recent decisions

Supreme Court of Canada Rules Bail Conditions Must Be Knowingly Violated

Written on Behalf of Affleck & Barrison LLP

In its unanimous decision last week, the Supreme Court of Canada ordered a new trial for Chaycen Michael Zora (“Zora”), who had been convicted of breaching his bail conditions. 

The highest court in Canada concluded that an individual accused of breaching his/her bail conditions must knowingly or recklessly violate those conditions in order to be found guilty of breaching them.

WHAT HAPPENED?

Zora was charged with several drug offences in British Columbia.  He was released on bail and required to abide by twelve conditions.  These conditions included that he keep the peace and be of good behaviour, report to his bail supervisor, not possess any non-prescribed controlled substances, not possess or have a cell phone, obey a curfew and be present at his front door within five minutes if and when the police or bail supervisor appeared to check on him, amongst other conditions. 

In October 2015, police rang Zora’s doorbell on two occasions and he did not answer.  He was therefore charged with two counts of breaching his curfew and two counts of failing to meet the condition of responding to police at his home during a curfew check.

At his trial, Zora was acquitted of charges of breaching curfew as it could not be proven beyond a reasonable doubt that Zora had been outside of his home after curfew.  However, Zora was fined $920 and found guilty of two counts of failing to appear at the door in response to curfew compliance checks.

Zora argued that he did not hear the doorbell as it was difficult to hear it from where he slept.  Furthermore, he testified that he was undergoing methadone treatment, which made him very tired, and was in the process of withdrawal from his heroin addiction.

Zora also testified that he changed where he slept in his home and set up an audio-visual system at his front door to help alert him to further police checks, which ensured that he was complying with his conditions of bail. 

Zora unsuccessfully appealed the trial judge’s decision.  He then proceeded to take his appeal to the Supreme Court of Canada

THE DECISION OF THE SUPREME COURT

Zora appeals his conviction for failing to comply with his bail conditions by not answering the door when police appeared at his residence to ensure that he was complying with his bail conditions.  In failing to do so, Zora had committed the actus reus of the crime (the physical act of the crime).

The Supreme Court of Canada was asked to determine whether Zora had committed the mental element, also known as the mens rea, of the crime, which also must be present, in order to secure a conviction under section 145(3) of the Criminal Code.

It is a criminal offence, under section 145(3) of the Criminal Code, to breach bail.  This crime carries a maximum penalty of two years in prison.  Therefore, an accused may be subject to imprisonment for breaching conditions of their bail even if he/she is not found guilty of any of the original charges. 

In writing on behalf of the Supreme Court, Justice Martin explained what was required to satisfy the mental element of the crime:

I conclude that the Crown is required to prove subjective mens rea and no lesser form of fault will suffice.  Under s.145(3), the Crown must establish that the accused committed the breach knowingly or recklessly.  Nothing in the text or context of s. 145(3) displaces the presumption that Parliament intended to require a subjective mens rea. 

…The realities of the bail system further support Parliament’s intention to require subjective fault to ensure that the individual characteristics of the accused are considered throughout the bail process.

…Not only is this conclusion consistent with the presumption of subjective fault for crimes like s. 145(3), it is supported by its place and purpose in the overall bail system, the serious consequences which flow from its breach, and how the consideration of individual circumstances is the proper focus both for setting conditions and determining the mental element for their breach.

The Supreme Court held that subjective mens rea can be established when the Crown has proven:

  1. The accused had knowledge of the conditions of the bail order, or they were willfully blind to those conditions; and
  2. The accused knowingly (or were willfully blind to the circumstances) failed to act according to their bail conditions despite the knowledge of them; or
  3. The accused recklessly failed to act in accordance with their bail conditions (i.e. perceived an unjustified risk that their conduct would fail to comply with their bail conditions).

In conclusion, the Supreme Court held that subjective fault is required for a conviction under s. 145(3) of the Criminal Code.  The court found that the lower courts erred in law by applying an objective rather than a subjective standard of fault.  The Supreme Court allowed Zora’s appeal, quashed his convictions and ordered a new trial on the two counts of failing to appear at his door. 

If you have been charged with a bail 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.  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.

Supreme Court Finds Driver Guilty as Risks are Reasonably Foreseeable When Driving Three Times the Speed Limit

Written on Behalf of Affleck & Barrison LLP

Earlier this spring, the Supreme Court of Canada determined that a reasonable person should foresee the risk of excessive speeding towards a major intersection and that this behaviour can be a departure from the reasonable standard of care required of drivers in Canada.

The highest court in Canada found that the trial judge in the case of R. v. Chung made two errors of law in a case of dangerous driving causing death.

WHAT HAPPENED?

On November 14, 2015, Ken Chung (“Chung”) drove his vehicle almost three times the speed limit towards a major intersection in a mixed residential-commercial area in Vancouver.  Chung crashed into a left turning vehicle, resulting in the death of the driver at the scene of the accident. 

A dashboard camera video caught 4.9 seconds of the accident showing Chung passing one car on the right and accelerating from 50 km/h to 140km/h before entering the intersection.  Chung was observed almost hitting a Toyota that was making a right turn in front of him and then colliding with the victim’s vehicle at a speed of 119 km/h.

