sentencing

Man Sentenced to 6 Years in Prison for Impaired Operation of Canoe

Written on Behalf of Affleck & Barrison LLP

Last summer, David Sillars (“Sillars”), became the first Canadian to be convicted of impaired driving charges while paddling a canoe.  He was recently sentenced to six years in prison for the April 2017 death of an eight-year-old boy.

We have previously blogged about a landmark ruling by an Ontario judge who decided that a canoe is a “vessel” for the purposes of the definition of vessel found in the Criminal Code of Canada, which includes the criminal charges of impaired operation of a vessel causing death, operation of a vessel over 80, and the dangerous operation of a vessel.

WHAT HAPPENED?

On April 7, 2017, Sillars took his girlfriend’s son, Thomas Rancourt (“Rancourt”), for a canoe ride down the Muskoka River to teach him how to paddle a canoe.  Sillars was intending to paddle in the direction of and to retrieve a blue barrel, which appeared to be wedged against a barrier by debris.  The canoe capsized and Rancourt was swept downriver and went over a waterfall at High Falls, and then drowned.  Sillars, on the other hand, swam safely to the shore.

In his lengthy decision, Justice Peter C. West set out the following key findings of fact based upon the evidence presented in court:

  • Temperatures were between 3 and 4 degrees Celsius on April 7, 2017;
  • School buses were cancelled due to slush and ice, resulting in poor road conditions on April 7, 2017;
  • The majority of the ice on the river had melted, although small chunks were visible, resulting in a reasonable inference that the river water was extremely cold;
  • The water levels of the river were very high on April 7, 2017;
  • The current in the river was fast-flowing and extremely strong;
  • The yellow barrier is a warning to caution boaters of the danger created by the water flowing towards the High Falls;
  • Sillars was cautioned by two experienced individuals who warned him of the dangerous water conditions;
  • Sillars did not agree to take or wear an adult sized lifejacket;
  • The PDF worn by Rancourt was too small for him, especially given that he was wearing three layers of clothing beneath it, including his winter jacket;
  • Sillars had consumed alcohol and THC prior to operating the canoe on April 7, 2017;
  • Sillars intention was to paddle to the yellow barrier to retrieve a blue barrel, which was clearly wedged in debris and partially submerged; and
  • Rancourt looked up to Sillars as a father figure, and this relationship created a duty of care for Sillars towards Rancourt.

Based upon the evidence, the court ruled that:

David Sillars’ decision to canoe towards the yellow warning barrier, during the spring run-off with the described dangers and risks…, with the sole purpose to retrieve a blue barrel, partially submerged and wedged against the yellow warning barrier by other debris, was a significant contributing cause of Thomas Rancourt’s death.  …[B]ut for the decision of Mr. Sillars to go to the yellow barrier, Thomas Rancourt would not have fallen out of the canoe and wound not have gone over the waterfalls and drowned. 

With respect to the issue of impaired paddling, the court considered whether Sillars’ drinking impaired his ability to operate a canoe (Sillars’ minimum blood-alcohol content was 128 milligrams of alcohol in 100 mililitres of blood and he had 14 nanograms of THC in his blood).  The court concluded that Sillars’ intellectual abilities, specifically his reaction time, decision making abilities and his ability to respond to an emergency situation, were impaired by his consumption of alcohol.

The fact that Sillars ignored warnings by two individuals as to the potential danger of canoeing in the conditions on the river, refused to wear an adult lifejacket and failed to bring the required safety equipment in the canoe demonstrated to the court that he overestimated his canoeing abilities and underestimated the level of risk he was enduring, which further demonstrated how the alcohol and marijuana impaired his decision making abilities.

THE SENTENCING

Justice West found Sillars guilty of all four charges he was facing and was sentenced in October, 2019.  The Crown asked the court for a jail sentence of six to eight years and an order prohibiting Sillars from operating a vessel for 20 years.  Sillars’ defence team asked the court for a two-year jail term.

Justice West described numerous aggravating factors that he considered when deciding on the terms of Sillars’ sentence.  The fact that Sillars was in a position of trust and authority in relation to Rancourt was one such factors, as well as his previous criminal record. 

