Charter of Rights and Freedoms

Extreme Intoxication Can be Used as a Defence for Sexual Assault in Ontario

Written on Behalf of Affleck & Barrison LLP

An Ontario judge has ruled that the defence of extreme intoxication in sexual assault cases is once again valid in Ontario.

Superior Court Justice Nancy Spies ruled recently in the case of R. v. Cameron McCaw (“McCaw”) that section 33.1 of the Criminal Code, which states that self-induced intoxication is not a defence, is unconstitutional as it violates a defendant’s right to be presumed innocent and the right to fundamental justice.

HISTORY OF THE DEFENCE OF EXTREME INTOXICATION

The Supreme Court of Canada (“SCC”) ruled in 1994 that drunkenness in its extreme is a defence to sexual assault. This is known as the Daviault decision. The SCC upheld a trial judge’s acquittal of chronic alcoholic, Henri Daviault. Daviault was permitted to use extreme intoxication as a defence against charges that he sexually assaulted a disabled 65-year-old woman. Daviault had consumed up to eight beers and almost an entire large bottle of brandy. The court ruled that depriving Daviault of the drunkenness defence would violate his Charter of Rights and Freedoms (“Charter”).

Following this ruling, the federal government quickly introduced a law abolishing the defence of self-induced intoxication for crimes involving assault (section 33.1 of the Criminal Code).

33.1 (1)  It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

33.1 (2)  For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

WHAT HAPPENED IN THE CASE OF R. v. MCCAW?

On July 11, 2015, the alleged victim, referred to as K.B., and her ex-boyfriend (also the roommate of McCaw) attended a pool party from 5 p.m. to 11 p.m. where they consumed a lot of alcohol. K.B., her ex-boyfriend, and another man then met up with McCaw at his apartment . They had a few more drinks and then went outside to the parking lot to smoke. K.B. was so intoxicated that she had to be carried inside the apartment and placed on the couch in the living room where she passed out, fully clothed. McCaw and his two friends went to a nearby bar to continue drinking. McCaw and the ex-boyfriend then returned to the apartment. At some point during the evening, McCaw allegedly consumed marijuana and GBD, the “date-rape drug”.

K.B. alleges that “she awoke to find Mr. McCaw touching her sexually and kissing her and then engaging in sexual intercourse with her.” She initially thought this was her ex-boyfriend, so she did not resist. She then realized that it was McCaw. The victim left the apartment with her ex-boyfriend, leaving McCaw sitting in an arm chair, where he appeared to be sleeping and holding a pair of scissors.

The victim reported the sexual assault to police around 5 a.m. the next morning. Police proceeded to arrest and charge McCaw with sexual assault.

JUSTICE SPIES’ DECISION

Prior to McCaw’s trial, an application was filed by McCaw’s lawyer seeking an order affirming that section 33.1 of the Criminal Code was not in effect as it violated McCaw’s rights under the Charter. Allegedly, McCaw will testify at trial that he had sexual intercourse with A.B., but performed these acts without having intended to do so.

Justice Spies stated that section 33.1 “relieves the Crown of proving the specific mens rea for the charged offence and instead allows for proof of guilt on a different, and arguable lower, standard. It does this even where the state of the accused’s intoxication is so extreme that it reasonably gives rise to a doubt about whether the accused intended the offending action. The prospect of conviction in the face of a reasonable doubt offends both s. 7 and s. 11(d) of the Charter.”

Justice Spies also maintained that section 33.1 relieves the Crown of proving the voluntariness of the act (a mental element of the crime), again infringing an accused’s Charter rights.

In conclusion, Justice Spies allowed McCaw’s application and affirmed that section 33.1 of the Criminal Code is of no force and effect in Ontario. Thus, this decision does not apply directly to any other province in Canada.

Justice Spies provided her ruling on the defence of extreme drunkenness prior to McCaw’s trial. This allows McCaw to use the defence at trial on the charge that he sexually assaulted a woman in a Toronto apartment.

McCaw must prove at trial that it was more likely than not that he was intoxicated to the point of automatism. This is described as a robotic state where he was not aware of his actions.

