first degree murder

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.

McArthur Pleads Guilty and Awaits His Sentence

Written on Behalf of Affleck & Barrison LLP

Last week, Bruce McArthur (“McArthur”) 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.

At his sentencing hearing this week, an agreed statement of facts was presented to the court. In the statement, McArthur admitted that he intended to kill all eight men and afterward dismembered the men to avoid getting caught. He admitted that six were sexual in nature and that he kept some of his victims’ personal items as “souvenirs” and “staged” some of his victims.

AGREED STATEMENT OF FACTS

The following are some of the facts included in the Agreed Statement of Facts that were presented before Justice John McMahon in the Ontario Superior Court:

  • McArthur intended and caused each of the eight deaths;
  • Each of the murders was planned and deliberate and the murders were committed in the course of sexually assaulting the victims or committed while the victims were unlawfully confined;
  • The investigation found a duffle bag in McArthur’s bedroom containing duct tape, a surgical glove, rope, zip ties, a black bungee cord, and syringes;
  • To avoid detection, McArthur dismembered his victims’ bodies; and
  • McArthur disposed of the body parts at 53 Mallory Crescent in Toronto, where he worked as a gardener, placing some of the body parts in planters or in the ravine adjacent to the property.

ACCEPTANCE OF A GUILTY PLEA

According to the Criminal Code, a conviction or finding of guilt is not entered until the court accepts the plea.

Under section 606(1.1) of the Criminal Code, a plea of guilty can only be accepted if the Court is satisfied of the following:

  • That the accused is making the plea voluntarily; and
  • That the accused understands that the plea is an admission of the elements of the offence; and
  • That the accused understands the nature and consequences of the plea; and
  • That the accused understands that the court is not bound by any agreement made between the accused and the Crown prosecutor.

Therefore, for a guilty plea to be valid it must possess all of the following features:

  • Voluntary;
  • Unequivocal;
  • Information of the nature of the allegations; and
  • Informed of the consequences of the plea.

Justice McMahon began McArthur’s court proceedings last week by confirming that McArthur understood what is meant to plead guilty and warned him that he could not plead guilty to things he did not do just to get his case over with. McArthur replied “Yes”, when asked if he understood that he was giving up his right to a trial.

McArthur confirmed that he was not pressured by family, friends, lawyers or police officers to plead guilty.

Justice McMahon explained that McArthur would be sentenced to life imprisonment. He specifically asked, “So, you understand you’ll have to serve at least until you’re 91 before you could be eligible to apply for parole?” McArthur responded, “Yes, your honour.”

Once a guilty plea has been entered, there is no burden on the Crown prosecutor to prove the charge beyond a reasonable doubt. Furthermore, a guilty plea also terminates any procedural rights, rights of appeal or the ability to challenge the ruling of guilt.

PROSECUTORS SEEK CONSECUTIVE LIFE SENTENCES

Crown prosecutors have asked the Superior Court of Justice to sentence McArthur to two consecutive life sentences for the eight murders that McArthur committed. This means that McArthur will be behind bars until he is 116 years old, without a chance for parole.

Assistant Crown attorney Craig Harper (“Harper”) argued that McArthur’s crimes were heinous, he preyed on the vulnerable and “[h]e spread fear in a community that, regardless of its multiple strengths, struggles with a tenuous sense of safety.”

In support of his request for two consecutive life sentences, Harper also put before the court that permitting McArthur a parole hearing in 25 years would mean that the families of his victims may have to face him again in court.

McArthur’s lawyer, on the other hand, requested that the court sentence his client to serve all eight sentences concurrently. This would mean that McArthur would serve all the sentences at the same time.

It is the position of McArthur’s defence lawyer that due to his age it is not necessary to extend his parole eligibility beyond the minimum 25 years, which comes with a life sentence. This means he would not be able to apply for parole until he was at least 91 years old. He argues that a longer sentence will be “unduly harsh”.

Justice McMahon will soon make a decision on McArthur’s sentence and we will provide updates in this blog as the information becomes available.

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

Millard Files Appeal of Conviction in Father’s Death

Written on Behalf of Affleck & Barrison LLP

Dellen Millard is appealing his first-degree murder conviction and sentence for the death of his father, Wayne Millard.