In his reasons, Justice West commented on how this is a “unique” case as there are no precedent cases of criminal negligence causing death or impaired operation causing death in the case of a capsized canoe.  However, Justice West used precedent cases of those who have been found guilty of operating a motor vehicle while impaired and sentenced Sillars to six years in prison, an order requiring that samples of bodily substances be taken for the purposes of forensic DNA analysis  and an order prohibiting Sillars from operating a vessel for 10 years.

Justice West stated:

In my view general deterrence and denunciation are particularly important in cases where alcohol or drugs have impacted an offender’s ability, as in this case, to operate a vessel and the factor that a motor vehicle was not … involved makes no difference.

Sillars has already filed an appeal and has been released on $1,500 bail pending his appeal.  He must remain at home under house arrest and abstain from drinking alcohol. 

We will continue to follow any developments that may arise in this case and will report any updates 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 Affleck Barrison LLP online or at 905-404-1947.  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 Rules that Offender Has the Right to Lesser of Two Penalties Available at the Time of Commission of the Offence or Sentencing

Written on Behalf of Affleck & Barrison LLP

In a recent ruling by the Supreme Court of Canada, the Court determined that a convicted individual is entitled to the lesser of two punishments, either the one in effect when the offence took place or the one in effect at the time of sentencing.  This decision overturned the Quebec court’s decision that a convicted offender has the right to the least harsh punishment in effect from the time of the offence until the sentencing.

WHAT HAPPENED?

In the case of R. v. Poulin, the accused was convicted in 2016 of sexual assault and acts of gross indecency from incidents occurring between 1979 to 1987.  Poulin was found guilty of offences against a child between the ages of seven and fifteen.  Crown prosecutors asked for a prison term of 3 ½ to 5 years.  Poulin’s defence team requested a conditional sentence given Poulin’s advanced age (82 at the time) and his poor health.  A Quebec court sentenced Poulin to a conditional sentence of two years less a day, to be served in the community, for the charges of gross indecency.

The Crown was unsuccessful in its appeal to the Quebec Court of Appeal and the decision was appealed to the Supreme Court of Canada.

At issue in this appeal was the interpretation of section 11(i) of the Charter of Rights and Freedoms, which reads as follows:

11.  Any person charged with an offence has the right:

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

The question is whether this provision signifies a comparison of the lesser sentence at two relevant times (i.e. the commission of the offence and the sentencing of the offence) or whether the provision signifies a consideration of variations between the time of the commission of the offence and the sentence.

The judges of the Supreme Court split their decision 4-3 and concluded that Poulin was not eligible for the conditional sentence as it did not exist either at the time of the offence or at the time of his sentencing (it only existed temporarily between these two points in time).

Justice Shellah Martin, writing on behalf of the majority of the court, stated:

The legal rights reflected in our Charter represent the core tenents of fairness in our criminal justice system.  The right to comb the past for the most favourable punishment does not belong among these rights. 

The majority of the court found that the language of section 11(i) of the Charter suggested the application of a “binary approach”, as opposed to a “global approach”.  The binary approach would not permit Poulin to be granted a conditional sentence as it was neither in force at the time of commission or at the time of his sentence. The global approach would permit Poulin to be granted a conditional sentence because it was in force for a period of time between the commission of the crimes and his sentence. 

HOW ARE SENTENCES IMPOSED?

If an accused either pleads guilty or is found guilty at trial, a Judge must impose a sentence that is fair given the circumstances of the offence, the seriousness of the offence and the offender’s degree of responsibility.

The Court will consider both aggravating and mitigating factors relating to both the offender and the offence itself. 

Aggravating factors are those that the court relies upon which may increase the sentence, which may include:

  • Your criminal record;
  • The facts of the offence (i.e. your role in the crime, whether you have committed the crime on multiple occasions, whether a weapon was used and how, whether property was damaged or money was taken);
  • The impact of the crime on the victims (i.e. whether the crime involved a person under the age of 18 years, whether the victim’s health was seriously harmed, whether the victim received permanent physical or psychological injury, whether the victim experienced financial harm due to the crime); and
  • Your association with other criminal organizations (i.e. the crime was committed for the benefit of a criminal organization or committed as an act of terrorism).

Mitigating factors are those that the court relies upon to lighten the sentence, which may include:

  • The absence of a criminal record;
  • The facts of your offence (i.e. your role in the crime, co-operation when you were arrested, addiction or mental health issues);
  • How you’ve behaved since the crime (i.e. whether you have taken steps to address addiction or mental health issues, whether you have followed the release order or volunteered or given money to charity to repair the damage you have caused); and
  • Your personal circumstances (i.e. age, health, cultural background, education, work history and potential work opportunities, children and dependents).

