Criminal Code

Life in Prison for Man Who Murdered His Pregnant Wife

Written on Behalf of Affleck & Barrison LLP

Nicholas Baig (“Baig”) has been sentenced to life in prison for the murder of his pregnant wife, Arianna Goberdhan (“Goberdhan”) (27 years old). 

Goberdhan’s family and friends are outraged that Baig was charged and sentenced for the murder of one person, not two.  Under Canadian law, Goberdhan’s unborn child is not considered a person and is therefore not the victim of a crime.

WHAT HAPPENED?

Goberdhan and Baig were married in November, 2016 and lived for a period of time with his parents in Pickering.  Goberdhan moved back into her parent’s home in January, 2017 as their relationship had deteriorated.

During the sentencing hearing, the court heard evidence of “vile” texts from Baig to his wife and was made aware that the police had been called on a few occasions.  In fact, a week before the murder, the police were called when Baig came to the Goberdhan’s home and broke down a door when he was refused entry.

On April 7, 2017, Goberdhan left her parent’s home in Ajax at 6:30 p.m. and drove to see Baig in Pickering.  Goberdhan called 911 at 9:42 p.m. that evening.  Although she did not speak to the operator, Goberdhan was overheard pleading with Baig to let her go home.  The 911 operator called her back when the call ended and she confirmed that she needed the police.  Security cameras recorded Baig leaving the residence at 9:44 p.m., and driving off in Goberdhan’s vehicle.

When police arrived on scene, they found Goberdhan deceased, with a large knife beside her body.  She was nine months pregnant at the time.  It was determined that Baig had stabbed Goberdhan 17 times.  Baig was arrested the following day and has remained in custody since his arrest.

Baig pleaded guilty to the second degree murder of Goberdhan. 

Given his guilty plea to second-degree murder, Baig faced a mandatory sentence of life in prison.  However, it was up to the judge to decide when he would be eligible to apply for parole.  The minimum period of parole ineligibility for the offence is 10 years. 

The Crown prosecutor recommended parole ineligibility for a term of 20 years given the “reprehensible nature of Baig’s offence”.  Prosecutor George Hendry stated in his submissions to the court:

In making this submission the Crown is recognizing this is above the sentencing range for domestic homicides.  The nature and circumstances surrounding the commission of this offence elevate that range.

On the other hand, Baig’s lawyer argued for a 12 to 15 year term for parole eligibility.

Superior Court Justice Jocelyn Speyer sentenced Baig to life in prison, with no chance of parole for 17 years.

FETAL HOMICIDE AND THE LAW

Under the Criminal Code (section 223(1)), a fetus becomes a human being when it has “completely proceeded, in a living state, from the body of its mother”.   

Given this definition, an unborn child cannot be the victim of a homicide and has no legal recourse.  In order to be charged with the murder of an infant, the child has to be born alive first, and then die.  Therefore, Baig was not charged or prosecuted for the death of his unborn daughter, who was to be named Asaara.

In accordance with the law, Justice Speyer sentenced Baig for the murder of Goberdhan only.  Goberdhan’s friends and family were not satisfied with the court’s decision on sentencing Baig.  They filled the courtroom and wore shirts with Goberhan’s image and the name of a new campaign entitled the “Phenomenal Women Project” aimed to establish new law that holds those who kill pregnant women accountable for the deaths of both the mother and child.

Goberdhan’s parents are petitioning for legislative changes.  They call the petition “Arianna’s Law”.  They are asking the government to “pass legislation that recognizes that, when an assailant in a commission of a crime attacks a pregnant woman and injures or kills her pre-born child, then the assailant may be charged with an offence on behalf of the pre-born child.”

Laws of this nature have been proposed in the past, but have all failed.  The concern is that these types of laws will pave the way to criminalize abortion.

The Goberdhans argue that the “law has to be defined in such a way that it’s a violence against women crime.  It has nothing to do …with pro-life or pro-choice.  It’s specific to violence.”  The proposed law is intended to deter abusive partners from harming pregnant women. 

We will continue to follow any updates in the law regarding the murder of an unborn child in Canada and will report on developments in this blog.

If you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

B.C. Judge Finds Provocation Defence Unconstitutional

Written on Behalf of Affleck & Barrison LLP

A British Columbia Supreme Court judge has ruled that a 2015 amendment to the Criminal Code, which limits when an accused killer can use the defence of provocation, is unconstitutional.

Justice Douglas Thompson ruled that the amendment in question only allowed for the partial defence of provocation in murder cases if the victim committed an indictable offence (most serious of offences) punishable by a sentence of five or more years, which is contrary to the rights and freedoms set out in the Charter.

THE DEFENCE OF PROVOCATION

Stephen Harper’s Conservative government amended the definition of provocation prior to the 2015 election through the Zero Tolerance for Barbaric Cultural Practices Act.

This legislation changed the definition of provocation from “a wrongful act or an insult that is of such nature as to be sufficient to deprive an ordinary person of the power of self-control …if the accused acted on it on the sudden and before there was time for his passion to cool” to “conduct of the victim that would constitute an indictable offence …punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool”.

The intention of the government in amending the law was that a victim had to have committed a crime so serious against an accused to argue that the accused was provoked into killing, not merely upset by the victim.  However, Justice Thompson found that the law as it was written denied vulnerable victims of domestic abuse and racism the ability to claim provocation when they are incited to respond violently by behaviour that is not quite criminal. 

