Sexual Assault

Alberta Appeal Court Ruling Confirms Automatic Registration for Convicted Sex Offenders

Written on Behalf of Affleck & Barrison LLP

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

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

THE HISTORY AND THE COURT OF APPEAL DECISION

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

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

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

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

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

WHAT IS CANADA’S NATIONAL SEX OFFENDER REGISTRY?

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

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

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

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

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

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

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

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

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

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

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

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

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

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

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

Justice Fairburn stated:

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

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

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

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

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

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

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

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

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

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

Written on Behalf of Affleck & Barrison LLP

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

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

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

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

TRIAL BY ZOOM

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

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

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

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

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

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

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

WHAT HAPPENED AT TRIAL?

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

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

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

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

Justice Lemon stated:

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

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

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

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

Crime Rate in Canada Reported by Police Up Slightly

Written on Behalf of Affleck & Barrison LLP

According to Statistics Canada, Canada’s crime rate increased for a fourth year in a row.  The overall crime rate was found to have gone up by two per cent in 2018 over the previous year, however, it is still lower than the rate of crime 10 years ago. 

The crime rate report entitled “Police-reported Crime Statistics in Canada, 2018” published by Statistics Canada is based upon data obtained from Canadian police forces, and does not include any crimes that were not reported to the police.

POLICE-REPORTED CRIME STATISTICS IN CANADA, 2018

Statistics Canada has been collecting information from all Canadian police services regarding criminal incidents reported to the police since 1962.  In 2018, there were more than two million police-reported Criminal Code incidents.

In Canada, there were several significant criminal incidents that occurred in 2018 resulting in the loss of numerous lives and numerous personal injuries.  One of these incidents was the attack on pedestrians that were deliberately struck by a van in the North York City Centre business district, which resulted in 10 homicides and 13 victims of attempted homicide. 

Toronto was also impacted by a deadly shooting on Danforth Avenue in the city’s Greektown, leaving 2 dead and 13 victims of attempted homicide.  In Saskatchewan, there was a devastating motor vehicle accident involving the Humboldt Broncos, a junior ice hockey team, which resulted in 16 deaths and 13 victims of serious injuries.

The legalization of cannabis and the various amendments to the Criminal Code hrelating to impaired driving, were two significant legislative changes in 2018 that impacted the crime rate statistics in Canada.  Both of these legislative amendments introduced new types of offences. 

The severity of crime, also known as the Crime Severity Index (a measure of the severity of police-reported crime), has also increased by two per cent in 2018.  However, both the crime rate and the Crime Severity Index were down 17 per cent compared to the rates in 2008.

The increase in the severity of crime from 2017 to 2018 was in relation to higher rates of fraud, shoplifting and other thefts.

SEXUAL ASSAULT STATISTICS

Statistics Canada found that for the second year in a row the rate of sexual assaults were found to have significantly increased from 2017 to 2018 in Canada.  There were more than 28,700 police-reported sexual assaults, resulting in an increase of 15% in 2018, following an increase of 13% in 2017.

Sexual assaults were found to represent 7% of all violent crimes in 2018.

The report written by Statistics Canada indicates that the rate of sexual assault reported is “likely an underestimation of the true extent of sexual assault in Canada, as these type of offences often go unreported to police”.

HOMICIDE RATES

Homicide rates in Canada declined by four per cent in 2018, reversing a trend over the last few years of increasing rates of homicide.  According to Statistics Canada, large decreases in homicides in Alberta and British Columbia were reported, while Ontario homicides were found to have substantially increased.  The increased numbers in Ontario were largely attributed to three significant incidents that resulted in 20 homicides and 26 attempted murders (this included the victims of the serial homicides that were identified in 2018).

Toronto was found to have experienced a substantial increase in homicides and the city itself was found to be experiencing its highest crime rate since 1991.  There were 142 reported homicides in Toronto in 2018 (49 more than in 2017). 

According to the data, there were 157 gang-related homicides, which made up 25% of all homicides in Canada in 2018.  This number had decreased by 5% from 2017 following three years of increases. 

FRAUD RATES

Cases of police-reported fraud was found to have increased for the seventh year in a row.  There was a 12% increase between 2017 and 2018, and a 46% increase from 10 years ago. 

Fraud can be defined as any form of dishonest or deceptive behaviour that is intended to establish a risk or loss.  Some define it as “theft by lies”.  A few examples include mortgage fraud, identify theft, forgery, computer crimes, tax fraud and embezzlement.

