criminal law

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.

Truck Driver in Brocos Bus Crash Sentenced to Prison

Written on Behalf of Affleck & Barrison LLP

Last week, Jaskirat Singh Sidhu (“Sidhu”) was sentenced to eight years in prison after pleading guilty in January to 16 counts of dangerous driving causing death and 13 counts of dangerous driving causing bodily harm.

Sidhu was the semi-truck driver involved in the Humboldt Broncos bus crash in rural Saskatchewan on April 6, 2018.

WHAT HAPPENED?

The accident occurred when Sidhu drove through a stop sign and collided with a bus carrying the Humboldt Broncos junior hockey team that was heading to a playoff game. Sidhu was traveling between 86 and 96 km/h. He passed four signs warning him about the upcoming intersection that had an oversized stop sign with a flashing light.

A forensic collision report found that Sidhu did not brake at the intersection of Highway 335 and 35 before colliding with the bus. The report also indicated that Sidhu’s view of the intersection was not impeded by any environmental factors, such as trees or sunlight.

At the conclusion of the four day sentencing hearing, Sidhu apologized to his victims and took full responsibility for the crash. He stated that the accident occurred due to his inexperience as a truck driver.

More than 90 victim impact statements were presented to the court by friends and families of the victims and hours of arguments were made by lawyers. The victim statements were emotional with some families stating that they were able to forgive Sidhu, while others admitted that they would never be able to forgive him for his role in the accident.

Sidhu’s lawyer explained that he had been hired by a small Calgary trucking company three weeks prior to the accident. He spent two weeks with another trucker and then began driving on his own. Sidhu was apparently distracted by a tarp flapping on the trailer of the truck which resulted in his missing the four warning signs regarding the upcoming intersection. His lawyer advised the court that sentencing in cases of dangerous driving ranged from 18 months to 4 ½ years.

The Crown prosecutor argued that Sidhu had enough time to slow down and stop and described Sidhu’s driving as entering the intersection “like a rocket”.  He argued that Sidhu should receive a 10-year prison sentence, followed by a 10-year driving ban.

THE SENTENCE

Judge Inez Cardinal provided her sentencing decision in a makeshift courthouse at the Kerry Vickar Centre. The victim’s family and friends wore Broncos jerseys with the last names of their loved ones on the back.  Judge Cardinal began handing down her sentencing decision by reading the names of each of the victims aloud. She described the victims as:

…gifted athletes, community leaders, and team builders with hopes and dreams for the future…Some were dreaming of having a family, while others were already raising their families.

 Judge Cardinal recognized that there has been no similar case in Saskatchewan or Canada given the number of fatalities and injuries. She acknowledged that Sidhu’s remorse and guilty plea spared the victims’ families a lengthy trial and saved him from a maximum sentence of 14 years.

Judge Cardinal stated:

It is baffling, and incomprehensible, that a professional driver, even one with little experience, could miss so many markers over such a long distance. His inattention displays risky behaviour given he saw the signs but they did not register because he continued to focus on the trailers behind him.

Sidhu was sentenced to eight years for each count of causing death, and five years for each count of dangerous driving causing bodily harm. The sentences are to be served concurrently as they all arise from the same circumstances, which means the sentences will be served simultaneously.  Sidhu was also given a 10-year driving ban, a firearms prohibition, and is required to provide bodily samples for the purpose of DNA analysis.

WHAT COMES NEXT?

Sidhu grew up in India and came to Canada in 2013. He is a permanent resident, not a Canadian citizen. As a result of his conviction and sentence, Sidhu will face deportation to India.

Under Canada’s federal law, permanent residents cannot remain in Canada if they commit a crime for which the maximum sentence is at least 10 years or their jail sentence is more than six months.

As a result of this accident, the Saskatchewan government has undertaken to make changes to the intersection where the crash occurred, promising to add rumble strips and better signage.  The government has also promised to put millions of dollars into improvements at other intersections.

Although there is mandatory training for semi-truck drivers in Ontario, training for semi-truck drivers in Saskatchewan only became mandatory last week. Training for drivers across the rest of the country will also become mandatory in 2020.

