Sexual Assault

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.

 

Ontario Sets 12 Month Ceiling for Youth Cases

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged about, the Supreme Court of Canada in R. v. Jordan established that adult criminal cases decided in the provincial courts must be resolved within 18 months. In circumstances where cases exceed the 18 months ceiling, it has been found that the accused’s rights under section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) have been violated and a stay of proceedings may be granted, except under “exceptional circumstances”.

The Ontario Youth Court of Justice recently held that a 12-month ceiling should apply for youth cases. In the case of R. v. D.A., the Court applied section 3(1)(b) of the Youth Criminal Justice Act (“YCJA”) which states that youth court proceedings should be carried out with “promptness and speed…given young persons’ perception of time”. This is the first reported decision to specifically establish a lower ceiling for youth cases than adult cases.

The accused, D.A., applied for an order for a stay of proceedings under section 24(2) of the Charter arguing that his rights have been infringed pursuant to section 11(b). He maintained that it will take 18 months and 7 days for the completion of his trial, which is unreasonable and exceeds the presumptive ceiling set by the SCC in R. v. Jordan. Furthermore, the accused submitted that a young person should be subject to a lower presumptive ceiling.

WHAT HAPPENED?

On a date between January 1, 2015 and November 4, 2016, the accused allegedly was observed to be grinding his penis into a three years old’s buttocks as he lay on the floor.

During this same time period, the accused allegedly pulled down his pants and underwear exposing his penis to a nine-year-old boy (the accused’s first cousin) and a four-year-old boy. The accused allegedly asked the boys to touch his penis, which they did.

On December 6, 2016, the accused was interviewed by police without the presence of his mother. At that time, he provided a partially incriminating statement.

The accused was then charged with 8 offences, including sexual assault, sexual interference and invitation to sexual touching. He was released on an undertaking to a peace officer and a promise to appear.

THE NEED FOR TIMELY RESOLUTION OF CRIMINAL COURT MATTERS

The judicious conclusion of criminal court cases is a fundamental right of all accused individuals found within section 11(b) of the Charter. It is also an important factor in ensuring public confidence in the Canadian criminal justice system.

The timely culmination of criminal court matters is also important for witnesses, victims and their families. Proceeding in this manner assists with the accurate recall of information related to the crime and allows for emotional and psychological closure.

The SCC case of R. v. Jordan set out a new framework and timelines for processing criminal court cases in Canada. The Court set out a “presumptive ceiling” for completing criminal court cases and anything beyond these time periods is deemed unreasonable. However, if a delay is caused by the defence it will not count towards the presumptive ceiling (ie. requesting unnecessary adjournments). Once the presumptive ceiling has been exceeded, the burden is on the Crown prosecutor to justify the delay on the basis of exceptional circumstances.

BRINGING YOUTH MATTERS TO TRIAL EXPEDITIOUSLY

Individuals who are charged between the ages of 12 and 17 are processed through youth courts in Canada, which operate independently from adult criminal courts. The YCJA provides more proportionate accountability for young persons through age appropriate sentences and the promotion of rehabilitation.

Canada has acknowledged the necessity that criminal proceedings involving young persons should generally be brought to trial faster than adult matters. This has been codified in section 3 of the YCJA.

The Ontario Court of Appeal has also provided reasoning for the belief that young persons should be brought to trial faster in several its decisions. These reasons include:

  • The ability of a young person to appreciate the connection between offending behaviour and consequences will weaken the longer the proceedings take to complete;
  • The perception of time for a young person may be distorted when compared to that of an adult; and
  • The need to sentence young persons while they remain in his/her formative years.

In the case of R. v. D.A., Justice P.T. O’Marra found that the total delay was 555 days less the defence delay of 28 days, resulting in a total delay of 527 days (17 months and 2 weeks). Justice O’Marra irrefutably stated there should be a reduced presumptive ceiling of 12 months for youth cases that are non-complex cases. Therefore, Justice O’Marra held that the delay in this non-complex case was not reasonable, was well over the “youth presumptive ceiling of twelve months” and accordingly the application was allowed and the proceedings were stayed.

