Recent decision

Reduced Sentence for Drunk Driver Who Killed Three

Written on Behalf of Affleck & Barrison LLP

The driver of a vehicle who was involved in deadly car accident has had his sentence reduced from nine years to seven years by the Ontario Court of Appeal who found that the trial judge erred in reviewing punishments imposed in similar cases.

WHAT HAPPENED?

On April 10, 2016, Prithvi Randhawa (“Randhawa”), 22 years-old at the time, drove his vehicle, including four friends, at a high rate of speed through a residential neighbourhood after a night of drinking at Luxy night club in Concord.  Randhawa was found to have twice the legal limit of alcohol in his system.

Travelling at 135 km/h on Jane Street, Randhawa collided with a traffic signal pole near Sheppard Avenue West, the vehicle went airborne and crashed upside down.  The four passengers were all ejected from the vehicle.  Three of them died and one was serious injured.  The passengers ranged in age between 19 to 24 years-old.

The surviving passenger, Atul Verma, suffered a traumatic brain injury, a fractured ankle, knee damage, a lacerated liver and lumbar spine fractures.  At the time of the trial, he continued to suffer from constant pain, sleepless nights and the deprivation of some of the activities that he used to enjoy.

As a result of the crash, Randhawa sustained a traumatic brain injury and collapsed lung.   He regained consciousness in hospital two days following the accident.  Due to the injuries he suffered, he lost all memory of the events starting from his time inside the nightclub until he regained consciousness.

Randhawa was found guilty of three counts of impaired driving causing death and one count of impaired driving causing bodily harm.  Justice James Chaffe sentenced him to nine years in jail and a driving ban of 93 months.

Justice Chaffe reviewed three similar cases before imposing a sentence.  He held that Randhawa’s conduct was “egregious” and worse than the cases he reviewed. One of the cases reviewed by Justice Chaffe was the sentencing of Marco Muzzo who killed three children and their grandfather while impaired in 2016.  The sentence Justice Chaffe imposed on Randhawa was a year less than the sentence in the Muzzo case.

THE APPEAL

Randhawa appealed Justice Chaffe’s sentencing decision arguing that the trial judge erred in determining his sentence within the ranges available.  More specifically, it was argued that the sentencing judge failed to consider or misconstrued facts regarding other similar cases when considering an appropriate sentence.

On behalf of the Court of Appeal, Justice Nordheimer found that Justice Chaffe failed to explain why Randhawa’s offence was worse than two of the cases that he had reviewed.  Justice Nordheimer stated:

I am unable to find a basis upon which the sentencing judge’s finding could be supported.  This is of concern because, as I have said, it is this finding that clearly drove the sentencing judge to determine that a sentence of nine years was appropriate.

Justice Nordheimer ruled that Randhawa’s conduct was most similar to two of the cases under consideration, involving impairment, driving too fast and multiple deaths.  Justice Nordheimer also found that the sentencing judge failed to give consideration to Randhawa’s young age and the fact that Randhawa suffered very serious injuries, including a traumatic brain injury, in the crash.

Randhawa also argued that the sentencing judge did not consider that he will be facing numerous civil lawsuits arising from the accident, and subject to large judgments.  Justice Nordheimer did not find this to be an error made by the sentencing judge and is not a mitigating factor that is required to be considered when determining a sentence.

In a dissenting opinion, Justice Alexandra Hoy was of the opinion that the sentencing decision was appropriate.  She felt that it was within Justice Chaffe’s discretion to conclude that Randhawa’s conduct was more egregious than the drivers in two of the cases.  Furthermore, Randhawa was driving even faster than Muzzo and in a busier area.  She also made note that Randhawa had a worse driving record than Muzzo, including infractions for speeding and running a red light. 

If you have been charged with a driving related offence or have questions regarding your legal rights, please contact the knowledgeable criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Joyriding Teen Pleads Guilty to Manslaughter in 2011 Police Death

Written on Behalf of Affleck & Barrison LLP

A young man, known only as S.K., has recently pleaded guilty to charges of manslaughter for the death of York Regional Police Constable Garrett Styles. 

Following an appeal of his conviction and sentence, the Court of Appeal ordered a new trial for S.K.  Both the Crown prosecutors and lawyers for S.K. agreed on a plea deal.  S.K. was sentenced to two years probation and several conditions are in place regarding his operation of a motor vehicle. 

WHAT HAPPENED?

On June 28, 2011, 15 year-old S.K. took his father’s minivan for a drive with his friends, without his parents’ consent.

At 4:45 a.m., S.K. was stopped by Constable Styles for traveling 147 km/h in an 80 km/h zone.  S.K. was advised that the minivan would be impounded and he was repeatedly ordered to get out of the vehicle.  S.K. refused and pleaded with the officer to let him go.  Constable Styles proceeded to open the driver’s door and attempted to undo S.K.’s seat belt.  At that point, S.K.’s van began to move and Constable Styles was caught between S.K. and the steering wheel.  Constable Styles eventually jerked the steering wheel to the left causing the van to leave the highway, enter a ditch, proceed up an embankment, become airborne and roll 360 degrees.  Constable Styles was ejected from the van, which then fell on top of him.  He was pronounced dead shortly after arriving at the hospital.

As a result of this incident, S.K. suffered a spinal fracture that rendered him quadriplegic.

