appeal

Drug Conviction Overturned on Appeal as Police Delayed Access to Lawyer

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has overturned Daniel Marlon Noel’s conviction for drug offences.  The court found that Durham Regional Police breached his Charter rights by not allowing him to promptly speak to a lawyer on the night of his arrest.

WHAT HAPPENED?

On December 21, 2015 at 10:28 p.m., Durham Regional Police entered a residence where Daniel Marlon Noel (“Noel”), his partner and his brother were living pursuant to a search warrant.  All three individuals were suspected of operating a small-scale cocaine trafficking operation, which was under investigation by Durham Regional Police.  That evening, Noel was arrested at gunpoint by Officer Aiello in a bedroom containing his belongings and identification.  Officer Aiello did not advise Noel of his right to counsel.

Noel was taken to a central location in the house and within five minutes of the police’s entry into the residence Officer Gill read him his rights to counsel.  Noel asked to speak to a lawyer, however, no efforts were made to allow for his right to counsel.

The police search of Noel’s bedroom recovered $5,670 Canadian, $71 U.S., 73 grams of cocaine, 55 grams of marijuana and a digital scale.

Noel was transported to the police station at 11:04 p.m. and arrived at the station at 11:10 p.m.  Officer Gill testified that, while being led to the transport vehicle, Noel admitted ownership of the drugs and claimed that his brother was not involved. 

At 12:48 p.m., Officer Capener placed two calls to duty counsel for Noel and his partner, Stacey Long, and left messages requesting a return phone call. 

At 1:25 a.m., Noel learned that his brother had received a call from duty counsel.  Officer Westcott left another message for duty counsel to call Noel.

At his trial, Noel alleged the following Charter breaches:

  • That the entry to his home violated section 8 (right to be secure against unreasonable search and seizure);
  • That his arrest violated section 9 (right not to be arbitrarily detained); and
  • That his right to counsel was breached which violated section 10(b) (right to retain counsel without delay).

The trial judge rejected all arguments regarding Charter violations, except that Noel’s right to counsel without delay was violated.  However, Noel was denied the exclusionary remedy that he sought under the Charter, the evidence was admitted and Noel was convicted of the drug offences.

THE APPEAL

Noel appealed his conviction and argued on appeal that the trial judge erred in failing to find breaches of his Charter rights. 

The appeal court concluded that there was a violation of section 10(b) of the Charter and found that the police had a “cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay”.  Furthermore, the police could not provide a reasonable explanation for the delay. 

The appeal court wrote:

Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide.  … [Noel] asked to speak to counsel promptly but that right was denied. … We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel’s right to counsel without delay.

The appeal court allowed Noel’s appeal, set aside his convictions and substituted a verdict of acquittal. 

RIGHT TO COUNSEL

The right to counsel is one of the most important and recognized rights provided by the Canadian Charter of Rights and Freedoms.  Section 10(b) of the Charter provides:

10.       Everyone has the right on arrest or detention: 

b.         to retain and instruct counsel without delay and to be informed of that right.

The rights afforded under this section are designed to inform a detained individual of the scope of their situation and to ensure that legal advice is available. 

The right to counsel consists of an informational and an implementational component.  Thus, a detained individual must be informed of the right to counsel and this right must be understood by the individual (i.e. an interpreter may be required).  The implementational component involves the obligations and restrictions upon the police in conducting their investigation once the right to counsel has been asserted. 

The right to counsel must be provided without delay.  This is often interpreted to mean immediately in order to protect the detainee from the risk of self-incrimination 

Police must advise the detainee of his/her right to counsel and explain the existence and availability of legal aid and duty counsel if one cannot afford or cannot reach a lawyer.  Thus, the right to counsel also has a corresponding right to retain counsel of one’s choice. 

When a detainee has exercised his/her right to counsel, police must refrain from trying to elicit further evidence and refrain from questioning the individual until he/she has had an opportunity to speak with counsel. 

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 have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Supreme Court Rules that 18 Month Time Limits Also Apply to Youth Cases

Written on Behalf of Affleck & Barrison LLP

The highest court in Canada has ruled that the 18-month time limit required to bring an accused individual to justice, set out in the decision of R. v. Jordan, also applies to cases involving youth. 

