Sex Offender

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.

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.

Brock Turner Registers as Sex Offender in Ohio

Written on Behalf of Affleck & Barrison LLP

Brock Turner, the Stanford University student who was convicted of sexually assaulting a fellow student following a campus party, was recently released from jail after serving just three months of his six-month sentence. Upon release, Turner was given five days to register as a sex offender, and has registered in Ohio, where he has returned to live.

Turner has been registered as a Tier III sex offender- the harshest of the three levels in Ohio. Tier III offenders include those who have been convicted of the most serious crimes such as rape, sexual battery, or murder with a sexual motivation, and require the offender to register every 3 months for life.

Turner’s name, address, and photo will be publicly available on Ohio’s online registry. His neighbours will also receive postcards from the sheriff’s office, informing them that a sex offender is living in their vicinity.

As a registered sex offender, Turner cannot work with children, or live close to places where children frequently spend time, such as parks, schools, or playgrounds. Turner will be subject to random drug and alcohol tests and searches of his home. He cannot travel without informing authorities.

Sex Offender Registries in Canada

Most jurisdictions in Canada also have sex offender registries. A primary difference is that Canadian sex offender registries are not publicly available, and are only accessible to law enforcement and authorities.

Ontario

History

Ontario was the first jurisdiction in Canada to establish a sex offender registry.

The Ontario Sex Offender Registry (OSOR) was created following the abduction and murder of 11-year old Christopher Stephenson by a convicted sex offender in the late 1980’s. After the Coroner’s Inquest into Christopher’s death, a registry for convicted, dangerous, high-risk sexual offenders was recommended. The registry was created in April of 2001, when the provincial government proclaimed Christopher’s Law (Sex Offender Registry, 2000).

Who Must Register?

Registration on the OSOR is mandatory for anyone who is a resident of Ontario and has been:

  • Convicted of a “sex offense” (as defined by Christopher’s Law), anywhere in Canada.
  • Found “not criminally responsible” (NCR) for a “sex offense” due to a mental disorder and given an absolute or conditional discharge
  • Given an obligation to report under the federal Sex Offender Information Registration Act (SOIRA) and related Criminal Code provisions.

Sex Offences

Offences that are included in the definition of “sex offense” under Christopher’s Law, and convictions for which require registration on the OSOR are:

  1. Offences related to sexual offences against children
  2. Sexual interference
  3. Invitation to sexual touching
  4. Sexual exploitation (age 14 to under 18)
  5. Sexual exploitation of a person with disability
  6. Incest
  7. Bestiality
  8. Compelling bestiality
  9. Bestiality in presence of or by a child
  10. Voyeurism
  11. Child pornography
  12. Accessing child pornography
  13. Parent or guardian procuring sexual activity
  14. Luring a child by means of computer system
  15. Exposure to person under age 14
  16. Stupefying or overpowering for the purpose of sexual intercourse
  17. Living on the avails of prostitution of a person under 18
  18. Aggravated offence – living on the avails of prostitution of a person under 18
  19. Obtaining prostitution of person under 18
  20. Sexual assault
  21. Sexual assault with a weapon, threats to a third party or causing bodily harm
  22. Aggravated sexual assault – use of firearm
  23. Aggravated sexual assault
  24. Removal of a child from Canada

Reporting Obligations

Offenders convicted of a sex offense must initially register, in person, at their local police jurisdiction within 7 days after:

  • Completion of prison or jail time for the offense
  • Conviction where not given prison or jail time
  • A finding of NCR and an absolute or conditional discharge
  • Becoming subject to certain obligations under the Criminal Code and other laws.

After the initial report, those listed on the OSOR must also report within 7 days of:

  • A change of address or name
  • A return to Ontario if outside of Ontario when required to report
  • Ceasing to be a resident of Ontario.

Reporting Duration

Offenders must report for:

  • 10 years: if the maximum sentence for their crime is less than 10 years, and they have a conviction for only one sex offense
  • Life: if they are convicted of more than one sex offense or they are convicted of a single offense with a maximum sentence of more than 10 years.

Ontario’s system tracks compliance- if an offender fails to check in on time, the system issues an automatic red flag for law enforcement agencies.

Information about the Offender

The OSOR will include information such as the offender’s:

  • Name (current, former, and any aliases)
  • Physical description (including height, weight, build, gender, race, scars or other identifying features)
  • Current and historical photos (including any of scars of other identifying marks)
  • Valid proof of identity
  • Main and secondary address of residence, workplace, school, and volunteer organizations
  • Telephone number(s)
  • Convictions for sex offence(s)
  • Vehicle details (including any vehicle leased, owned, registered, or regularly driven by the offender)

Police have direct access to the OSOR 24/7. The OSOR is not available to the public, but the public is able to find out about the concentration of sex offenders in their region.

Federal

History

Federally, the Sex Offender Information Registration Act (SOIRA) became law in 2004. After that date everyone listed on the OSOR and anyone else that was serving a sentence for a sex crime were added to the National Sex Offender Registry (NSOR).

