Ontario Court of Appeal

Conviction Changed from First to Second-Degree for Man Who Planned to Kill his Ex

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has ruled that a Toronto man who planned to kill his estranged wife, but killed her uncle instead, should not be convicted of first-degree murder as the uncle was not the intended target.

At his trial, Willy Ching (“Ching”) was convicted by a jury of first-degree murder. The appeal court dismissed his conviction and substituted a conviction for second-degree murder. 

WHAT HAPPENED?

Ching has a history of mental illness and attempted suicide.  He had been on medication for depression, which was changed in October, 2009.  He was also prescribed sleeping pills and had attempted to overdose on them and had to be hospitalized for three days.

The marriage of Ching and Maria Ching dissolved on September 2, 2009 at which time Ms. Ching moved out of her home and went to live with her uncle Ernesto Agsaulio (“Agsaulio”).  Ching was unhappy with the end of his marriage and repeatedly tried to be in contact with Ms. Ching.

On October 25, 2009, Ching rented a car and drove to Agsaulio’s home to see Ms. Ching.  Ching’s daughters became aware that he was going to see Ms. Ching and called her to warn her.  She proceeded to call Ching and told him to go home.  He asked her to come outside so they could talk, and she refused.  She then advised Agsaulio that Ching was coming over. 

Ching rang the doorbell and Agsaulio opened the door, but refused to allow him to see Ms. Ching.  The two men spoke for a few minutes, then Ching pulled out a knife and hatchet that he had brought with him and began slashing at Agsaulio.  Agsaulio, his son and some neighbours managed to subdue Ching.

The police arrived and arrested Ching.  He gave a statement and stated that he only wanted to talk to his wife, he did not try to kill anyone, and repeatedly stated that the judge should give him the death sentence.

Later, the police informed Ching that Agsaulio had died and he would be charged with first-degree murder.  Ching went to use the washroom, began running toward the stairwell and attempted to fling himself headfirst over the railing.  A police officer grabbed his waistband and pulled him back.

Ching gave a second statement to the police the next day stating that he brought the weapons with him not to hurt anyone, only to threaten to hurt himself so that his wife would come back to him. 

THE APPEAL

Ching appealed his conviction to the Ontario Court of Appeal arguing that several errors were made in the trial judge’s instructions to the jury. 

The trial judge instructed the jury that if it concluded that Ching had planned and deliberated the murder of his estranged wife, this could change the murder of Agsaulio from second to first-degree murder as it was committed in the course of carrying out his plan to murder Ms. Ching.

A murder is considered first-degree murder when it is planned and deliberate.  The issue, in this case, is whether Ching could be found guilty of first-degree murder when the jury found that he had planned to kill his wife, but ended up taking the life of another person.

The Court of Appeal concluded that the trial judge’s instruction to the jury regarding the charge of first-degree murder was incorrect.  The appeal court wrote:

A finding that the appellant had planned and deliberated the murder of Ms. Ching and that Mr. Agsaulio’s murder was committed while carrying out that plan does not satisfy the statutory requirement for the first-degree murder. ..

There is a sound policy reason for concluding that an accused who intentionally kills person B when in the course of carrying out the planned and deliberate murder of person A will be guilty of second-degree murder, whereas an accused who accidentally or mistakenly kills person B when person A was the target will be convicted of first-degree murder. … This result reflects the fact that in the first case the actual killing may well have been impulsive while in the second, it was the result of a planned and deliberate act.

The appeal court rejected Ching’s arguments that the trial judge erred in his instructions to the jury regarding Ching’s attempt to jump over a staircase upon hearing about Agsaulio’s death, and instructions regarding conflicting statements made by Ching in his testimony and police interviews.

The appeal court dismissed Ching’s conviction for first-degree murder and substituted a conviction for second-degree murder. 

The offence of second-degree murder carries an automatic life sentence, with no chance of parole for 10 to 25 years.

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.

Acquittal for Man Convicted in Violent Home Invasion

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal acquitted Dino Phillips (“Phillips”) of 19 convictions, which included possession of a firearm, uttering death threats, kidnapping, unlawful confinement, robbery, breaking and entering, mischief, and pointing a firearm.