According to Statistics Canada, there were 2,767 criminal cases that took longer than 12 months to complete in youth court in 2017-2018 (approximately 10% of all cases).  However, these numbers do not account for whether any of the delays were the result of actions on behalf of the defence.

WHAT HAPPENED?

In the case of R. v. K.J.M, a 15-year-old Alberta teen was charged with various offences arising out of fight that occurred during a house party in 2015.  K.J.M. was accused of stabbing a teen with a box cutter while intoxicated.  At his trial, K.J.M.  was found guilty of aggravated assault and possession of a weapon for a dangerous purpose almost 19 months after charges were first laid against him.  By the time his trial concluded in November 2016, K.J.M was nearly 17-years-old. 

Although the trial judge found that the total delay exceeded the 18-month ceiling, K.J.M.’s Charter application was dismissed as “it was not the clearest of cases where a stay should be granted”.  This decision was appealed to the Court of Appeal where it was again dismissed by the court and each of the three judges took a different approach in their reasons as to whether the 18-month ceiling applies to youth cases.

WHAT IS THE PRESUMPTIVE 18-MONTH CEILING?

We have previously blogged about the 2016 R. v. Jordan decision wherein the Supreme Court ruled that unreasonable delays in criminal cases violate an individual’s guaranteed rights under the Charter of Rights and Freedoms.

The Supreme Court specifically spelled out the rule that court proceedings could not exceed 18 months for provincial court cases and 30 months for more serious cases heard before the Superior Court.

However, the Jordan decision did not specifically address whether these timelines apply to individuals under the age of 18 who fall under the youth court system. 

THE SUPREME COURT RULING IN R. v. K.J.M.

In a 5-4 decision, the majority of the Supreme Court concluded that there is no evidence that the youth criminal justice system is suffering from the same delays as the adult system that would justify setting a lower ceiling for youth cases. 

Justice Michael Moldaver, on behalf of the majority, wrote:

Unless and until it can be shown that Jordan is failing to adequately serve Canada’s youth and society’s broader interest in seeing youth matters tried expeditiously, there is in my view no need to consider, much less implement, a lower constitutional ceiling for youth matters.

The majority of judges of the Supreme Court found that although K.J.M.’s trial exceeded the 18-month timeline, some of the delays were caused by the defence and therefore dismissed his appeal.

Three judges of the Supreme Court offered a dissenting opinion and concluded that a 15-month time limit would be appropriate for cases of young offenders.  Writing on behalf of the dissenting judges, Justice Rosie Abella and Justice Russell Brown wrote:

Doing so gives effect to Parliament’s intention in enacting a separate youth criminal justice system, to Canada’s international commitments, to the recognition in pre-Jordan case law that youth proceedings must be expeditious, and to the consideration that led to setting the presumptive ceilings for adults in Jordan.  … Just as the court in Jordan determined the appropriate ceiling for adult proceedings, a separate analysis is required for youth proceedings.

Graham Johnson, K.J.M.’s lawyer, is of the opinion that timely trials profoundly impact young people and delays can impact the prospect of rehabilitation. Johnson argued that a 12-month limitation for youth court proceedings would be more appropriate.  Mr. Johnson told CBC News:

In Canada, children as young as 12 can be charged with a criminal offence, and if it takes 18 months to get the case to court and there’s a guilty verdict, you’re then punishing a 14-year-old for what the 12-year-old did.  And there’s a certain, in my view, injustice in that, given how quickly children develop, mature and can change their behaviour.

Mary Birdsell, executive director of the organization Justice For Children and Youth, who was an intervenor in this case and advocated for lower time limits for youth court proceedings was disappointed with the Supreme Court ruling.  Ms. Birdsell stated:

Speedy justice is really important for young people because their sense of time is different, because their development is ongoing, and because you want to capture the moments for addressing underlying consequences in meaningful ways.

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.

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.

Court of Appeal to Judge How to Weigh Systemic Racism When Sentencing Black Offenders

Written on Behalf of Affleck & Barrison LLP

Later this month, the Ontario Court of Appeal is scheduled to hear a case where the Crown prosecutor is challenging the “lenient” 15-month sentence given to a black Toronto man for carrying a loaded firearm.  Many are expecting that the judgment in this appeal will provide guidance to trial judges on how systemic and background factors are to be applied during the sentencing of black offenders, and potentially all other minorities, in Canada.

