Sexual Offences

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.

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.

Canada’s Prostitution Laws are Under Review in London, Ontario

Written on Behalf of Affleck & Barrison LLP

A court hearing is underway in London, Ontario regarding the constitutionality of Canada’s prostitution laws.

Hamad Anwar and Tiffany Harvey face more than two dozen sex-related charges each, including profiting from the sex trade, advertising sexual services and forcing someone into the sex trade. In November 2015, the two accused were charged after London police raided the escort agency where they worked, Fantasy World Escorts, following a seven month investigation.

THE PROSECUTION & DEFENCE POSITIONS

The Crown prosecution takes the position that the new prostitution laws protect women by decriminalizing the sale of sex, but penalize the purchase of it and consequently reduce the demand.

The accuseds’ lawyers are arguing that some of the charges against their clients violate sex workers’ constitutional right to security of the person. They take the position that the specific charges of procuring, advertising and materially benefiting from the sexual services of someone else should be struck down.

The defence called academic, Chris Atchison, as their first expert witness. He gave evidence that the new prostitution laws make it less safe for people in the sex trade to do their jobs. Atchison stated in court, “I believe the application of these laws makes things worse for the most vulnerable people on the street but also for others in the sex industry.”

BILL C-36, THE PROTECTION OF COMMUNITIES AND EXPLOITED PERSONS ACT

Bill C-36 was the Conservative government’s response to the prostitution laws that were struck down in December 2013 by the Supreme Court of Canada in the decision of Canada (Attorney General) v. Bedford.

The Supreme Court, in a unanimous decision, held that the laws prohibiting bawdy houses, living off the benefits of prostitution and communicating in public with clients infringed the rights of prostitutes by depriving them of security of the person. The Supreme Court gave the government one year to draft new laws that would not infringe on the constitutional rights of prostitutes.

Prostitution is legal in Canada, however, under Bill C-36 several activities surrounding it are criminalized. Bill C-36 came into force on December 6, 2014, encompassing prostitution and human trafficking-related amendments. The new law criminalizes the advertising and buying of sex, but decriminalizes the sale of sex.

The Bill specifically targets the buyers of sex, with penalties including jail time (up to five years in some cases) and minimum cash fines that increase after a first offence.

Authorities anticipated that Bill C-36 would be challenged in court at some point. Advocates who support the new laws appreciate that it punishes those individuals who buy sex, not those who sell it. On the other hand, opponents of the new law feel that the legislation forces sex workers underground due to fear of arrest and criminalizes advertising sex. The concern is that sex workers and their clients seek out more isolated and dangerous locations. This legislation also decreases the ability for those in the sex trade to screen their clients prior to meeting, which increases the risk of violence.

We will continue to provide updates on this blog regarding any developments of this case as it continues to be heard before the court.

In the meantime, if you have been charged with a sexual 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. For your convenience, we offer 24-hour phone services. We are available when you need us most.