Justice Thompson wrote in his ruling:

It is an unfortunate but notorious fact that people of colour and members of other marginalized communities are sometimes subject to despicable and hateful rhetoric, and that women are sometimes subject to intense psychological abuse by their male partners. … Although the provoking behaviour does not constitute an indictable offence punishable by at least five years’ imprisonment, it is reasonably foreseeable that the targets of this conduct may respond violently.

WHAT HAPPENED?

Michael Philip Simard (“Simard”) was in an “on again, off again” relationship with Leanne Larocque since 2014.  On October 5, 2016, Simard, armed with an assault rifle, entered the home of Larocque and proceeded to kill her and Gordon Turner.   Simard called 911 and then proceeded to shoot himself before the police arrived.

Simard was charged with two counts of second-degree murder. 

Michael Philip Simard challenged the constitutionality of amendments to section 232(2) of the Criminal Code arguing that the wording infringed his section 7 rights to life, liberty and security of person under the Charter, preventing him from raising a partial defence to reduce his charges of second-degree murder to manslaughter.

Justice Thompson agreed with Simard’s Charter arguments and found that the section in question in the Criminal Code to be overly broad and arbitrary.  Justice Thompson stated in his ruling:

…it is clear that s. 232(2) engages s. 7 of the Charter.  Second-degree murder carries a mandatory minimum sentence of life in prison.  On the other hand, manslaughter has no mandatory minimum sentence (unless a firearm is used in the commission of the offence…).  Circumscribing the available of the partial defence affects the liberty of anyone who would previously have been able to advance a provocation defence.

Justice Thompson struck down the current wording, thus returning the law to its original wording.  However, he proceeded to convict Simard of second-degree murder.

The government’s objective in amending the definition of provocation in the Criminal Code in 2015 may have been to protect vulnerable women by ensuring that those who might attack them would not be allowed to argue the defence of provocation after the fact.  However, Justice Thompson ruled that the “amended provisions extend to behaviour far beyond the object of the legislation.  Provocation has never been confined to situations in which the victims are vulnerable women.”

Simard’s lawyer, Matthew Nathanson, considered Justice Thompson’s ruling to be significant as it was the first time a court had considered the new limits on the defence of provocation in Canada.  Nathanson stated:

The court found that the purpose of the law was to protect vulnerable women.  Clearly this is an important and appropriate goal.  However, the court also found that in certain situations the law would deny the defence of provocation to women who killed in the context of serious domestic violence.  In this way, a law designed to protect vulnerable women would deny them an important defence.  This is counterintuitive and unfair.  In constitutional terms, it means the law is arbitrary, overbroad, and had to be struck down.

Simard will return to court on May 7, 2019 for sentencing.  The offence of second-degree murder carries a mandatory sentence of life imprisonment.

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 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Supreme Court Rules a Crucial Element of Child Luring Law is Unconstitutional

Written on Behalf of Affleck & Barrison LLP

Last month the highest court in Canada ruled that a provision in the law forbidding the luring of children over the internet is unconstitutional and ordered a new trial for alleged offender Douglas Morrison (“Morrison”).  This decision may result in a number of child luring convictions being overturned across Canada.

In this landmark decision regarding the validity of child luring laws in Canada, the Supreme Court of Canada struck down two parts of the child luring laws found under section 172.1 of the Criminal Code.  The decision in R. v. Morrison will affect those cases where police officers pretend to be minors in an effort to apprehend suspected online predators.

WHAT IS THE CHILD LURING LAW IN CANADA?

The offence of child luring in Canada can be found in section 172.1 of the Criminal Code.  Child luring is defined as using the internet to communicate with an individual who is, or who the perpetrator believes to be, under the age of 18 for the purposes of committing the offence of sexual exploitation, incest, child pornography or sexual assault. 

You may also be charged with child luring if you communicate with an individual you know, or believe to be, under the age of 16 for the purposes of committing the offence of sexual exploitation, invitation to sexual touching, indecent exposure to a person under the age of 16 or abduction of a person under 16 years old.

If the Crown chooses to proceed by indictment (more serious offences) and you are found guilty of child luring, you will face a minimum of one year in prison, up to a maximum of 14 years in prison.  If the Crown chooses to proceed summarily (less serious offences), you will face a minimum of 6 months in jail, up to a maximum of 2 years less a day.

WHAT HAPPENED IN R. v. MORRISON?

Morrison was charged with child luring under section 172.1 of the Criminal Code.  He posted an online ad on Craigslist pursuing sexual conversations and stating he was interested in younger girls.  His ad was entitled “Daddy looking for his little girl”. 

Over the course of two months, police posed as a 14 year old girl named “Mia”.  Morrison began a sexual discussion with Mia, requested that she touch herself sexually, suggested she watch pornography, asked her for photographs, and arranged to pick Mia up after school (the encounter never occurred).  Consequently, Morrison was charged with child luring. 

During his trial, Morrison argued that he believed he was speaking to an adult online who was role playing as a character of a 14 year old girl.  He maintained that the rules on Craigslist require that users are to be 18 years old or older.  He was convicted at trial and the conviction was upheld by the Ontario Court of Appeal.

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

On appeal to the Supreme Court of Canada, Morrison brought three Charter of Rights and Freedoms (“Charter”) challenges pertaining to section 172.1 of the Criminal Code. The Charter arguments before the court were the following:

  • Section 172.1(3) violated his right to be presumed innocent under section 11(d) of the Charter;
  • Section 172.1(4) contains presumptions (requiring a person to take reasonable steps to ascertain the age of the individual they are contacting and to ensure he/she is not underage) that were not in accordance with the principles of fundamental justice and violated section 7 of the Charter, which protects the right to life, liberty and security of a person; and
  • Section 172.1(2)(b) contains a mandatory minimum sentence of one year in prison which violated the guarantee against cruel and unusual punishment found in section 12 of the Charter.

