Recent decision

12 Year Sentence for Vigilante Justice Upheld

Written on Behalf of Affleck & Barrison LLP

The Alberta Court of Appeal, in a 2-1 decision, upheld Steven Vollrath’s (“Vollrath”) 12-year prison sentence for cutting off his victim’s thumb during an abduction in a case of vigilantism.

Two of the three judges at the Court of Appeal ruled that Vollrath’s sentence at trial was appropriate for the well planned “revenge kidnapping”.

The Appeal Court denounced vigilantism and stated:

Vigilantism undermines the rule of law and interferes with the administration of justice. As a general rule, those who engage in it should be dealt with severely.

WHAT HAPPENED?

In May, 2013, Richard Suter (“Suter”) was parked next to a restaurant when he and his wife began having an argument. He failed to put his car in park, and as the car proceeded forward, he unintentionally pushed on the accelerator instead of the brake. The car advanced onto the restaurant’s patio striking and killing a two-year-old child.

Suter was convicted of failing to provide a breath sample. The trial judge found that the accident was caused by driver error and not drunkenness. The Supreme Court of Canada reduced Suter’s 26-month sentence to the 10 months he had already served in jail.

While Suter was awaiting trial, Vollrath, dressed as a police officer, and two accomplices rang Suter’s doorbell and abducted him in front of his wife. His captors revealed that the reason he was being abducted was that he had hit and killed a child with his car. Suter was taken to a snowy field, his thumb was cut off with pruning shears, and he was left unconscious in the snow.

Vollrath was convicted in 2016 of kidnapping, aggravated assault, possession of a weapon, and impersonating a police officer. Vollrath had a lengthy criminal record, including violent and weapons offences.

SENTENCING PRINCIPLES

According to section 718 of the Criminal Code, the purpose of sentencing is to protect society and to impose sanctions that meet the following objectives:

  • denounce unlawful conduct;
  • deter the offender and others from committing offences;
  • separate offenders from society;
  • assist in rehabilitating offenders;
  • provide reparations for harm done to victims or the community; and
  • promote a sense of responsibility in offenders and acknowledge the harm done to victims or to the community.

Sentencing must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In deciding on an appropriate sentence, the Court must consider aggravating and mitigating factors, sentences imposed on similar offenders for similar offences, and all available sanctions other than imprisonment must be considered.

In Mr. Vollrath’s case, the Court considered the following aggravating factors:

  • he did not act alone;
  • there was advance planning involved in committing the offences;
  • he impersonated a police officer with the purpose of facilitating another offence;
  • the incident began at the Suter’s home;
  • the kidnapping and assault were targeted;
  • leaving Suter maimed and unconscious in a deserted area showed a callous indifference to whether he lived or died;
  • the lasting physical harm to Suter;
  • the psychological impact to both Mr. and Mrs. Suter;
  • Vollrath’s extensive criminal record; and
  • Vollrath was on release at the time of the offences.

The Court is also obligated to consider background factors for aboriginal offenders and to consider how these factors affect the offending behaviour. In Mr. Vollrath’s case, the Court found that he had no connection with his aboriginal culture at the time he became incarcerated. Furthermore, the Court held that Vollarth’s dysfunctional background was not connected to his aboriginal history as his biological father, who was a Metis man, left him when he was very young.

In coming to a conclusion in her 2016 sentencing decision, Justice E. A. Johnson of the Provincial Court of Alberta felt that the most important objective was to “denounce the acts and to deter Mr. Vollrath and others from engaging in this kind of behaviour.” Justice Johnson also considered the objectives of separating the offender from society and rehabilitation. Therefore, Justice Johnson concluded that 12 years of incarceration were fitting given the seriousness of the offence, the degree of responsibility of the offender, the aggravating factors, and the need for denunciation and deterrence.  The majority of the Alberta Court of Appeal agreed with this sentencing decision.

WHAT COMES NEXT FOR VOLLRATH?

At the Court of Appeal, the dissenting judge held that Vollrath should have been sentenced to nine years in jail after taking into account the deprivations of his childhood.

Given that there was a dissenting opinion on appeal, Vollrath has the option of appealing his case to the Supreme Court of Canada. However, the Supreme Court of Canada will only hear a case if it is convinced that the case involves a question of public importance. Approximately 1 out of 10 cases that request “leave” to appeal to the Supreme Court of Canada receive permission.

