Recent decision

Guilty Verdict for Man Accused of Killing Cindy Gladue 10 Years Ago

Written on Behalf of Affleck & Barrison LLP

Following eight hours of deliberation, a jury found Bradley Barton (“Barton”) guilty of manslaughter for the killing of Cindy Gladue (“Gladue”) in June 2011.

Barton plead not guilty to the charge of manslaughter in his second trial.  He testified that he arranged to pay Gladue for sex at an Edmonton hotel.  When he woke up the next morning, he was shocked to find Gladue dead in the bathtub.

According to medical experts, Gladue hemorrhaged from an 11-centimetre vaginal wound. 

LEGAL HISTORY OF THIS CRIMINAL CASE

This was Barton’s second trial for the death of Gladue.  In 2015, a jury acquitted him of both manslaughter and first-degree murder.  The first trial garnered a great deal of attention with respect to issues of injustices for sexual assault complainants, and more specifically those of Indigenous people, in the criminal justice system.

During Barton’s first trial, Gladue was repeatedly referred to as “Native” and a “prostitute”.

Following Barton’s acquittal in 2015, the Crown prosecutor appealed the verdict.  The Alberta Court of Appeal overturned the acquittal and ordered a new murder trial.  Barton took his case to the Supreme Court of Canada where the highest court in the country concluded that there should be a new trial, limited to the charge of manslaughter.

The judges of the Court of Appeal and the Supreme Court rejected the language used by counsel and witnesses to describe the victim, Gladue.  The Court of Appeal admonished the trial judge’s jury charge, which it felt was “inadequate to counter the stigma and potential bias …that arose from the repeated references to Gladue as a ‘prostitute’, ‘Native girl’ and ‘Native woman’”.

In the reasons of the Court of Appeal, the court wrote:

Those references implicitly invited the jury to bring to the fact-finding process discriminatory beliefs or biases about the sexual availability of Indigenous women and especially those who engage in sexual activity for payment.

DIFFERENCES BETWEEN BARTON’S TWO CRIMINAL TRIALS

There were four significant differences between Barton’s first trial in 2015 and his second trial in 2021, which are outlined below:

  1. The Crown discarded the theory that Gladue’s injury was caused by a sharp object.  Both the Crown and the defence agreed that her wound was caused by blunt force when Barton inserted his hand into her vagina past his knuckles (a width of approximately 11cm).
  2. The second jury heard details regarding Barton’s internet search history.  The jury heard that nine days before Gladue’s death, Barton had searched for porn related to vaginas being ripped or torn by large objects.  This evidence was excluded from his first trial.
  3. The language used in the second trial was different when referring to Gladue.  The judge in Barton’s second trial instructed the jury on several occasions to discard any stereotypical notions regarding sex workers and Indigenous people. 
  4. At Barton’s second trial, the Crown did not use Gladue’s physical tissue as an exhibit.  Photographs of the autopsy and the crime scene were used to explain Gladue’s injuries to the jury.

THE CIRCUMSTANCES SURROUNDING GLADUE’S DEATH

Barton, a trucker from Mississauga, was in Edmonton for a moving job in June of 2011.  He rented a room at the Yellowhead Inn.  While outside the hotel bar, Barton asked a man whether he had any “lady friends”.  The man returned with Gladue. 

Barton testified that he negotiated a price to have sex with Gladue in his hotel room.  That night he inserted his fingers into her vagina and the night ended amicably.

The next night, Barton texted Gladue and she met him for a drink at the bar until last call.  According to Barton, they went back to his room and he once again inserted his fingers into Gladue’s vagina.  When he removed his fingers, he noticed blood.  He assumed she was on her period and told her he wouldn’t pay her.  He then fell asleep, while Gladue used the bathroom.  When Barton woke the next morning, he found Gladue’s body in the blood soaked tub.  In a state of panic, Barton cleaned some blood off of his feet, left the room, disposed of the towel he used, made a coffee and then checked out of his hotel room. 

Barton maintained that due to his panicked state, he lied to the 911 operator, the police on scene and when interviewed at police headquarters.  Barton’s defence lawyer acknowledged that his lies were “pathetically inept, half-baked, easily disproved” and not the lies of an individual who had been “plotting how to get away with it”.  It was Barton’s defence that the physical evidence supports his version of the events.

The Crown maintained that Barton violently sexually assaulted Gladue while she was too heavily intoxicated to provide consent and allowed her to bleed to death.  It was also argued that Barton’s version of the events did not align with the physical evidence. 

The 11-person jury, after hearing six weeks of disturbing details and graphic evidence regarding Gladue’s death, concluded that Barton was guilty of manslaughter.

Barton, who had been out on bail, was taken into custody and will be sentenced at a later date.  Barton’s lawyer has advised that his team wants to appeal the conviction due to issues with evidence admissibility, however, that will require the assistance of Legal Aid Alberta to fund his defence.

If you have any questions regarding criminal charges laid against you or your legal rights, please contact the experienced 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 clients’ rights.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Terminally Ill Convicted Killer Granted Full Parole

Written on Behalf of Affleck & Barrison LLP

Convicted murderer Serge Robin (“Robin”) has been granted full parole and allowed to spend his final days outside of prison as he is suffering from a terminal illness.

Robin, a Montrealer, was convicted of killing three people and was a suspect in at least two other homicides.  Two of his victims were killed in British Columbia in 1992 while he was out on day parole for a sentence he was serving for armed robbery and the death of a 17-year-old girl he killed with a crowbar in 1976.