McCaw’s trial begins on September 12. We will provide updates in this blog as new developments regarding this case become available.

In the meantime, if you have been charged with a sexual assault offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

 

Convicted Armed Robber Released Due to Sentencing Delay

Written on Behalf of Affleck & Barrison LLP

The Ontario Superior Court of Justice has released Ammaan Charley (“Charley”) from custody due to an excessive sentencing delay. Charley was facing a mandatory minimum sentence of seven years for his conviction of armed robbery, aggravated assault, and possession of a restricted firearm in January 2017.

WHAT HAPPENED?

On January 15, 2015, Charley, 22-years-old at the time, entered Mr. Jerk’s West Indian Grocery on Eglinton Avenue West with a loaded revolver. He proceeded to pistol whip the clerk on his forehead and skull, ripped the gold chain off of his neck and demanded money at gunpoint. The clerk believed he was going to be killed and began wrestling over the gun. The struggle ended up in the laneway outside of the store and the clerk accidentally fired two shots.

At the time of the incident, Charley had a criminal record of violent crime and gun possession.

In January, 2017, Justice E.M. Morgan ruled that Charley was guilty of armed robbery, aggravated assault, and possession of a loaded, restricted firearm.

Charley has remained in custody at the Toronto South Detention Centre from the date of his arrest through to the date of his section 11(b) Charter of Rights and Freedoms application regarding sentencing delay.

WHAT HAPPENED POST TRIAL?

Following Charley’s conviction, the Crown brought an Application detaining Charley for the purposes of having a psychiatric assessment to be used as evidence in a proposed application to have him declared a dangerous or long-term offender. It took seven months to receive his records. The request for the psychiatric assessment was dismissed on June 22, 2017.

The defence brought a number of constitutional challenges regarding pre-trial detention and the manner in which inmates are treated at the Detention Centre. These accusations included no outside yard time, no recreational facilities, double bunking in cells designed for a single inmate, no visitation rights except using a screen through a video camera, and routine invasive searches. These challenges resulted in several days of evidentiary hearings and legal arguments. Some of these constitutional challenges were dismissed on February 22, 2018.  At the time of the application regarding sentencing delay, the balance of the evidence regarding the constitutional challenges was still waiting to be completed.

SENTENCING DELAY

In late June, 2018, Justice Edward Morgan stayed the charges against Charley relying upon the Supreme Court of Canada’s R. v. Jordan decision. The charges were stayed by the court on the basis that too much time had passed since Charley’s conviction and that his constitutional rights had been breached by the unreasonable delay.

According to the Jordan decision, which we have previously blogged about, cases tried in the Superior Court must be concluded within 30 months. To date, most of the cases reviewed by the courts for violating the Jordan decision concern pre-trial delays. In this case, the court was looking at a sentencing delay that occurred after the accused had been found guilty. Charley was convicted 24 months after charges were laid and his sentencing was not scheduled to occur until 17 months later.

The Jordan decision only briefly referenced sentencing delays. The Supreme Court wrote:

[W]e make no comment about how this ceiling should apply to [Jordan] applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.

Justice Morgan reviewed the history of proceedings in detail in his written decision, making appropriate calculations for any delays attributed to the defence. He concluded that the total delay in this case was 32 months (24 months of pre-trial delay and 8 months of sentencing delay).

Justice Morgan concluded that this delay was above the presumptive ceiling as set out in the Jordan decision. That decision upholds the protection of security of the person and the right to be tried within a reasonable time. Therefore, Justice Morgan concluded that Charley’s rights under the Charter of Rights and Freedoms had been infringed, the proceedings were stayed, and Charley was released.

It is unclear at this time whether the Crown prosecutor will appeal this decision. It is possible that the Ontario Attorney General’s Office will request that the Court of Appeal review this decision as it is sure to have a significant impact on the justice system.

We will continue to follow any developments in this case and will provide updates in this blog should they occur.

In the meantime, if you have been charged with a criminal offence or have 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 not afraid to fight for your rights and protect your interests.

Two Ontario Cases Fall Apart As a Result of Police Failure to Immediately Inform of Right to Counsel

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Justice has recently excluded significant evidence in two criminal cases involving impaired driving after ruling that police had violated the accuseds’ Charter rights by failing to immediately inform them of their right to counsel.