The Court will take all of these factors into account when determining an appropriate sentence in an effort to maintain a just and safe society for all Canadians.

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 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.

Court of Appeal to Judge How to Weigh Systemic Racism When Sentencing Black Offenders

Written on Behalf of Affleck & Barrison LLP

Later this month, the Ontario Court of Appeal is scheduled to hear a case where the Crown prosecutor is challenging the “lenient” 15-month sentence given to a black Toronto man for carrying a loaded firearm.  Many are expecting that the judgment in this appeal will provide guidance to trial judges on how systemic and background factors are to be applied during the sentencing of black offenders, and potentially all other minorities, in Canada.

WHAT HAPPENED?

In 2014, the police were called regarding a home invasion in Scarborough.  At the scene, the police came upon four black males walking in the parking lot.  When an officer stopped the young men, Kevin Morris (“Morris”) ran.  After a chase, Morris was apprehended by police and his jacket, which he left in a stairwell during the chase, contained a loaded handgun. 

A jury found Morris guilty last September of possession of an unauthorized firearm, possession of a prohibited firearm with ammunition, and carrying a concealed weapon. 

Superior Court Justice Shaun Nakatsuru sentenced Kevin Morris (“Morris”), a 26-year-old first-time offender, to 15 months in custody due to the disadvantages and systemic black racism he faced growing up in Toronto. 

Justice Nakatsuru described the sentence as “lenient” and reasoned that this type of sentence was to address “one small step at a time, the problem of the disproportionate incarceration of black offenders”. Morris’ sentence was reduced to 1 year for various Charter breaches.

According to court documents, Morris was raised by a single mother in a neighbourhood that experienced violence and criminal activity.  Morris never graduated from high school and admitted that he felt unsafe travelling to work as he had to enter rivaling neighbourhoods.  He was diagnosed with PTSD and paranoia in 2013 after being stabbed for a third time. 

The Crown prosecutor had requested a four to four and a half year sentence for Morris arguing that illegal gun possession results in the “often immeasurable” human cost of gun crimes.

Morris’ defence lawyers requested a 12-month sentence and submitted an expert report outlining the impact of crime and criminal justice on black Canadians.  The report detailed how black Canadians experience obstacles in pursing educationa nd employment, and explained about discrimination in social services.

Morris’ lawyer, Faisal Mirza, stated:

It’s clear to everyone in the Toronto area that there are disproportionate numbers of young black men that are prosecuted and sentenced by judges based on pretty rudimentary information on who they are, where they came from, and why they got to the point of committing the crime they are being sentenced for.

Justice Nakatsuru wrote in his decision:

In our system, a sentence is not just about the crime.  It must also be about the offender.

As the legal system runs today, the courts are required to take into account the backgrounds of Indigenous offenders when sentencing, paying specific attention to systemic or historical factors such as residential schools and systemic racism.  A victory for Morris at his appeal may lead to a similar requirement requiring the courts to take into account the impact of race and culture on black offenders in Canada. 

INTERVENERS IN MORRIS’ APPEAL

At the Court of Appeal, there are 14 interveners that have been granted permission to provide joint submissions to the court on the subject of systemic racism, including human and civil rights activists, ethnic organizations and legal clinics.  Several interveners are asking the court to allow culture assessments to apply to all minority groups, not only black offenders.

Interveners in criminal proceedings must receive permission to provide submissions to the court and are typically only granted permission sparingly.  Chief Justice George Strathy wrote in his decision to allow interveners to weigh in on the appeal in the Morris case:

But the issues that arise in this appeal transcend the interests of the parties and are of significance to the administration of criminal justice.  The proposed interveners are well-recognized organizations with experience and expertise in the issues raised in this appeal.  They can offer perspectives that are different from those provided by the Crown and the respondent.

The Black Legal Action Centre and the Canadian Association of Black Lawyers are entering a joint submission at the appeal and on their behalf Johnathan Shime states:

This case represents an opportunity for the Ontario Court of Appeal to consider what role race and, more particularly, anti-black racism should play in sentencing of offenders. 

The appeal is scheduled for September 24, 2019 in Toronto.  We will report the results of this potentially ground breaking appeal decision in this blog when it becomes available.

