children

Man Sentenced to 6 Years in Prison for Impaired Operation of Canoe

Written on Behalf of Affleck & Barrison LLP

Last summer, David Sillars (“Sillars”), became the first Canadian to be convicted of impaired driving charges while paddling a canoe.  He was recently sentenced to six years in prison for the April 2017 death of an eight-year-old boy.

We have previously blogged about a landmark ruling by an Ontario judge who decided that a canoe is a “vessel” for the purposes of the definition of vessel found in the Criminal Code of Canada, which includes the criminal charges of impaired operation of a vessel causing death, operation of a vessel over 80, and the dangerous operation of a vessel.

WHAT HAPPENED?

On April 7, 2017, Sillars took his girlfriend’s son, Thomas Rancourt (“Rancourt”), for a canoe ride down the Muskoka River to teach him how to paddle a canoe.  Sillars was intending to paddle in the direction of and to retrieve a blue barrel, which appeared to be wedged against a barrier by debris.  The canoe capsized and Rancourt was swept downriver and went over a waterfall at High Falls, and then drowned.  Sillars, on the other hand, swam safely to the shore.

In his lengthy decision, Justice Peter C. West set out the following key findings of fact based upon the evidence presented in court:

  • Temperatures were between 3 and 4 degrees Celsius on April 7, 2017;
  • School buses were cancelled due to slush and ice, resulting in poor road conditions on April 7, 2017;
  • The majority of the ice on the river had melted, although small chunks were visible, resulting in a reasonable inference that the river water was extremely cold;
  • The water levels of the river were very high on April 7, 2017;
  • The current in the river was fast-flowing and extremely strong;
  • The yellow barrier is a warning to caution boaters of the danger created by the water flowing towards the High Falls;
  • Sillars was cautioned by two experienced individuals who warned him of the dangerous water conditions;
  • Sillars did not agree to take or wear an adult sized lifejacket;
  • The PDF worn by Rancourt was too small for him, especially given that he was wearing three layers of clothing beneath it, including his winter jacket;
  • Sillars had consumed alcohol and THC prior to operating the canoe on April 7, 2017;
  • Sillars intention was to paddle to the yellow barrier to retrieve a blue barrel, which was clearly wedged in debris and partially submerged; and
  • Rancourt looked up to Sillars as a father figure, and this relationship created a duty of care for Sillars towards Rancourt.

Based upon the evidence, the court ruled that:

David Sillars’ decision to canoe towards the yellow warning barrier, during the spring run-off with the described dangers and risks…, with the sole purpose to retrieve a blue barrel, partially submerged and wedged against the yellow warning barrier by other debris, was a significant contributing cause of Thomas Rancourt’s death.  …[B]ut for the decision of Mr. Sillars to go to the yellow barrier, Thomas Rancourt would not have fallen out of the canoe and wound not have gone over the waterfalls and drowned. 

With respect to the issue of impaired paddling, the court considered whether Sillars’ drinking impaired his ability to operate a canoe (Sillars’ minimum blood-alcohol content was 128 milligrams of alcohol in 100 mililitres of blood and he had 14 nanograms of THC in his blood).  The court concluded that Sillars’ intellectual abilities, specifically his reaction time, decision making abilities and his ability to respond to an emergency situation, were impaired by his consumption of alcohol.

The fact that Sillars ignored warnings by two individuals as to the potential danger of canoeing in the conditions on the river, refused to wear an adult lifejacket and failed to bring the required safety equipment in the canoe demonstrated to the court that he overestimated his canoeing abilities and underestimated the level of risk he was enduring, which further demonstrated how the alcohol and marijuana impaired his decision making abilities.

THE SENTENCING

Justice West found Sillars guilty of all four charges he was facing and was sentenced in October, 2019.  The Crown asked the court for a jail sentence of six to eight years and an order prohibiting Sillars from operating a vessel for 20 years.  Sillars’ defence team asked the court for a two-year jail term.

Justice West described numerous aggravating factors that he considered when deciding on the terms of Sillars’ sentence.  The fact that Sillars was in a position of trust and authority in relation to Rancourt was one such factors, as well as his previous criminal record. 

In his reasons, Justice West commented on how this is a “unique” case as there are no precedent cases of criminal negligence causing death or impaired operation causing death in the case of a capsized canoe.  However, Justice West used precedent cases of those who have been found guilty of operating a motor vehicle while impaired and sentenced Sillars to six years in prison, an order requiring that samples of bodily substances be taken for the purposes of forensic DNA analysis  and an order prohibiting Sillars from operating a vessel for 10 years.

Justice West stated:

In my view general deterrence and denunciation are particularly important in cases where alcohol or drugs have impacted an offender’s ability, as in this case, to operate a vessel and the factor that a motor vehicle was not … involved makes no difference.