In the first case, Justice Craig Parry excluded breath samples from the driver’s trial due to a Charter breach, which resulted in a charge of driving with a blood-alcohol content above the legal limit to be dismissed.

In another case earlier this month, a man was found not guilty of having care or control of a vehicle while impaired by a drug when Justice Scott Latimer threw out the evidence after ruling that police had violated his Charter rights.

RIGHT TO COUNSEL

The right to counsel is a fundamental right included in the Canadian Charter of Rights and Freedoms (“Charter”).

10.  Everyone has the right on arrest or detention:

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

Under the Charter, the detainee must be informed of the right to retain and instruct counsel “without delay”, which has been interpreted to mean “immediately”. The Supreme Court of Canada has made it clear in the case of R. v. Suberu that avoiding delay helps to protect against the risk of self-incrimination and interference with an individual’s liberty. This obligation also requires police to abstain from obtaining incriminatory evidence from the detainee until he/she has had a reasonable chance to contact a lawyer, or the detainee has unequivocally waived the right to do so.

The police have both an informational duty and an implementational duty upon arrest or detention. The police must both inform the accused of the right to retain counsel and must provide the detainee with a reasonable opportunity to retain and instruct counsel. Justice Abella, speaking for the Supreme Court of Canada in the case of R. v. Taylor, stated:

The duty to inform a detained person of his or her right to counsel arises ”immediately” upon arrest or detention (Suberu, at paras 41-42) and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to counsel at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances.

WHAT HAPPENED IN THE CASE OF COLIN MITCHELL?

On October 9, 2016, a report was received by police of a possible impaired driver exiting Highway 401 at Highway 8. Constable Karen Marquis received the dispatch and pulled over the vehicle that Colin Mitchell (“Mitchell”) was driving. Mitchell failed a breathalyzer test and was then arrested. The officer waited 11 minutes after the arrest to read Mitchell his rights to counsel. In the back of the police cruiser Mitchell told the officer that he wanted to call a lawyer. He was not allowed to make the call until he arrived at the police station. Mitchell was finally given the chance to make a phone call to duty counsel 51 minutes after being placed under arrest.

On February 22, 2018, Justice Parry found that the officer breached her obligation to inform Mitchell of his right to counsel without delay and breached her implementational duty to facilitate access to counsel at the first reasonable opportunity. Justice Parry concluded that the evidence gathered in this case (the breath samples) was evidence that was attained in a manner that infringed the accused’s right to counsel. Justice Parry stated,

Exclusion of the evidence is the only remedy that can, in these circumstances, prevent bringing the administration of justice into further disrepute. To do otherwise would be to condone a perpetual indifference to the knowledge of the basic obligations created by one of the most important Charter rights.

Justice Parry, therefore, excluded the results of the breathalyzer test due to the delay in informing Mitchell of his right to counsel. The charge of driving with more than the legal limit of alcohol in his blood was dismissed.

WHAT HAPPENED IN THE CASE OF ANDREW DAVIS?

On July 17, 2016, a civilian reported a case of bad driving to the Waterloo Regional Police. Constable Tyler Shipp located the vehicle in question in a parking lot in Waterloo and Andrew Davis (“Davis”) was found in the driver’s seat. The officer spoke to Davis through an open window. Davis had sunglasses on, no shirt and was slightly dishevelled. Davis’ speech was described by the officer as garbled. The officer directed Davis to remove his sunglasses and observed Davis’ eyes to be “swollen, half open, very drowsy”.  Another officer, Constable McKenna, arrived on scene to administer a Standard Field Sobriety Test.

Following the sobriety test, Davis was arrested, handcuffed and placed in the back of the police cruiser. Drug paraphernalia, prescription drugs and what the officer thought was a meth pipe were located inside Davis’ vehicle. Eight minutes after his arrest, Davis was read his rights to counsel by police. These rights should have been read immediately following his arrest.