In 2018, there were over 129,400 cases of fraud reported by police.  Police services report that increases of fraud may be the result of increased access for reporting fraud online.  For example, online or telephone scans, such as the “Canada Revenue Agency” scam and pre-paid gift card scams.

VIOLENT FIREARM OFFENCES

There are a number of Criminal Code offences that involve the use of firearms, including homicide, robbery, assault, sexual assault, discharging a firearm with intent and pointing a firearm. 

According to the research by Statistics Canada, there were 7,477 violent crimes that involved the use of a firearm in 2018.  This was a 5% decrease from 2017, a departure from four years of increases in these types of offences.

The crime severity index is a measure of the severity of police-reported crime, with offences weighted and those more serious given more weight.  A region’s crime severity index is calculated by adding up the weighted offences and dividing it by the population to end up with a score that’s standardized to 100. 

At Affleck & Barrison LLP we are prepared to defend your rights, no matter what the charges are.  We have extensive experience in defending clients in a variety of criminal law matters.  If you need representation or have questions about your legal rights, please contact our firm online or at 905-404-1947.

Appeal Court Upholds Dangerous Offender Designation for Man Who Withheld HIV Status

Written on Behalf of Affleck & Barrison LLP

In the recent decision of R. v. Gracie, the Ontario Court of Appeal upheld the lower court’s decision designating Daniel Gracie (“Gracie”) a dangerous offender for withholding his HIV status from women, despite making legal errors.

WHAT HAPPENED?

Gracie, of Indigenous ancestry, was adopted by non-Indigenous parents as an infant.  He moved out of their home at the age of 15, at which point he became involved with the criminal justice system.  He has 25 youth convictions and 10 adult convictions.

In early 2010, Gracie was at the apartment of his friend C.C.  After an evening of drinking, he had asked her to have sex with him several times and she refused each time.  She then went to bed as she was feeling ill and tired.  He was planning on spending the night on the futon in her living room.  When C.C. woke up the next morning, her vagina was sore and semen was leaking out of it.  Gracie eventually admitted that he had sex with her while she was asleep.  Approximately, one year later C.C. found out that she had contracted HIV.

A second complainant, M.N., also accused Gracie of withholding his HIV status.  The two had an on-again off-again relationship between 2008 and 2011.  When the couple began dating again in 2011, they had unprotected sex after Gracie confirmed that he did not have any sexually transmitted diseases.  After watching a police media release naming Gracie as an HIV-infected individual charged with sexual assault, M.N. sought medical treatment and confirmed that she had contracted HIV from Gracie.

In the past, Gracie had been convicted of sexual assault causing bodily harm for the violent rape of a sex worker.  While he served his sentence for this crime, he was charged and convicted of counseling the murder of the police officer who was investigating the sexual assault incident.  He was also convicted of other crimes while he was on probation for these previous offences and committed the sexual assaults that were the substance of the appeal.

THE SENTENCING HEARING

Gracie pleaded guilty to two counts of aggravated sexual assault.  At his sentencing hearing, there was evidence to prove that Gracie had been advised by doctors and his probation officer regarding the risks of having unprotected sex and his legal obligation to disclose his HIV status to all potential sexual partners.

The trial judge at his sentencing hearing designated Gracie as a dangerous offender.  This is a legal designation only reserved for those individuals who are repeatedly convicted of violent or sexual crimes.  Crown prosecutors can apply for this designation under section 753(1) of the Criminal Code during the sentencing hearing where it can be shown that there is a high risk that the offender will commit violent or sexual offences in the future.  This designation results in an automatic imprisonment for an indeterminate period, with no change of parole for seven years.

The sentencing judge ruled that Gracie was to remain incarcerated indefinitely.

THE APPEAL

Gracie appealed the lower court decision granting him the label of dangerous offender and his indeterminate jail sentence.  Gracie argued that the sentencing judge did not properly conduct a prospective risk assessment and failed to take his Indigenous background into account during sentencing.

The three judges on the bench for Gracie’s appeal unanimously agreed that while the sentencing judge did not conduct the risk assessment until the penalty stage, rather than completing it before declaring him a dangerous offender, the verdict would have remained the same.

