sexual assault

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.

Man Who Refused to Wear Condom Found Guilty

Written on Behalf of Affleck & Barrison LLP

Ontario Superior Court Justice Nathalie Champagne has ruled that if a man refuses to wear a condom against his partner’s wishes and after agreeing to do so, it is a sexual assault.  Anibal Rivera (“Rivera”) has been found guilty of committing sexual assault by proceeding to have unprotected sex after agreeing to wear a condom.

WHAT HAPPENED?

In October 2017, Rivera and a woman (who cannot be identified) met on a dating website and they agreed to meet at the woman’s home in Cornwall, Ontario for a sexual encounter. 

Prior to their “date”, the woman texted Rivera and advised him that condoms were mandatory and that “no means no”. Rivera agreed to these terms.

In court, the woman testified that during their encounter she repeated “her rules”, however, Rivera proceeded to have sex with her without a condom, insisting that he was “clean”.  He then left after a few minutes of small talk.

Rivera testified that the woman agreed to proceed without a condom as long as he did not ejaculate inside her. 

The woman went to the hospital the next day for an evaluation and various tests, including tests for pregnancy and sexually transmitted infections, and a sexual-assault kit.  A few days later, she contacted the police.

Rivera drafted a written statement before his first interview with police wherein he wrote that the woman had initiated unprotected sex.  However, on the witness stand during his cross-examination he admitted that he had lied in his written statement.

THE ISSUE OF CONSENT

The issue at trial was whether the complainant consented to intercourse without a condom.  Both the woman and Rivera testified in court.

In her ruling, Justice Champagne wrote:

This is a case of ‘he said, she said’ which raises issues of credibility and reliability.  … In assessing the evidence, if I believe the account of Mr. Rivera, I must acquit.  If I don’t believe Mr. Rivera but the evidence leaves me with a reasonable doubt, I must acquit.  If the evidence does not leave me in doubt the offence occurred, I must assess whether the evidence proves the offence beyond a reasonable doubt.  … Mr. Rivera’s evidence gives rise to serious issues regarding his credibility and reliability…

Although Justice Champagne did not believe Rivera’s claims that the complainant agreed to have sex without a condom, the Crown must still prove the alleged offence beyond a reasonable doubt.

The complainant testified to the following:

  • She agreed to a sexual encounter.
  • She insisted that condoms were required and “no means no”.
  • She told Rivera to put on a condom prior to intercourse and he didn’t.
  • She told Rivera to put on a condom a second time before the second act of intercourse and he didn’t.
  • Rivera had vaginal intercourse with her without a condom followed by forced oral sex, followed by vaginal and anal intercourse with her without a condom.

Justice Champagne found that the woman’s evidence that she insisted that Rivera wear a condom and would not agree to sex without it is consistent with the conditions she had described in her text to Rivera and consistent with her undergoing tests at a hospital the next day. 

The Judge found that the woman’s “evidence to be proof beyond a reasonable doubt that Mr. Rivera committed a sexual assault against her by failing to wear a condom and engaging in sexual intercourse with her”. 

Justice Champagne went even further to say that if there is any uncertainty that failing to wear a condom amounts to a sexual assault in these circumstances, the complaint’s consent was discredited by fraud. 

IMPACT OF THIS DECISION

Justice Champagne noted that she did not draw any negative conclusions regarding the fact that the Rivera and the woman made small talk after sex or that it took the woman a few days before contacting the police.  She stated:

It would be inappropriate for me to do so and would invoke myths and stereotypes about how victims of sexual assault should act.  … It stands to reason that a complainant might make small talk to keep things calm and avoid unwanted contact and it would not be unreasonable for a complainant to take some time to consider whether or not to proceed with a complaint given the stress and scrutiny of intimate details of one’s life involved in the criminal court process.

In my view, Mr. Rivera led the complainant to believe he would wear a condom as he had previously agreed to do so and at the last minute he penetrated her without a condom telling her it would be OK. … I find his failure to wear a condom increased the complainant’s risk of pregnancy and constitutes a significant risk of bodily harm … Her consent was therefore vitiated by this action.

Justice Champagne’s decision is being well-regarded as an example to be set to other judges in Canada. 

It is also in line with the proposed Bill C-337, introduced by former federal Conservative leader Rona Ambrose, requiring those seeking a federal judicial appointment to go through mandatory training on sexual assault law, including rape myths and stereotypes about victims and the impact of trauma on memory.