SERGE ROBIN’S CRIMINAL BACKGROUND

According to the Parole Board of Canada’s decision, Robin has a traumatizing background.  His father was convicted of rape and attempted murder and his mother was a sex-trade worker.  Robin grew up in a foster home.  He began serving his time in prison in 1973 when he was only 16 years old. 

Robin’s criminal history included armed robbery and the assault of an individual with a metal ashtray and the murder of 17 year-old Lise Labatie with a crowbar in Quebec City in 1976. 

In 1979, Robin was charged with killing two inmates, but he was acquitted of these charges.

Robin was granted day parole in 1992 at which time he became involved in organized crime.  On October 6, 1992, he shot Roger Daggitt in a hotel in Surrey, B.C.  Two days later, he killed Robert Pelletier in Vancouver, B.C.  It was alleged that he killed Pelletier as he was trying to infiltrate his drug-trafficking turf in Vancouver.  He recently told his parole officer that he killed Pelletier because he believed he was going to kill him. 

According to the parole decision, Robin was contracted to kill Daggitt.  He pleaded guilty to second-degree murder.  This killing appeared to be in retribution for Daggitt having ordered the killing of stockbroker, Ray Ginnetti.  Robin was transferred from a penitentiary in British Columbia to the Port Cartier Institution, a penitentiary in Quebec. 

THE PAROLE BOARD OF CANADA DECISION

Last October, Robin was evaluated by a psychologist who classified him as a psychopath.

In 2018, Robin’s medical condition from cancer became worse and he was transferred to a penitentiary where he could undergo treatment.  Earlier this month, Robin was found to be so weak that he has only 10 to 15 percent of his physical capacities left. 

According to the decision by the Parole Board of Canada, Robin is so ill that he does not pose a threat to the public.  The decision stated:

You currently suffer from an advanced cancer, which significantly limits your physical capacities and provokes confusion as well as disorientation.  You will be in a terminal phase and you have little time left to live.  …

According to your file, you do not wish to die inside a penitentiary.  You still have chemotherapy treatments to receive.  If your health improves, a re-evaluation will be done to see if you match the criteria to be admitted into a palliative care centre.

Robin was granted full parole with the condition that he reside at an undisclosed location, likely a palliative care residence due to his deteriorating medical condition.

WHAT IS PAROLE AND WHO IS ELIGIBLE FOR PAROLE BY EXCEPTION?

The Parole Board of Canada is an independent administrative tribunal.  The members of the Parole Board come from a variety of backgrounds including criminology, policing, education, law and social work.  It is the role of the Board Members to assess the offender’s risk to determine if a conditional release is warranted. 

Parole is a conditional release from jail for offenders to serve the remainder of their sentence outside of the confines of the institution.  The goal of parole programs is to provide a gradual, controlled, and supervised path between jail and freedom. 

The Parole Board does not automatically grant parole, each individual case must be reviewed to determine suitability for release.  The Parole Board will consider the following factors in determining whether an offender should be granted parole:

  • The offender’s criminal record;
  • The seriousness and nature of the offence;
  • The offender’s behaviour while in prison;
  • The offender’s release plan; and
  • The remorse he/she has expressed for the crime.

According to the section 121 of the Corrections and Conditional Release Act (“CCRA”), prisoners can be granted parole at any time if certain criteria are met.  Parole by exception can be granted if a prisoner is:

  • Terminally ill;
  • Likely to suffer serious damage to their physical or mental health if he/she continues to be incarcerated;
  • Experiencing excessive hardship that was not reasonably foreseeable at the time of sentencing; or
  • Subject to an order of surrender under the Extradition Act and to be detained until surrendering.

Prisoners who are serving life sentences or those serving indeterminate sentences are the only prisoners ineligible for parole by exception, except in the case of terminal illness.

Prisoners who apply for parole by exception must be assessed pursuant to section 102 of the CCRA.  These prisoners must show that they do not present an undue risk to society, which was the case with Robin given his deteriorating medical condition and lack of physical capacities.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  Contact our office today 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.

Toronto Principal Acquitted of Assault Charge

Written on Behalf of Affleck & Barrison LLP

A Toronto elementary school principal, Sean Hume (“Hume”), was found not guilty of one count of assault last week after his trial finally came to a conclusion.  Hume’s trial began last February and underwent several disruptions, including a change in defence lawyers and the court shutdown due to COVID.

THE PLAYGROUND INCIDENT

The incident before the court occurred on September 19, 2018 during lunchtime recess.  Hume, the principal of Chester Elementary School, was in the schoolyard when he was advised about an upset student in the playground. 

Hume approached the playground and found a nine-year-old boy “in crisis”.   At his trial, Hume described the boy’s behaviour as “calling out for help”.  The young student was spitting, swearing using racial slurs and throwing things.

Hume attempted to de-escalate the situation by speaking calmly and attempted to keep the boy’s attention on himself and not direct his distress towards the other children in the playground.

Hume took out his cellphone to request that the school office call the boy’s parents, and if they couldn’t be reached to call the police.

Earlier in the year, Hume had spoken to the grade 4 child’s parents who had advised of their son’s anger issues and confirmed that once he was triggered, it was difficult to restrain him.  His parents did provide advice regarding one type of restraint that may work in times of crisis, which involved a hug from behind.

