assault

20,000 Watch Livestream of Judgment as Off-Duty Officer is Found Guilty of Assault

Written on Behalf of Affleck & Barrison LLP

Last week, an unprecedented event took place when more than 20,000 people watched Justice Joe Di Luca read his 62 page ruling for four hours in an online livestream. 

Justice Di Luca found off-duty Toronto police Constable Michael Theriault (“Michael”) guilty of assaulting Dafonte Miller (“Miller”).  Michael was acquitted of the charges of obstruction of justice and his brother, Christian Theriault (“Christian”), was acquitted of all charges of aggravated assault and obstruction of justice.

PUBLIC INTEREST DEMANDS LIVESTREAM OF JUDGE’S DECISION

In his judgment, Justice Di Luca recognized the immense public interest that the case before him generated given the issues of racism and police accountability.  However, he stated that his duty was not to “conduct a public inquiry into matters involving race and policing”, his responsibility was to decide “whether the Crown has proven the offences charged beyond a reasonable doubt based on the evidence that was presented in court”.

The fact that so many people were watching the decision streaming live demonstrates that the public wants to have access to the court process and see justice in action.  The decision by Justice Di Luca to livestream his decision also shows the court’s dedication to legitimacy and authenticity.

Justice Di Luca stated in his decision:

This case has attracted significant public and media interest.  This interest is welcome as the openness of the court process is one of its core defining principles.  It is also welcome because public and media interest fosters legitimate debate, criticism and change, all of which are essential features of a functioning modern democracy.

WHAT HAPPENED?

The depiction of the events that occurred in the early morning hours of December 28, 2016 were incompatible between Miller and the Theriault brothers.

According to Miller, he was walking down the sidewalk with friends when he was approached and questioned by the Theriault brothers.  Miller and his friends ran, but he was eventually caught and viciously beaten.  Michael allegedly used a metal pipe and Christian used his hands and feet.  Miller was struck in the eye with the metal pipe and suffered serious injuries to the bones around his face, his wrist was broken, he lost vision in his left eye and had difficulty seeing out of his right eye.  As a result of this incident, Miller underwent two surgeries and had to have his damaged eyeball removed and fitted for a prosthesis.

According to the Theriault brothers, they were inside the garage at their parents’ home when they heard a commotion outside.  They opened the garage to find two males inside one of their vehicles.  The individuals ran in different directions.  The brothers chased Miller, with the intention of arresting him and waiting for police to arrive.  The cornered him in between two houses at which time Miller produced a metal pipe and began swinging it.  Christian alleges that he was hit in the head and a struggle ensued.  Michael proceeded to punch Miller multiple times in the face, likely causing Miller’s eye injury.  Michael denies hitting Miller with the metal pipe.  The Theriault brothers contend that they used reasonable force in their attempt to arrest Miller and acted in self-defence when Miller used the metal pipe as a weapon.

Miller was arrested at the scene and charges were laid, including theft under $5,000 and assault with a weapon.  In the end, these charges were withdrawn by the Crown.

The Special Investigations Unit investigated the incident and the Theriault brothers were jointly charged with aggravated assault and separately charged with attempting to obstruct justice given their dishonesty with the Durham Regional Police Service.

JUSTICE DI LUCA’S DECISION AT TRIAL

Justice Di Luca specifically acknowledged that there were credibility issues with multiple witnesses and therefore he could not conclusively determine a number of important facts in this case.  Specifically, he could not positively determine where the metal pipe came from or who first handled it.

Justice Di Luca found that Miller and his friends were stealing items from cars and that Michael’s initial plan was “likely not to arrest Mr. Miller, but rather to capture him and assault him”.  Michael never identified himself as a police officer or mentioned an arrest during the chase or the fight.  Justice Di Luca stated:

To be blunt, I would have expected the first thing out of Michael Theriault’s mouth as he was chasing Mr. Miller while wearing only socks would have been “Stop…you are under arrest…I’m a police officer,” or words to that effect.