The trial judge concluded that Chung’s speeding through the intersection was objectively dangerous to the public and fulfilled the actus reus (the physical act of the crime) of dangerous driving.  However, there was reasonable doubt as to whether Chung’s conduct met the mens rea (the intention, knowledge or recklessness of the accused) requirement for the crime of dangerous driving.  The test for mens rea in driving cases refers to a marked departure from the standard of care of a reasonable person in similar circumstances.  The trial judge held that the momentariness of Chung’s speeding did not demonstrate criminal fault.

At his trial, Chung was acquitted of dangerous driving causing death under section 249(4) of the Criminal Code (this section has been repealed and replaced with section 320.13(3) of the Criminal Code).  This crime requires two components:

  1. The prohibited conduct:  Operating a motor vehicle in a dangerous manner resulting in death; and
  2. The required degree of fault:  A marked departure from the standard of care that a reasonable person would have exercised while driving in the circumstances when the incident occurred.

On appeal, it was found that the trial judge had erred in law by finding that Chung had lacked the mens rea of the driving offence, and in finding that the momentary acceleration in speed could not satisfy the mens rea component of the crime  Therefore, the acquittal was overturned and a dangerous driving conviction was entered.

Chung appealed the conviction and took his case to the Supreme Court of Canada (“SCC”).

THE SUPREME COURT OF CANADA DECISION

The SCC found that the trial judge made two errors of law by applying the wrong legal principle and by failing to apply the correct legal test by not assessing what a reasonable person would have foreseen and done in the circumstances.

Justice Sheilah Martin, writing for the majority of the SCC, found that Chung’s actions were not comparable to momentary mistakes that a reasonable driver may make.  She wrote:

A reasonable person would have foreseen that rapidly accelerating towards a major intersection at a high speed creates a very real risk of a collision occurring within seconds.  This is what actually occurred in Mr. Chung’s case.  Risky conduct at excessive speeds foreseeably can result in immediate consequences. 

… A reasonable person understands that driving is an inherently risky activity.  It is made all the more risky the faster we drive, the harder we accelerate, and the more aggressively we navigate traffic.  Although even careful driving can result in tragic consequences, some conduct is so dangerous that it deserves criminal sanctions.

The SCC concluded that the test for mens rea is whether a reasonable person would have foreseen the immediate risk of travelling almost three times the speed limit towards a major intersection.  Therefore, it held that Chung’s driving was a “marked departure from the norm”.

Justice Martin warned that there may be cases where excessive speed may not be a discrepancy from the standard of care.  She explained:

Only when there has been an active engagement with the full picture of what occurred can the trial judge determine whether the accused’s conduct was a marked departure from the conduct of a reasonable and prudent driver.

The SCC dismissed the appeal and restored Chung’s conviction.

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.

Latest News Regarding Inmates and the COVID-19 Crisis

Written on Behalf of Affleck & Barrison LLP

Last week, the Corrections Service of Canada (“CSC”) confirmed that an inmate at British Columbia’s Mission Institution, a medium security federal prison, died in hospital as a result of complications related to COVID-19.

According to reports, there are 54 inmates and 8 corrections officers at Mission Institution that have tested positive for COVID-19.  The inmate in question, whose name has been withheld from the media, died at Abbotsford Regional Hospital where a mobile medical unit has been installed to treat prisoners infected with the virus.

Throughout Canada, a total of 145 inmates have tested positive for COVID-19 at federal prisons.  The hardest hit has been Mission Institution and Joliette Institution in Quebec.  At Joliette, 48 inmates and 34 correctional officers have tested positive for the virus.

THE GOVERNMENT’S RESPONSE TO COVID-19 IN PRISONS

Public Safety Minister Bill Blair has announced that the government continues to consider measures to keep inmates, staff and communities safe and healthy during the pandemic.

The CSC has reported that masks have been issued to both inmates and corrections officers, and that correctional officers are not permitted to move between prisons.

The CSC has also taken steps to temporarily suspend inmate visits, temporary absences, work releases, institution transfers, prison programs and activities in an effort to stop the spread of the virus.

According to a statement by Minister Blair:

Our greatest responsibility is keeping Canadians safe – that includes those in our correctional institutions.  We know the unique vulnerabilities facing correctional institutions during this public-health crisis.  The situation around COVID-19 is both challenging and rapidly evolving, and our response will continue to adapt as required to prevent further tragic loss of life.

CANADA’S DEFENCE LAWYERS URGE THE GOVERNMENT TO DEPOPULATE PRISONS

The Criminal Lawyers’ Association advocates for a reduction in the number of inmates in Canada’s prisons in the interest of public safety. The Association has distributed to its 1,600 members an affidavit by physician and epidemiologist Dr. Aaron Orkin.  According to Dr. Orkin, an outbreak in prison or jail would be similar to the spread of the virus on cruise ships or in long-term care facilities.  These types of facilities all involve close quarters making it nearly impossible to contain the virus from spreading.   Dr. Orkin anticipates that the virus will make its way into every correctional facility in Canada.

