheen (“Shaheen”), was sentenced to 14 years in prison for dealing fentanyl out of his pharmacy. Shaheen was found to be responsible for trafficking more than 5,000 fentanyl patches (street value of more than $1,000,000).

Shaheen was involved in an elaborate scheme, which even involved faking a robbery at his own pharmacy. He was found guilty of trafficking fentanyl, public mischief for reporting a fake crime to police, and insurance fraud.

Ottawa Police Detective Guy Seguin stated,

I think the sentence is a clear message…. Hopefully a clear deterrent in the court that the justice system takes this very seriously, and hopefully other professionals like Mr. Shaheen will not be involved in trafficking fentanyl.

Justice Wadden, when handing down this harsh sentence, stated,

Mr. Shaheen is not an addict. None of the fentanyl was for his own use. His only apparent motivation was greed. As a trained professional, he would have been aware of the debilitating and deadly effects of this drug in the hands of addicts. Yet he conducted a drug trafficking scheme worth over a million dollars, profiting on the misery of others.

Shaheen was stripped of his pharmaceutical license and lost all three of his Ottawa pharmacies. However, he has not begun serving his sentence as he is appealing his conviction.

THE CASE OF ASHLEY BRODERICK

Ashley Broderick (“Broderick”), a woman from Kitchener, pleaded guilty to conspiracy to traffic fentanyl. She was one of 14 people arrested as part of a lengthy police investigation called Project Titus, which concluded with the confiscation of 1.5 kilograms of powdered fentanyl found under a bed in her home. The fentanyl had a street value of $450,000 and 398 grams of methadone were also seized, with a street value of $11,500.

Broderick was discovered to be the second in command of an organization that sold fentanyl, methadone, and cocaine throughout southwestern Ontario. When Broderick was arrested, she was found with $2,900 cash, two cellphones, and a debt list. Police also found that she had two hotel room keys, and uncovered 21 grams of fentanyl and debt lists showing hundred of thousands of dollars in drug transactions in one of the hotel rooms.

In April, 2018, Justice Craig Perry sentenced Broderick to 13 years in prison stating that the sentence needed to reflect the seriousness of the crime. He emphasized that the primary principles of sentencing were denunciation and to deter others from committing similar crimes. At the time, this was the stiffest fentanyl sentence for trafficking handed down in Ontario.

THE CASE OF BARNA OLVEDI

The stiffest fentanyl sentence in Ontario was handed down by Justice Petersen in November, 2018. Barna Olvedi (“Olvedi”) was sentenced to 15 years in prison for importing and 12 years concurrent for trafficking fentanyl. Olvedi was found to have imported 499.5 grams of 100% fentanyl from China, which would have a street value of at least $14.9 million.

In his reasons for sentence, Justice Peterson stated:

Mr. Olvdei’s offences are extremely serious. He was not only in possession of a large quantity of pure fentanyl citrate for the purpose of trafficking, he also imported it into Canada from overseas. … I have concluded that a sentence of 15 years imprisonment is proportionate to the gravity of the offence and Mr. Olvedi’s degree of personal responsibility and moral blameworthiness. This sentence satisfies the principle of restraint and achieves parity with sentences imposed on other offenders w ho committed similar crimes in similar circumstances, though there are no other cases in which the circumstances involved importing a large quantity of 100% pure fentanyl citrate.

As both the Canadian government and the judiciary respond to the opioid crisis in Canada, Affleck & Barrison LLP will continue to provide updates through this blog.

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

Mandatory Victims’ Surcharge Quashed by Supreme Court

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada, the highest court in Canada, has eliminated mandatory victim surcharges for convicted criminals.

The Supreme Court, in a 7-2 ruling, held that the surcharge amounts to cruel and unusual punishment. The court stated that making the victim fine mandatory does not allow sentencing judges to consider mitigating factors, ignores the goal of rehabilitation, and undermines the intention of the government to address the problem of indigenous overrepresentation in prison.

WHAT IS THE MANDATORY VICTIM SURCHARGE?

The victim surcharge, which was established in 1988, is a monetary penalty that is automatically imposed on those convicted in Canada at the time of sentencing. Five years ago, the government removed the ability for judges to waive or lower this fine and made them mandatory in all cases.