We will continue to follow this case and will report any developments on this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced and knowledgeable 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. We are available when you need us most.

‘Sexsomnia” Defence Rejected by Ontario Judge

Written on Behalf of Affleck & Barrison LLP

A Judge has rejected the defence of “sexsomnia” and ruled that Ryan Hartman (“Hartman”) is criminally responsible for the sexual assault of a woman despite his claim that he was sleepwalking at the time of the criminal act.

Hartman was found guilty of sexual assault in 2012 and sentenced to 14 months in jail. He appealed and lost. He appealed again and admitted to the crime, but offered new evidence claiming that he was suffering from a condition called “sexsomnia” and maintained that he was sleeping when he raped the woman.

The Ontario Court of Appeal granted Hartman a new trial. The trial began in April 2017 and concluded this week with a Judge ruling that Hartman is guilty of sexual assault.

WHAT HAPPENED?

In February 2011, the woman, whose identity is protected by a court order, was attending a house party in Spencerville, Ontario with her boyfriend. The couple fell asleep on an air mattress to sleep off all of the alcohol they had consumed before driving home.

Suddenly, the woman felt a strong pain in her buttocks. She realized that her jeans were pulled down and that someone was penetrating her anally while her boyfriend remained asleep.

Hartman gave evidence at his first trial that he crawled onto the double air mattress with a sleeping couple. When he awoke, he was alone on the air mattress with an erection and his pants were unzipped.

As the woman and her boyfriend drove away from the house party, she observed Hartman sitting at a picnic table in the garage looking wide awake.

During the trial, Hartman’s lawyer argued that his client was asleep during the sexual assault and was therefore not criminally responsible for his “involuntary” acts.

Hartman relied upon evidence provided by Dr. Julian Gojer, a forensic psychiatrist, who determined that Hartman was likely asleep during the assault. Dr. Gojer’s opinion relied upon a family history of sleepwalking and evidence from Hartman’s girlfriend who had once found Hartman masturbating beside her in bed while apparently asleep.

The Crown prosecutor relied upon affidavit evidence from a U.S. sleep expert Dr. Mark Pressman who opined that Hartman was likely awake, but drunk during the assault.

At trial, evidence before the court included the fact that Hartman had consumed as many as 21 alcoholic beverages during the party and that his blood-alcohol level was estimated to be three to four times the legal limit.

Judge Kimberly Moore rejected Hartman’s defence of sexsomnia and ruled that Hartman was “awake and aware” and his “actions were not involuntary” when he pulled down the victim’s pants and anally penetrated the woman without her consent.

 WHAT IS SEXSOMNIA?

Sexsomnia is a type of parasomnia, an abnormal activity that occurs while an individual is asleep. It is a sleep disorder that causes individuals to engage in sexual behaviour while asleep.

Sexsomnia is similar to sleepwalking and occurs during non-rapid eye movement sleep. Most individuals are experiencing such a deep sleep that they will not even remember that the event occurred the following day.

Sexsomnia was added to the DSM-5 in 2013, the American Psychiatric Association’s relied upon classification of mental disorders.

WHAT IS THE DEFENCE OF SEXSOMNIA?

In Canada, sexsomnia has been raised by defence lawyers as a legal defence in at least a dozen criminal cases since 2005. The defence of sexsomnia has resulted in a “not criminally responsible” ruling five times.

A 2003 incident that occurred in Toronto set the precedent for the sexsomnia defence in Canada when Jan Luedecke was found not criminally responsible after being accused of sexually assaulting a woman at a party by the Ontario Court of Appeal.  In 2009, Luedecke was granted an absolute discharge by the Ontario Review Board based upon two risk assessments by a forensic psychiatrist and a forensic psychologist. He was found not to pose a significant threat to public safety.

In another case, a man from Blue Mountain, Ontario was found not criminally responsible for the sexual touching of a young girl as a result of sexsomnia in February 2015. In June 2016, the Newfoundland and Labrador Supreme Court ordered a new trial for a man convicted of sexually touching his younger sister on the basis of a sexsomnia defence.

Sexsomnia is a difficult defence as it requires a great deal of medical evidence, including expert testimony.

The victim of Hartman’s assault maintains that the assault has changed her life, her sexual relationships, her personal relationships, and her career path. Hartman will be sentenced on November 30, 2018.

If you have been charged with a sexual assault 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.  We are available when you need us most.