The Criminal Lawyers’ Association does not believe that every inmate is an appropriate candidate for release.  According to John Hale, a criminal defence lawyer and the vice-president of the Criminal Lawyers’ Association:

Obviously there are people in the jails who are dangerous and need to be kept in to protect the community, but there are a lot of people in jail who are not dangerous who could be either serving a sentence or awaiting trial outside of jail.

FIRST INMATE WITH SERIOUS HEALTH ISSUES RELEASED FROM FEDERAL PRISON

On April 2, 2020, an application for an unescorted temporary absence was submitted on behalf of 53-year-old Derrick Snow (“Snow”), who is serving a sentence at Ontario’s Bath Institution for breaking-and-entering and theft.  Snow suffers from diabetes, pulmonary disease and has recently been diagnosed with malignant sarcoma.  Snow argued that his underlying medical conditions put him at greater risk of becoming infecting with the virus and die.

The CSC granted Snow permission to live with his sister in London, Ontario.  He will receive treatment for cancer and other ailments until his July release date.  The CSC approved Snow’s request as he did not have a violent criminal history and held that the supervision plan was appropriate and included special conditions, including an electronic monitoring ankle bracelet and a curfew.  Furthermore, the CSC decision emphasized that it was approving Snow’s request despite taking “extraordinary measures” to prevent the spread of the virus in federal prisons. 

ONTARIO HAS DRASTICALLY REDUCED ITS PRISON POPULATION

Offenders who have been convicted of a crime and are sentenced to jail of two years less a day serve their sentences in provincial institutions.  In Ontario, provincial jails typically hold between 8,000 to 9,000 inmates. 

Both Ontario and the Northwest Territories have taken extreme measures to reduce their prison populations by 25%.  To date, nearly 2,500 inmates have been released from Ontario’s prisons, making the inmate population at its lowest level since 1990.

Ontario began implementing measures to limit the spread of the deadly virus in mid-March, including reducing the number of inmates in custody.  Inmates are being carefully assessed to ensure that they are at low risk to offend.  Those that have been convicted of serious violent crimes will not be considered for early release.

ONTARIO CORRECTIONAL INSTITUTE IN BRAMPTON TEMPORARILY CLOSES

Earlier this week, the Ministry of the Solicitor General confirmed that 60 inmates and eight staff have tested positive for COVID-19 at the Ontario Correctional Institute in Brampton. 

This facility will temporarily close and 140 inmates will be moved to the Toronto South Detention Centre in Etobicoke.  During the shutdown, the facility will be professional cleaned and sterilized.

We will continue to follow new information regarding how the COVID-19 pandemic is effecting the Canadian justice system and will provide updates in this blog

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.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Ontario Court Finds Prostitution Laws Unconstitutional

Written on Behalf of Affleck & Barrison LLP

An Ontario court judge in London has recently ruled that parts of Canada’s prostitution laws are unconstitutional.  Justice Thomas McKay ruled that the charges of procuring, receiving a material benefit and advertising sexual services laid against a couple who ran an escort business should be stayed or set aside as they violate the Charter of Rights and Freedoms.

Although the judgement is significant, it does not nullify the law as the decision was made in provincial court and is not binding.  Therefore, the law remains in effect unless an appellate court agrees with Justice McKay’s lower court decision.

WHAT HAPPENED?

Hamad Anwar (“Anwar”) and Tiffany Harvey (“Harvey”) are common law spouses.  They ran an escort business called Fantasy World Escorts from December 2014 to November 2015.  Anwar owned the business and Harvey performed the management duties for the business.  Sexual services were provided in exchange for cash at two apartments in London, Ontario or other prearranged locations in London, Calgary and Edmonton. 

Both Anwar and Harvey were responsible for the company’s advertising, which included a website used to promote sexual services and to recruit new employees.  They also advertised on bus stop locations throughout the City of London.  They promised an average salary of $2,500 to $5,000 a week, paid annual vacation, benefits and help with tuition and book payments for students. 

In October 2015, an undercover police officer booked an encounter at a hotel in London.  The officer met the escort in the hotel room and gave her $220.  He then explained that he became nervous and was having second thoughts.  The escort texted Harvey to ask if she could return the money, but did not receive a response, so she left the hotel. 

The couple were charged with receiving a material benefit from sexual services (section 286.2(1)), procuring (section 286.3(1)) and advertising an offer to provide sexual services for consideration (section 286.4) in contravention of the Criminal Code.

CONSTITUTIONAL CHALLENGE

In 2014, Bill C-36, the Protection of Communities and Exploited Persons Act, received Royal Assent and altered Canada’s prostitution laws.  This bill criminalized the purchase of sex and communication, the actions of third parties who economically benefit from the sale of sex and any advertising of the sale of sexual services.  However, it did grant immunity to those individuals who advertise or sell their own sexual services.

The couple brought an Application before the court to challenge the constitutionality of the Criminal Code provisions that they were charged under.  They argued that these sections violate their Charter rights.

Anwar and Harvey argued before Justice McKay that the law did not provide sex worker protections to other sectors of society, including third-party managers, and did not allow sex workers the ability to form their own associations to protect themselves.  They also argued that the law violated their freedom of expression and the freedom from unreasonable government interference.

In short, the couple maintained that these laws endanger sex workers by forcing them to work alone, without any protection or ability to outline terms or conditions or to screen clients. 

