appeal

Reduced Sentence for Drunk Driver Who Killed Three

Written on Behalf of Affleck & Barrison LLP

The driver of a vehicle who was involved in deadly car accident has had his sentence reduced from nine years to seven years by the Ontario Court of Appeal who found that the trial judge erred in reviewing punishments imposed in similar cases.

WHAT HAPPENED?

On April 10, 2016, Prithvi Randhawa (“Randhawa”), 22 years-old at the time, drove his vehicle, including four friends, at a high rate of speed through a residential neighbourhood after a night of drinking at Luxy night club in Concord.  Randhawa was found to have twice the legal limit of alcohol in his system.

Travelling at 135 km/h on Jane Street, Randhawa collided with a traffic signal pole near Sheppard Avenue West, the vehicle went airborne and crashed upside down.  The four passengers were all ejected from the vehicle.  Three of them died and one was serious injured.  The passengers ranged in age between 19 to 24 years-old.

The surviving passenger, Atul Verma, suffered a traumatic brain injury, a fractured ankle, knee damage, a lacerated liver and lumbar spine fractures.  At the time of the trial, he continued to suffer from constant pain, sleepless nights and the deprivation of some of the activities that he used to enjoy.

As a result of the crash, Randhawa sustained a traumatic brain injury and collapsed lung.   He regained consciousness in hospital two days following the accident.  Due to the injuries he suffered, he lost all memory of the events starting from his time inside the nightclub until he regained consciousness.

Randhawa was found guilty of three counts of impaired driving causing death and one count of impaired driving causing bodily harm.  Justice James Chaffe sentenced him to nine years in jail and a driving ban of 93 months.

Justice Chaffe reviewed three similar cases before imposing a sentence.  He held that Randhawa’s conduct was “egregious” and worse than the cases he reviewed. One of the cases reviewed by Justice Chaffe was the sentencing of Marco Muzzo who killed three children and their grandfather while impaired in 2016.  The sentence Justice Chaffe imposed on Randhawa was a year less than the sentence in the Muzzo case.

THE APPEAL

Randhawa appealed Justice Chaffe’s sentencing decision arguing that the trial judge erred in determining his sentence within the ranges available.  More specifically, it was argued that the sentencing judge failed to consider or misconstrued facts regarding other similar cases when considering an appropriate sentence.

On behalf of the Court of Appeal, Justice Nordheimer found that Justice Chaffe failed to explain why Randhawa’s offence was worse than two of the cases that he had reviewed.  Justice Nordheimer stated:

I am unable to find a basis upon which the sentencing judge’s finding could be supported.  This is of concern because, as I have said, it is this finding that clearly drove the sentencing judge to determine that a sentence of nine years was appropriate.

Justice Nordheimer ruled that Randhawa’s conduct was most similar to two of the cases under consideration, involving impairment, driving too fast and multiple deaths.  Justice Nordheimer also found that the sentencing judge failed to give consideration to Randhawa’s young age and the fact that Randhawa suffered very serious injuries, including a traumatic brain injury, in the crash.

Randhawa also argued that the sentencing judge did not consider that he will be facing numerous civil lawsuits arising from the accident, and subject to large judgments.  Justice Nordheimer did not find this to be an error made by the sentencing judge and is not a mitigating factor that is required to be considered when determining a sentence.

In a dissenting opinion, Justice Alexandra Hoy was of the opinion that the sentencing decision was appropriate.  She felt that it was within Justice Chaffe’s discretion to conclude that Randhawa’s conduct was more egregious than the drivers in two of the cases.  Furthermore, Randhawa was driving even faster than Muzzo and in a busier area.  She also made note that Randhawa had a worse driving record than Muzzo, including infractions for speeding and running a red light. 

If you have been charged with a driving related offence or have 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 defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

New Trial Ordered for Homeowner Who Killed Car Thief

Written on Behalf of Affleck & Barrison LLP

In a unanimous decision, a Hamilton-area man who killed a car thief in front of his home has been ordered to stand trial on the charge of second-degree murder. 