If you are facing a dangerous driving charge or need to speak with an experienced criminal defence lawyer about criminal 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. We are available when you need us most.

Government Announces Legislation to Pardon Pot Possession

Written on Behalf of Affleck & Barrison LLP

On March 1, 2019, the Minister of Public Safety and Emergency Preparedness Ralph Goodale announced new legislation proposed to allow those previously convicted of simple marijuana possession to be pardoned once their sentence is complete.

The Trudeau government introduced Bill C-93, An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, which would amend the Criminal Records Act.

According to Border Security and Organized Crime Reduction Minister Bill Blair, there are approximately 400,000 Canadians with criminal records for simple possession. However, the government expects that there are between 70,000 to 80,000 Canadians eligible to apply for the streamlined pardon process.

WHAT IS BILL C-93?

Bill C-93 proposes to allow those formerly convicted of simple cannabis possession in Canada to apply for a pardon, or record suspension, once their sentence has been served. This proposal will also allow for both the fee ($631) and the five to ten year waiting period to be waived. All individuals would be eligible to apply even if they are not a Canadian citizen or resident of Canada.

The government is hopeful that the elimination of the stigma of a criminal record, in addition to the fee and waiting period for those who have completed their sentence and proven themselves to be law-abiding citizens, will likely increase opportunities for all Canadians.

The Honourable Ralph Goodale describes the proposed legislation as “unique and historic” and stated:

The Cannabis Act’s coming into force marked an important step in the process of legalizing, strictly regulating and restricting access to cannabis in Canada. This proposed legislation will help eliminate what are disproportionate consequences, and reduce barriers to reintegration for Canadians convicted only of simple cannabis possession.

The proposed law would apply to those convicted of simple possession. This refers to those charged with possession of cannabis for personal use, with no intent to traffic (to sell, administer, give, transfer, transport, send or deliver).

The proposed pardon, otherwise known as a record suspension, allows those that have completed their sentence and after they have proven to be law-abiding citizens to have their criminal record removed from the Canadian Police Information Centre database. However, it will not erase the conviction entirely (expungement), but will keep the record separate from other criminal records. The pardon could be reversed if the individual is convicted of new crimes or is “found to no longer be of good conduct”.

A pardon will allow those convicted of simple possession to access educational and employment opportunities, volunteer in their communities, and reintegrate into society.

According to the Honourable Bill Blair, Minister of Border Security and Organized Crime Reduction:

Ensuring timely access to pardons for individuals previously convicted only of simple possession of cannabis will help make things fairer for these Canadians – including visible minority communities, Indigenous communities and those in our most vulnerable neighbourhoods – who should have greater access to employment, volunteering opportunities, educational programs, and housing.

CRITICS ARGUE FOR EXPUNGEMENT

The NDP justice critic Murray Rankin is attempting to improve the proposed bill by pushing for the expungement of cannabis records, rather than the suspension of records for simple possession. An expungement of a criminal record would completely destroy or remove the record of a conviction. Expungement also protects individuals against a future government that may reverse the amnesty proposed by the current government.

MP Rankin had previously tabled a private member’s bill last fall, which we addressed in an earlier blog.

Akwasi Owusu-Bempah, a University of Toronto sociologist, does not believe that the new bill goes far enough. According to Owusu-Bempah, young people over the last 15 years, especially those of colour, have been overrepresented in arrest statistics involving marijuana. However, his research indicates that those that are black, white and Latino in Toronto consume cannabis at approximately the same rate. He believes that destroying cannabis-possession records entirely is the only way to recognize the “profound historical injustices that have stemmed from the war on drugs and cannabis prohibition in particular, especially how those have affected both marginalized and racialized populations”.

MP Goodale defends the government’s position to allow pardons and not expungements by stating that expungements of a criminal record are only applicable for convictions under laws that have been declared unconstitutional, such as the prohibition of same-sex relations. He also maintains that the proposed pardon process is cheaper and faster than expungement.

We will continue to provide updates in this blog regarding the law with respect to criminal records for simple cannabis possession.