On March 6, 2018, Justice Latimer held that a violation of section 10(b) of the Charter occurred as a result of the police failure to provide Davis with his rights to counsel without delay upon arrest. Due to the Charter violation, Justice Latimer excluded important evidence, including all of the items seized from Davis’ vehicle and his post-arrest statement made to the police. Justice Latimer concluded that the Crown had failed to prove that Davis was impaired by a drug at the time of his care or control of his motor vehicle.

If you have been charged with impaired driving or any other driving offence, contact one of the experienced Oshawa criminal lawyers at Affleck & Barrison LLP for a free consultation. We have a 24-hour phone service for your convenience. Contact our office online or at 905-404-1947.

Indefinite Solitary Confinement Ruled Unconstitutional by B.C. Supreme Court

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the B.C. Supreme Court striking down sections of the Corrections and Conditional Release Act (“CCRA”) that permit prolonged and indefinite solitary confinement in federal prisons.

WHAT HAPPENED?

In this case, lawyers for the British Columbia Civil Liberties Association and the John Howard Society of Canada were asking the Court to end administrative segregation in federal penitentiaries in Canada. The Plaintiffs argued that sections 31, 32, 33 and 37 of the CCRA were unconstitutional as they infringe upon an inmate’s rights and freedoms granted by the Canadian Charter of Rights and Freedoms (“Charter”).

The Correctional Service Canada (“CSC”) procedure known as administrative segregation (similar to solitary confinement) authorizes the placement of inmates in small cells for up to 23 hours a day without meaningful human contact. This type of segregation has no legislated time limits and is left to the discretion of the warden.

The B.C. Court ruled that the laws regarding administrative segregation violate section 7 of the Charter guaranteeing life, liberty and security of person. These infringing laws allow indefinite solitary confinement, prevent independent oversight of segregation decisions and deprive inmates from having a lawyer represent them at segregation review hearings.

The Court also ruled that these laws discriminate against mentally ill and Indigenous inmates contrary to section 15 of the Charter, which guarantees equality before and under the law and equal protection and benefit of the law without discrimination.

Justice Peter Leask wrote in his decision:

I am satisfied that the law … fails to respond to the actual capacities and needs of mentally ill inmates and instead imposes burdens in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.

HARMFUL EFFECTS OF SEGREGATION

The B.C. Court heard extensive testimony from former prisoners, researchers and correctional officials who addressed the heath effects of administrative segregation. The Court held that solitary confinement places prisoners at significant risk of serious psychological harm and increased risk of self-harm and suicide.

Justice Leask emphasized that based on the evidence solitary confinement increases destructive symptoms and behaviours, including “anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour.”

The laws pertaining to solitary confinement were found by the Court to be overbroad and damaging to institutional security. Furthermore, the Court held that the laws authorizing solitary confinement do so in circumstances where lesser forms of restriction would achieve the same results.

The Court ruled that a procedure of prisoner segregation must include time limits. Time limits would “create the pressure to ensure that decisions about alleviating an inmate’s segregation were made and implemented promptly, while still allowing CSC to use the practice for short periods to address security concerns.”

International consensus has determined that 15 days is an ideal cap for segregation placements. Justice Leask did not prescribe a set number of days, but considered 15 days “a defensible standard”.

WHAT HAPPENS NEXT?

Justice Leask suspended his decision for 12 months to give the government time to draft new legislation, which must include strict limits on the amount of time an inmate can be segregated.

This B.C. decision requires broader legislative changes than the ruling made by the Ontario Superior Court last month, which we previously blogged about. In the Ontario case, the Judge held that the lack of independent review of prisoners placed in solitary confinement means that there is no accountability for the decision to segregate. Justice Marrocco put his decision on hold for a year to allow Parliament to make the legislative changes necessary. The Canadian Civil Liberties Association recently announced it would appeal this Ontario decision.

ORDER STOPPING ONTARIO FROM PLACING MENTALLY ILL INMATES IN SOLITARY CONFINEMENT

One day following this B.C. decision, Ontario announced an agreement between the Ontario government and the Human Rights Commission ensuring that inmates with mental health disabilities will no longer be placed in solitary confinement across the province.