The Ontario Court of Appeal has overturned Peter Khill’s (“Khill”) finding of not guilty.

On appeal, the court has ruled that the trial judge failed to instruct the jury to consider Khill’s conduct leading up to the moment he pulled the trigger and killed Jon Styres (“Styres”), a First Nations man.

In June 2018 (please see our blog regarding the trial), Khill, a homeowner and former army reservist, was found not guilty following a 12-day jury trial where he maintained that he fired his gun in self-defence.  An individual can use reasonable force to alleviate a threat to themselves or others under the laws of self-defence in Canada.

WHAT HAPPENED?

On February 4, 2016 at approximately 3 a.m., Khill and his girlfriend were woken up by two loud, banging noises.  When he looked outside, Khill saw that the lights were on in his 2001 GMC pickup truck.

Given his military training, Khill proceeded to grab a 12 gauge shotgun from his bedroom closet.  He loaded it with two shells and ran outside to confront Styres, who was trying to steal his truck.  He came up behind Styres, who was leaning over the passenger-side seat, and shouted “Hey, hands up!”.  Styres reacted by turning toward Khill with his hands sweeping forward in a motion that allegedly led Khill to believe that he had a gun.  Khill argued that this response provoked him to fire two close-range shots that killed Styres, almost immediately. 

At his trial, Khill told the court:

I felt that I was being threatened and that I wasn’t in control of the situation.  I needed to gain control of the situation and neutralize any threat that was there. … I thought my life was in danger and I think the right to self-defence is overlapping between military and civilian life.

The Crown prosecutor argued that Styres did not pose a reasonable threat and that Khill and his girlfriend should have called 911 and waited for police to arrive, rather than approach Styres with a loaded shotgun. 

At the trial, the jury learned that Styres did not have a gun that night and was only carrying a folding knife in his pocket.

Khill pleaded not guilty and his lawyer argued that the shooting was “justified” as Khill believed that Styres had a gun and he feared for his life.  Furthermore, it was argued that Khill was following his training as a military reservist and was acting reasonably to defend himself under the circumstances.  A Hamilton jury found Khill not guilty of the murder of Styres.

THE APPEAL

At the appeal, the Crown prosecutor argued that the trial judge made four errors.  It was argued that three of the errors involved instructions to the jury regarding self-defence and the fourth error was in regard to the admissibility of evidence from an expert.

The appeal court agreed with one of the Crown’s submissions of an error by the trial judge, allowed the appeal and ordered a new trial on the basis that the trial judge failed to appropriately instruct the jury.  Specifically, the trial judge failed to instruct the jury to consider Khill’s conduct leading up to the moment the trigger was pulled leaving them incompetent to evaluate the “reasonableness” of his actions.

The Appeal Court said:

Mr. Khil’s role in the incident leading up to the shooting was potentially a significant factor in the assessment of the reasonableness of the shooting.  The failure to explain that relevance and to instruct the jury on the need to consider Mr. Khill’s conduct throughout the incident in assessing the reasonableness of the shooting left the jury unequipped to grapple with what may have been a crucial question in the evaluation of the reasonableness of Mr. Khill’s act.  On this basis, the acquittal must be set aside and a new trial ordered.

Khill’s lawyer has stated that he is reviewing the appeal court decision and considering whether to make an application for an appeal to the Supreme Court of Canada. 

Khill is also facing an ongoing civil lawsuit for more than $2 million brought by Styres’ spouse and two young daughters.

We will continue to follow any updates regarding this case and will provide any new developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise. 

Joyriding Teen Pleads Guilty to Manslaughter in 2011 Police Death

Written on Behalf of Affleck & Barrison LLP

A young man, known only as S.K., has recently pleaded guilty to charges of manslaughter for the death of York Regional Police Constable Garrett Styles. 

Following an appeal of his conviction and sentence, the Court of Appeal ordered a new trial for S.K.  Both the Crown prosecutors and lawyers for S.K. agreed on a plea deal.  S.K. was sentenced to two years probation and several conditions are in place regarding his operation of a motor vehicle. 

WHAT HAPPENED?

