Sentencing

Sexual Offender Sentenced to 15 Years After Putting Woman in Coma

Written on Behalf of Affleck & Barrison LLP

Denzel Dre Colton Bird, (“Bird”) 21-years-old, pleaded guilty to aggravated sexual assault, breaking and entering and theft last fall. On June 15, 2018, he was sentenced to 15 years in jail for striking a woman from behind with a metal pipe, dragging her into an alley and sexually assaulting her in Alberta.

The victim cannot be identified under court order.

WHAT HAPPENED?

In September 2016, the 25-year-old woman was walking to work in the dark at approximately 6:30 a.m. when she was attacked by Bird. The attack caused multiple skull fractures and broken facial bones. She was discovered by two men who found her hanging halfway out of a garbage can and was taken to hospital with life-threatening injuries. Due to the multiple skull fractures and bleeding on her brain, her doctors put her into a medically induced coma for several weeks. After coming out of her coma, she had to learn how to walk and talk again. She was released from hospital in late January 2017.

Earlier on the morning of the attack, Bird had broken into a garage where he stole the pipe that he used in the attack and a jacket. Police found the victim’s blood on Bird’s shoes and on the stolen jacket.

WHAT HAPPENED DURING SENTENCING?

In her victim impact statement, the woman wrote that there were times that she wished she had not survived the attack. She stated that she did not feel that she is the same person since the attack. She described herself as a survivor, but admitted she continues to struggle with her emotions, has trouble with her balance and contracted a sexually transmitted disease from Bird.

The Crown prosecutor requested 20 years in prison for Bird.

Justice Jerry LeGrandeur sentenced Bird to 15 years in jail. Bird was given 2 ½ years of credit for time already served in jail.

Justice LeGrandeur held that the viciousness of the attack on the woman was an aggravating factor.

The consequences of this criminal act were profoundly physically and mentally disabling for the victim and emotionally traumatic and debilitating for her husband and family members.

LeGrandeur also acknowledged that there were mitigating factors when determining the best sentence for Bird. These factors included his youth, his guilty plea and the fact that he was remorseful.

LeGradeur also referred to the Gladue report during sentencing. This report examines an Indigenous offender’s upbringing and background and how it may have played a part in their actions. Bird’s lawyer submitted that his family were survivors of residential schools, he never met his father, he showed symptoms of fetal alcohol spectrum disorder, he had substance abuse issues and had never received any counseling or treatment, he was abused as a child and has a lower than average intelligence.

WHAT IS A GLADUE REPORT?

A Gladue report gets its name from the 1999 Supreme Court of Canada decision R. v. Gladue. A Gladue report is a type of pre-sentencing and bail hearing report that a court can request when considering sentencing an offender of Indigenous background under section 718.2(e) of the Criminal Code. This section specifically directs courts to exercise restraint, and to consider the particular situation of Indigenous persons when determining the sentence to be imposed for crimes committed by those who self-identify as Indigenous people.

A Gladue report will inform the judge about the personal circumstances of the offender, including information such as:

  • where the individual grew up (on-reserve, off-reserve, rural, urban);
  • where the individual lives;
  • whether or not the individual or members of their family have been in foster care;
  • whether the individual or family members attended residential schools;
  • whether they have struggled with substance abuse, been affected by someone else’s substance abuse or grown up in a home with substance abuse or addictions;
  • whether or not there are counseling programs or rehabilitations programs in the community; and
  • whether or not the individual participates in community cultural events and ceremonies.

The intention behind this approach is to lead to a restorative justice remedy and will often allow for a sentence with no jail time, which helps reduce the over-representation of Indigenous people in Canadian jails. According to a Statistics Canada report released on Tuesday, Indigenous people comprised 27% of the federal prison population in 2016-2017 despite the fact that Indigenous people make up only 5% of Canada’s population.

A restorative justice remedy is one that emphasizes healing the harm done by the offence and rehabilitating the offender to avoid future harms. This is in keeping with Indigenous views of justice.

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.

Charges Laid after Children Left in Hot Car Alone

Written on Behalf of Affleck & Barrison LLP

In the small space of a car, temperatures can rise rapidly. This can result in an individual being unable to regulate their internal temperature. In this type of environment, the body (especially a small body) can go into shock quickly, and circulation to vital organs can fail.