In the meantime, if you are facing drug related charges or have any questions concerning your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and offer a free consultation. Trust our experienced lawyers to handle your defence with diligence and expertise.

Ontario Will Not Appeal Decision to Stay Murder Charge Against Adam Capay

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada, and are revisiting this issue given the recent announcement by Ontario Crown prosecutors declaring that they will not appeal Superior Court Justice John Fregeau’s decision to stay the proceedings in the first-degree murder case against Adam Capay (“Capay”).

On January 28, 2019, Justice John Fregeau stayed the first-degree murder charge against Capay due to the “complete and utter failure” of Ontario’s correction system in managing Capay’s solitary confinement for more than four years while awaiting trial. Capay was released to his family following this decision.

WHAT HAPPENED?

On June 3, 2012, Capay fatally stabbed Sherman Quisses (“Quisses”) twice in the neck while they were in a correctional facility in Thunder Bay.

Capay was immediately placed in segregation after his attack on Quisses on the basis that he was a threat to both himself and other prisoners. Capay was kept in a Plexiglass cell with the lights on 24-hours a day for 1,647 days. He was often kept in detention blocks where he was not allowed to flush the toilet from inside the cell.

Capay’s decline became publicly known after Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, visited him during a tour of Thunder Bay District Jail and released the details to the media.

Capay described his lengthy segregation as having impaired his ability to speak and differentiate day from night. On October 18, 2016, The Globe and Mail published the first in a series of stories about Capay and his prolonged isolation.

JUSTICE FREGEAU’S DECISION TO ORDER A STAY

Capay’s lawyers requested a stay (a ruling by the court halting any further legal proceedings) of the first-degree murder charge on the basis that Capay’s rights were violated under the Charter of Rights and Freedoms (“Charter”). Justice Fregeau heard testimony from corrections staff and numerous experts in the field of forensic psychiatry, human rights, and correctional law and policy.

Justice Fregeau found that Capay suffered from pre-existing mental-health issues as a result of his childhood experiences of physical and sexual abuse, domestic violence in his home, parental alcoholism and other intergenerational trauma, and concluded that these issues were exacerbated by his isolation, sleep deprivation, and lack of access to mental health services.

According to Justice Fregeau, Capay’s isolation violated four sections of the Charter, including:

  • The right of life, liberty and security of person (Section 7);
  • The right not to be arbitrarily detained (Section 9);
  • The right not to be subjected to cruel and unusual punishment (Section 12); and
  • The right to be equal before and under the law (Section 15).

Although Capay was responsible for Quisses’ death, his many years of isolation amounted to cruel and unusual punishment and a violation of his Charter rights.

Justice Fregeau ruled that these Charter violations were so “prolonged, abhorrent, egregious and intolerable” that the only appropriate solution was to stay his murder charge and allow Capay to be released.

Justice Fregeau’s decision set out the following issues with the Thunder Bay District Jail, which included:

  • Failing to hold legally mandated reviews of Capay’s segregation status;
  • Advising staff to avoid talking to the inmate; and
  • Neglecting Capay’s declining mental health.

Justice Fregeau wrote in his decision:

When exercising their statutory discretion in making segregation decisions regarding the accused, the complete and utter failure of correctional officials to properly balance the accused’s charter rights with the statutory objectives can only be described as profoundly unreasonable, unacceptable and intolerable.

                        …

The treatment of the accused was, in my opinion, outrageous, abhorrent, and inhumane. There would be ongoing prejudice to the accused if forced to proceed to trial.

RECOMMENDATIONS MADE TO THE CORRECTIONAL SERVICES MINISTER

On February 21, 2019, Renu Mandhane (“Mandhane”), chief commissioner of the Ontario Human Rights Commission, wrote an open letter to the Honourable Sylvia Jones, the Minister of Community Safety and Correctional Services, calling for an end to segregation in Ontario.

Mandhane emphasized that prisoners in Ontario continue to be held in segregation for extended periods of time, despite the fact that it is harmful to their mental and physical health, and undermines institutional safety, rehabilitation and reintegration.

The data from May 2018 reveals that there were nearly 4,000 segregation placements over a two-month period, with 657 of those exceeding 15 days.