If you are a youth that has been charged with a crime, or are the parent of a young person that has been charged with a crime, please contact the experienced criminal lawyers at Affleck & Barrison LLP 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.

Police Warn that Airbnb Rentals are Being Used for Human Trafficking

Written on Behalf of Affleck & Barrison LLP

Airbnb has become an immensely popular avenue used by individuals to list their homes and apartments for others to use when vacationing. Nevertheless, Toronto police have found an increase in pimps using Airbnb rentals in recent years. Human traffickers may choose to use Airbnb rentals instead of motels due to the greater likelihood for anonymity. Detective Sergeant Nunzio Tramontozzi has stated:

There has to be more due diligence on the part of the … people that are renting out their properties. We have a good relationship with Airbnb. We have brought our concerns to them, and they’re working with us to try and rid pimps of using their properties in Toronto.

RECENT CASE OF ALLEGED HUMAN TRAFFICKING

In mid-February, Toronto police arrested two men who are alleged to have forced a 19-year-old woman into the sex trade for more than a month, running most of their business at various Airbnb properties in the Greater Toronto Area. The men are facing 58 charges, including human trafficking charges. Police allege that the men took the woman’s identification and forced her to turn over all the money she earned to them. When the woman got into an argument with the two men and told them she no longer wanted to work as an escort, one of the men pointed a firearm at her face. A shot was fired and the woman was shot in the buttocks area. The men then transported her to several addresses in the GTA. The woman finally escaped and sought medical attention at a hospital in Brampton.

WHAT IS HUMAN TRAFFICKING?

Human trafficking involves the exploitation for profit of a person through force, fraud, or coercion. Victims are mostly women and children who are forced to provide their labour or sexual services. Exploitation often occurs through intimidation, force, psychological manipulation, emotional abuse, lies, addiction, sexual assault, isolation, taking control of their ID and money, and threats of violence to themselves or their families.

Ontario is a major centre for human trafficking in Canada, with approximately two-thirds of reported cases arising in Ontario. Girls as young as 13 are being recruited by pimps into a world of unpaid sex work, often recruited on social media or at public places like shopping malls and playgrounds. The relationship usually begins as a romantic one and then the pimps ask the girls to perform sexual services on clients as a favour and with the promise of financial reward. Over time, the pimps threaten violence, take away their phones and ID and offer the girls hard drugs.

Human trafficking is an offence found in the Criminal Code of Canada (“CC”) and the Immigration and Refugee Protection Act.

The CC includes four indictable offences to address human trafficking, including:

  • Trafficking in persons (section 279.01);
  • Trafficking of a person under the age of eighteen years (section 279.011);
  • Receiving financial or material benefit knowing it results from the commission of an offence under sections 279.01 and 279.011 (section 279.02); and
  • Withholding or destroying documents (section 279.03).

There are many other offences contained in the CC that also apply to human trafficking cases including kidnapping, forcible confinement, uttering threats, extortion, assault, sexual assault, prostitution related offences and criminal organization offences.

The Immigration and Refugee Protection Act contains a provision that prohibits the bringing into Canada of persons by means of abduction, fraud, deception or use of threat of force or coercion. Section 118 of this Act includes this provision with the accused facing a maximum penalty of a fine up to $1 million and/or up to life imprisonment.

If you have been charged with human trafficking 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.

Nova Scotia’s Top Court Orders New Trial for Taxi Driver Acquitted of Sexual Assault

Written on Behalf of Affleck & Barrison LLP

Nova Scotia’s Court of Appeal has ordered a new trial for a taxi driver who was acquitted of sexually assaulting an intoxicated female passenger because he could not determine whether the victim consented before she passed out.

WHAT HAPPENED?

On May 22, 2015, police found taxi driver, Bassam Al-Rawi, in a parked cab in Halifax’s south end. An unconscious female was found in the back seat with her legs propped up on the front seats, naked from the waist down with her breasts exposed. Al-Rawi was discovered leaning between the female’s open legs with his zipper undone and the back of his pants partly down. Al-Rawi was also found to be hiding a pair of the female’s urine-soaked pants and underwear.