This Order includes the process of properly identifying inmates with mental health disabilities (including those at risk of self-harm or suicide) and issuing appropriate alerts verified by professionals. The alert would indicate that alternatives to segregation must be considered for the particular inmate.

We will continue to follow the developments in the law regarding solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison at 905-404-1947 or contact us online. For your convenience, we offer 24-hour phone services.

Court Finds that Solitary Confinement Laws are Unconstitutional

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the Ontario Superior Court striking down Canada’s solitary confinement laws as unconstitutional following a three year challenge by the Canadian Civil Liberties Association (CCLA).

WHAT HAPPENED?

In the court case, lawyers for the CCLA requested a declaration that sections 31 to 37 of the Corrections and Conditional Release Act (“CCRA”), which allow the Correction Service of Canada to remove an inmate from the general population for a non-disciplinary reason, are unconstitutional as they infringe upon the rights granted in sections 7, 11(h) and 12 of the Charter of Rights and Freedoms (Charter”).

This application referred specifically to administrative segregation, the purpose of which is to maintain the security of the penitentiary and of all persons within the penitentiary. Under the current legislation, a warden is allowed to order solitary confinement when an inmate is at risk from others or poses a risk to the security of the prison. When this occurs, inmates are ordered to spend 22 hours in a cell without any meaningful human contact. There is no cap on the length of time that segregation occurs in the legislation.

Under the current legislative system, prison wardens are responsible for the initial decision to place an inmate in solitary confinement and are involved in the internal tribunal assembled five days later to study and judge that decision. Justice Marrocco found that this lack of independent review means that there is no accountability for the decision to segregate.

CURRENT SEGREGATION PROCESS IS “PROCEDURALLY UNFAIR AND CONTRARY TO THE PRINCIPLES OF FUNDAMENTAL JUSTICE”

Justice Marrocco ruled that this arbitrary and potentially biased system is improper given the severe deprivation of liberty and security of the person that takes place when an inmate is segregated. These are two rights guaranteed under section 7 of the Charter.

Justice Marrocco wrote:

I am satisfied that the statutory review of the decision to segregate is procedurally unfair and contrary to the principles of fundamental justice because the procedure chosen provides that the Institutional Head is the final decision maker for admission, maintenance and release from administrative segregation and is the final institutional decision-maker of required reviews and hearings which occur immediately after an inmate is segregated.

However, Marrocco stated that banning the practice immediately could be disruptive and dangerous. Therefore, Justice Marrocco put his declaration on hold for a year, which he felt was a reasonable time frame to allow Parliament to address the situation.

ADDITIONAL FINDINGS BY JUSTICE MARROCCO

The CCLA argued for a 15-day limit on solitary confinements, a prohibition on the isolation of mentally ill inmates, and, a rule barring prisoners aged 18 to 21 from solitary lockups.

Regarding the effect of solitary confinement, Justice Marrocco agreed with CCLA and wrote that “placing an inmate in administrative segregation imposes a psychological stress, quite capable of producing serious permanent observable negative mental health effects”. He, however, did not find that solitary confinement itself to be unconstitutional, even when applied to inmates aged 18 to 21 or the mentally ill. He rejected any argument that this practice amounts to cruel and unusual punishment. Justice Marrocco also refused to declare placement in solitary confinement for more than 15 days to be unconstitutional.

The CCLA launched this constitutional application shortly after the British Columbia Civil Liberties Association (BCLA) and the John Howard Society of Canada filed a similar, but unrelated, lawsuit in Vancouver. A ruling in the B.C. case is expected within the next three months.

We will continue to follow the developments in the law with regards to solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison at 905-404-1947 or contact us online. We are here to help you 24/7.

Unconstitutional Delay

Written on Behalf of Affleck & Barrison LLP

In a recent decision delivered by Justice Michael Moldaver, a unanimous Supreme Court of Canada sided with the dissenting opinion of Justice Brian O’Ferrall of the Alberta Court of Appeal criticizing the Crown for its failed prosecution and for institutional and logistical delays which could have been avoided.

The defendant, Shane Rayshawn Vassell, waited three years for a three-day trial. During that time, Mr. Vassell did whatever he could to move his case to trial. His defence counsel applied for a stay of proceedings under section 11 of the Canadian Charter of Rights and Freedoms due to the delay, which was denied. The appeal was also dismissed.

