second degree murder

Life in Prison for Man Who Murdered His Pregnant Wife

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

Baig pleaded guilty to the second degree murder of Goberdhan. 

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

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

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

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

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

FETAL HOMICIDE AND THE LAW

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

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

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

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

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

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

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

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

Former Reservist Found Not Guilty in Fatal Shooting of Unarmed Man

Written on Behalf of Affleck & Barrison LLP

After six hours of deliberations, a Hamilton jury found Peter Khill (“Khill”), a former Canadian Forces reservist, not guilty in the fatal shooting of Jon Styres (“Styres”), an unarmed First Nations man from Ohsweken, Ontario.

WHAT HAPPENED?

In the early morning hours of February 4, 2016, Khill and his girlfriend were woken up by two loud, banging noises. When he looked outside, Khill saw that the lights were on in his 2001 GMC pickup truck.

Khill proceeded to grab a 12 gauge shotgun from his bedroom closet. He loaded it with two shells and ran outside in a t-shirt and boxers to confront Styres, who was trying to steal his truck. He came up behind Styres, who was leaning over the passenger-side seat, and shouted “Hey, hands up!”. Styres reacted by turning toward Khill with his hands sweeping forward in a motion that allegedly led Khill to believe that he had a gun. This provoked Khill to fire two close-range shots that killed Styres.

The Superior Court of Ontario was told that Styres did not have a gun that night and was only carrying a knife in his pocket.

The Crown prosecutor told the court that Khill was not acting in self-defence and that he “took the law into his own hands”. Khill could have stayed safe in his home and called the police when he realized his truck was broken into. Furthermore, the Crown lawyer argued that Khill’s action in shouting instructions caused Styres to jump in surprise, which caused Khill to feel frightened and open fire in response.

Assistant Crown attorney, Steve O’Brien, argued that Khill only followed the parts of his training that allowed him to slyly approach and kill an enemy. O’Brien stated that Khill “completely ignored, that civilian life is not a war zone, that soldiers must take time to genuinely assess the situation. There is not one law for ex-soldiers and one law for everybody else.”

Khill pleaded not guilty to a charge of second-degree murder. His lawyer argued that his actions were justified on the basis of self-defence as Khill feared for his life and believed that Styres had a gun. It was argued that Khill was only acting in accordance with his military training and experience. Khill’s lawyer, Jeff Manishen, stated:

This young man who lived to defend his country wanted to continue to defend his own life. That young man should be found not guilty.

JURY SELECTION

This trial raises some of the same legal issues that were raised during the controversial trial of Gerald Stanley (“Stanley”) who was accused of killing Colten Boushie (“Boushie”).

In the Stanley case, an all-white jury in Saskatchewan acquitted Stanley of second-degree murder in the death of Boushie, an Indigenous man. Many critics suggested that the all-white jury had reached the wrong verdict. Furthermore, some believed that the defence used their peremptory challenges to dismiss any potential jurors who appeared to be Indigenous. Peremptory challenges are given in equal number to both the defence and the prosecutor to allow them to disqualify any juror, without reason.

In the Khill case, the jury was screened for possible racial bias. Each candidate was asked a challenge for cause question: “Would your ability to judge the evidence in this case without bias, prejudice or partiality, be affected by the fact that the deceased victim is an Indigenous person and the person charged with this crime is a white person?”. Each of the 12 jurors responded “no”.

It was reported that none of the jury members were Indigenous, however, the jury did include at least one non-white individual.

Mere weeks after the Stanley verdict, the government introduced legislation to eliminate peremptory challenges (Bill C-75). We have previously blogged about this new Bill, which has passed second reading.

Khill’s lawyer stated that getting rid of peremptory challenges is “wrong-headed” and that bias can be avoided through the use of challenge for cause questions, such as the one used in the Khill trial. He went on to suggest that the federal government should review Bill C-75 and re-consider the elimination of peremptory challenges.

We will continue to provide updates regarding the status of Bill C-75 as information becomes available. In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or online. 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. We are available when you need us most.

Senior Who Beat Fellow Long Term Care Home Resident to Death Gets Life in Prison

Written on Behalf of Affleck & Barrison LLP

We previously blogged about Peter Brooks, a 76-year old man who had been found guilty of second-degree murder after Joycelyn Dickson who was beaten to death at a long term care facility in Scarborough in 2013.  Brooks had used a cane to fatally injure the other resident. He was also charged with attempted murder following an attack on another elderly resident at the same facility.

Brooks has since been sentenced to life in prison, and will not be able to apply for parole for another 10 years, which is the minimum period of time following a second-degree murder conviction.

The Trial

Brooks’ defence lawyer had argued that Brooks was not criminally responsible for his actions. The defence relied on evidence by a forensic psychiatrist who testified that Brooks had been suffering from dementia and delusions at the time of the incident which had caused damage to his brain’s frontal lobe and left him unable to distinguish the consequences of his actions:

We all know that, regardless of what Peter’s belief was, there is nothing that can justify his actions. This is where Peter’s departure from society’s moral code becomes glaringly obvious. He is still unable to appreciate the moral wrongfulness of his actions.