Police woke the female complainant, who could only tell them her name, but not why she was there or what had happened.

Al-Rawi was charged with sexual assault (section 271 of the Criminal Code of Canada). He was tried before Judge Gregory E. Lenehan on March 1, 2017.

During the trial, a forensic alcohol specialist testified that the female was extremely intoxicated after drinking 5 beers, two tequila shots and one vodka-cranberry drink. The expert testified that she was drunk enough to forget events and lose track of her surroundings. It was determined that the woman’s blood-alcohol level was three times the legal limit.

Judge Gregory Lenehan set out the requirements for finding Al-Rawi guilty of sexual assault. He stated:

In order for Mr. Al-Rawi to be convicted of the offence that’s before the court, the Crown have to establish beyond a reasonable doubt that Mr. Al-Rawi touched (the complainant), that it was in such a way it violated her sexual integrity and that it was not done with her consent. In other words, it was done without her consent.

At trial, Judge Lenehan found it reasonable to conclude that Al-Rawi was engaging in or about to engage in sexual activity, but he acquitted Al-Rawi on the basis that the Crown had produced “no evidence” of lack of consent or lack of capacity to consent when Al-Rawi was touching the complainant. Judge Lenehan could not determine when the female had lost the capacity to communicate. He wrote that “[c]learly, a drunk can consent.” Judge Lenehan ruled that “[a] lack of memory does not equate to a lack of consent.”

THE DECISION ON APPEAL

The Crown prosecutor appealed the trial decision to a higher court on the basis of several legal errors made by the Judge at trial and requested an order for a new trial.

In the unanimous decision, the appeal court agreed that Judge Lenehan had made several errors in law. The appeal was allowed and a new trial was ordered.

Although the Court of Appeal did not find that Judge Lenehan had erred in law by stating that “a drunk can consent”, his application of the legal test for a person’s capacity to consent to sexual activity was a legal error. The trial judge held that the Crown had not proven incapacity beyond a reasonable doubt because it was unknown the “moment the complainant lost consciousness”. Thus, Judge Lenehan implied that prior to becoming unconscious the complainant would have had the capacity to consent. The Court of Appeal held that the trial judge erred in law by equating incapacity solely with unconsciousness.

The Court of Appeal also found that Judge Lenehan had erred in discounting the extensive circumstantial evidence that would have allowed him to infer that the complainant had not voluntarily agreed to engage in sexual activity, or that she lacked the capacity to do so. Some of the circumstantial evidence noted by the Court of Appeal included:

  • the complainant was unconscious when found by police;
  • Al-Rawi was trying to hide the urine-soaked pants and underwear from the police;
  • the location of the cab was not near the complainant’s home or on the route to the complainant’s home;
  • the complainant had no memory of her time in the cab;
  • the complainant’s blood alcohol level was between 223 and 244 mg/100mL; and
  • the complainant had to be shaken awake by police in the cab and woke up confused and upset.

Justice Duncan Beveridge wrote:

…there was ample circumstantial evidence that would permit a trier of fact to infer that the complainant did not consent or lacked the capacity to do so.

THE CAPACITY TO CONSENT

The trial judge or jury must determine if it has been established beyond a reasonable doubt that the complainant did not consent, or lacked the capacity to consent. In the Court of Appeal decision in this matter, Justice Beveridge set out the test for determining whether a complainant has the requisite capacity to consent.

In order to prove that the complainant did not have the required capacity to consent, the Crown must establish beyond a reasonable doubt that the complainant did not have an operating mind capable of:

  • appreciating the nature and quality of the sexual activity; or
  • knowing the identity of the person or persons wishing to engage in the sexual activity; or
  • understanding he/she could agree or decline to engage in, or to continue, the sexual activity.