On the day in question, Hume attempted the restraint recommended by the boys’ parents, unfortunately it proved disastrous.  

Hume attempted to speak to the child calmly and direct him to the school office.  When Hume went to grab the child near his neck/shoulder area, the boy dropped to the ground and grabbed Hume by the leg.  Hume then lost his balance attempting to break free, at which point he may have made contact with the child.  According to the trial decision by Justice Stephen Clark, “any contact made by his foot was not intentional”. 

The events in the playground finally came to an end when the child’s father arrived.  At this point, Hume’s shirt was ripped and he had been kicked, punched and spat on. 

Hume was charged by police two days following the incident after the child reported that his principal had pinned him to the fence, shoved him back and placed his knee on his stomach for at least a minute causing him to be unable to breathe.  Hume pleaded not guilty to assault.

VIDEO EVIDENCE BEFORE THE COURT

At the trial, the court watched three separate short cellphone videos of the playground occurrence between Hume and the fourth grader that were recorded by a teacher at the school from her second-floor office.

The first clip showed the child throwing objects from the playground at Hume.  The second video showed the child spitting in Hume’s face and within seconds Hume appears to be behind the child and seems to grab him and push him to the ground.  Hume proceeds to stomp on the boy’s arm and tries to release his leg from the boy’s grasp.

The third clip shows the child’s father approach the playground and walk the child away.

According to the teacher who filmed the incident, she testified that the encounter scared her and that the child seemed “clearly out of control”.  She also testified that Hume was “almost egging him on”.  She found the whole incident hard to watch and stated:

It’s hard to watch a kid being pushed, thrown on the ground and stomped on, a kid that I know has a hard time.

TRIAL DECISION

Justice Clark accepted Hume’s evidence at trial and found him to be transparent, acted in a “controlled” way to restrain the student and was “not interested in taking the law into his own hands”.

According to the court’s decision, Hume was attempting a “controlled” method to restrain the child in an attempt to prevent further actions.

The court heard evidence that the child was diagnosed with anxiety and is prone to outbursts both in school and at home, at which time he will scream, swear, throw objects, punch and kick. 

Justice Clark determined that the young boy’s capacity for observation and recollection were inconsistent.  In his decision, Justice Clark stated:

I assure him, and his parents, that he is not the “bad guy” in this unfortunate incident.  However I do not find his account to be particularly reliable.

Hume was acquitted of the charge of assault

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

Supreme Court Rules Equal Justice for Victims of Assault with Intellectual Disabilities

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada has ruled that sexual-assault complainants with intellectual disabilities who testify should have their credibility and reliability assessed free from stereotypes.

Women and girls with intellectual disabilities are disproportionately victims of  sexual violence, and these assaults often go unreported and are under-prosecuted in comparison to those victims who do not suffer from a disability.  Furthermore, females with intellectual disabilities also face barriers in having their allegations believed due to stereotypes about their credibility and reliability as witnesses.

Cases that deal with sexual assault often turn on the credibility and reliability of witnesses, especially the complainant.

Credibility deals with a witness’ veracity or truthfulness, while reliability deals with the accuracy of a witness’ testimony.  Both the credibility and reliability of a witness are factual determinations to be made by a trial judge or jury.

R v. SLATTER

In the case of R. v. Slatter, the adult complainant testified that between 2009 and 2013, when she was in her late teens and early 20s, her neighbor, Thomas Slatter (“Slatter”), sexually assaulted her on numerous occasions.  The assaults ranged from fondling to sexual intercourse.

At the Slatter’s trial in 2017, Ontario Superior Court Justice Wolfram Tausendfreund believed the complainant’s evidence and found Slatter guilty of sexual assault, sentencing him to 27 months in prison. 

Justice Tausendfreund found the complainant’s testimony to be compelling, detailed and specific and found that others had corroborated instances where she and Slatter were located together. 

Slatter appealed this decision and argued that Justice Tausendfreund did not explain in his reasoning the issue of the complainant’s reliability and alleged suggestibility.

Dr. Jessica Jones, a forensic clinic psychologist and professor of psychiatry at Queen’s University, testified at trial that she had diagnosed the complainant as having an intellectual developmental disorder and found her to academically function at the level of a 10 to 12 year old. 

Dr. Jones testified specifically regarding the complainant’s predisposition to be overly suggestible when being questioned regarding her allegations of sexual assault.  Dr. Jones found that the complainant was at the 75th percentile on a suggestibility curve (the average person is at the 50th percentile). 

Justices David Doherty and Gary Trotter of the Ontario Court of Appeal agreed with Slatter’s argument, allowed his appeal and ordered a new trial. 

However, Justice Sarah Pepall provided a dissenting opinion and found that the trial judge’s explanation of his judgment to be adequate. Justice Pepall wrote in her reasoning:

In the context of the whole of the record, it is evident that the trial judge grasped the substance of the case and that the basis for his verdict is obvious.  He considered the complainant’s evidence on the core issue of her repeated sexual assaults by the appellant to be reliable and credible, and based on the evidence before him, he was satisfied beyond a reasonable doubt.  There is not reason to interfere with the execution of his role as a trial judge.

Justice Pepall’s dissent provided the Crown prosecutor with an automatic right of appeal to the Supreme Court of Canada.

THE SUPREME COURT OF CANADA

The Supreme Court agreed unanimously with Justice Pepall’s dissenting opinion.  The court emphasized the value of assessing the individual giving the testimony, rather than an expert opinion, with respect to determining a witness’ credibility and reliability.