The Crown had argued that despite Brooks’ mild dementia, he had deliberately and intentionally attacked the two residents for “sweet revenge” (which had been Brooks’ own words). Brooks’ belief that the women had been conspiring against him was based in reality as the women had complained to management on a number of occasions about violent or hostile interactions they had previously had with Brooks. It was the Crown’s position that there had been no evidence of “psychotic thinking that can be raised above suspiciousness”, that Brooks had threatened to kill the resident and then took steps to act on the threat, that he ultimately minimized his conduct and blamed the victims, and then lied to the jury about being unable to remember the murder and made up an account of being told to “beat” the women in a dream.

All second degree murder charges have an automatic sentence of life in prison. If you have been charged with murder or manslaughter, or have questions about other criminal charges and your rights, contact the Oshawa criminal lawyers at Affleck Barrison online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

New Brunswick Appeal Court Overturns Murder Conviction

Written on Behalf of Affleck & Barrison LLP

New Brunswick’s highest court recently quashed Dennis Oland’s second-degree murder conviction in the death of his father, stating that the jury had sufficient evidence to reasonably convict Dennis Oland of murder, but had been improperly instructed on what was needed to arrive at that conclusion.

Error by Original Trial Judge

In a 41-page decision written by Chief Justice Ernest Drapeau on behalf of a three-judge panel, the Chief Justice stated that the original trial judge had erred in his instructions to the jury on an issue of “significant importance.”

The ultimate verdict was not unreasonable, but the case was not one “where the evidence pointing to guilt is so overwhelming that the outcome would necessarily have been the same, with or without the [trial judge’s] error,”

Chief Justice Drapeau stated that:

No accused is entitled to a perfectly instructed jury. However, the appellant, like all who elect to be tried by judge and jury, had the right to a properly instructed jury

Key Piece of Evidence: Hugo Boss Jacket

The error pertains to a key piece of evidence that had been used against Oland: a brown Hugo Boss sports jacket. Oland had told police that he had been wearing a navy-blue blazer when he visited his father at his office (where he was later found bludgeoned to death). Oland was the last known person to have seen his father alive. It later emerged that Oland had actually been wearing a brown Hugo Boss sports jacket when he visited his father.

A brown sport jacket was seized from Oland’s bedroom closet a week after his father’s death. Forensic evidence shoes that the jacket (which had been dry cleaned) had four small bloodstains matching his father’s DNA on it.

The original trial judge had informed the jurors that if they found Oland’s statement about which jacket he was wearing was an “intentional lie” related to the commission of the murder, they could consider this evidence, along with all other evidence in the case, in making their ultimate decision.

Chief Justice Drapeau stated that these instructions were “erroneous in law” and prejudicial to the defence.

The Appeal Court believes that there was “independent” evidence at the trial to suggest that Oland’s “false statement” to St. John police about what jacket he had been wearing the night his father was murdered was “concocted”.

The Court stated that the jury could have reasonably concluded that Oland’s story that he had been wearing a navy-blue blazer when he visited his father, instead of the brown sports jacket that he had actually been wearing was “a lie and not an honest mistake as he alleged”. In addition, there had been evidence from which the jury could have inferred that Oland was involved in the delivery of the blood-stained sport jacket to the dry cleaners.

The jury should have been told that it cannot rely on a deliberately false statement as a piece of circumstantial evidence in favour of the prosecution unless there was independent evidence that the statement had been made up. In addition, any such independent evidence should have been pointed out to the jury.

Chief Justice Drapeau stated that he expects the issue will be “fully debated” at Oland’s retrial, and that the burden of presenting any independent evidence will be on the prosecutors.

Request for Supreme Court of Canada Review

The court’s written reasons in support of their decision to quash the guilty verdict were not released until January 11. Prior to the release of the written decision, prosecutors had announced that they plan to ask the Supreme Court to Canada to review the decision to quash.

In order to obtain leave to appeal to the Supreme Court, prosecutors must successfully argue that the legal issues involved are of national importance and that they are worthy of review by the highest court in the land.

Waiting for the appeal court’s written decisions may help the prosecutors with their application for leave to appeal.  Generally, parties have 60 days from the date of a decision to file an application for leave. In this instance, that 60-day period lapsed on December 23, 2016. However, both prosecutors and Oland’s defense team had filed a joint request earlier in December seeking an extension. It remains to be seen what will happen with the status of the application.

Retrial

A retrial will not be scheduled until the Supreme Court decides whether it will agree to the extension requested by the prosecution and defense, and hear the appeal.

The Court is expected to make a decision as soon as April. If a new trial proceeds, it likely will not be heard until 2018. In the interim, Oland is out on bail.

We will continue to follow developments in this matter and will blog updates as they become available.

If you have questions about your rights, contact the skilled Oshawa defense lawyers at Affleck Barrison online or at 905 404 1947. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.