The Supreme Court of Canada overturned Morrison’s conviction citing errors made by the trial judge.  The Court ruled unanimously that the government’s wording of the child luring law violates the presumption of innocence guaranteed by the Charter.  It is the role of the Crown to prove beyond a reasonable doubt that an accused genuinely believed he/she was communicating with an individual who was underage.

Justice Michael Moldaver, writing for the majority of the Court, stated:

In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage.  Nothing less will suffice.

The accused, in his/her defence, may prove that he/she took “reasonable” steps to determine if the alleged victim was underage.  If this cannot be shown, then the accused cannot argue that he/she believed the alleged victim was of legal age.

The Supreme Court was also asked to consider the appeal by the Crown that Morrison was not given the mandatory one-year minimum sentence.  The trial judge gave Morrison a four month sentence, and ruled that the one year mandatory minimum sentence found in the Criminal Code was unconstitutional as it violated the guarantees found in the Charter against cruel and unusual punishment. However, the majority of the justices did not rule on this issue.

Given the potential ramifications resulting from the Supreme Court of Canada’s decision in R. v. Morrison, we will continue to follow any developments in the news and the case law and will report any updates that become available in this blog.

In the meantime, if you are facing child luring charges or have any questions regarding your legal rights, please contact the knowledgeable criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service.  We are available when you need us most.

Eaton Centre Shooter Found Guilty of 2 Counts of Manslaughter

Written on Behalf of Affleck & Barrison LLP

After six days of deliberations, a jury found Christopher Husbands (“Husbands”) guilty of two counts of manslaughter for killing Nixon Nirmalendran (“Nirmalendran”) and Ahmed Hassan (“Hassan”) during a shooting spree at the Eaton Centre in downtown Toronto on June 2, 2012.

Husbands was also convicted of five counts of aggravated assault, one count of criminal negligence causing bodily harm, and one count of reckless discharge of a firearm for injuring bystanders in the crowded food court.

In April 2015, Husbands was sentenced to life imprisonment with no chance of parole for 30 years when he was convicted of two counts of second-degree murder. He launched an appeal and was granted a second trial after the Ontario Court of Appeal found that the trial judge had erred during jury selection.

WHAT HAPPENED?

On June 2, 2012, Husbands was shopping at the Eaton Centre with his girlfriend. They proceeded to the food court after purchasing inline skates and a jacket from Sport Chek.

Husbands began shooting in the food court of the Eaton Centre in the direction of a group of five men, which included the deceased Nirmalendran and his brother Nisan Nirmalendran. Husbands testified at trial that these brothers were part of a group of men that beat and stabbed him more than 20 times three months prior to this incident.

Husbands fired 14 shots during his rampage as seen on surveillance video from the food court. Bullets from Husbands’ gun killed Nirmalendran and Hassan. He also shot, but did not kill, 13-year-old, Connor Stevenson, in the head. Two additional shoppers were shot in the leg and two were grazed by bullets. Husbands actions also caused a stampede of panicked shoppers who trampled a pregnant woman.

WHAT WAS HUSBANDS’ DEFENCE ARGUMENT?

Husbands’ defence team argued that at the time of the shooting their client was in a dissociative state as a result of suffering from PTSD and did not have control over his actions. It was argued that Husbands had been triggered after seeing the Nirmalendran brothers at the Eaton Centre.

Husbands’ defence lawyers infer that the jury either believed that Husbands was provoked into shooting at men who had previously attacked him, or that his PTSD “caused him to react instinctively without forming the intent to kill”.

Stephanie DiGiuseppe, one of Husbands’ lawyers, stated:

It would have been easy for the jury to look at the video and think this was all about revenge, but to look at it through the lens of trauma was something significant, I think, for our community.

WHAT WAS THE CROWN’S ARGUMENT?

Crown prosecutors argued that Husbands was out for revenge and went on a shooting rampage as a form of “street justice”.

Although the Crown accepted that Husbands had PTSD, it was argued that Husbands was in control of his actions throughout the confrontation.

The psychiatric experts who assessed Husbands all agreed that he had PTSD, but were split on whether he was in a dissociative state at the time of his shooting rampage.

At the time of the shooting rampage, Husbands was out on bail for a sexual assault conviction. He was supposed to be living under house arrest and he was under a weapons ban as well by court order. The jury was not privy to this information.

WHAT IS MANSLAUGHTER?

Manslaughter is defined as a homicide which is committed without the intention to cause death, although there may have been an intention to cause harm.

Manslaughter is found at section 234 of the Criminal Code and the punishment for manslaughter is set out in section 236 of the Criminal Code.

Manslaughter does not carry a minimum sentence, except when it is committed with a firearm. In the case of a conviction of manslaughter committed with a firearm, there is a minimum sentence of four years in prison.

WHAT HAPPENS NEXT FOR HUSBANDS?

Husbands is facing a life sentence in prison with no chance of parole for seven years.

Parole refers to the temporary release of a prisoner who agrees to abide by the conditions set by the court before the completion of the maximum sentence.  However, the ability to apply for parole does not necessarily mean that parole will be granted.

Husbands’ sentencing hearing will begin on April 29, 2019.  He has already been behind bars for seven years.

