appeal

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.

12 Year Sentence for Vigilante Justice Upheld

Written on Behalf of Affleck & Barrison LLP

The Alberta Court of Appeal, in a 2-1 decision, upheld Steven Vollrath’s (“Vollrath”) 12-year prison sentence for cutting off his victim’s thumb during an abduction in a case of vigilantism.

Two of the three judges at the Court of Appeal ruled that Vollrath’s sentence at trial was appropriate for the well planned “revenge kidnapping”.

The Appeal Court denounced vigilantism and stated:

Vigilantism undermines the rule of law and interferes with the administration of justice. As a general rule, those who engage in it should be dealt with severely.

WHAT HAPPENED?

In May, 2013, Richard Suter (“Suter”) was parked next to a restaurant when he and his wife began having an argument. He failed to put his car in park, and as the car proceeded forward, he unintentionally pushed on the accelerator instead of the brake. The car advanced onto the restaurant’s patio striking and killing a two-year-old child.

Suter was convicted of failing to provide a breath sample. The trial judge found that the accident was caused by driver error and not drunkenness. The Supreme Court of Canada reduced Suter’s 26-month sentence to the 10 months he had already served in jail.

While Suter was awaiting trial, Vollrath, dressed as a police officer, and two accomplices rang Suter’s doorbell and abducted him in front of his wife. His captors revealed that the reason he was being abducted was that he had hit and killed a child with his car. Suter was taken to a snowy field, his thumb was cut off with pruning shears, and he was left unconscious in the snow.

Vollrath was convicted in 2016 of kidnapping, aggravated assault, possession of a weapon, and impersonating a police officer. Vollrath had a lengthy criminal record, including violent and weapons offences.

SENTENCING PRINCIPLES

According to section 718 of the Criminal Code, the purpose of sentencing is to protect society and to impose sanctions that meet the following objectives:

  • denounce unlawful conduct;
  • deter the offender and others from committing offences;
  • separate offenders from society;
  • assist in rehabilitating offenders;
  • provide reparations for harm done to victims or the community; and
  • promote a sense of responsibility in offenders and acknowledge the harm done to victims or to the community.

Sentencing must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In deciding on an appropriate sentence, the Court must consider aggravating and mitigating factors, sentences imposed on similar offenders for similar offences, and all available sanctions other than imprisonment must be considered.

In Mr. Vollrath’s case, the Court considered the following aggravating factors:

  • he did not act alone;
  • there was advance planning involved in committing the offences;
  • he impersonated a police officer with the purpose of facilitating another offence;
  • the incident began at the Suter’s home;
  • the kidnapping and assault were targeted;
  • leaving Suter maimed and unconscious in a deserted area showed a callous indifference to whether he lived or died;
  • the lasting physical harm to Suter;
  • the psychological impact to both Mr. and Mrs. Suter;
  • Vollrath’s extensive criminal record; and
  • Vollrath was on release at the time of the offences.

The Court is also obligated to consider background factors for aboriginal offenders and to consider how these factors affect the offending behaviour. In Mr. Vollrath’s case, the Court found that he had no connection with his aboriginal culture at the time he became incarcerated. Furthermore, the Court held that Vollarth’s dysfunctional background was not connected to his aboriginal history as his biological father, who was a Metis man, left him when he was very young.

In coming to a conclusion in her 2016 sentencing decision, Justice E. A. Johnson of the Provincial Court of Alberta felt that the most important objective was to “denounce the acts and to deter Mr. Vollrath and others from engaging in this kind of behaviour.” Justice Johnson also considered the objectives of separating the offender from society and rehabilitation. Therefore, Justice Johnson concluded that 12 years of incarceration were fitting given the seriousness of the offence, the degree of responsibility of the offender, the aggravating factors, and the need for denunciation and deterrence.  The majority of the Alberta Court of Appeal agreed with this sentencing decision.

WHAT COMES NEXT FOR VOLLRATH?

At the Court of Appeal, the dissenting judge held that Vollrath should have been sentenced to nine years in jail after taking into account the deprivations of his childhood.

Given that there was a dissenting opinion on appeal, Vollrath has the option of appealing his case to the Supreme Court of Canada. However, the Supreme Court of Canada will only hear a case if it is convinced that the case involves a question of public importance. Approximately 1 out of 10 cases that request “leave” to appeal to the Supreme Court of Canada receive permission.