Although it was not clear as to the origin of the metal pipe, Justice Di Luca stated:

Even assuming that the pipe was first introduced by Mr. Miller, it was quickly removed from him and the incident became one-sided, with Mr. Miller essentially being beaten by Michael and Christian Theriault.

Justice Di Luca was “left with reasonable doubt” that Michael was acting in self-defence.  When Miller headed towards the door of the nearby home to seek assistance and was badly injured, he was essentially in retreat.  Justice Di Luca stated:

The already razor thin self-defence justification evaporates at this stage.

Justice Di Luca was satisfied beyond a reasonable doubt that when Michael struck Miller with the pipe he was not acting in self-defence or in the course of an arrest, and therefore committed an unlawful assault.

WHAT HAPPENS NEXT?

Michael is currently suspended from the Toronto Police Service and has been since July 2017.  He will continue to remain out on bail until his sentencing hearing. 

A professional standards investigation is underway on behalf of the Toronto Police Service with respect to the events that transpired and the Office of the Independent Police Review Director is also continuing to investigate this incident.

We will provide additional information regarding any developments as they take place in this blog.

In the meantime, if you have been charged with an assault or related offence or have any questions regarding your legal rights, please contact the 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.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Appeal Court Expunges the Defence of Self-Induced Intoxication

Written on Behalf of Affleck & Barrison LLP

Last week, amidst great controversy, the Ontario Court of Appeal released its decision in the cases of R. v. Sullivan and R. v. Chan regarding the application of the defence of self-induced intoxication. 

This significant decision declared that section 33.1 of the Criminal Code of Canada (“CC”) is unconstitutional and of no force or effect.

SECTION 33.1 OF THE CRIMINAL CODE

Section 33.1 of the CC established that if an accused caused his/her own intoxication and commits a violent offence, he/she cannot claim that he/she was too intoxicated to be found guilty of even general intent offences (i.e. assault and sexual assault).  This applies even if he/she was intoxicated to the point of automatism (the performance of an action unconsciously or involuntarily), even if his/her acts were involuntary or he/she lacked the mental state to commit the violent act.

In its latest decision, the Ontario Court of Appeal determined that this law breached “virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence”.

WHAT HAPPENED IN THE SULLIVAN CASE?

In the case of David Sullivan, the accused over-consumed prescription medication in an attempt to take his own life.  The medication left him in a state of extreme psychosis.  During the psychotic episode, he believed he had captured an alien and proceeded to stab his mother.

At trial, Sullivan was found guilty of the violent offence despite Sullivan’s contention that his intoxication was involuntary as it resulted from a suicide attempt. 

WHAT HAPPENED IN THE CHAN CASE?

Thomas Chan, a high school student, stabbed and killed his father and severely injured his father’s partner during a psychotic episode after consuming magic mushrooms.  Chan believed he was a deity and that his father was the devil. 

At trial, Chan also attempted to rely upon the defence of non-mental disorder automatism.  Given section 33.1, which prohibits the use of automatism as a defence in cases of violence when an accused’s intoxication was self-inflicted, this defence failed and Chan was convicted.

THE COURT OF APPEAL’S DECISION REGARDING SECTION 33.1 OF THE CRIMINAL CODE

The Court of Appeal found that section 33.1 of the CC violated the following sections of the Charter of Rights and Freedoms:

  1. The right to life, liberty and security of the person (section 7); and
  2. The right to the presumption of innocence (section 11(d)).

Under Canadian law, if a law violates a Charter right, in certain circumstances it can be justified by the Crown and upheld despite the violations.  In this case, the Appeal Court could not find benefits to the law, and instead found that the law was contrary to the principles of fundamental justice.

In its decision, the Court of Appeal wrote:

Put simply, the deleterious effects of s.33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence. …

With very little true gain, Parliament has attempted to cast aside the bedrock of moral fault.