WHAT HAPPENED?

In 2014, the police were called regarding a home invasion in Scarborough.  At the scene, the police came upon four black males walking in the parking lot.  When an officer stopped the young men, Kevin Morris (“Morris”) ran.  After a chase, Morris was apprehended by police and his jacket, which he left in a stairwell during the chase, contained a loaded handgun. 

A jury found Morris guilty last September of possession of an unauthorized firearm, possession of a prohibited firearm with ammunition, and carrying a concealed weapon. 

Superior Court Justice Shaun Nakatsuru sentenced Kevin Morris (“Morris”), a 26-year-old first-time offender, to 15 months in custody due to the disadvantages and systemic black racism he faced growing up in Toronto. 

Justice Nakatsuru described the sentence as “lenient” and reasoned that this type of sentence was to address “one small step at a time, the problem of the disproportionate incarceration of black offenders”. Morris’ sentence was reduced to 1 year for various Charter breaches.

According to court documents, Morris was raised by a single mother in a neighbourhood that experienced violence and criminal activity.  Morris never graduated from high school and admitted that he felt unsafe travelling to work as he had to enter rivaling neighbourhoods.  He was diagnosed with PTSD and paranoia in 2013 after being stabbed for a third time. 

The Crown prosecutor had requested a four to four and a half year sentence for Morris arguing that illegal gun possession results in the “often immeasurable” human cost of gun crimes.

Morris’ defence lawyers requested a 12-month sentence and submitted an expert report outlining the impact of crime and criminal justice on black Canadians.  The report detailed how black Canadians experience obstacles in pursing educationa nd employment, and explained about discrimination in social services.

Morris’ lawyer, Faisal Mirza, stated:

It’s clear to everyone in the Toronto area that there are disproportionate numbers of young black men that are prosecuted and sentenced by judges based on pretty rudimentary information on who they are, where they came from, and why they got to the point of committing the crime they are being sentenced for.

Justice Nakatsuru wrote in his decision:

In our system, a sentence is not just about the crime.  It must also be about the offender.

As the legal system runs today, the courts are required to take into account the backgrounds of Indigenous offenders when sentencing, paying specific attention to systemic or historical factors such as residential schools and systemic racism.  A victory for Morris at his appeal may lead to a similar requirement requiring the courts to take into account the impact of race and culture on black offenders in Canada. 

INTERVENERS IN MORRIS’ APPEAL

At the Court of Appeal, there are 14 interveners that have been granted permission to provide joint submissions to the court on the subject of systemic racism, including human and civil rights activists, ethnic organizations and legal clinics.  Several interveners are asking the court to allow culture assessments to apply to all minority groups, not only black offenders.

Interveners in criminal proceedings must receive permission to provide submissions to the court and are typically only granted permission sparingly.  Chief Justice George Strathy wrote in his decision to allow interveners to weigh in on the appeal in the Morris case:

But the issues that arise in this appeal transcend the interests of the parties and are of significance to the administration of criminal justice.  The proposed interveners are well-recognized organizations with experience and expertise in the issues raised in this appeal.  They can offer perspectives that are different from those provided by the Crown and the respondent.

The Black Legal Action Centre and the Canadian Association of Black Lawyers are entering a joint submission at the appeal and on their behalf Johnathan Shime states:

This case represents an opportunity for the Ontario Court of Appeal to consider what role race and, more particularly, anti-black racism should play in sentencing of offenders. 

The appeal is scheduled for September 24, 2019 in Toronto.  We will report the results of this potentially ground breaking appeal decision in this blog when it becomes available.

In the meantime, if you have been charged with a crime or have questions regarding your legal rights, 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.

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.

Supreme Court Rules a Crucial Element of Child Luring Law is Unconstitutional

Written on Behalf of Affleck & Barrison LLP

Last month the highest court in Canada ruled that a provision in the law forbidding the luring of children over the internet is unconstitutional and ordered a new trial for alleged offender Douglas Morrison (“Morrison”).  This decision may result in a number of child luring convictions being overturned across Canada.