Due to their size, infants and small children can dramatically be affected by extreme temperatures. Their core temperature can increase three to five times faster than that of an adult. Hyperthermia can occur when the body’s temperature rises to dangerously high levels and threatens your health. The average body temperature is 37 degrees Celsius.  An individual is considered to be suffering from hyperthermia when the body’s core temperature reaches 40.5 degrees Celsius.

General Motors of Canada funded a study that found that on a 35 degree Celsius day a previously air-conditioned small car when exposed to the sun can rise in temperature to over 50 degrees Celsius within 20 minutes. Within 40 minutes, the temperature inside the car can rise to 65.5 degrees Celsius.

More than half of all children left in hot cars were trapped there unintentionally. These children were often left behind in a moment of forgetfulness or trapped after playing unsupervised in an unlocked vehicle.

According to the Canada Safety Council, an average of 37 people die each year in the United States as a result of being locked in a hot car. There are no statistics of this nature available for Canada.

RECENT EVENTS

Earlier this week, a 29-year-old woman, Thuy Thanh Tam Nguyen (“Nguyen”), was criminally charged after leaving her infant in a locked parked car.

Halton police attended a plaza at Trafalgar Road and Dundas in Oakville last Sunday afternoon following a 911 call. Paramedics were called to examine the 11 month old infant boy. Fortunately, the infant suffered no physical harm. Nguyen was allegedly shopping at a nearby store for approximately 90 minutes.

Nguyen has been charged with abandoning a child and failing to provide the necessaries of life. She will return to court in Milton in July.

Just two weeks ago, police charged a 53-year-old Hamilton man after he left his friend’s young child alone in a locked car. A woman walking in a Walmart parking lot spotted the child in the car and coached him on how to unlock the vehicle. The 7-year-old child ”was soaking wet from head to toe in sweat”. He was examined by paramedics and cleared at the scene. The man is to appear in court on June 20, 2018.

CRIMINAL NEGLIGENCE CAUSING DEATH

In the circumstances when a child dies after being left alone in a car, the adult who was entrusted with taking care of the child is often charged with criminal negligence causing death.

This was the case when a three-year-old boy died in Burlington after being left in a hot car on May 23, 2018. By the time police arrived on scene, the boy was outside of the car and was pronounced dead. The temperature that day had reached 26.6 degrees Celsius. An autopsy determined that the preliminary cause of death was hyperthermia. Shaun Pennell faces one count of criminal negligence causing death and one count of failing to provide the necessaries of life. Pennell will appear back in court in Milton on June 27.

Typically, a conviction of criminal negligence causing death occurs when the accused person does not mean to injure or cause bodily harm through their reckless actions. Section 219 of the Criminal Code defines the accused as showing “wanton or reckless disregard for the lives or safety of other persons”. The maximum sentence is life in jail.

There are a wide range of sentences available in cases of criminal negligence causing death due to the numerous ways in which the offence can be committed.

In the case of 2-year-old Eva Ravikovich (“Eva”), who died when she was left in a car by a daycare worker in Vaughan, Olena Panfilova (“Panfilova”) was sentenced to 22 months in jail and three years on probation. Panfilova pleaded guilty to criminal negligence causing death. Panfilova had 35 children in her illegal daycare and had forgotten that she left Eva in the car outside the daycare. She also tried to cover up her forgetfulness by pretending that the child died during a nap.

In the recent case of R. v. Simons, Elmarie Simons pleaded guilty to criminal negligence causing death and was sentenced last month in Calgary. Simons, an unlicensed daycare home operator, had left an 18-month-old toddler in a car seat in a dark closet to run errands at Walmart and McDonald’s. The child died from asphyxiation caused by the car seat strap as the leg straps of the seat were not properly buckled and the child slid down in the car seat to such a degree that the chest harness strap choked her. Simons was sentenced to 3 and a half years in prison.

RECOMMENDATIONS

It is recommended to always keep cars locked while in garages or on driveways to prevent children from inadvertently becoming trapped in a vehicle. It is also suggested that adults keep their car keys in a safe place.

It is also recommended to make it a habit to place your cell phone or purse in the back seat. This would require the driver to check the back seat before leaving the vehicle on a regular basis.

If you come across a child or animal in distress that has been left alone in a hot vehicle it is imperative that you call 911 immediately.