The victim surcharge can be found under section 737 of the Criminal Code. The surcharge is calculated at 30% of any fine imposed. If no fine is imposed, the surcharge is $100 for lower-severity offences and $200 for more serious offences. If the offender has the financial means and the court considers it appropriate, the offender may be ordered to pay a higher amount.

The money collected from victim surcharges was intended to be used by the government to make offenders more accountable and help fund programs and services for victims of crime.

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

Alex Boudreault (“Boudreault”), a Quebec man, pleaded guilty to several counts related to breaches of probation orders, breaking and entering, possession of stolen property, and assault with a weapon.

Boudreault, a high-school dropout who was unable to hold a steady job, was sentenced to 36 months in prison and ordered to pay a victim surcharge of $1,400 by a court in Quebec. At that time, Boudreault argued that the victim surcharge infringed his Charter rights guaranteeing him freedom from cruel and unusual punishment. These arguments were rejected by the court.

Boudreault appealed this ruling, which was dismissed by the Quebec Court of Appeal.

The Supreme Court of Appeal agreed to hear Boudreault’s appeal, along with six other similar cases. In all seven cases, the offenders argued that they were living in poverty and suffered from physical and mental illnesses, struggled with addiction in some cases, and could not afford the victim surcharges.

The Crown argued that the fines were not unacceptable as the offenders could ask for more time to pay and that the money collected was put towards improving the lives of the victims. For example, in Ontario, these funds are used to support 39 sexual assault and rape centres and the Ontario Child Witness Project (designed to help children and adolescents who are called to testify as victims or witnesses in court).

The appellants argued that the surcharges were a violation of section 12 of the Charter of Rights and Freedoms, which protects against cruel and unusual punishment. They argued that the surcharge was grossly disproportionate to the crime committed.

The majority of the Supreme Court agreed with the appellants and struck down the entire section of the Criminal Code pertaining to victim surcharges and it was “declared to be of no force and effect immediately”.

The judgment reads:

The surcharge constitutes cruel and unusual punishment and therefore violates s. 12 of the Charter, because its impact and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.

 Justice Sheilah Martin, writing for the majority decision, also stated:

Judges have been forced to impose a one-size-fits-all punishment which does not take into account the individual’s ability to pay. In this context, the resulting indeterminate punishment results in a grossly disproportionate public shaming of disadvantaged offenders.  It is what most Canadians would call an abhorrent and intolerable punishment.

Although this decision eliminates all fines owed by the seven offenders and no future victim surcharges can be imposed in any circumstances, it does not eliminate outstanding victim surcharge orders. Those offenders who owe these fines, must seek relief in the courts on an individual basis.

The Liberal government is now left to determine the future of the surcharge. There is currently drafted legislation awaiting passage by the Senate giving judges the discretion to waive or apply the victim surcharge. A spokesperson for Justice Minister Jody Wilson-Raybould has advised that she is reviewing the Supreme Court decision “to assess the appropriate next steps”.

We will continue to follow any developments or changes in the law as they become available, and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about any charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week. We are available when you need us most.

12 Year Sentence for Vigilante Justice Upheld

Written on Behalf of Affleck & Barrison LLP

The Alberta Court of Appeal, in a 2-1 decision, upheld Steven Vollrath’s (“Vollrath”) 12-year prison sentence for cutting off his victim’s thumb during an abduction in a case of vigilantism.

Two of the three judges at the Court of Appeal ruled that Vollrath’s sentence at trial was appropriate for the well planned “revenge kidnapping”.

The Appeal Court denounced vigilantism and stated:

Vigilantism undermines the rule of law and interferes with the administration of justice. As a general rule, those who engage in it should be dealt with severely.

WHAT HAPPENED?

In May, 2013, Richard Suter (“Suter”) was parked next to a restaurant when he and his wife began having an argument. He failed to put his car in park, and as the car proceeded forward, he unintentionally pushed on the accelerator instead of the brake. The car advanced onto the restaurant’s patio striking and killing a two-year-old child.

Suter was convicted of failing to provide a breath sample. The trial judge found that the accident was caused by driver error and not drunkenness. The Supreme Court of Canada reduced Suter’s 26-month sentence to the 10 months he had already served in jail.

