R.v. Jordan

Convicted Armed Robber Released Due to Sentencing Delay

Written on Behalf of Affleck & Barrison LLP

The Ontario Superior Court of Justice has released Ammaan Charley (“Charley”) from custody due to an excessive sentencing delay. Charley was facing a mandatory minimum sentence of seven years for his conviction of armed robbery, aggravated assault, and possession of a restricted firearm in January 2017.

WHAT HAPPENED?

On January 15, 2015, Charley, 22-years-old at the time, entered Mr. Jerk’s West Indian Grocery on Eglinton Avenue West with a loaded revolver. He proceeded to pistol whip the clerk on his forehead and skull, ripped the gold chain off of his neck and demanded money at gunpoint. The clerk believed he was going to be killed and began wrestling over the gun. The struggle ended up in the laneway outside of the store and the clerk accidentally fired two shots.

At the time of the incident, Charley had a criminal record of violent crime and gun possession.

In January, 2017, Justice E.M. Morgan ruled that Charley was guilty of armed robbery, aggravated assault, and possession of a loaded, restricted firearm.

Charley has remained in custody at the Toronto South Detention Centre from the date of his arrest through to the date of his section 11(b) Charter of Rights and Freedoms application regarding sentencing delay.

WHAT HAPPENED POST TRIAL?

Following Charley’s conviction, the Crown brought an Application detaining Charley for the purposes of having a psychiatric assessment to be used as evidence in a proposed application to have him declared a dangerous or long-term offender. It took seven months to receive his records. The request for the psychiatric assessment was dismissed on June 22, 2017.

The defence brought a number of constitutional challenges regarding pre-trial detention and the manner in which inmates are treated at the Detention Centre. These accusations included no outside yard time, no recreational facilities, double bunking in cells designed for a single inmate, no visitation rights except using a screen through a video camera, and routine invasive searches. These challenges resulted in several days of evidentiary hearings and legal arguments. Some of these constitutional challenges were dismissed on February 22, 2018.  At the time of the application regarding sentencing delay, the balance of the evidence regarding the constitutional challenges was still waiting to be completed.

SENTENCING DELAY

In late June, 2018, Justice Edward Morgan stayed the charges against Charley relying upon the Supreme Court of Canada’s R. v. Jordan decision. The charges were stayed by the court on the basis that too much time had passed since Charley’s conviction and that his constitutional rights had been breached by the unreasonable delay.

According to the Jordan decision, which we have previously blogged about, cases tried in the Superior Court must be concluded within 30 months. To date, most of the cases reviewed by the courts for violating the Jordan decision concern pre-trial delays. In this case, the court was looking at a sentencing delay that occurred after the accused had been found guilty. Charley was convicted 24 months after charges were laid and his sentencing was not scheduled to occur until 17 months later.

The Jordan decision only briefly referenced sentencing delays. The Supreme Court wrote:

[W]e make no comment about how this ceiling should apply to [Jordan] applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.

Justice Morgan reviewed the history of proceedings in detail in his written decision, making appropriate calculations for any delays attributed to the defence. He concluded that the total delay in this case was 32 months (24 months of pre-trial delay and 8 months of sentencing delay).

Justice Morgan concluded that this delay was above the presumptive ceiling as set out in the Jordan decision. That decision upholds the protection of security of the person and the right to be tried within a reasonable time. Therefore, Justice Morgan concluded that Charley’s rights under the Charter of Rights and Freedoms had been infringed, the proceedings were stayed, and Charley was released.

It is unclear at this time whether the Crown prosecutor will appeal this decision. It is possible that the Ontario Attorney General’s Office will request that the Court of Appeal review this decision as it is sure to have a significant impact on the justice system.

We will continue to follow any developments in this case and will provide updates in this blog should 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.

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.