In the meantime, if you have been charged with a crime or have questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP 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.

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

Written on Behalf of Affleck & Barrison LLP


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

WHAT HAPPENED?

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

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

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

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

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

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

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

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

PRE-TRIAL PROCEEDINGS

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

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

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

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

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

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

COUPLE SENTENCED IN A SIMILAR DECISION

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

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

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

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

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

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

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

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.

Truck Driver in Brocos Bus Crash Sentenced to Prison

Written on Behalf of Affleck & Barrison LLP

Last week, Jaskirat Singh Sidhu (“Sidhu”) was sentenced to eight years in prison after pleading guilty in January to 16 counts of dangerous driving causing death and 13 counts of dangerous driving causing bodily harm.

Sidhu was the semi-truck driver involved in the Humboldt Broncos bus crash in rural Saskatchewan on April 6, 2018.

WHAT HAPPENED?

The accident occurred when Sidhu drove through a stop sign and collided with a bus carrying the Humboldt Broncos junior hockey team that was heading to a playoff game. Sidhu was traveling between 86 and 96 km/h. He passed four signs warning him about the upcoming intersection that had an oversized stop sign with a flashing light.

A forensic collision report found that Sidhu did not brake at the intersection of Highway 335 and 35 before colliding with the bus. The report also indicated that Sidhu’s view of the intersection was not impeded by any environmental factors, such as trees or sunlight.

At the conclusion of the four day sentencing hearing, Sidhu apologized to his victims and took full responsibility for the crash. He stated that the accident occurred due to his inexperience as a truck driver.

More than 90 victim impact statements were presented to the court by friends and families of the victims and hours of arguments were made by lawyers. The victim statements were emotional with some families stating that they were able to forgive Sidhu, while others admitted that they would never be able to forgive him for his role in the accident.

Sidhu’s lawyer explained that he had been hired by a small Calgary trucking company three weeks prior to the accident. He spent two weeks with another trucker and then began driving on his own. Sidhu was apparently distracted by a tarp flapping on the trailer of the truck which resulted in his missing the four warning signs regarding the upcoming intersection. His lawyer advised the court that sentencing in cases of dangerous driving ranged from 18 months to 4 ½ years.

The Crown prosecutor argued that Sidhu had enough time to slow down and stop and described Sidhu’s driving as entering the intersection “like a rocket”.  He argued that Sidhu should receive a 10-year prison sentence, followed by a 10-year driving ban.

THE SENTENCE

Judge Inez Cardinal provided her sentencing decision in a makeshift courthouse at the Kerry Vickar Centre. The victim’s family and friends wore Broncos jerseys with the last names of their loved ones on the back.  Judge Cardinal began handing down her sentencing decision by reading the names of each of the victims aloud. She described the victims as:

…gifted athletes, community leaders, and team builders with hopes and dreams for the future…Some were dreaming of having a family, while others were already raising their families.

 Judge Cardinal recognized that there has been no similar case in Saskatchewan or Canada given the number of fatalities and injuries. She acknowledged that Sidhu’s remorse and guilty plea spared the victims’ families a lengthy trial and saved him from a maximum sentence of 14 years.

Judge Cardinal stated:

It is baffling, and incomprehensible, that a professional driver, even one with little experience, could miss so many markers over such a long distance. His inattention displays risky behaviour given he saw the signs but they did not register because he continued to focus on the trailers behind him.

Sidhu was sentenced to eight years for each count of causing death, and five years for each count of dangerous driving causing bodily harm. The sentences are to be served concurrently as they all arise from the same circumstances, which means the sentences will be served simultaneously.  Sidhu was also given a 10-year driving ban, a firearms prohibition, and is required to provide bodily samples for the purpose of DNA analysis.

WHAT COMES NEXT?

Sidhu grew up in India and came to Canada in 2013. He is a permanent resident, not a Canadian citizen. As a result of his conviction and sentence, Sidhu will face deportation to India.

Under Canada’s federal law, permanent residents cannot remain in Canada if they commit a crime for which the maximum sentence is at least 10 years or their jail sentence is more than six months.

As a result of this accident, the Saskatchewan government has undertaken to make changes to the intersection where the crash occurred, promising to add rumble strips and better signage.  The government has also promised to put millions of dollars into improvements at other intersections.