While Suter was awaiting trial, Vollrath, dressed as a police officer, and two accomplices rang Suter’s doorbell and abducted him in front of his wife. His captors revealed that the reason he was being abducted was that he had hit and killed a child with his car. Suter was taken to a snowy field, his thumb was cut off with pruning shears, and he was left unconscious in the snow.

Vollrath was convicted in 2016 of kidnapping, aggravated assault, possession of a weapon, and impersonating a police officer. Vollrath had a lengthy criminal record, including violent and weapons offences.

SENTENCING PRINCIPLES

According to section 718 of the Criminal Code, the purpose of sentencing is to protect society and to impose sanctions that meet the following objectives:

  • denounce unlawful conduct;
  • deter the offender and others from committing offences;
  • separate offenders from society;
  • assist in rehabilitating offenders;
  • provide reparations for harm done to victims or the community; and
  • promote a sense of responsibility in offenders and acknowledge the harm done to victims or to the community.

Sentencing must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In deciding on an appropriate sentence, the Court must consider aggravating and mitigating factors, sentences imposed on similar offenders for similar offences, and all available sanctions other than imprisonment must be considered.

In Mr. Vollrath’s case, the Court considered the following aggravating factors:

  • he did not act alone;
  • there was advance planning involved in committing the offences;
  • he impersonated a police officer with the purpose of facilitating another offence;
  • the incident began at the Suter’s home;
  • the kidnapping and assault were targeted;
  • leaving Suter maimed and unconscious in a deserted area showed a callous indifference to whether he lived or died;
  • the lasting physical harm to Suter;
  • the psychological impact to both Mr. and Mrs. Suter;
  • Vollrath’s extensive criminal record; and
  • Vollrath was on release at the time of the offences.

The Court is also obligated to consider background factors for aboriginal offenders and to consider how these factors affect the offending behaviour. In Mr. Vollrath’s case, the Court found that he had no connection with his aboriginal culture at the time he became incarcerated. Furthermore, the Court held that Vollarth’s dysfunctional background was not connected to his aboriginal history as his biological father, who was a Metis man, left him when he was very young.

In coming to a conclusion in her 2016 sentencing decision, Justice E. A. Johnson of the Provincial Court of Alberta felt that the most important objective was to “denounce the acts and to deter Mr. Vollrath and others from engaging in this kind of behaviour.” Justice Johnson also considered the objectives of separating the offender from society and rehabilitation. Therefore, Justice Johnson concluded that 12 years of incarceration were fitting given the seriousness of the offence, the degree of responsibility of the offender, the aggravating factors, and the need for denunciation and deterrence.  The majority of the Alberta Court of Appeal agreed with this sentencing decision.

WHAT COMES NEXT FOR VOLLRATH?

At the Court of Appeal, the dissenting judge held that Vollrath should have been sentenced to nine years in jail after taking into account the deprivations of his childhood.

Given that there was a dissenting opinion on appeal, Vollrath has the option of appealing his case to the Supreme Court of Canada. However, the Supreme Court of Canada will only hear a case if it is convinced that the case involves a question of public importance. Approximately 1 out of 10 cases that request “leave” to appeal to the Supreme Court of Canada receive permission.

We will continue to follow this case and will report any developments on 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 and knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. We are available when you need us most.

‘Sexsomnia” Defence Rejected by Ontario Judge

Written on Behalf of Affleck & Barrison LLP

A Judge has rejected the defence of “sexsomnia” and ruled that Ryan Hartman (“Hartman”) is criminally responsible for the sexual assault of a woman despite his claim that he was sleepwalking at the time of the criminal act.

Hartman was found guilty of sexual assault in 2012 and sentenced to 14 months in jail. He appealed and lost. He appealed again and admitted to the crime, but offered new evidence claiming that he was suffering from a condition called “sexsomnia” and maintained that he was sleeping when he raped the woman.

The Ontario Court of Appeal granted Hartman a new trial. The trial began in April 2017 and concluded this week with a Judge ruling that Hartman is guilty of sexual assault.

WHAT HAPPENED?