In cases where drugs or alcohol are involved and the complainant has little or no memory of the event, difficulties arise in determining whether the complainant had the capacity to consent. Absent direct evidence from the complainant that he/she did not consent, the judge or jury must rely on circumstantial evidence to determine the absence of consent.

WHAT HAPPENS NEXT?

A new trial was ordered by the Court of Appeal. The date for the new trial has not been set. 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.

Acquittal Upheld for Ontario Teacher Who Secretly Videotaped Female Students

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal upheld a trial court’s decision to acquit a teacher who used a camera pen to video record the chest and cleavage of his female students. The top court in Ontario found that although the recording had been done for sexual purposes and was therefore inappropriate, the students had no reasonable expectation of privacy.

WHAT HAPPENED?

High school teacher, Ryan Jarvis, used a camera pen to video record the chest and cleavage of female students and one female teacher. The secret recordings were made in various locations in and around the school and involved 27 female students aged 14 to 18. Jarvis was observed by the principal of the school talking to a female student while holding a pen with a flashing red light at its top. The principal seized the pen and sent it to the police. The police found several recordings of female students focused on their breasts stored on the pen.

Jarvis was charged with voyeurism under section 162(1)(c) of the Criminal Code of Canada (“CC”).

In November 2015, Superior Court Justice Andrew Goodman found Jarvis not guilty of that offence. Justice Goodman held that Jarvis’ behaviour had been “morally repugnant and professionally objectionable”, but he did not find that the videos were sexually motivated.

The Crown prosecutor appealed this ruling and argued that Jarvis’ behaviour was sexually motivated since the subjects were all females and the camera was deliberately focused on their breasts.

The Court of Appeal was unanimous in concluding that the recording was both “surreptitious” and “done for a sexual purpose”. However, the majority of the Court found that the recording was made under circumstances that did not give rise to a reasonable expectation of privacy and therefore upheld Jarvis’ acquittal at trial.

The majority of the Court stated “that we live in an open society where visual interaction is part of everyday life and is valued” and that students know they can be observed in places where they gather.

If a person is in a public place, fully clothed and not engaged in toileting or sexual activity, they will normally not be in circumstances that give rise to a reasonable expectation of privacy.

WHAT IS VOYEURISM?

The criminal offence of voyeurism was added to the CC in 2005 to address public concerns that technology could be used to easily spy on individuals for sexual purposes.

According to section 162 of the CC, the offence of voyeurism can be committed in two ways, either through observation or by visual recording.

There are two separate conditions that must exist in order to be convicted of the offence of voyeurism:

  • the “surreptitious” nature of the observation/recording; and
  • the reasonable expectation of privacy.

The secret observation or recording must capture the image of a person’s genitals and/or breasts or sexual activity, or the observation/recording must occur for a sexual purpose.

It is also a crime to print, copy, publish, distribute, circulate, sell, advertise or make available the recording or image that was secretly obtained.

A secret or “surreptitious” recording has been interpreted by the courts using its ordinary dictionary meaning.   Some examples of surreptitious recordings that have been prosecuted as voyeurism include:

  • Video images captured by a camera concealed in a stepdaughter’s bedroom;
  • Video recording of teenage girl in a hotel shower by a camera concealed in a shaving bag;
  • Video images captured by a camera hidden in a wastebasket in an office washroom; and,
  • Video images of a man at a urinal in an office washroom taken through a cubicle.

Voyeurism is considered a hybrid offence. If the Crown proceeds by way of indictment (most serious), the maximum sentence is five years imprisonment. If the Crown proceeds by summary conviction, the maximum sentence is six months imprisonment.

A person convicted of voyeurism will be placed on Canada’s sexual offender registry for at least 10 years. A person convicted of multiple counts of voyeurism will placed on the registry for life.

If you are facing voyeurism charges, or charges related to any other sexual offences, or have any 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.

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.

Changes Coming to Sexual Assault Provisions in the Criminal Code

Written on Behalf of Affleck & Barrison LLP

We have blogged extensively about sexual assault, as public debate about this offence continues to rage in light of multiple newsworthy events in recent years, and as the law evolves in recognition of changing norms.