Mandhane wrote:

The numbers are large and it can be hard to remember that each number represents a person. Adam Capay’s treatment is a reminder of the lived reality behind the numbers and the long-term negative consequences that segregation has on prisoners, correctional officers, victims of crime, the community and the administration of justice.

Mandhane recommends that the government immediately launch an action plan, including limiting segregation to fifteen-days, judicial reviews of isolation decisions, and bans on the segregation of pregnant, suicidal, mentally ill and physically disabled inmates.

The previous Liberal government passed a bill incorporating many of Mandhane’s recommendations prior to last year’s election, however, this bill has not yet been proclaimed by the Lieutenant-Governor and the new Progressive Conservative government.

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

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

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.

Major Changes Proposed to Unclog Canada’s Criminal Courts

Written on Behalf of Affleck & Barrison LLP

Last week, the Liberal government proposed a new bill, Bill C-75, to modernize Canada’s criminal justice system and speed up court proceedings by amending the Criminal Code, Youth Criminal Justice Act and other laws. The changes include eliminating preliminary inquiries (except in cases of crimes that carry a life sentence), ending peremptory challenges in jury selection, addressing intimate partner violence, creating a higher threshold for bail and increasing sentences for repeat offenders.

Federal Justice Minister Jody Wilson-Raybould said the new bill aims “to make our criminal justice system more effective and efficient while respecting the Canadian Charter of Rights and Freedoms. More importantly, it will make a significant contribution to a necessary culture shift in the way our criminal justice system operates.”

Here are some of the highlights from Bill C-75:

PRELIMINARY INQUIRIES

One of the most controversial features of Bill C-75 is the proposal to eliminate preliminary inquiries in the majority of criminal proceedings.

A preliminary inquiry is an optional hearing requested by either the accused or the Crown prosecutor. It is available where an adult is charged with an indictable offence and elects to be tried by the Superior Court. Preliminary inquiries determine if there is enough evidence to send the accused to trial. It is a process by which the Crown and the accused test the evidence to be used at trial.

Under the proposed legislation, only an adult accused of a crime punishable by life imprisonment would be able to request a preliminary inquiry. The preliminary inquiry judge would also be able to limit the issues to be considered and the witnesses.

The government justifies this proposal claiming that it will reduce the number of preliminary inquiries, thus freeing up court time and reducing the burden on some witnesses and victims. Specifically, this would protect sexual assault victims from having to testify twice – once at the preliminary inquiry stage and once at the trial.

This proposal will eliminate the number of preliminary inquiries by 87%. There are currently more than 9,000 preliminary inquiries held each year.

Many criminal defence lawyers oppose this proposal. They take the position that the preliminary inquiry process can eliminate cases that do not have enough evidence to proceed to trial. Furthermore, preliminary inquiries can save a lot of time down the road by narrowing issues, shortening trials and sometimes even eliminating the need for trials.

INTIMATE PARTNER VIOLENCE

Under the proposed legislation, the more inclusive “intimate partner” wording would replace “spouse” and “common-law partner” and the definition would be broadened to include past partners.

Bill C-75 also introduces a reverse onus imposed at the bail hearing of an accused charged with an offence involving intimate partner violence and repeat abusers (rather than placing the onus on the Crown to make a case for keeping the accused incarcerated).

The new legislation would make strangulation an elevated form of assault (in conjunction with assault with a weapon and assault causing bodily harm) and allows a higher maximum penalty in cases involving repeat domestic abusers.

BAIL

Bill C-75 proposes to update and modernize bail practices by allowing police and judges more flexibility to deal with criminal charges.   Police would be given the authority to impose appropriate conditions on accused individuals without having to seek court approval.

JURY SELECTION

The impetus to rework the jury selection process in Bill C-75 comes in response to the public’s reaction to the acquittal of Gerald Stanley, which we have previously blogged about. In this case, an all-white jury found Gerald Stanley not guilty in the shooting death of Colten Boushie, a young Indigenous man.

