Criminal Code

Alek Minassian Pleads Not Criminally Responsible for Van Attack

Written on Behalf of Affleck & Barrison LLP

The accused, Alek Minassian (“Minassian”), who has admitted that he planned the van attack and purposely drove onto the sidewalk with the intent to kill on April 23, 2018, has plead not guilty and is asking the court to find him not criminally responsible for his actions.

Minassian has been charged with 10 counts of first-degree murder and 16 counts of attempted murder.  He faces 10 mandatory life sentences and potentially 26 life sentences, if found guilty.

NOT CRIMINALLY RESPONSIBLE DEFENCE

Minassian’s trial has finally begun and is being conducted entirely online through Zoom video teleconferencing due to COVID-19 restrictions.

Both the Crown prosecutors and the defence have agreed upon a lengthy set of facts setting out the events that occurred on the day of the attack.  The only issue before the court is Minassian’s state of mind at the time of the attack.

Minassian’s defence is claiming that Minassian’s autism prevented him from knowing it was wrong to kill.

Section 16 of the Criminal Code codifies the defence of “not criminally responsible”.  This defence typically arises when an accused who is mentally ill, does not understand either:

  • The nature and quality of the act that he/she has committed, or
  • That the act was wrong.

As Minassian has raised a not criminally responsible defence, the onus shifts from the Crown prosecutor to prove its case beyond a reasonable doubt to the defence to prove on a balance of probabilities that more likely than not Minassian had a mental disorder that affected his behaviour and he didn’t understand that what he was doing was wrong.

If an individual is found “not criminally responsible” he/she will fall under the jurisdiction of the Ontario Review Board (“ORB”).  The ORB will hold an initial hearing shortly after the finding of not criminally responsible and additional hearings will be held once every year.  The Board is made up of five members including two lawyers, a psychiatrist, a psychologist and an appointed public member who determine based on an assessment and the accused’s risk to the public whether he/she should remain in hospital, be allowed to remain in the community or absolutely discharged.

AUTISM SPECTRUM DISORDER IS MINASSIAN’S DEFENCE

Minassian’s own lawyer, Boris Bytensky, admits that it is very rare to use autism as a mental disorder when pursuing a defence of not criminally responsible. 

Minassian was diagnosed with autism spectrum disorder at age five.  Autism is a neurological condition that affects how the brain functions.  Those living with autism often find it hard to connect with others, may have difficulty communicating, repeat certain patterns of behaviour and may show interest in a limited number of activities.

Minassian’s defence team will argue that he “only understood wrongfulness at the intellectual level” and lacked the ability to rationally choose whether his behaviour was right or wrong.  It is anticipated that the defence will be calling psychiatric experts to testify that Minassian had an “autistic way of thinking” that was similar to psychosis.

UNPRECEDENTED RULING BY JUSTICE MOLLOY

Justice Anne Molloy reluctantly agreed to the never before granted demand by Dr. Alexander Westphal to guarantee that his videos of the accused are never publicly released.

Dr. Westphal, retained by Minassian’s legal team to provide expert opinion on their client’s mental state at the time of the attack, is a forensic psychiatrist specializing in autism and a professor at Yale University. 

Dr. Westphal made it clear that he would not testify if the tapes of interviews with the accused were to be recorded via Zoom or released for publication or distribution.  It was his belief that the footage of Minassian may be an inspiration to some vulnerable individuals and serve “as a catalyst for further violence”.  Dr. Westphal also noted that he wanted to protect the autism community from misinformation. 

In justifying her ruling regarding the videos, Justice Molloy stated:

Either I do it or proceed directly to sentencing.   … I made the analogy of a gun to my head.  Another one that occurs to me is a ransom demand.  I know it’s wrong to give into those kinds of demands.  As a general proposition kidnappers should not be paid ransom but that said, if somebody kidnapped my child, I’d probably pay. …

That’s my ruling.  Not happy about it.  (It’s) the least wrong thing to do in the circumstances.

In ordinary circumstances, Dr. Westphal’s bold request would not be entertained by a Judge.  However, Dr. Westphal is an American living in the United States.  If he were living in Canada, Justice Molloy could simply send a police officer to bring a hostile witness to court at a specific date and time.   