In February 2011, the woman, whose identity is protected by a court order, was attending a house party in Spencerville, Ontario with her boyfriend. The couple fell asleep on an air mattress to sleep off all of the alcohol they had consumed before driving home.

Suddenly, the woman felt a strong pain in her buttocks. She realized that her jeans were pulled down and that someone was penetrating her anally while her boyfriend remained asleep.

Hartman gave evidence at his first trial that he crawled onto the double air mattress with a sleeping couple. When he awoke, he was alone on the air mattress with an erection and his pants were unzipped.

As the woman and her boyfriend drove away from the house party, she observed Hartman sitting at a picnic table in the garage looking wide awake.

During the trial, Hartman’s lawyer argued that his client was asleep during the sexual assault and was therefore not criminally responsible for his “involuntary” acts.

Hartman relied upon evidence provided by Dr. Julian Gojer, a forensic psychiatrist, who determined that Hartman was likely asleep during the assault. Dr. Gojer’s opinion relied upon a family history of sleepwalking and evidence from Hartman’s girlfriend who had once found Hartman masturbating beside her in bed while apparently asleep.

The Crown prosecutor relied upon affidavit evidence from a U.S. sleep expert Dr. Mark Pressman who opined that Hartman was likely awake, but drunk during the assault.

At trial, evidence before the court included the fact that Hartman had consumed as many as 21 alcoholic beverages during the party and that his blood-alcohol level was estimated to be three to four times the legal limit.

Judge Kimberly Moore rejected Hartman’s defence of sexsomnia and ruled that Hartman was “awake and aware” and his “actions were not involuntary” when he pulled down the victim’s pants and anally penetrated the woman without her consent.

 WHAT IS SEXSOMNIA?

Sexsomnia is a type of parasomnia, an abnormal activity that occurs while an individual is asleep. It is a sleep disorder that causes individuals to engage in sexual behaviour while asleep.

Sexsomnia is similar to sleepwalking and occurs during non-rapid eye movement sleep. Most individuals are experiencing such a deep sleep that they will not even remember that the event occurred the following day.

Sexsomnia was added to the DSM-5 in 2013, the American Psychiatric Association’s relied upon classification of mental disorders.

WHAT IS THE DEFENCE OF SEXSOMNIA?

In Canada, sexsomnia has been raised by defence lawyers as a legal defence in at least a dozen criminal cases since 2005. The defence of sexsomnia has resulted in a “not criminally responsible” ruling five times.

A 2003 incident that occurred in Toronto set the precedent for the sexsomnia defence in Canada when Jan Luedecke was found not criminally responsible after being accused of sexually assaulting a woman at a party by the Ontario Court of Appeal.  In 2009, Luedecke was granted an absolute discharge by the Ontario Review Board based upon two risk assessments by a forensic psychiatrist and a forensic psychologist. He was found not to pose a significant threat to public safety.

In another case, a man from Blue Mountain, Ontario was found not criminally responsible for the sexual touching of a young girl as a result of sexsomnia in February 2015. In June 2016, the Newfoundland and Labrador Supreme Court ordered a new trial for a man convicted of sexually touching his younger sister on the basis of a sexsomnia defence.

Sexsomnia is a difficult defence as it requires a great deal of medical evidence, including expert testimony.

The victim of Hartman’s assault maintains that the assault has changed her life, her sexual relationships, her personal relationships, and her career path. Hartman will be sentenced on November 30, 2018.

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 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.

 

 

 

 

 

Woman Found Not Criminally Responsible in Fatal PATH Stabbing

Written on Behalf of Affleck & Barrison LLP

Rohinie Bisesar (“Bisesar”), accused of fatally stabbing 28-year-old Rosemarie Junor (“Junor”) in a Shoppers Drug Mart in Toronto’s underground PATH system in 2015, has been found not criminally responsible.

Bisesar pleaded not guilty last week to the first-degree murder charge. Bisesar’s lawyers maintained that she was not criminally responsible due to her mental illness. Her trial was held before a judge only.

Ontario Superior Court Justice John McMahon ruled that he was satisfied, on a balance of probabilities, that Bisesar, who suffered from schizophrenia, “was incapable of knowing the killing was morally and legally wrong”.