 

 

 

 

 

‘Spiderman’ Has Murder Conviction Overturned

Written on Behalf of Affleck & Barrison LLP

 

Shawn Vassel (“Vassel”) has spent seven years in prison and has recently had his conviction overturned and a new trial ordered by the Ontario Court of Appeal.

In 2011, Vassel was convicted of second-degree murder in the death of a Mississauga man during a drug deal turned robbery that occurred in 2007.

WHAT HAPPENED?

Vassel was nicknamed the “Spiderman killer” after he scaled down 11 floors of a North York apartment building in his attempt to flee the police.

Vassel was confronted by police at his mother’s apartment on the 18th floor. He exited the balcony and began rappelling from one floor to the next, finally appearing outside of the building and was eventually caught by the police after a chase on foot.

Vassel was arrested and charged for the murder of Husam Dagheim (“Dagheim”). Dagheim was shot at point-blank range in the parking lot of the Coliseum movie theatre in Mississauga during an attempted drug deal.

Vassel testified at his trial that he “risked his life” in his attempt to escape the police because he didn’t want to go to jail for a crime that he alleged he did not commit.

Vassel was sentenced to an automatic life sentence with eligibility for parole at 16 years. He has an extensive criminal record, which includes robbery, drug trafficking, and assault.

THE TRIAL

At issue at Vassel’s trial was the identity of Dagheim’s killer.

The Crown’s star witness, a former friend of Vassel, Michael Agba (“Agba”), testified that he was present during the botched drug deal and witnessed Vassel holding the loaded gun before the murder took place. During cross-examination by Vassel’s lawyer, Agba was accused of lying in order to secure a plea deal. Agba was originally charged with murder, but pleaded guilty to manslaughter.

There were no other witnesses that could identify the shooter, including the deceased’s wife who was seated beside her husband in a minivan at the time of his death.

Vassel testified at his own trial that he was not at the crime scene. He also testified that he lent his friends his girlfriend’s rental car for the planned robbery at the drug deal. Vassel suggested that the real killer was either Agba or another friend who were both present during the drug deal.

Cellphone records were introduced as evidence to prove that Vassel was at a townhouse complex on Ridgeway Drive in Mississauga at the time of the killing.

THE APPEAL

Vassel appealed both his conviction and the period of parole fixed by the trial judge. Vassel’s counsel argued that the trial judge made several errors regarding the admissibility of evidence and his instructions to the jury.

One of the grounds of appeal argued by Vassel’s counsel was that the trial judge erred by instructing the jury to take caution and particular care with Vassel’s evidence at trial.

In a criminal trial, all parties are entitled to a properly instructed jury. An appellate court ,when assessing a judge’s jury charge, must take a functional approach to determine whether the instructions, read as a whole, provide the jury with the necessary tools to render a verdict.

The trial judge instructed the jurors to apply the same factors in assessing Vassel’s testimony as they would any other witness. Justice Tulloch specifically stated:

Mr. Vassel has given evidence that may tend to show that either Mr. David Grant or Mr. Agba was the shooter as he was not on at the scene of the crime on the night in question. You should consider that testimony of Mr. Vassel with particular care because he may have been more concerned about protecting himself than about telling the truth. Bear that in mind when you decide how much or little you can believe of and rely upon what Mr. Vassel told you about Mr. Grant’s involvement in deciding this case.

Vassel argued, on appeal, that the trial judge erred in instructing the jury about the manner in which the jury was to assess the testimony of the appellant (the person who applies to a higher court for a reversal of the decision of a lower court).

The Appeal Court agreed with Vassel’s arguments and held that the trial judge’s instruction was problematic in terms of its impact regarding Vassel’s alibi (Vassel’s primary defence).

The Court of Appeal held that this instruction to the jury by the Judge was one of several errors. The Court stated:

In these circumstances, the inclusion of this reference had the effect of adding a level of scrutiny to the alibi evidence that was unwarranted and constitutes error.

Given that the Court of Appeal determined that the trial judge made multiple errors, Vassel’s appeal was allowed, his conviction was set aside, and a new trial was ordered. Vassel can apply for bail as he awaits his retrial.

We will continue to follow developments in this case as it makes it way through the court system and will provide updates in this blog.

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. For your convenience, we offer a 24-hour telephone service. We are available when you need us most.