It cannot be emphasized enough that no child or pet should be left alone in a hot vehicle, even for a few minutes.

If you have questions about your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

30 Days in Jail for Man Convicted of Drinking and Driving

Written on Behalf of Affleck & Barrison LLP

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

WHAT HAPPENED?

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

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

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

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

SENTENCING PRINCIPLES IN CANADA

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

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

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

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

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

SENTENCING JUDGMENT

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

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

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

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

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

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

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

Justice Rose wrote,

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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

WHAT HAPPENED?

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

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

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

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

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

THE TRIAL AND APPEAL

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

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

DISSENTING OPINION ON APPEAL

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

SENTENCING

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

WHAT COMES NEXT?

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

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

NECESSARIES OF LIFE

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

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

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

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

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

In the meantime, if you are facing charges or have questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. For your convenience, we offer 24-hour phone services. We are available when you need us most.

 

Former Canadian National Ski Coach Convicted of Sex Crimes

Written on Behalf of Affleck & Barrison LLP

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

THE CHARGES

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

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

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

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

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

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

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

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

THE SENTENCING

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

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

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

Judge Lepine stated in his remarks at the sentencing,

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

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

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

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

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

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

THE FUTURE FOR CHAREST

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

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

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

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

Cyberbullying Laws in Canada

Written on Behalf of Affleck & Barrison LLP

In this “digital age” and with the prevailing use of social media by an increasing number of Canadians of all ages, challenges exist for legislators and law enforcement.

According to a Statistics Canada study in 2014, the first of its kind in Canada, nearly one in five internet users aged 15 to 29 reported having been cyberbullied or cyberstalked. In 2013, the Federal Government took a step towards addressing cyberbullying in Canada following the suicides of Rehtaeh Parsons and Amanda Todd (where intimate images of them had been shared without their consent), when it introduced Bill C-13, Protecting Canadians from Online Crime Act. This has significant implications, including jail time, for individuals charged under new provisions that have been added to the Criminal Code of Canada (“CC”) in the wake of Bill C-13.

WHAT IS CYBERBULLYING?

Cyberbullying is a form of bullying involving the use of communication technologies (instant messaging, social media, blogs, texting, or other internet sites) to repetitively intimidate, threaten, embarrass, or torment others.

This type of harassment, unlike face-to-face bullying, can occur 24 hours a day and is persistent and offensive. Due to the anonymity, people can say hurtful and cruel things and it is often harder to identify and stop them.

Examples of cyberbullying include:

  • Sending mean or threatening emails or text/instant messages;
  • Posting embarrassing photos of someone online;
  • Creating a website to make fun of others; or,
  • Tricking someone into revealing personal or embarrassing information and sending it to others.

CYBERBULLYING FOUND IN THE CRIMINAL CODE OF CANADA

The CC does not contain a specific provision for cyberbullying. However, when bullying behaviour crosses the line and becomes criminal conduct, the CC contains several provisions that can speak to these actions, including:

  • Criminal harassment (section 264);
  • Uttering threats (section 264.1);
  • Intimidation (section 423(1);
  • Mischief in relation to data (section 430(1.1);
  • Unauthorized use of computer (section 342.1);
  • Identity fraud (section 403);
  • Extortion (section 346);
  • False messages, indecent or harassing telephone calls (section 372);
  • Counselling suicide (section 241);
  • Child pornography offences (section 163.1)
  • Incitement of hatred (section 319);
  • Publication of an intimate image without consent (section 162.1); and,
  • Defamatory libel (sections 298-301).

PUBLICATION OF AN INTIMATE IMAGE WITHOUT CONSENT

As of March 2015, a new offence of sharing intimate images of a person without their consent was codified in the CC. This was legislated, in part, due to the increase in “revenge porn” and similar of sharing of intimate images online.

An intimate image is defined in section 162.1(2) of the CC as an image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region, or breast. The image has to be one where the person believed that the photograph was private and did not consent to having it viewed by others.

CONSEQUENCES FOR PEOPLE ACCUSED OF CYBERBULLYING

The CC specifically sets out penalties for those convicted of publishing or transmitting an intimate image of a person without consent in section 162.1(1).