S.K. was charged with first-degree murder.  The key question at the trial was whether S.K. intended to drive away (alleged by the Crown prosecutor) or whether he accelerated by accident (alleged by the defence). 

S.K. was tried and a jury found that he intentionally accelerated and should have known that his actions were “likely” to lead to the death of the police officer.  S.K. was convicted and was sentenced to one day in custody in addition to time served (8 months) and a conditional supervision order for nine years to be served in the community. 

THE APPEAL

S.K. appealed his conviction on 5 separate grounds alleging that the trial judge made several legal errors. 

The three judge panel all agreed that the trial judge erred in failing to instruct the jury of the importance of S.K.’s age and level of maturity in assessing whether he knew his dangerous driving was likely to cause Constable Style’s death.

Justice Janet Simmons wrote:

This was a tragic case in which a police officer was killed as a result of the irresponsible acts of a headstrong 15-year-old.  In these circumstances, it was necessary for the trial judge to caution the jury that 15-year-olds do not have the same life experience as adults and that, as a result, a 15-year-old may not have the level of maturity to foresee the consequences of a particular course of action.

However, the judges of the appeal court panel disagreed as to whether the trial judge erred in excluding a statement that S.K. made to his father 26 days after the crash.  Following the crash, S.K. was intubated and unable to speak for three weeks. S.K. had told his father that he did not intentionally set the van in motion.  S.K.’s lawyers sought to introduce the statement as evidence of his state of mind during the police incident, however, the judge ruled against it.

Justice Simmons held that the statement should have been admitted “to respond to an implicit allegation of recent fabrication and to provide overall context for the jury about what the appellant had said close in time to the incident.” 

On the other hand, Justice Michael Tulloch and Justice David Brown ruled that the trial judge had made the right decision in not admitting the statement as evidence. 

On October 1, 2019, the appeal court allowed the appeal, set aside S.K.’s conviction and ordered a new trial.

GUILTY PLEA

Earlier this month, York Regional Police Services released a statement to confirm that a plea agreement had been reached between the Crown and S.K.  In coming to this decision, the Crown considered whether the family of Constable Styles could bear another trial and the impact another trial would have on witnesses, including first responders. 

Following numerous discussions between the parties, S.K. agreed to plead guilty to manslaughter and was sentenced to two years probation and conditions were placed on his ability to operate a motor vehicle.

If you have been charged with a driving related offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Alberta Court of Appeal Sets Minimum Sentencing for Fentanyl Trafficking

Written on Behalf of Affleck & Barrison LLP

As the country copes with the opioid crisis, the highest court in Alberta has now set a new sentencing starting point for those convicted of fentanyl trafficking.  The court recognized the peril that Alberta is in and stressed that it is up to the courts “to protect the public by imposing sentences that will alter the cost-benefit math performed by high-level fentanyl traffickers”.

A special five-justice panel of the Alberta Court of Appeal heard two appeals by the Crown prosecutor regarding fentanyl trafficking and unanimously ruled that convictions for wholesale fentanyl trafficking should receive a minimum sentence of nine years.

THE APPEAL DECISION REGARDING CAMERON PARRANTO

Last year, Cameron O’Lynn Parranto (“Parranto”), who pleaded guilty, was sentenced to 11 years in prison for trafficking in fentanyl in Edmonton.  Police seized the equivalent of a half-million doses of fentanyl.

Parranto pleaded guilty to possession for the purpose of trafficking in fentanyl and other drugs for two sets of offences. 

After a search warrant was executed at Parranto’s home, police recovered 27.8 grams of fentayl, 182.5 grams of methamphetamine, 82.6 grams of cocaine, 396 morphine pills and 168 oxycodone pills.  They also found $55,575 in cash, a loaded handgun, ammunition, police and sheriff badges, body armour, a dozen cell phones, scales and a cash counter.

Following Parranto’s release for his first set of offences, he was arrested three months later when greater quantities of fentanyl, methamphetamines, cocaine, heroin, oxycodone and the date rape drug GHB were uncovered. 

Parranto pleaded guilty to both sets of offences and was handed an 11-year sentence for eight offences, five years for the March 2016 offences and 6 years for the October 2016 offences. 

The court of appeal increased Parranto’s sentence to 14 years, minus credit of 3 ½ years for pre-sentence custody.

THE APPEAL DECISION REGARDING PATRICK FELIX

Earlier this year, Patrick Felix (“Felix”), a wholesale drug trafficker in Fort McMurray, was sentenced to 7 years in prison for his role in trafficking fentanyl after pleading guilty.  Investigators seized approximately $1 million worth of drugs and 3,000 fentanyl pills.

Felix obtained drugs and stored them at a “stash” location.  He employed “runners” to take orders, retrieve the drugs from the stash location and complete the deals.  “Food bosses” were also used to manage the runners, collect money from the sales and then provide Felix with the proceeds.

In 2015, Felix sold drugs to an undercover police officer on six separate occasions.  Felix provided 2,388 fentanyl pills and 2.5 kilograms of cocaine for a total price of $173,400. 

At trial, Felix pleaded guilty to four counts of trafficking in fentanyl and cocaine.  He was sentenced to seven years for each count of fentanyl trafficking and four years for each count of cocaine trafficking to be served concurrently.  A concurrent sentence occurs when all sentences are served at the same time, with the longest sentence period controlling the length of time in jail. 