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

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Canada’s Highest Court Finds Teacher Guilty of Voyeurism for Secretly Recording Students’ Cleavage

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada ruled last week that an Ontario high-school teacher, Ryan Jarvis (“Jarvis”), is guilty of voyeurism for using a pen camera to secretly take videos of female students.

The highest court in Canada decided that the teenage students were entitled to a reasonable expectation that they would not be surreptitiously recorded by their teacher.

WHAT HAPPENED?

Jarvis was charged with the criminal offence of voyeurism (section 162(1)(c) of the Criminal Code) after it was discovered that he had taken videos of female students’ faces, chests, and cleavage area with his pen at a high school in London, Ontario.

These videos were recorded during 2010 and 2011 and took place throughout the school, including the hallways, classrooms, cafeteria, staff offices, and even outside of the building. The 27 students who were filmed by Jarvis ranged in age from 14 to 18 years old and did not know that they were being recorded.

At trial in 2015, Jarvis was acquitted as the trial judge held that while the students had a reasonable expectation of privacy, it was not clear that the videos were taken for a sexual purpose.

As we have previously blogged, the Ontario Court of Appeal dismissed the Crown’s challenge of the trial judge’s ruling and upheld Jarvis’ acquittal. The majority of the appeal court found that the videos were taken for a sexual purpose, however, the court found that the students should not have an expectation of privacy in areas of the school where they congregate or learn.

At the Court of Appeal, there was one dissenting judge who was convinced that the students were entitled to a reasonable expectation of privacy in the circumstances and would have entered a conviction on that basis.

This dissenting opinion at the appeal court level allowed the Crown prosecutor a right to appeal the decision to the Supreme Court of Canada. Therefore, the issue before the Supreme Court was whether the Court of Appeal erred in finding that the students recorded by Jarvis should not have a reasonable expectation of privacy in the circumstances and for the purposes of section 162(1) of the Criminal Code.

The offence of voyeurism as set out in the Criminal Code is committed when a person surreptitiously observes or makes a visual recording of another person who is in “circumstances that give rise to a reasonable expectation of privacy”, and in Jarvis’ case the observation or recording is done for a sexual purpose.

WHAT DID THE SUPREME COURT OF CANADA DECIDE?

The nine judges of the Supreme Court of Canada all agreed that Jarvis should be found guilty, although there were two different lines of reasoning followed by the judges in coming to this decision.

The majority of the Supreme Court emphasized that the offence of voyeurism was predicated on concerns of rapidly developing technology, which may be abused for the purpose of secret viewing or recording for a sexual purpose and involving a breach of privacy.

Chief Justice Richard Wagner, writing for the majority of the court, provided a non-exhaustive list to assist a court in determining whether a person was observed or recorded in circumstances that give rise to a reasonable expectation of privacy, including:

  • The location the person was in when he/she was observed or recorded;
  • The nature of the conduct (either an observation or recording);
  • Awareness of or consent to potential observation or recording;
  • The manner in which the observation or recording was made;
  • The subject matter or content of the observation or recording;
  • Any rules, regulations or policies that governed the observation or recording in question;
  • The relationship between the person who was observed or recorded and the person who did the observing or recording;
  • The purpose for which the observation or recording was made; and
  • The personal attributes of the person who was observed or recorded.

The majority of the court was satisfied that the students that had been recorded were in circumstances that give rise to a reasonable expectation of privacy based upon the following considerations:

  • the location of the recording;
  • the fact that the impugned conduct was a recording rather than mere observation;
  • the manner in which the videos were recorded;
  • the fact that that these students were unaware that they were being recorded;
  • the content of the videos which focused on intimate parts of the students’ bodies;
  • a school board policy prohibiting this type of recording;
  • the fact that the recordings were made in breach of a relationship of trust between Jarvis and his students;
  • Jarvis’ purpose in making the recordings; and
  • the fact that the individuals who were recorded were young persons.

Chief Justice Wagner wrote:

The explicit focus of the videos on the bodies of the students recorded, including their breasts, leaves me in no doubt that the videos were made in violation of the students’ reasonable expectations of privacy.

Justice Wagner made it clear that the concept of privacy is “not an all-or-nothing-concept” and “being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording”.

Justice Rowe, writing for the minority judges, stated:

Had Jarvis placed himself in the position of the pen-camera and simply observed the students, they would undoubtedly have recoiled. It was reasonable in the circumstances for the students to expect not to be observed and recorded in the way that they were.

The Court has confirmed that it is illegal for teachers to secretly take pictures or video of their students for a sexual purpose, even if the students are in a public area or in view of the school’s security cameras.

WHAT HAPPENS NEXT?

Given the findings by the Supreme Court of Canada, a conviction has been entered against Jarvis and he awaits his sentence.

Jarvis is also facing a disciplinary hearing from the Ontario College of Teachers for allegations of sexual, psychological, and emotional abuse, in addition to unprofessional conduct.

We will provide updates regarding this case in this blog as information becomes available.

In the meantime, if you have any questions regarding voyeurism charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges. We offer a 24-hour telephone service and we are available when you need us most.

Sentence of Life With No Parole for 40 Years for Quebec Mosque Shooter

Written on Behalf of Affleck & Barrison LLP

Last week two sentencing decisions were made in two high profile criminal cases in Canada. In both decisions, the court was left to decide how many years the accused will have to wait until he can apply for parole given the multiple counts of first-degree murder.