The Court of Appeal held that a person must act voluntarily to commit a crime.  Although lawmakers attempted to help victims attain justice with the introduction of section 33.1 of the CC, the law in actuality violated an accused’s rights by making them responsible for violence they had no control over.  Justices David Paciocco and David Watt wrote:

As for recognizing and promoting the equality, security and dignity of crime victims, it is obvious that those few victims who may see their offenders acquitted without s.33.1 will be poorly served.  They are victims, whether their attacked willed or intended the attack.  However, to convict an attacker of offences for which they do not bear the moral fault required by the Charter to void this outcome, is to replace on injustice for another, and at an intolerable cost to the core principles that animate criminal liability.

The Court of Appeal ordered a new trial for Chan as he was only convicted of offences that included an element of assault and those convictions depended upon section 33.1.  On the other hand, the Court of Appeal acquitted Sullivan of all of his charges.

WHAT HAPPENS NEXT?

The Crown prosecutor has advised that it will be seeking leave to appeal these decisions to the Supreme Court of Canada.

The Women’s Legal Education and Action Fund has strongly expressed its frustration over this Court of Appeal decision and believes that this decision sends a message “that men can avoid accountability for their acts of violence against women and children through intoxication”.

However, the Canadian Civil Liberties Association has expressed that the concern that the floodgates have been opened to men arguing the defence of intoxication are unwarranted.  An accused must still prove that he/she was in a state of automatism, not merely drunk.

Cara Zwibel, Director with the Canadian Civil Liberties Association, stated:

This is a rarely used provision.  It’s not this widespread, systemic concern.

We will continue to follow the law as it evolves in response to the recent Ontario Court of Appeal decisions and will report any developments in this blog.

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.

Challenges for Police During Pandemic Resulting in Assault Charges Across Canada

Written on Behalf of Affleck & Barrison LLP

In this unpredictable and stressful environment that we are currently living in as we deal with COVID-19, our country’s first responders are facing unexpected challenges every day. 

Canada’s police officers are experiencing an increasing number of COVID-19 threats daily as they respond to calls from the public.  Across the country, charges of assault are being laid on individuals who are intentionally coughing or spitting on police officers.

Assault charges are considered a serious violation in Canada and are classified as a criminal act.  Charges of this nature will be tried in court, and if convicted the individual will be left with a criminal record. 

In Canada, a simple definition of assault is the intention to apply force to another individual in a direct or indirect manner, without that individual’s consent.  Only the threat of an assault is required for an assault charge to be laid, an actual injury does not have to occur.  It is essential that the individual being charged had both a direct intent to inflict harm and that there was no consent given by the individual being harmed.

Given the heightened concern of bodily fluids spreading the virus, the act of intentionally coughing or spitting on another individual with the intent to transmit a disease is certainly a factor the courts will look at, even if the victim of the crime does not become sick. 

CRIMINAL CHARGES LAID IN COUGHING AND SPITTING INCIDENTS

On April 2, 2020, police attended a home in Lethbridge, Alberta following a report of domestic assault.  A 27-year-old man was found to be in breach of the conditions of his release order.  While he was being taken into custody he coughed directly into the officer’s face.  He told officers that he had been exposed to a person with COVID-19 and hoped that the officers would get infected.  As a result of this deliberate incident, the man was charged with assault on a peace officer.

A similar incident occurred three days later in Wetaskiwin, Alberta when a man allegedly intentionally coughed on a police officer when he was arrested for breaching his court-ordered conditions.  He told police he had the virus and coughed in the officer’s face when being led to the police car and in another officer’s face when being processed.

On April 6, 2020, in Coquitlam, British Columbia, a man was charged with assault after allegedly spitting on police officers following his arrest for break-and-enter.  Prior to spitting, he had answered yes when questioned as to whether he was sick.

Similarly, in Kelowna, B.C., a man is facing a charge of aggravated assault after he allegedly spit on a police officer while he was being arrested for breaking and entering an empty home. 

Assault charges are also being laid against Canadians who are deliberately coughing on individuals who are not first responders.  On April 5, 2020, a man claiming to have tested positive for COVID-19 was charged with assault after coughing on a bus driver and transit officers who were called in to break up the altercation.