We will continue to follow this case and will report any developments on 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 and knowledgeable 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.

‘Spiderman’ Has Murder Conviction Overturned

Written on Behalf of Affleck & Barrison LLP

 

Shawn Vassel (“Vassel”) has spent seven years in prison and has recently had his conviction overturned and a new trial ordered by the Ontario Court of Appeal.

In 2011, Vassel was convicted of second-degree murder in the death of a Mississauga man during a drug deal turned robbery that occurred in 2007.

WHAT HAPPENED?

Vassel was nicknamed the “Spiderman killer” after he scaled down 11 floors of a North York apartment building in his attempt to flee the police.

Vassel was confronted by police at his mother’s apartment on the 18th floor. He exited the balcony and began rappelling from one floor to the next, finally appearing outside of the building and was eventually caught by the police after a chase on foot.

Vassel was arrested and charged for the murder of Husam Dagheim (“Dagheim”). Dagheim was shot at point-blank range in the parking lot of the Coliseum movie theatre in Mississauga during an attempted drug deal.

Vassel testified at his trial that he “risked his life” in his attempt to escape the police because he didn’t want to go to jail for a crime that he alleged he did not commit.

Vassel was sentenced to an automatic life sentence with eligibility for parole at 16 years. He has an extensive criminal record, which includes robbery, drug trafficking, and assault.

THE TRIAL

At issue at Vassel’s trial was the identity of Dagheim’s killer.

The Crown’s star witness, a former friend of Vassel, Michael Agba (“Agba”), testified that he was present during the botched drug deal and witnessed Vassel holding the loaded gun before the murder took place. During cross-examination by Vassel’s lawyer, Agba was accused of lying in order to secure a plea deal. Agba was originally charged with murder, but pleaded guilty to manslaughter.

There were no other witnesses that could identify the shooter, including the deceased’s wife who was seated beside her husband in a minivan at the time of his death.

Vassel testified at his own trial that he was not at the crime scene. He also testified that he lent his friends his girlfriend’s rental car for the planned robbery at the drug deal. Vassel suggested that the real killer was either Agba or another friend who were both present during the drug deal.

Cellphone records were introduced as evidence to prove that Vassel was at a townhouse complex on Ridgeway Drive in Mississauga at the time of the killing.

THE APPEAL

Vassel appealed both his conviction and the period of parole fixed by the trial judge. Vassel’s counsel argued that the trial judge made several errors regarding the admissibility of evidence and his instructions to the jury.

One of the grounds of appeal argued by Vassel’s counsel was that the trial judge erred by instructing the jury to take caution and particular care with Vassel’s evidence at trial.

In a criminal trial, all parties are entitled to a properly instructed jury. An appellate court ,when assessing a judge’s jury charge, must take a functional approach to determine whether the instructions, read as a whole, provide the jury with the necessary tools to render a verdict.

The trial judge instructed the jurors to apply the same factors in assessing Vassel’s testimony as they would any other witness. Justice Tulloch specifically stated:

Mr. Vassel has given evidence that may tend to show that either Mr. David Grant or Mr. Agba was the shooter as he was not on at the scene of the crime on the night in question. You should consider that testimony of Mr. Vassel with particular care because he may have been more concerned about protecting himself than about telling the truth. Bear that in mind when you decide how much or little you can believe of and rely upon what Mr. Vassel told you about Mr. Grant’s involvement in deciding this case.

Vassel argued, on appeal, that the trial judge erred in instructing the jury about the manner in which the jury was to assess the testimony of the appellant (the person who applies to a higher court for a reversal of the decision of a lower court).

The Appeal Court agreed with Vassel’s arguments and held that the trial judge’s instruction was problematic in terms of its impact regarding Vassel’s alibi (Vassel’s primary defence).

The Court of Appeal held that this instruction to the jury by the Judge was one of several errors. The Court stated:

In these circumstances, the inclusion of this reference had the effect of adding a level of scrutiny to the alibi evidence that was unwarranted and constitutes error.

Given that the Court of Appeal determined that the trial judge made multiple errors, Vassel’s appeal was allowed, his conviction was set aside, and a new trial was ordered. Vassel can apply for bail as he awaits his retrial.

