Criminal Code of Canada

Supreme Court of Canada Rules Bail Conditions Must Be Knowingly Violated

Written on Behalf of Affleck & Barrison LLP

In its unanimous decision last week, the Supreme Court of Canada ordered a new trial for Chaycen Michael Zora (“Zora”), who had been convicted of breaching his bail conditions. 

The highest court in Canada concluded that an individual accused of breaching his/her bail conditions must knowingly or recklessly violate those conditions in order to be found guilty of breaching them.

WHAT HAPPENED?

Zora was charged with several drug offences in British Columbia.  He was released on bail and required to abide by twelve conditions.  These conditions included that he keep the peace and be of good behaviour, report to his bail supervisor, not possess any non-prescribed controlled substances, not possess or have a cell phone, obey a curfew and be present at his front door within five minutes if and when the police or bail supervisor appeared to check on him, amongst other conditions. 

In October 2015, police rang Zora’s doorbell on two occasions and he did not answer.  He was therefore charged with two counts of breaching his curfew and two counts of failing to meet the condition of responding to police at his home during a curfew check.

At his trial, Zora was acquitted of charges of breaching curfew as it could not be proven beyond a reasonable doubt that Zora had been outside of his home after curfew.  However, Zora was fined $920 and found guilty of two counts of failing to appear at the door in response to curfew compliance checks.

Zora argued that he did not hear the doorbell as it was difficult to hear it from where he slept.  Furthermore, he testified that he was undergoing methadone treatment, which made him very tired, and was in the process of withdrawal from his heroin addiction.

Zora also testified that he changed where he slept in his home and set up an audio-visual system at his front door to help alert him to further police checks, which ensured that he was complying with his conditions of bail. 

Zora unsuccessfully appealed the trial judge’s decision.  He then proceeded to take his appeal to the Supreme Court of Canada

THE DECISION OF THE SUPREME COURT

Zora appeals his conviction for failing to comply with his bail conditions by not answering the door when police appeared at his residence to ensure that he was complying with his bail conditions.  In failing to do so, Zora had committed the actus reus of the crime (the physical act of the crime).

The Supreme Court of Canada was asked to determine whether Zora had committed the mental element, also known as the mens rea, of the crime, which also must be present, in order to secure a conviction under section 145(3) of the Criminal Code.

It is a criminal offence, under section 145(3) of the Criminal Code, to breach bail.  This crime carries a maximum penalty of two years in prison.  Therefore, an accused may be subject to imprisonment for breaching conditions of their bail even if he/she is not found guilty of any of the original charges. 

In writing on behalf of the Supreme Court, Justice Martin explained what was required to satisfy the mental element of the crime:

I conclude that the Crown is required to prove subjective mens rea and no lesser form of fault will suffice.  Under s.145(3), the Crown must establish that the accused committed the breach knowingly or recklessly.  Nothing in the text or context of s. 145(3) displaces the presumption that Parliament intended to require a subjective mens rea. 

…The realities of the bail system further support Parliament’s intention to require subjective fault to ensure that the individual characteristics of the accused are considered throughout the bail process.

…Not only is this conclusion consistent with the presumption of subjective fault for crimes like s. 145(3), it is supported by its place and purpose in the overall bail system, the serious consequences which flow from its breach, and how the consideration of individual circumstances is the proper focus both for setting conditions and determining the mental element for their breach.

The Supreme Court held that subjective mens rea can be established when the Crown has proven:

  1. The accused had knowledge of the conditions of the bail order, or they were willfully blind to those conditions; and
  2. The accused knowingly (or were willfully blind to the circumstances) failed to act according to their bail conditions despite the knowledge of them; or
  3. The accused recklessly failed to act in accordance with their bail conditions (i.e. perceived an unjustified risk that their conduct would fail to comply with their bail conditions).

In conclusion, the Supreme Court held that subjective fault is required for a conviction under s. 145(3) of the Criminal Code.  The court found that the lower courts erred in law by applying an objective rather than a subjective standard of fault.  The Supreme Court allowed Zora’s appeal, quashed his convictions and ordered a new trial on the two counts of failing to appear at his door. 

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

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.