Judge Strikes Down Mandatory Minimum Sentences for Sex Crimes

Written on Behalf of Affleck & Barrison LLP

A judge from the Ontario Superior Court of Justice has ruled that mandatory minimum sentences for two sex offences should not apply in the case of Steevenson Joseph (“Joseph”), a 24-year-old first-time offender, who recruited and photographed two underage prostitutes.

After a three-week trial last February, Joseph was convicted of receiving a benefit from the prostitution of a person under the age of 18-years; procuring a person to offer to provide sexual services believing that the person was 18-years or older; knowingly advertising an offer to provide sexual services for consideration; and of making and possessing child pornography. A jury acquitted him of more serious charges, which included sexual assault and two charges related to underage prostitution.

WHAT HAPPENED?

At the time of the crime, Joseph was 21-years-old and was depressed and lonely. He received information from a friend, who was involved in the sex trade, about how lucrative the business was. He then met a girl, identified in court as C.A., who was a college student and who he believed was 18-years-old. He asked her if she wanted to make money in the sex trade. C.A. testified that Joseph did not pressure her to take part in prostitution. She also introduced her best friend, identified as R.D., to meet Joseph as she was also interested in the sex trade.

Joseph took provactive photos of both girls and posted them on a website that features escort service ads. The girls, who were in fact in high school and under the age of 18 at the time, also used Joseph’s apartment to service clients.

Joseph was caught by police through an Ottawa police sting operation after a girl identified as M.M. contacted Joseph through social media interested in becoming involved in the escort business.  M.M. was 15 years-old.

All three girls testified at trial that they were never pressured by Joseph, that they lied about their ages, and that they decided freely to join the sex trade.

REASONS FOR SENTENCE

At Joseph’s sentencing hearing, the Crown prosecutor argued that Joseph should be sentenced to a 3-and-a-half year jail term, while the defence requested a suspended sentence (ie. defendant serves a period of probation and receives a criminal record).

Joseph’s lawyer argued that given the facts of the case, the minimum penalties would be a form of “cruel and unusual punishment” and should be struck down as unconstitutional.

Justice Colin McKinnon agreed with Joseph’s lawyer and stated that the minimum penalty prescribed by law “for his offences are grossly disproportionate”. He gave him a suspended sentence, one year probation, and the conditions that he report to a probation officer and not communicate with underage girls identified as C.A., R.D. or M.M.

Justice McKinnon also ordered that Joseph’s DNA be taken pursuant to section 487.051 of the Criminal Code and that he be listed on the Sex Offender Registry for his entire life pursuant to section 490.013(2.1) of the Criminal Code.

Justice McKinnon struck down the mandatory minimums for two offences (receiving a benefit from the prostitution of someone under the age of 18 and making and possessing child porn) as unconstitutional.

This decision took into account that Joseph suffered “irreparable damage” due to inflammatory media reports that were based on exaggerated police assertions regarding human trafficking.

Justice McKinnon stated in his reasons for sentence:

I have sent a number of them to penitentiary, including two child pornographers. In stark contrast to those cases, the facts of this case constitute the least serious conduct witnessed by me in the context of prostitution and child pornography cases. …

An objective view of the facts causes me to conclude that Mr. Joseph has been subjected to sufficient punishment.

WHAT ARE MANDATORY MINIMUM SENTENCES?

Canada’s criminal law sets out mandatory minimum penalties as the lowest possible punishment an individual can receive if convicted of a criminal offence in Canada. These are often crimes that are both serious and violent offences. There are currently more than 70 of these provisions in the Criminal Code and the Controlled Drugs and Substances Act.

The majority of offences found in Canada’s Criminal Code do not have mandatory minimum sentences. In these cases, it is the judge’s discretion to deliver an appropriate sentence.

The codification of mandatory minimums was markedly increased by the former Conservative government in an effort to promote its “tough on crime” agenda.

The Supreme Court of Canada and lower courts have already struck down numerous mandatory minimum sentences related to weapons offences, drug offences, and sexual offences against children as unconstitutional. In fact, the Supreme Court of Canada has decided three of these cases (R. v. Nur and R. v. Charles; R. v. Lloyd) and R. v. Morrison is already on the docket to be heard in the near future.

In the current state of criminal law in Canada, millions of dollars are being used to litigate these sentences on a case-by-case basis. This results in inconsistent legal decisions across the country and uncertainty as to which mandatory minimums are valid.