On behalf of the court, Justice Michael Moldaver wrote:

Courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence.

Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice.

Susan Fraser, a lawyer who made submissions to the Supreme Court on behalf of the organizations intervening on this case which included, Women’s Legal Education and Action Fund, DisAbled Women’s Network Canada and ARCH Disability Law Centre, responded to the Supreme Court ruling:

It makes it clear that, just because a person is labelled with a disability, we should be wary of treating that reliability differently based on what I would say are actuarial scores.

The Supreme Court allowed the Crown’s appeal and restored Slatter’s conviction.

If you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947 to speak with our knowledgeable criminal defence lawyers.  We offer a free initial consultation for all prospective clients.

SCC Rules Ontario’s Sex Offender Registry Unconstitutional for Those with Mental Illness

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada upheld an Ontario Court of Appeal decision which ruled in favour of a man who was found not criminally responsible for a sexual offence on account of a mental disorder (“NCRMD”) and who was later absolutely discharged. The decision held that he should be relieved of reporting requirements and his name be removed from the provincial sex offender registry.

The Road to the Supreme Court

Mr. G, whose name is unpublished due to a publication ban, was found not criminally responsible of two sexual offence charges against his wife.  As we have previously blogged, these charges occurred as a result of Mr. G’s one and only manic episode that took place in September 2001.

Although the Ontario Review Board granted Mr. G an absolute discharge as he no longer posed a significant risk to the safety of the public, he was still required to register with Ontario’s sex offender registry under Christopher’s Law and to report to provincial authorities for life.  Mr. G was also required to register and report under the federal sex offender registry.

Mr. G brought an application before the court arguing that placing individuals who are found NCRMD and are later absolutely discharged on federal and provincial sex offender registries infringes their rights guaranteed under the CharterThis application was dismissed by the Court.

Mr. G appealed the lower court’s decision to the Ontario Court of Appeal.   The higher court allowed Mr. G’s appeal and concluded that Christopher’s Law be of no force or effect as it applies to those individuals who were found NCRMD and were granted an absolute discharge.  The Attorney General of Ontario appealed this decision to the Supreme Court of Canada.

What is ‘Christopher’s Law’?

The Ontario Sex Offender Registry was established following the abduction and murder of 11-year old Christopher Stephenson by a convicted sex offender.  Following the Coroner’s Inquest, it was recommended that a registry be created for convicted, dangerous, high-risk sexual offenders, requiring them to register with the police in the jurisdiction where the offender resides.

On April 23, 2001, the government of Ontario proclaimed that Christopher’s Law was in effect.  This was the first province to establish a sex offender registry.

Christopher’s Law requires that those in Ontario who are either convicted or found NCRMD of a sexual offence to report to a police station to have their personal information added to the Ontario sex offender registry.  Those who are on the registry musts report in person at least once a year and whenever their personal information changes. 

Based upon an individualized assessment, an individual found guilty of a sexual offence can be removed or exempted from the registry and the reporting requirements.  However, an individual found NCRMD of a sexual offence can never be removed from the registry or exempted from reporting.

Constitutional Implications

According to Christopher’s Law, those that are found NCRMD have no opportunity to be exempted or removed from the sex offender registry or to be relieved of their reporting requirements.  Therefore, it is clear that those found NCRMD are subjected to different treatment simply based upon their mental illness.

One of the functions of section 15(1) of the Charter is to prevent discrimination of those facing stigma and prejudicial treatment due to mental illnesses. 

The Supreme Court dismissed the appeal by the Attorney General of Ontario and agreed with the appeal court that Ontario’s sex offender registry law unconstitutionally prohibits those found NCRMD, but given an absolute discharge, an opportunity to be relieved of the requirements of the registry.

According to Justice Karakatanis, writing on behalf of the majority of the Supreme Court:

In my view, Christopher’s Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter.  These discriminatory distinctions cannot be justified in a free and democratic society. 

I have no difficulty concluding that the denial of exit ramps to those found NCRMD and discharged is discriminatory.  …

The distinction drawn by Christopher’s Law reinforce and further the stigmatizing idea that those with mental illness are inherently and permanently dangerous, and in so doing, perpetuate the disadvantage they experience.  …

[F]orced compliance with registry requirements, … can also contribute to a “double stigma” for those found NCRMD, as a result of being both “mentally ill” and a “sexual offender”. …

By withholding exit ramps, Christopher’s Law signals that the law considers G a perpetual threat to the public.  That the state will not take its eyes off G suggests that, in the opinion of the law, he will always be dangerous.

According to the Supreme Court decision, Mr. G’s name will remain off of the Ontario registry.  This decision also requires that the Ontario government amend Christopher’s Law in order to comply with the Supreme Court decision.   

We will report in this blog on the government’s response to this recent decision and any amendments made to the legislation as ordered by the Supreme Court of Canada.

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.

Court Rules New Trial for Couple Convicted in Child’s Death

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal has ruled that a couple convicted of manslaughter in the suspected starvation of their two-year-old daughter should receive a new trial to put forward new evidence.

A jury convicted Sean and Maria Hosannah in October 2014 following the death of their 27-month-old daughter, Matinah, in February 2011.  Maria Hossanah was sentenced to two years in jail and her husband was sentenced to two years less a day. 