The government proposes to improve the jury selection process and seeks to encourage diversity by abolishing peremptory challenges. Peremptory challenges allow defence counsel or Crown prosecutors to exclude a potential juror without giving a reason. The government maintains that ending peremptory challenges will prevent counsel from excluding minority candidates from juries. The proposed legislation will allow judges to decide whether to exclude jurors that have been challenged by either the prosecution or defence.

Bill C-75 still needs to be debated and approved before becoming law.  We will continue to provide updates regarding the status of this Bill as it becomes available.

In the meantime, if you have questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7.

Appeal Court Upholds Parents’ Conviction in Son’s Meningitis Death

Written on Behalf of Affleck & Barrison LLP

A panel of Appeal Court judges in Alberta dismissed the appeal of a couple who were found guilty of failing to provide the necessaries of life to their 19 month old son, who died of meningitis in 2012.

WHAT HAPPENED?

In 2016, David and Collet Stephan were convicted by a jury for failing to provide the necessaries of life in their son Ezekiel’s 2012 death. They had treated their son with natural remedies rather than taking him to a doctor when he had become ill.

A panel of Appeal Court judges in Alberta dismissed the appeal. Justice Bruce McDonald, writing for the majority, wrote,

This evidence supports the conclusion that they actively failed to do what a reasonably prudent and ordinary parent would do.

During the trial, jurors heard evidence that the Stephans used natural remedies and homemade smoothies containing hot pepper, ginger root, horseradish and onion rather than seek medical care. Ezekiel became too stiff to sit in his car seat and had to lie on a mattress when his father drove him from his home to a naturopathic clinic to pick up additional herbal supplements.

The Stephans did not call for medical assistance until their son stopped breathing. He was then rushed to a local hospital, but died after being transported by air ambulance to a Children’s Hospital in Calgary.

THE TRIAL AND APPEAL

According to the Stephans’ lawyers, the trial was a “battle of experts”. The Stephans argued that the convictions should be overturned because the trial judge erred in allowing too many Crown experts to testify, the medical jargon confused jurors, and the defence expert’s testimony was restricted. The majority of the Appeal Court dismissed all grounds of appeal.

The Stephans’ lawyers also argued that their clients’ Charter rights had been violated because of the unreasonable delay between the time they were charged to the date they were convicted. This aspect of the appeal was also dismissed with the Court finding the delay was not unreasonable.

DISSENTING OPINION ON APPEAL

Justice Brian O’Ferrall wrote a dissenting opinion in favour of a new trial. He felt that the trial judge’s charge to the jury was confusing and misleading. Justice O’Ferrall did, however, agree with the majority of the Court in finding that the Stephans’ right to be tried within a reasonable time had not been infringed.

SENTENCING

David Stephan was sentenced to four months in jail and his wife, Collet, was sentenced to three months of house arrest. They were both ordered to complete 240 hours of community service. The trial Judge also ordered that the Stephans’ three other children see a medical doctor at least once a year.

WHAT COMES NEXT?

Given that one of the three judges on the appeal panel dissented, the Stephans have an automatic right to have the Supreme Court of Canada hear arguments in their case. The Supreme Court has set a tentative date to hear arguments on May 15, 2018 for the couple.

The Crown prosecutors have filed their own appeal where they will argue that the couple should face stiffer sentences before another panel of Court of Appeal judges. A date for these arguments has not yet been set.

NECESSARIES OF LIFE

The Criminal Code of Canada requires that every parent, foster parent, or guardian is required to provide necessaries of life for a child under the age of 16 years of age.

A parent is responsible for the care, supervision, maintenance and support of his/her children. At a minimum, this obligation entails the provision of food and shelter. The Courts have also found that the failure to seek medical attention can be categorized as a “failure to provide the necessaries of life”.

The prosecution, in a case such as the Stephans, is required to prove that:

  1. The accused was under a legal duty to provide the necessaries of life to a child under the age of 16 years;
  2. The accused failed to provide the necessaries of life to a child under the age of 16 years;
  3. This failure endangered the child’s life or was likely to cause the health of that child to be endangered permanently; and,
  4. The conduct of the accused represented a marked departure from the conduct of a reasonable parent, foster parent, or guardian in the same circumstances.