Bytensky argued that he could not put forward the defence for Minassian without Dr. Westphal’s testimony and stated:

Mr. Minassian, without Dr. Westphal, will be asked to fight with both hands tied behind his back.  That’s really what it comes down to.  And while that may be popular with some people who are watching the trial, that is not the test your Honour has to be concerned with.

The videos in question have been described as high-definition, close-up recordings of Minassian’s face as he responds to questions by Dr. Westphal and describes the attack.

A number of media organizations opposed the sealing of the videos and argued that courts are to be open and transparent.  Further, it was argued that it was an infringement of the rights set out in section 2 of the Charter which guarantee freedom of the press.

We will continue to follow the Minassian trial and will report on any further developments in this blog.

If you have been charged with a criminal offence or have 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. 

Alberta Appeal Court Ruling Likely to Limit Electronic Device Searches at Canadian Border

Written on Behalf of Affleck & Barrison LLP

Sheldon Canfield (“Canfield”) and Kent Townsend (“Townsend”), both Canadian citizens, were charged with possession of child pornography contrary to section 163.1(4) and with importing child pornography contrary to section 163.1(3) of the Criminal Code.

The criminal charges against both men took place when they re-entered Canada at the Edmonton International Airport in 2014.  Although the charges against the men are unrelated, both men sought an order from the Court under the Charter of Rights and Freedoms that the evidence of the search of Canfield’s cell phone and Townsend’s computer by border officers be excluded at their trials. 

Both Canfield and Townsend had their electronic devices searched by border officers and were found to have child pornography in their possession.  They were both arrested, convicted and appealed the Court of Queen’s Bench of Alberta’s decision not to exclude the evidence obtained during the search of their electronic devices by border officials.  The Alberta Court of Appeal has ruled that the searches by the Canada Border Services Agency (“CBSA”) officers of the digital devices were unconstitutional as the Customs Act imposes no limits on the search of these types of devices at the border.

THE CRIMINAL CHARGES

At the Canadian border, Canfield was flagged for a secondary screening due to his travel patterns and “overly friendly demeanor” after returning home from Cuba.  During this screening, an officer suspected that Canfield had child pornography on his phone.  Canfield confirmed that he did and showed the officer an image of child pornography on his device. 

Townsend was also arrested after being flagged by border officials when returning home from Seattle.  Townsend was selected for a secondary screening due to his five-month travel pattern, his lack of eye contact with border officials and his lack of employment.  He was also carrying 12 electronic devices.  Child pornography images were found on Townsend’s laptop and he was arrested.

At trial, Canfield and Townsend were convicted of possession of child pornography and importing child pornography.  Canfield was sentenced to 18 months in jail and Townsend was sentenced to two years.

THE APPEAL

At their appeal, it was argued that section 99(1)(a) of the Customs Act (“Act”) was unconstitutional as it permitted unlimited searches of electronic devices at the Canadian border.

Section 99(1)(a) of the Customs Act permits Canada Border Services Agency officers to examine “goods” that have been brought into Canada.  This section has been interpreted to allow CBSA officers to search personal electronic devices without restriction.

The written decision by the three judge panel of the Court of Appeal stated:

While the search of a computer or cellphone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy.  … To be reasonable such a search must have a threshold requirement.

According to the Court of Appeal, the trial judge failed to assess the application of section 99(1)(a) of the Act considering the developing technology of personal digital devices.

There is no doubt that there have been significant developments in the technology of personal electronic devices and the way they are used by Canadians (since 1988).  Individuals were not travelling and crossing borders with personal computers or cell phones that contained massive amounts of highly personal information.

The Court ruled that the definition of “goods” in the Act is “of no force” when it comes to personal electronic devices.

The Alberta Court of Appeal found that section 99(1)(a) of the Act was unconstitutional as it imposed no limits on searches of electronic devices by CBSA officers at the border.  The Appeal Court ruled that this section will be of no force and effect for one year to allow Parliament the opportunity to amend the Act.

Despite the Appeal Court’s ruling on the constitutional validity of the section, the convictions of Canfield and Townsend were upheld by the Court based upon the finding that the border officers acted in good faith in carrying out the searches and uncovered real evidence of serious offences.  Furthermore, society’s confidence in the justice system was best maintained through the admission of the evidence obtained through the unconstitutional searches. 