In February 2011, Matinah stopped breathing while in her mother’s arms.  Her father called 911, but paramedics could not resuscitate Matinah and she was pronounced dead in hospital.  Both of her parents, Sean and Maria Hosannah, were charged with manslaughter for allegedly failing to provide their daughter with the necessaries of life. 

Following their convictions, the Hosannahs began the appeal process and were therefore released from custody pending their appeal.

THE TRIAL

At trial, the Crown prosecution argued that the Hosannahs had failed to provide Matinah with the necessaries of life by not feeding her properly or obtaining medical attention for her. 

The jury heard evidence that Matinah was underweight and poorly developed.  She was unable to walk or crawl by the age of two.  A family doctor allegedly told the parents to take her to a specialist, however, Matinah had not received any medical attention in the last year of her life.

The Hosannahs defence was that they were good parents and were distressed by their daughter’s death.

The prosecution’s case rested largely on the evidence of Ontario’s chief forensic pathologist, Dr. Michael Pollanen.  Dr. Pollanen testified that Matinah was severely malnourished and lacked protein.  She was also found to have suffered from rickets and a blood disorder caused by vitamin deficiency.  Matinah also showed signs of chronic and severe asthma.  According to Dr. Pollanen, Matinah suffered an asthma attack while in a critical state of illness due to protein malnutrition and vitamin deficiency, which led to a lack of oxygen, shock and ultimately death.

Dr. Stanley Zlotkin, a pediatric nutritionist, testified that Matinah’s protein and vitamin deficiencies were the result of an unbalanced diet that stunted her growth.  He concurred with Dr. Pollanen that she was severely malnourished.

The defendants did not submit any evidence from a medical expert to challenge the prosecution’s expert reports. 

At the trial, the court learned that the Hosannahs maintained a strict vegetarian diet and only ate to live.  They also had an aversion to doctors, vaccinations and were suspicious that their daughter had been poisoned at birth.  Although the prosecution accepted that the Hosannahs did not want to hurt their daughter, it was argued that the choices they made led to their daughter’s death.

THE APPEAL

On appeal, the Hossanahs were allowed to present new evidence from two experts.

Fresh evidence can be entered on appeal if it is in the interest of justice, while preserving the integrity of the criminal justice process according to section 683(1)(d) of the Criminal Code. 

Dr. Michael Shkrum, a forensic pathologist, disagreed with Dr. Pollanen’s finding that asthma played a part in Matinah’s death.  According to Dr. Shkrum, there was no evidence that she suffered from protein malnutrition and he found that Matinah died of congestive heart failure due to her enlarged heart, conceivably caused by anemia and/or vitamin D deficiency. 

A second expert in pediatric bone disorders and genetics, Dr. Miller, confirmed that Matinah suffered from severe vitamin D deficiency rickets, which severely compromised her health and affected her growth. 

According to the Hosannahs’ lawyer at their appeal, Dr. Pollanen’s report relied upon a blood sample that was taken while doctors attempted to resuscitate Matinah. Matinah had more than half a litre of saline injected in her bloodstream to revive her, which may have diluted her blood and could explain her blood protein levels.

The judges of the Court of Appeal concluded that had the new evidence been admitted at trial it may have affected the verdict.

Although the jury could have concluded that reasonable parents would be aware of the absence of protein in their child’s diet and the risk that it posed, a jury could conclude that a reasonable parent may not realize that their child’s diet lacked adequate vitamins D and B12.

The proposed evidence is relevant because of its tendency to show what caused the deceased to die and, by inference, whether her death originated in any unlawful conduct by the appellants.

The Court of Appeal accepted the Hossanahs’ new reports, allowed the appeal of their convictions and ordered a new trial.

We will continue to follow the developments of this case as it proceeds to trial and will report on any updates in this blog.

In the meantime, if you are facing criminal 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.

Judge Rules Adam Strong’s Statement to Police is Admissible as Evidence

Written on Behalf of Affleck & Barrison LLP

Adam Strong (“Strong”) is charged and currently on trial for the first-degree murders of Rori Hache (“Hache”), who went missing in Oshawa during the summer of 2017, and Kandis Fitzpatrick, who went missing in 2008.

Last week, Superior Court Justice Joseph Di Luca dismissed an application made by Strong’s legal team requesting that self-incriminating admissions by Strong not be admitted as evidence as police had violated their client’s Charter rights when he was questioned at his apartment on the night of December 17, 2017. 

APPLICATION TO DISMISS ADMISSIONS MADE TO POLICE

Strong’s application to the court, under section 10(b) of the Charter, argues that he was not given proper access to a lawyer before he admitted to police that there was a dead body in his residence. 

Justice Di Luca ruled that Strong’s admissions to police were admissible at trial as they were made voluntarily and made prior to his arrest for murder.

According to the evidence at Strong’s trial, police officers approached Strong’s basement apartment after receiving reports from plumbers working on clogged pipes at the house when they extracted 10 to 15 pounds of flesh from the drain in the house.  Officers asked Strong what he had been flushing down the toilet, at which point Strong confessed that there were human remains in his basement apartment.

Durham Officer Kevin Park testified at trial:

At first he kind of sighed and dropped his head.  He said ‘OK, you got me.  The gig is up. It’s a body.

Officer Park testified that when he knocked on Strong’s door he did not plan to arrest him, he was inquiring as to who the tenant was in the basement apartment and what the substance was in the clogged pipe. 