The Crown prosecutor appealed the sentence and requested that the appeal court establish a minimum sentence for those convicted of wholesale trafficking in opioids.  On appeal, the Crown also argued that the trial judge made “case-specific errors that affected the fitness of the sentence imposed”. 

At the appeal, Justice Antonio wrote that the sentence imposed by the trial judge was “demonstrably unfit” in part due to the judge’s failure to distinguish between commercial trafficking and wholesale trafficking and failing to take into account Felix’s role in the organization.

Justice Antonio, writing on behalf of all the judges on the bench, stated:

Mr. Felix’s role was at the top of his organization, which is a weighty aggravating factor.  He energetically ran a business that was structured to maximize profit while minimizing the chance of criminal consequences to himself.  He was responsible for pouring poison into his own community and potentially others, jeopardizing the health and lives of untold numbers of end users.

Trafficking in cocaine has a four-and-a-half year starting point for sentencing.  A starting point for sentencing of a low-level commercial dealer of heroin is typically five years. 

The court will take into account the dangerousness of the drug and the scale of the offender’s involvement in the drug operation when establishing a minimum sentence for those convicted.  The court of appeal found that wholesale trafficking is more morally blameworthy than commercial trafficking as it presents a grave danger to individuals, communities and the greater public interest.  The appeal court defined wholesale trafficking as one that traffics large amounts of one or more drugs or distributes drugs on a large scale, possibly for resale.

Given the appeal court’s comments, the Crown was successful on appeal and set a starting point for those found guilty of commercial trafficking at nine years.  Felix’s overall sentence was increased by the court to 10 years.

If you have been charged with a drug related charge or have questions regarding 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. 

Drug Conviction Overturned on Appeal as Police Delayed Access to Lawyer

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has overturned Daniel Marlon Noel’s conviction for drug offences.  The court found that Durham Regional Police breached his Charter rights by not allowing him to promptly speak to a lawyer on the night of his arrest.

WHAT HAPPENED?

On December 21, 2015 at 10:28 p.m., Durham Regional Police entered a residence where Daniel Marlon Noel (“Noel”), his partner and his brother were living pursuant to a search warrant.  All three individuals were suspected of operating a small-scale cocaine trafficking operation, which was under investigation by Durham Regional Police.  That evening, Noel was arrested at gunpoint by Officer Aiello in a bedroom containing his belongings and identification.  Officer Aiello did not advise Noel of his right to counsel.

Noel was taken to a central location in the house and within five minutes of the police’s entry into the residence Officer Gill read him his rights to counsel.  Noel asked to speak to a lawyer, however, no efforts were made to allow for his right to counsel.

The police search of Noel’s bedroom recovered $5,670 Canadian, $71 U.S., 73 grams of cocaine, 55 grams of marijuana and a digital scale.

Noel was transported to the police station at 11:04 p.m. and arrived at the station at 11:10 p.m.  Officer Gill testified that, while being led to the transport vehicle, Noel admitted ownership of the drugs and claimed that his brother was not involved. 

At 12:48 p.m., Officer Capener placed two calls to duty counsel for Noel and his partner, Stacey Long, and left messages requesting a return phone call. 

At 1:25 a.m., Noel learned that his brother had received a call from duty counsel.  Officer Westcott left another message for duty counsel to call Noel.

At his trial, Noel alleged the following Charter breaches:

  • That the entry to his home violated section 8 (right to be secure against unreasonable search and seizure);
  • That his arrest violated section 9 (right not to be arbitrarily detained); and
  • That his right to counsel was breached which violated section 10(b) (right to retain counsel without delay).

The trial judge rejected all arguments regarding Charter violations, except that Noel’s right to counsel without delay was violated.  However, Noel was denied the exclusionary remedy that he sought under the Charter, the evidence was admitted and Noel was convicted of the drug offences.

THE APPEAL

Noel appealed his conviction and argued on appeal that the trial judge erred in failing to find breaches of his Charter rights. 

The appeal court concluded that there was a violation of section 10(b) of the Charter and found that the police had a “cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay”.  Furthermore, the police could not provide a reasonable explanation for the delay. 

The appeal court wrote:

Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide.  … [Noel] asked to speak to counsel promptly but that right was denied. … We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel’s right to counsel without delay.

The appeal court allowed Noel’s appeal, set aside his convictions and substituted a verdict of acquittal. 

RIGHT TO COUNSEL

The right to counsel is one of the most important and recognized rights provided by the Canadian Charter of Rights and Freedoms.  Section 10(b) of the Charter provides:

10.       Everyone has the right on arrest or detention: 

b.         to retain and instruct counsel without delay and to be informed of that right.

The rights afforded under this section are designed to inform a detained individual of the scope of their situation and to ensure that legal advice is available. 

The right to counsel consists of an informational and an implementational component.  Thus, a detained individual must be informed of the right to counsel and this right must be understood by the individual (i.e. an interpreter may be required).  The implementational component involves the obligations and restrictions upon the police in conducting their investigation once the right to counsel has been asserted. 

The right to counsel must be provided without delay.  This is often interpreted to mean immediately in order to protect the detainee from the risk of self-incrimination 

Police must advise the detainee of his/her right to counsel and explain the existence and availability of legal aid and duty counsel if one cannot afford or cannot reach a lawyer.  Thus, the right to counsel also has a corresponding right to retain counsel of one’s choice. 