WHAT HAPPENED?

In September, 2018, Millard was found guilty of murdering his father. In a judge alone court case, Millard was convicted of shooting his 71-year-old father, Wayne Millard, through his left eye as he slept on November 29, 2012.

Millard’s father’s death was originally ruled a suicide. Following Millard’s convictions in the deaths of Tim Bosma (“Bosma”) and Laura Babcock (“Babcock”), police began to re-examine Wayne Millard’s apparent suicide. Crown Prosecutors alleged that Millard killed his father in order to protect his inheritance.

During the investigation, Millard revealed to the police that his father was depressed and an alcoholic. Millard told police that he found his father dead in bed around 6 p.m. on November 29, 2012. He claimed that he last saw his father alive around noon the day before and spent the night at his friend Mark Smich’s house (his accomplice in the murders of Bosma and Babcock).

Phone records revealed that Millard travelled back to his father’s house in the early hours of the morning on November 29, 2012. The police came to learn that the gun found next to Wayne Millard was a gun purchased illegally by his son and had the younger Millard’s DNA on it.

Justice Maureen Forestall found that Millard had set up a false alibi by leaving his car, a cell phone, and his credit card at Smich’s house and he took a taxi to his father’s house.

MILLARD’S SENTENCE IN HIS FATHER’S DEATH

Following his conviction, Justice Forestall sentenced Millard to his third consecutive life sentence. Thus, Millard will serve 75 years behind bars before he is eligible to apply for parole. This is the longest term of parole ineligibility in the Canadian criminal justice system and the first time that this sentence has been handed down in Ontario.

At the time of sentencing, Justice Forestall stated:

Dellen Millard has repeatedly committed the most serious offence known to our law. He has done so with considerable planning and premeditation. In the murder of his father, he took advantage of the vulnerability of his father and betrayed his father’s trust in him.

In response to Millard’s lawyer argument that the consecutive sentence without parole eligibility is an unduly long and harsh judgement, Justice Forestall stated:

It is necessary to impose a further penalty in order to express society’s condemnation of each of the murders that he has committed and to acknowledge the harm done to each of the victims. It is not unduly long and harsh.

MILLARD’S APPEALS

Two days following Millard’s sentencing, his lawyer filed a notice of appeal with the court. According to Millard’s counsel, it will be argued that the verdict is unreasonable and the sentence is unconstitutional.

Millard will serve 75 years in prison before he will be eligible to apply for parole at 102 years of age.

Millard’s defence attorney argues that the consecutive sentence without parole eligibility is unduly long and harsh.

Millard is also appealing his first-degree murder convictions and sentences in the deaths of Tim Bosma and Laura Babcock.

Millard was found guilty of first-degree murder in the death of Tim Bosma by a jury in June 2016 after a 16-week trial. Bosma’s burnt remains were found in an incinerator on Millard’s farm. Millard is appealing his conviction. He filed a handwritten notice of appeal with 13 itemized arguments on appeal including the length of the proceedings, that the judge failed to sever his trial from that of his co-accused, that the judge failed to grant his request to move the trial out of Hamilton, that the judge allowed post-offence conduct evidence regarding the incineration of the deceased, that the judge allowed evidence which was seized contrary to his Charter rights protecting him against unreasonable search and seizure, and that the judge should have excluded evidence seized from electronic devices, amongst others.

Millard was also found guilty, by a jury of his peers, of killing his former lover, Laura Babcock, and burning her body in an animal incinerator. He filed an appeal following his sentencing arguing that his first-degree murder conviction was unreasonable and the life sentence was too harsh. He specially claims that the judge forced him to represent himself at the murder trial, despite the fact that Justice John McMahon repeatedly advised him to obtain a lawyer and his trial was adjourned twice to allow Millard to retain counsel.

We will continue to follow any developments in these cases as they make their way through the judicial system and will provide updates in this blog.

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

Inmate Escapes from Healing Lodge in Saskatchewan

Written on Behalf of Affleck & Barrison LLP

Joely Lambourn (“Lambourn”) escaped last Friday afternoon from the Okimaw Ohci Healing Lodge near Maple Creek, Saskatchewan. Staff at the lodge discovered Lambourn missing during a routine count at 12:25 p.m.. A warrant is now out for her arrest.