WHAT HAPPENED?

On December 11, 2015, while shopping at a make-up counter beneath Bay and Wellington streets, Junor was fatally stabbed. She was taken by ambulance to hospital where she succumbed to her injuries.

The unprovoked attack took a mere 54 seconds and was recorded on the store’s surveillance video. Bisesar walked into the pharmacy and stabbed Junor once in the heart with a small knife purchased at a dollar store. She did not speak to Junor during the attack, placed the knife on the counter following the stabbing, and immediately left the store.

According to Bisesar’s lawyers, she was experiencing hallucinations that took control of her physically. A forensic psychiatrist, Dr. Ian Swayze, the only witness at the trial, gave evidence that at the time of the incident Bisesar was experiencing a psychiatric breakdown due to untreated schizophrenia.

According to Dr. Swayze’s report, Bisesar was hearing voices in her head. The voice commanded her to buy a knife, and walk into the Shoppers Drug Mart. Dr. Swayze wrote that “The voice and movements raised my hand, pushed forward … it was like the knife was sticking to my hand and couldn’t be dropped.”

As a result of the not criminally responsible verdict, Bisesar remains in a secure wing of the Centre for Addiction and Mental Health in Toronto until an Ontario Review Board hearing is held.

WHAT DOES IT MEAN TO BE NOT CRIMINALLY RESPONSIBLE?

According to section 16 of the Criminal Code, a person is not criminally responsible for something that he/she did if they were 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.

WHAT HAPPENS NEXT FOR BISESAR?

Bisesar’s release is controlled by the Ontario Review Board (“Board”). This is an independent tribunal that oversees and annually reviews every person found to be not criminally responsible or unfit to stand trial for criminal offences due to a mental health condition.

The Board consists of a five person panel, which includes a psychiatrist, a lawyer, a mental health professional, a member of the public, and a Chairperson.  The Chairperson must either be a practicing or retired judge or someone who can be appointed to a judicial office (i.e. a lawyer who has 10 years of experience).  All members of the Board are appointed by the Lieutenant Governor.

The Board hears evidence from the individual and his/her lawyer, the Crown prosecutor, a psychiatrist, and possibly others that may include a family member or other specialist. The hospital facility also provides a report to the Board detailing the individual’s history and progress.

The Board’s decisions are made by a majority vote. The most important concern of the Board is whether the individual poses a significant risk to the safety of the public. If the individual is found to be a significant risk, the Board will consider other factors. The most important being the protection of public from dangerous persons, the re-integration of the person into society, and the liberty interests of the person.

The Board reviews the disposition annually to determine whether changes need to be made depending on the progress made by the individual. The Board can make one of three dispositions:

  • Detention Order: The individual should continue to be detained in the hospital and makes a decision regarding whether the individual stays at a minimum, medium or maximum secure unit and what access the individual would have to the community;
  • Conditional Discharge: The individual is allowed to live in the community while subject to certain requirements (i.e. having to report to a hospital, refrain from using alcohol or drugs, reporting any change in address, or refrain from contact with certain individual); or
  • Absolute Discharge: The individual is granted a full release with no further supervision.

Victims can provide victim impact statements at the annual Board hearings. The statements do not have an impact on the decision the Board makes, unlike at a sentencing hearing. The Board’s decision must be based on the individual’s current level of risk to public safety.

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 offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

‘Spiderman’ Has Murder Conviction Overturned

Written on Behalf of Affleck & Barrison LLP

 

Shawn Vassel (“Vassel”) has spent seven years in prison and has recently had his conviction overturned and a new trial ordered by the Ontario Court of Appeal.

In 2011, Vassel was convicted of second-degree murder in the death of a Mississauga man during a drug deal turned robbery that occurred in 2007.

WHAT HAPPENED?

Vassel was nicknamed the “Spiderman killer” after he scaled down 11 floors of a North York apartment building in his attempt to flee the police.

Vassel was confronted by police at his mother’s apartment on the 18th floor. He exited the balcony and began rappelling from one floor to the next, finally appearing outside of the building and was eventually caught by the police after a chase on foot.