Two New Brunswick men, who had recently travelled to the Dominican Republic, have also been charged with assault after allegedly coughing on neighbours in a rooming house.  The neighbours had complained that the two men were not properly isolating themselves after they returned from vacation.  The two men  reacted to these complaints by coughing on their neighbours.

CHARGES OF MISCHIEF LAID IN ALBERTA RELATED TO COVID-19

An individual from Taber, Alberta has been charged with mischief after allegedly licking products in a store as part of a social-media prank.  According to police, a witness saw a group of four individuals enter the store and attempt to lick items with their tongue.  The witness reported the incident to store management.  The suspects were identified through a licence plate number and a 20-year-old was charged with mischief under $5,000.  The man was allegedly participating in the “COVID Challenge” on TikTok.  The store had to remove items from their shelves and sanitize the area as a result of this incident.

The criminal offence of mischief covers a broad range of conduct and typically applies in circumstances where a person obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property. 

Chief Graham Abela of the Taber Police stated:

Taber police consider this type of activity a serious breach of good citizenship and conduct that is required during this time of crisis.  Reliable and clean food supply is one of our greatest needs at this time.  To waste cleaning supplies and food from our shelves during this pandemic is unacceptable.  We will investigate and where necessary lay charges to the fullest extent of the law to help curb this type of prank.

As the province of Ontario’s response to the COVID-19 pandemic is rapidly evolving, we will continue to follow the developments and update any changes in this blog.

In the meantime, if you have been charged with an assault or have any questions regarding your legal rights, please contact our office online or at 905-404-1947.   Our business remains open and we are operating at full capacity.  The law firm of Affleck & Barrison LLP is committed to the health and safety of our community and is operating under the suggested social distancing guidelines recommended by the Canadian government and health professionals.

Our skilled criminal defence 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.

Domestic Assault Charges in Canada

Written on Behalf of Affleck & Barrison LLP

In Canada, domestic assault is a very serious offence and the nature of the offence is considered an “aggravating factor” during sentencing for those found guilty.  That is to say that the penalty will be more severe than for those found guilty of an assault not having taken place in a domestic context.

WHAT IS DOMESTIC ASSAULT?

Although domestic assault is not specifically defined in the Criminal Code, it is treated differently than regular assault by the police and the courts. 

Domestic assault is an assault that occurs in the context of a domestic or intimate relationship between two people.  This includes relationships such as boyfriends and girlfriends, spouses or common-law partners, and other family members. 

In Canada, domestic assaults are treated more seriously by police and the courts for the following reasons:

  • Domestic abuse is widespread in Canada;
  • Domestic abuse can devastatingly impact children;
  • There is a high risk that domestic violence will escalate if it is not dealt with quickly and effectively.

The Crown prosecutor has the burden to prove the charges of domestic assault beyond a reasonable doubt, including:

  • That the complainant was in a domestic relationship with the accused (i.e. family member, romantic relationship, spouse or common law partner);
  • That the accused directly or indirectly applied force to the complainant without consent;
  • That the application of force was intentional or through the use of words or actions or threatened to apply force to the complaint and had the ability to carry out the threat or the accused accosted or begged the complainant while holding a weapon or imitation of a weapon.

Thus, domestic abuse does not necessarily involve physical abuse, but can include the threat of assault, coercion, sexual abuse and economic abuse.

WHAT IS THE BURDEN OF PROOF AND WHAT EVIDENCE CAN BE USED IN COURT?

If you are charged with domestic assault, it is up to the Crown prosecutor to prove the charges beyond a reasonable doubt.  The Crown needs to have enough evidence to prove the case.  However, even if the Crown has the evidence to satisfy the burden, there may be other evidence to contradict the Crown’s evidence. 

The main witness in a domestic assault case is the alleged victim, the person who has been allegedly assaulted.  This person is likely the husband or wife, girlfriend or boyfriend of the accused.  This person will provide “viva voca” evidence (spoken words) to tell their side of the story regarding the alleged assault.

If there are alleged physical injuries, medical records or testimony from medical professionals may be used as evidence in court.  There will also be evidence from one or more police officers to testify as to what he/she saw or heard when they arrived on the scene.