Phillips’ case took almost six years to get through the courts. It was one of the longest ever at the London courthouse.

He was sentenced in October, 2015 to eight years in prison after a jury found him guilty of 19 charges stemming from a home invasion and armed robbery in 2009.  The question at the trial was whether Phillips was one of the three men involved in the crimes.

Phillips was identified from a photo lineup by one of the participants of the crimes. However, there was no physical or forensic evidence linking Phillips to the crimes.

The Ontario Court of Appeal held that the trial judge erred in her instructions on how the jury should treat the identification evidence, particularly the in-dock identification and the photo lineup evidence.

As the Court of Appeal found that the verdict was unreasonable in that no reasonable jury could convict Phillips on the evidence in the case, a new trial was not ordered and Phillips was acquitted of all charges.

WHAT HAPPENED?

On May 8, 2009, Shawn George (“George”), Floyd Deleary (“Deleary”), and an unidentified man set out to rob George’s drug dealer at his apartment in London, Ontario.

At the time of the intrusion, the dealer’s girlfriend, her infant daughter, and sister were also at the dealer’s apartment. Deleary held a gun to the girlfriend’s head and the other two men tied up the dealer and girlfriend. The girlfriend’s sister was forced to look for money. The intruders were angered by the amount of money that was in the apartment and threatened to kill all of its occupants.

George and Deleary did not cover their faces and referred to each other by their first names. The third intruder was described as a “black man” who had his face covered and threatened to kill anyone who looked at him.

Unsatisfied with the amount of money in the dealer’s home, the “black man” and Deleary stole the girlfriend’s car and forced their way into the home of the drug dealer’s parents. They proceeded to tie up the occupants of the home and rob them at gunpoint. George was driving another vehicle with the intention of meeting up with the robbers, but drove off when he thought he saw an undercover police car.

After they heard sirens, the “black man” jumped out of the bedroom window and ran away.

Deleary was later arrested in the stolen car, while George was not arrested until February 23, 2010.

Phillips was arrested shortly thereafter following his identification by George in a photo lineup.

PHOTO LINEUP IDENTIFICATION

Following his arrest, George told police that he only knew the “black man” as “Virus”, but would be able to identify him.

Detective Constable Ellyatt prepared a photo lineup of twelve different men. Phillips was the fifth in the lineup. George identified Phillips as the man he knew as Virus.

The police did not perform a photo lineup for any of the other witnesses.

The Court of Appeal held that the photo lineup was so problematic as to render George’s identification of Phillips as worthless. Further, the trial judge failed to properly instruct the jury regarding the nature of identification problems, thus causing the trial to be unfair.

IN-DOCK IDENTIFICATION

During the preliminary inquiry (held to determine if there is enough evidence for an individual to be tried on their charges), witnesses were asked to identify who the “black man” was. Phillips was the only black man in the courtroom at the time of the preliminary inquiry.

Several witnesses pointed to Phillips in the courtroom. However, the drug dealer and the girlfriend’s sister could not identify the “black man”.

One witness testified that Phillips looked similar to the “black man”.

The trial judge instructed the jury to be cautious when relying on eyewitness testimony and alerted them to the possibility of mistakes.

The Court of Appeal concluded that the trial judge’s failure to instruct the jury concerning the dangers of in-dock identification was an error that undermined the fairness of the trial. The Court described the circumstances involving the in-dock identification as “egregious”. The victims had not been shown a photo lineup as it “never occurred” to the police to administer one and they only had one black man to choose from in the courtroom (the black man who had been charged with the crimes). The Court described this as highly prejudicial.

UNREASONABLE VERDICT

The question before the Court of Appeal was “whether, considering the evidence as a whole, the verdict was one that a properly instructed jury, acting judicially, could reasonably have rendered”.

Given that George’s pre-trial identification of Phillips was severely flawed, there was no independent confirmatory evidence supporting his identification, and there was no forensic evidence tying Phillips to the crimes, the Court of Appeal was “satisfied that no reasonable jury could have convicted the appellant [Phillips] on the evidence in this case, even assuming the jury had been charged properly”.

Therefore, the Court of Appeal allowed the appeal, set aside the convictions, and entered acquittals on all charges.

To speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, call Affleck & Barrison LLP at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7.

Court of Appeal Ordered Two Jail Guards to Stand Trial for their Role in Inmate’s Death

Written on Behalf of Affleck & Barrison LLP

On March 5, 2014, corrections officers, Leslie Lonsbary (“Lonsbary”) and Stephen Jurkus (“Jurkus”), were charged with failing to provide the necessaries of life following the death of inmate, Adam Kargus (“Kargus”).

Kargus was beaten by his cellmate at the Elgin Middlesex Detention Centre (“EMDC”) and was found dead in a jailhouse shower stall on November 1, 2013.  Anthony George pleaded guilty to second-degree murder and was sentenced to life in prison (with no possibility of parole for 10 years) last year for beating Kargus to death.

The Ontario Court of Appeal has recently reversed an earlier decision made by Justice A.K. Mitchell of the Ontario Superior Court of Justice.   At that time, charges against the two guards were dismissed as a result of too much time having passed since they were charged.

LOWER COURT DECISION

At the time of Kargus’ beating and subsequent death, Lonsbary and Jurkus were both employed by the Ministry of Correctional Services at EMDC and on duty.

Following a four month investigation by police, the two men were arrested and charged with failing to provide the necessaries of life to Kargus thereby endangering his life contrary to section 215(1)(c) of the Criminal Code of Canada.

In February, 2017, Lonsbary and Jurkus brought an application before the Ontario Superior Court of Justice arguing that their constitutional rights had been infringed due to the delay in bringing their case to trial.

A three week jury trial was scheduled to commence on May 8, 2017. The guards submitted that the delay from arrest to the expected completion date of trial would be 1,178 days or 39.3 months. They attributed the delay to the Crown prosecutor and the court.

Applying the formula for delay as set out by the Supreme Court of Canada (“SCC”) in the R. v. Jordan (“Jordan”) decision, the lower Court found that the accuseds’ right to be tried within a reasonable period of time was breached. The Court stayed the charges against Lonsbary and Jurkus as the case against them had surpassed the 30-month time limit for trials as set out in the Jordan decision.

WHY IS THE JORDAN DECISION RELEVANT TO THIS CASE?

We have previously blogged about access to justice issues and, more specifically, the commonly criticized length of time it takes for a case to get to trial. The SCC in 2016 set strict time limits for the completion of criminal cases, where there are no exceptional circumstances.

The SCC released its decision in R. v. Jordan on July 8, 2016. In this case, the accused had faced several delays while awaiting his preliminary inquiry and trial. Jordan was eventually convicted of five drug-related offences after 49.5 months. At the beginning of his trial, Jordan brought an application requesting a stay of proceedings due to his constitutional rights being infringed by an unreasonable delay. His application was dismissed. Jordan’s appeal to the Supreme Court of British Columbia was also dismissed.

Jordan proceeded to appeal to the SCC. His appeal was granted, his convictions were set aside and the proceedings were stayed. In this decision, the SCC clearly set out a formula to calculate the amount of time between the initial charge and the actual or anticipated end of trial. The SCC set a ceiling for unreasonable delays at 18 months for cases tried in provincial courts and 30 months for cases to be tried in provincial and superior courts after a preliminary inquiry, except under exceptional circumstances that were reasonably unforeseen or unavoidable.

ONTARIO COURT OF APPEAL

Crown prosecutors appealed the lower court decision to stay proceedings against Lonsbary and Jurkus to the Ontario Court of Appeal (“ONCA”). The Crown argued that the lower court Judge made errors in applying the time frame rules.

According to Justice Fairburn, writing on behalf of the ONCA, delays that were caused by the defence or by “exceptional circumstances” (which can include specific incidents or the general complexity of the case) do not count toward the 30-month ceiling for criminal proceedings.

In conclusion, the ONCA found that there was “no unreasonable delay” and ordered Lonsbary and Jurkus to stand trial.

The two jail guards have the right to appeal the Ontario Court of Appeal ruling. We will continue to follow this case and report on any developments as they take place in this blog.

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 have a 24-hour phone service for your convenience. We are available when you need us most.