Vassel was arrested and charged for the murder of Husam Dagheim (“Dagheim”). Dagheim was shot at point-blank range in the parking lot of the Coliseum movie theatre in Mississauga during an attempted drug deal.

Vassel testified at his trial that he “risked his life” in his attempt to escape the police because he didn’t want to go to jail for a crime that he alleged he did not commit.

Vassel was sentenced to an automatic life sentence with eligibility for parole at 16 years. He has an extensive criminal record, which includes robbery, drug trafficking, and assault.

THE TRIAL

At issue at Vassel’s trial was the identity of Dagheim’s killer.

The Crown’s star witness, a former friend of Vassel, Michael Agba (“Agba”), testified that he was present during the botched drug deal and witnessed Vassel holding the loaded gun before the murder took place. During cross-examination by Vassel’s lawyer, Agba was accused of lying in order to secure a plea deal. Agba was originally charged with murder, but pleaded guilty to manslaughter.

There were no other witnesses that could identify the shooter, including the deceased’s wife who was seated beside her husband in a minivan at the time of his death.

Vassel testified at his own trial that he was not at the crime scene. He also testified that he lent his friends his girlfriend’s rental car for the planned robbery at the drug deal. Vassel suggested that the real killer was either Agba or another friend who were both present during the drug deal.

Cellphone records were introduced as evidence to prove that Vassel was at a townhouse complex on Ridgeway Drive in Mississauga at the time of the killing.

THE APPEAL

Vassel appealed both his conviction and the period of parole fixed by the trial judge. Vassel’s counsel argued that the trial judge made several errors regarding the admissibility of evidence and his instructions to the jury.

One of the grounds of appeal argued by Vassel’s counsel was that the trial judge erred by instructing the jury to take caution and particular care with Vassel’s evidence at trial.

In a criminal trial, all parties are entitled to a properly instructed jury. An appellate court ,when assessing a judge’s jury charge, must take a functional approach to determine whether the instructions, read as a whole, provide the jury with the necessary tools to render a verdict.

The trial judge instructed the jurors to apply the same factors in assessing Vassel’s testimony as they would any other witness. Justice Tulloch specifically stated:

Mr. Vassel has given evidence that may tend to show that either Mr. David Grant or Mr. Agba was the shooter as he was not on at the scene of the crime on the night in question. You should consider that testimony of Mr. Vassel with particular care because he may have been more concerned about protecting himself than about telling the truth. Bear that in mind when you decide how much or little you can believe of and rely upon what Mr. Vassel told you about Mr. Grant’s involvement in deciding this case.

Vassel argued, on appeal, that the trial judge erred in instructing the jury about the manner in which the jury was to assess the testimony of the appellant (the person who applies to a higher court for a reversal of the decision of a lower court).

The Appeal Court agreed with Vassel’s arguments and held that the trial judge’s instruction was problematic in terms of its impact regarding Vassel’s alibi (Vassel’s primary defence).

The Court of Appeal held that this instruction to the jury by the Judge was one of several errors. The Court stated:

In these circumstances, the inclusion of this reference had the effect of adding a level of scrutiny to the alibi evidence that was unwarranted and constitutes error.

Given that the Court of Appeal determined that the trial judge made multiple errors, Vassel’s appeal was allowed, his conviction was set aside, and a new trial was ordered. Vassel can apply for bail as he awaits his retrial.

We will continue to follow developments in this case as it makes it way through the court system and will provide updates in this blog.

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. For your convenience, we offer a 24-hour telephone service. We are available when you need us most.

Extreme Intoxication Can be Used as a Defence for Sexual Assault in Ontario

Written on Behalf of Affleck & Barrison LLP

An Ontario judge has ruled that the defence of extreme intoxication in sexual assault cases is once again valid in Ontario.

Superior Court Justice Nancy Spies ruled recently in the case of R. v. Cameron McCaw (“McCaw”) that section 33.1 of the Criminal Code, which states that self-induced intoxication is not a defence, is unconstitutional as it violates a defendant’s right to be presumed innocent and the right to fundamental justice.