When a detainee has exercised his/her right to counsel, police must refrain from trying to elicit further evidence and refrain from questioning the individual until he/she has had an opportunity to speak with counsel. 

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 to protect your rights and to ensure that you have access to justice at all times.

Supreme Court Rules that 18 Month Time Limits Also Apply to Youth Cases

Written on Behalf of Affleck & Barrison LLP

The highest court in Canada has ruled that the 18-month time limit required to bring an accused individual to justice, set out in the decision of R. v. Jordan, also applies to cases involving youth. 

According to Statistics Canada, there were 2,767 criminal cases that took longer than 12 months to complete in youth court in 2017-2018 (approximately 10% of all cases).  However, these numbers do not account for whether any of the delays were the result of actions on behalf of the defence.

WHAT HAPPENED?

In the case of R. v. K.J.M, a 15-year-old Alberta teen was charged with various offences arising out of fight that occurred during a house party in 2015.  K.J.M. was accused of stabbing a teen with a box cutter while intoxicated.  At his trial, K.J.M.  was found guilty of aggravated assault and possession of a weapon for a dangerous purpose almost 19 months after charges were first laid against him.  By the time his trial concluded in November 2016, K.J.M was nearly 17-years-old. 

Although the trial judge found that the total delay exceeded the 18-month ceiling, K.J.M.’s Charter application was dismissed as “it was not the clearest of cases where a stay should be granted”.  This decision was appealed to the Court of Appeal where it was again dismissed by the court and each of the three judges took a different approach in their reasons as to whether the 18-month ceiling applies to youth cases.

WHAT IS THE PRESUMPTIVE 18-MONTH CEILING?

We have previously blogged about the 2016 R. v. Jordan decision wherein the Supreme Court ruled that unreasonable delays in criminal cases violate an individual’s guaranteed rights under the Charter of Rights and Freedoms.

The Supreme Court specifically spelled out the rule that court proceedings could not exceed 18 months for provincial court cases and 30 months for more serious cases heard before the Superior Court.

However, the Jordan decision did not specifically address whether these timelines apply to individuals under the age of 18 who fall under the youth court system. 

THE SUPREME COURT RULING IN R. v. K.J.M.

In a 5-4 decision, the majority of the Supreme Court concluded that there is no evidence that the youth criminal justice system is suffering from the same delays as the adult system that would justify setting a lower ceiling for youth cases. 

Justice Michael Moldaver, on behalf of the majority, wrote:

Unless and until it can be shown that Jordan is failing to adequately serve Canada’s youth and society’s broader interest in seeing youth matters tried expeditiously, there is in my view no need to consider, much less implement, a lower constitutional ceiling for youth matters.

The majority of judges of the Supreme Court found that although K.J.M.’s trial exceeded the 18-month timeline, some of the delays were caused by the defence and therefore dismissed his appeal.

Three judges of the Supreme Court offered a dissenting opinion and concluded that a 15-month time limit would be appropriate for cases of young offenders.  Writing on behalf of the dissenting judges, Justice Rosie Abella and Justice Russell Brown wrote:

Doing so gives effect to Parliament’s intention in enacting a separate youth criminal justice system, to Canada’s international commitments, to the recognition in pre-Jordan case law that youth proceedings must be expeditious, and to the consideration that led to setting the presumptive ceilings for adults in Jordan.  … Just as the court in Jordan determined the appropriate ceiling for adult proceedings, a separate analysis is required for youth proceedings.

Graham Johnson, K.J.M.’s lawyer, is of the opinion that timely trials profoundly impact young people and delays can impact the prospect of rehabilitation. Johnson argued that a 12-month limitation for youth court proceedings would be more appropriate.  Mr. Johnson told CBC News:

In Canada, children as young as 12 can be charged with a criminal offence, and if it takes 18 months to get the case to court and there’s a guilty verdict, you’re then punishing a 14-year-old for what the 12-year-old did.  And there’s a certain, in my view, injustice in that, given how quickly children develop, mature and can change their behaviour.

Mary Birdsell, executive director of the organization Justice For Children and Youth, who was an intervenor in this case and advocated for lower time limits for youth court proceedings was disappointed with the Supreme Court ruling.  Ms. Birdsell stated:

Speedy justice is really important for young people because their sense of time is different, because their development is ongoing, and because you want to capture the moments for addressing underlying consequences in meaningful ways.

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.

Man Sentenced to 6 Years in Prison for Impaired Operation of Canoe

Written on Behalf of Affleck & Barrison LLP

Last summer, David Sillars (“Sillars”), became the first Canadian to be convicted of impaired driving charges while paddling a canoe.  He was recently sentenced to six years in prison for the April 2017 death of an eight-year-old boy.

We have previously blogged about a landmark ruling by an Ontario judge who decided that a canoe is a “vessel” for the purposes of the definition of vessel found in the Criminal Code of Canada, which includes the criminal charges of impaired operation of a vessel causing death, operation of a vessel over 80, and the dangerous operation of a vessel.

WHAT HAPPENED?

On April 7, 2017, Sillars took his girlfriend’s son, Thomas Rancourt (“Rancourt”), for a canoe ride down the Muskoka River to teach him how to paddle a canoe.  Sillars was intending to paddle in the direction of and to retrieve a blue barrel, which appeared to be wedged against a barrier by debris.  The canoe capsized and Rancourt was swept downriver and went over a waterfall at High Falls, and then drowned.  Sillars, on the other hand, swam safely to the shore.

