Recent decision

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.

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

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

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

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

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

THE APPEAL

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

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

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

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

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

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

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

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

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

If you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.

Man Who Refused to Wear Condom Found Guilty

Written on Behalf of Affleck & Barrison LLP

Ontario Superior Court Justice Nathalie Champagne has ruled that if a man refuses to wear a condom against his partner’s wishes and after agreeing to do so, it is a sexual assault.  Anibal Rivera (“Rivera”) has been found guilty of committing sexual assault by proceeding to have unprotected sex after agreeing to wear a condom.

WHAT HAPPENED?

In October 2017, Rivera and a woman (who cannot be identified) met on a dating website and they agreed to meet at the woman’s home in Cornwall, Ontario for a sexual encounter. 

Prior to their “date”, the woman texted Rivera and advised him that condoms were mandatory and that “no means no”. Rivera agreed to these terms.

In court, the woman testified that during their encounter she repeated “her rules”, however, Rivera proceeded to have sex with her without a condom, insisting that he was “clean”.  He then left after a few minutes of small talk.

Rivera testified that the woman agreed to proceed without a condom as long as he did not ejaculate inside her. 

The woman went to the hospital the next day for an evaluation and various tests, including tests for pregnancy and sexually transmitted infections, and a sexual-assault kit.  A few days later, she contacted the police.

Rivera drafted a written statement before his first interview with police wherein he wrote that the woman had initiated unprotected sex.  However, on the witness stand during his cross-examination he admitted that he had lied in his written statement.

THE ISSUE OF CONSENT

The issue at trial was whether the complainant consented to intercourse without a condom.  Both the woman and Rivera testified in court.

In her ruling, Justice Champagne wrote:

This is a case of ‘he said, she said’ which raises issues of credibility and reliability.  … In assessing the evidence, if I believe the account of Mr. Rivera, I must acquit.  If I don’t believe Mr. Rivera but the evidence leaves me with a reasonable doubt, I must acquit.  If the evidence does not leave me in doubt the offence occurred, I must assess whether the evidence proves the offence beyond a reasonable doubt.  … Mr. Rivera’s evidence gives rise to serious issues regarding his credibility and reliability…

Although Justice Champagne did not believe Rivera’s claims that the complainant agreed to have sex without a condom, the Crown must still prove the alleged offence beyond a reasonable doubt.

The complainant testified to the following:

  • She agreed to a sexual encounter.
  • She insisted that condoms were required and “no means no”.
  • She told Rivera to put on a condom prior to intercourse and he didn’t.
  • She told Rivera to put on a condom a second time before the second act of intercourse and he didn’t.
  • Rivera had vaginal intercourse with her without a condom followed by forced oral sex, followed by vaginal and anal intercourse with her without a condom.

Justice Champagne found that the woman’s evidence that she insisted that Rivera wear a condom and would not agree to sex without it is consistent with the conditions she had described in her text to Rivera and consistent with her undergoing tests at a hospital the next day. 

The Judge found that the woman’s “evidence to be proof beyond a reasonable doubt that Mr. Rivera committed a sexual assault against her by failing to wear a condom and engaging in sexual intercourse with her”. 

Justice Champagne went even further to say that if there is any uncertainty that failing to wear a condom amounts to a sexual assault in these circumstances, the complaint’s consent was discredited by fraud. 

IMPACT OF THIS DECISION

Justice Champagne noted that she did not draw any negative conclusions regarding the fact that the Rivera and the woman made small talk after sex or that it took the woman a few days before contacting the police.  She stated:

It would be inappropriate for me to do so and would invoke myths and stereotypes about how victims of sexual assault should act.  … It stands to reason that a complainant might make small talk to keep things calm and avoid unwanted contact and it would not be unreasonable for a complainant to take some time to consider whether or not to proceed with a complaint given the stress and scrutiny of intimate details of one’s life involved in the criminal court process.

In my view, Mr. Rivera led the complainant to believe he would wear a condom as he had previously agreed to do so and at the last minute he penetrated her without a condom telling her it would be OK. … I find his failure to wear a condom increased the complainant’s risk of pregnancy and constitutes a significant risk of bodily harm … Her consent was therefore vitiated by this action.

Justice Champagne’s decision is being well-regarded as an example to be set to other judges in Canada. 