Although there is mandatory training for semi-truck drivers in Ontario, training for semi-truck drivers in Saskatchewan only became mandatory last week. Training for drivers across the rest of the country will also become mandatory in 2020.

If you are facing a dangerous driving charge or need to speak with an experienced criminal defence lawyer about criminal charges laid against you or your legal rights, please 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. We are available when you need us most.

Sentence of Life With No Parole for 40 Years for Quebec Mosque Shooter

Written on Behalf of Affleck & Barrison LLP

Last week two sentencing decisions were made in two high profile criminal cases in Canada. In both decisions, the court was left to decide how many years the accused will have to wait until he can apply for parole given the multiple counts of first-degree murder.

As we wrote in our blog last week, Bruce McArthur (“McArthur”), 67 years old, pleaded guilty to eight counts of first-degree murder in the deaths of eight men who disappeared between 2010 and 2017 in Toronto’s Gay Village. Justice John McMahon sentenced McArthur to life in prison for each of the eight counts. Justice McMahon did not order consecutive periods of parole ineligibility and instead decided that McArthur was not eligible for parole for 25 years.

Justice McMahon, in his sentencing reasons, stated:

Due to the accused’s age, I am satisfied that when dealing with the protection of the public, concurrent periods of parole ineligibility can adequately address the protection of the public. It would not be until Mr. McArthur is 91 years of age that he could apply for consideration for parole.

In Quebec, Alexandre Bissonnette (“Bissonnette”), 29 years old, pleaded guilty to killing six men at a Quebec City mosque on January 29, 2017. He was sentenced to life in prison with no possibility of parole for 40 years.

WHAT HAPPENED AT BISSONNETTE’S SENTENCING HEARING?

In March 2018, Bissonnette pleaded guilty to six counts of first-degree murder and six counts of attempted murder as a result of his actions on the evening of January 29, 2017.

Bissonnette, armed with a .223-calibre rifle, a 9-mm Glock pistol, and 108 bullets, shot into a crowded prayer room at the Islamic Cultural Centre as Sunday prayers were ending.

The Crown prosecutor argued before the Quebec Superior Court that the parole periods should be consecutive, which would result in a total of 150 years with no chance of parole. This would have been the longest prison sentence in Canadian history. To date, the longest prison sentence of 75 years without parole has been handed down in five cases involving triple killings. For example, in the case of Justin Bourque who murdered three RCMP officers in New Brunswick in 2014.

Bissonnette’s lawyer argued that his client’s sentences should be served concurrently. This means Bissonnette could seek parole after 25 years in prison. Bissonnette was described by his lawyer as an “anxious” man suffering from depression who required alcohol in order to reduce his inhibitions on the night of the killings. He has been described by his own defence team as a “sick young man” who can be rehabilitated and has shown remorse and shame.

WHAT WAS THE JUDGE’S RULING ON SENTENCING?

Before providing his sentence to Bissonnette, Justice Francois Huot addressed the offender by stating:

By your hate and your racism, you destroyed the lives of dozens and dozens of people, and have irredeemably ruined your own and those of the members of your family.

Justice Huot then proceeded to provide a detailed account of Bissonnette’s actions on the night of the shooting.

In his ruling, Justice Francois Huot rejected the Crown’s argument and instead imposed a concurrent life sentence of a 25-year parole ineligibility period for the first five counts of murder and added a 15-year period of ineligibility for the sixth count. This means that Bissonnette will not be eligible for parole for 40 years.

Justice Huot reasoned that sentences that exceed an offender’s life expectancy and offer no hope of release are “grossly disproportionate and totally incompatible with human dignity” and would constitute cruel and unusual punishment under the Canadian Charter of Rights and Freedoms.

Although Justice Huot did not strike down the section of the Criminal Code which allows for consecutive life sentences, he used his discretion to hand down a consecutive life sentence that was less than the traditional 25 year block (as first-degree murder carries a life sentence with no possibility of parole for 25 years).

According to Justice Huot, the following aggravating factors justified a sentence harsher than the 25-year period:

  • He planned his attack carefully;
  • He targeted vulnerable and unarmed people in their place of worship; and
  • He took aim at Canada’s right to freedom of religion.

Justice Huot also considered that Bissonnette had been struggling with mental health problems in the time leading up to the shootings. He also considered the fact that Bissonnette had no previous criminal record, he pleaded guilty, and he expressed remorse.