The appeal court held that the evidence proved that Gracie could not be trusted in the community as he had been found on all assessments to pose a moderate to high risk of violent or sexual reoffending.

The court also found that given his diagnosis of antisocial personality disorder and psychopathic traits, he would be less responsive to treatment.  Furthermore, Gracie had never showed signs of a willingness to take part in corrective programming during his previous incarcerations.

Lastly, although the sentencing judge did not reference having reviewed a report regarding Gracie’s Indigenous background, the appeal court held that those factors would not have affected the sentencing decision.  The appeal court noted that Gracie’s biological mother was Indigenous, however, he was adopted as an infant by a non-Indigenous family and moved to Toronto.  The court stated:

His life of crime began in his teenage years and he did not meet members of his biological family until much later in life, after he committed the predicate offences. …

The risk of sexual and violent recidivism was the product of his serious personality disorder, his poor treatment and supervision history, and the dim prognosis for meaningful change.

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 905-404-1947 to speak with one of our experienced criminal defence lawyers today.

Appeal Court Convicts Violin Teacher Who Measured Girls’ Breasts

Written on Behalf of Affleck & Barrison LLP

In an unusual decision, the Ontario Court of Appeal has convicted Claude Trachy (“Trachy”), a retired violin teacher, on numerous sexual and indecent assault charges for touching his young female students’ breasts and nipples during class. 

THE CHARGES LAID AGAINST TRACHY

Trachy was charged with the following four types of sexual offences:

  1. Sexual interference:  This offence is committed when a person indirectly or directly touches any part of the body of a person under the age of 16 for a sexual purpose. 
  2. Sexual exploitation:  This offence occurs when a person in a position of authority or trust towards a young person touches any part of the body of the young person for a sexual purpose or invites or incites a young person to touch anyone for a sexual purpose.
  3. Indecent assault:  This offence is an assault committed of an indecent nature such that the victim is violated and was superseded by the offence of sexual assault in 1983.
  4. Sexual assault:  This offence includes any unwanted sexual activity such that the sexual integrity of the victim is violated and does not require proof of sexual purpose or sexual gratification.  The Crown prosecutor must prove beyond a reasonable doubt that the accused intentionally touched the complainant without consent in circumstances of a sexual nature. 

WHAT HAPPENED AT THE TRIAL?

The trial court found Trachy not guilty of 51 charges of sexual interference, sexual exploitation, sexual assault and indecent assault. 

The court heard from 21 former female violin students of Trachy in Chatham, Ontario.  The incidents took place between 1971 and 1993, at which time the victims were young girls.

The alleged charges resulted from Trachy measuring his female students’ bodies in order to fit them for shoulder rests. 

During the trial, Trachy admitted that he asked his female students to undo their blouse on the left side and remove their bra.  He would use a ruler to measure from the top of the collarbone to the nipple, from the jaw to the collarbone and the underside of the breast.  There were also times that he would ask his students to play the violin undressed to confirm that the shoulder rest was properly fitted. 

Trachy denied having any “sexual intent” in measuring or receiving any sexual gratification.  Trachy admitted that he did not measure his male students and only measured his female students.  He also admitted at trial that he did not measure his daughter, although he taught her as well.

At trial, Justice Thomas Carey accepted all of the female complainants’ testimony, however, believed that Trachy measured his female students’ breast area not for a “sexual purpose”, but to improve their playing ability by properly fitting them for shoulder rests on their instruments. 

WHAT HAPPENED AT THE APPEAL?

Justice Mary Lou Benotto, writing on behalf of the unanimous three-judge panel of the appeal court, found that the trial judge made an error of law and that the evidence established that the charges of sexual assault and indecent assault were proven beyond a reasonable doubt.  The trial judge erred by mistaking the issue of touching for a “sexual purpose” with the issue of touching in the circumstances of a “sexual nature”. 

Justice Benotto wrote:

A reasonable observer viewing the respondent’s admitted conduct in touching and manipulating the breasts and nipples of young girls and young women both over and under their clothes would perceive a sexual context to the conduct.  These were largely girls who were in the process of developing breasts, and who were alone with the respondent in a private room with the door closed.  Their sexual integrity was violated, regardless of the respondent’s purpose. 

The appeal court convicted Trachy on 28 charges in the case of 20 out of 21 student victims.  The appeal court stayed the proceedings for one student, who was 23 at the time of her lessons.  It was the appeal court judges’ opinion that given her age, in this case, additional legal questions would arise with respect to consent. 