According to Officer Park, as he was putting Strong in the back of his cruiser when Strong said, “I want to spill the beans”.  He had already read Strong his right to counsel, advised him that he was under arrest for murder and cautioned him that anything he said could be used as evidence. 

While Officer Park was sitting in the front seat of his cruiser and writing his notes, Strong said “If you want to recover the rest of her, she’s in my freezer.  She’s buried, defleshed.” 

Strong has pleaded not guilty and his trial is expected to last three months. 

SECTION 10(B) OF THE CHARTER

According to section 10(b) of the Charter:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

Section 10(b) of the Charter contains two parts.  There is an information component –  to inform the arrested suspect that they have a right to a lawyer.  And there is an implementation component – to take steps to put the detained person in touch with a lawyer. 

The Supreme Court of Canada, in the case of R. v. Willier, set out the circumstances that evokes the use of section 10(b) of the CharterChief Justice McLachlin wrote:

Accordingly, 10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy.  The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage.

The Supreme Court case of R. v. Bartle, outlines the three duties imposed on police who make an arrest or detention:

  1. To inform the detainee of his/her right to retain and instruct counsel without delay and the existence and availability of legal aid and duty counsel. 
  2. If a detainee has indicated a desire to exercise his/her right to counsel, to provide a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances).
  3. To refrain from eliciting evidence from the detainee until he/she has had a reasonable opportunity (except in urgent and dangerous circumstances).

The right to retain counsel “without delay” is important as the detainee is to be afforded the opportunity to retain counsel no matter the time and place of the detention or whether he/she can afford to do so.  The police must inform the detainee of the availability of legal aid and duty counsel to assist if the detainee does   not have a lawyer.  The police must provide the detainee with a free 1-800 number to contact duty counsel and with a means to do so.

The opportunity to contact counsel may not only arise at a police station, in some cases where a phone is available upon arrest and there is no reason to delay access, the police must allow the detainee to use the phone to contact counsel.

One of the key components of section 10(b) of the Charter, which was an issue in Adam Strong’s application to the court, is that the police must refrain from trying to elicit further evidence and undertake further questioning of the detainee until he/she has had a reasonable opportunity to speak with counsel.

We will continue to follow Adam Strong’s trial and will report any developments that occur 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 the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a reputation for effective results in defending all types of criminal legal charges.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. 

Police Officer Sentenced to 12 Months in Jail for Death of Woman in Custody

Written on Behalf of Affleck & Barrison LLP

A new decision by the Ontario Superior Court of Justice, and for the first time in Canada, a police officer has been convicted and sentenced for failing to provide medical assistance to an individual in their custody.

In November 2019, London Police Constable Nicholas Doering (“Doering”) was convicted of criminal negligence causing death and failing to provide the necessaries of life in the death of Debralee Chrisjohn (“Chrisjohn”).

THE FACTS

On September 7, 2016, Chrisjohn, while in police custody, died of a heart attack as a result of having consumed a toxic level of methamphetamine.

A video of Chrisjohn being taken into the Ontario Provincial Police detachment showed her to be limp, silent and demonstrating no signs of movement.  She was witnessed to being dragged into a cell.  At that point, EMS was called, however, by the time they arrived they were unable to save her life.

Chrisjohn was in the custody of Constable Doering, who had arrested her for an outstanding OPP warrant, and transferred Chrisjohn to OPP custody. 

At his trial, Constable Doering testified that he did not believe that Chrisjohn required medical attention and was simply suffering from the effects of methamphetamine.  According to the defence, Constable Doering made an error in judgement that was reasonable based upon his experience with methamphetamine users and his conversation with an EMS supervisor early on in her detention.  Doering denied that he deliberately misled OPP officers.

The following facts were admitted by Constable Doering at his trial:

  • Chrisjohn was unable to provide herself with the necessaries of life while in the custody of Constable Doering;
  • Methamphetamine is a powerful stimulant drug and users often experience confused cognitive function, paranoia, elevated sensory stimulation and agitation and restlessness;
  • Medical treatment is available for those who have ingested methamphetamine, which typically includes monitoring and treating the user’s symptoms in a hospital until the effects have dissipated;
  • Medical treatment is not always warranted for those who experience side-effects from using methamphetamines;
  • If treatment or intervention is required, the sooner treatment is received the better;
  • On September 7, 2016, Chrisjohn required medical treatment due to the effects of using methamphetamines at the time of her transfer to the OPP;
  • Chrisjohn was in a critical state and required urgent medical intervention from the time of her arrival at the Elgin OPP detachment and onwards;
  • The delay in providing Chrisjohn with medical treatment impacted her chance of survival.  If she had received medical attention prior to the arrival of EMS at the Elgin OPP detachment, she may have survived.

THE ALLEGATIONS AND CRIMINAL OFFENCES

At trial, Crown prosecutors alleged that Constable Doering knowingly provided false and incomplete information regarding Chrisjohn’s medical condition to the OPP when he transferred custody and told OPP that she had been medically cleared.  Thus, demonstrating a wanton and reckless disregard for her life and providing the elements of criminal negligence causing death.  Furthermore, it was alleged that Constable Doering’s behaviour was a marked and substantial departure from the standard of care of a reasonable and prudent police officer.

Section 215 of the Criminal Code outlines the offence of failing to provide the necessaries of life.  According to the law, where a person is in charge of another, he/she has a duty to provide the necessaries of life.  The standard is not of perfection. The Crown prosecutor must prove that there was a marked departure from that of a reasonably prudent person having charge of another, in circumstances where it is reasonably foreseeable that a failure to provide the necessaries of life would lead to a risk of danger to the life of the victim.