Multiple Child Exploitation Charges Laid Across Ontario

Written on Behalf of Affleck & Barrison LLP

Despite the pandemic that is affecting those living in Ontario and across the globe, the sexual exploitation of children continues to be a problem.  Between May 4 and May 8 a number of warrants were issued across Ontario and five individuals were charged with over 22 Criminal Code offences related to sexual interest in children.

RECENT ARRESTS AND CHARGES

The recent arrests and charges that took place in Ontario show that offenders can be made up of those in all age groups, employment and social economic class. 

Tanner Raymond, 22 years of age from Quinte West, was charged with possession of child pornography and with making available child pornography.

Simon Yalkezian, 33 years old from Cobourg, was charged with five counts of making available child pornography, accessing child pornography and possession of child pornography.

Twenty-five year old James Aldworth, also from Cobourg, was charged with four counts of child luring, transmission of explicit material to a child and with indecent exposure to a child.

A 42-year-old woman from Trenton, who cannot be named in order to protect the identity of the victim, was charged with making child pornography and two counts of possession of child pornography.

Finally, a 17-year-old young man from Haldimand was released to his parents and cannot be named according to provisions under the Youth Criminal Justice Act.  He was charged with voyeurism, making available child pornography, possession of child pornography and with distribution of intimate images without consent.

CHILD EXPLOITATION CONTINUES DESPITE THE PANDEMIC

These recent arrests are indicative of the fact that child exploitation continues in Ontario despite the pandemic and the emergency orders set in place by the government.

As families continue to self-isolate in our homes, children are spending more and more time on the internet and are more often than not unsupervised.  There is an increased risk that children will encounter those with ill intent online.

It is highly recommended that parents speak to their children regularly about the risks and safety concerns of using the internet.  The website ProtectKidsOnline.ca can offer parents and guardians assistance to help their children use the internet safely.

CRIMINAL CODE PROTECTIONS

Canada’s Criminal Code provides a number of provisions related to the protection of children from sexual abuse and exploitation and includes the following specific offences:

  • All forms of child pornography, which include possessing, accessing, making and distributing child pornography;
  • The use of the internet to communicate with a child for the purpose of luring or facilitating the commission of a sexual or abduction offence;
  • All forms of sexual contact/touching or any invitation to engage in sexual touching;
  • The offering up or procurement of a child for illicit sexual activity, including prostitution.

As Canadian youth continue to use the internet in records numbers, their behaviours raise the risk of online sexual exploitation.  Behaviours such as sharing personal information over the internet, emailing or posting photos online, chatting online with strangers and visiting adult-content websites and chat rooms.

The website Cybertip.ca was adopted as a partner to Canada’s National Strategy for the Protection of Children from Sexual Exploitation on the internet in 2004 and was officially regarded as Canada’s national tip-line in 2005.  This website receives and addresses reports of sexual exploitation of children, particularly on the internet, in the form of child luring and child pornography.  Those reports that are possible violations of the Criminal Code are forwarded to the police for further investigation.

According to Catherine Tabak, Cybertip.ca program manager, the tip line has seen a 40% spike since the pandemic began in Canada.  Approximately 98% of the reports involve online child sexual images or videos.  The reports regarding possible suspect/victim information are in regards to the offences of sextortion, luring and grooming offences, as well as youth being exposed to sexually explicit materials.

CHILD PORNOGRAPHY DETECTED BY CANADIAN BOT

A Canadian robot called “Arachnid” detects 10,824 new images of child pornography on the internet every 12 hours.  The robot, run by the Canadian Center for Child Protection (“CCPE”), scans the internet for images and videos of child pornography through digital fingerprints.  When detected, the robot sends a warning to the host requesting immediate removal.  CCPE analysts also review each detected image. 

Hosts that are hesitant to comply with the request for removal are considered to be contributing to the perpetuation of the victimization of children online. 

Since launching two and half years ago, Archanid has detected more than 9 million suspected images related to child pornography.  More than 4 million requests for content removal have been made to hosts around the world.

If you are facing sexual offence charges or have questions regarding your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  We are available when you need us most.

More Than 300 Charges Laid in Human Trafficking Investigation ‘Project Convalesce’

Written on Behalf of Affleck & Barrison LLP

Earlier this month, York Regional Police laid more than 300 charges and arrested 31 people as part of “Project Convalesce”, a multi-provincial human trafficking and organized crime investigation.  Approximately 100 of these charges were related directly to human trafficking.