Sentencing in the Joseph case is currently being reviewed by the Crown Law Office in Toronto to determine if the decision will be appealed. We will provide updates in this blog of any developments in this case as they become available.

If you are facing sexual offence charges or have any questions regarding your legal rights, please contact Durham region criminal defence lawyers Affleck & Barrison LLP. We have a reputation for effective results in defending all types of criminal legal charges. We offer a free initial consultation and a 24-hour phone service.   Contact our office online or at 905-404-1047 to speak with one of our experienced criminal defence lawyers today.

Crown Prosecutors Appealing Decision in Toronto Police Breach of Trust Case

Written on Behalf of Affleck & Barrison LLP

Kyle Upjohn (“Upjohn”), an officer with ten years of experience on the police force, was charged with the offence of breach of trust by a public officer contrary to section 122 of the Criminal Code and following a preliminary inquiry he was committed to stand trial. Upjohn successfully brought an application to the Ontario Superior Court of Justice seeking to quash the order committing him to stand trial.

A Crown prosecutor is appealing the decision to quash Upjohn’s criminal trial to Ontario’s highest court maintaining that the lower court Judge erred. Milan Rupic, Crown prosecutor, claims that Justice Maureen Forestall erred in failing to consider “the whole of the evidence” when considering Upjohn’s intent.

Rupic contends that Upjohn allegedly refused to help stop a young man commit suicide in High Park and should stand trial as the cop “knowingly avoided a duty of vital importance”.

WHAT HAPPENED?

On February 2, 2016, a concerned citizen reported to Upjohn, who was parked in his marked police vehicle in High Park, that a young man was preparing to hang himself in the park. Instead of coming to the aid of Alexandre Boucher (“Boucher”), Upjohn allegedly falsely claimed he was on another call and told the man to dial 911 and then drove away.

Subsequently, Upjohn was dispatched to attend to the park where Boucher, a 19-year-old, was later pronounced dead.

Initially, Upjohn was charged with criminal negligence causing death and failing to provide the necessities of life. These charges were withdrawn and Upjohn was charged with breach of trust by a public officer.

THE LOWER COURT DECISION

On application to the Superior Court of Justice, Upjohn’s lawyer argued that a breach of trust case required evidence that the accused had a dishonest or corrupt ulterior purpose for avoiding the call, and that there was no such evidence of this nature.  Justice Forestell agreed with this position and quashed Upjohn’s committal to stand trial.

THE ARGUMENTS ON APPEAL

The Crown prosecutor has filed an appeal at the Ontario Court of Appeal. The Crown argues that Justice Forestell erred in her decision to quash the trial by failing to consider the “whole of the evidence” in terms of Upjohn’s intent.

The Crown argues that the evidence supports the inference that Upjohn “knowingly avoided a duty of vital importance by means of a deceit”. Furthermore, the evidence demonstrates that in avoiding his public duty, Upjohn was untrustworthy and the breach of his duty was not for the public good.

The Crown stated:

This was not an innocent mistake. Upjohn masked his failure to act with dishonesty – by lying about being “on a call”. The lie suggests that Upjohn knew what he was doing wrong, that he was intentionally using his office for a purpose other than the public good.

The appeal in this case is scheduled to be heard in November, 2018.

WHAT IS BREACH OF TRUST?

A charge of breach of trust by a public officer is laid when an official is accused of violating the standard of conduct and responsibility demanded by his/her position.

Section 122 of the Criminal Code reads as follows:

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

The Supreme Court of Canada set out the elements of the offence of breach of trust by a public officer in R. v. Boulanger:

  1. The accused is an official;
  2. The accused was acting in connection with the duties of his office;
  3. The accused breached the standard of responsibility and conduct demanded of him by the nature of the office;
  4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
  5. The accused acted with the intention to use his public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

UPJOHN’S CURRENT STATUS

Currently, Upjohn remains suspended with pay from the Toronto Police Service since May 2016.

Upjohn is also accused of three counts of professional misconduct under Ontario’s Police Services Act, including neglect of duty and acting in a disorderly manner.

Under this Act, disciplinary hearings are conducted by police services.   A hearing officer must decide whether the allegations of misconduct have been proven on clear and convincing evidence. If an officer is found guilty of misconduct, appropriate penalties may be imposed, including:

  • a reprimand;
  • a direction to undergo specific counselling, treatment or training;
  • a direction to participate in a specified program or activity;
  • forfeiture of pay or time off;
  • suspension without pay;
  • demotion; or
  • dismissal.