It is also in line with the proposed Bill C-337, introduced by former federal Conservative leader Rona Ambrose, requiring those seeking a federal judicial appointment to go through mandatory training on sexual assault law, including rape myths and stereotypes about victims and the impact of trauma on memory.

We will continue to follow any developments in the case law or legislation that may arise from this latest decision regarding sexual assault, rape myths and stereotypes in this blog.

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.

Re-Trial Underway for Couple Charged in Son’s Death

Written on Behalf of Affleck & Barrison LLP


The re-trial for David and Collet Stephan has begun in Lethbridge Provincial Court, in Alberta.  The couple are each facing one count for failing to provide the necessaries of life to their 18-month-old son Ezekiel, who died of bacterial meningitis in 2012.

WHAT HAPPENED?

The Stephans were found guilty of failing to provide the necessaries of life to their son at trial in 2016.  David Stephan was sentenced to four months in jail.  His wife, Collet, was sentenced to three months of house arrest.  She was only to be allowed to leave her home for medical appointments and to attend church.  They were also to be on probation for two years, and were ordered to complete 240 hours of community service.

The couple had used natural remedies to treat their son rather than take him to a doctor when he had become severely ill.  They made smoothies out of hot pepper, ginger root, horseradish and onion.  The Stephans finally called for medical assistance once their son stopped breathing.  Ezekiel was rushed to a local hospital, but died after being transported by air ambulance to a Children’s Hospital in Calgary. 

We have previously blogged about the outcome of the Stephan’s appeal to the Alberta Court of Appeal.  On appeal, the Stephans argued that their convictions should be overturned because the trial judge erred by allowing too many Crown experts to testify, the medical jargon used during the trial confused the jurors, and the defence expert’s testimony was restricted.

At that time, the majority of the Appeal Court dismissed all grounds of appeal, including the position that the Stephans’ Charter rights had been violated because of the unreasonable delay between the time they were charged and the date they were convicted.

However, Justice Brian O’Ferrall did not agree with the majority of the Appeal Court and wrote a dissenting opinion in favour of a new trial for the Stephans.  It was Justice O’Ferrall’s opinion that the trial judge’s charge to the jury was confusing and misleading. 

The Stephans were granted an automatic right to have the Supreme Court of Canada hear their appeal as one of the three judges on the appeal panel dissented. 

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

In an unusual practice, the Supreme Court of Canada, after hearing all arguments on appeal, provided an immediate ruling from the bench.  On behalf of the highest court in Canada, Justice Michael Moldaver ruled that the trial judge did not properly instruct the jurors and therefore allowed the appeal, quashed the convictions and ordered a new trial.

PRE-TRIAL PROCEEDINGS

Prior to the commencement of their new trial, the Stephans filed an application requesting $1 million to cover their past legal expenses and $3 million to be placed in trust for any future defence fees.  The Stephans claimed that they had liquidated their assets, owed money to their previous lawyer, and did not have the funds necessary to receive a fair re-trial. 

The couple also filed applications to have certain statements withheld from the re-trial.  All of these applications have been denied. 

During the couple’s pre-trial hearing, they attempted to have statements exempted that they made to police, hospital staff and child welfare workers at the Alberta Children’s Hospital.  They argued that they were tired, stressed and felt pressured by the presence of the police when they made those statements.  Justice J.D. Rooke denied these applications as well as he could not find any breaches of the Stephans’ rights.

The Stephans also submitted additional applications to delay their re-trial.  These requests were denied by the judge and the re-trial was ordered to proceed as scheduled on June 3, 2019. 

Prior to the commencement of the pre-trial, David Stephan posted a video on his Facebook page stating:

The deck is stacked against us huge.  … I don’t have high hopes.  I anticipate that we may just find ourselves again before the Supreme Court of Canada and hopefully find some justice there like we did the last time.

COUPLE SENTENCED IN A SIMILAR DECISION

Last fall, a jury found Jeromie and Jennifer Clark guilty of criminal negligence causing death and failing to provide the necessaries of life to their 14-month-old son, John.  They failed to seek medical attention until the day before he died from an infection in November 2013.

The boy was found to be malnourished and died from a staph infection. 