Earlier this week, Canada’s Justice Minister introduced Bill C-51, which seeks to remove 20 criminal offences that are currently outdated or have been invalidated by court decisions, and clarify other exisitng provisions, including sexual assault provisions. The move is the Liberal government’s efforts to clean up the Criminal Code and other laws to accurately reflect changes in our understanding of critical issues.

Among the expected changes is an amendment that will explicitly state that a sexual assault complainant cannot consent to sex if they are unconscious, and that sexts or photos or videos cannot be used to discredit a complainant.

What Does This Mean?

Consent

The amended sexual assault provisions will not define or answer the question “how intoxicated is ‘too intoxicated’ to consent to sex”- that determination will remain in the hands of judges who will continue to make decisions on a case by case basis.

Currently, case law states that consent requires the ongoing, conscious agreement of both parties engaging in sexual activity while that activity is taking place. This should be clear, but unfortunately, it is not always, and consent or the credibility of one or both of the parties becomes the primary issue in sexual assault proceedings.

Rape Shield Provisions

Additionally, under current rape shield provisions, a complainant’s private medical records are not admissible at trial, unless the accused can establish that the records are critical to disproving the allegations, or vital to the accused’s constitutional right to a fair trial. However, the medical records cannot be used to support an accused’s claim that the complainant is somehow blameworthy in the alleged assault, more likely to have consented to sexual activity, or less credible.

The proposed changes would add emails, texts, other communications, as well as other personal records (e.g.: diaries, counseling records) to the list of records that are inadmissible under rape shield provisions.

The proposed changes would also clarify that sexting as well as emails, pictures, or videos with sexual content sent before or after an alleged assault could not be used against a complainant, and would also be subject to rape shield provisions.

Legal Counsel for Sexual Assault Complainants

The Bill also provides that sexual assault complainants have a right to their own legal counsel where rape shield questions are at issue. A judge would have to inform the complainant of that right and be required to consider their objections to having their private records and communications heard in court.

“Mistaken Belief”

The proposed changes would also codify existing restrictions on when an accused can use the defence of an “honest, but mistaken belief” that the complainant consented to sex. For instance, it is not legally possible to claim that the complainant’s failure to resist or protest meant that there was consent. Similarly, an accused cannot claim ignorance of the law or misunderstanding of what consent entails.

We will continue to follow the progression of this Bill and will blog about updates as they become available. In the meantime, if you have been accused of sexual assault or any related charges, contact the Oshawa criminal defence lawyers at Affleck & Barrison LLP online or at 905 404 1947. We offer 24-hour phone services and a free confidential consultation and we are available when you need us most.

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Ontario Judges Must Undergo Mandatory Training on Sexual Assault Laws

Written on Behalf of Affleck & Barrison LLP

The issue of sexual assault has been making headlines in recent months, with several judges across the country coming under fire for controversial comments made during sexual assault trials, or verdicts issued in those trials.

Recently, Ontario’s Attorney General announced that any new judges called to the bench will have to undergo additional training, including training on sexual assault laws. The Attorney General has credited Lise Maissonneuve, Ontario’s Chief Justice, for taking the first step in this new initiative.

Sexual Assault Laws Training for Incoming Ontario Judges

The Attorney General’s announcement comes in the wake of mounting pressure from both victims’ groups and Ontario Members of Parliament after controversial comments made by various judges. Recently, a judge in Alberta asked a woman at the centre of a sexual assault trail why she had not kept her “knees together” to prevent the attack. Another judge in Nova Scotia acquitted a taxi driver who was accused of sexually assaulting a passenger, after the judge ruled that it was “possible” the woman, who was severely intoxicated at the time of the assault, had consented.

Some critics have noted that the new initiative, which involves an education plan, only encourages judges to attend criminal law seminars that include an option of sexual assault training, but does not mandate the sexual assault component of the training. The Attorney General has noted that the government could not introduce any mandatory legislation out of respect for judicial independence, but that the importance of the training in sexual assault law specifically has been emphasized.  The new training will include “legal and social context issues (around sexual assault)”, which will be integrated into a number of programs.