We will report in this blog any developments in this case as they occur, including the decision on appeal.

In the meantime, 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.

Plans to Appeal to the Supreme Court as Seizure of Blood by Police in Dispute

Written on Behalf of Affleck & Barrison LLP

On July 25, 2018, the Ontario Court of Appeal upheld Christie Ann Culotta’s (“Culotta”) convictions on two counts of operating a vessel causing bodily harm while having a blood-alcohol content over the legal limit. This was a split decision, with a two-judge majority and Justice Gladys Pardu dissenting.

It has been reported that Culotta intends to take her case to the Supreme Court of Canada to determine the legality of taking extra blood samples from a suspected impaired boater in a hospital for use by the police.

WHAT HAPPENED?

On August 1, 2013 at approximately 2am, Culotta was driving a boat back to her family cottage from a party at a yacht club on Muskoka Lake. It was raining heavily and visibility was poor. There were four other young women on board.

Culotta was driving the boat at a “relatively high speed, fast enough that the hull planed above the water”. She then crashed into a rocky island, leaving a white V-shaped mark on the rocks above the waterline.

Three of the passengers were ejected from the boat, one landing on the island and two in the water. All three passenger were injured, fortunately there were no fatalities.

Culotta was not seriously injured and spoke with the investigating officer after the boaters were rescued. Ambulances rushed the two seriously injured victims to the hospital, while Culotta and two others with minor injuries were treated by ambulance.

An Ontario Provincial Police officer smelled alcohol in the ambulance and asked Culotta if she had been drinking. She admitted that she had a vodka and tonic and one or two additional drinks at dinner. The officer observed Culotta’s watery eyes and a slight slurring in her speech, but he was unsure whether this was from intoxication, crying, rain, or facial injuries.

Culotta was arrested a little more than an hour after the accident, but the officer did not immediately caution her about her right to silence in order to avoid interference with her medical care. She was cautioned half an hour later at the hospital. The officer tried to contact Culotta’s father in order for her to retain a lawyer, but to no avail.

In hospital, doctors took blood tests for medical purposes, including to test her blood alcohol. At trial, it became apparent that the officer told the lab technician that he wanted to seal some of the blood for investigative purposes. The technician drew more blood than was medically required, without Culotta’s consent. Two of the six vials of blood were sealed by the OPP officer and placed on a shelf in the laboratory refrigerator that was marked “for police use”. The blood was tested for alcohol content after a warrant was granted.

Blood tests revealed 107 mg of alcohol in 100 mL of blood, which is over the legal limit of 80.

The trial judge excluded the blood sample evidence, but admitted Culotta’s hospital records, which showed a blood alcohol level over the legal limit. The trial judge also found that Culotta’s statements to the police were found to be voluntary.

Culotta was convicted in a judge alone trial.

ONTARIO COURT OF APPEAL

At the Court of Appeal, Culotta contested the trial judge’s rulings with respect to the admissibility of evidence that she maintains were obtained in violation of her rights under the Canadian Charter of Rights and Freedoms (“Charter”).

The two judge majority agreed with the trial judge in finding that Culotta’s statements to the police were voluntary and that her hospital records were properly obtained with a search warrant.  Justice V.B. Nordheimer, writing on behalf of the majority, wrote:

Whether the lab technician did or did not take other blood samples for the police, some blood would have been taken from the appellant, and it would have been tested for blood-alcohol concentration regardless. Consequently, the Charter infringement regarding the two vials of blood is independent of the other blood samples taken. The exclusion of one does not undermine the admissibility and evidentiary value of the other.

JUSTICE PARDU’S DISSENTING OPINION

Justice Pardu, in her dissenting opinion at the Court of Appeal, was of the opinion that the Charter breaches were serious grounds to quash the convictions and order a new trial.

Justice Pardu found that Culotta’s hospital records, which included an analysis of her blood, should be excluded. She was especially concerned that the hospital had a tray in its refrigerator specifically reserved for police blood samples and a special form for when blood is taken at the request of police.

Justice Pardu, in her dissenting opinion, wrote:

Co-opting extra blood samples was a serious breach by police. There are statutory regimes prescribed for the taking of breath or blood samples where impaired driving offences are suspected. These regimes must be well known to police. For police to sidestep these procedures by inserting themselves into an accused person’s medical care is a grave misstep.