In his lengthy decision, Justice Peter C. West set out the following key findings of fact based upon the evidence presented in court:

  • Temperatures were between 3 and 4 degrees Celsius on April 7, 2017;
  • School buses were cancelled due to slush and ice, resulting in poor road conditions on April 7, 2017;
  • The majority of the ice on the river had melted, although small chunks were visible, resulting in a reasonable inference that the river water was extremely cold;
  • The water levels of the river were very high on April 7, 2017;
  • The current in the river was fast-flowing and extremely strong;
  • The yellow barrier is a warning to caution boaters of the danger created by the water flowing towards the High Falls;
  • Sillars was cautioned by two experienced individuals who warned him of the dangerous water conditions;
  • Sillars did not agree to take or wear an adult sized lifejacket;
  • The PDF worn by Rancourt was too small for him, especially given that he was wearing three layers of clothing beneath it, including his winter jacket;
  • Sillars had consumed alcohol and THC prior to operating the canoe on April 7, 2017;
  • Sillars intention was to paddle to the yellow barrier to retrieve a blue barrel, which was clearly wedged in debris and partially submerged; and
  • Rancourt looked up to Sillars as a father figure, and this relationship created a duty of care for Sillars towards Rancourt.

Based upon the evidence, the court ruled that:

David Sillars’ decision to canoe towards the yellow warning barrier, during the spring run-off with the described dangers and risks…, with the sole purpose to retrieve a blue barrel, partially submerged and wedged against the yellow warning barrier by other debris, was a significant contributing cause of Thomas Rancourt’s death.  …[B]ut for the decision of Mr. Sillars to go to the yellow barrier, Thomas Rancourt would not have fallen out of the canoe and wound not have gone over the waterfalls and drowned. 

With respect to the issue of impaired paddling, the court considered whether Sillars’ drinking impaired his ability to operate a canoe (Sillars’ minimum blood-alcohol content was 128 milligrams of alcohol in 100 mililitres of blood and he had 14 nanograms of THC in his blood).  The court concluded that Sillars’ intellectual abilities, specifically his reaction time, decision making abilities and his ability to respond to an emergency situation, were impaired by his consumption of alcohol.

The fact that Sillars ignored warnings by two individuals as to the potential danger of canoeing in the conditions on the river, refused to wear an adult lifejacket and failed to bring the required safety equipment in the canoe demonstrated to the court that he overestimated his canoeing abilities and underestimated the level of risk he was enduring, which further demonstrated how the alcohol and marijuana impaired his decision making abilities.

THE SENTENCING

Justice West found Sillars guilty of all four charges he was facing and was sentenced in October, 2019.  The Crown asked the court for a jail sentence of six to eight years and an order prohibiting Sillars from operating a vessel for 20 years.  Sillars’ defence team asked the court for a two-year jail term.

Justice West described numerous aggravating factors that he considered when deciding on the terms of Sillars’ sentence.  The fact that Sillars was in a position of trust and authority in relation to Rancourt was one such factors, as well as his previous criminal record. 

In his reasons, Justice West commented on how this is a “unique” case as there are no precedent cases of criminal negligence causing death or impaired operation causing death in the case of a capsized canoe.  However, Justice West used precedent cases of those who have been found guilty of operating a motor vehicle while impaired and sentenced Sillars to six years in prison, an order requiring that samples of bodily substances be taken for the purposes of forensic DNA analysis  and an order prohibiting Sillars from operating a vessel for 10 years.

Justice West stated:

In my view general deterrence and denunciation are particularly important in cases where alcohol or drugs have impacted an offender’s ability, as in this case, to operate a vessel and the factor that a motor vehicle was not … involved makes no difference.

Sillars has already filed an appeal and has been released on $1,500 bail pending his appeal.  He must remain at home under house arrest and abstain from drinking alcohol. 

We will continue to follow any developments that may arise in this case and will report any updates in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact Affleck Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Supreme Court Rules that Offender Has the Right to Lesser of Two Penalties Available at the Time of Commission of the Offence or Sentencing

Written on Behalf of Affleck & Barrison LLP

In a recent ruling by the Supreme Court of Canada, the Court determined that a convicted individual is entitled to the lesser of two punishments, either the one in effect when the offence took place or the one in effect at the time of sentencing.  This decision overturned the Quebec court’s decision that a convicted offender has the right to the least harsh punishment in effect from the time of the offence until the sentencing.

WHAT HAPPENED?

In the case of R. v. Poulin, the accused was convicted in 2016 of sexual assault and acts of gross indecency from incidents occurring between 1979 to 1987.  Poulin was found guilty of offences against a child between the ages of seven and fifteen.  Crown prosecutors asked for a prison term of 3 ½ to 5 years.  Poulin’s defence team requested a conditional sentence given Poulin’s advanced age (82 at the time) and his poor health.  A Quebec court sentenced Poulin to a conditional sentence of two years less a day, to be served in the community, for the charges of gross indecency.

The Crown was unsuccessful in its appeal to the Quebec Court of Appeal and the decision was appealed to the Supreme Court of Canada.