Lambourn was serving a 2 ½ year sentence for dangerous driving causing death after being convicted of the death of a cyclist in May 2015 near Okotoks, Alberta.

At the time of the accident, Lambourn was a suspended driver and had a history of traffic violations for speeding and careless driving. The Judge found that Labourn was distracted while driving, likely by her cell phone, when she veered off the road and hit the cyclist, Deric Kryvenchuk.

WHAT ARE HEALING LODGES?

In 1992, the federal government passed legislation to allow Aboriginal communities to provide correctional services. This legislation was intended to improve the over-representation of Indigenous offenders in Canada’s correctional system and to address concerns that mainstream prisons do not work for Aboriginal offenders.

In 2017, more than 25% of men and 36% of women incarcerated in Canada were Indigenous. In all of Canada, Indigenous people make up 5% of the population.

Aboriginal Healing Lodges are correctional institutions where Aboriginal values, traditions, and beliefs are used to design services and programs for offenders. A holistic and spiritual approach is taken with guidance and support from Elders and Aboriginal Communities.

Healing lodges are minimum/medium–security facilities for Aboriginal women offenders. Healing lodges for Aboriginal men are minimum-security facilities. Non-Aboriginal offenders may also live at a healing lodge, but must agree to follow Aboriginal programming and spirituality.

Lodge residents have “healing plans”, similar to correctional plans. These specify areas the offender has to work on, which may include such issues as substance abuse, employment, education and family.

There are nine Correctional Service Canada (“CSC”) healing lodges across Canada. Four are managed and operated by CSC and five are managed by community partner organizations.

Okimaw Ohci Healing Lodge for women offenders in Maple Creek, Saskatchewan is managed by CSC. This was the first healing lodge to open in Canada and it has 30 beds. This facility contains both single and family residential units. Offenders may have children stay with them. Each unit contains a bedroom, bathroom, kitchenette and eating area, and a living room.

Programs in this healing lodge help offenders build strength to make changes in their lives and address vocational training, family, and children. The offenders learn how to live independently by cooking, doing laundry, cleaning, and completing outdoor maintenance chores.

Before a decision is made to move an offender to a healing lodge, an offender’s risk to public safety must be thoroughly assessed. The inmate must require a limited amount of supervision and control within the institution allowing the offender to take on responsibilities as he/she is preparing to reintegrate into the community.

TERRI-LYNNE MCCLINTIC’S STAY AT A HEALING LODGE

Okimaw Ohci Healing Lodge is the same facility that Terri-Lynne McClintic (“McClintic”) was transferred to earlier this year (the date is unknown). McClintic was only eight years into serving a life sentence for first-degree murder in the death of an eight-year-old girl, Tori Stafford (“Stafford”).

McClintic confessed to luring Stafford into the car of her boyfriend on April 8, 2009. Stafford was then sexually assaulted, murdered, and buried in a farmer’s field.

McClintic was transferred from the Grand Valley Institution for Women near Kitchener, Ontario to the healing lodge located in southern Saskatchewan.

McClintic’s transfer to the healing lodge generated passionate debate within the House of Commons and public outcry and protests. This quickly prompted changes to how the Correctional Service of Canada would decide on transferring inmates.

McClintic has been transferred back to a women’s prison in Edmonton. She is not eligible for parole until 2031.

TOUGHER RULES FOR PRISON TRANSFERS FOLLOWING MCCLINTIC TURMOIL

Earlier this month, Public Safety Minister Ralph Goodale ordered CSC to improve its policies related to the transfer of medium-security women offenders to facilities that do not have a directly controlled perimeter. These changes were effective immediately for existing and future cases.

Transfers will be required to be authorized by CSC’s deputy commissioner for women, under the new policy.

Factors considered in evaluating the suitability of transfers to facilities without a controlled perimeter, include:

  • The length of an offenders’ sentence.
  • The time remaining before an offender is eligible for an Unescorted Temporary Absence.
  • A requirement that long-term offenders be in the “preparation for release” phase of their correctional plan.
  • The institutional behaviour of the offender.