Calutta’s lawyers have disclosed their intention to appeal this decision to the Supreme Court of Canada. Given that the Court of Appeal was a split decision, Calutta can automatically appeal the decision without seeking leave from the Court.

We will continue to follow any developments in this case as it proceeds to the Supreme Court of Canada in this blog. In the meantime, if you have been charged with an impaired driving 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 take all steps necessary to protect your best interests. We maintain a 24-hour emergency service line and offer free confidential consultation to all prospective clients.

 

 

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.

Man Sentenced to Life in Prison After Killing Woman Who Begged for It

Written on Behalf of Affleck & Barrison LLP

Joseph D’Arcy Schluter (“Schluter”) pleaded guilty to a reduced charge of 2nd-degree murder and was sentenced to life in prison in the shooting death of Cindy Enger (“Enger”).

Schluter admitted to fatally shooting Enger in the head 8 times with a .22 calibre firearm on January 22, 2016 after she begged him to kill her.

Both Schluter and Enger expressed their love for each other in a cellphone video taken just minutes before Enger’s death. Enger faced the camera and admitted she wanted to end her life due to pain. Schluter can be heard off-camera telling her that he loves her and Enger replied that she loves him too.

WHAT HAPPENED?

On January 24, 2016, police were called to Enger’s home by her ex-husband after he tried for two days to drop off their son at her home. When there was no response, police forced their way inside Enger’s home and discovered that she was dead.

The Crown prosecutor read an agreed statement of facts in Court before Justice Alan Macleod. According to the statement, Enger had suffered from chronic pain possibly related to a car accident. She had attempted suicide on one previous occasion, but was not successful.

Schluter and Enger had previously dated and then began spending time together again as friends in December, 2015. On numerous occasions, Enger tried to convince Schluter to kill her and make it look like an unsolved homicide. Schluter refused and tried to change Enger’s mind.

Schluter first brought a gun to Enger’s home on January 8, 2016, but he was not able to carry out the plan that they had come up with. Enger continued to beg Schluter to end her life.

On January 22, 2016 on his way to see Enger, Schluter stopped to buy a movie ticket as an alibi. When he arrived at her home, he continued to try to convince Enger to abandon the plan. They proceeded to her laundry room where Schluter inserted ear plugs, said a prayer, and proceeded to shoot Enger in the back of the head several times. Then Schluter vacated the premises, drove to his father’s home and burned his clothing and put the gun away.

Schluter pleaded guilty to second-degree murder after a plea deal was reached between the Crown prosecutor and Schluter’s lawyer. The two lawyers proposed a life sentence without parole for a period of 10 years. The Judge accepted these terms.

In his sentencing submissions, defence lawyer Steve Wojick submitted that this “ is not a case of hate, it is not a case of revenge, it is not a case of jealousy, it is not a case of monetary gain.”

Crown prosecutor Mike Ewenson was sympathetic to the situation that Schluter was in, but felt that he should have reached out for help and sought assistance.

Justice Macleod called the case “a very tragic, tragic event”.

 WHAT IS MURDER?

In Canada, there is no offence more serious than an allegation of homicide. This offence carries with it some of the most serious penalties available, if convicted. Homicide is defined in section 222 of the Criminal Code as follows:

222 (1)          A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

According to the Criminal Code, culpable homicide is murder when the person who causes the death either means to cause death or means to cause bodily harm knowing that it is likely to cause death (section 229).

First degree murder is premeditated. In order to be convicted of first degree murder, Crown prosecutors must prove that the accused took the life of another in the following situations:

  • When it is planned and deliberate;
  • When a police officer or prison worker is murdered; or
  • When it occurs during the commission of certain offences, such as sexual assault, kidnapping, hijacking, terrorism, intimidation or certain gang-related activities.

According to the Criminal Code, second degree murder is defined as all other murder other than first degree murder. Second degree murder is a deliberate killing that occurs without planning.

Anyone convicted of murder, in any degree, must be sentenced to imprisonment for life. An adult convicted of second degree murder typically serves prison time of 10 years to 25 years until he/she is eligible for parole, which is at the discretion of the judge. This can be found codified in section 745 of the Criminal Code.