At issue in this appeal was the interpretation of section 11(i) of the Charter of Rights and Freedoms, which reads as follows:

11.  Any person charged with an offence has the right:

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

The question is whether this provision signifies a comparison of the lesser sentence at two relevant times (i.e. the commission of the offence and the sentencing of the offence) or whether the provision signifies a consideration of variations between the time of the commission of the offence and the sentence.

The judges of the Supreme Court split their decision 4-3 and concluded that Poulin was not eligible for the conditional sentence as it did not exist either at the time of the offence or at the time of his sentencing (it only existed temporarily between these two points in time).

Justice Shellah Martin, writing on behalf of the majority of the court, stated:

The legal rights reflected in our Charter represent the core tenents of fairness in our criminal justice system.  The right to comb the past for the most favourable punishment does not belong among these rights. 

The majority of the court found that the language of section 11(i) of the Charter suggested the application of a “binary approach”, as opposed to a “global approach”.  The binary approach would not permit Poulin to be granted a conditional sentence as it was neither in force at the time of commission or at the time of his sentence. The global approach would permit Poulin to be granted a conditional sentence because it was in force for a period of time between the commission of the crimes and his sentence. 

HOW ARE SENTENCES IMPOSED?

If an accused either pleads guilty or is found guilty at trial, a Judge must impose a sentence that is fair given the circumstances of the offence, the seriousness of the offence and the offender’s degree of responsibility.

The Court will consider both aggravating and mitigating factors relating to both the offender and the offence itself. 

Aggravating factors are those that the court relies upon which may increase the sentence, which may include:

  • Your criminal record;
  • The facts of the offence (i.e. your role in the crime, whether you have committed the crime on multiple occasions, whether a weapon was used and how, whether property was damaged or money was taken);
  • The impact of the crime on the victims (i.e. whether the crime involved a person under the age of 18 years, whether the victim’s health was seriously harmed, whether the victim received permanent physical or psychological injury, whether the victim experienced financial harm due to the crime); and
  • Your association with other criminal organizations (i.e. the crime was committed for the benefit of a criminal organization or committed as an act of terrorism).

Mitigating factors are those that the court relies upon to lighten the sentence, which may include:

  • The absence of a criminal record;
  • The facts of your offence (i.e. your role in the crime, co-operation when you were arrested, addiction or mental health issues);
  • How you’ve behaved since the crime (i.e. whether you have taken steps to address addiction or mental health issues, whether you have followed the release order or volunteered or given money to charity to repair the damage you have caused); and
  • Your personal circumstances (i.e. age, health, cultural background, education, work history and potential work opportunities, children and dependents).

The Court will take all of these factors into account when determining an appropriate sentence in an effort to maintain a just and safe society for all Canadians.

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

Changes to Jury Selection Upheld in Ontario Court

Written on Behalf of Affleck & Barrison LLP

An Ontario Superior Court of Justice has ruled that the changes to peremptory challenges of jurors should be applied to jury selection beginning September 19, 2019. 

The decision in R. v Chouhan upholds the constitutionality of the new legislation found in Bill C-75 that removed the ability for lawyers to challenge potential jurors.

WHAT HAPPENED?

On September 19, 2019, Pardeep Singh Chouhan was scheduled to select a jury for a first-degree murder trial.  This was also the day that Bill C-75 came into force. 

The amendments set out in Bill C-75 reform the procedure for jury selection in the following three ways:

  1. The trial judge will be the one to determine whether the prospective juror is likely to decide the case impartially in the circumstances when either party has challenged the juror for cause.  Previously, the court used lay triers to make this determination.
  2. The ability to challenge prospective jurors by means of peremptory challenges by either party has been eliminated.
  3. The trial judge has been given the discretion to stand aside a juror for the purpose of maintaining public confidence in the administration of justice.

In court, Chouhan’s lawyers argued that the provisions of Bill C-75, specifically the elimination of peremptory challenges, violates sections 7 (the right to life, liberty and security), 11(d) (the right to be presumed innocent until proven guilty) and 11(f) (the right to trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment) of the Charter of Rights and FreedomsChouhan’s lawyers argued that the new procedures would breach their client’s right to an independent and impartial jury by giving the trial judge the discretion to make the determination in circumstances of either party challenging the juror for cause.

Justice John McMahon concluded that Bill C-75 does not violate an individual’s rights under the Charter.  Justice McMahon wrote in his decision:

The ability to exclude a potential juror based simply on their appearance, their look, or a person’s gut feeling, without furnishing a reason, is not transparent.  The elimination of the peremptory challenge does make the justice system more transparent, but without removing either parties’ ability to set aside potential jurors for articulate reasons.  The representativeness of the panel, the randomness of its selection and the ability for either party to challenge the process provide sufficient safeguards.

Justice McMahon held that an accused is not entitled to a jury that “reflects the proportionality of the population” or those of members of the same demographic group.  He concluded that there are safeguards in place to ensure that the jury remains independent and impartial, including the ability to screen prospective jurors for bias and the trial judge’s ability to excuse or reject prospective jurors for specific reasons.  He explained:

It appears that if either party can articulate reasons why a prospective juror would not be impartial, the judge would clearly have the ability to stand aside a prospective juror to maintain public confidence in the administration of justice.

Chouhan’s lawyers also argued that the changes to jury selection should not apply to those whose alleged offence occurred before Bill C-75 came into force.  Justice McMahon dismissed this argument and maintained that the new rules should be applied for every jury selected after they went into force, including Chouhan’s pending trial.