Following eight days of evidence, Justice McKay found that the three provisions of the Criminal Code violated the rights set out in the Charter, and these violations could not be justified. 

McKay ruled that the criminalization of third-parties makes it almost impossible for most sex workers to work together, for health and safety reasons or to share staff.  He wrote that the effect of the current law is, “at a basic level to deprive sex workers of those things that are natural, expected and encouraged in all other sectors of the economy.  As a result, sex workers, who are more likely in need of protection than most workers, are denied the benefits accorded to mainstream labour.

McKay also ruled that the criminalization of procuring has the effect of isolating marginalized or inexperienced sex workers and prevents them from seeking advice and support from more experienced peers.

Although this is a lower level decision, it is an important decision for judges who consider similar cases. Defence lawyer, James Lockyer, stated:

In order for the sections to be considered null and void, it would have to go up to the next level of court to the Ontario Court of Appeal.  And that’s up to the Crown whether or not they appeal it.   That’s in their hands, not ours.  And if the Ontario Court of appeal gives a decision, if there was an appeal, then ultimately one or the other parties could take it on to the Supreme Court of Canada.

We will continue to provide updates on this blog regarding any developments with respect to prostitution law in Canada and specifically with respect to this case if Justice McKay’s decision is appealed.

In the meantime, if you have been charged with a sexual 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.  For your convenience, we offer 24-hour phone services.  We are available when you need us most.

Two Convictions Overturned in Ontario Due to Rights Violations by Police

Written on Behalf of Affleck & Barrison LLP

As we begin the new decade, in two separate Ontario court decisions, police violations of the accused’s rights resulted in quashing convictions for child pornography and weapons offences.  The Ontario Court of Appeal found that the breaches of the convicted individuals’ Charter rights by police brought the administration of justice into disrepute.

THE CASE OF PETER MCSWEENEY

Peter McSweeney (“McSweeney”) was convicted in October 2017 of child pornography offences partly based upon incriminating statements he made to police.

In May 2016, nine police officers arrived at McSweeney’s home with a search warrant.  Durham Regional Police Detective Jeff Lockwood spoke with McSweeney on his porch and began questioning him without reading him his rights.  McSweeney provided a self-incriminating statement and he was then arrested and taken to the police station.

McSweeney again incriminated himself after stating that he wished to remain silent after talking to a lawyer.

During the trial, Judge Mary Teresa Devlin allowed McSweeney’s statements to be entered as evidence despite the defence objecting.  Justice Devlin ruled that McSweeney was not detained when he gave a self-incriminating statement on the porch and therefore the officer was not obliged to advise him of the right to speak to a lawyer.

At the Court of Appeal, the judges found that a “reasonable observer” would have believed that McSweeney was detained at home and also found that the questioning at the police station was improper.

Justice Strathy, writing on behalf of the two other justices hearing the appeal, stated:

The state conduct was willful and in disregard of the appellant’s asserted Charter rights.  It had a serious impact on those rights and on his attempt to exercise them.

As a result of this decision, the appeal court allowed the appeal, quashed the convictions and ordered a new trial.

THE CASE OF BILAAL MOHAMMED

In May 2016, Bilaal Mohammed (“Mohammed”) was convicted of several firearm offences, possession of property obtained by crime, and possession of cannabis for the purpose of trafficking.  At the time of his appeal, he had already served his sentence.

During a routine traffic stop, Mohammed was pulled over by provincial police in a parking lot near Alfred, Ontario for a broken license-plate light.  The officer smelled marijuana and gave Mohammed a “soft caution” (an informal caution) and did not  advise him of his right to speak to a lawyer.

Mohammed was strip-searched in the parking lot, to the point of having his pants dropped to his ankle.  Police did not find a gun.  During the search of his car, police found some cash, a debt list, a grinder, a scale, several cellphones, some cannabis and ammunition.

Mohammed was asked if he had a gun and was told that if he turned it over he would be released.  He admitted that he had a loaded gun strapped to his pant leg.  He was arrested, advised of his rights and taken to the police station, at which point his cellphone was searched.

At his trial, Mohammed was convicted of various offences for which he appealed.  He challenged the trial judge’s ruling to admit evidence obtained during his roadside strip search, his interrogation without counsel, the search of his vehicle, and the search of his cellphone. 

At the appeal, the Crown agreed that failing to initially advise Mohammed of his rights, questioning him before he was able to talk to a lawyer, as well as the strip search and the search of Mohammed’s phone without a warrant were serious Charter breaches.

The judges that heard the appeal agreed with the Crown and stated “each of the breaches is serious.  Taken as a whole, the breaches are so egregious that the evidence must be excluded.”

The appeal court ruled that the first strip search was not authorized by law.  Furthermore, it was conducted in public in a highly invasive fashion.  Mohammed’s section 7 and 10(b) Charter rights were breached as he was questioned without being provided the right to counsel and he was persuaded to turn over the gun on false pretenses.  Finally, the warrantless search of Mohammed’s cellphone used as evidence of drug trafficking was in violation of section 8 of the Charter.

The three justices on the appeal court panel wrote:

This was a series of serious rights violations, committed in apparent ignorance of well-established law, arising out of the appellant’s arrest for smoking a marijuana joint.  These violations had a significant impact on the appellant’s Charter-protected interests.