WHAT DEFENCES ARE AVAILABLE IN DOMESTIC ASSAULT CASES?

Consent

The Crown prosecutor has the burden to prove that the accused assaulted his/her spouse/partner without his/her consent.  However, if the accused and his/her spouse agreed to take part in rough sex play, for example, the judge may find that the Crown has not proved the essential element of consent. 

Self-Defence

Self-defence is a common defence to any type of assault charge.  However, there have been recent changes in the law and an accused can only use this defence when a number of criteria set out in the Criminal Code are met.  The following are the criteria necessary in order to make a successful self-defence argument:

  • Force is being used against you, or you had reasonable grounds to believe that force would be used against you;
  • Your response to the threat was for the purpose of defending or protecting yourself from the threat or use of force;
  • Your response to the threat was reasonable in the circumstances (i.e. a reasonable person in the same situation would have acted in a similar way).

A court will also consider the following factors in determining what was reasonable in the circumstances, including: 

  • The history of the two parties;
  • Whether either party was intoxicated at the time of the offence;
  • The size, age, gender and physical capabilities of the parties;
  • The nature of the force being used against the accused;
  • Whether there were other ways to respond;
  • Any prior force events;
  • Whether the responding force was proportional to the initial force.

WHAT ARE THE PENALTIES FOR DOMESTIC ASSAULT?

In Canada, the penalties for domestic assault depend upon the circumstances of each case and can range from a peace bond to jail time.  If the Crown is proceeding by summary conviction (less serious offences), the offender may be required to pay restitution to the wronged party or pay for property damage or medical bills.  If the crime does not warrant a jail sentence, the offender may receive a suspended sentence (i.e. remain under probation) or conditional sentence (i.e. house arrest).

However, if the Crown is proceeding by indictment (most serious offences), it is likely that the assault was very serious in nature and the accused will face jail time if convicted.  For charges such as sexual assault or assault causing bodily harm, the accused can face up to 10 years in prison.  However, if the conviction is for aggravated assault, the accused can face up to 14 years in prison.

Offenders who are convicted of more serious forms of domestic assault are also likely to receive ancillary orders, such as a DNA order or firearms prohibition.  A DNA order requires the offender to submit samples of DNA to a national database that can be accessed by police officers across Canada.

If you are facing domestic assault charges, it is strongly recommended that you contact the experienced criminal defence lawyers at Affleck & Barrison LLP today online or at 905-404-1947 to find out what your options are to achieve the best possible result. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. 

Ontario Will No Longer Prosecute HIV Non-Disclosure Cases

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about criminal charges being laid against individuals living with HIV who fail to disclose their health status prior to engaging in sexual relations. Given the advancements in science and medicine in terms of treatment of the disease, we are beginning to see that changes are necessary to the criminal justice system.

ONTARIO GOVERNMENT’S ANNOUNCEMENT

On World AIDS Day (December 1, 2017), Ontario Attorney General, Yasir Naqvi, and Health Minister, Eric Hoskins, announced that Crown attorneys in Ontario will no longer prosecute cases of HIV-positive individuals who do not disclose their health status to their sexual partner if they have a suppressed viral load for six months.

World AIDS Day is recognized as a time to consider the impact that HIV/AIDS has had on Canadians and thank those dedicated to preventing the disease and caring for and treating those that the disease has impacted.

Over the years there have been remarkable medical advances and HIV treatment has slowed disease progression so that many HIV-positive individuals can now consider the disease as a chronic, manageable condition. The criminal justice system must now reflect the current reality of this disease.

HIV TRANSMISSION RISKS

Studies have found that sexual activity, whether using a condom or not, with an HIV- positive individual who is receiving prescribed treatment and has maintained a suppressed viral load poses a negligible risk of transmission.

Viral load refers to the amount of HIV virus in a person’s blood. Viral suppression is defined as suppressing or reducing the function and replication of a virus. Reaching viral suppression means that the amount of HIV in an individual is very low. Viral suppression can help HIV positive individuals live healthier and longer lives and can reduce the likelihood of transmitting the virus to another person.