HISTORY OF THE DEFENCE OF EXTREME INTOXICATION

The Supreme Court of Canada (“SCC”) ruled in 1994 that drunkenness in its extreme is a defence to sexual assault. This is known as the Daviault decision. The SCC upheld a trial judge’s acquittal of chronic alcoholic, Henri Daviault. Daviault was permitted to use extreme intoxication as a defence against charges that he sexually assaulted a disabled 65-year-old woman. Daviault had consumed up to eight beers and almost an entire large bottle of brandy. The court ruled that depriving Daviault of the drunkenness defence would violate his Charter of Rights and Freedoms (“Charter”).

Following this ruling, the federal government quickly introduced a law abolishing the defence of self-induced intoxication for crimes involving assault (section 33.1 of the Criminal Code).

33.1 (1)  It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

33.1 (2)  For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

WHAT HAPPENED IN THE CASE OF R. v. MCCAW?

On July 11, 2015, the alleged victim, referred to as K.B., and her ex-boyfriend (also the roommate of McCaw) attended a pool party from 5 p.m. to 11 p.m. where they consumed a lot of alcohol. K.B., her ex-boyfriend, and another man then met up with McCaw at his apartment . They had a few more drinks and then went outside to the parking lot to smoke. K.B. was so intoxicated that she had to be carried inside the apartment and placed on the couch in the living room where she passed out, fully clothed. McCaw and his two friends went to a nearby bar to continue drinking. McCaw and the ex-boyfriend then returned to the apartment. At some point during the evening, McCaw allegedly consumed marijuana and GBD, the “date-rape drug”.

K.B. alleges that “she awoke to find Mr. McCaw touching her sexually and kissing her and then engaging in sexual intercourse with her.” She initially thought this was her ex-boyfriend, so she did not resist. She then realized that it was McCaw. The victim left the apartment with her ex-boyfriend, leaving McCaw sitting in an arm chair, where he appeared to be sleeping and holding a pair of scissors.

The victim reported the sexual assault to police around 5 a.m. the next morning. Police proceeded to arrest and charge McCaw with sexual assault.

JUSTICE SPIES’ DECISION

Prior to McCaw’s trial, an application was filed by McCaw’s lawyer seeking an order affirming that section 33.1 of the Criminal Code was not in effect as it violated McCaw’s rights under the Charter. Allegedly, McCaw will testify at trial that he had sexual intercourse with A.B., but performed these acts without having intended to do so.

Justice Spies stated that section 33.1 “relieves the Crown of proving the specific mens rea for the charged offence and instead allows for proof of guilt on a different, and arguable lower, standard. It does this even where the state of the accused’s intoxication is so extreme that it reasonably gives rise to a doubt about whether the accused intended the offending action. The prospect of conviction in the face of a reasonable doubt offends both s. 7 and s. 11(d) of the Charter.”

Justice Spies also maintained that section 33.1 relieves the Crown of proving the voluntariness of the act (a mental element of the crime), again infringing an accused’s Charter rights.

In conclusion, Justice Spies allowed McCaw’s application and affirmed that section 33.1 of the Criminal Code is of no force and effect in Ontario. Thus, this decision does not apply directly to any other province in Canada.

Justice Spies provided her ruling on the defence of extreme drunkenness prior to McCaw’s trial. This allows McCaw to use the defence at trial on the charge that he sexually assaulted a woman in a Toronto apartment.

McCaw must prove at trial that it was more likely than not that he was intoxicated to the point of automatism. This is described as a robotic state where he was not aware of his actions.

McCaw’s trial begins on September 12. 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.

 

Judge Strikes Down Mandatory Minimum Sentences for Sex Crimes

Written on Behalf of Affleck & Barrison LLP

A judge from the Ontario Superior Court of Justice has ruled that mandatory minimum sentences for two sex offences should not apply in the case of Steevenson Joseph (“Joseph”), a 24-year-old first-time offender, who recruited and photographed two underage prostitutes.

After a three-week trial last February, Joseph was convicted of receiving a benefit from the prostitution of a person under the age of 18-years; procuring a person to offer to provide sexual services believing that the person was 18-years or older; knowingly advertising an offer to provide sexual services for consideration; and of making and possessing child pornography. A jury acquitted him of more serious charges, which included sexual assault and two charges related to underage prostitution.

WHAT HAPPENED?