WHAT IS THE NEW LAW REGARDING JURY SELECTION?

Section 634 of the Criminal Code provided the rules for peremptory challenges.  Bill C-75 was established by the government in an effort to make juries more representative following the divisive acquittal of Gerald Stanley.  We have previously written a blog regarding the case of Stanley, who was charged with second-degree murder in the death of an Indigenous man, Colten Boushie.  In this case, there were no Indigenous members sitting in the jury.

Bill C-75 includes the removal of peremptory challenges from the jury selection process.  Peremptory challenges were a means by which lawyers for both the prosecution and defence could dismiss a certain number of prospective jurors, without any explanation.  The number of peremptory challenges allowed to a given party depended upon the seriousness of the crime, the number of jurors and whether there are co-accused.  Some believe that this process was used to ensure a particular composition of the jury.

Under the provisions of Bill C-75, lawyers have the ability to disqualify prospective jurors that they believe cannot be impartial.  However, under the new provisions, the judge makes the final decision.  This change is meant to address a growing concern that the jury selection process may discriminate unfairly against potential jurors. 

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.

Couple Found Not Guilty in Death of Son

Written on Behalf of Affleck & Barrison LLP

We have previously written in this blog about the criminal case involving the Alberta couple, David and Collet Stephan, who were charged with failing to provide the necessaries of life to their 19-month-old son Ezekiel, who died in 2012.  At their second trial, a judge last week found the couple not guilty.

WHAT HAPPENED?

The Stephans testified that they believed their son was suffering from an upper airway infection (i.e. croup).  They treated him at home with natural remedies, which included a smoothie made of garlic, onion and horseradish.  They also used cool air and a humidifier to help with his breathing.  Ezekiel’s condition seemed to get better one day, then worse the next day, then better again.

On March 12, 2012, Ezekiel’s body remained stiff and he was unable to drink on his own.  Terry Meynders, a registered nurse, attended at the Stephans’ home and suggested to the couple that Ezekiel may have viral meningitis and that he should be taken to a doctor. 

On March 13, 2012, after Ezekiel stopped breathing a few times, the Stephans called for an ambulance.  The breathing equipment available in the ambulance was too large for a small child and he went without oxygen for nine minutes.  Ezekiel attended two area hospitals and was then transported to Alberta Children’s Hospital Calgary, where he was put on life support and died a few days later.

HISTORY OF THE CRIMINAL PROCEEDINGS

At their original trial in 2017, a jury convicted the Stephans of failing to provide the necessaries of life to their son contrary to section 215(2)(b) of the Criminal Code.  David Stephan was sentenced to four months in jail and his wife was sentenced to three months of house arrest.

This trial decision was upheld on appeal and the ruling was further appealed to the Supreme Court of Canada.  The highest court in Canada quashed the Stephans’ convictions and ordered a new trial (please see our blog regarding this decision).

A new trial began on June 3, 2019 before Justice Terry Clackson of the Court of Queen’s Bench, without a jury, lasting over three months. 

WHAT HAPPENED AT THE STEPHANS’ SECOND TRIAL?

Although it was established that Ezekiel had meningitis, the following issues were in dispute at trial:

  • Whether Ezekiel had bacterial or viral meningitis;
  • Whether Ezekiel’s death was the result of meningitis or hypoxic injury (damage to cells resulting from decreased oxygen tension);
  • Whether the Stephans knew Ezekiel had meningitis;
  • Whether the Stephans, knowing that Ezekiel had meningitis, ought to have sought medical intervention.

Based upon the evidence before the court, Justice Clackson came to the following conclusions:

  • Ezekiel had viral meningitis;
  • Ezekiel did not die from meningitis, but from the lack of oxygen;
  • The Stephans did not know Ezekiel had meningitis, but were aware of the possibility and were monitoring his symptoms.

Given these findings, Justice Clackson found that the Stephans were not guilty of the charge against them.

According to Justice Clackson, section 215 of the Criminal Code does not impose a duty on parents or guardians to seek medical attention for every sick child.  A duty is imposed when there is a risk to the child.  Justice Clackson found that, based on the evidence before him, the viral meningitis that Ezekiel suffered from did not constitute a risk to his life.

Justice Clackson ruled that there was no physical evidence that Ezekiel died of meningitis, thus the Crown had failed to prove its case.  The evidence before the court informed that there is no specific means to effectively treat viral meningitis.  Therefore, the Crown did not prove that medical attention could have or would have saved Ezekiel’s life.  Clackson stated:

I have concluded that the Stephans knew what meningitis was, knew that bacterial meningitis could be very serious, knew what symptoms to look for … They thought their son had some sort of croup or flu-like viral infection. … The physical evidence supports … [the] conclusion that Ezekiel died because he was deprived of oxygen.  That occurred because he stopped breathing and the resulting oxygen deprivation lasted long enough to lead to his death.

In response to the verdict, the Alberta Crown Prosecution Service issued the following statement:

We respect the decision of the court.  This has been a challenging case for everyone involved.  The Alberta Crown Prosecution Service will review the decision to determine the next steps.  As such, no further comment will be provided.

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

In the meantime, if you are facing criminal charges or have 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 for your convenience.  We are available when you need us most.