We will continue to follow any developments in the circumstances surrounding the escape of Lambourn and the transfer of McClintic as they become available and provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about any 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.

Woman Found Not Criminally Responsible in Fatal PATH Stabbing

Written on Behalf of Affleck & Barrison LLP

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

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

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

WHAT HAPPENED?

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

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

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

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

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

WHAT DOES IT MEAN TO BE NOT CRIMINALLY RESPONSIBLE?

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

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

WHAT HAPPENS NEXT FOR BISESAR?

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

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

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

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

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

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

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

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

Jury Finds Lovers Guilty of First-Degree Murder

Written on Behalf of Affleck & Barrison LLP

After five days of deliberations, a Toronto jury have found Michael Ivezic (“Ivezic”) and Demitry Papasotiriou-Lanteigne (“Papasotiriou-Lanteigne”) guilty of first-degree murder in the death of Allan Lanteigne (“Lanteigne”).

The Crown prosecutor alleged that Ivezic and Papasotiriou-Lanteigne conspired to kill the latter’s spouse in the foyer of his Ossington Avenue home on March 2, 2011. It was alleged that the two accused were having an affair and plotted the crime to access the victim’s $2 million life insurance policy and depart for Greece to start a life together.

The two men will return to court on June 7, 2018 when victim impact statements will be read from Lanteigne’s family. They will also receive their sentence at that time. A first-degree murder conviction carries with it a mandatory sentence of life in prison with no chance of parole for 25 years.

WHAT HAPPENED?

Lanteigne was found dead in his home on March 3, 2011. There were no signs of forced entry and police did not find the murder weapon. An autopsy revealed that Lanteigne was beaten to death.

Lanteigne and Papsotiriou-Lanteigne were married on November 27, 2004. Their relationship “fizzled out” in 2008, although they continued to live together. At some point in 2009, Ivezic and Papasotiriou-Lanteigne began having an affair. Ivezic was even given a key to the house by Papasotiriou-Lanteigne.

By the spring of 2010, Papasotiriou-Lanteigne moved to Greece where his father lived. He continued to pay for airline tickets for Ivezic to visit him. These expenses were paid for by Lanteigne who was working two jobs at the time in Toronto. There were various emails read to the jury written by Lanteigne that indicated that he was tired of giving Papasotiriou-Lanteigne money. Lanteigne threatened to cut off his cheating spouse.

Papasotiriou-Lanteigne was arrested on a visit to Toronto in November, 2012, when he returned to Canada for court proceedings related to his claim for Lanteigne’s life insurance payout.

Ivezic was arrested by authorities in Greece and extradicted to Canada in June, 2013. Ivezic had left his wife and children and was living in Greece with Papsotiriou-Lanteigne as of May 2011.

Both men denied any involvement in the death of Lanteigne.

Crown prosecutors alleged that Papasotirious-Lanteigne “lured” Lanteigne to their home on the evening of his death. An email dated March 2, 2011 was read to the jury from Papasotiriou-Lanteigne requesting that Lanteigne call him in Greece as soon as he got home.

The key piece of evidence was DNA found under the fingernails of the deceased’s right hand belonging to Ivezic. The prosecution argued that this evidence was left as the victim fought for his life. Ivezic argued that his DNA was planted or ended up there as part of an “innocent transfer”. Ivezic suggested that maybe his DNA was transferred to Lanteigne when he and the victim had touched the same surface or when they shared lunch together days before the murder. However, there was no evidence at trial to suggest that Ivezic was friends with the deceased or that they had lunch together.

This case has lasted for many years with both accused challenging every aspect of the case, including allegations that the Crown prosecutors hid disclosure, tampered with police records and evidence, lied to the defence and the court and colluded with police. Furthermore, the accused had more than a dozen defence lawyers and court-appointed lawyers appear on their behalf since they were charged. There was even a period of time during the trial that Ivezic represented himself before the jury.

Following the victim’s death, Papasotiriou filed claims against two firms that insured his spouse as he was seeking $2 million. Papasotiriou is named as the sole beneficiary on the victim’s life insurance policy.