Ontario Sets 12 Month Ceiling for Youth Cases

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged about, the Supreme Court of Canada in R. v. Jordan established that adult criminal cases decided in the provincial courts must be resolved within 18 months. In circumstances where cases exceed the 18 months ceiling, it has been found that the accused’s rights under section 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) have been violated and a stay of proceedings may be granted, except under “exceptional circumstances”.

The Ontario Youth Court of Justice recently held that a 12-month ceiling should apply for youth cases. In the case of R. v. D.A., the Court applied section 3(1)(b) of the Youth Criminal Justice Act (“YCJA”) which states that youth court proceedings should be carried out with “promptness and speed…given young persons’ perception of time”. This is the first reported decision to specifically establish a lower ceiling for youth cases than adult cases.

The accused, D.A., applied for an order for a stay of proceedings under section 24(2) of the Charter arguing that his rights have been infringed pursuant to section 11(b). He maintained that it will take 18 months and 7 days for the completion of his trial, which is unreasonable and exceeds the presumptive ceiling set by the SCC in R. v. Jordan. Furthermore, the accused submitted that a young person should be subject to a lower presumptive ceiling.

WHAT HAPPENED?

On a date between January 1, 2015 and November 4, 2016, the accused allegedly was observed to be grinding his penis into a three years old’s buttocks as he lay on the floor.

During this same time period, the accused allegedly pulled down his pants and underwear exposing his penis to a nine-year-old boy (the accused’s first cousin) and a four-year-old boy. The accused allegedly asked the boys to touch his penis, which they did.

On December 6, 2016, the accused was interviewed by police without the presence of his mother. At that time, he provided a partially incriminating statement.

The accused was then charged with 8 offences, including sexual assault, sexual interference and invitation to sexual touching. He was released on an undertaking to a peace officer and a promise to appear.

THE NEED FOR TIMELY RESOLUTION OF CRIMINAL COURT MATTERS

The judicious conclusion of criminal court cases is a fundamental right of all accused individuals found within section 11(b) of the Charter. It is also an important factor in ensuring public confidence in the Canadian criminal justice system.

The timely culmination of criminal court matters is also important for witnesses, victims and their families. Proceeding in this manner assists with the accurate recall of information related to the crime and allows for emotional and psychological closure.

The SCC case of R. v. Jordan set out a new framework and timelines for processing criminal court cases in Canada. The Court set out a “presumptive ceiling” for completing criminal court cases and anything beyond these time periods is deemed unreasonable. However, if a delay is caused by the defence it will not count towards the presumptive ceiling (ie. requesting unnecessary adjournments). Once the presumptive ceiling has been exceeded, the burden is on the Crown prosecutor to justify the delay on the basis of exceptional circumstances.

BRINGING YOUTH MATTERS TO TRIAL EXPEDITIOUSLY

Individuals who are charged between the ages of 12 and 17 are processed through youth courts in Canada, which operate independently from adult criminal courts. The YCJA provides more proportionate accountability for young persons through age appropriate sentences and the promotion of rehabilitation.

Canada has acknowledged the necessity that criminal proceedings involving young persons should generally be brought to trial faster than adult matters. This has been codified in section 3 of the YCJA.

The Ontario Court of Appeal has also provided reasoning for the belief that young persons should be brought to trial faster in several its decisions. These reasons include:

  • The ability of a young person to appreciate the connection between offending behaviour and consequences will weaken the longer the proceedings take to complete;
  • The perception of time for a young person may be distorted when compared to that of an adult; and
  • The need to sentence young persons while they remain in his/her formative years.

In the case of R. v. D.A., Justice P.T. O’Marra found that the total delay was 555 days less the defence delay of 28 days, resulting in a total delay of 527 days (17 months and 2 weeks). Justice O’Marra irrefutably stated there should be a reduced presumptive ceiling of 12 months for youth cases that are non-complex cases. Therefore, Justice O’Marra held that the delay in this non-complex case was not reasonable, was well over the “youth presumptive ceiling of twelve months” and accordingly the application was allowed and the proceedings were stayed.