On June 28, 2011, 15 year-old S.K. took his father’s minivan for a drive with his friends, without his parents’ consent.

At 4:45 a.m., S.K. was stopped by Constable Styles for traveling 147 km/h in an 80 km/h zone.  S.K. was advised that the minivan would be impounded and he was repeatedly ordered to get out of the vehicle.  S.K. refused and pleaded with the officer to let him go.  Constable Styles proceeded to open the driver’s door and attempted to undo S.K.’s seat belt.  At that point, S.K.’s van began to move and Constable Styles was caught between S.K. and the steering wheel.  Constable Styles eventually jerked the steering wheel to the left causing the van to leave the highway, enter a ditch, proceed up an embankment, become airborne and roll 360 degrees.  Constable Styles was ejected from the van, which then fell on top of him.  He was pronounced dead shortly after arriving at the hospital.

As a result of this incident, S.K. suffered a spinal fracture that rendered him quadriplegic.

S.K. was charged with first-degree murder.  The key question at the trial was whether S.K. intended to drive away (alleged by the Crown prosecutor) or whether he accelerated by accident (alleged by the defence). 

S.K. was tried and a jury found that he intentionally accelerated and should have known that his actions were “likely” to lead to the death of the police officer.  S.K. was convicted and was sentenced to one day in custody in addition to time served (8 months) and a conditional supervision order for nine years to be served in the community. 

THE APPEAL

S.K. appealed his conviction on 5 separate grounds alleging that the trial judge made several legal errors. 

The three judge panel all agreed that the trial judge erred in failing to instruct the jury of the importance of S.K.’s age and level of maturity in assessing whether he knew his dangerous driving was likely to cause Constable Style’s death.

Justice Janet Simmons wrote:

This was a tragic case in which a police officer was killed as a result of the irresponsible acts of a headstrong 15-year-old.  In these circumstances, it was necessary for the trial judge to caution the jury that 15-year-olds do not have the same life experience as adults and that, as a result, a 15-year-old may not have the level of maturity to foresee the consequences of a particular course of action.

However, the judges of the appeal court panel disagreed as to whether the trial judge erred in excluding a statement that S.K. made to his father 26 days after the crash.  Following the crash, S.K. was intubated and unable to speak for three weeks. S.K. had told his father that he did not intentionally set the van in motion.  S.K.’s lawyers sought to introduce the statement as evidence of his state of mind during the police incident, however, the judge ruled against it.

Justice Simmons held that the statement should have been admitted “to respond to an implicit allegation of recent fabrication and to provide overall context for the jury about what the appellant had said close in time to the incident.” 

On the other hand, Justice Michael Tulloch and Justice David Brown ruled that the trial judge had made the right decision in not admitting the statement as evidence. 

On October 1, 2019, the appeal court allowed the appeal, set aside S.K.’s conviction and ordered a new trial.

GUILTY PLEA

Earlier this month, York Regional Police Services released a statement to confirm that a plea agreement had been reached between the Crown and S.K.  In coming to this decision, the Crown considered whether the family of Constable Styles could bear another trial and the impact another trial would have on witnesses, including first responders. 

Following numerous discussions between the parties, S.K. agreed to plead guilty to manslaughter and was sentenced to two years probation and conditions were placed on his ability to operate a motor vehicle.

If you have been charged with a driving related offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Alberta Court of Appeal Sets Minimum Sentencing for Fentanyl Trafficking

Written on Behalf of Affleck & Barrison LLP

As the country copes with the opioid crisis, the highest court in Alberta has now set a new sentencing starting point for those convicted of fentanyl trafficking.  The court recognized the peril that Alberta is in and stressed that it is up to the courts “to protect the public by imposing sentences that will alter the cost-benefit math performed by high-level fentanyl traffickers”.

A special five-justice panel of the Alberta Court of Appeal heard two appeals by the Crown prosecutor regarding fentanyl trafficking and unanimously ruled that convictions for wholesale fentanyl trafficking should receive a minimum sentence of nine years.