Who Must Register

Courts must now grant orders requiring individuals sentenced for certain designated offences or a person found NCR for those offences to register on the NSOR for 10 years, 20 years, or the remainder of the person`s life (depending on the maximum sentence for the offense and the number of offenses the person is convicted of).

The designated offences that require registration on the NSOR are the same as those that are considered “sex offences” under Christopher’s Law (see above).

Reporting Obligations

Sex offenders that are to be put on the NSOR are subject to similar reporting obligations as those on the OSOR. Namely, they must report to their local police within a specified period of time following their release from custody or finding of NCR.

They must similarly notify the NSOR of major changes such as change of name or address, or if they are planning to leave their residence for more than 7 consecutive days.

Information about the Offender

The NSOR includes the same information as Ontario’s registry, and also includes details of the offender’s modus operandi.


Implications of Being a Registered Sex Offender in Canada

In addition to adhering to strict reporting obligations, offenders who are on the OSOR and NSOR may also be subject to conditions such as curfews, staying away from schools/other areas that children frequent, and restrictions on entering certain countries, such as the U.S.

While neither the provincial nor the federal registries are public, offenders who move to communities following their release are often subject to “vigilante justice” by neighbours and others who find out about the offender’s presence in the community. These community activists often connect informally and share information about offenders who are living in their area. They take photos of the offenders, make posters, post information online, and often publicly shame the offender (often to the point of harassment).

For example: in 2014, a registered offender moved to the Hamilton area, after serving a five-year prison sentence for two sexual assaults. Angry mothers in the community organized together, printed posters of the offender’s name and face, and posted them around the community. The community backlash forced the offender to move to another city, where he encountered a similar response. The offender is now back in custody for breaching his curfew.

Brock Turner has been subject to a similar response in the Ohio town in which he lives. Shortly following Turner’s return home, a dozen protestors began organizing outside of Turner’s home. Ohio is an open carry state, and many of the protestors were openly armed with high caliber rifles. They carried signs calling for the castration and killing of rapists, with the goal of returning frequently to make Turner “uncomfortable in his own home”.

If you have been charged with a sexual offense, or have questions about your rights, please contact Affleck & Barrison online or at 905-404-1947.

Canadian Degrassi High Actor Arrested on Child Pornography Charges

Written on Behalf of Affleck & Barrison LLP

A former Degrassi High actor and three Ontario women are facing multiple charges, including possessing child pornography, sexual assault, and bestiality.

Jason (Byrd) Dickens, his wife, Dylan Anne McEwen, and two other women were recently arrested following a months long probe by police. Police stated that they initially received a tip about a man uploading inappropriate images online in January 2016. This led to a search warrant in late April, at which time police discovered several devices containing videos and images.

Police believe that Mr. Dickens and Ms. McEwen actively sought out victims online and in person, going by several user names including: RetroDeviant, Byrd_Dawg and Sir Dirk (Mr. Dickens), and Doll, Dirty Doll (Ms. McEwen). Mr. Dickens and Ms. McEwen will appear in Toronto court on Sept. 1.

Police also believe that between January 2000 and January 2006, Mr. Dickens and another woman sexually abused a child and distributed child pornography online. The woman is charged with 10 child sexual exploitation offences, and Mr. Dickens faces six more charges in that case.

Additionally, police allege that Mr. Dickens met a third woman from Thunder Bay, who also faces one charge of making child pornography.

Police are concerned that the individuals may have had contact with “like-minded individuals” and there may be more victims.

Potential Consequences

It is unclear what the outcome of these charges will be. However, child pornography charges are taken very seriously by prosecutors and police.

Child pornography is defined as any media (photo, film, other) that depicts sexual activity with, or that displays the sexual regions of, a person under the age of 18 (Criminal Code of Canada, s. 163.1(1)).  It is a crime to make, publish, or print child pornography. It is also a separate offence to distribute, to possess or to access child pornography, including sharing on or downloading files from the internet.

In 2012, Bill C-10, the Safe Streets and Communities Act, imposed higher mandatory minimum penalties for making, distributing, possessing and accessing child pornography. Sentences for any individuals charged under s. 163.1 of the Criminal Code all carry mandatory minimum sentences, and no discharges, suspended sentences, or fines are available. Penalties include jail time, and a sex offender registration, which can remain on your record for your whole life.

Protecting Children from Child Pornography

Safeguards for those under 18 have been increasing in recent years. In 2011, the government passed Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. The legislation is intended to keep pace with technology used to distribute and access such content. It requires Internet service providers (ISP’s) and others (for instance, Facebook, Google, Hotmail, etc) to report any incident of child pornography.

Under this legislation, anyone can inform an ISP or other entity that a website, hostpage, or email contains child pornography. The ISP or other entity must then report the address of the site, page, or email as soon as possible to a designated organization or the police.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison LLP online or at 905-404-1947.