If convicted of distributing an intimate image without consent the legal consequences include:

  • Imprisonment for up to five years;
  • Seizure of their computer, cell phone, or other device used to share the image;
  • An order for the removal of intimate images from the internet if the images were posted without the consent of the person or persons in the image; and,
  • An order to reimburse the victim for costs incurred in removing the intimate image from the internet or elsewhere.

RECENT EXAMPLES OF CYBERBULLYING

As this is a relatively new offence, there are only a few reported cases that deal with this conduct.

In the Ontario case of R. v. A.C., the victim had taken nude photos of herself and sent them to the offender during their relationship who in turn shared the images because he wanted revenge. The sentencing judge in this case imposed a conditional discharge (no conviction is registered as long as conditions are met) with three years probation given that the offender expressed remorse and appreciated the impact that the offence had on the victim.  One of the terms of the probation was that the offender was not to possess any intimate images as defined by section 162.1 of the CC of any person who is known to him personally.

In the British Columbia case of R. v. P.S.D., the offender took two photos of the victim partially clothed, without her consent. The photos were sent to the offender’s two friends with the intention to cause the victim emotional harm. The photographs were found to be blurry and it was difficult to recognize the victim. The accused spent sixty days in pre-sentence custody. The sentencing judge found that there was a “relatively low level of harm” and imposed a two-year term of probation.

In the recent case of R. v. A.C., the accused pleaded guilty to the charge of sharing intimate images without consent. The sentencing judge found that the offender was not remorseful and did not appreciate how seriously the crime had affected the victim. Furthermore, the offender shared the images with the world, posting on more than one website. He also included the victim’s name, age, ethnicity, and place of birth. In this case, the accused was sentenced to five months imprisonment with a probation term of twelve months. He was also ordered to perform sixty hours of community service.

If you are facing criminal charges or have questions regarding your legal rights, please contact the criminal lawyers at Affleck & Barrison online or at 905-404-1947. We offer 24-hour phone service, 7 days a week for your convenience.

Ontario Court of Appeal Upholds Adult Sentence

Written on Behalf of Affleck & Barrison LLP

Ontario’s Court of Appeal has upheld an adult sentence against Christopher Ellacott who raped and murdered a senior citizen when he was 15 years old.

WHAT HAPPENED?

The crime was unsolved for almost three decades. The only evidence police had was a thumbprint found at the murder scene. A random test at a fingerprinting convention allowed police to link a thumbprint from the crime scene to Ellacott. Police then secretly obtained DNA samples from him, and testing confirmed the DNA matched semen found at the crime scene.

LIFE SENTENCE UPHELD

A jury in Sarnia, Ontario convicted Ellacott in April 2012. He was sentenced as an adult in March 2013. Ellacott was sentenced to life without parole eligibility for seven years and a lifetime supervision order.

Ellacott abandoned his conviction appeal, but appealed his sentence. Ellacott disputed the sentence by arguing that he should have been sentenced as a youth. A youth sentence would mean he would have received a maximum six years in jail and a four-year period of supervision.

The Appeal Court disallowed the argument that Ellacott had been less morally culpable because he had been only 15 years old when he killed his victim.

In upholding the original life sentence, the Court of Appeal found that the punishment given to Ellacott was reasonable and proportionate given the savage killing.

The Court said,

He committed an act of extreme violence against an elderly, vulnerable neighbour who until then had no known reason to fear him. … He sexually assaulted and murdered his elderly, vulnerable neighbour. He went on as though nothing had happened, avoiding justice for nearly 30 years. There is no explanation for his crime; no sense of what motivated him to have committed so heinous an act. 

IMPOSING ADULT SENTENCES ON YOUTHS 

Section 72(1) of the Youth Criminal Justice Act provides guidance to the Courts in imposing an adult sentence. It states:

72(1)  The youth justice court shall order that an adult sentence be imposed if it is satisfied that

  • the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
  • a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

Thus, in order to have the accused sentenced as an adult, the Crown had the onus to satisfy a two prong test:

  • establish the presumption of diminished moral blameworthiness had been rebutted; and
  • establish that a youth sentence would not be sufficient to hold the accused accountable for his behaviour.

The Court of Appeal held that in the Ellacott case the sentencing judge considered all of the required factors, including:

  • the seriousness of the offence;
  • circumstances of the offender;
  • the level of moral judgment demonstrated in the planning and implementation of the offence; and,
  • the youth’s role in carrying out the offence.