Mr. Vassell argued that any delay that was not his own fault is the Crown’s fault and that the Crown, as the state, should be held responsible for the institutional failings of the state. Justice O’Ferrall in his dissent, agreed with Mr. Vassell, finding that the trial judge had mischaracterized the nature of the delay. Justice O’Ferrall also noted that the Crown must bear some responsibility for delay where it results from a failure to apprehend the parameters of the case in a timely fashion.

In a concisely-worded decision, the Supreme Court noted that “courts must be careful not to miss the forest for the trees”. Mr. Vassel attempted to move his case to trial and much of the delay was caused by his six co-accused and their lawyers. Although the Crown was entitled to prosecute all seven accused jointly, the Court noted that it was also required to remain vigilant that this decision not compromise the rights of the accused persons.  The Court found that a more proactive stance on the Crown’s part was required in these circumstances.

The Supreme Court set aside Mr. Vassell’s conviction and entered a stay of proceedings.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison online or at 905-404-1947.

To read the full Supreme Court decision, click here.

To read the Alberta Court of Appeal decision containing Justice O’Ferrall’s dissent, click here.

Supreme Court Strikes Down Mandatory Minimum

Written on Behalf of Affleck & Barrison LLP

This past Friday, the Supreme Court of Canada released two significant criminal law decisions reversing two laws that formed part of former prime minister Stephen Harper’s tough-on-crime agenda.

The first decision, R v Safarzadeh-Markhali, 2016 SCC 14, deals with the Truth in Sentencing Act, a controversial piece of legislation passed by the Conservative government in 2009. At issue in this case is s.719(3.1) of the Criminal Code, which prohibits a judge from giving more than one-for-one credit for pre-trial custody served by an accused. Mr. Safarzadeh-Markhali, who was arrested on possession of marijuana and eight firearms offences, was denied bail because of his prior criminal record. He was convicted on all but one of the firearms offences and prior to his sentencing, he argued that the prohibition against giving additional credit for pre-trial custody violates section 7 of the Charter of Rights and Freedoms and the Supreme Court unanimously agreed. Despite objections from the former Conservative government, judges were routinely giving 1.5 days of credit for each day served following a previous Supreme Court decision.

The second decision, R v Lloyd, 2016 SCC 13, deals with the Safe Streets and Communities Act, an omnibus crime bill introduced by the Conservatives in 2012 which made sweeping reforms to Canada’s justice system. The central issue in this case was the mandatory minimum sentence of one year for drug traffickers who have a previous trafficking conviction. The Court held that the sentence constitutes cruel and unusual punishment and is therefore unconstitutional.  In this decision, the Court also suggested that other mandatory minimum sentences are vulnerable to being struck down under the same reasoning, effectively inviting Parliament to reconsider whether it wants to maintain mandatory minimum sentences at all. A huge number of mandatory minimum sentences were introduced by the former Conservative government and have been criticized by many for taking away judicial discretion.

These decisions, both of which were written by Chief Justice Beverly McLachlin, return the power of discretion to the Canadian judiciary.

To speak with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

The Right to Silence: Part 2

Written on Behalf of Affleck & Barrison LLP

In a previous blog post, we wrote about the right to silence enshrined for all Canadians in the Charter of Rights and Freedoms. Another important component to the right to silence is the right against self-incrimination. The Charter also protects witnesses against self-incrimination. Under section 13, witnesses may not have any incriminating evidence they give as testimony used against them in separate proceedings. It is important to be aware that although it serves a similar purpose, the protection in section 13 is different from the Fifth Amendment to the United States Constitution, which allows a person to refuse to testify.

Similarly, under section 11 of the Charter, an accused person cannot be forced to testify at his or her own trial. However, when an accused person freely chooses to take the witness box and testify, there is no further right to silence. There is likewise no general restriction on which types of questions are permissible. An accused person who voluntarily testifies is not compelled to testify and is therefore not protected by section 13. However, an accused is still protected by section 13 in the sense that any incriminating evidence they gave in a prior proceeding cannot be used against them in the criminal trial. Finally, prior inconsistent testimony can be used in a criminal trial to impeach the credibility of an accused person.