Section 219 of the Criminal Code outlines the offence of criminal negligence.  This offence requires proof that the accused did something or failed to do something that was his/her legal duty to do that demonstrates a wanton and reckless disregard for the lives and safety of others.  The offence also requires that the accused’s conduct was a marked and substantial departure from the standard of care that a reasonably prudent person would observe in the circumstances.

Justice Pomerance, in her reasons for judgement, stated:

The evidence in this case suggests that stereotypes and generalized assumptions played a role in the events leading to Ms. Chrisjohn’s death.  …

In short, Cst. Doering had pre-conceived notions about drug users and he held fast to those notions when dealing with Ms. Chrisjohn.  Rather than moulding his theory to fit the facts, he seems to have moulded the facts to fit his theory. …

I am satisfied that a reasonably prudent police officer would have appreciated the need for medical assistance at the time of the transfer to the OPP, if not before, and would have been aware of the risk that failure to obtain such medical assistance would endanger Ms. Chrisjohn’s life. 

Justice Pomerance found that Constable Doering failed to provide Chrisjohn with the necessaries of life and in providing erroneous and incomplete information about Chrisjohn’s medical condition to OPP demonstrated a wanton and reckless disregard for her life, thus contributing to Chrisjohn’s death.  He was therefore found guilty of criminal negligence causing death.

Justice Renee Pomerance sentenced Constable Doering to 12 months in jail.  In her sentencing decision, she stated:

The sentence must convey the irrefutable message that Ms. Chrisjohn’s life was valued and valuable. … [I]n some cases, loss of life will, practically and symbolically, command the most significant form of penalty. This is one of those cases.

Constable Doering has been suspended from his duties with the London Police with pay and is currently appealing the decision. 

We will continue to follow this criminal case as it makes its way through the appeal process and will report any developments in this blog.

If you are facing a drug related charge or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947.  We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Errors by Police Officer and Trial Judge Leads to Appeal Court Overturning Child Pornography Conviction

Written on Behalf of Affleck & Barrison LLP

In a recent decision by the Ontario Court of Appeal, a man convicted on pornography charges had evidence obtained in accordance with a production order and search warrant excluded resulting in his acquittal on all counts.

Former Hamilton minor hockey coach, Steven West (“West”), was charged in 2017 with accessing, possession of, and making child pornography available.  At trial, he was convicted and sentenced to three years in prison. 

THE INVESTIGATION

In August 2016, Hamilton Police were alerted to a pornographic picture that West had uploaded to the mobile messaging app Kik.  The image was of a five year old girl sitting in an explicitly indecent sexual pose on a beach wearing only a bikini top.

The Kik app detected the picture and reported it to the RCMP’s National Child Exploitation Co-ordination Centre, who forwarded it to the Hamilton Police Service.  The police were provided with information regarding the account that the image had been uploaded to and two Internet Protocol addresses associated with the use of the account.  Police determined that both IP addresses belonged to Cogeco Cable. 

Detective Constable Jeremy Miller prepared an Information to Obtain for a general production order under section 487.014 of the Criminal Code.  Detective Miller attached an affidavit which stated “that the information set out herein constitutes the grounds to suspect” that the subscriber committed the child pornography related offences.

After receiving court approval to obtain subscriber information from Cogeco Cable, the police were informed that Steve West was the subscriber and provided his address.  The police then obtained a search warrant to search West’s residence for electronic devices and documents that contain suspected evidence of child pornography. 

When police searched West’s home they seized five digital devices and found 19,687 files containing child pornography, including images and 51 videos.  West was subsequently charged with possession of child pornography, distribution of child pornography and accessing child pornography.

THE APPEAL

The issue before the appeal court was whether West’s rights under section 8 of the Charter (the right to be secure against unreasonable search and seizure) were infringed and if the evidence against him should have been excluded.

West argued that the production order should not have been issued as the police officer incorrectly worded his affidavit by using the wrong legal test in an attempt to obtain the information from Cogeco.  The appeal court agreed with West and in its decision explained the law and the legal test for production orders.

A production order under section 487.014 of the Criminal Code allows police to obtain documents, including electronic documents, from individuals who are not under investigation.  This section allows a justice or judge to make a production order if he/she is satisfied, by the information placed before him/her, that there are reasonable grounds to believe that:

  1. An offence has been or will be committed;
  2. The document or data is in the person’s possession or control; and
  3. The production order will provide evidence of the commission of the named offence.

In West’s case, the officer misstated the standard throughout his affidavit.  He stated he had grounds to “suspect” and the correct standard is grounds to “believe”.  Despite this flaw, the justice authorized the production order. 

The trial judge also failed to address this error.  Given the trial judge’s error, no deference was given by the appeal court to the trial judge’s decision and the three member panel was allowed to consider afresh whether there was a basis on which the production order could have been issued.  The appeal court concluded that the production order was issued in error, therefore the search warrant could not have been issued and the search of West’s residence was unreasonable. 

The Appeal Court ruled that the officer erred when he swore in his affidavit that he had the “grounds to suspect” a crime had been committed, as opposed to the “grounds to believe” a crime had been committed. 

According to Justice Michael Tulloch, Hamilton Police “were effectively fishing for a connection to the offence”.  Thus, the search of West’s residence and electronic devices was unlawful and a violation of the Charter.