Lawyers for both the Crown and the defence will be reviewing Justice Huot’s lengthy 246-page decision to decide whether to appeal the sentence. We will continue to follow this case and will report any developments that occur in this blog.

In the meantime, if you have any questions regarding charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our clients’ rights. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

McArthur Pleads Guilty and Awaits His Sentence

Written on Behalf of Affleck & Barrison LLP

Last week, Bruce McArthur (“McArthur”) pleaded guilty to eight counts of first-degree murder in the deaths of eight men who disappeared between 2010 and 2017 in Toronto’s Gay Village.

At his sentencing hearing this week, an agreed statement of facts was presented to the court. In the statement, McArthur admitted that he intended to kill all eight men and afterward dismembered the men to avoid getting caught. He admitted that six were sexual in nature and that he kept some of his victims’ personal items as “souvenirs” and “staged” some of his victims.

AGREED STATEMENT OF FACTS

The following are some of the facts included in the Agreed Statement of Facts that were presented before Justice John McMahon in the Ontario Superior Court:

  • McArthur intended and caused each of the eight deaths;
  • Each of the murders was planned and deliberate and the murders were committed in the course of sexually assaulting the victims or committed while the victims were unlawfully confined;
  • The investigation found a duffle bag in McArthur’s bedroom containing duct tape, a surgical glove, rope, zip ties, a black bungee cord, and syringes;
  • To avoid detection, McArthur dismembered his victims’ bodies; and
  • McArthur disposed of the body parts at 53 Mallory Crescent in Toronto, where he worked as a gardener, placing some of the body parts in planters or in the ravine adjacent to the property.

ACCEPTANCE OF A GUILTY PLEA

According to the Criminal Code, a conviction or finding of guilt is not entered until the court accepts the plea.

Under section 606(1.1) of the Criminal Code, a plea of guilty can only be accepted if the Court is satisfied of the following:

  • That the accused is making the plea voluntarily; and
  • That the accused understands that the plea is an admission of the elements of the offence; and
  • That the accused understands the nature and consequences of the plea; and
  • That the accused understands that the court is not bound by any agreement made between the accused and the Crown prosecutor.

Therefore, for a guilty plea to be valid it must possess all of the following features:

  • Voluntary;
  • Unequivocal;
  • Information of the nature of the allegations; and
  • Informed of the consequences of the plea.

Justice McMahon began McArthur’s court proceedings last week by confirming that McArthur understood what is meant to plead guilty and warned him that he could not plead guilty to things he did not do just to get his case over with. McArthur replied “Yes”, when asked if he understood that he was giving up his right to a trial.

McArthur confirmed that he was not pressured by family, friends, lawyers or police officers to plead guilty.

Justice McMahon explained that McArthur would be sentenced to life imprisonment. He specifically asked, “So, you understand you’ll have to serve at least until you’re 91 before you could be eligible to apply for parole?” McArthur responded, “Yes, your honour.”

Once a guilty plea has been entered, there is no burden on the Crown prosecutor to prove the charge beyond a reasonable doubt. Furthermore, a guilty plea also terminates any procedural rights, rights of appeal or the ability to challenge the ruling of guilt.

PROSECUTORS SEEK CONSECUTIVE LIFE SENTENCES

Crown prosecutors have asked the Superior Court of Justice to sentence McArthur to two consecutive life sentences for the eight murders that McArthur committed. This means that McArthur will be behind bars until he is 116 years old, without a chance for parole.

Assistant Crown attorney Craig Harper (“Harper”) argued that McArthur’s crimes were heinous, he preyed on the vulnerable and “[h]e spread fear in a community that, regardless of its multiple strengths, struggles with a tenuous sense of safety.”

In support of his request for two consecutive life sentences, Harper also put before the court that permitting McArthur a parole hearing in 25 years would mean that the families of his victims may have to face him again in court.

McArthur’s lawyer, on the other hand, requested that the court sentence his client to serve all eight sentences concurrently. This would mean that McArthur would serve all the sentences at the same time.

It is the position of McArthur’s defence lawyer that due to his age it is not necessary to extend his parole eligibility beyond the minimum 25 years, which comes with a life sentence. This means he would not be able to apply for parole until he was at least 91 years old. He argues that a longer sentence will be “unduly harsh”.