WHAT IS PROJECT CONVALESCE?

In October 2018, two female victims of human trafficking from Quebec contacted police after attempting to escape a hotel in Vaughan.  York Regional Police began an investigation focused on suspected pimp, Jonathan Nyangwila (“Nyangwila”).  Investigators identified a number of suspects involved in various crimes of human trafficking, fraud, drug trafficking and weapons offences run by organized crime.

Nyangwila, a 28-year old from Markham, also known as Zoulou or Skulls, has been described as the “kingpin” at the top of a complicated and sophisticated criminal hierarchy.  Underneath Nyangwila were several “figureheads”, including three of his brothers.  A group of “underbosses” were positioned under the figureheads.  There were several also “strikers” positioned under the underbosses, whose responsibility it was to carry out high-risk frauds in banks and stores. 

It is alleged that the suspected criminal organization made fake identifications to purchase pre-paid credit cards that were then used to pay for expenses to run the human trafficking scheme such as hotel fees, travel and food.

Inspector Thai Truong stated:

Jonathan Nyangwila has been identified as the kingpin of the organization.  … All below him are individuals that have their own stable of girls.  But for the first time, we’re actually seeing girls being traded within, and girls being controlled by other individuals for the benefit of the organization.

Nyangwila is facing more than 30 charges relating to human trafficking, instructing the commission of an offence for a criminal organization, participating in the activities of a criminal organization, uttering threats, firearms possession, harassment and fraud.  He was arrested in July, yet continued to run his criminal operation from jail.

On October 10, 2019, following a full year of police investigation involving four police services from Ontario and one from Quebec, arrest and search warrants were executed in more than 30 locations across the Greater Toronto Area and in Quebec.

Investigating officers identified 12 victims and have information that there are 33 additional women involved in the sex trade and found to be associated with the suspects.  Most of the women involved were from Quebec and had been transported to Ontario and across Canada for the purpose of the sex trade.  The victims ranged in age from 20 to their mid-30s.  The women were found to perform sex acts seven days a week, earning approximately $1,000 a day, and passing on these monies to those that individuals that controlled them.

This investigation remains active and ongoing as police are hopefuly that the 33 additional women will come forward to seek assistance and support. 

York Region Deputy Chief Brian Bigras stated:

These victims endured violent assaults, sexual assaults and other degrading circumstances as they were controlled by these violent criminals.

WHAT IS HUMAN TRAFFICKING?

According to the United Nations Office on Drugs and Crime, approximately 225,000 victims of trafficking have been identified worldwide between 2003 and 2016.

Human trafficking is a crime that exploits and manipulates women, children and men for the purposes of forced labour or sexual services.  Women are often the target of this crime. 

Those trafficking in humans often recruit and groom their victims by becoming a close friend or boyfriend.  Once traffickers lure their victims, they then coerce them into sex work, using psychological manipulation, threats, addiction, violence and isolation.

Police report that marginalized youth, Indigenous youth and youth experiencing homelessness are most often targeted.  Youth who struggle with low self-esteem, bullying, poverty, abuse and family issues are also pursued.

Traffickers often recruit girls online, at malls, high schools, libraries, group homes, bus stops, and parties at hotels.

Victims of this type of crime feel alone, isolated and trapped and have no way to return home.  They become entirely dependent on the trafficker to survive.

THE CRIMINAL OFFENCE OF HUMAN TRAFFICKING

Human trafficking is an offence found in the Criminal Code of Canada (“CC”) and the Immigration and Refugee Protection Act.

The CC includes four indictable offences to address human trafficking, including:

  • Trafficking in persons (section 279.01);
  • Trafficking of a person under the age of eighteen years (section 279.011);
  • Receiving financial or material benefit knowing it results from the commission of an offence under sections 279.01 and 279.011 (section 279.02); and 
  • Withholding or destroying documents (section 279.03). 

There are many other offences contained in the CC that also apply to human trafficking cases including kidnapping, forcible confinement, uttering threats, extortion, assault, sexual assault, prostitution related offences and criminal organization offences.