At the time of the crime, Joseph was 21-years-old and was depressed and lonely. He received information from a friend, who was involved in the sex trade, about how lucrative the business was. He then met a girl, identified in court as C.A., who was a college student and who he believed was 18-years-old. He asked her if she wanted to make money in the sex trade. C.A. testified that Joseph did not pressure her to take part in prostitution. She also introduced her best friend, identified as R.D., to meet Joseph as she was also interested in the sex trade.

Joseph took provactive photos of both girls and posted them on a website that features escort service ads. The girls, who were in fact in high school and under the age of 18 at the time, also used Joseph’s apartment to service clients.

Joseph was caught by police through an Ottawa police sting operation after a girl identified as M.M. contacted Joseph through social media interested in becoming involved in the escort business.  M.M. was 15 years-old.

All three girls testified at trial that they were never pressured by Joseph, that they lied about their ages, and that they decided freely to join the sex trade.

REASONS FOR SENTENCE

At Joseph’s sentencing hearing, the Crown prosecutor argued that Joseph should be sentenced to a 3-and-a-half year jail term, while the defence requested a suspended sentence (ie. defendant serves a period of probation and receives a criminal record).

Joseph’s lawyer argued that given the facts of the case, the minimum penalties would be a form of “cruel and unusual punishment” and should be struck down as unconstitutional.

Justice Colin McKinnon agreed with Joseph’s lawyer and stated that the minimum penalty prescribed by law “for his offences are grossly disproportionate”. He gave him a suspended sentence, one year probation, and the conditions that he report to a probation officer and not communicate with underage girls identified as C.A., R.D. or M.M.

Justice McKinnon also ordered that Joseph’s DNA be taken pursuant to section 487.051 of the Criminal Code and that he be listed on the Sex Offender Registry for his entire life pursuant to section 490.013(2.1) of the Criminal Code.

Justice McKinnon struck down the mandatory minimums for two offences (receiving a benefit from the prostitution of someone under the age of 18 and making and possessing child porn) as unconstitutional.

This decision took into account that Joseph suffered “irreparable damage” due to inflammatory media reports that were based on exaggerated police assertions regarding human trafficking.

Justice McKinnon stated in his reasons for sentence:

I have sent a number of them to penitentiary, including two child pornographers. In stark contrast to those cases, the facts of this case constitute the least serious conduct witnessed by me in the context of prostitution and child pornography cases. …

An objective view of the facts causes me to conclude that Mr. Joseph has been subjected to sufficient punishment.

WHAT ARE MANDATORY MINIMUM SENTENCES?

Canada’s criminal law sets out mandatory minimum penalties as the lowest possible punishment an individual can receive if convicted of a criminal offence in Canada. These are often crimes that are both serious and violent offences. There are currently more than 70 of these provisions in the Criminal Code and the Controlled Drugs and Substances Act.

The majority of offences found in Canada’s Criminal Code do not have mandatory minimum sentences. In these cases, it is the judge’s discretion to deliver an appropriate sentence.

The codification of mandatory minimums was markedly increased by the former Conservative government in an effort to promote its “tough on crime” agenda.

The Supreme Court of Canada and lower courts have already struck down numerous mandatory minimum sentences related to weapons offences, drug offences, and sexual offences against children as unconstitutional. In fact, the Supreme Court of Canada has decided three of these cases (R. v. Nur and R. v. Charles; R. v. Lloyd) and R. v. Morrison is already on the docket to be heard in the near future.

In the current state of criminal law in Canada, millions of dollars are being used to litigate these sentences on a case-by-case basis. This results in inconsistent legal decisions across the country and uncertainty as to which mandatory minimums are valid.

Sentencing in the Joseph case is currently being reviewed by the Crown Law Office in Toronto to determine if the decision will be appealed. We will provide updates in this blog of any developments in this case as they become available.

If you are facing sexual offence charges or have any questions regarding your legal rights, please contact Durham region criminal defence lawyers Affleck & Barrison LLP. We have a reputation for effective results in defending all types of criminal legal charges. We offer a free initial consultation and a 24-hour phone service.   Contact our office online or at 905-404-1047 to speak with one of our experienced criminal defence lawyers today.