Following time served in prison on a sentence for murder, the individual will continue to report to a parole officer for the rest of his/her life. If any of the conditions set by the court for release on parole are not met, there is no hearing and the individual will return to jail.

If you require a lawyer for any type of homicide offence, or any other serious criminal charge, the lawyers at Affleck & Barrison LLP can help. Contact our office online or at 905-404-1947 to speak with one of our experienced lawyers who can handle your case. We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Sexual Offender Sentenced to 15 Years After Putting Woman in Coma

Written on Behalf of Affleck & Barrison LLP

Denzel Dre Colton Bird, (“Bird”) 21-years-old, pleaded guilty to aggravated sexual assault, breaking and entering and theft last fall. On June 15, 2018, he was sentenced to 15 years in jail for striking a woman from behind with a metal pipe, dragging her into an alley and sexually assaulting her in Alberta.

The victim cannot be identified under court order.

WHAT HAPPENED?

In September 2016, the 25-year-old woman was walking to work in the dark at approximately 6:30 a.m. when she was attacked by Bird. The attack caused multiple skull fractures and broken facial bones. She was discovered by two men who found her hanging halfway out of a garbage can and was taken to hospital with life-threatening injuries. Due to the multiple skull fractures and bleeding on her brain, her doctors put her into a medically induced coma for several weeks. After coming out of her coma, she had to learn how to walk and talk again. She was released from hospital in late January 2017.

Earlier on the morning of the attack, Bird had broken into a garage where he stole the pipe that he used in the attack and a jacket. Police found the victim’s blood on Bird’s shoes and on the stolen jacket.

WHAT HAPPENED DURING SENTENCING?

In her victim impact statement, the woman wrote that there were times that she wished she had not survived the attack. She stated that she did not feel that she is the same person since the attack. She described herself as a survivor, but admitted she continues to struggle with her emotions, has trouble with her balance and contracted a sexually transmitted disease from Bird.

The Crown prosecutor requested 20 years in prison for Bird.

Justice Jerry LeGrandeur sentenced Bird to 15 years in jail. Bird was given 2 ½ years of credit for time already served in jail.

Justice LeGrandeur held that the viciousness of the attack on the woman was an aggravating factor.

The consequences of this criminal act were profoundly physically and mentally disabling for the victim and emotionally traumatic and debilitating for her husband and family members.

LeGrandeur also acknowledged that there were mitigating factors when determining the best sentence for Bird. These factors included his youth, his guilty plea and the fact that he was remorseful.

LeGradeur also referred to the Gladue report during sentencing. This report examines an Indigenous offender’s upbringing and background and how it may have played a part in their actions. Bird’s lawyer submitted that his family were survivors of residential schools, he never met his father, he showed symptoms of fetal alcohol spectrum disorder, he had substance abuse issues and had never received any counseling or treatment, he was abused as a child and has a lower than average intelligence.

WHAT IS A GLADUE REPORT?

A Gladue report gets its name from the 1999 Supreme Court of Canada decision R. v. Gladue. A Gladue report is a type of pre-sentencing and bail hearing report that a court can request when considering sentencing an offender of Indigenous background under section 718.2(e) of the Criminal Code. This section specifically directs courts to exercise restraint, and to consider the particular situation of Indigenous persons when determining the sentence to be imposed for crimes committed by those who self-identify as Indigenous people.

A Gladue report will inform the judge about the personal circumstances of the offender, including information such as:

  • where the individual grew up (on-reserve, off-reserve, rural, urban);
  • where the individual lives;
  • whether or not the individual or members of their family have been in foster care;
  • whether the individual or family members attended residential schools;
  • whether they have struggled with substance abuse, been affected by someone else’s substance abuse or grown up in a home with substance abuse or addictions;
  • whether or not there are counseling programs or rehabilitations programs in the community; and
  • whether or not the individual participates in community cultural events and ceremonies.

The intention behind this approach is to lead to a restorative justice remedy and will often allow for a sentence with no jail time, which helps reduce the over-representation of Indigenous people in Canadian jails. According to a Statistics Canada report released on Tuesday, Indigenous people comprised 27% of the federal prison population in 2016-2017 despite the fact that Indigenous people make up only 5% of Canada’s population.

A restorative justice remedy is one that emphasizes healing the harm done by the offence and rehabilitating the offender to avoid future harms. This is in keeping with Indigenous views of justice.

If you have been charged with a sexual assault 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.

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.