As we wrote in our blog last week, Bruce McArthur (“McArthur”), 67 years old, pleaded guilty to eight counts of first-degree murder in the deaths of eight men who disappeared between 2010 and 2017 in Toronto’s Gay Village. Justice John McMahon sentenced McArthur to life in prison for each of the eight counts. Justice McMahon did not order consecutive periods of parole ineligibility and instead decided that McArthur was not eligible for parole for 25 years.

Justice McMahon, in his sentencing reasons, stated:

Due to the accused’s age, I am satisfied that when dealing with the protection of the public, concurrent periods of parole ineligibility can adequately address the protection of the public. It would not be until Mr. McArthur is 91 years of age that he could apply for consideration for parole.

In Quebec, Alexandre Bissonnette (“Bissonnette”), 29 years old, pleaded guilty to killing six men at a Quebec City mosque on January 29, 2017. He was sentenced to life in prison with no possibility of parole for 40 years.

WHAT HAPPENED AT BISSONNETTE’S SENTENCING HEARING?

In March 2018, Bissonnette pleaded guilty to six counts of first-degree murder and six counts of attempted murder as a result of his actions on the evening of January 29, 2017.

Bissonnette, armed with a .223-calibre rifle, a 9-mm Glock pistol, and 108 bullets, shot into a crowded prayer room at the Islamic Cultural Centre as Sunday prayers were ending.

The Crown prosecutor argued before the Quebec Superior Court that the parole periods should be consecutive, which would result in a total of 150 years with no chance of parole. This would have been the longest prison sentence in Canadian history. To date, the longest prison sentence of 75 years without parole has been handed down in five cases involving triple killings. For example, in the case of Justin Bourque who murdered three RCMP officers in New Brunswick in 2014.

Bissonnette’s lawyer argued that his client’s sentences should be served concurrently. This means Bissonnette could seek parole after 25 years in prison. Bissonnette was described by his lawyer as an “anxious” man suffering from depression who required alcohol in order to reduce his inhibitions on the night of the killings. He has been described by his own defence team as a “sick young man” who can be rehabilitated and has shown remorse and shame.

WHAT WAS THE JUDGE’S RULING ON SENTENCING?

Before providing his sentence to Bissonnette, Justice Francois Huot addressed the offender by stating:

By your hate and your racism, you destroyed the lives of dozens and dozens of people, and have irredeemably ruined your own and those of the members of your family.

Justice Huot then proceeded to provide a detailed account of Bissonnette’s actions on the night of the shooting.

In his ruling, Justice Francois Huot rejected the Crown’s argument and instead imposed a concurrent life sentence of a 25-year parole ineligibility period for the first five counts of murder and added a 15-year period of ineligibility for the sixth count. This means that Bissonnette will not be eligible for parole for 40 years.

Justice Huot reasoned that sentences that exceed an offender’s life expectancy and offer no hope of release are “grossly disproportionate and totally incompatible with human dignity” and would constitute cruel and unusual punishment under the Canadian Charter of Rights and Freedoms.

Although Justice Huot did not strike down the section of the Criminal Code which allows for consecutive life sentences, he used his discretion to hand down a consecutive life sentence that was less than the traditional 25 year block (as first-degree murder carries a life sentence with no possibility of parole for 25 years).

According to Justice Huot, the following aggravating factors justified a sentence harsher than the 25-year period:

  • He planned his attack carefully;
  • He targeted vulnerable and unarmed people in their place of worship; and
  • He took aim at Canada’s right to freedom of religion.

Justice Huot also considered that Bissonnette had been struggling with mental health problems in the time leading up to the shootings. He also considered the fact that Bissonnette had no previous criminal record, he pleaded guilty, and he expressed remorse.

Lawyers for both the Crown and the defence will be reviewing Justice Huot’s lengthy 246-page decision to decide whether to appeal the sentence. We will continue to follow this case and will report any developments that occur in this blog.

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our clients’ rights. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

First-time Shoplifters Will Not Be Charged In Toronto

Written on Behalf of Affleck & Barrison LLP

According to Toronto Police, the number of reported shoplifting incidents are at a five year high in Toronto.  As of October 30, 2018 there were 16,667 shoplifting incidents reported.

On November 1, 2018, Toronto Police Service launched a pilot project called “Shop Theft”, allowing first-time shoplifters to avoid prosecution in two of Toronto’s busiest police divisions.

This project allows privately employed theft prevention officers to release an accused shoplifter after the details of the incident are called in to a police division. In the normal course, the accused would be held waiting for hours for police to arrive at the store in response to the low-priority calls.

WHAT IS THE “SHOP THEFT” PROJECT?

This pilot project will run for six months in divisions 51 and 52 in Toronto, which includes the area south of Bloor Street from Spadina Avenue east to the Don River.

Alleged offenders will be released for non-violent shoplifting incidents through the project as long as they meet the following criteria:

  • They must be 18 years of age or older;
  • The items they are accused of stealing must be worth less than $1,000; and
  • They must have identification.

Paul Rinkoff, a Toronto Police staff sergeant who is in charge of running the project, explains that the investigation will proceed as usual, it will just take place over the telephone. However, a police officer will attend the premises, if requested by any party involved.

Those that are apprehended through the Shop Theft project will not be charged, however, the police reserve the right to lay a charge at a later date depending on the circumstances of the crime.

In each case of shoplifting, the theft prevention officer will be required to fill out a form which will include details about the alleged occurrence and the accused. This form will then be forwarded to Toronto Police. The accused will be read their right to counsel and advised that they are being released. They will be given a notice of apprehension, which states why they were detained and specifies that a criminal summons may be obtained at a later date by the Toronto Police Service on that charge. This summons is unrelated to any civil proceedings that the store may commence against the accused.