The Court of Appeal excluded all of the evidence, allowed the appeal and set aside the convictions.

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

Ontario Judge Awards $20 Million to Inmates Placed in Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

A recent decision by a Judge of the Superior Court of Justice of Ontario has ruled that the federal government breached prisoners’ rights and will have to pay $20 million to thousands of individuals who were placed in administrative segregation for long periods of time.

WHAT IS ADMINSITRATIVE SEGREGATION?

Administrative segregation refers to the isolation of inmates for safety reasons in circumstances when authorities believe there is no reasonable alternative.  Segregation occurs when a prisoner is placed in a small cell for up to 22 hours without any human contact or programming.

Critics of administrative segregation argue that this method of isolation causes severe psychological harm and amounts to cruel and unusual punishment.

Courts in both Ontario and British Columbia have also ruled that this practice of segregating prisoners is unconstitutional.

WHO IS INVOLVED IN THIS CASE?

Julian Reddock (“Reddock”), the representative plaintiff (the individual who brings a case against another in a court of law), began his action in March 2017.  His case was certified as a class action last year.  The class comprises almost 9,000 inmates who were placed in isolation in federal penitentiaries for more than 15 days between November 1, 1992 and March 2015.  

The class action claim alleges that the Federal Government breached the inmates rights to the following under the Canadian Charter of Rights and Freedoms (“Charter“):

  • to life, liberty, and security of the person (section 7);
  • not to be arbitrarily detained (section 9);
  • not to be tried or punished again for an offence (section 11(h)); and
  • not to be subjected to cruel and unusual treatment or punishment (section 12).

The class members also bring a claim in systemic negligence against the Federal Government.

According to Reddock, he spent days without leaving his cell and never knew when he would be allowed out.  Reddock would find ways to consume anti-anxiety drugs, which he would use to knock himself out.  He testified:

All I wanted was to pass out cold for as long as possible, again and again.  It was all I could think to do to cope with the hopelessness of not knowing they would let me out.

WHAT WAS THE RULING?

Justice Paul Perell provided a lengthy written ruling, which was based upon 22,500 pages of evidence.  The ruling held that the Federal Government breached the class member’s rights to life, liberty and security of the person and to be free of cruel and unusual punishment under the Charter by placing inmates in administrative segregation for more than fifteen days.

In regards to the negligence claim made by the class members, Justice Perell also ruled that the Federal Government had a duty of care in operating and managing the federal institution.  The Judge concluded that the Federal Government’s breach of its duty of care resulted in damages to each of the class members. 

Justice Perell concluded that Correctional Service of Canada violated the inmates rights protected under Canada’s Charter due to an absence of independent oversight and the lengthy terms of segregation, which caused numerous detrimental effects including anxiety, hallucinations, delusions, panic attacks and psychosis.

Justice Perell ruled that an inmate is considered to be “cruelly and unusually treated” once the placement in administrative segregation is more than 15 days.

In his ruling, Justice Paul Perell stated:

The Correctional Service operated administrative segregation in a way that unnecessarily caused harm to the inmates.  Class members suffered harm because of a systemic failure. …Many of the administrative or disciplinary cells are very poorly maintained.  They are filthy and unsanitary.

Even if some form of segregation were necessary to ensure the safety or security of the penitentiary and its population, there never has been an explanation and hence no justification for depriving an inmate of meaningful human contact.  This form of segregation is not rationally connected to the safety of the penitentiaries.

Justice Perell awarded the class of inmates $20 million, but did not award any punitive damages.  Each inmate is entitled to $500 for each placement in administrative segregation for more than 15 days for “vindication, deterrence, and compensation”.  The individual class members have the right to pursue claims for punitive and other damages at individual issues trials, if they can prove individual harm. 

The decision in the Reddock class action case is expected to be appealed by the Federal Government.  We will continue to follow the developments in the legislation and case law regarding the legality of administrative segregation in Canada and will provide updates through this blog

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please contact Affleck & Barrison at 905-404-1947 or contact us online.  We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges.  For your convenience, we offer 24-hour phone services.

Appeal Court Upholds Dangerous Offender Designation for Man Who Withheld HIV Status

Written on Behalf of Affleck & Barrison LLP

In the recent decision of R. v. Gracie, the Ontario Court of Appeal upheld the lower court’s decision designating Daniel Gracie (“Gracie”) a dangerous offender for withholding his HIV status from women, despite making legal errors.

WHAT HAPPENED?

Gracie, of Indigenous ancestry, was adopted by non-Indigenous parents as an infant.  He moved out of their home at the age of 15, at which point he became involved with the criminal justice system.  He has 25 youth convictions and 10 adult convictions.

In early 2010, Gracie was at the apartment of his friend C.C.  After an evening of drinking, he had asked her to have sex with him several times and she refused each time.  She then went to bed as she was feeling ill and tired.  He was planning on spending the night on the futon in her living room.  When C.C. woke up the next morning, her vagina was sore and semen was leaking out of it.  Gracie eventually admitted that he had sex with her while she was asleep.  Approximately, one year later C.C. found out that she had contracted HIV.