Sillars has already filed an appeal and has been released on $1,500 bail pending his appeal.  He must remain at home under house arrest and abstain from drinking alcohol. 

We will continue to follow any developments that may arise in this case and will report any updates in this blog.

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

Charges Laid after Children Left in Hot Car Alone

Written on Behalf of Affleck & Barrison LLP

In the small space of a car, temperatures can rise rapidly. This can result in an individual being unable to regulate their internal temperature. In this type of environment, the body (especially a small body) can go into shock quickly, and circulation to vital organs can fail.

Due to their size, infants and small children can dramatically be affected by extreme temperatures. Their core temperature can increase three to five times faster than that of an adult. Hyperthermia can occur when the body’s temperature rises to dangerously high levels and threatens your health. The average body temperature is 37 degrees Celsius.  An individual is considered to be suffering from hyperthermia when the body’s core temperature reaches 40.5 degrees Celsius.

General Motors of Canada funded a study that found that on a 35 degree Celsius day a previously air-conditioned small car when exposed to the sun can rise in temperature to over 50 degrees Celsius within 20 minutes. Within 40 minutes, the temperature inside the car can rise to 65.5 degrees Celsius.

More than half of all children left in hot cars were trapped there unintentionally. These children were often left behind in a moment of forgetfulness or trapped after playing unsupervised in an unlocked vehicle.

According to the Canada Safety Council, an average of 37 people die each year in the United States as a result of being locked in a hot car. There are no statistics of this nature available for Canada.

RECENT EVENTS

Earlier this week, a 29-year-old woman, Thuy Thanh Tam Nguyen (“Nguyen”), was criminally charged after leaving her infant in a locked parked car.

Halton police attended a plaza at Trafalgar Road and Dundas in Oakville last Sunday afternoon following a 911 call. Paramedics were called to examine the 11 month old infant boy. Fortunately, the infant suffered no physical harm. Nguyen was allegedly shopping at a nearby store for approximately 90 minutes.

Nguyen has been charged with abandoning a child and failing to provide the necessaries of life. She will return to court in Milton in July.

Just two weeks ago, police charged a 53-year-old Hamilton man after he left his friend’s young child alone in a locked car. A woman walking in a Walmart parking lot spotted the child in the car and coached him on how to unlock the vehicle. The 7-year-old child ”was soaking wet from head to toe in sweat”. He was examined by paramedics and cleared at the scene. The man is to appear in court on June 20, 2018.

CRIMINAL NEGLIGENCE CAUSING DEATH

In the circumstances when a child dies after being left alone in a car, the adult who was entrusted with taking care of the child is often charged with criminal negligence causing death.

This was the case when a three-year-old boy died in Burlington after being left in a hot car on May 23, 2018. By the time police arrived on scene, the boy was outside of the car and was pronounced dead. The temperature that day had reached 26.6 degrees Celsius. An autopsy determined that the preliminary cause of death was hyperthermia. Shaun Pennell faces one count of criminal negligence causing death and one count of failing to provide the necessaries of life. Pennell will appear back in court in Milton on June 27.

Typically, a conviction of criminal negligence causing death occurs when the accused person does not mean to injure or cause bodily harm through their reckless actions. Section 219 of the Criminal Code defines the accused as showing “wanton or reckless disregard for the lives or safety of other persons”. The maximum sentence is life in jail.

There are a wide range of sentences available in cases of criminal negligence causing death due to the numerous ways in which the offence can be committed.

In the case of 2-year-old Eva Ravikovich (“Eva”), who died when she was left in a car by a daycare worker in Vaughan, Olena Panfilova (“Panfilova”) was sentenced to 22 months in jail and three years on probation. Panfilova pleaded guilty to criminal negligence causing death. Panfilova had 35 children in her illegal daycare and had forgotten that she left Eva in the car outside the daycare. She also tried to cover up her forgetfulness by pretending that the child died during a nap.

In the recent case of R. v. Simons, Elmarie Simons pleaded guilty to criminal negligence causing death and was sentenced last month in Calgary. Simons, an unlicensed daycare home operator, had left an 18-month-old toddler in a car seat in a dark closet to run errands at Walmart and McDonald’s. The child died from asphyxiation caused by the car seat strap as the leg straps of the seat were not properly buckled and the child slid down in the car seat to such a degree that the chest harness strap choked her. Simons was sentenced to 3 and a half years in prison.

RECOMMENDATIONS

It is recommended to always keep cars locked while in garages or on driveways to prevent children from inadvertently becoming trapped in a vehicle. It is also suggested that adults keep their car keys in a safe place.

It is also recommended to make it a habit to place your cell phone or purse in the back seat. This would require the driver to check the back seat before leaving the vehicle on a regular basis.

If you come across a child or animal in distress that has been left alone in a hot vehicle it is imperative that you call 911 immediately.