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, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Ontario Crown Prosecutors Ordered to Get More Individuals Out on Bail

Written on Behalf of Affleck & Barrison LLP

Ontario’s current bail system is simply not working. It has been reported that almost 70% of the individuals held in Ontario’s jails are waiting for their case to come before the courts. Individuals kept in jail may ultimately end up serve more time awaiting trial than if they were convicted.

We’ve previously blogged about the government’s attempts to make the justice system faster and fairer. On October 30, 2017, Ontario’s Attorney General announced a new directive as part of the Crown Prosecution Manual to help make the bail system faster and fairer. This directive will be used to provide support and guidance to Crowns (i.e. prosecutors) and will be released in the coming weeks.

BAIL HEARINGS IN CANADA

Following an arrest, an individual is either released pending the first court date or kept in custody. The right to not be detained before trial is a fundamental right in Canada and is codified in section 11(e) of the Canadian Charter of Rights and Freedoms. This right is based on the presumption of innocence (i.e. everyone is presumed innocent until proven guilty).

Everyone charged with a crime is entitled to reasonable bail unless the Crown can show just cause to deny it. The principle of “reasonable bail” refers to the terms of bail (i.e. monetary conditions and other restrictions).

A bail hearing determines whether an individual accused of a crime will be released from custody for the time leading to their trial date. In order to grant bail, the Court must consider the following three factors:

  1. Whether there is any risk that the accused will flee the Court’s jurisdiction (i.e. leave the city, province, or country) or fail to return to Court when required;
  2. Whether there is substantial likelihood that the accused will reoffend or interfere with the administration of justice if released on bail; and/or,
  3. Whether releasing the individual will undermine public confidence in the justice system.

The following factors must be considered by the Crown when determining whether the individual should be detained:

  1. Age of the individual;
  2. Presence or absence of a criminal record, related offences and breach of court orders;
  3. Concern that the individual will interfere with the administration of justice (i.e. coercion of witnesses, destruction of evidence);
  4. Presence or absence of outstanding charges in any jurisdiction;
  5. Need for and the availability of supervision of the individual while on bail;
  6. Any ties to the community; and,
  7. Availability of community supports.

GUIDANCE FROM THE SUPREME COURT OF CANADA

The Supreme Court of Canada has set the stage for the new bail policies in its recent decisions in R. v. Jordan and R. v. Antic. The Court stated that reasonable bail is a right that should not be denied without a very good reason.

In the case of R. v. Antic, the Supreme Court of Canada reiterated the proper approach for conducting a bail hearing by using the “ladder principle”. The Court sent a strong message that too many individuals are being held unnecessarily in custody before trial and too many individuals are subject to restrictive conditions and forms of release. Under the ladder principle, the starting position at a bail hearing should be unconditional release and only if the circumstances of the individual in question require it should any conditions and financial requirements be added.

In the Supreme Court of Canada case of R. v. Jordan, the Court set strict time limits for the completion of criminal cases, where there are no exceptional circumstances. The Court specified a maximum of 18 months for cases in the Ontario Court of Justice and 30 months for cases in the Superior Court of Justice.

NEW BAIL DIRECTIVE

The main focus of the new bail directive is to keep more individual offenders out of jail while awaiting trial. The new policy should result in allowing more people charged with offences to be released with “realistic” conditions when warranted and only using sureties when necessary (the exception, rather than the rule). A surety is an individual appointed by the courts who promises to ensure that the individual complies with the conditions of their bail, and who puts up money that they may lose if they fail in their surety duties.

The directive recommends that the “ladder principle” be applied during bail hearings. This principle is codified in section 515(3) of the Criminal Code of Canada and simply states that an individual should be released on the least onerous form of bail unless the Crown shows reason to the court to proceed otherwise. The Crown must consider each “rung” of the ladder individually before rejecting it and moving along to a more restrictive form of release.