Although the Crown prosecutors can appeal this decision to the Supreme Court of Canada, we do not have any information at this time as to whether this decision will be appealed.  We will report any developments in this blog when further information becomes available.

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 reputation for effective results in defending all types of criminal legal charges.  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.

20,000 Watch Livestream of Judgment as Off-Duty Officer is Found Guilty of Assault

Written on Behalf of Affleck & Barrison LLP

Last week, an unprecedented event took place when more than 20,000 people watched Justice Joe Di Luca read his 62 page ruling for four hours in an online livestream. 

Justice Di Luca found off-duty Toronto police Constable Michael Theriault (“Michael”) guilty of assaulting Dafonte Miller (“Miller”).  Michael was acquitted of the charges of obstruction of justice and his brother, Christian Theriault (“Christian”), was acquitted of all charges of aggravated assault and obstruction of justice.

PUBLIC INTEREST DEMANDS LIVESTREAM OF JUDGE’S DECISION

In his judgment, Justice Di Luca recognized the immense public interest that the case before him generated given the issues of racism and police accountability.  However, he stated that his duty was not to “conduct a public inquiry into matters involving race and policing”, his responsibility was to decide “whether the Crown has proven the offences charged beyond a reasonable doubt based on the evidence that was presented in court”.

The fact that so many people were watching the decision streaming live demonstrates that the public wants to have access to the court process and see justice in action.  The decision by Justice Di Luca to livestream his decision also shows the court’s dedication to legitimacy and authenticity.

Justice Di Luca stated in his decision:

This case has attracted significant public and media interest.  This interest is welcome as the openness of the court process is one of its core defining principles.  It is also welcome because public and media interest fosters legitimate debate, criticism and change, all of which are essential features of a functioning modern democracy.

WHAT HAPPENED?

The depiction of the events that occurred in the early morning hours of December 28, 2016 were incompatible between Miller and the Theriault brothers.

According to Miller, he was walking down the sidewalk with friends when he was approached and questioned by the Theriault brothers.  Miller and his friends ran, but he was eventually caught and viciously beaten.  Michael allegedly used a metal pipe and Christian used his hands and feet.  Miller was struck in the eye with the metal pipe and suffered serious injuries to the bones around his face, his wrist was broken, he lost vision in his left eye and had difficulty seeing out of his right eye.  As a result of this incident, Miller underwent two surgeries and had to have his damaged eyeball removed and fitted for a prosthesis.

According to the Theriault brothers, they were inside the garage at their parents’ home when they heard a commotion outside.  They opened the garage to find two males inside one of their vehicles.  The individuals ran in different directions.  The brothers chased Miller, with the intention of arresting him and waiting for police to arrive.  The cornered him in between two houses at which time Miller produced a metal pipe and began swinging it.  Christian alleges that he was hit in the head and a struggle ensued.  Michael proceeded to punch Miller multiple times in the face, likely causing Miller’s eye injury.  Michael denies hitting Miller with the metal pipe.  The Theriault brothers contend that they used reasonable force in their attempt to arrest Miller and acted in self-defence when Miller used the metal pipe as a weapon.

Miller was arrested at the scene and charges were laid, including theft under $5,000 and assault with a weapon.  In the end, these charges were withdrawn by the Crown.

The Special Investigations Unit investigated the incident and the Theriault brothers were jointly charged with aggravated assault and separately charged with attempting to obstruct justice given their dishonesty with the Durham Regional Police Service.

JUSTICE DI LUCA’S DECISION AT TRIAL

Justice Di Luca specifically acknowledged that there were credibility issues with multiple witnesses and therefore he could not conclusively determine a number of important facts in this case.  Specifically, he could not positively determine where the metal pipe came from or who first handled it.

Justice Di Luca found that Miller and his friends were stealing items from cars and that Michael’s initial plan was “likely not to arrest Mr. Miller, but rather to capture him and assault him”.  Michael never identified himself as a police officer or mentioned an arrest during the chase or the fight.  Justice Di Luca stated:

To be blunt, I would have expected the first thing out of Michael Theriault’s mouth as he was chasing Mr. Miller while wearing only socks would have been “Stop…you are under arrest…I’m a police officer,” or words to that effect.

Although it was not clear as to the origin of the metal pipe, Justice Di Luca stated:

Even assuming that the pipe was first introduced by Mr. Miller, it was quickly removed from him and the incident became one-sided, with Mr. Miller essentially being beaten by Michael and Christian Theriault.

Justice Di Luca was “left with reasonable doubt” that Michael was acting in self-defence.  When Miller headed towards the door of the nearby home to seek assistance and was badly injured, he was essentially in retreat.  Justice Di Luca stated:

The already razor thin self-defence justification evaporates at this stage.

Justice Di Luca was satisfied beyond a reasonable doubt that when Michael struck Miller with the pipe he was not acting in self-defence or in the course of an arrest, and therefore committed an unlawful assault.

WHAT HAPPENS NEXT?

Michael is currently suspended from the Toronto Police Service and has been since July 2017.  He will continue to remain out on bail until his sentencing hearing. 

A professional standards investigation is underway on behalf of the Toronto Police Service with respect to the events that transpired and the Office of the Independent Police Review Director is also continuing to investigate this incident.

We will provide additional information regarding any developments as they take place in this blog.

In the meantime, if you have been charged with an assault or related offence or have any questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.