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

In the meantime, if you are facing charges or have questions regarding your legal rights, 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.

 

Is Your Home Safe this Holiday Season?

Written on Behalf of Affleck & Barrison LLP

The holiday season is upon us and this means lots of Canadians will be travelling away from home. During the holidays, the potential for thefts and robberies increase. Each of us can reduce the risk to our homes and property from being victimized by eliminating the opportunity.

While you are away on vacation, its important to make your home appear inhabited. Here are a few suggestions to keep your home safer:

  • Reinforce your door locks;
  • Trim your trees;
  • Light up the night;
  • Install an alarm system;
  • Use timers to maintain normal lighting patterns;
  • Keep your travel plans off of social media;
  • Stop all mail delivery;
  • Arrange for a neighbour to cut the grass or shovel snow;
  • Cancel all deliveries during the time you will be away;
  • Maintain normal lighting patterns by using electronic timers;
  • Leave a radio on, with a timer if necessary, to simulate normal use;
  • Ask a neighbour to park in your driveway;
  • Arrange for neighbours to pick up flyers; and,
  • Lock your garage door.

Theft is a very broad category of legal offences found in the Criminal Code of Canada (“CC”). There are a number of other offences in the CC related to theft, such as:

  • Motor vehicle theft;
  • Breaking and entering;
  • Home invasion;
  • Theft while breaking and entering;
  • Unlawfully in a dwelling house; and,
  • Robbery.

WHAT IS THEFT?

The charge of theft has three components that the Crown (i.e. prosecutors) must prove:

  1. The accused took or converted the property;
  2. The accused did so without permission and without good faith belief that he/she had permission; and,
  3. The accused intended to do so.

The intent component is an important one so as to avoid charging individuals who accidentally or mistakenly take or use property that does not belong to them.

Punishment for theft depends upon the value of the stolen goods in question. A conviction for theft under $5,000 carries a maximum penalty of up to 2 years imprisonment. A conviction for theft over $5,000 carries a maximum penalty of up to 10 years imprisonment.

WHAT IS BREAKING AND ENTERING?

Breaking and entering charges will be laid in cases where an individual enters or trespasses onto private property with the intention of committing a criminal offence. A break and enter offence usually occurs when someone is attempting to steal property, but the charge can be laid without any theft or damage to property. In fact, walking through an open door has been found to constitute “breaking and entering”.

The most serious form of break and enter is a “home invasion”, which occurs when an accused breaks and enters into a property knowing that there are people present and is prepared to use force or violence against them. The fact that the accused knew that the property was occupied is an aggravating factor that can be used during sentencing and will attract higher penalties.

Breaking and entering is considered a serious offence and punishment can be severe, especially if it is committed in relation to a dwelling house. If the offence was committed in relation to a dwelling house the maximum penalty is imprisonment for life. If the offence was committed in relation to any place other than a dwelling house the maximum penalty is imprisonment not exceeding ten years for an indictable offence or an offence punishable on summary conviction (maximum fine of $5,000 or six months in jail or both).

WHAT IS ROBBERY?

The offence of robbery shares some of the same characteristics as theft, but includes the component of violence. Thus, charges of robbery can arise if during the course of a theft the individual uses violence, threats of violence, a weapon, or imitation weapon to obtain property.

Robbery is a serious charge and is always an indictable offence (i.e. the most serious offence), which means it involves the right of the accused to have a preliminary inquiry and a trial by judge and jury, if the accused wishes to.

There are a number of factors that could affect the severity of the penalties imposed upon a robbery conviction, including the nature and use of any weapons; the degree of violence used; the injuries suffered by the victim; the vulnerability of the victim; the value of the goods stolen; and, the offender’s prior criminal record. An individual accused of robbery could potentially face a maximum penalty of life imprisonment (in the case where a firearm is used).

If you have been charged with an offence against property, as described above, it is imperative to retain a criminal lawyer immediately. Please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

Ontario Will No Longer Prosecute HIV Non-Disclosure Cases

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about criminal charges being laid against individuals living with HIV who fail to disclose their health status prior to engaging in sexual relations. Given the advancements in science and medicine in terms of treatment of the disease, we are beginning to see that changes are necessary to the criminal justice system.