The Shop Theft project will be reviewed 90-days following its commencement and again at the end of six months to determine whether Toronto Police will implement this practice in all of its divisions.

Meaghan Gray, acting director of corporate communications for the Toronto Police Service, states:

What we’ve been trying to do through the modernization process is make sure that our police officers are where the public needs them the most. And maybe responding to … shoplifting calls – that can be held just as efficiently by a theft prevention officer partnered with us over the phone – allows us to reassign those officers to more pressing calls for service.

WHAT IS SHOPLIFTING?

Shoplifting is the common term used when stealing something from a store and is an offence found under section 322 of the Criminal Code. Shoplifting can be categorized in two ways depending upon the value of the items stolen: theft over $5,000 or theft under $5,000.

Section 322 of the Criminal Code reads as follows:

Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent.

The term “colour of right” refers to the person having the authority to take it. The term “converts” means to deprive someone else of their property to use for your own enjoyment.

The term “intent” in reference to shoplifting refers to the intent to take someone else’s property. The intent needs to be proven in Court beyond a reasonable doubt by the Crown prosecutor.

Shoplifting occurs when an item has been taken from a store without paying and does not occur while you are still in the store, even if the item is in your pocket.

WHAT IS THE PUNISHMENT FOR SHOPLIFTING?

Approximately 50,000 Canadians are charged with shoplifting and theft under $5,000 each year. Most shoplifters rarely attempt to steal property valued at more than $5,000. The most common items stolen include alcohol, clothing or apparel, jewelry, food, and cosmetic and beauty products.

Shoplifting is a form of theft and is therefore a serious offence, and should not be treated lightly as this offence carries with it severe penalties.

Pursuant to section 334(b) of the Criminal Code, depending on the severity of the crime, the punishment for shoplifting (theft under $5,000) is a summary offence with a maximum penalty of a fine of up to $5,000 and/or imprisonment for up to 6 months. However, the Crown prosecutor may choose to proceed by way of indictment, which carries a punishment of imprisonment for a term not exceeding two years.

If you are convicted of the crime of theft, you may also be subject to court fines and fees, damage to your reputation and career, and restrictions on travel.

Once you have been convicted of shoplifting (unless you were a minor at the time), the charge and conviction are permanently recorded on your criminal record.  The charge, arrest, and your fingerprints are all a matter of public record even if you are not convicted of the offence.  Therefore, when travelling or on some forms for your employment you will need to answer “yes” if you are asked if you have ever been arrested or charged with a crime.

If you are facing shoplifting or theft charges, or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer. The lawyers at Affleck & Barrison LLP have years of experience defending clients against theft and stolen property charges. Contact our office today online or at 905-404-1947 to speak with our knowledgeable criminal defence lawyers that specialize in defending clients who face theft charges. We offer a free initial consultation for all prospective clients.

Woman Found Not Criminally Responsible in Fatal PATH Stabbing

Written on Behalf of Affleck & Barrison LLP

Rohinie Bisesar (“Bisesar”), accused of fatally stabbing 28-year-old Rosemarie Junor (“Junor”) in a Shoppers Drug Mart in Toronto’s underground PATH system in 2015, has been found not criminally responsible.

Bisesar pleaded not guilty last week to the first-degree murder charge. Bisesar’s lawyers maintained that she was not criminally responsible due to her mental illness. Her trial was held before a judge only.

Ontario Superior Court Justice John McMahon ruled that he was satisfied, on a balance of probabilities, that Bisesar, who suffered from schizophrenia, “was incapable of knowing the killing was morally and legally wrong”.

WHAT HAPPENED?

On December 11, 2015, while shopping at a make-up counter beneath Bay and Wellington streets, Junor was fatally stabbed. She was taken by ambulance to hospital where she succumbed to her injuries.

The unprovoked attack took a mere 54 seconds and was recorded on the store’s surveillance video. Bisesar walked into the pharmacy and stabbed Junor once in the heart with a small knife purchased at a dollar store. She did not speak to Junor during the attack, placed the knife on the counter following the stabbing, and immediately left the store.

According to Bisesar’s lawyers, she was experiencing hallucinations that took control of her physically. A forensic psychiatrist, Dr. Ian Swayze, the only witness at the trial, gave evidence that at the time of the incident Bisesar was experiencing a psychiatric breakdown due to untreated schizophrenia.

According to Dr. Swayze’s report, Bisesar was hearing voices in her head. The voice commanded her to buy a knife, and walk into the Shoppers Drug Mart. Dr. Swayze wrote that “The voice and movements raised my hand, pushed forward … it was like the knife was sticking to my hand and couldn’t be dropped.”

As a result of the not criminally responsible verdict, Bisesar remains in a secure wing of the Centre for Addiction and Mental Health in Toronto until an Ontario Review Board hearing is held.

WHAT DOES IT MEAN TO BE NOT CRIMINALLY RESPONSIBLE?

According to section 16 of the Criminal Code, a person is not criminally responsible for something that he/she did if they were suffering from a mental disorder at the time of the offence, and:

  • the mental disorder made it impossible for him/her to understand the nature and quality of what he/she did; or
  • the mental disorder made it impossible for him/her to understand that what he/she did was morally wrong.

WHAT HAPPENS NEXT FOR BISESAR?

Bisesar’s release is controlled by the Ontario Review Board (“Board”). This is an independent tribunal that oversees and annually reviews every person found to be not criminally responsible or unfit to stand trial for criminal offences due to a mental health condition.