A second complainant, M.N., also accused Gracie of withholding his HIV status.  The two had an on-again off-again relationship between 2008 and 2011.  When the couple began dating again in 2011, they had unprotected sex after Gracie confirmed that he did not have any sexually transmitted diseases.  After watching a police media release naming Gracie as an HIV-infected individual charged with sexual assault, M.N. sought medical treatment and confirmed that she had contracted HIV from Gracie.

In the past, Gracie had been convicted of sexual assault causing bodily harm for the violent rape of a sex worker.  While he served his sentence for this crime, he was charged and convicted of counseling the murder of the police officer who was investigating the sexual assault incident.  He was also convicted of other crimes while he was on probation for these previous offences and committed the sexual assaults that were the substance of the appeal.

THE SENTENCING HEARING

Gracie pleaded guilty to two counts of aggravated sexual assault.  At his sentencing hearing, there was evidence to prove that Gracie had been advised by doctors and his probation officer regarding the risks of having unprotected sex and his legal obligation to disclose his HIV status to all potential sexual partners.

The trial judge at his sentencing hearing designated Gracie as a dangerous offender.  This is a legal designation only reserved for those individuals who are repeatedly convicted of violent or sexual crimes.  Crown prosecutors can apply for this designation under section 753(1) of the Criminal Code during the sentencing hearing where it can be shown that there is a high risk that the offender will commit violent or sexual offences in the future.  This designation results in an automatic imprisonment for an indeterminate period, with no change of parole for seven years.

The sentencing judge ruled that Gracie was to remain incarcerated indefinitely.

THE APPEAL

Gracie appealed the lower court decision granting him the label of dangerous offender and his indeterminate jail sentence.  Gracie argued that the sentencing judge did not properly conduct a prospective risk assessment and failed to take his Indigenous background into account during sentencing.

The three judges on the bench for Gracie’s appeal unanimously agreed that while the sentencing judge did not conduct the risk assessment until the penalty stage, rather than completing it before declaring him a dangerous offender, the verdict would have remained the same.

The appeal court held that the evidence proved that Gracie could not be trusted in the community as he had been found on all assessments to pose a moderate to high risk of violent or sexual reoffending.

The court also found that given his diagnosis of antisocial personality disorder and psychopathic traits, he would be less responsive to treatment.  Furthermore, Gracie had never showed signs of a willingness to take part in corrective programming during his previous incarcerations.

Lastly, although the sentencing judge did not reference having reviewed a report regarding Gracie’s Indigenous background, the appeal court held that those factors would not have affected the sentencing decision.  The appeal court noted that Gracie’s biological mother was Indigenous, however, he was adopted as an infant by a non-Indigenous family and moved to Toronto.  The court stated:

His life of crime began in his teenage years and he did not meet members of his biological family until much later in life, after he committed the predicate offences. …

The risk of sexual and violent recidivism was the product of his serious personality disorder, his poor treatment and supervision history, and the dim prognosis for meaningful change.

If you are facing sexual offence charges or have any questions regarding your legal rights, please contact Durham region criminal defence lawyers Affleck & Barrison LLP.  We have a reputation for effective results in defending all types of criminal legal charges.  We offer a free initial consultation and a 24-hour phone service.  Contact our office online or at 905-404-1947 to speak with one of our experienced criminal defence lawyers today.

Appeal Court Convicts Violin Teacher Who Measured Girls’ Breasts

Written on Behalf of Affleck & Barrison LLP

In an unusual decision, the Ontario Court of Appeal has convicted Claude Trachy (“Trachy”), a retired violin teacher, on numerous sexual and indecent assault charges for touching his young female students’ breasts and nipples during class. 

THE CHARGES LAID AGAINST TRACHY

Trachy was charged with the following four types of sexual offences:

  1. Sexual interference:  This offence is committed when a person indirectly or directly touches any part of the body of a person under the age of 16 for a sexual purpose. 
  2. Sexual exploitation:  This offence occurs when a person in a position of authority or trust towards a young person touches any part of the body of the young person for a sexual purpose or invites or incites a young person to touch anyone for a sexual purpose.
  3. Indecent assault:  This offence is an assault committed of an indecent nature such that the victim is violated and was superseded by the offence of sexual assault in 1983.
  4. Sexual assault:  This offence includes any unwanted sexual activity such that the sexual integrity of the victim is violated and does not require proof of sexual purpose or sexual gratification.  The Crown prosecutor must prove beyond a reasonable doubt that the accused intentionally touched the complainant without consent in circumstances of a sexual nature. 

WHAT HAPPENED AT THE TRIAL?

The trial court found Trachy not guilty of 51 charges of sexual interference, sexual exploitation, sexual assault and indecent assault. 

The court heard from 21 former female violin students of Trachy in Chatham, Ontario.  The incidents took place between 1971 and 1993, at which time the victims were young girls.

The alleged charges resulted from Trachy measuring his female students’ bodies in order to fit them for shoulder rests. 

During the trial, Trachy admitted that he asked his female students to undo their blouse on the left side and remove their bra.  He would use a ruler to measure from the top of the collarbone to the nipple, from the jaw to the collarbone and the underside of the breast.  There were also times that he would ask his students to play the violin undressed to confirm that the shoulder rest was properly fitted. 