CRIMINAL JUSTICE SYSTEM RESPONSES TO HIV NON-DISCLOSURE CASES

The Supreme Court of Canada in the 2012 R. v. Mabior decision established that HIV-positive individuals have a duty to disclose their HIV status prior to sexual activity that poses a “realistic possibility of transmission”. The Court convicted Mabior on three counts because, although he had a low viral load when he had intercourse with three sexual partners, he did not use a condom. The Court found that Mabior met the test for “a realistic possibility of transmission of HIV” and therefore was convicted. At the time, the law was clear that HIV-positive individuals must disclose their status before engaging in sexual activity that poses a realistic possibility of transmission of HIV in order to avoid criminal liability.

However, the Supreme Court of Canada in the R. v. Mabior decision also recognized that scientific and medical advances regarding HIV/AIDS would progress over time and allowed for the law to evolve in the future as well.

Having reviewed all of the updated medical and scientific evidence, the Ontario government has decided that the criminal law should not apply to individuals living with HIV who have engaged in sexual activity without disclosing their status as long as they have maintained a suppressed viral load as the “realistic possibility of transmission test” is not met in these circumstances. An individual living with HIV who complies with their treatment is viewed as an individual who is acting responsibly.

In general, it is recommended by Canada’s Department of Justice that because the realistic possibility of transmission test is likely not met, the criminal law should not apply to:

  • Individuals living with HIV who are in treatment;
  • Individuals living with HIV who are not in treatment, but use condoms;
  • Individuals living with HIV who only engage in oral sex (unless other risk factors are present and the individual living with HIV is aware of those risks).

We will continue to follow any developments in the provincial and federal review of criminalization of HIV non-disclosure and will blog about updates as they become available.

In the meantime, if you have any questions about your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer 24-hour phone service, 7 days a week for your convenience.

HIV Positive Status to Potentially Factor into Sexual Assault Sentencing

Written on Behalf of Affleck & Barrison LLP

Crown prosecutors in Saskatchewan recently clarified that an HIV positive man facing charges for choking a woman unconscious and then sexually assaulting her will not be charged with aggravated sexual assault. However, the Crown has argued that the man’s HIV status and the victim’s subsequent fear of having potentially contracted the virus should be considered during sentencing.

What Happened?

The sexual assault occurred in May 2015. The victim was on her way home after socializing with friends at a pub. She was accompanied by a friend until she was about half block from her apartment. As she cut through a back alley, she was approached by the man in question, who rode his bike alongside her, started making inappropriate comments, and touching her. The man eventually tackled her, choked her unconscious, and forcibly penetrated her before she eventually escaped.

After the man was arrested, the victim learned that he was HIV-positive. She was treated with potent post-exposure antiretroviral drugs and experienced six months of anxiety while she awaited her test results (which were negative).

Aggravated Sexual Assault

The Crown initially charged the man with aggravated sexual assault due to his HIV-positive status. Originally, the risk of transmission to the victim was considered the aggravating factor in the assault, however, the Crown reconsidered its original charge after evidence from an infectious disease specialist revealed that the man had regularly been taking antiretroviral drugs which suppressed his virus to a low enough level that transmission was “nearly impossible”. The man’s HIV-positive status, therefore, did not endanger the woman’s life.

He was still convicted of aggravated sexual assault, but it was because he choked the victim, not because of his HIV-positive status.

Prosecutors asked for a minimum sentence of 12 years, arguing that the victim’s fear of contracting HIV had been real, even if the actual risk of doing so was not. They noted that:

However low the risk is, the anxiety for the victim when she found out that this individual was in fact HIV-positive, is an aggravating factor.

HIV Prosecutions in Canada

As we previously blogged about, the majority of HIV-related prosecutions in Canada involve consensual sexual relationships which eventually led to prosecution because an HIV-infected partner did not disclose his or her status.

In 2012, the Supreme Court of Canada clarified that individuals with low-level HIV who use condoms when they engage in sexual relations, cannot be charged with aggravated sexual assault for non-disclosure of their status.