ONTARIO GOVERNMENT’S ANNOUNCEMENT

On World AIDS Day (December 1, 2017), Ontario Attorney General, Yasir Naqvi, and Health Minister, Eric Hoskins, announced that Crown attorneys in Ontario will no longer prosecute cases of HIV-positive individuals who do not disclose their health status to their sexual partner if they have a suppressed viral load for six months.

World AIDS Day is recognized as a time to consider the impact that HIV/AIDS has had on Canadians and thank those dedicated to preventing the disease and caring for and treating those that the disease has impacted.

Over the years there have been remarkable medical advances and HIV treatment has slowed disease progression so that many HIV-positive individuals can now consider the disease as a chronic, manageable condition. The criminal justice system must now reflect the current reality of this disease.

HIV TRANSMISSION RISKS

Studies have found that sexual activity, whether using a condom or not, with an HIV- positive individual who is receiving prescribed treatment and has maintained a suppressed viral load poses a negligible risk of transmission.

Viral load refers to the amount of HIV virus in a person’s blood. Viral suppression is defined as suppressing or reducing the function and replication of a virus. Reaching viral suppression means that the amount of HIV in an individual is very low. Viral suppression can help HIV positive individuals live healthier and longer lives and can reduce the likelihood of transmitting the virus to another person.

CRIMINAL JUSTICE SYSTEM RESPONSES TO HIV NON-DISCLOSURE CASES

The Supreme Court of Canada in the 2012 R. v. Mabior decision established that HIV-positive individuals have a duty to disclose their HIV status prior to sexual activity that poses a “realistic possibility of transmission”. The Court convicted Mabior on three counts because, although he had a low viral load when he had intercourse with three sexual partners, he did not use a condom. The Court found that Mabior met the test for “a realistic possibility of transmission of HIV” and therefore was convicted. At the time, the law was clear that HIV-positive individuals must disclose their status before engaging in sexual activity that poses a realistic possibility of transmission of HIV in order to avoid criminal liability.

However, the Supreme Court of Canada in the R. v. Mabior decision also recognized that scientific and medical advances regarding HIV/AIDS would progress over time and allowed for the law to evolve in the future as well.

Having reviewed all of the updated medical and scientific evidence, the Ontario government has decided that the criminal law should not apply to individuals living with HIV who have engaged in sexual activity without disclosing their status as long as they have maintained a suppressed viral load as the “realistic possibility of transmission test” is not met in these circumstances. An individual living with HIV who complies with their treatment is viewed as an individual who is acting responsibly.

In general, it is recommended by Canada’s Department of Justice that because the realistic possibility of transmission test is likely not met, the criminal law should not apply to:

  • Individuals living with HIV who are in treatment;
  • Individuals living with HIV who are not in treatment, but use condoms;
  • Individuals living with HIV who only engage in oral sex (unless other risk factors are present and the individual living with HIV is aware of those risks).

We will continue to follow any developments in the provincial and federal review of criminalization of HIV non-disclosure and will blog about updates as they become available.

In the meantime, if you have any questions about your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer 24-hour phone service, 7 days a week for your convenience.

Cyberbullying Laws in Canada

Written on Behalf of Affleck & Barrison LLP

In this “digital age” and with the prevailing use of social media by an increasing number of Canadians of all ages, challenges exist for legislators and law enforcement.

According to a Statistics Canada study in 2014, the first of its kind in Canada, nearly one in five internet users aged 15 to 29 reported having been cyberbullied or cyberstalked. In 2013, the Federal Government took a step towards addressing cyberbullying in Canada following the suicides of Rehtaeh Parsons and Amanda Todd (where intimate images of them had been shared without their consent), when it introduced Bill C-13, Protecting Canadians from Online Crime Act. This has significant implications, including jail time, for individuals charged under new provisions that have been added to the Criminal Code of Canada (“CC”) in the wake of Bill C-13.

WHAT IS CYBERBULLYING?