Ontario Judge Strikes Down Mandatory Minimum Sentence for Indigenous Offender Convicted for Impaired Driving

Written on Behalf of Affleck & Barrison LLP

Justice Paul Burstein has declared that Canada’s impaired driving laws are unconstitutional.

Justice Burstein ruled in the case of R. v. Luke that the mandatory requirement for a criminal conviction of a first impaired driving offence violates the Charter of Rights and Freedoms protections against cruel and unusual punishment.

WHAT HAPPENED?

Morgan Luke (“Luke”) is a 22-year-old Indigenous woman from the Mississaugas of Scugog Island First Nation.  She was raised by her mother and maternal grandparents.  Her Aboriginal ancestry is derived from her father, who she did not see much as she was growing up.  He was a drug addict, alcoholic and had a lengthy criminal record. 

As she grew older, Luke began to spend time at the Scugog Island reserve, participating in cultural activities and working summer jobs.  She also had contact with her paternal family on the reserve.

Luke’s mother became ill when she was 15 years old, at which point she began spending more time with her father and moved to the Scugog Island reserve for 2 years.  She began abusing drugs and alcohol and dating an older man who was a serious drug addict.

On November 4, 2017, Luke took her mother’s car without consent.  She accelerated quickly out of the parking lot, causing the back of the car to slide out.  She overcorrected and the car hit a curb and left the ground.  The car landed on the sidewalk, just missing a lamp post. 

Luke proceeded along Highway 7A when she was stopped by the police.  The officer noticed a strong odour of alcohol on her breath and she admitted to having consumed alcohol.  She was arrested for impaired driving and breath tests showed that her blood alcohol concentration was almost three times the legal limit. 

According to Luke, she had been drinking all afternoon as she was upset after seeing her cousin with her boyfriend.

Following her arrest, Luke began counselling with two professionals associated with the Scugog First Nation.  She has stopped using drugs and alcohol and has plans to finish high school and become a youth worker on the reserve.

THE CONSTITUTIONAL ARGUMENTS

Luke pleaded guilty to the charge of driving while impaired by alcohol.  Section 255(1) of the Criminal Code provides a mandatory minimum sentence of a fine of not less than $1,000 to an individual who has been found guilty of impaired driving for the first time.  This would result in a conviction and a criminal record.

According to section 730 of the Criminal Code, a court may grant an absolute or conditional discharge when it is in the best interest of the individual and is not against the public interest.  A discharge of this nature does not result in a criminal conviction or a criminal record.   However, under this section of the Criminal Code, discharges are not available to offenders who have been found guilty of offences that hold a mandatory minimum punishment.

Luke challenged the constitutionality of section 255 of the Criminal Code as it applies to the sentencing in her case.  It was Luke’s position that section 255(1), which prevents the consideration of a discharge, violates her rights under the Charter.   It was argued that the legislation provides a mandatory minimum sentence rather than allowing for a consideration of a discharge, thus allowing a punishment that is “grossly disproportionate” to an otherwise appropriate sentence.

On the other hand, the prosecuting Crown lawyers argued that section 255 does not violate the Charter, given the seriousness of the offence of impaired driving.  Although the mandatory minimum punishment may seem disproportionate in some cases, it is not “grossly” disproportionate, which is the requirement for a Charter violation. 

It is well-established law that legislative provisions which provide mandatory minimum sentences that are “grossly disproportionate” to an appropriate sentence will be found to infringe the Charter.  A court must consider the following in these circumstances:

  1. What would be the appropriate sentence for the offence taking into account the circumstances of the offence and of the offender?
  2. Is the prescribed mandatory minimum sentence grossly disproportionate to the otherwise appropriate sentence for the offender?
  3. If not grossly disproportionate for the offender before the court, could “reasonable foreseeable applications” of the mandatory minimum sentence result in grossly disproportionate sentences for other hypothetical offenders?

If the court finds that the mandatory minimum sentence would be grossly disproportionate for either the offender or another hypothetical offender, it must find that the provision is inconsistent with section 12 of the Charter.

OFFENDER’S INDIGENOUS STATUS CONSIDERED IN RULING

Justice Burstein stated that the mandatory minimum sentence prevents him from considering several factors fundamental to a just and appropriate sanction, including:

  1. She is a young first time offender with strong rehabilitative potential;
  2. The offence was motivated by her alcohol addiction and her continued treatment is expected to effectively deal with this issue; and
  3. The offence was connected to her Aboriginal background and her Aboriginal heritage provides for rehabilitative and restorative sentencing options.

Justice Burstein found that imposing the shame of a criminal record for impaired driving would amount to a grossly disproportionate sentencing implication for Luke.  Justice Burstein wrote:

On the facts of this particular case, I find that it would not be contrary to the public interest to grant Ms. Luke a conditional discharge and thereby relieve her of the lasting consequences of a criminal record.  I am satisfied that a driving prohibition and two years of probation will adequately achieve the level of denunciation and deterrence required in this particular case, while still respecting the importance of Ms. Luke’s rehabilitative potential.

Justice Burstein granted Luke a conditional discharge with various conditions, including to attend counselling and treatment, perform community service work, attend school or maintain a job, and to only operate a motor vehicle when travelling to or from work, school or counselling appointments.

If you have been charged with impaired driving or any other driving offence, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer 24-hour phone service to ensure you have access to justice at all times.