Recent decision

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 About Human Remains 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.

Supreme Court of Canada Clarifies Entrapment by Police in Dial-a-Dope Cases

Written on Behalf of Affleck & Barrison LLP

Canada’s highest court recently released its written decision in a pair of related cases regarding the issue of entrapment.  Javid Ahmad (“Ahmad”) and Landon Williams (“Williams”) were each charged with drug offences after police purchased cocaine from them. 

The Supreme Court of Canada confirmed that police must form a reasonable suspicion that the individual on the phone is dealing drugs before asking to buy drugs.

WHAT HAPPENED?

Toronto police responded to tips to investigate alleged dial-a-dope schemes.  This type of scheme involves a seller communicating with their customers over cell phones and arranging to purchase drugs at an agreed upon location.  In each case, officers called a particular phone number and following a brief conversation requested drugs and arranged a meeting spot to complete the transaction. 

Ahmad and Williams were each arrested and charged with drug-related offences.  Both accused argued at trial that their proceedings should be stayed on the basis of entrapment.

In the case of Ahmad, the police received a tip that “Romeo” was selling drugs over the phone.  Following a short conversation with “Romeo”, a deal was struck to sell the officer cocaine and a location was agreed upon.  The officer met “Romeo” (Ahmad) in person to sell him the cocaine, at which time he was arrested and searched.  At Ahmad’s trial, he was convicted and the judge concluded that he was not entrapped as police had not offered him an opportunity to traffic drugs until their tip had been corroborated during the course of the phone conversation. 

In the case of Williams, police received a tip that “Jay” was selling cocaine.  The officer called “Jay” and arranged a meeting time and place to buy crack cocaine.  The drug deal took place.  Eleven days later, another drug deal was arranged.  A month later, the police arrested Williams.  At Williams’ trial, the judge concluded that he was entrapped because the officer who contacted him provided him with the option to sell drugs before forming a reasonable suspicion that he was drug trafficking.  Thus resulting in a stay of the drug-related charges.

Both Ahmad’s and Williams’ cases were heard together on appeal.  The majority of the Court of Appeal held that where reasonable suspicion relates to the phone number, the police can provide opportunities to commit a crime even if there is no reasonable suspicion about the person who answers the phone.  Therefore, at their appeals both Ahmad and Williams were convicted of drug offences.

WHAT IS ENTRAPMENT?

Entrapment takes place when the police encourage an individual to commit a crime or provide an individual with the opportunity to commit a crime without having a reasonable suspicion that the individual is involved in that particular criminal activity. 

The Supreme Court of Canada set out two categories for the defence of entrapment in the case of R. v. Mack

  1. The police may present an opportunity to commit a crime only without acting upon a reasonable suspicion that either a specific person is engaged in criminal activity or people are carrying out criminal activity at a specific location;
  2. The police, while having a reasonable suspicion, go beyond providing an opportunity and induce the commission of an offence.

WHAT DID THE SUPREME COURT OF CANADA DECIDE?

On appeal to the Supreme Court of Canada, both Ahmad and Williams argued that the police did not have the required reasonable suspicion that either individual was involved in criminal activity before asking them over the phone to buy drugs.

The majority of the judges of the Supreme Court concluded that Ahmad was not entrapped and that Williams was entrapped by the police.

The court held that police can ask a person during a telephone conversation to commit a crime, but only if there is already reasonable suspicion that the person is involved in criminal activity.  The reasonable suspicion must relate to the specific person committing a crime or a crime occurring in a specific location.  Given the digital world that we live in, a specific location can include a phone number.  Thus, police can have a reasonable suspicion that the phone number is being used for the crime before asking the person who answers the phone to commit a crime.  The court was concerned about the risks to privacy of allowing the location to be expanded to virtual spaces and stated:

…to properly protect these interests, police must have reasonable suspicion over an individual or a well-defined virtual space, like a phone number, before providing an opportunity to commit a crime.

Although in both cases, the police didn’t have reasonable suspicion before calling the phone numbers, the court concluded that the police became reasonably suspicious in Ahmad’s case to suspect he was selling drugs while talking with him on the phone and before asking to buy drugs from him.  In Williams case, the police asked to buy drugs from him prior to having a reasonable suspicion that he was selling drugs during their phone conversation. 