Justice McMahon will soon make a decision on McArthur’s sentence and we will provide updates in this blog as the information becomes available.

In the meantime, to speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, please 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. We are available when you need us most.

Millard Files Appeal of Conviction in Father’s Death

Written on Behalf of Affleck & Barrison LLP

Dellen Millard is appealing his first-degree murder conviction and sentence for the death of his father, Wayne Millard.

WHAT HAPPENED?

In September, 2018, Millard was found guilty of murdering his father. In a judge alone court case, Millard was convicted of shooting his 71-year-old father, Wayne Millard, through his left eye as he slept on November 29, 2012.

Millard’s father’s death was originally ruled a suicide. Following Millard’s convictions in the deaths of Tim Bosma (“Bosma”) and Laura Babcock (“Babcock”), police began to re-examine Wayne Millard’s apparent suicide. Crown Prosecutors alleged that Millard killed his father in order to protect his inheritance.

During the investigation, Millard revealed to the police that his father was depressed and an alcoholic. Millard told police that he found his father dead in bed around 6 p.m. on November 29, 2012. He claimed that he last saw his father alive around noon the day before and spent the night at his friend Mark Smich’s house (his accomplice in the murders of Bosma and Babcock).

Phone records revealed that Millard travelled back to his father’s house in the early hours of the morning on November 29, 2012. The police came to learn that the gun found next to Wayne Millard was a gun purchased illegally by his son and had the younger Millard’s DNA on it.

Justice Maureen Forestall found that Millard had set up a false alibi by leaving his car, a cell phone, and his credit card at Smich’s house and he took a taxi to his father’s house.

MILLARD’S SENTENCE IN HIS FATHER’S DEATH

Following his conviction, Justice Forestall sentenced Millard to his third consecutive life sentence. Thus, Millard will serve 75 years behind bars before he is eligible to apply for parole. This is the longest term of parole ineligibility in the Canadian criminal justice system and the first time that this sentence has been handed down in Ontario.

At the time of sentencing, Justice Forestall stated:

Dellen Millard has repeatedly committed the most serious offence known to our law. He has done so with considerable planning and premeditation. In the murder of his father, he took advantage of the vulnerability of his father and betrayed his father’s trust in him.

In response to Millard’s lawyer argument that the consecutive sentence without parole eligibility is an unduly long and harsh judgement, Justice Forestall stated:

It is necessary to impose a further penalty in order to express society’s condemnation of each of the murders that he has committed and to acknowledge the harm done to each of the victims. It is not unduly long and harsh.

MILLARD’S APPEALS

Two days following Millard’s sentencing, his lawyer filed a notice of appeal with the court. According to Millard’s counsel, it will be argued that the verdict is unreasonable and the sentence is unconstitutional.

Millard will serve 75 years in prison before he will be eligible to apply for parole at 102 years of age.

Millard’s defence attorney argues that the consecutive sentence without parole eligibility is unduly long and harsh.

Millard is also appealing his first-degree murder convictions and sentences in the deaths of Tim Bosma and Laura Babcock.

Millard was found guilty of first-degree murder in the death of Tim Bosma by a jury in June 2016 after a 16-week trial. Bosma’s burnt remains were found in an incinerator on Millard’s farm. Millard is appealing his conviction. He filed a handwritten notice of appeal with 13 itemized arguments on appeal including the length of the proceedings, that the judge failed to sever his trial from that of his co-accused, that the judge failed to grant his request to move the trial out of Hamilton, that the judge allowed post-offence conduct evidence regarding the incineration of the deceased, that the judge allowed evidence which was seized contrary to his Charter rights protecting him against unreasonable search and seizure, and that the judge should have excluded evidence seized from electronic devices, amongst others.

Millard was also found guilty, by a jury of his peers, of killing his former lover, Laura Babcock, and burning her body in an animal incinerator. He filed an appeal following his sentencing arguing that his first-degree murder conviction was unreasonable and the life sentence was too harsh. He specially claims that the judge forced him to represent himself at the murder trial, despite the fact that Justice John McMahon repeatedly advised him to obtain a lawyer and his trial was adjourned twice to allow Millard to retain counsel.

We will continue to follow any developments in these cases as they make their way through the judicial system and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, please 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. We are available when you need us most.