Trachy denied having any “sexual intent” in measuring or receiving any sexual gratification.  Trachy admitted that he did not measure his male students and only measured his female students.  He also admitted at trial that he did not measure his daughter, although he taught her as well.

At trial, Justice Thomas Carey accepted all of the female complainants’ testimony, however, believed that Trachy measured his female students’ breast area not for a “sexual purpose”, but to improve their playing ability by properly fitting them for shoulder rests on their instruments. 

WHAT HAPPENED AT THE APPEAL?

Justice Mary Lou Benotto, writing on behalf of the unanimous three-judge panel of the appeal court, found that the trial judge made an error of law and that the evidence established that the charges of sexual assault and indecent assault were proven beyond a reasonable doubt.  The trial judge erred by mistaking the issue of touching for a “sexual purpose” with the issue of touching in the circumstances of a “sexual nature”. 

Justice Benotto wrote:

A reasonable observer viewing the respondent’s admitted conduct in touching and manipulating the breasts and nipples of young girls and young women both over and under their clothes would perceive a sexual context to the conduct.  These were largely girls who were in the process of developing breasts, and who were alone with the respondent in a private room with the door closed.  Their sexual integrity was violated, regardless of the respondent’s purpose. 

The appeal court convicted Trachy on 28 charges in the case of 20 out of 21 student victims.  The appeal court stayed the proceedings for one student, who was 23 at the time of her lessons.  It was the appeal court judges’ opinion that given her age, in this case, additional legal questions would arise with respect to consent. 

The appeal court upheld Trachy’s acquittals on all charges of sexual exploitation and sexual interference.

Given that the appeal decision was made on a question of law, Trachy has an automatic right to appeal to the Supreme Court of Canada.  We will report on any updates regarding this case in this blog when they become available.

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.

SCC Orders New Trial in “Friends with Benefits” Case

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada has ordered a new trial for Patrick Goldfinch (“Goldfinch”), and in doing so sent out a warning to judges in Canada when allowing evidence of past sexual history in the case of sex assault trials.

WHAT HAPPENED?

Goldfinch was charged in 2014 with sexually assaulting a woman he had previously dated and had once lived with.  The two had broken up, but remained friends.  The woman would occasionally visit Goldfinch’s home and stay the night. 

On the evening of May 28, 2014, the complainant contacted Goldfinch, who proceeded to pick her up at her house and bring her back to his residence.  Goldfinch testified that this was a “typical evening” in that the complainant “would call in the middle of the night, want to come over, and we’d end up going to bed together”. The two shared a consensual kiss and Goldfinch suggested that they go to bed.

According to Goldfinch, they went into his bedroom and each removed their own clothing, engaged in consensual foreplay and brief intercourse.  Goldfinch testified that he fell asleep and was later woken by the complainant who stated that he had struck her on the head in his sleep.  He got annoyed and called her a taxi using her phone.

The complainant testified that she told Goldfinch she did not want to have sex and he proceeded to grab her arm and drag her by her hair into the bedroom.  She testified that she became scared and removed her clothes at his direction.  He proceeded to push her onto the bed, hit her in the face and had sexual intercourse with her without her consent.  She got dressed and called a taxi from her cell phone, and then contacted the police shortly after returning home.  Two officers who met the complainant at the hospital confirmed swelling on her left cheek and elbow.

During the trial, the judge allowed evidence to be admitted regarding a “friends with benefits” type of relationship between the complainant and Goldfinch.  The judge regarded this evidence as “relatively benign” and reasoned that keeping it from the jury would harm the accused’s right to make full answer and defence.

At trial, Goldfinch was acquitted by a jury. 

The trial decision was appealed and the majority of the Alberta Court of Appeal allowed the Crown’s appeal and ordered a new trial for Goldfinch in finding that the trial judge had erred in admitting the “friends with benefits” evidence.

THE DECISION BY THE SUPREME COURT OF CANADA

In a 6-1 decision, the highest court in Canada ruled that evidence regarding the sexual relationship between Goldfinch and the alleged victim should not have been heard by the jury.  This evidence was found to be a “reversible error of law” as allowing the evidence showed no other purpose than to “support the inference that because the complainant had consented in the past, she was more likely to have consented on the night in question”. 

The court found that the evidence in question suggested that the alleged victim was likely to have consented to sex because she had done so in the past.  This is the type of evidence that the “rape shield” law found in the Criminal Code is intended to prevent.

Justice Michael Moldaver wrote:

This case serves as a powerful illustration of how a trial can go off the rails where sexual activity evidence is admitted without being anchored to a specific, legitimate purpose.

Justice Andromache Karakatsanis, writing for the largest number of judges, concluded that evidence of past sexual relationships must be handled with care, “even relatively benign relationship evidence” during a sexual assault trial.  If such evidence is allowed, the jury must be instructed by the trial judge that details regarding previous sexual interactions are not relevant in determining whether the complainant had consented to the sexual intercourse that formed the basis of the trial.  She wrote:

No means no, and only yes means yes:  even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one the complainant has routinely consented to in the past.

Joanne Dartana, Alberta Crown prosecutor, stated that the Supreme Court decision “reaffirms the principle that stereotypical reasoning regarding sexual assault victims has no place in a criminal trial and this principle is no less important where the accused and the complainant had a pre-existing relationship”.