We will continue to follow developments in this case as it makes it way through the court system and will provide updates in this blog.

In the meantime, if you have any questions regarding charges laid against you or 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. We are available when you need us most.

Crown Prosecutors Appealing Decision in Toronto Police Breach of Trust Case

Written on Behalf of Affleck & Barrison LLP

Kyle Upjohn (“Upjohn”), an officer with ten years of experience on the police force, was charged with the offence of breach of trust by a public officer contrary to section 122 of the Criminal Code and following a preliminary inquiry he was committed to stand trial. Upjohn successfully brought an application to the Ontario Superior Court of Justice seeking to quash the order committing him to stand trial.

A Crown prosecutor is appealing the decision to quash Upjohn’s criminal trial to Ontario’s highest court maintaining that the lower court Judge erred. Milan Rupic, Crown prosecutor, claims that Justice Maureen Forestall erred in failing to consider “the whole of the evidence” when considering Upjohn’s intent.

Rupic contends that Upjohn allegedly refused to help stop a young man commit suicide in High Park and should stand trial as the cop “knowingly avoided a duty of vital importance”.

WHAT HAPPENED?

On February 2, 2016, a concerned citizen reported to Upjohn, who was parked in his marked police vehicle in High Park, that a young man was preparing to hang himself in the park. Instead of coming to the aid of Alexandre Boucher (“Boucher”), Upjohn allegedly falsely claimed he was on another call and told the man to dial 911 and then drove away.

Subsequently, Upjohn was dispatched to attend to the park where Boucher, a 19-year-old, was later pronounced dead.

Initially, Upjohn was charged with criminal negligence causing death and failing to provide the necessities of life. These charges were withdrawn and Upjohn was charged with breach of trust by a public officer.

THE LOWER COURT DECISION

On application to the Superior Court of Justice, Upjohn’s lawyer argued that a breach of trust case required evidence that the accused had a dishonest or corrupt ulterior purpose for avoiding the call, and that there was no such evidence of this nature.  Justice Forestell agreed with this position and quashed Upjohn’s committal to stand trial.

THE ARGUMENTS ON APPEAL

The Crown prosecutor has filed an appeal at the Ontario Court of Appeal. The Crown argues that Justice Forestell erred in her decision to quash the trial by failing to consider the “whole of the evidence” in terms of Upjohn’s intent.

The Crown argues that the evidence supports the inference that Upjohn “knowingly avoided a duty of vital importance by means of a deceit”. Furthermore, the evidence demonstrates that in avoiding his public duty, Upjohn was untrustworthy and the breach of his duty was not for the public good.

The Crown stated:

This was not an innocent mistake. Upjohn masked his failure to act with dishonesty – by lying about being “on a call”. The lie suggests that Upjohn knew what he was doing wrong, that he was intentionally using his office for a purpose other than the public good.

The appeal in this case is scheduled to be heard in November, 2018.

WHAT IS BREACH OF TRUST?

A charge of breach of trust by a public officer is laid when an official is accused of violating the standard of conduct and responsibility demanded by his/her position.

Section 122 of the Criminal Code reads as follows:

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

The Supreme Court of Canada set out the elements of the offence of breach of trust by a public officer in R. v. Boulanger:

  1. The accused is an official;
  2. The accused was acting in connection with the duties of his office;
  3. The accused breached the standard of responsibility and conduct demanded of him by the nature of the office;
  4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
  5. The accused acted with the intention to use his public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

UPJOHN’S CURRENT STATUS

Currently, Upjohn remains suspended with pay from the Toronto Police Service since May 2016.

Upjohn is also accused of three counts of professional misconduct under Ontario’s Police Services Act, including neglect of duty and acting in a disorderly manner.

Under this Act, disciplinary hearings are conducted by police services.   A hearing officer must decide whether the allegations of misconduct have been proven on clear and convincing evidence. If an officer is found guilty of misconduct, appropriate penalties may be imposed, including:

  • a reprimand;
  • a direction to undergo specific counselling, treatment or training;
  • a direction to participate in a specified program or activity;
  • forfeiture of pay or time off;
  • suspension without pay;
  • demotion; or
  • dismissal.

We will report in this blog any developments in this case as they occur, including the decision on appeal.

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 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.