RARE REINSTATEMENT OF FIRST-DEGREE MURDER CHARGE

In September, 2014 following a preliminary hearing, an Ontario Court judge discharged Papasotiriou-Lanteigne, a Toronto lawyer, on the basis that there was not enough evidence to convict him.

A preliminary hearing is held in cases involving serious crimes where the prosecution must show a judge that there is a bare minimum of evidence to justify a full trial. This is often a chance for an accused’s lawyer to see what case the prosecution has against their client.

In October, 2014, the Ministry of the Attorney General signed a preferred indictment that reinstated the first-degree murder charge against Papsotiriou-Lanteigne.

This is a unique occurrence permitted by section 577 of the Criminal Code. The purpose of this section was described by Southin J.A. of the British Columbia Court of Appeal in the case of R. v. Charlie as follows:

Such a power is arecognition of the ultimate constitutional responsibility of Attorneys General to ensure that those who ought to be brought to trial are brought to trial.

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

In the meantime, if you have been charged with a criminal offence or have questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience. We are not afraid to fight for your rights and protect your interests.

Supreme Court Upholds First Degree Murder Convictions for Death of 6-Year-Old

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada (“SCC”) has upheld the first-degree murder convictions of Spencer Jordan (“Jordan”) and Marie Magoon (“Magoon”), who were charged in the death of six-year-old Meika Jordan (“Meika”).

Defence lawyers requested that the SCC reverse a decision by the Alberta Court of Appeal, which upgraded Jordan and Magoon’s second-degree murder convictions after ruling that Meika had been confined prior to her death (a condition that automatically increases the severity of a murder offence).

Under the original second-degree murder convictions, Jordan and Magoon had been sentenced to life in prison without parole for a minimum of 17 years. The upgraded first-degree murder convictions carry an automatic life sentence with no chance of parole for 25 years.

WHAT HAPPENED?

On November 14, 2011, Meika died after spending the weekend at the home of her father, Jordan, and stepmother, Magoon. The six-year-old was tortured for days leading up to her death by being forced to run stairs, dragged up and down the stairs by her ankles, repeatedly hit and even burned. She suffered damage to her internal organs and a subdural hematoma and cerebral swelling caused by at least five blows to her head. No medical attention was sought until Meika was in complete cardiac and respiratory failure. Jordan and Magoon told police that Meika had fallen down the stairs, however, the medical evidence supported a pattern of frequent and intentional violence.

Jordan and Magoon were charged with first degree murder and convicted of second degree murder at trial in 2015. They appealed their convictions and the Crown prosecutors appealed the first degree murder acquittals. The Alberta Court of Appeal dismissed the accuseds’ appeals, but allowed the Crown appeals. The Appeal Court held that the accused unlawfully confined Meika rendering them liable for first degree murder under section 231(5) of the Criminal Code of Canada (“CC”).

The SCC refused to hear an appeal to have the convictions entirely quashed, but did hear arguments on the Alberta Court of Appeal’s decision to upgrade the charge from second-degree murder to first-degree murder.

The nine SCC justices took less than 10 minutes to come to the decision to dismiss all appeals in November, 2017. The SCC found that the Court of Appeal did not err in substituting verdicts of guilty of murder in the first degree. The written reasons for the ruling were released on April 13, 2018.

MURDER IN THE FIRST DEGREE

The crime of murder is deemed as the most vicious of crimes in Canadian society. This is reflected in the harshness of the sanctions and punishments for this crime.

In Canada, there are two divisions of murder and one of manslaughter. First degree murder is planned and deliberate (with a few exceptions), whereas second degree murder is defined as murder that is not first degree (not premeditated). Manslaughter is defined as a homicide committed without the intention to cause death.

First degree murder bears an automatic life sentence with no possibility of parole for 25 years. Once on parole, offenders remain on parole for the rest of their life and must report to a parole officer and are subject to conditions of their parole. If any of the conditions of parole are broken, they are sent directly back to prison without a hearing.

WHAT IS FIRST DEGREE MURDER UNDER SECTION 231(5) OF THE CRIMINAL CODE?