The appeal court upheld Trachy’s acquittals on all charges of sexual exploitation and sexual interference.

Given that the appeal decision was made on a question of law, Trachy has an automatic right to appeal to the Supreme Court of Canada.  We will report on any updates regarding this case in this blog when they become available.

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

SCC Orders New Trial in “Friends with Benefits” Case

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada has ordered a new trial for Patrick Goldfinch (“Goldfinch”), and in doing so sent out a warning to judges in Canada when allowing evidence of past sexual history in the case of sex assault trials.

WHAT HAPPENED?

Goldfinch was charged in 2014 with sexually assaulting a woman he had previously dated and had once lived with.  The two had broken up, but remained friends.  The woman would occasionally visit Goldfinch’s home and stay the night. 

On the evening of May 28, 2014, the complainant contacted Goldfinch, who proceeded to pick her up at her house and bring her back to his residence.  Goldfinch testified that this was a “typical evening” in that the complainant “would call in the middle of the night, want to come over, and we’d end up going to bed together”. The two shared a consensual kiss and Goldfinch suggested that they go to bed.

According to Goldfinch, they went into his bedroom and each removed their own clothing, engaged in consensual foreplay and brief intercourse.  Goldfinch testified that he fell asleep and was later woken by the complainant who stated that he had struck her on the head in his sleep.  He got annoyed and called her a taxi using her phone.

The complainant testified that she told Goldfinch she did not want to have sex and he proceeded to grab her arm and drag her by her hair into the bedroom.  She testified that she became scared and removed her clothes at his direction.  He proceeded to push her onto the bed, hit her in the face and had sexual intercourse with her without her consent.  She got dressed and called a taxi from her cell phone, and then contacted the police shortly after returning home.  Two officers who met the complainant at the hospital confirmed swelling on her left cheek and elbow.

During the trial, the judge allowed evidence to be admitted regarding a “friends with benefits” type of relationship between the complainant and Goldfinch.  The judge regarded this evidence as “relatively benign” and reasoned that keeping it from the jury would harm the accused’s right to make full answer and defence.

At trial, Goldfinch was acquitted by a jury. 

The trial decision was appealed and the majority of the Alberta Court of Appeal allowed the Crown’s appeal and ordered a new trial for Goldfinch in finding that the trial judge had erred in admitting the “friends with benefits” evidence.

THE DECISION BY THE SUPREME COURT OF CANADA

In a 6-1 decision, the highest court in Canada ruled that evidence regarding the sexual relationship between Goldfinch and the alleged victim should not have been heard by the jury.  This evidence was found to be a “reversible error of law” as allowing the evidence showed no other purpose than to “support the inference that because the complainant had consented in the past, she was more likely to have consented on the night in question”. 

The court found that the evidence in question suggested that the alleged victim was likely to have consented to sex because she had done so in the past.  This is the type of evidence that the “rape shield” law found in the Criminal Code is intended to prevent.

Justice Michael Moldaver wrote:

This case serves as a powerful illustration of how a trial can go off the rails where sexual activity evidence is admitted without being anchored to a specific, legitimate purpose.

Justice Andromache Karakatsanis, writing for the largest number of judges, concluded that evidence of past sexual relationships must be handled with care, “even relatively benign relationship evidence” during a sexual assault trial.  If such evidence is allowed, the jury must be instructed by the trial judge that details regarding previous sexual interactions are not relevant in determining whether the complainant had consented to the sexual intercourse that formed the basis of the trial.  She wrote:

No means no, and only yes means yes:  even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one the complainant has routinely consented to in the past.

Joanne Dartana, Alberta Crown prosecutor, stated that the Supreme Court decision “reaffirms the principle that stereotypical reasoning regarding sexual assault victims has no place in a criminal trial and this principle is no less important where the accused and the complainant had a pre-existing relationship”.

The one dissenting judge, Justice Russell Brown, concluded that the evidence was admissible and that the trial judge had made correct evidentiary rulings and had properly instructed the jury.

If you have been charged with a sexual offence or a related charge 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.  We are available when you need us most.

Man Who Refused to Wear Condom Found Guilty

Written on Behalf of Affleck & Barrison LLP

Ontario Superior Court Justice Nathalie Champagne has ruled that if a man refuses to wear a condom against his partner’s wishes and after agreeing to do so, it is a sexual assault.  Anibal Rivera (“Rivera”) has been found guilty of committing sexual assault by proceeding to have unprotected sex after agreeing to wear a condom.