Possible Training for Incoming Federal Judges

At the federal level, Members of Parliament from across all parties have also pledged their support for a bill introduced by Rona Ambrose which would likewise require new federally appointed judges to take part in training on sexual assault issues.

We will continue to monitor developments in this area and report on any updates as they become available. In the interim, If you are facing sexual assault or related charges, contact the skilled defense lawyers at Affleck & Barrison online or at 905 404 1947. We offer 24-hour phone services and a free confidential consultation and our office is within steps of the Durham Consolidated Courthouse.  We are available when you need us most.

Trial Judges “Unusual” Approach in Sexual Assault Case Questioned on Appeal

Written on Behalf of Affleck & Barrison LLP

We’ve previously blogged about an unusual restitution order made by a Toronto judge in a high profile sexual assault case involving two York University students. An appeal court recently considered the conviction and sentencing stemming from those sexual assault charges, and the original trial judge’s order was heavily criticized.

A Discussion on How the Criminal Law System Treats Sexual Assault

In 2016, Mustafa Ururyar was found guilty of sexually assaulting a fellow student at York University. Mr. Ururyar was sentenced to 18 months in prison, three years of probation and ordered to pay $8,000 in restitution to the victim of the assault to cover her legal bills (an unprecedented order). Mr. Ururyar appealed the conviction and sentencing.

The central question on appeal was whether the Ontario Court Justice Marvin Zuker’s decisions to convict Mr. Ururyar, and sentence him to 18 months in jail, as well as his comments made about the accused during trial, showed bias or the appearance of bias.

Mr. Ururyar’s defense lawyer argued that Justice Zuker engaged in a “scathing and personal condemnation” of Mr. Ururyar and distorted the evidence. Justice Zuker’s judgment shows bias against Mr. Ururyar, is hard to understand, illogical, and fails to properly analyze the evidence.

The appeal hearing devoted time to discuss what the role of a judge ought to be during a time of national debate about how the criminal justice system has been prosecuting sexual assault cases recently.

The Crown prosecutor argued that Justice Zuker’s commentary on the meaning of informed consent, victim-blaming, rape myths and trauma were a result of the current social context, and public concerns in the wake of the Jian Ghomeshi scandal, as well as the recent sexual assault hearing in Alberta in which Justice Robin Camp asked the complainant why she couldn’t keep her “knees together”. The prosecutor noted that such recent decisions have caused the public to lose confidence in the administration of justice.

However, Justice Dambrot disagreed with Justice Zuker’s approach, stating that

Of course it is important to dispel myths, but you do that by deciding cases correctly and appropriately not by using your podium of reasons for judgment as a place for your own manifesto…It is dangerous thing. Judges judge. They should do it right. They should do it according to the principles that apply. And they should do it fairly in accordance with their oath. They should not apply myths and if counsel suggests a myth then (they) absolutely should say ‘what are you talking about?’

Superior Court Justice Michael Dambrot called Justice Zuker’s approach “unusual”, and, over the course of the appeal hearing accused him of “showing off”, and stated that Justice Zuker’s reasoning appeared to be “unmoored”. He took issue with the “sarcastic tone” employed by Justice Zuker in the decision and found it “troublesome” that Justice Zuker had spent a significant amount of time commenting on sexual assault myths and stereotypes rather than making clear, factual findings about the facts at hand.

Justice Dambrot acknowledged that the procecutor’s explanation of Justice Zuker’s reasoning was persuasive; however, Justice Zuker himself had failed to explain why he had made his decisions, and did not clearly connect the rape myths he wanted to dispel with the evidence in this case.

If the conviction is ultimately overturned, and a new trial is ordered, another key issue in the appeal (whether it was appropriate for Justice Zuker to order Mr. Ururyar to pay the victim $8,000 in legal fees) might not be decided.

Justice Dambrot’s decision is expected on June 8. We will continue to follow developments in this matter and will blog about updates as information becomes available.

If you are facing sexual assault or related 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.