Since then, HIV activists have argued that the SCC’s criteria are too stringent and that medical advances in reducing transmission risk have progressed to the point that it is not necessary for individuals to have both a low viral load and to wear a condom. Experts have said that adding a condom to the situation “negligibly changes the risk” because the risk of transmission is already basically zero.

In this case, experts praised the fact that prosecutors recognized the reduced transmission risk, despite the lack of condom use, to determine that a charge of aggravated sexual assault was not justified.

Perception of Risk as Aggravating Factor

Both the Crown and defence lawyers recognized that, in this case, the victim’s fear of transmission could be considered an aggravating factor. However, the Defence is asking for a five-year sentence. Sentencing was delayed by three weeks in order to provide the Judge time to review a Gladue Report (a special pre-sentencing hearing into an Indigenous perpetrator’s background).

The provincial and federal governments are both currently reviewing the criminalization of HIV non-disclosure. We will continue to follow the developments and will provide updates as they become available.

In the meantime, if you have questions about your rights, contact one of the knowledgeable and well-respected Oshawa criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our lawyers have experience successfully defending charges of aggravated assault and sexual assault. We will take the time to understand the particular circumstances of your case and work to achieve the best possible result.

Ontario Goalie Gets 30 Day Jail Sentence for On-Ice Assault

Written on Behalf of Affleck & Barrison LLP

Todd Ball, a goalie who “destroyed” another hockey player’s face with his stick has been sentenced to 30 days in jail (to be served on weekends) and one year of probation for assault causing bodily harm.

Stick to the Face

The incident occurred in May 2016 on the final day of the 3-on-3 Ice Hockey Challenge, a beer-league tournament in Fort Erie.

Ball was intoxicated at the time of the incident. He and some friends had been celebrating his birthday and binge drinking since early in the morning. The victim, Ryan Cox, was on a breakaway near the end of the game. As Cox approached the net, Ball left the goalie crease and, using both hands, violently swung his goalie stick directly into Cox’s face. Cox was immediately taken to hospital where he underwent more than seven hours of surgery to reconstruct his face and repair the significant damage.

http://https://www.youtube.com/watch?v=FX3riOFqdWk

Medical records indicate that Cox suffered a concussion, fractures on both sides of his nose, a shattered nose, and fractured orbital bone. He currently has six plates holding his face together, and his treatment is not yet done. Since the incident which took place more than 11 months ago, he has been unable to return to work. He says that his “life has never been the same”, and that he cannot feel his face, gets bad headaches, and that it is hard for him to sleep.

Assault Charges

Ball originally faced more serious charges of aggravated assault, but struck a plea deal for the more lenient charge of assault. He has reportedly written Cox a letter of apology and is also seeking treatment for alcoholism.

At trial, the Crown prosecutor recommended that Ball be sentenced from anywhere between 30 days to nine months in jail. Ball’s defense counsel requested that Ball be placed on probation or be given a conditional discharge.

Justice Colvin stated that on-ice assaults during a hockey game are a challenge for the legal system. By stepping onto the ice, all players accept that there may be some level of violence in the game, and that they may be injured. The challenge arises in differentiating between the nature of hockey, which involves physical contact, and criminal conduct that occurs outside of this standard context of the game.

Justice Colvin has said:

In my mind, the significant fact is that this was a non-contact, fun tournament…it makes it very different from cases involving competitive play, for instance in the NHL or the AHL. Some violence might be expected in those games, though not so much as to bring criminal law into play.

In reaching his final decision, Justice Colvin considered a pre-sentencing report written about Ball. According to the report, Ball had a “troublesome upbringing”, which the judge stated was “an understatement”.

Ball’s father was a violent, abusive biker who had spent 20 years in prison. Over the course of Ball’s childhood, there were a number of police interventions at the family home, including one which ended in a 10-hour standoff with an emergency task unit. Ball’s father was eventually beaten to death by a biker gang when Ball was 12 years old.