There are some homicides automatically deemed first degree murder, even if they were not intentional or planned. These include assassination of a police officer or prison employee on duty (section 231(4) of the CC) or murder committed in conjunction with one of the following offences (section 231 (5) of the CC):

  • hijacking;
  • sexual assault;
  • sexual assault with a weapon;
  • aggravated sexual assault;
  • kidnapping;
  • forcible confinement;
  • hostage taking;
  • terrorism;
  • intimidation;
  • criminal harassment; or
  • any offence committed on behalf of a criminal organization.

The section of the CC that was applied in Meika’s case was section 231(5)(e), which reads as follows:

(5)       Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

            (e) section 279 (kidnapping and forcible confinement);

The case of R. v. Pritchard explained Parliament’s intention to “treat murders committed in connection with crimes of domination as particularly blameworthy and deserving of more severe punishment”.

The applicable test to be applied in determining guilt of first degree murder under section 231(5)(e) of the CC was set out in R. v. Harbottle. The Crown must establish beyond a reasonable doubt that:

  1. the accused was guilty of the underlying crime of domination or of attempting to commit that crime;
  2. the accused was guilty of the murder of the victim;
  3. the accused participated in the murder in such a manner that he/she was a substantial cause of the death of the victim;
  4. there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and
  5. the crimes of domination and murder were part of the same transaction.

In Meika’s case, the SCC found that although there were no physical restraints used, Meika was physically restrained and restricted to remain in her bedroom or the basement. Furthermore, given the parent child relationship there is less of a requirement for physical restraints due to the unequal relationship that exists. “[D]isciplining a child by restricting his or her ability to move about freely (by physical or psychological means), contrary to the child’s wishes, which exceeds the outer bounds of punishment that a parent or guardian could lawfully administer, constitutes unlawful confinement.” Therefore, the SCC found that the Harbottle test was met.

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

Supreme Court of Canada Will Not Hear Appeal of Shafia Honour Killing Case

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada (SCC) recently denied Hamed Shafia’s leave to appeal. Shafia (along with his father and mother) was convicted of murdering his three sisters and his father’s first wife.

Shafia had asked the SCC to hear his appeal, arguing that new evidence that established that he had been a youth at the time of the murders should not have been dismissed by a lower court. The SCC denied Shafia’s request, but provided no reason for the denial.

First Degree Murder

In January 2012, Shafia and his parents were found guilty of four counts of first-degree murder and sentenced to life in prison. The bodies of Shafia’s three older sisters and his father’s first wife from what turned out to be a polygamous marriage were found at the bottom of a canal in Kingston, Ontario in 2009.

The convictions were the culmination of a trial that made headlines for months. After only 15 hours of deliberations, the jury accepted the prosecution’s theory that the sisters had been murdered in an honour killing because they had shamed their conservative Muslim family, and the first wife had been killed as she had not produced any children, and was therefore “no longer needed”.

The Court of Appeal

Shafia had previously appealed to the Ontario Court of Appeal, claiming that new evidence had surfaced that showed that he had been too young at the time of the murders to be tried as an adult, and should have been tried separately.

The Court of Appeal found no reason to permit the appeal to move forward on the basis of the new evidence, as the evidence was “not compelling”.

In the application for leave to appeal to the SCC, Shafia’s lawyers argued that the Court of Appeal had not correctly applied the well-known “Palmer test” for admitting fresh evidence. Under the test, fresh evidence can be accepted by an appeal court where is it in the “interests of justice to do so”, and where the evidence is relevant, credible, and could possible modify the outcome of a previous decision. The new evidence should have been accepted by the Ontario Court of Appeal because it raised the very real possibility that a young person had been tried and convicted by a court that had no jurisdiction as a result of his age.

The Significance of the Alleged Age Difference

Shafia’s claim is based on the argument that he was actually 17 years old when his family members were killed, and not 18 as originally thought. As such, he should have been protected by the Youth Criminal Justice Act (Act), which applies to children and “young persons” (i.e.- anyone under 18).

Under the Act, a young person convicted of first-degree murder cannot serve more than six years in prison. Where prosecutors convince a judge to sentence such as youth as an adult, their eligibility for parole begins after 10 years, rather than the 25 years that applies to adults.