If you have been charged with human trafficking or a related charge or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a 24-hour phone service for your convenience.  We are available when you need us most.

Can I Be Charged for Being Impaired While Canoeing?

Written on Behalf of Affleck & Barrison LLP

Justice Peter West is the first judge in Canada to provide a ruling that a canoe is a “vessel” for the purposes of the criminal charges of impaired operation of a vessel causing death, operation of a vessel over 80, and the dangerous operation of a vessel.

According to the Canadian Red Cross, following 18 years of research on all deaths involving boats in Canada, more than 40% of recreational boating deaths are alcohol related.

WHAT HAPPENED?

On April 7, 2017, Thomas Rancourt (“Rancourt”), eight-years-old at the time, had gone for a canoe ride with his mother’s boyfriend, David Sillars (“Sillars”), on the Muskoka River on a cold spring day in Bracebridge, Ontario. 

The canoe capsized and Sillars was able to escape and swim to shore.  However, Rancourt continued down the river and had gone over the falls.  A search led to the discovery of Rancourt, where he was pulled from the icy water, CPR was immediately  administered and he was rushed to hospital.  He died shortly thereafter. 

Rancourt did not know how to swim and was wearing a lifejacket that was too small for him. 

Sillars was charged with impaired operation of a vessel causing death, operating a vessel with more than 80 mg of alcohol in 100 mL of blood, dangerous operation of a vessel, and criminal negligence causing death.

Sillars pleaded not guilty to all four criminal charges.  The Judge in this case has reserved his judgment.  We will provide information regarding the judgment in this case and any updates in this blog when they become available.

THE RULING THAT A CANOE IS A ‘VESSEL’ UNDER THE CRIMINAL CODE

Last fall, Justice West was asked to consider whether a canoe is included in the term “vessel” contained in the specific sections of the Criminal Code related to the case against Sillars.

The definition of vessel in section 214 of the Criminal Code of Canada does not specifically include a canoe, it merely states that a vessel “includes a machine designed to derive support in the atmosphere primarily from reactions against the earth’s surface of air expelled from the machine”. 

Justice West ruled that it was clear that as a result of growing concern that the public was not taking the regulations as set out in the Small Vessel Regulations under the Canada Shipping Act seriously that the term vessel was added to a number of offences in the Criminal Code in 1961, including the offence of dangerous operation of a vessel, impaired operation of a vessel, and operating a vessel with the blood alcohol concentration over 80 mg.  The wording was added to provoke members of the public to take the safe operation of pleasure crafts more seriously and therefore attach a criminal stigma to these offences.

Vessel was also added to these offences due to the increase in the number of pleasure crafts being used on waterways throughout Canada.

Justice West stated:

[O]perating any type of vessel on a lake or river or sea requires some level of competency and knowledge as to the proper operation of the vessel and an awareness of the rules and regulations which govern safety on the water.

The danger of harm is to the person or persons operating the canoe, or the passengers in the canoe or other persons operating small vessels in the vicinity or those coming to assist when an emergency occurs as a result of the person operating the canoe being impaired, over 80 or operating dangerously.

The fact is, like impaired drivers, the impaired operation of a pleasure craft presents a continuing danger on the waterway.  The goal is to screen operators of a vessel before there is an accident or emergency situation.  These inherent dangers of operating a ‘vessel’ on the water affect all operators of small vessels on Canada’s lakes and rivers and territorial waterways.

Justice West ruled that that the danger of harm is no different when one’s ability is impaired whether they are operating a motor boat with a five horsepower motor, a motor boat with a 150 horesepower motor, or a canoe.  Each of these acts justifies the stigma of a criminal sanction.

DRUNK BOATING IN ONTARIO

Drunk boating is equivalent to drunk driving.  Under the Criminal Code, if you are operating a boat, including a canoe, while impaired (80 mg of alcohol per 100 mg of blood), you are committing an offence under the law. 

Marine police can perform spot checks on waterways, the same as police do on our roadways.  Police can look for signs that a paddler is impaired.  The same rules that apply on land, apply on water.  In Ontario, if you are convicted of impaired operation of your boat, the consequences will extend to your privileges to drive your automobile.

If you have been charged with an impaired driving or any other driving offence, whether on land or water, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  Contact our office online or at 905-404-1947.