The Court of Appeal concluded that the sentencing judge had not failed to consider whether the presumption of diminished moral blameworthiness was disproven.

The Court of Appeal ultimately found that even though the sentencing judge had mistakenly used Ellacott’s testimony and denial of guilt as aggravating factors, the error was found to be of no consequence.   Ellacott had been properly sentenced even though the Superior Court Justice had erred when he used Ellacott’s testimony and his denial of guilt as aggravating factors in his decision. “[T]he sentence imposed is a proportionate sentence that achieves accountability for the serious crime the appellant committed.”

If you have questions about young offenders, sentencing or your rights, contact the Oshawa criminal lawyers at Affleck & Barrison LLP. We represent young people in Oshawa and throughout the Durham Region who are facing charges. We offer a 24-hour phone service for your convenience.  Contact us online or at 905-404-1947.

HIV Positive Status to Potentially Factor into Sexual Assault Sentencing

Written on Behalf of Affleck & Barrison LLP

Crown prosecutors in Saskatchewan recently clarified that an HIV positive man facing charges for choking a woman unconscious and then sexually assaulting her will not be charged with aggravated sexual assault. However, the Crown has argued that the man’s HIV status and the victim’s subsequent fear of having potentially contracted the virus should be considered during sentencing.

What Happened?

The sexual assault occurred in May 2015. The victim was on her way home after socializing with friends at a pub. She was accompanied by a friend until she was about half block from her apartment. As she cut through a back alley, she was approached by the man in question, who rode his bike alongside her, started making inappropriate comments, and touching her. The man eventually tackled her, choked her unconscious, and forcibly penetrated her before she eventually escaped.

After the man was arrested, the victim learned that he was HIV-positive. She was treated with potent post-exposure antiretroviral drugs and experienced six months of anxiety while she awaited her test results (which were negative).

Aggravated Sexual Assault

The Crown initially charged the man with aggravated sexual assault due to his HIV-positive status. Originally, the risk of transmission to the victim was considered the aggravating factor in the assault, however, the Crown reconsidered its original charge after evidence from an infectious disease specialist revealed that the man had regularly been taking antiretroviral drugs which suppressed his virus to a low enough level that transmission was “nearly impossible”. The man’s HIV-positive status, therefore, did not endanger the woman’s life.

He was still convicted of aggravated sexual assault, but it was because he choked the victim, not because of his HIV-positive status.

Prosecutors asked for a minimum sentence of 12 years, arguing that the victim’s fear of contracting HIV had been real, even if the actual risk of doing so was not. They noted that:

However low the risk is, the anxiety for the victim when she found out that this individual was in fact HIV-positive, is an aggravating factor.

HIV Prosecutions in Canada

As we previously blogged about, the majority of HIV-related prosecutions in Canada involve consensual sexual relationships which eventually led to prosecution because an HIV-infected partner did not disclose his or her status.

In 2012, the Supreme Court of Canada clarified that individuals with low-level HIV who use condoms when they engage in sexual relations, cannot be charged with aggravated sexual assault for non-disclosure of their status.

Since then, HIV activists have argued that the SCC’s criteria are too stringent and that medical advances in reducing transmission risk have progressed to the point that it is not necessary for individuals to have both a low viral load and to wear a condom. Experts have said that adding a condom to the situation “negligibly changes the risk” because the risk of transmission is already basically zero.

In this case, experts praised the fact that prosecutors recognized the reduced transmission risk, despite the lack of condom use, to determine that a charge of aggravated sexual assault was not justified.

Perception of Risk as Aggravating Factor

Both the Crown and defence lawyers recognized that, in this case, the victim’s fear of transmission could be considered an aggravating factor. However, the Defence is asking for a five-year sentence. Sentencing was delayed by three weeks in order to provide the Judge time to review a Gladue Report (a special pre-sentencing hearing into an Indigenous perpetrator’s background).

The provincial and federal governments are both currently reviewing the criminalization of HIV non-disclosure. We will continue to follow the developments and will provide updates as they become available.

In the meantime, if you have questions about your rights, contact one of the knowledgeable and well-respected Oshawa criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our lawyers have experience successfully defending charges of aggravated assault and sexual assault. We will take the time to understand the particular circumstances of your case and work to achieve the best possible result.