In this landmark decision regarding the validity of child luring laws in Canada, the Supreme Court of Canada struck down two parts of the child luring laws found under section 172.1 of the Criminal Code.  The decision in R. v. Morrison will affect those cases where police officers pretend to be minors in an effort to apprehend suspected online predators.

WHAT IS THE CHILD LURING LAW IN CANADA?

The offence of child luring in Canada can be found in section 172.1 of the Criminal Code.  Child luring is defined as using the internet to communicate with an individual who is, or who the perpetrator believes to be, under the age of 18 for the purposes of committing the offence of sexual exploitation, incest, child pornography or sexual assault. 

You may also be charged with child luring if you communicate with an individual you know, or believe to be, under the age of 16 for the purposes of committing the offence of sexual exploitation, invitation to sexual touching, indecent exposure to a person under the age of 16 or abduction of a person under 16 years old.

If the Crown chooses to proceed by indictment (more serious offences) and you are found guilty of child luring, you will face a minimum of one year in prison, up to a maximum of 14 years in prison.  If the Crown chooses to proceed summarily (less serious offences), you will face a minimum of 6 months in jail, up to a maximum of 2 years less a day.

WHAT HAPPENED IN R. v. MORRISON?

Morrison was charged with child luring under section 172.1 of the Criminal Code.  He posted an online ad on Craigslist pursuing sexual conversations and stating he was interested in younger girls.  His ad was entitled “Daddy looking for his little girl”. 

Over the course of two months, police posed as a 14 year old girl named “Mia”.  Morrison began a sexual discussion with Mia, requested that she touch herself sexually, suggested she watch pornography, asked her for photographs, and arranged to pick Mia up after school (the encounter never occurred).  Consequently, Morrison was charged with child luring. 

During his trial, Morrison argued that he believed he was speaking to an adult online who was role playing as a character of a 14 year old girl.  He maintained that the rules on Craigslist require that users are to be 18 years old or older.  He was convicted at trial and the conviction was upheld by the Ontario Court of Appeal.

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

On appeal to the Supreme Court of Canada, Morrison brought three Charter of Rights and Freedoms (“Charter”) challenges pertaining to section 172.1 of the Criminal Code. The Charter arguments before the court were the following:

  • Section 172.1(3) violated his right to be presumed innocent under section 11(d) of the Charter;
  • Section 172.1(4) contains presumptions (requiring a person to take reasonable steps to ascertain the age of the individual they are contacting and to ensure he/she is not underage) that were not in accordance with the principles of fundamental justice and violated section 7 of the Charter, which protects the right to life, liberty and security of a person; and
  • Section 172.1(2)(b) contains a mandatory minimum sentence of one year in prison which violated the guarantee against cruel and unusual punishment found in section 12 of the Charter.

The Supreme Court of Canada overturned Morrison’s conviction citing errors made by the trial judge.  The Court ruled unanimously that the government’s wording of the child luring law violates the presumption of innocence guaranteed by the Charter.  It is the role of the Crown to prove beyond a reasonable doubt that an accused genuinely believed he/she was communicating with an individual who was underage.

Justice Michael Moldaver, writing for the majority of the Court, stated:

In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage.  Nothing less will suffice.

The accused, in his/her defence, may prove that he/she took “reasonable” steps to determine if the alleged victim was underage.  If this cannot be shown, then the accused cannot argue that he/she believed the alleged victim was of legal age.

The Supreme Court was also asked to consider the appeal by the Crown that Morrison was not given the mandatory one-year minimum sentence.  The trial judge gave Morrison a four month sentence, and ruled that the one year mandatory minimum sentence found in the Criminal Code was unconstitutional as it violated the guarantees found in the Charter against cruel and unusual punishment. However, the majority of the justices did not rule on this issue.

Given the potential ramifications resulting from the Supreme Court of Canada’s decision in R. v. Morrison, we will continue to follow any developments in the news and the case law and will report any updates that become available in this blog.

In the meantime, if you are facing child luring charges or have any questions regarding your legal rights, please contact the knowledgeable criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service.  We are available when you need us most.

Court of Appeal Limits Solitary Confinement to 15 Days

Written on Behalf of Affleck & Barrison LLP

As we continue to blog about the ever changing laws regarding solitary confinement in Canada, the Ontario Court of Appeal has ruled that placing inmates in solitary confinement for more than 15 days constitutes cruel and unusual punishment. This is the first time a Canadian court has imposed a specific time limit on solitary confinement.