The one dissenting judge, Justice Russell Brown, concluded that the evidence was admissible and that the trial judge had made correct evidentiary rulings and had properly instructed the jury.

If you have been charged with a sexual offence or a related charge or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a 24-hour phone service for your convenience.  We are available when you need us most.

Ontario Will Not Appeal Decision to Stay Murder Charge Against Adam Capay

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada, and are revisiting this issue given the recent announcement by Ontario Crown prosecutors declaring that they will not appeal Superior Court Justice John Fregeau’s decision to stay the proceedings in the first-degree murder case against Adam Capay (“Capay”).

On January 28, 2019, Justice John Fregeau stayed the first-degree murder charge against Capay due to the “complete and utter failure” of Ontario’s correction system in managing Capay’s solitary confinement for more than four years while awaiting trial. Capay was released to his family following this decision.

WHAT HAPPENED?

On June 3, 2012, Capay fatally stabbed Sherman Quisses (“Quisses”) twice in the neck while they were in a correctional facility in Thunder Bay.

Capay was immediately placed in segregation after his attack on Quisses on the basis that he was a threat to both himself and other prisoners. Capay was kept in a Plexiglass cell with the lights on 24-hours a day for 1,647 days. He was often kept in detention blocks where he was not allowed to flush the toilet from inside the cell.

Capay’s decline became publicly known after Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, visited him during a tour of Thunder Bay District Jail and released the details to the media.

Capay described his lengthy segregation as having impaired his ability to speak and differentiate day from night. On October 18, 2016, The Globe and Mail published the first in a series of stories about Capay and his prolonged isolation.

JUSTICE FREGEAU’S DECISION TO ORDER A STAY

Capay’s lawyers requested a stay (a ruling by the court halting any further legal proceedings) of the first-degree murder charge on the basis that Capay’s rights were violated under the Charter of Rights and Freedoms (“Charter”). Justice Fregeau heard testimony from corrections staff and numerous experts in the field of forensic psychiatry, human rights, and correctional law and policy.

Justice Fregeau found that Capay suffered from pre-existing mental-health issues as a result of his childhood experiences of physical and sexual abuse, domestic violence in his home, parental alcoholism and other intergenerational trauma, and concluded that these issues were exacerbated by his isolation, sleep deprivation, and lack of access to mental health services.

According to Justice Fregeau, Capay’s isolation violated four sections of the Charter, including:

  • The right of life, liberty and security of person (Section 7);
  • The right not to be arbitrarily detained (Section 9);
  • The right not to be subjected to cruel and unusual punishment (Section 12); and
  • The right to be equal before and under the law (Section 15).

Although Capay was responsible for Quisses’ death, his many years of isolation amounted to cruel and unusual punishment and a violation of his Charter rights.

Justice Fregeau ruled that these Charter violations were so “prolonged, abhorrent, egregious and intolerable” that the only appropriate solution was to stay his murder charge and allow Capay to be released.

Justice Fregeau’s decision set out the following issues with the Thunder Bay District Jail, which included:

  • Failing to hold legally mandated reviews of Capay’s segregation status;
  • Advising staff to avoid talking to the inmate; and
  • Neglecting Capay’s declining mental health.

Justice Fregeau wrote in his decision:

When exercising their statutory discretion in making segregation decisions regarding the accused, the complete and utter failure of correctional officials to properly balance the accused’s charter rights with the statutory objectives can only be described as profoundly unreasonable, unacceptable and intolerable.

                        …

The treatment of the accused was, in my opinion, outrageous, abhorrent, and inhumane. There would be ongoing prejudice to the accused if forced to proceed to trial.

RECOMMENDATIONS MADE TO THE CORRECTIONAL SERVICES MINISTER

On February 21, 2019, Renu Mandhane (“Mandhane”), chief commissioner of the Ontario Human Rights Commission, wrote an open letter to the Honourable Sylvia Jones, the Minister of Community Safety and Correctional Services, calling for an end to segregation in Ontario.

Mandhane emphasized that prisoners in Ontario continue to be held in segregation for extended periods of time, despite the fact that it is harmful to their mental and physical health, and undermines institutional safety, rehabilitation and reintegration.

The data from May 2018 reveals that there were nearly 4,000 segregation placements over a two-month period, with 657 of those exceeding 15 days.

Mandhane wrote:

The numbers are large and it can be hard to remember that each number represents a person. Adam Capay’s treatment is a reminder of the lived reality behind the numbers and the long-term negative consequences that segregation has on prisoners, correctional officers, victims of crime, the community and the administration of justice.

Mandhane recommends that the government immediately launch an action plan, including limiting segregation to fifteen-days, judicial reviews of isolation decisions, and bans on the segregation of pregnant, suicidal, mentally ill and physically disabled inmates.

The previous Liberal government passed a bill incorporating many of Mandhane’s recommendations prior to last year’s election, however, this bill has not yet been proclaimed by the Lieutenant-Governor and the new Progressive Conservative government.

We will continue to follow the developments in the law regarding solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison LLP at 905-404-1947 or contact us online. For your convenience, we offer 24-hour phone services.