Canadian Judges Urged to Consider History of Systemic Racism When Sentencing Black Offenders

Written on Behalf of Affleck & Barrison LLP

A Call for Greater Consideration

Canadian defence lawyers are urging judges to give greater consideration to how systemic racism may have played a role in the actions of black criminals, similar to the consideration given to aboriginals.

The National Post reports “Defence lawyers behind the push say asking judges to consider how historic discrimination and marginalization may have influenced their clients’ behaviour is not meant to be a ‘get-out-of-jail-free’ card; it simply gives judges a fuller picture of their clients before their fates are decided.”

R. v. Gladue

The consideration being urged is similar to the Gladue report, which judges, defence counsel, or Crown Attorneys are able to request during pre-sentencing or bail hearings of Aboriginal offenders.

Gladue reports stem from a 1998 Supreme Court of Canada decision, R. v. Gladue, in which the Court ordered “ it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person.  Whether the offender resides in a rural area, on a reserve or in an urban centre the sentencing judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender.  The alternatives existing in metropolitan areas must, as a matter of course, also be explored.  Clearly the presence of an aboriginal offender will require special attention in pre‑sentence reports.”

Conflicting Points of View

Wayne van der Meide, regional manager of case management and litigation for Legal Aid Ontario told the National Post that his organization wants to encourage Ontario judges to employ cultural assessments, allocating funds for test cases.

Nova Scotia has used cultural assessments in a small number of cases, and van der Meide stated that courts in Ontario have recognized that black people have faced systemic racism for decades, but this has always been done without a formal mechanism.

The hope of Van der Meide and others pushing for this type of consideration is that the Canada’s black population will cease to be overrepresented in Canada’s prison system. According to Vice News, 9.5% of Canada’s prisoners are black, compared to only 3% of the Canadian population.

However, Canada’s federal prison ombudsman, Ivan Zinger, says that he isn’t sure cultural assessments will do anything to change the black population’s overrepresentation in prison. He told the National Post that Aboriginal Canadian’s still account for 26% of Canada’s prisoners, while making up less than 5% of the population despite years of use of Glaude reports. He said “Adopting the same Gladue approach for Canadians of African descent may also not yield the desired outcome,” adding, “Investments in improving socioeconomic, cultural and political rights of vulnerable segments of the Canadian population may be a better approach.”

If you are facing criminal charges, contact the skilled Oshawa criminal lawyers at Affleck & Barrison online or at 905 404 1947. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.

Senior Who Beat Fellow Long Term Care Home Resident to Death Gets Life in Prison

Written on Behalf of Affleck & Barrison LLP

We previously blogged about Peter Brooks, a 76-year old man who had been found guilty of second-degree murder after Joycelyn Dickson who was beaten to death at a long term care facility in Scarborough in 2013.  Brooks had used a cane to fatally injure the other resident. He was also charged with attempted murder following an attack on another elderly resident at the same facility.

Brooks has since been sentenced to life in prison, and will not be able to apply for parole for another 10 years, which is the minimum period of time following a second-degree murder conviction.

The Trial

Brooks’ defence lawyer had argued that Brooks was not criminally responsible for his actions. The defence relied on evidence by a forensic psychiatrist who testified that Brooks had been suffering from dementia and delusions at the time of the incident which had caused damage to his brain’s frontal lobe and left him unable to distinguish the consequences of his actions:

We all know that, regardless of what Peter’s belief was, there is nothing that can justify his actions. This is where Peter’s departure from society’s moral code becomes glaringly obvious. He is still unable to appreciate the moral wrongfulness of his actions.

The Crown had argued that despite Brooks’ mild dementia, he had deliberately and intentionally attacked the two residents for “sweet revenge” (which had been Brooks’ own words). Brooks’ belief that the women had been conspiring against him was based in reality as the women had complained to management on a number of occasions about violent or hostile interactions they had previously had with Brooks. It was the Crown’s position that there had been no evidence of “psychotic thinking that can be raised above suspiciousness”, that Brooks had threatened to kill the resident and then took steps to act on the threat, that he ultimately minimized his conduct and blamed the victims, and then lied to the jury about being unable to remember the murder and made up an account of being told to “beat” the women in a dream.

All second degree murder charges have an automatic sentence of life in prison. If you have been charged with murder or manslaughter, or have questions about other criminal charges and your rights, contact the Oshawa criminal lawyers at Affleck Barrison online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.