If Shafia could successfully establish that he had actually been 17 at the time of the murders he would either have a shortened prison sentence, or would be eligible for parole in the next few years. However, his opportunity to do so has been denied by Canada’s highest court.

If you are a youth that has been charged with a crime, or are the parent of a young person that has been charged with a crime, or if believe you have a matter that belongs in the youth criminal justice system, the Oshawa criminal lawyers at Affleck & Barrison can help. Contact us online or at 905-404-1947 to schedule a free consultation with one of our Oshawa lawyers representing young offenders.

 

Woman Who Insisted on Self-Representation Found Guilty of Murdering Husband

Written on Behalf of Affleck & Barrison LLP

At the culmination of a very strange trial in which the accused insisted on representing herself, a jury recently found Xiu Jin Teng guilty of the first-degree murder of her husband.

The Trial

Teng had originally been charged with committing an indignity to a body, after she told her landlord (upon the landlord locating the husband’s dead body in the closet) that her husband had died of a heart attack. The charge was elevated to first degree murder when the investigation revealed that Teng, who worked for London Life, had purchased a $2 million life insurance policy on her husband and had named herself the beneficiary.  Prosecutors argued that this had been Teng’s motive for the crime, and that the husband’s body was discovered by the landlord before she was able to dispose of it using various items she purchased at a hardware store.

Accused Insisted on Self-Representation

The jury was never told why Teng did not have a defence lawyer, though presiding judge Justice MacDonnell did inform them that Teng’s frequent allegation that she was being denied a lawyer was not true.

In fact, Teng had fired her first lawyer after several months, and subsequently went through three additional lawyers before finally deciding on a lawyer she seemed OK with in 2013. At that time, her trial was scheduled for September 2015. Just prior to the start of the trial, the lawyer informed the court that he needed to be removed as counsel due to the breakdown of his lawyer-client relationship with Teng.

Teng refused to have another lawyer take over and for the trial to proceed that November.  The next available trial date was not until October 2016. Teng continued to refuse to hire a lawyer, despite the court urging her to obtain counsel from Legal Aid.

Accused’s Request for Stay due to Delay Denied

Before her trial began in late 2016, Teng attempted to have her charges stayed due to unreasonable delay, arguing that almost give years will have passed between her arrest in 2012 and the foreseeable end of her trial.

In support of her request for a stay, Teng cited the Supreme Court’s recent decision in R.v. Jordan (an important recent case which we’ve previously blogged about) which sets a 30-month time limit between an accused arrest and the end of their trial. Teng argued that the delay had already had serious consequences for her, including the fact that she had been unable to see her young daughter (who now resides in China with the husband’s family after an order by the Children’s Aid Society- CAS). Teng believed that the CAS might not have made that decision had the trial proceeded faster.

Justice McDonnell did not stay the charges, finding that the period of time that had elapsed since Teng’s arrest was justified under the legal framework which had existed prior to the Jordan decision.

The Accused’s Outbursts and Inappropriate Behaviour Throughout the Trial

Throughout the trial, Teng regularly interrupted the proceedings, occasionally prompting Justice MacDonnell to order her removal from the courtroom, and placing her in a separate room with a video-link through which she could continue to watch the proceedings but not participate.

At various points during the proceedings Teng accused Justice MacDonnell of “fooling the jury”, “rejecting her constitutional right” to “speak for herself”, and later telling the Justice that he was “biased” and “not trustable” and an “evil judge”. On one occasion she shouted “you are wrong! You are wrong!” and “you do everything illegally in this courtroom. You are an illegal judge”.

In Justice MacDonnell’s final instructions to the jury, the judge reminded them that they were not to take Teng’s courtroom behaviour into consideration when making their decision.

It is never a good idea to represent yourself in criminal proceedings. If you have been charged with an offense and require legal counsel, contact the criminal defense lawyers at Affleck Barrison in Oshawa. We are located at 201 Bond Street East in Oshawa, within easy walking distance of the Durham Consolidated Courthouse. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times and accept cases on private retainers as well as Legal Aid. Do not hesitate to contact our firm online or at 905-404-1947 to discuss your charges

Psychiatrist testifies that senior in murder trial has dementia and delusions, and is not criminally responsible

Written on Behalf of Affleck & Barrison LLP

Peter Brooks, 76, is on trial for first degree murder after he beat Joycelyn Dickson, 72, to death in her bed with his cane. Dickson was a fellow resident at the Wexford long-term care facility in Scarborough. Brooks is also charged with attempted murder, for attacking a second resident, Lourdes Missier, 91, on the same night.