The Crown requested a sentence of four to five years for the couple, while their lawyers recommended a more lenient sentence in the range of probation to eight months in jail.

Earlier this month, the couple were each sentenced to 32 months in prison.  Justice Paul Jeffrey stated:

A period of incarceration is necessary to deter other parents who may similarly recklessly forgo proper and timely medical care for their child.

We will continue to follow the developments in the Stephans’ court case and will provide updates in this blog as they become available.

In the meantime, if you are facing charges or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  For your convenience, we offer 24-hour phone services.  We are available when you need us most.

Can I Be Charged for Being Impaired While Canoeing?

Written on Behalf of Affleck & Barrison LLP

Justice Peter West is the first judge in Canada to provide a ruling that a canoe is a “vessel” for the purposes of the criminal charges of impaired operation of a vessel causing death, operation of a vessel over 80, and the dangerous operation of a vessel.

According to the Canadian Red Cross, following 18 years of research on all deaths involving boats in Canada, more than 40% of recreational boating deaths are alcohol related.

WHAT HAPPENED?

On April 7, 2017, Thomas Rancourt (“Rancourt”), eight-years-old at the time, had gone for a canoe ride with his mother’s boyfriend, David Sillars (“Sillars”), on the Muskoka River on a cold spring day in Bracebridge, Ontario. 

The canoe capsized and Sillars was able to escape and swim to shore.  However, Rancourt continued down the river and had gone over the falls.  A search led to the discovery of Rancourt, where he was pulled from the icy water, CPR was immediately  administered and he was rushed to hospital.  He died shortly thereafter. 

Rancourt did not know how to swim and was wearing a lifejacket that was too small for him. 

Sillars was charged with impaired operation of a vessel causing death, operating a vessel with more than 80 mg of alcohol in 100 mL of blood, dangerous operation of a vessel, and criminal negligence causing death.

Sillars pleaded not guilty to all four criminal charges.  The Judge in this case has reserved his judgment.  We will provide information regarding the judgment in this case and any updates in this blog when they become available.

THE RULING THAT A CANOE IS A ‘VESSEL’ UNDER THE CRIMINAL CODE

Last fall, Justice West was asked to consider whether a canoe is included in the term “vessel” contained in the specific sections of the Criminal Code related to the case against Sillars.

The definition of vessel in section 214 of the Criminal Code of Canada does not specifically include a canoe, it merely states that a vessel “includes a machine designed to derive support in the atmosphere primarily from reactions against the earth’s surface of air expelled from the machine”. 

Justice West ruled that it was clear that as a result of growing concern that the public was not taking the regulations as set out in the Small Vessel Regulations under the Canada Shipping Act seriously that the term vessel was added to a number of offences in the Criminal Code in 1961, including the offence of dangerous operation of a vessel, impaired operation of a vessel, and operating a vessel with the blood alcohol concentration over 80 mg.  The wording was added to provoke members of the public to take the safe operation of pleasure crafts more seriously and therefore attach a criminal stigma to these offences.

Vessel was also added to these offences due to the increase in the number of pleasure crafts being used on waterways throughout Canada.

Justice West stated:

[O]perating any type of vessel on a lake or river or sea requires some level of competency and knowledge as to the proper operation of the vessel and an awareness of the rules and regulations which govern safety on the water.

The danger of harm is to the person or persons operating the canoe, or the passengers in the canoe or other persons operating small vessels in the vicinity or those coming to assist when an emergency occurs as a result of the person operating the canoe being impaired, over 80 or operating dangerously.

The fact is, like impaired drivers, the impaired operation of a pleasure craft presents a continuing danger on the waterway.  The goal is to screen operators of a vessel before there is an accident or emergency situation.  These inherent dangers of operating a ‘vessel’ on the water affect all operators of small vessels on Canada’s lakes and rivers and territorial waterways.

Justice West ruled that that the danger of harm is no different when one’s ability is impaired whether they are operating a motor boat with a five horsepower motor, a motor boat with a 150 horesepower motor, or a canoe.  Each of these acts justifies the stigma of a criminal sanction.

DRUNK BOATING IN ONTARIO

Drunk boating is equivalent to drunk driving.  Under the Criminal Code, if you are operating a boat, including a canoe, while impaired (80 mg of alcohol per 100 mg of blood), you are committing an offence under the law. 