The Board consists of a five person panel, which includes a psychiatrist, a lawyer, a mental health professional, a member of the public, and a Chairperson.  The Chairperson must either be a practicing or retired judge or someone who can be appointed to a judicial office (i.e. a lawyer who has 10 years of experience).  All members of the Board are appointed by the Lieutenant Governor.

The Board hears evidence from the individual and his/her lawyer, the Crown prosecutor, a psychiatrist, and possibly others that may include a family member or other specialist. The hospital facility also provides a report to the Board detailing the individual’s history and progress.

The Board’s decisions are made by a majority vote. The most important concern of the Board is whether the individual poses a significant risk to the safety of the public. If the individual is found to be a significant risk, the Board will consider other factors. The most important being the protection of public from dangerous persons, the re-integration of the person into society, and the liberty interests of the person.

The Board reviews the disposition annually to determine whether changes need to be made depending on the progress made by the individual. The Board can make one of three dispositions:

  • Detention Order: The individual should continue to be detained in the hospital and makes a decision regarding whether the individual stays at a minimum, medium or maximum secure unit and what access the individual would have to the community;
  • Conditional Discharge: The individual is allowed to live in the community while subject to certain requirements (i.e. having to report to a hospital, refrain from using alcohol or drugs, reporting any change in address, or refrain from contact with certain individual); or
  • Absolute Discharge: The individual is granted a full release with no further supervision.

Victims can provide victim impact statements at the annual Board hearings. The statements do not have an impact on the decision the Board makes, unlike at a sentencing hearing. The Board’s decision must be based on the individual’s current level of risk to public safety.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Sextortion Crimes in Canada

Written on Behalf of Affleck & Barrison LLP

Sextortion in Canada is on the rise. The RCMP have been investigating 24 incidents of sextortion since May, 2018.

Sextortion is a form of exploitation that involves the threat of releasing shared intimate videos, images, or explicit messages online.

Experts have found a spike in reported online sextortion cases involving teenage boys. According to the Canadian Centre for Child Protection (a national charity dedicated to the personal safety and protection of children), 65 boys reported incidents to Cybertip.ca in 2015-2016, an 89% increase from the previous two-year period. Reports made by girls in 2015-2016 increased by 66% from the previous two-year period.

Boys, usually between the ages of 13 to 15, are targeted through a social media website by strangers who show a romantic interest. The perpetrator then sends a pre-recorded video of a young girl and solicits the teen boy to reciprocate by sending sexually explicit images or videos of themselves. When the perpetrator has the explicit material, the boy is led to believe that the images or video will not be shared with the public as long as cash is delivered.

RECENT ARREST FOR SEXTORTION

In Manitoba, a 22-year-old woman met a 25-year-old man on Tinder (no names have been disclosed due to privacy concerns). The two began chatting online, and then went on a couple of dates over a two week period of time. The man received “sensitive images” of the woman that were consensual.

The woman reported to police that there were occasions when the man would rip off her clothes and take pictures of her, without her consent.

The woman later found videos that the man took without her consent of occasions where he was “taking advantage of her in his truck”.

The woman refused to see the man again, at which point he began to threaten her. The man claimed that if she did not come over, he would send the videos and photographs to her work.

In a text message, the man wrote “It’s called f-ing leverage. It’s called blackmail. … If you are not here by 9:30 by yourself then all the videos go out. There is no if’s and or butts.”

The woman reported the blackmail to the police, and the RCMP proceeded to obtain a search warrant and attended at the man’s home on March 20, 2018. At that time, they proceeded to seize all electronics (laptop, Xbox one, and two iPhones), along with 15 other items.

The man has been charged with extortion, voyeurism, and indecent phone calls. He has also been charged with “sextortion”, a newly added crime in the Criminal Code (section 162.1), referencing someone who distributes an intimate image of someone without that person’s consent.

The man is awaiting his court date, but a protection order has been grant requiring the man to stay at least 100 metres away from the woman until 2020.

RCMP WARNINGS

RCMP are warning the public of various types of sextortion scenarios that they have been investigating.

One scenario occurs where a victim receives unsolicited friend requests on social media or a pornographic website and an online relationship develops. The relationship builds and the victim is encouraged and coerced to use his/her computer’s camera to perform a sexual act on camera. The victim later learns that this event was recorded and is threatened to make a payment or the video will be released.

Another scheme occurs when a victim receives an email advising that someone has infiltrated their computer and knows that they have been visiting a pornographic website. The hacker provides the victim’s password in the email and reveals that they have a sexually explicit recording of the victim. Then a demand for payment is made, usually in the form of Bitcoins.

In all of these scenarios, the victims are threatened with the release of intimate videos or images if a payment, in the form of a money transfer or Bitcoin, is not received.

TIPS TO PREVENT SEXTORTION

The following are some recommendations to protect yourself from becoming a victim of sextortion:

  1. Do not accept friend requests from unknown individuals on social media;
  2. Do not talk to people online who you do not know;
  3. Do not perform an illicit act over the internet;
  4. Disable your webcam or any other camera connected to the internet when you are not using it;
  5. Do not open attachments from individuals you do not know;
  6. Do not share explicit videos and/or photographs with anyone;
  7. Parents should review and approve all applications downloaded to their children’s electronic devices and regularly monitor the content of all applications and social media websites used by their children;
  8. Parents should discuss internet safety with their children and reinforce the need to tell an adult if anyone threatens them or asks for sexual acts or sexually explicit images;
  9. If you have been targeted, stop communicating with the individual, save all correspondence and immediately report the incident to the police.