The majority of the court stated:

As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. …

At the same time, police require various investigative techniques to enforce the criminal law.  While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.

Based upon the specific circumstances in each case, Ahmad’s conviction was upheld and the stay of proceedings for Williams was reinstated.

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

Appeal Court Expunges the Defence of Self-Induced Intoxication

Written on Behalf of Affleck & Barrison LLP

Last week, amidst great controversy, the Ontario Court of Appeal released its decision in the cases of R. v. Sullivan and R. v. Chan regarding the application of the defence of self-induced intoxication. 

This significant decision declared that section 33.1 of the Criminal Code of Canada (“CC”) is unconstitutional and of no force or effect.

SECTION 33.1 OF THE CRIMINAL CODE

Section 33.1 of the CC established that if an accused caused his/her own intoxication and commits a violent offence, he/she cannot claim that he/she was too intoxicated to be found guilty of even general intent offences (i.e. assault and sexual assault).  This applies even if he/she was intoxicated to the point of automatism (the performance of an action unconsciously or involuntarily), even if his/her acts were involuntary or he/she lacked the mental state to commit the violent act.

In its latest decision, the Ontario Court of Appeal determined that this law breached “virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence”.

WHAT HAPPENED IN THE SULLIVAN CASE?

In the case of David Sullivan, the accused over-consumed prescription medication in an attempt to take his own life.  The medication left him in a state of extreme psychosis.  During the psychotic episode, he believed he had captured an alien and proceeded to stab his mother.

At trial, Sullivan was found guilty of the violent offence despite Sullivan’s contention that his intoxication was involuntary as it resulted from a suicide attempt. 

WHAT HAPPENED IN THE CHAN CASE?

Thomas Chan, a high school student, stabbed and killed his father and severely injured his father’s partner during a psychotic episode after consuming magic mushrooms.  Chan believed he was a deity and that his father was the devil. 

At trial, Chan also attempted to rely upon the defence of non-mental disorder automatism.  Given section 33.1, which prohibits the use of automatism as a defence in cases of violence when an accused’s intoxication was self-inflicted, this defence failed and Chan was convicted.

THE COURT OF APPEAL’S DECISION REGARDING SECTION 33.1 OF THE CRIMINAL CODE

The Court of Appeal found that section 33.1 of the CC violated the following sections of the Charter of Rights and Freedoms:

  1. The right to life, liberty and security of the person (section 7); and
  2. The right to the presumption of innocence (section 11(d)).

Under Canadian law, if a law violates a Charter right, in certain circumstances it can be justified by the Crown and upheld despite the violations.  In this case, the Appeal Court could not find benefits to the law, and instead found that the law was contrary to the principles of fundamental justice.

In its decision, the Court of Appeal wrote:

Put simply, the deleterious effects of s.33.1 include the contravention of virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence. …

With very little true gain, Parliament has attempted to cast aside the bedrock of moral fault.

The Court of Appeal held that a person must act voluntarily to commit a crime.  Although lawmakers attempted to help victims attain justice with the introduction of section 33.1 of the CC, the law in actuality violated an accused’s rights by making them responsible for violence they had no control over.  Justices David Paciocco and David Watt wrote:

As for recognizing and promoting the equality, security and dignity of crime victims, it is obvious that those few victims who may see their offenders acquitted without s.33.1 will be poorly served.  They are victims, whether their attacked willed or intended the attack.  However, to convict an attacker of offences for which they do not bear the moral fault required by the Charter to void this outcome, is to replace on injustice for another, and at an intolerable cost to the core principles that animate criminal liability.

The Court of Appeal ordered a new trial for Chan as he was only convicted of offences that included an element of assault and those convictions depended upon section 33.1.  On the other hand, the Court of Appeal acquitted Sullivan of all of his charges.

WHAT HAPPENS NEXT?

The Crown prosecutor has advised that it will be seeking leave to appeal these decisions to the Supreme Court of Canada.

The Women’s Legal Education and Action Fund has strongly expressed its frustration over this Court of Appeal decision and believes that this decision sends a message “that men can avoid accountability for their acts of violence against women and children through intoxication”.

However, the Canadian Civil Liberties Association has expressed that the concern that the floodgates have been opened to men arguing the defence of intoxication are unwarranted.  An accused must still prove that he/she was in a state of automatism, not merely drunk.