Marine police can perform spot checks on waterways, the same as police do on our roadways.  Police can look for signs that a paddler is impaired.  The same rules that apply on land, apply on water.  In Ontario, if you are convicted of impaired operation of your boat, the consequences will extend to your privileges to drive your automobile.

If you have been charged with an impaired driving or any other driving offence, whether on land or water, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  Contact our office online or at 905-404-1947.

Supreme Court Overturns Convictions in Favour of Racialized Man

Written on Behalf of Affleck & Barrison LLP


A recent decision by the Supreme Court of Canada is sending a strong message  regarding the harm of over-policing racial minorities in inner-city neighbourhoods.

In a 3-2 decision, the Supreme Court of Canada held that the police had no reasonable cause to enter a backyard and question an Asian-Canadian man and therefore set aside his convictions for possessing a gun, drugs and illicit cash.

WHAT HAPPENED?

In the evening of May 25, 2012, twenty year old Tom Le (“Le”) was speaking with four young black men in the backyard of a Toronto housing complex.

Police officers were tipped off by security guards who patrolled the complex that there were concerns of drug trafficking in the backyard of this address and that a suspect had been observed there.

Two police officers entered the backyard without consent or a judicial warrant and began to question and request identification from the young men.  A third officer patrolling the perimeter of the property stepped over a low fence and told one of the men to keep his hands where he could see them.

One officer demanded that Le provide his ID and he was asked about the contents of a bag that was slung across his body.  Le then attempted to flee the scene and was quickly tackled and apprehended.  His bag was found to contain a loaded handgun and a considerable amount of cash.  At the police station, Le turned over 13 grams of cocaine to police.

At his trial, Le argued that the evidence should be excluded under section 24(2) of the Charter of Rights and Freedoms as police violated his constitutional rights to be free from arbitrary detention and unreasonable search (contrary to sections 8 and 9 of the Charter).

At trial, the judge rejected Le’s position that police violated his rights under the Charter and found that police had legally detained Le.  He was found guilty of several gun and drug offences and was also unsuccessful in challenging his convictions at the Ontario Court of Appeal.  Le proceeded to commence an appeal to the Supreme Court of Canada.

SUPREME COURT OF CANADA’S DECISION AND REASONS

Contrary to the lower court decisions, the majority of the highest level of court in Canada threw out the convictions as a result of serious violations of Le’s rights under the Charter.  The court ruled that the police actions amounted to an arbitrary detention and serious violation of Le’s rights and therefore the evidence must be excluded.

The purpose of section 9 of the Charter, prohibiting arbitrary detention, is to protect Canadians against unjustified state interference.  A detention may not necessarily involve physical restraint, but may exist in a situation where “a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave”.

The Supreme Court found that in this case the detention was arbitrary as the police were trespassers and had no legal authority to detain the accused.  Furthermore, their intimidating behaviour made Le feel as though he was unable to leave, even though he had the right to do so.

Although the incident occurred in a high-crime neighbourhood, the court found that the police did not have the authority to enter a private yard.  The court stated:

Indeed, that a neighbourhood is policed more heavily imparts a responsibility on police officers to be vigilant in respecting the privacy, dignity and equality of its residents who already feel the presence and scrutiny of the state more keenly than their more affluent counterparts in other areas of the city.

The majority judges also found that the police had engaged in “carding” (a topic that we have previously blogged about), which is the police practice of randomly stopping and questioning individuals who are not suspected of any crime.  This is a practice that unjustifiably affects racialized individuals. 

The court found that the incident of the police entry into the backyard was another example of the experience of racialized young men who are targeted, stopped and questioned. 

The court stated:

The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonable suspicion of criminal activity is more than an inconvenience.  Carding takes a toll on a person’s physical and mental health.  It impacts their ability to pursue employment and education opportunities.

Le’s lawyers, were thankful for the Supreme Court decision in favour of their client and the message that is being distributed.  Emily Lam stated:

We’re grateful that the court heard us, that they heard the voices of marginalized and racialized communities, all of whom have been saying that they are police differently, and the court recognizing that their experience has been different.

Samara Secter stated:

I think this is a push from the Supreme Court to have police recognize that everyone’s rights deserve respect.