We will continue to follow any developments that take place in the latest sextortion case in Manitoba as it makes it way through the courts and will report on them in this blog.

In the meantime, if you are facing sextortion charges or charges related to any other sexual offence, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. For your convenience, we offer 24-hour phone services. We are available when you need us most.

Lawyer Convicted of Murder Granted Bail Pending Appeal

Written on Behalf of Affleck & Barrison LLP

Demitry Papasotiriou-Lanteigne (“Papasotiriou”) and his lover, Michael Ivezic (“Ivezic”), were found guilty of first degree murder in the death of Allan Lanteigne (“Lanteigne”) last June following a lengthy trial. Both were sentenced to life imprisonment with no parole eligibility for 25 years.

It was alleged that the Papasotiriou and Ivezic were having an affair and conspired to kill Papasotiriou’s spouse in order to access the victim’s $2 million life insurance policy. We previously blogged about this case on June 7, 2018.

Papasotiriou is appealing his conviction and alleges that the jury’s verdict was unreasonable because it was based on circumstantial evidence. The Court of Appeal has recently granted Papasotiriou bail pending his appeal.

PAPASOTIRIOU’S BAIL HISTORY

Papasotiriou was born in Greece and came to Canada at the age of 11 after his parents split up. As a young man, he attended university and law school, and was called to the Ontario Bar. He is currently 38 years old.

Papasotiriou left Canada in 2010 to live in Greece. Ivezic followed Papasotiriou to Greece and lived with him for six months in 2010, prior to returning to Canada in January of 2011. Lanteigne was killed on March 3, 2011. Ivezic returned to Greece on May 14, 2011 to live with Papasotiriou.

Papasotirou returned to Canada on November 1, 2012 to participate in litigation regarding the proceeds of his deceased spouse’s insurance policy. He was arrested the next day.

Papasotirou applied for bail in August 2013, but was denied. He re-applied in November 2013 and provided an improved plan of release to the Court. He was again denied.

On September 11, 2014, Papasotirou was discharged following a preliminary inquiry. However, the Crown immediately launched a certiorari application (a formal request to a court challenging a legal decision alleging that the decision has been irregular or there has been an error of law) and a direct indictment was ordered on October 28, 2014, at which point Papasotirou was arrested.

Papasotirou again applied for bail, which was granted. He was released on a $400,000 recognizance with his mother, sister, and stepfather acting as sureties (person who promises to a judge to supervise an accused person while they are out on bail and pledges an amount of money). He remained out on bail for 3 ½ years with no compliance issues.

At the Court of Appeal, counsel for Papasotiriou proposed a plan for release pending his client’s appeal as follows:

  • $500,000 recognizance with his mother, stepfather, and stepfather’s mother as sureties;
  • strict house arrest with very narrow exceptions; and
  • GPS ankle bracelet to be monitored by Recovery Science Corporation (funded by Papasotiriou).

GROUNDS FOR GRANTING BAIL PENDING APPEAL

Pursuant to section 679(3) of the Criminal Code, a judge of the appeal court may order an appellant released pending appeal if he/she has established the following:

  • That the appeal is not frivolous;
  • That he/she will surrender into custody in accordance with the terms of any bail order; and
  • That the detention is not necessary “in the public interest”.

The “not frivolous” test is a very low bar, and in Papasotiriou’s case the Crown did not suggest to the Court that the appeal is frivolous.

The Crown did, however, argue that Papasotiriou has not discharged his onus to surrender into custody given his ties to Greece. The Court of Appeal, rejected the Crown’s argument on this ground, and held that Papasotirou’s compliance with his pre-trial bail order was “flawless” and the use of electronic monitoring will provide an “extra layer of assurance against absconding”.

The Court stated:

I accept that, standing alone, Mr. Papasotiriou’s connections to Greece may give pause for concern. However, any lingering concerns about flight are answered by his history of bail compliance and the strict release plan that is proposed. Accordingly, I am satisfied that the applicant will surrender into custody in accordance with his bail order.

The Court of Appeal outlined that there are two components which make up the third provision (public interest) to consider in granting bail pending an appeal. These include public safety and confidence in the administration of justice. The Supreme Court of Canada addressed the provision regarding the “public interest” in the case of R. v. Oland. The judicial discretion to grant bail pending appeal involves balancing enforceability (taking into account the gravity of the offence, the circumstances surrounding its commission, and the potential length of imprisonment) and reviewability interests (taking into account the strength of the grounds of the appeal).

The Crown conceded that Papasotiriou has proven that he will not commit offences if he is released on bail, thus discharging the onus of the public safety component. However, the Crown did take issue with maintaining public confidence in the administration of justice.

The Court of Appeal ruled in favour of Papasotiriou and held:

The “public interest” requires that I balance all of these factors – the circumstances of the applicant, the nature of the offence, the apparent strength of the appeal, and the time it will take to argue the appeal – to determine whether public confidence in the administration of justice would be undermined by Mr. Papasotiriou’s release on bail.

The Court of Appeal maintained that Papasotiriou was not being “turned loose”, but rather carefully monitored in accordance with a stringent release plan (i.e. house arrest, GPS electronic monitoring, and the pledge of $500,000 by his sureties), which is consistent with the proper functioning of the Canadian justice system. Therefore, the Court allowed Papasotiriou’s application and granted him bail pending his appeal.

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

In the meantime, to speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.