The new policy recommends that only necessary and appropriate conditions be imposed. Only conditions specific to each case should be recommended and should not be automatic. Conditions of release should be connected to the circumstances of the individual, the facts of the case, and meeting public safety concerns.

The directive further instructs Crowns to consider the unique circumstances that indigenous, low-risk vulnerable individuals and those with mental health and addiction issues face in being granted bail. The government will be introducing more assistance in the community for individuals who may need supervision and support, but who cannot attain a surety. For instance, the government has suggested the use of “bail beds”, which allow low-risk offenders to reside in a supervised home in the community while awaiting trial.

We will continue to monitor how this new directive is affecting the bail process in Ontario and will blog about updates as they become available.

If you have been charged with an offence or have any questions regarding your legal rights, 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.

 

 

 

 

 

 

Judge Who Took Nine Months to Reach Verdict Did Not Violate the Accused’s Right to Timely Trial

Written on Behalf of Affleck & Barrison LLP

We have frequently blogged about access to justice issues, including the government’s attempts to make Ontario’s criminal law system “faster and fairer”, and the right to timely trial.

A commonly criticized issue within the criminal law system is the length of time it sometimes takes a case to get to trial.  There have been situations in which Ontario judges have halted cases involving serious criminal charges because they have taken too long to get to trial, however, this is not always the case. A lengthy sexual abuse case in Manitoba recently made the news, when a court decided that the trial process, which ultimately took well over 3.5 years, did not violate the accused’s right to a timely trial.

What Happened?

The accused in question was charged with sexually abusing one of his children. The trial itself lasted 33 months, and the judge took 9 months following the end of the trial to reach a guilty verdict.

The trial occurred in the wake of the Supreme Court’s decision in R.v. Jordan, in which the Court established that any trial lasting more than 30 months can be presumed to violate the accused person’s constitutional right to trial within a reasonable period, and that the charges must be thrown out (unless the prosecution could point to exceptional circumstances).

In this case, Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench ultimately found that the time that a judge takes to arrive at a decision of guilty or not guilty should not be included in considering whether the length of a trial falls within the parameters established by Jordan. Otherwise, a judge making a decision following a short trial would have a long time to render their verdict, whereas a judge making a decision following a long trial would have a shorter period of time to make their final decision. Moreover, trials would have to be finished well within the time limits established by Jordan in order to provide enough time for a verdict. Lastly, including a judge’s decision-making time in the Jordan time limits would have an impact on that judge’s independence, which would violate a key feature of our legal system.

Chief Justice Joyal stated that only where a judge took so much time to render a verdict that the delay was “shocking, inordinate and unconscionable” that the judge will be found to have violated the accused’s right to a trial within a reasonable period. In this case, the Chief Justice found that the 9 month delay “would not create, in a reasonable person with the full knowledge of the justice system, the sort of shock or sense of alarm that would cause that reasonable person to conclude that the nine-month judicial delay is significantly in excess of acceptable standards”.

Judicial Independence a Factor

Because of how the principle of judicial independence is interpreted by courts, the original trial judge in this case could not be asked why it had taken 9 months to reach a verdict, and could not be questioned whether the delay was due to the complexity of the case, the judge’s workload, or other personal reasons, such as illness.

The accused’s lawyer has indicated that she will appeal Chief Justice Joyal’s decision after sentencing. She argued that judicial delay is not just a matter of length of time it takes a judge to render a decision, but also their general availability.

The president of Manitoba’s Criminal Lawyers’ Association also disagreed with the Chief Justice’s findings in this case, stating:

The judges are independent but they have to comply with the law, too. [Chief Justice Joyal] is forgetting the admonition of Jordan – hard-cap limits which are meant to shock the system out of a ‘culture of complacency.’

We will continue to follow developments in this and other access to justice issues and will blog about them regularly.

In the meantime, if you have questions about your rights, contact one of the experienced Oshawa criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled lawyers have significant experience defending a wide range of criminal charges and protecting our client’s legal interests. Whatever the nature of your offence, we can help.

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