There has been no real response from Toronto Police Services other than its spokesperson stating that the ruling is being “reviewed and considered by the Toronto Police Service’s professional standards unit”.

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.

Life in Prison for Man Who Murdered His Pregnant Wife

Written on Behalf of Affleck & Barrison LLP

Nicholas Baig (“Baig”) has been sentenced to life in prison for the murder of his pregnant wife, Arianna Goberdhan (“Goberdhan”) (27 years old). 

Goberdhan’s family and friends are outraged that Baig was charged and sentenced for the murder of one person, not two.  Under Canadian law, Goberdhan’s unborn child is not considered a person and is therefore not the victim of a crime.

WHAT HAPPENED?

Goberdhan and Baig were married in November, 2016 and lived for a period of time with his parents in Pickering.  Goberdhan moved back into her parent’s home in January, 2017 as their relationship had deteriorated.

During the sentencing hearing, the court heard evidence of “vile” texts from Baig to his wife and was made aware that the police had been called on a few occasions.  In fact, a week before the murder, the police were called when Baig came to the Goberdhan’s home and broke down a door when he was refused entry.

On April 7, 2017, Goberdhan left her parent’s home in Ajax at 6:30 p.m. and drove to see Baig in Pickering.  Goberdhan called 911 at 9:42 p.m. that evening.  Although she did not speak to the operator, Goberdhan was overheard pleading with Baig to let her go home.  The 911 operator called her back when the call ended and she confirmed that she needed the police.  Security cameras recorded Baig leaving the residence at 9:44 p.m., and driving off in Goberdhan’s vehicle.

When police arrived on scene, they found Goberdhan deceased, with a large knife beside her body.  She was nine months pregnant at the time.  It was determined that Baig had stabbed Goberdhan 17 times.  Baig was arrested the following day and has remained in custody since his arrest.

Baig pleaded guilty to the second degree murder of Goberdhan. 

Given his guilty plea to second-degree murder, Baig faced a mandatory sentence of life in prison.  However, it was up to the judge to decide when he would be eligible to apply for parole.  The minimum period of parole ineligibility for the offence is 10 years. 

The Crown prosecutor recommended parole ineligibility for a term of 20 years given the “reprehensible nature of Baig’s offence”.  Prosecutor George Hendry stated in his submissions to the court:

In making this submission the Crown is recognizing this is above the sentencing range for domestic homicides.  The nature and circumstances surrounding the commission of this offence elevate that range.

On the other hand, Baig’s lawyer argued for a 12 to 15 year term for parole eligibility.

Superior Court Justice Jocelyn Speyer sentenced Baig to life in prison, with no chance of parole for 17 years.

FETAL HOMICIDE AND THE LAW

Under the Criminal Code (section 223(1)), a fetus becomes a human being when it has “completely proceeded, in a living state, from the body of its mother”.   

Given this definition, an unborn child cannot be the victim of a homicide and has no legal recourse.  In order to be charged with the murder of an infant, the child has to be born alive first, and then die.  Therefore, Baig was not charged or prosecuted for the death of his unborn daughter, who was to be named Asaara.

In accordance with the law, Justice Speyer sentenced Baig for the murder of Goberdhan only.  Goberdhan’s friends and family were not satisfied with the court’s decision on sentencing Baig.  They filled the courtroom and wore shirts with Goberhan’s image and the name of a new campaign entitled the “Phenomenal Women Project” aimed to establish new law that holds those who kill pregnant women accountable for the deaths of both the mother and child.

Goberdhan’s parents are petitioning for legislative changes.  They call the petition “Arianna’s Law”.  They are asking the government to “pass legislation that recognizes that, when an assailant in a commission of a crime attacks a pregnant woman and injures or kills her pre-born child, then the assailant may be charged with an offence on behalf of the pre-born child.”

Laws of this nature have been proposed in the past, but have all failed.  The concern is that these types of laws will pave the way to criminalize abortion.

The Goberdhans argue that the “law has to be defined in such a way that it’s a violence against women crime.  It has nothing to do …with pro-life or pro-choice.  It’s specific to violence.”  The proposed law is intended to deter abusive partners from harming pregnant women. 

We will continue to follow any updates in the law regarding the murder of an unborn child in Canada and will report on developments in this blog.

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.