It cannot be emphasized enough that no child or pet should be left alone in a hot vehicle, even for a few minutes.

If you have questions about your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

Canadian Degrassi High Actor Arrested on Child Pornography Charges

Written on Behalf of Affleck & Barrison LLP

A former Degrassi High actor and three Ontario women are facing multiple charges, including possessing child pornography, sexual assault, and bestiality.

Jason (Byrd) Dickens, his wife, Dylan Anne McEwen, and two other women were recently arrested following a months long probe by police. Police stated that they initially received a tip about a man uploading inappropriate images online in January 2016. This led to a search warrant in late April, at which time police discovered several devices containing videos and images.

Police believe that Mr. Dickens and Ms. McEwen actively sought out victims online and in person, going by several user names including: RetroDeviant, Byrd_Dawg and Sir Dirk (Mr. Dickens), and Doll, Dirty Doll (Ms. McEwen). Mr. Dickens and Ms. McEwen will appear in Toronto court on Sept. 1.

Police also believe that between January 2000 and January 2006, Mr. Dickens and another woman sexually abused a child and distributed child pornography online. The woman is charged with 10 child sexual exploitation offences, and Mr. Dickens faces six more charges in that case.

Additionally, police allege that Mr. Dickens met a third woman from Thunder Bay, who also faces one charge of making child pornography.

Police are concerned that the individuals may have had contact with “like-minded individuals” and there may be more victims.

Potential Consequences

It is unclear what the outcome of these charges will be. However, child pornography charges are taken very seriously by prosecutors and police.

Child pornography is defined as any media (photo, film, other) that depicts sexual activity with, or that displays the sexual regions of, a person under the age of 18 (Criminal Code of Canada, s. 163.1(1)).  It is a crime to make, publish, or print child pornography. It is also a separate offence to distribute, to possess or to access child pornography, including sharing on or downloading files from the internet.

In 2012, Bill C-10, the Safe Streets and Communities Act, imposed higher mandatory minimum penalties for making, distributing, possessing and accessing child pornography. Sentences for any individuals charged under s. 163.1 of the Criminal Code all carry mandatory minimum sentences, and no discharges, suspended sentences, or fines are available. Penalties include jail time, and a sex offender registration, which can remain on your record for your whole life.

Protecting Children from Child Pornography

Safeguards for those under 18 have been increasing in recent years. In 2011, the government passed Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. The legislation is intended to keep pace with technology used to distribute and access such content. It requires Internet service providers (ISP’s) and others (for instance, Facebook, Google, Hotmail, etc) to report any incident of child pornography.

Under this legislation, anyone can inform an ISP or other entity that a website, hostpage, or email contains child pornography. The ISP or other entity must then report the address of the site, page, or email as soon as possible to a designated organization or the police.

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

Should Canada Criminalize Spanking?

Written on Behalf of Affleck & Barrison LLP

Earlier last week, in response to recommendations of the Truth and Reconciliation Commission, the federal government announced it would repeal the so-called “Spanking Law” in Canada. This announcement sparked a significant amount of public debate about this highly divisive issue. But what exactly is the spanking law, and what are the arguments for and against it? Here is a brief overview:

The Law

Section 43 of the Criminal Code reads:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

This section, also known as the defence of reasonable correction, dates back to Canada’s first Criminal Code in 1892.

The Supreme Court Decision

In the 1990s, the constitutionality of s. 43 was challenged. The Supreme Court of Canada released its decision in 2004 in a case called Canadian Foundation for Children, Youth and the Law v Canada (Attorney General). Six out of nine justices found that the spanking laws did not violate the Charter of Rights and Freedoms. However, the Supreme Court ruled that physical force against children was only acceptable within certain tightly limited conditions: it cannot be used on children under the age of 2, or over the age of 12, it cannot involve the use of objects, the force must be corrective in nature, and “must be reasonable in the circumstances”.

The Arguments

Section 43 of the Criminal Code is controversial because it expressly offers parents and teachers a defence when they use reasonable force to discipline a child.

Those opposed to repealing the provision see it as an unwanted intrusion by the government into a parent’s right to decide what is best for their child. They argue that parents should be allowed to raise their children as they see fit, so long as their actions are within reason and do not constitute abuse. Some teachers fear that a repeal of s. 43 would leave teachers vulnerable to charges of assault in cases where they are required to use force – such as breaking up schoolyard fights or restraining a violent child.

Those in favour of repealing the law say that spanking is a form of child abuse and that it sends the mixed message that it may be acceptable to strike a child.

Despite the heated debate, at this point it is still unclear whether the Liberals will strike down the law or amend it, and when.

To learn more about this or any other criminal defence matter, please contact the lawyers at Affleck & Barrison online or at 905-404-1947.