THE APPEAL DECISION REGARDING CAMERON PARRANTO

Last year, Cameron O’Lynn Parranto (“Parranto”), who pleaded guilty, was sentenced to 11 years in prison for trafficking in fentanyl in Edmonton.  Police seized the equivalent of a half-million doses of fentanyl.

Parranto pleaded guilty to possession for the purpose of trafficking in fentanyl and other drugs for two sets of offences. 

After a search warrant was executed at Parranto’s home, police recovered 27.8 grams of fentayl, 182.5 grams of methamphetamine, 82.6 grams of cocaine, 396 morphine pills and 168 oxycodone pills.  They also found $55,575 in cash, a loaded handgun, ammunition, police and sheriff badges, body armour, a dozen cell phones, scales and a cash counter.

Following Parranto’s release for his first set of offences, he was arrested three months later when greater quantities of fentanyl, methamphetamines, cocaine, heroin, oxycodone and the date rape drug GHB were uncovered. 

Parranto pleaded guilty to both sets of offences and was handed an 11-year sentence for eight offences, five years for the March 2016 offences and 6 years for the October 2016 offences. 

The court of appeal increased Parranto’s sentence to 14 years, minus credit of 3 ½ years for pre-sentence custody.

THE APPEAL DECISION REGARDING PATRICK FELIX

Earlier this year, Patrick Felix (“Felix”), a wholesale drug trafficker in Fort McMurray, was sentenced to 7 years in prison for his role in trafficking fentanyl after pleading guilty.  Investigators seized approximately $1 million worth of drugs and 3,000 fentanyl pills.

Felix obtained drugs and stored them at a “stash” location.  He employed “runners” to take orders, retrieve the drugs from the stash location and complete the deals.  “Food bosses” were also used to manage the runners, collect money from the sales and then provide Felix with the proceeds.

In 2015, Felix sold drugs to an undercover police officer on six separate occasions.  Felix provided 2,388 fentanyl pills and 2.5 kilograms of cocaine for a total price of $173,400. 

At trial, Felix pleaded guilty to four counts of trafficking in fentanyl and cocaine.  He was sentenced to seven years for each count of fentanyl trafficking and four years for each count of cocaine trafficking to be served concurrently.  A concurrent sentence occurs when all sentences are served at the same time, with the longest sentence period controlling the length of time in jail. 

The Crown prosecutor appealed the sentence and requested that the appeal court establish a minimum sentence for those convicted of wholesale trafficking in opioids.  On appeal, the Crown also argued that the trial judge made “case-specific errors that affected the fitness of the sentence imposed”. 

At the appeal, Justice Antonio wrote that the sentence imposed by the trial judge was “demonstrably unfit” in part due to the judge’s failure to distinguish between commercial trafficking and wholesale trafficking and failing to take into account Felix’s role in the organization.

Justice Antonio, writing on behalf of all the judges on the bench, stated:

Mr. Felix’s role was at the top of his organization, which is a weighty aggravating factor.  He energetically ran a business that was structured to maximize profit while minimizing the chance of criminal consequences to himself.  He was responsible for pouring poison into his own community and potentially others, jeopardizing the health and lives of untold numbers of end users.

Trafficking in cocaine has a four-and-a-half year starting point for sentencing.  A starting point for sentencing of a low-level commercial dealer of heroin is typically five years. 

The court will take into account the dangerousness of the drug and the scale of the offender’s involvement in the drug operation when establishing a minimum sentence for those convicted.  The court of appeal found that wholesale trafficking is more morally blameworthy than commercial trafficking as it presents a grave danger to individuals, communities and the greater public interest.  The appeal court defined wholesale trafficking as one that traffics large amounts of one or more drugs or distributes drugs on a large scale, possibly for resale.

Given the appeal court’s comments, the Crown was successful on appeal and set a starting point for those found guilty of commercial trafficking at nine years.  Felix’s overall sentence was increased by the court to 10 years.

If you have been charged with a drug related charge or have questions regarding your legal rights, please contact the knowledgeable criminal 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 to protect your rights and to ensure that you have access to justice. 

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.