A special right to silence also used to exist for spouses in Canada. It was commonly referred to as the rule of spousal incompetency or spousal immunity and it meant that a person could not be compelled to testify against his or her legally married spouse. There were a few exceptions, for example in case of sex offences or where the victims were children. However, in 2015, the Harper government enacted legislation entitled the Victims Bill of Rights Act. The Act amended the Canada Evidence Act to remove the spousal immunity protection – a common-law tradition that goes back hundreds of years.

If you have questions about your right to silence and would like to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

The Right to Silence

Written on Behalf of Affleck & Barrison LLP

You have the right to remain silent.

As a Canadian citizen, you are probably already aware that you have certain fundamental rights and freedoms, one of which is the right to silence. In Canada, this right, among others is set out in a document called the Charter of Rights and Freedoms, often referred to as simply the Charter.  The right to silence is protected under sections 7 and 11(c) of the Charter, which protect a person from being compelled as a witness against him or herself in a criminal proceeding.

The right to silence is one of the most under-appreciated yet powerful rights an individual has when he or she is under police investigation. And although most people are aware of their right to silence, the unfortunate reality, and one that as criminal defence lawyers we see far too often, is that human beings love to talk. The urge to explain ourselves is human nature, and it increases exponentially when a person is under arrest. But what you may fail to realize is that if you are under arrest, the police are not searching for an explanation – they are searching for evidence to use against you. And it will be used against you.

Police have no obligation to tell you the truth. They are allowed to deceive a suspect in an investigation, as long as the deception is not so offensive that it would shock the conscious of the community. This was clearly stated by the Supreme Court of Canada, and has been upheld by all levels of court across the country. The police are trained to conduct these types of interviews using a wide array of sophisticated interrogation techniques that exploit the weaknesses of human psychology. It is reckless and naïve to believe that you can outsmart the police or convince them of your innocence.

Although it may be against your instincts to choose to remain silent, remember that it is not only your best option, but also your right.

If you would like to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

 

 

Ruling in Twitter Harassment Case Protects Freedom of Speech

Written on Behalf of Affleck & Barrison LLP

In a highly publicized decision read in court this past Friday, Gregory Alan Elliott was found not guilty of criminal harassment on Twitter.  The Toronto man was cleared of two charges of criminal harassment arising from his Twitter interactions with two Toronto women’s rights activists, Stephanie Guthrie and Heather Reilly. The decision by Justice Brent Knazan, believed to be among the first of its kind in Canada, provided an analysis on the nature of Twitter and freedom of expression,.

In November of 2012, Mr. Elliott was arrested and charged with two counts of criminal harassment over his online interactions with the two women. Although they had both blocked Mr. Elliott on the site in August of that year, he continued to mention them in other tweets or comment on events or subjects they were discussing online. Ms. Guthrie and Ms. Reilly told police they believed he continued to track their movements and they feared for their safety.

Although Justice Knazan believed that the women may have felt harassed, he found that there was no proof that Mr. Elliott knew they felt that way. The language of Mr. Elliott’s tweets did not include explicitly threatening language. Freedom of expression is a Charter right, and people must tolerate the annoyance of opposing views as part of that right. Justice Knazan noted that although Mr. Elliott’s tweets were mean, crass and insulting, the Crown was unable to prove beyond a reasonable doubt that there was a real threat of violence. Both women may have actually feared Elliott, but Justice Knazan felt there was not enough proof that he had the potential to become violent or that he was aware of their sentiments.

This decision is significant because it makes clear that freedom of speech rights protect even tweets or communications that may annoy or offend us. The decision also offers guidelines on how future cases involving Twitter can be approached.

If you have questions about criminal harassment or freedom of speech and would like to speak to an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Sources:

http://www.thestar.com/news/crime/2016/01/22/verdict-in-alleged-harassment-of-toronto-feminists-could-change-the-twitterverse.html

http://www.theglobeandmail.com/news/toronto/verdict-expected-today-in-twitter-harassment-trial/article28334101/