On the evening of March 13, 2013, Brooks entered Missier’s and attacked her with his cane, leaving her with injuries to her hands and face. Brooks then went upstairs and killed Dickson, who was partially paralyzed, by hitting her in the head at least seven times while she slept in her bed.

Brooks pled not guilty to the charges at his first trial date, where he appeared in a wheelchair and required an assistive listening device in order to hear the proceedings. A forensic psychiatrist retained by Brooks’ defence lawyers has since testified that at the time of the incident, Brooks was suffering from dementia and delusions and should be found not criminally responsible.

History of Animosity

The jury previously heard of a history of animosity between Brooks and the women over the course of the two years that Brooks lived in the facility.

Missier and Brooks had once lived on the same floor and had been friendly, but their friendship eventually soured after Missier began to share treats she received from her family with residents other than Brooks. Brooks and Dickson once resided on the same floor for a year and had engaged in verbal clashes.

Brooks was moved back to the same floor as Missier days before the attacks occurred. On the day of the attacks, Missier expressed a fear of Brooks and informed staff that she did not want to be on the same floor as him. On the same day,  Dickson told a Wexford employee that she feared that Brooks would kill her.

Dementia and Delusions

Dr. Julian Gojer, a forensic psychiatrist, testified that Brooks has likely had dementia since 2010, and this has impacted his brain functioning, memory, and inhibitions. In addition, since 2011, Brooks suffered from a strong paranoid delusion that Missier and Dickson were conspiring with staff and management to harass him and get him removed from the facility.

Dr. Gojer testified that

[Brooks] is now suffering (from a mental disorder) and was suffering from a mental disorder at the time of homicide. I can say that with a very strong conviction.

In Dr. Gojer’s opinion, Brooks was so consumed by his delusional behaviour nothing else seemed to matter. Brooks would have been unable to foresee the consequences of his actions, or weigh the pros and cons of his actions (which is a major component of determining criminal responsibility). He pointed to Brooks’ admission to hitting the women when confronted by staff, and the fact that he made no attempt to run away following the attacks.

Dr. Gojer additionally suggested that the attacks had been triggered by Brooks’ fear of being moved within the facility, to the independent wing, and his worries about his ability to care for himself and afford the higher costs of living there. The psychiatrist noted that, in 2010, prior to living at Wexford, Brooks had been found in his apartment, “in a terrible state”, drinking heavily and depressed following the death of his wife. Brooks was initially admitted to hospital, and later transferred to Wexford.  According to Dr. Gojer, there had been no effort by Wexford staff to treat Brooks’ dementia or paranoid delusions.

The psychiatrist testified that:

…Rather than treat his delusion with anti-pyschotic medication they thought about transferring him to another unit…[i]f he was placed in a nursing home again, I guarantee there would be problems. He is not a safe person to be put in a nursing home, he needs to be in a hospital. He needs to be treated.

Dr. Gojer additionally refuted the prosecutor’s suggestion that Brooks was lying or faking his condition, and the allegation that Brooks had to have remembered attacking the women. The psychiatrist testified that Brooks had been tested for signs of “malingering” (i.e- lying) and did not show any signs of it. Additionally, Brooks’ claim that he did not remember the attacks could be explained by the fact that people suffering from dementia are highly susceptible to filling gaps in their memories with information they received from other sources.

Dr. Gojer emphasized that Brooks has no known history of violence and no criminal record prior to moving into the Wexford. He noted that it will be up to the jury to decide:

Is (Brooks) simply an angry old man, a cantankerous disgruntled nursing home resident or is he a person with a delusion acting in a violent manner because he thinks someone is harming him?

We will continue to follow developments in this case and will provide updates as necessary.

If you have been charged with murder or manslaughter , or have questions, contact our firm online or at 905-404-1947 to discuss your charges with one of our experienced Oshawa lawyers. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.