Cara Zwibel, Director with the Canadian Civil Liberties Association, stated:

This is a rarely used provision.  It’s not this widespread, systemic concern.

We will continue to follow the law as it evolves in response to the recent Ontario Court of Appeal decisions and will report any developments in this blog.

In the meantime, 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 905-404-1047.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting their 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.

Ontario Courts Consider COVID-19 on Bail Review

Written on Behalf of Affleck & Barrison LLP

The subject of the COVID-19 virus has made its way into Ontario’s criminal courts and has been considered a “material change” in circumstances in a recent decision by the Ontario Superior Court of Justice.

In considering bail review applications in the cases of R. v. J.S and R v. Nelson, the Judges both acknowledged that the practice of social distancing and self-isolation is limited in Ontario’s prisons.

J v. J.S.

A suspected drug dealer, identified as J.S., requested a bail review by teleconference.  The defence argued that the Justice of Peace erred and that there were material changes in circumstances to allow for a house arrest surety bail.  A surety is someone who agrees to supervise an accused person while he/she is released into the community, or in this case on house arrest, as he/she awaits a court date to resolve a criminal matter.

In Canada, bail decisions are made following the consideration of the following three sets of factors:

  1. Whether detention is needed to ensure an accused will attend court;
  2. To protect the public safety;
  3. The strength of the Crown’s case and the consideration of other circumstances surrounding a case.

In the case of J.S., Justice Copeland acknowledged that there were two material changes in circumstances, which included new proposed sureties and the fact that COVID-19 had developed in Canada.

According to Justice Copeland:

In my view, the greatly elevated risk posed to detained inmates from the coronoavirus, as compared to being at home on house arrest is a factor that must be considered in assessing the tertiary ground. …

[B]ased on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home.  The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects.  The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells.  … If more people are infected, those resources will be more strained.

Justice Copeland granted Mr. S’s bail review application and ordered the following terms:

  • $15,000 surety recognizance;
  • to reside with his surety K.S.;
  • to remain in his residence at all times, except in the continuous presence of a surety or for a medical emergency of himself or an immediate family member;
  • to have no contact whatsoever with J.C.; and
  • to not possess any unlawful drugs, except with a valid prescription.

R v. NELSON

In another recent case in the Ontario Superior Court of Justice, Justice M. L. Edwards was asked to consider whether to release on bail 27-year-old Nathaniel Nelson (“Nelson”), who was suspected of robbing a jewelry store while armed.

Nelson’s lawyer argued that his client should not face “the heightened risk of contracting the virus – a risk that is heightened because of the conditions that exist in a prison environment”.  However, his lawyer also “conceded that but for the virus, he fully recognized that the new plan of release was not one that had much, if any, chance of success”.

Justice Edwards ruled that those seeking bail on the grounds of COVID-19 must present “at least some rudimentary evidence” that they are more susceptible to the virus due to underlying health issues.  He stated:

An incarcerated person who is advancing in age and who has underlying health issues will almost, without doubt, be at a greater health risk of contracting the virus, with possible serious ramifications.

The heightened risk facing those in jail due to the unlikelihood of practicing social distancing while in a jail cell with double or triple bunking was a factor considered by Justice Edwards on this bail review.  Nelson’s youth, lack of pre-existing physical or mental health conditions, his prior criminal record and the fact that his charges were serious were also factors considered by the court. 

Justice Edwards dismissed the bail application and concluded:

I do not take lightly my decision to dismiss Mr. Nelson’s application.  Mr. Nelson previously did not meet his onus on the secondary and tertiary grounds for release. … I am not satisfied that there would be confidence in the administration of justice if Mr. Nelson was released from jail.

We will continue to follow any developments in the law with respect to the impact of COVID-19 and will provides updates in this blog

If you have been charged with a criminal 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.  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.

Reduced Sentence for Drunk Driver Who Killed Three

Written on Behalf of Affleck & Barrison LLP

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

WHAT HAPPENED?

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

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

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

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

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

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

THE APPEAL

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

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

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

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

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

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

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

Joyriding Teen Pleads Guilty to Manslaughter in 2011 Police Death

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

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

THE APPEAL

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

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

Justice Janet Simmons wrote:

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

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

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

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

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

GUILTY PLEA

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

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

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