WHAT HAPPENED?

The Canadian Civil Liberties Association (“CCLA”) launched the challenge of solitary confinement four years ago.

A lower court in Ontario found that solitary confinement could cause serious psychological harm to inmates, but these impairments could be avoided if staff adhered to existing laws requiring close monitoring of prisoners’ health. Justice Marrocco of the Ontario Superior Court of Justice rejected the CCLA’s argument that solitary confinement constituted cruel and unusual punishment and was in violation of Section 12 of the Charter of Rights and Freedoms.

The CCLA appealed Justice Marrocco’s decision and the case was argued before the Ontario Court of Appeal. Justice Mary Lou Benotto, writing on behalf of the three-judge panel of the Ontario Court of Appeal, ruled that the Correctional Service’s use of prolonged administrative segregation could cause permanent harm that no level of medical monitoring could prevent.

Justice Benotto stated:

Legislative safeguards are inadequate to avoid the risk of harm. In my view, this outrages standards of decency and amounts to cruel and unusual treatment.

The Appeal Court did reject the CCLA’s position that solitary confinement should be banned entirely for inmates who are 18 to 21 years of age, those with mental illness, or those in segregation for their own protection.

THE IMPACT OF THE APPEAL COURT DECISION

Michael Rosenberg, co-counsel for the CCLA, stated:

With this decision, the Court of Appeal has brought to an end a sorry chapter in the administration of Canada’s prisons. This is a significant win for the CCLA and for the administration of justice more generally.

What is most unusual about this decision is that the Court of Appeal has applied a short timeline to institute action. The Appeal Court has ruled that the 15-day cap of solitary confinement is to take effect 15 days following the decision.

Noa Mendelsohn Aviv, equality director for the CCLA, stated:

Usually, courts give governments months or a year to fix problems before a declaration of invalidity becomes active. With this short timeline, the court is saying this is enough, this is intolerable, this cannot continue.

The Correctional Service of Canada is currently reviewing the Appeal Court’s ruling. Public Safety Minister Ralph Goodale has not yet commented on the latest decision regarding solitary confinement. A spokesperson for Goodale has advised that his office is also reviewing this recent decision.

FEDERAL INMATES WIN CLASS-ACTION LAWSUIT

Last week, federal inmates were successful in their class-action lawsuit against the Correctional Service of Canada. A judge found that the practice of isolating approximately 2000 seriously mentally ill inmates breached Sections 7 and 12 of the Charter. These sections protect against arbitrary state actions and cruel and unusual punishment.

Ontario Superior Court Justice Paul Perrell has ordered the federal government to pay $20 million for placing mentally ill inmates in solitary confinement for more than 30 days involuntarily and for those who spent more than 60 days in administrative segregation voluntarily.

Justice Perrell stated:

The placement of a seriously mentally ill inmate in administrative segregation goes beyond what is necessary to achieve the genuine and legitimate aim of securing the safety of the institution. It does not accord with public standards of decency or propriety in the treatment of a mentally ill inmate.

 The funds are to remedy to the harm caused to society which has suffered from the correctional service’s failure to comply with the charter and also its failure to comply with the spirit of the Corrections and Conditional Release Act and its purpose of rehabilitating mentally ill inmates to return to society rather than worsening their capacity to do so by the harm caused by prolonged solitary confinement.

It has not yet been determined how compensation will be distributed amongst individual members of the class. Submissions to the court regarding this issue will be heard by the court at a later date where individual members of the class can put forth personal medical and prison records to make a case for damages. Those inmates who spent less than 30 days in administrative segregation will also be able to put forward claims on an individual basis.

In the meantime, Justice Perrell has ordered that $20-million be put towards mental-health resources and other programming at federal prisons, less legal fees. Therefore, the total amount for damages will be more greater than $20-million.

We will continue to follow developments in the matter of solitary confinement in Canada and blog about updates as they become available.

The Oshawa criminal defence lawyers at Affleck & Barrison LLP and its predecessors have been protecting client rights since 1992. Our skilled team has extensive experience defending a wide range of criminal charges. Whatever the nature of your criminal offence, we can help. Please call us today at 905-404-1947 or contact us online for a free consultation.