WHAT HAPPENED?

In October 2017, Rivera and a woman (who cannot be identified) met on a dating website and they agreed to meet at the woman’s home in Cornwall, Ontario for a sexual encounter. 

Prior to their “date”, the woman texted Rivera and advised him that condoms were mandatory and that “no means no”. Rivera agreed to these terms.

In court, the woman testified that during their encounter she repeated “her rules”, however, Rivera proceeded to have sex with her without a condom, insisting that he was “clean”.  He then left after a few minutes of small talk.

Rivera testified that the woman agreed to proceed without a condom as long as he did not ejaculate inside her. 

The woman went to the hospital the next day for an evaluation and various tests, including tests for pregnancy and sexually transmitted infections, and a sexual-assault kit.  A few days later, she contacted the police.

Rivera drafted a written statement before his first interview with police wherein he wrote that the woman had initiated unprotected sex.  However, on the witness stand during his cross-examination he admitted that he had lied in his written statement.

THE ISSUE OF CONSENT

The issue at trial was whether the complainant consented to intercourse without a condom.  Both the woman and Rivera testified in court.

In her ruling, Justice Champagne wrote:

This is a case of ‘he said, she said’ which raises issues of credibility and reliability.  … In assessing the evidence, if I believe the account of Mr. Rivera, I must acquit.  If I don’t believe Mr. Rivera but the evidence leaves me with a reasonable doubt, I must acquit.  If the evidence does not leave me in doubt the offence occurred, I must assess whether the evidence proves the offence beyond a reasonable doubt.  … Mr. Rivera’s evidence gives rise to serious issues regarding his credibility and reliability…

Although Justice Champagne did not believe Rivera’s claims that the complainant agreed to have sex without a condom, the Crown must still prove the alleged offence beyond a reasonable doubt.

The complainant testified to the following:

  • She agreed to a sexual encounter.
  • She insisted that condoms were required and “no means no”.
  • She told Rivera to put on a condom prior to intercourse and he didn’t.
  • She told Rivera to put on a condom a second time before the second act of intercourse and he didn’t.
  • Rivera had vaginal intercourse with her without a condom followed by forced oral sex, followed by vaginal and anal intercourse with her without a condom.

Justice Champagne found that the woman’s evidence that she insisted that Rivera wear a condom and would not agree to sex without it is consistent with the conditions she had described in her text to Rivera and consistent with her undergoing tests at a hospital the next day. 

The Judge found that the woman’s “evidence to be proof beyond a reasonable doubt that Mr. Rivera committed a sexual assault against her by failing to wear a condom and engaging in sexual intercourse with her”. 

Justice Champagne went even further to say that if there is any uncertainty that failing to wear a condom amounts to a sexual assault in these circumstances, the complaint’s consent was discredited by fraud. 

IMPACT OF THIS DECISION

Justice Champagne noted that she did not draw any negative conclusions regarding the fact that the Rivera and the woman made small talk after sex or that it took the woman a few days before contacting the police.  She stated:

It would be inappropriate for me to do so and would invoke myths and stereotypes about how victims of sexual assault should act.  … It stands to reason that a complainant might make small talk to keep things calm and avoid unwanted contact and it would not be unreasonable for a complainant to take some time to consider whether or not to proceed with a complaint given the stress and scrutiny of intimate details of one’s life involved in the criminal court process.

In my view, Mr. Rivera led the complainant to believe he would wear a condom as he had previously agreed to do so and at the last minute he penetrated her without a condom telling her it would be OK. … I find his failure to wear a condom increased the complainant’s risk of pregnancy and constitutes a significant risk of bodily harm … Her consent was therefore vitiated by this action.

Justice Champagne’s decision is being well-regarded as an example to be set to other judges in Canada. 

It is also in line with the proposed Bill C-337, introduced by former federal Conservative leader Rona Ambrose, requiring those seeking a federal judicial appointment to go through mandatory training on sexual assault law, including rape myths and stereotypes about victims and the impact of trauma on memory.

We will continue to follow any developments in the case law or legislation that may arise from this latest decision regarding sexual assault, rape myths and stereotypes in this blog.

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.

‘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.

 

 

 

 

 

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.