12 Year Sentence for Vigilante Justice Upheld

Written on Behalf of Affleck & Barrison LLP

The Alberta Court of Appeal, in a 2-1 decision, upheld Steven Vollrath’s (“Vollrath”) 12-year prison sentence for cutting off his victim’s thumb during an abduction in a case of vigilantism.

Two of the three judges at the Court of Appeal ruled that Vollrath’s sentence at trial was appropriate for the well planned “revenge kidnapping”.

The Appeal Court denounced vigilantism and stated:

Vigilantism undermines the rule of law and interferes with the administration of justice. As a general rule, those who engage in it should be dealt with severely.

WHAT HAPPENED?

In May, 2013, Richard Suter (“Suter”) was parked next to a restaurant when he and his wife began having an argument. He failed to put his car in park, and as the car proceeded forward, he unintentionally pushed on the accelerator instead of the brake. The car advanced onto the restaurant’s patio striking and killing a two-year-old child.

Suter was convicted of failing to provide a breath sample. The trial judge found that the accident was caused by driver error and not drunkenness. The Supreme Court of Canada reduced Suter’s 26-month sentence to the 10 months he had already served in jail.

While Suter was awaiting trial, Vollrath, dressed as a police officer, and two accomplices rang Suter’s doorbell and abducted him in front of his wife. His captors revealed that the reason he was being abducted was that he had hit and killed a child with his car. Suter was taken to a snowy field, his thumb was cut off with pruning shears, and he was left unconscious in the snow.

Vollrath was convicted in 2016 of kidnapping, aggravated assault, possession of a weapon, and impersonating a police officer. Vollrath had a lengthy criminal record, including violent and weapons offences.

SENTENCING PRINCIPLES

According to section 718 of the Criminal Code, the purpose of sentencing is to protect society and to impose sanctions that meet the following objectives:

  • denounce unlawful conduct;
  • deter the offender and others from committing offences;
  • separate offenders from society;
  • assist in rehabilitating offenders;
  • provide reparations for harm done to victims or the community; and
  • promote a sense of responsibility in offenders and acknowledge the harm done to victims or to the community.

Sentencing must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In deciding on an appropriate sentence, the Court must consider aggravating and mitigating factors, sentences imposed on similar offenders for similar offences, and all available sanctions other than imprisonment must be considered.

In Mr. Vollrath’s case, the Court considered the following aggravating factors:

  • he did not act alone;
  • there was advance planning involved in committing the offences;
  • he impersonated a police officer with the purpose of facilitating another offence;
  • the incident began at the Suter’s home;
  • the kidnapping and assault were targeted;
  • leaving Suter maimed and unconscious in a deserted area showed a callous indifference to whether he lived or died;
  • the lasting physical harm to Suter;
  • the psychological impact to both Mr. and Mrs. Suter;
  • Vollrath’s extensive criminal record; and
  • Vollrath was on release at the time of the offences.

The Court is also obligated to consider background factors for aboriginal offenders and to consider how these factors affect the offending behaviour. In Mr. Vollrath’s case, the Court found that he had no connection with his aboriginal culture at the time he became incarcerated. Furthermore, the Court held that Vollarth’s dysfunctional background was not connected to his aboriginal history as his biological father, who was a Metis man, left him when he was very young.

In coming to a conclusion in her 2016 sentencing decision, Justice E. A. Johnson of the Provincial Court of Alberta felt that the most important objective was to “denounce the acts and to deter Mr. Vollrath and others from engaging in this kind of behaviour.” Justice Johnson also considered the objectives of separating the offender from society and rehabilitation. Therefore, Justice Johnson concluded that 12 years of incarceration were fitting given the seriousness of the offence, the degree of responsibility of the offender, the aggravating factors, and the need for denunciation and deterrence.  The majority of the Alberta Court of Appeal agreed with this sentencing decision.

WHAT COMES NEXT FOR VOLLRATH?

At the Court of Appeal, the dissenting judge held that Vollrath should have been sentenced to nine years in jail after taking into account the deprivations of his childhood.

Given that there was a dissenting opinion on appeal, Vollrath has the option of appealing his case to the Supreme Court of Canada. However, the Supreme Court of Canada will only hear a case if it is convinced that the case involves a question of public importance. Approximately 1 out of 10 cases that request “leave” to appeal to the Supreme Court of Canada receive permission.

We will continue to follow this case and will report any developments on 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 and knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. We are available when you need us most.