B.C. Judge Finds Provocation Defence Unconstitutional

Written on Behalf of Affleck & Barrison LLP

A British Columbia Supreme Court judge has ruled that a 2015 amendment to the Criminal Code, which limits when an accused killer can use the defence of provocation, is unconstitutional.

Justice Douglas Thompson ruled that the amendment in question only allowed for the partial defence of provocation in murder cases if the victim committed an indictable offence (most serious of offences) punishable by a sentence of five or more years, which is contrary to the rights and freedoms set out in the Charter.

THE DEFENCE OF PROVOCATION

Stephen Harper’s Conservative government amended the definition of provocation prior to the 2015 election through the Zero Tolerance for Barbaric Cultural Practices Act.

This legislation changed the definition of provocation from “a wrongful act or an insult that is of such nature as to be sufficient to deprive an ordinary person of the power of self-control …if the accused acted on it on the sudden and before there was time for his passion to cool” to “conduct of the victim that would constitute an indictable offence …punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool”.

The intention of the government in amending the law was that a victim had to have committed a crime so serious against an accused to argue that the accused was provoked into killing, not merely upset by the victim.  However, Justice Thompson found that the law as it was written denied vulnerable victims of domestic abuse and racism the ability to claim provocation when they are incited to respond violently by behaviour that is not quite criminal. 

Justice Thompson wrote in his ruling:

It is an unfortunate but notorious fact that people of colour and members of other marginalized communities are sometimes subject to despicable and hateful rhetoric, and that women are sometimes subject to intense psychological abuse by their male partners. … Although the provoking behaviour does not constitute an indictable offence punishable by at least five years’ imprisonment, it is reasonably foreseeable that the targets of this conduct may respond violently.

WHAT HAPPENED?

Michael Philip Simard (“Simard”) was in an “on again, off again” relationship with Leanne Larocque since 2014.  On October 5, 2016, Simard, armed with an assault rifle, entered the home of Larocque and proceeded to kill her and Gordon Turner.   Simard called 911 and then proceeded to shoot himself before the police arrived.

Simard was charged with two counts of second-degree murder. 

Michael Philip Simard challenged the constitutionality of amendments to section 232(2) of the Criminal Code arguing that the wording infringed his section 7 rights to life, liberty and security of person under the Charter, preventing him from raising a partial defence to reduce his charges of second-degree murder to manslaughter.

Justice Thompson agreed with Simard’s Charter arguments and found that the section in question in the Criminal Code to be overly broad and arbitrary.  Justice Thompson stated in his ruling:

…it is clear that s. 232(2) engages s. 7 of the Charter.  Second-degree murder carries a mandatory minimum sentence of life in prison.  On the other hand, manslaughter has no mandatory minimum sentence (unless a firearm is used in the commission of the offence…).  Circumscribing the available of the partial defence affects the liberty of anyone who would previously have been able to advance a provocation defence.

Justice Thompson struck down the current wording, thus returning the law to its original wording.  However, he proceeded to convict Simard of second-degree murder.

The government’s objective in amending the definition of provocation in the Criminal Code in 2015 may have been to protect vulnerable women by ensuring that those who might attack them would not be allowed to argue the defence of provocation after the fact.  However, Justice Thompson ruled that the “amended provisions extend to behaviour far beyond the object of the legislation.  Provocation has never been confined to situations in which the victims are vulnerable women.”

Simard’s lawyer, Matthew Nathanson, considered Justice Thompson’s ruling to be significant as it was the first time a court had considered the new limits on the defence of provocation in Canada.  Nathanson stated:

The court found that the purpose of the law was to protect vulnerable women.  Clearly this is an important and appropriate goal.  However, the court also found that in certain situations the law would deny the defence of provocation to women who killed in the context of serious domestic violence.  In this way, a law designed to protect vulnerable women would deny them an important defence.  This is counterintuitive and unfair.  In constitutional terms, it means the law is arbitrary, overbroad, and had to be struck down.

Simard will return to court on May 7, 2019 for sentencing.  The offence of second-degree murder carries a mandatory sentence of life imprisonment.

If you have any questions regarding charges that have been 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.