The CBSA, in a statement to CBC News, reported that it is currently reviewing the appeal court decision and assessing the next steps.  According to the CBSA:

The CBSA’s policy is to examine a digital device only if there are indicators that evidence of a contravention will be found.  It is important to note that examinations of digital devices are not conducted as a matter of course. …

This is a pretty big change in the law for the 98 million people who come through our Canadian border every year.

We will continue to follow any developments in the law with respect to the limits imposed on officers to search electronic devices at border crossings in Canada and will report them 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.

Couple Found Not Guilty in Death of Son

Written on Behalf of Affleck & Barrison LLP

We have previously written in this blog about the criminal case involving the Alberta couple, David and Collet Stephan, who were charged with failing to provide the necessaries of life to their 19-month-old son Ezekiel, who died in 2012.  At their second trial, a judge last week found the couple not guilty.

WHAT HAPPENED?

The Stephans testified that they believed their son was suffering from an upper airway infection (i.e. croup).  They treated him at home with natural remedies, which included a smoothie made of garlic, onion and horseradish.  They also used cool air and a humidifier to help with his breathing.  Ezekiel’s condition seemed to get better one day, then worse the next day, then better again.

On March 12, 2012, Ezekiel’s body remained stiff and he was unable to drink on his own.  Terry Meynders, a registered nurse, attended at the Stephans’ home and suggested to the couple that Ezekiel may have viral meningitis and that he should be taken to a doctor. 

On March 13, 2012, after Ezekiel stopped breathing a few times, the Stephans called for an ambulance.  The breathing equipment available in the ambulance was too large for a small child and he went without oxygen for nine minutes.  Ezekiel attended two area hospitals and was then transported to Alberta Children’s Hospital Calgary, where he was put on life support and died a few days later.

HISTORY OF THE CRIMINAL PROCEEDINGS

At their original trial in 2017, a jury convicted the Stephans of failing to provide the necessaries of life to their son contrary to section 215(2)(b) of the Criminal Code.  David Stephan was sentenced to four months in jail and his wife was sentenced to three months of house arrest.

This trial decision was upheld on appeal and the ruling was further appealed to the Supreme Court of Canada.  The highest court in Canada quashed the Stephans’ convictions and ordered a new trial (please see our blog regarding this decision).

A new trial began on June 3, 2019 before Justice Terry Clackson of the Court of Queen’s Bench, without a jury, lasting over three months. 

WHAT HAPPENED AT THE STEPHANS’ SECOND TRIAL?

Although it was established that Ezekiel had meningitis, the following issues were in dispute at trial:

  • Whether Ezekiel had bacterial or viral meningitis;
  • Whether Ezekiel’s death was the result of meningitis or hypoxic injury (damage to cells resulting from decreased oxygen tension);
  • Whether the Stephans knew Ezekiel had meningitis;
  • Whether the Stephans, knowing that Ezekiel had meningitis, ought to have sought medical intervention.

Based upon the evidence before the court, Justice Clackson came to the following conclusions:

  • Ezekiel had viral meningitis;
  • Ezekiel did not die from meningitis, but from the lack of oxygen;
  • The Stephans did not know Ezekiel had meningitis, but were aware of the possibility and were monitoring his symptoms.

Given these findings, Justice Clackson found that the Stephans were not guilty of the charge against them.

According to Justice Clackson, section 215 of the Criminal Code does not impose a duty on parents or guardians to seek medical attention for every sick child.  A duty is imposed when there is a risk to the child.  Justice Clackson found that, based on the evidence before him, the viral meningitis that Ezekiel suffered from did not constitute a risk to his life.

Justice Clackson ruled that there was no physical evidence that Ezekiel died of meningitis, thus the Crown had failed to prove its case.  The evidence before the court informed that there is no specific means to effectively treat viral meningitis.  Therefore, the Crown did not prove that medical attention could have or would have saved Ezekiel’s life.  Clackson stated:

I have concluded that the Stephans knew what meningitis was, knew that bacterial meningitis could be very serious, knew what symptoms to look for … They thought their son had some sort of croup or flu-like viral infection. … The physical evidence supports … [the] conclusion that Ezekiel died because he was deprived of oxygen.  That occurred because he stopped breathing and the resulting oxygen deprivation lasted long enough to lead to his death.

In response to the verdict, the Alberta Crown Prosecution Service issued the following statement:

We respect the decision of the court.  This has been a challenging case for everyone involved.  The Alberta Crown Prosecution Service will review the decision to determine the next steps.  As such, no further comment will be provided.