Cyberbullying is a form of bullying involving the use of communication technologies (instant messaging, social media, blogs, texting, or other internet sites) to repetitively intimidate, threaten, embarrass, or torment others.

This type of harassment, unlike face-to-face bullying, can occur 24 hours a day and is persistent and offensive. Due to the anonymity, people can say hurtful and cruel things and it is often harder to identify and stop them.

Examples of cyberbullying include:

  • Sending mean or threatening emails or text/instant messages;
  • Posting embarrassing photos of someone online;
  • Creating a website to make fun of others; or,
  • Tricking someone into revealing personal or embarrassing information and sending it to others.

CYBERBULLYING FOUND IN THE CRIMINAL CODE OF CANADA

The CC does not contain a specific provision for cyberbullying. However, when bullying behaviour crosses the line and becomes criminal conduct, the CC contains several provisions that can speak to these actions, including:

  • Criminal harassment (section 264);
  • Uttering threats (section 264.1);
  • Intimidation (section 423(1);
  • Mischief in relation to data (section 430(1.1);
  • Unauthorized use of computer (section 342.1);
  • Identity fraud (section 403);
  • Extortion (section 346);
  • False messages, indecent or harassing telephone calls (section 372);
  • Counselling suicide (section 241);
  • Child pornography offences (section 163.1)
  • Incitement of hatred (section 319);
  • Publication of an intimate image without consent (section 162.1); and,
  • Defamatory libel (sections 298-301).

PUBLICATION OF AN INTIMATE IMAGE WITHOUT CONSENT

As of March 2015, a new offence of sharing intimate images of a person without their consent was codified in the CC. This was legislated, in part, due to the increase in “revenge porn” and similar of sharing of intimate images online.

An intimate image is defined in section 162.1(2) of the CC as an image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region, or breast. The image has to be one where the person believed that the photograph was private and did not consent to having it viewed by others.

CONSEQUENCES FOR PEOPLE ACCUSED OF CYBERBULLYING

The CC specifically sets out penalties for those convicted of publishing or transmitting an intimate image of a person without consent in section 162.1(1).

If convicted of distributing an intimate image without consent the legal consequences include:

  • Imprisonment for up to five years;
  • Seizure of their computer, cell phone, or other device used to share the image;
  • An order for the removal of intimate images from the internet if the images were posted without the consent of the person or persons in the image; and,
  • An order to reimburse the victim for costs incurred in removing the intimate image from the internet or elsewhere.

RECENT EXAMPLES OF CYBERBULLYING

As this is a relatively new offence, there are only a few reported cases that deal with this conduct.

In the Ontario case of R. v. A.C., the victim had taken nude photos of herself and sent them to the offender during their relationship who in turn shared the images because he wanted revenge. The sentencing judge in this case imposed a conditional discharge (no conviction is registered as long as conditions are met) with three years probation given that the offender expressed remorse and appreciated the impact that the offence had on the victim.  One of the terms of the probation was that the offender was not to possess any intimate images as defined by section 162.1 of the CC of any person who is known to him personally.

In the British Columbia case of R. v. P.S.D., the offender took two photos of the victim partially clothed, without her consent. The photos were sent to the offender’s two friends with the intention to cause the victim emotional harm. The photographs were found to be blurry and it was difficult to recognize the victim. The accused spent sixty days in pre-sentence custody. The sentencing judge found that there was a “relatively low level of harm” and imposed a two-year term of probation.

In the recent case of R. v. A.C., the accused pleaded guilty to the charge of sharing intimate images without consent. The sentencing judge found that the offender was not remorseful and did not appreciate how seriously the crime had affected the victim. Furthermore, the offender shared the images with the world, posting on more than one website. He also included the victim’s name, age, ethnicity, and place of birth. In this case, the accused was sentenced to five months imprisonment with a probation term of twelve months. He was also ordered to perform sixty hours of community service.

If you are facing criminal charges or have questions regarding your legal rights, please contact the criminal lawyers at Affleck & Barrison online or at 905-404-1947. We offer 24-hour phone service, 7 days a week for your convenience.