Supreme Court Rules a Crucial Element of Child Luring Law is Unconstitutional

Written on Behalf of Affleck & Barrison LLP

Last month the highest court in Canada ruled that a provision in the law forbidding the luring of children over the internet is unconstitutional and ordered a new trial for alleged offender Douglas Morrison (“Morrison”).  This decision may result in a number of child luring convictions being overturned across Canada.

In this landmark decision regarding the validity of child luring laws in Canada, the Supreme Court of Canada struck down two parts of the child luring laws found under section 172.1 of the Criminal Code.  The decision in R. v. Morrison will affect those cases where police officers pretend to be minors in an effort to apprehend suspected online predators.

WHAT IS THE CHILD LURING LAW IN CANADA?

The offence of child luring in Canada can be found in section 172.1 of the Criminal Code.  Child luring is defined as using the internet to communicate with an individual who is, or who the perpetrator believes to be, under the age of 18 for the purposes of committing the offence of sexual exploitation, incest, child pornography or sexual assault. 

You may also be charged with child luring if you communicate with an individual you know, or believe to be, under the age of 16 for the purposes of committing the offence of sexual exploitation, invitation to sexual touching, indecent exposure to a person under the age of 16 or abduction of a person under 16 years old.

If the Crown chooses to proceed by indictment (more serious offences) and you are found guilty of child luring, you will face a minimum of one year in prison, up to a maximum of 14 years in prison.  If the Crown chooses to proceed summarily (less serious offences), you will face a minimum of 6 months in jail, up to a maximum of 2 years less a day.

WHAT HAPPENED IN R. v. MORRISON?

Morrison was charged with child luring under section 172.1 of the Criminal Code.  He posted an online ad on Craigslist pursuing sexual conversations and stating he was interested in younger girls.  His ad was entitled “Daddy looking for his little girl”. 

Over the course of two months, police posed as a 14 year old girl named “Mia”.  Morrison began a sexual discussion with Mia, requested that she touch herself sexually, suggested she watch pornography, asked her for photographs, and arranged to pick Mia up after school (the encounter never occurred).  Consequently, Morrison was charged with child luring. 

During his trial, Morrison argued that he believed he was speaking to an adult online who was role playing as a character of a 14 year old girl.  He maintained that the rules on Craigslist require that users are to be 18 years old or older.  He was convicted at trial and the conviction was upheld by the Ontario Court of Appeal.

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

On appeal to the Supreme Court of Canada, Morrison brought three Charter of Rights and Freedoms (“Charter”) challenges pertaining to section 172.1 of the Criminal Code. The Charter arguments before the court were the following:

  • Section 172.1(3) violated his right to be presumed innocent under section 11(d) of the Charter;
  • Section 172.1(4) contains presumptions (requiring a person to take reasonable steps to ascertain the age of the individual they are contacting and to ensure he/she is not underage) that were not in accordance with the principles of fundamental justice and violated section 7 of the Charter, which protects the right to life, liberty and security of a person; and
  • Section 172.1(2)(b) contains a mandatory minimum sentence of one year in prison which violated the guarantee against cruel and unusual punishment found in section 12 of the Charter.

The Supreme Court of Canada overturned Morrison’s conviction citing errors made by the trial judge.  The Court ruled unanimously that the government’s wording of the child luring law violates the presumption of innocence guaranteed by the Charter.  It is the role of the Crown to prove beyond a reasonable doubt that an accused genuinely believed he/she was communicating with an individual who was underage.

Justice Michael Moldaver, writing for the majority of the Court, stated:

In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage.  Nothing less will suffice.

The accused, in his/her defence, may prove that he/she took “reasonable” steps to determine if the alleged victim was underage.  If this cannot be shown, then the accused cannot argue that he/she believed the alleged victim was of legal age.

The Supreme Court was also asked to consider the appeal by the Crown that Morrison was not given the mandatory one-year minimum sentence.  The trial judge gave Morrison a four month sentence, and ruled that the one year mandatory minimum sentence found in the Criminal Code was unconstitutional as it violated the guarantees found in the Charter against cruel and unusual punishment. However, the majority of the justices did not rule on this issue.

Given the potential ramifications resulting from the Supreme Court of Canada’s decision in R. v. Morrison, we will continue to follow any developments in the news and the case law and will report any updates that become available in this blog.

In the meantime, if you are facing child luring charges or have any 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 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.