Sexual Offences

Supreme Court Rules that Offender Has the Right to Lesser of Two Penalties Available at the Time of Commission of the Offence or Sentencing

Written on Behalf of Affleck & Barrison LLP

In a recent ruling by the Supreme Court of Canada, the Court determined that a convicted individual is entitled to the lesser of two punishments, either the one in effect when the offence took place or the one in effect at the time of sentencing.  This decision overturned the Quebec court’s decision that a convicted offender has the right to the least harsh punishment in effect from the time of the offence until the sentencing.

WHAT HAPPENED?

In the case of R. v. Poulin, the accused was convicted in 2016 of sexual assault and acts of gross indecency from incidents occurring between 1979 to 1987.  Poulin was found guilty of offences against a child between the ages of seven and fifteen.  Crown prosecutors asked for a prison term of 3 ½ to 5 years.  Poulin’s defence team requested a conditional sentence given Poulin’s advanced age (82 at the time) and his poor health.  A Quebec court sentenced Poulin to a conditional sentence of two years less a day, to be served in the community, for the charges of gross indecency.

The Crown was unsuccessful in its appeal to the Quebec Court of Appeal and the decision was appealed to the Supreme Court of Canada.

At issue in this appeal was the interpretation of section 11(i) of the Charter of Rights and Freedoms, which reads as follows:

11.  Any person charged with an offence has the right:

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

The question is whether this provision signifies a comparison of the lesser sentence at two relevant times (i.e. the commission of the offence and the sentencing of the offence) or whether the provision signifies a consideration of variations between the time of the commission of the offence and the sentence.

The judges of the Supreme Court split their decision 4-3 and concluded that Poulin was not eligible for the conditional sentence as it did not exist either at the time of the offence or at the time of his sentencing (it only existed temporarily between these two points in time).

Justice Shellah Martin, writing on behalf of the majority of the court, stated:

The legal rights reflected in our Charter represent the core tenents of fairness in our criminal justice system.  The right to comb the past for the most favourable punishment does not belong among these rights. 

The majority of the court found that the language of section 11(i) of the Charter suggested the application of a “binary approach”, as opposed to a “global approach”.  The binary approach would not permit Poulin to be granted a conditional sentence as it was neither in force at the time of commission or at the time of his sentence. The global approach would permit Poulin to be granted a conditional sentence because it was in force for a period of time between the commission of the crimes and his sentence. 

HOW ARE SENTENCES IMPOSED?

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

The Court will consider both aggravating and mitigating factors relating to both the offender and the offence itself. 

Aggravating factors are those that the court relies upon which may increase the sentence, which may include:

  • Your criminal record;
  • The facts of the offence (i.e. your role in the crime, whether you have committed the crime on multiple occasions, whether a weapon was used and how, whether property was damaged or money was taken);
  • The impact of the crime on the victims (i.e. whether the crime involved a person under the age of 18 years, whether the victim’s health was seriously harmed, whether the victim received permanent physical or psychological injury, whether the victim experienced financial harm due to the crime); and
  • Your association with other criminal organizations (i.e. the crime was committed for the benefit of a criminal organization or committed as an act of terrorism).

Mitigating factors are those that the court relies upon to lighten the sentence, which may include:

  • The absence of a criminal record;
  • The facts of your offence (i.e. your role in the crime, co-operation when you were arrested, addiction or mental health issues);
  • How you’ve behaved since the crime (i.e. whether you have taken steps to address addiction or mental health issues, whether you have followed the release order or volunteered or given money to charity to repair the damage you have caused); and
  • Your personal circumstances (i.e. age, health, cultural background, education, work history and potential work opportunities, children and dependents).

The Court will take all of these factors into account when determining an appropriate sentence in an effort to maintain a just and safe society for all Canadians.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  We are available when you need us most.

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.

‘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.

 

 

 

 

 

Sextortion Crimes in Canada

Written on Behalf of Affleck & Barrison LLP

Sextortion in Canada is on the rise. The RCMP have been investigating 24 incidents of sextortion since May, 2018.

Sextortion is a form of exploitation that involves the threat of releasing shared intimate videos, images, or explicit messages online.

Experts have found a spike in reported online sextortion cases involving teenage boys. According to the Canadian Centre for Child Protection (a national charity dedicated to the personal safety and protection of children), 65 boys reported incidents to Cybertip.ca in 2015-2016, an 89% increase from the previous two-year period. Reports made by girls in 2015-2016 increased by 66% from the previous two-year period.