Millard Files Appeal of Conviction in Father’s Death

Written on Behalf of Affleck & Barrison LLP

Dellen Millard is appealing his first-degree murder conviction and sentence for the death of his father, Wayne Millard.

WHAT HAPPENED?

In September, 2018, Millard was found guilty of murdering his father. In a judge alone court case, Millard was convicted of shooting his 71-year-old father, Wayne Millard, through his left eye as he slept on November 29, 2012.

Millard’s father’s death was originally ruled a suicide. Following Millard’s convictions in the deaths of Tim Bosma (“Bosma”) and Laura Babcock (“Babcock”), police began to re-examine Wayne Millard’s apparent suicide. Crown Prosecutors alleged that Millard killed his father in order to protect his inheritance.

During the investigation, Millard revealed to the police that his father was depressed and an alcoholic. Millard told police that he found his father dead in bed around 6 p.m. on November 29, 2012. He claimed that he last saw his father alive around noon the day before and spent the night at his friend Mark Smich’s house (his accomplice in the murders of Bosma and Babcock).

Phone records revealed that Millard travelled back to his father’s house in the early hours of the morning on November 29, 2012. The police came to learn that the gun found next to Wayne Millard was a gun purchased illegally by his son and had the younger Millard’s DNA on it.

Justice Maureen Forestall found that Millard had set up a false alibi by leaving his car, a cell phone, and his credit card at Smich’s house and he took a taxi to his father’s house.

MILLARD’S SENTENCE IN HIS FATHER’S DEATH

Following his conviction, Justice Forestall sentenced Millard to his third consecutive life sentence. Thus, Millard will serve 75 years behind bars before he is eligible to apply for parole. This is the longest term of parole ineligibility in the Canadian criminal justice system and the first time that this sentence has been handed down in Ontario.

At the time of sentencing, Justice Forestall stated:

Dellen Millard has repeatedly committed the most serious offence known to our law. He has done so with considerable planning and premeditation. In the murder of his father, he took advantage of the vulnerability of his father and betrayed his father’s trust in him.

In response to Millard’s lawyer argument that the consecutive sentence without parole eligibility is an unduly long and harsh judgement, Justice Forestall stated:

It is necessary to impose a further penalty in order to express society’s condemnation of each of the murders that he has committed and to acknowledge the harm done to each of the victims. It is not unduly long and harsh.

MILLARD’S APPEALS

Two days following Millard’s sentencing, his lawyer filed a notice of appeal with the court. According to Millard’s counsel, it will be argued that the verdict is unreasonable and the sentence is unconstitutional.

Millard will serve 75 years in prison before he will be eligible to apply for parole at 102 years of age.

Millard’s defence attorney argues that the consecutive sentence without parole eligibility is unduly long and harsh.

Millard is also appealing his first-degree murder convictions and sentences in the deaths of Tim Bosma and Laura Babcock.

Millard was found guilty of first-degree murder in the death of Tim Bosma by a jury in June 2016 after a 16-week trial. Bosma’s burnt remains were found in an incinerator on Millard’s farm. Millard is appealing his conviction. He filed a handwritten notice of appeal with 13 itemized arguments on appeal including the length of the proceedings, that the judge failed to sever his trial from that of his co-accused, that the judge failed to grant his request to move the trial out of Hamilton, that the judge allowed post-offence conduct evidence regarding the incineration of the deceased, that the judge allowed evidence which was seized contrary to his Charter rights protecting him against unreasonable search and seizure, and that the judge should have excluded evidence seized from electronic devices, amongst others.

Millard was also found guilty, by a jury of his peers, of killing his former lover, Laura Babcock, and burning her body in an animal incinerator. He filed an appeal following his sentencing arguing that his first-degree murder conviction was unreasonable and the life sentence was too harsh. He specially claims that the judge forced him to represent himself at the murder trial, despite the fact that Justice John McMahon repeatedly advised him to obtain a lawyer and his trial was adjourned twice to allow Millard to retain counsel.

We will continue to follow any developments in these cases as they make their way through the judicial system and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day 7 days a week. We are available when you need us most.