Justice Colvin ultimately determined that Ball’s background and drinking problem were an explanation, but not an excuse, for his actions on the ice.

Justice Colvin also commented on the difficult nature of sentencing, stating:

Sentencing must attempt to strike a balance between the offence and its consequences on the one side, and the offender, both good and bad, on the other side. That balance is difficult to find. For the victim, his friends and family, no punishment can be enough. For the accused, his friends and family, no amount of understanding, compassion, and forgiveness is enough.

If you are facing assault charges, contact Durham region assault lawyers Affleck & Barrison LLP. We have a reputation for effective results in defending all manner of assault charges. We offer a variety of payment options, a free initial consultation, and a 24-hour phone service. Contact us at 905-404-1947 or online to speak with an Oshawa lawyer specializing in the defence of assault.

Teens Dressed as Creepy Clowns in Oshawa Face Charges  

Written on Behalf of Affleck & Barrison LLP

The “creepy clown” trend that first emerged in the U.S has moved north of the border and is affecting cities and towns across Ontario. Police in Durham region have responded to more than 30 calls involving “creepy clowns” in less than three weeks.

Recently, three Oshawa teens were charged with causing a nuisance after pulling up to pedestrians in a grey vehicle while dressed as clowns, opening the doors, and trying to scare other drivers. One of the teens was additionally charged with reckless driving.

While the “creepy clown” trend may seem like a harmless prank, or a funny way to bring yourself some fleeting Internet fame, there can be some serious civil and criminal repercussions.

Reckless Driving and Other Driving Offences

Negligence and reckless driving are both civil, not criminal charges. However, if the actions of these three Oshawa pranksters were more serious, and caused bodily harm, for instance, they could potentially have faced more serious criminal charges of criminal negligence or dangerous driving.

We’ve previously blogged about driving offences and their potentially significant consequences. Not only do these offences carry significant financial penalties and substantial implications on car insurance, they can also come with potential jail terms (up to 5 years, or 10-14 years for dangerous driving depending on whether it caused bodily harm). Needless to say, pranking someone while operating a motor vehicle (whether or not you’re dressed as a clown) is not advisable, and can have serious implications.

Other Potential Criminal Implications of “Creepy Clowning”

After receiving more than a dozen calls about creepy clown sightings in the area, police in Kitchener-Waterloo had to issue warnings to the public stating that while it is not illegal to dress like a clown, it is a crime to intimidate, threaten or harass people, even if it done just as a prank.

A Waterloo Region police spokesperson stated that police become concerned and potential criminal charges are possible where people dressed as clowns “…start to chase young children, start to try to scare young adults, or, in some cases carry replica weapons and try to intimidate individuals”.

There were multiple such incidents in the Kitchener-Waterloo area recently. In one case a clown was seen carrying an imitation sword and a plastic gun. In another, two clowns chased a pair of girls, and in yet another three clowns (one carrying a large stick) followed a pedestrian. Nobody was physically injured in any of these cases, but this does not mean that criminal charges would not have been laid had police found the pranksters. The perpetrators may have, for instance, faced assault charges.

Section 265(1) of the Criminal Code provides that a person commits an assault where he/she “attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect [his/her] purposes.”

It is not difficult to see how someone dressed as a clown and acting menacingly/chasing someone down the street could be viewed as threatening to apply force to another person through their act or gesture, therefore facing possible assault charges.

Such charges would be even more likely where the person dressed as a clown was carrying a “weapon”, even if it was plastic given that under s. 265(1), it is also assault to “accost or impede another person” while “openly wearing or carrying a weapon or an imitation thereof.”

What Does This Mean?

As funny as it may seem to terrify someone while dressed as a clown, it is noteworthy that any such actions could lead to criminal charges, particularly as communities, schools, and parents have become very sensitive to such actions in recent weeks.

Lessons to learn from all of this? Be smart this Halloween.

The lawyers at Affleck & Barrison are extremely knowledgeable and are experienced at fighting a wide range of assault offences. Call us at 905-404-1947 or contact us online for a free consultation. We offer 24-hour phone service for your convenience, and a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help.