We will continue to follow the developments in this case and will provide updates on this blog when they become available.

In the meantime, if you are facing criminal charges or have 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 for your convenience.  We are available when you need us most.

New Changes to Animal Cruelty Laws in Canada

Written on Behalf of Affleck & Barrison LLP


A new law has been passed to crack down on animal cruelty in Canada.  Bill C-84, “An Act to Amend the Criminal Code Pertaining to Bestiality and Animal Fighting”, addresses many flaws that are found in the current Criminal Code with respect to animals in Canada.

WHAT IS BESTIALITY?

The new law, Bill C-84, was created partly in response to a 2016 Supreme Court of Canada decision (R. v. D.L.W.) that found a convicted sexual offender not guilty of bestiality related to charges arising out of sexual activity involving one of his stepdaughters and the family dog.

The majority of the justices of the highest court in Canada ruled that the Criminal Code provisions on bestiality did not effectively define which sexual acts with animals are illegal.  They essentially requested that the government revisit the definition.

Justice Thomas Cromwell, on behalf of the majority of the court, wrote:

Penetration has always been understood to be an essential element of bestiality.  Parliament adopted the term without adding a definition of it, and the legislative history and evolution of the relevant provisions show no intent to depart from the well-understood legal meaning of the term.  … Any expansion of criminal liability for his offence is within Parliament’s exclusive domain.

The new law specifically provides an update of the legal definition of bestiality to broaden the definition and include any contact for a sexual purpose between a person and an animal (previously there had to be evidence of penetration before charges could be made).

Anyone convicted of bestiality in Canada will now be added to Canada’s National Sex Offenders Registry and can be banned from owning animals. 

According to the CEO of Humane Canada, Barbara Cartwright:

Many studies have proven a clear link between animal abuse and child abuse, so adding convicted animal abusers to the National Sex Offenders Registry protects children as well as animals.

HOW WILL THE LAW CHANGE REGARDING ANIMAL FIGHTING?

The new legislation will prohibit promoting or profiting from fighting or baiting animals, as well as breeding or training animals to fight.  The law also prohibits the building or maintaining of any arena established for the purpose of animal fighting. 

Furthermore, the new law applies to anyone who “in any manner encourages, aids, promotes, arranges, assists, receives money for or takes part in the fighting or baiting of animals.”

There is currently a growing trend of animal fighting, which occurs covertly and online.  This trend is also increasingly linked to guns and gangs.

One incredibly dreadful activity is called “trunking”, whereby two dogs are sealed together in the trunk of a car.  The car is driven around as the dogs fight to the death.  Eventually the car is stopped, and the results of the dog fight is revealed to an online audience.

There are several other important elements found in Bill C-84 to protect animals in Canada that include:

  • Granting a judge the discretion to make an order banning an offender from owning or living with an animal for a period of time up to a lifetime ban;
  • Granting a judge the ability to order the offender to make financial restitution to a person or organization that cared for an animal which was harmed by an offence;
  • Repealing a section of the Criminal Code that required a peace officer to seize and destroy any animals found fighting in a cockpit.

“FREE WILLY” BILL ALSO PASSES IN CANADA

The government has also passed Bill S-203, “The Ending the Captivity of Whales and Dolphins Act”, often referred to as the “Free Willy Act”.  This law phases out the captivity of cetaceans (i.e. whales, dolphins and porpoises) in Canada, except for rescues, rehabilitation, licensed scientific research or in the cetaceans’ best interests.  

The new law also prohibits the trade, possession, capture and breeding of cetaceans.  Those acting in contravention of the new law may be fined up to $200,000.

The law does provide an exception for those that are taking care of an injured or distressed animal in need of assistance.  Also, researchers must obtain a license from the government in order to hold a cetacean for research purposes.

The Vancouver Aquarium and Marineland in Niagara Falls are the only two facilities in Canada that are allowed to house cetaceans and keep the animals that they have as long as they do not breed them.  The Vancouver Aquarium has a Pacific white-sided dolphin and Marineland has an orca and more than 50 beluga whales.

Lori Marino of the Whale Sanctuary Project wrote in her statement about the new law:

This is a major victory for cetaceans.  They are among the most cognitively complex of all animals.  Confining them to life in a concrete tank is truly unbearable for them.

If you have any questions regarding charges that have been laid against you or regarding 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.

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.