Boys, usually between the ages of 13 to 15, are targeted through a social media website by strangers who show a romantic interest. The perpetrator then sends a pre-recorded video of a young girl and solicits the teen boy to reciprocate by sending sexually explicit images or videos of themselves. When the perpetrator has the explicit material, the boy is led to believe that the images or video will not be shared with the public as long as cash is delivered.

RECENT ARREST FOR SEXTORTION

In Manitoba, a 22-year-old woman met a 25-year-old man on Tinder (no names have been disclosed due to privacy concerns). The two began chatting online, and then went on a couple of dates over a two week period of time. The man received “sensitive images” of the woman that were consensual.

The woman reported to police that there were occasions when the man would rip off her clothes and take pictures of her, without her consent.

The woman later found videos that the man took without her consent of occasions where he was “taking advantage of her in his truck”.

The woman refused to see the man again, at which point he began to threaten her. The man claimed that if she did not come over, he would send the videos and photographs to her work.

In a text message, the man wrote “It’s called f-ing leverage. It’s called blackmail. … If you are not here by 9:30 by yourself then all the videos go out. There is no if’s and or butts.”

The woman reported the blackmail to the police, and the RCMP proceeded to obtain a search warrant and attended at the man’s home on March 20, 2018. At that time, they proceeded to seize all electronics (laptop, Xbox one, and two iPhones), along with 15 other items.

The man has been charged with extortion, voyeurism, and indecent phone calls. He has also been charged with “sextortion”, a newly added crime in the Criminal Code (section 162.1), referencing someone who distributes an intimate image of someone without that person’s consent.

The man is awaiting his court date, but a protection order has been grant requiring the man to stay at least 100 metres away from the woman until 2020.

RCMP WARNINGS

RCMP are warning the public of various types of sextortion scenarios that they have been investigating.

One scenario occurs where a victim receives unsolicited friend requests on social media or a pornographic website and an online relationship develops. The relationship builds and the victim is encouraged and coerced to use his/her computer’s camera to perform a sexual act on camera. The victim later learns that this event was recorded and is threatened to make a payment or the video will be released.

Another scheme occurs when a victim receives an email advising that someone has infiltrated their computer and knows that they have been visiting a pornographic website. The hacker provides the victim’s password in the email and reveals that they have a sexually explicit recording of the victim. Then a demand for payment is made, usually in the form of Bitcoins.

In all of these scenarios, the victims are threatened with the release of intimate videos or images if a payment, in the form of a money transfer or Bitcoin, is not received.

TIPS TO PREVENT SEXTORTION

The following are some recommendations to protect yourself from becoming a victim of sextortion:

  1. Do not accept friend requests from unknown individuals on social media;
  2. Do not talk to people online who you do not know;
  3. Do not perform an illicit act over the internet;
  4. Disable your webcam or any other camera connected to the internet when you are not using it;
  5. Do not open attachments from individuals you do not know;
  6. Do not share explicit videos and/or photographs with anyone;
  7. Parents should review and approve all applications downloaded to their children’s electronic devices and regularly monitor the content of all applications and social media websites used by their children;
  8. Parents should discuss internet safety with their children and reinforce the need to tell an adult if anyone threatens them or asks for sexual acts or sexually explicit images;
  9. If you have been targeted, stop communicating with the individual, save all correspondence and immediately report the incident to the police.

We will continue to follow any developments that take place in the latest sextortion case in Manitoba as it makes it way through the courts and will report on them in this blog.

In the meantime, if you are facing sextortion charges or charges related to any other sexual offence, 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.

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

Written on Behalf of Affleck & Barrison LLP

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

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

HISTORY OF THE DEFENCE OF EXTREME INTOXICATION

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

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

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

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

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

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

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

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

JUSTICE SPIES’ DECISION

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

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

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

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

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

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

McCaw’s trial begins on September 12. We will provide updates in this blog as new developments regarding this case become available.

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

 

Judge Strikes Down Mandatory Minimum Sentences for Sex Crimes

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

REASONS FOR SENTENCE

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

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

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

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

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

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

Justice McKinnon stated in his reasons for sentence:

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

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

WHAT ARE MANDATORY MINIMUM SENTENCES?

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

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

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

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

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

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

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

Sexual Offender Sentenced to 15 Years After Putting Woman in Coma

Written on Behalf of Affleck & Barrison LLP

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

The victim cannot be identified under court order.

WHAT HAPPENED?

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

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

WHAT HAPPENED DURING SENTENCING?

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

The Crown prosecutor requested 20 years in prison for Bird.

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

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

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

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

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

WHAT IS A GLADUE REPORT?

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

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

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

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

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

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