We will continue to follow any developments in the case law or legislation that may arise from this latest decision regarding sexual assault, rape myths and stereotypes in this blog.

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

‘Sexsomnia” Defence Rejected by Ontario Judge

Written on Behalf of Affleck & Barrison LLP

A Judge has rejected the defence of “sexsomnia” and ruled that Ryan Hartman (“Hartman”) is criminally responsible for the sexual assault of a woman despite his claim that he was sleepwalking at the time of the criminal act.

Hartman was found guilty of sexual assault in 2012 and sentenced to 14 months in jail. He appealed and lost. He appealed again and admitted to the crime, but offered new evidence claiming that he was suffering from a condition called “sexsomnia” and maintained that he was sleeping when he raped the woman.

The Ontario Court of Appeal granted Hartman a new trial. The trial began in April 2017 and concluded this week with a Judge ruling that Hartman is guilty of sexual assault.

WHAT HAPPENED?

In February 2011, the woman, whose identity is protected by a court order, was attending a house party in Spencerville, Ontario with her boyfriend. The couple fell asleep on an air mattress to sleep off all of the alcohol they had consumed before driving home.

Suddenly, the woman felt a strong pain in her buttocks. She realized that her jeans were pulled down and that someone was penetrating her anally while her boyfriend remained asleep.

Hartman gave evidence at his first trial that he crawled onto the double air mattress with a sleeping couple. When he awoke, he was alone on the air mattress with an erection and his pants were unzipped.

As the woman and her boyfriend drove away from the house party, she observed Hartman sitting at a picnic table in the garage looking wide awake.

During the trial, Hartman’s lawyer argued that his client was asleep during the sexual assault and was therefore not criminally responsible for his “involuntary” acts.

Hartman relied upon evidence provided by Dr. Julian Gojer, a forensic psychiatrist, who determined that Hartman was likely asleep during the assault. Dr. Gojer’s opinion relied upon a family history of sleepwalking and evidence from Hartman’s girlfriend who had once found Hartman masturbating beside her in bed while apparently asleep.

The Crown prosecutor relied upon affidavit evidence from a U.S. sleep expert Dr. Mark Pressman who opined that Hartman was likely awake, but drunk during the assault.

At trial, evidence before the court included the fact that Hartman had consumed as many as 21 alcoholic beverages during the party and that his blood-alcohol level was estimated to be three to four times the legal limit.

Judge Kimberly Moore rejected Hartman’s defence of sexsomnia and ruled that Hartman was “awake and aware” and his “actions were not involuntary” when he pulled down the victim’s pants and anally penetrated the woman without her consent.

 WHAT IS SEXSOMNIA?

Sexsomnia is a type of parasomnia, an abnormal activity that occurs while an individual is asleep. It is a sleep disorder that causes individuals to engage in sexual behaviour while asleep.

Sexsomnia is similar to sleepwalking and occurs during non-rapid eye movement sleep. Most individuals are experiencing such a deep sleep that they will not even remember that the event occurred the following day.

Sexsomnia was added to the DSM-5 in 2013, the American Psychiatric Association’s relied upon classification of mental disorders.

WHAT IS THE DEFENCE OF SEXSOMNIA?

In Canada, sexsomnia has been raised by defence lawyers as a legal defence in at least a dozen criminal cases since 2005. The defence of sexsomnia has resulted in a “not criminally responsible” ruling five times.

A 2003 incident that occurred in Toronto set the precedent for the sexsomnia defence in Canada when Jan Luedecke was found not criminally responsible after being accused of sexually assaulting a woman at a party by the Ontario Court of Appeal.  In 2009, Luedecke was granted an absolute discharge by the Ontario Review Board based upon two risk assessments by a forensic psychiatrist and a forensic psychologist. He was found not to pose a significant threat to public safety.

In another case, a man from Blue Mountain, Ontario was found not criminally responsible for the sexual touching of a young girl as a result of sexsomnia in February 2015. In June 2016, the Newfoundland and Labrador Supreme Court ordered a new trial for a man convicted of sexually touching his younger sister on the basis of a sexsomnia defence.

Sexsomnia is a difficult defence as it requires a great deal of medical evidence, including expert testimony.

The victim of Hartman’s assault maintains that the assault has changed her life, her sexual relationships, her personal relationships, and her career path. Hartman will be sentenced on November 30, 2018.

If you have been charged with a sexual assault 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.

 

 

 

 

 

Former Canadian National Ski Coach Convicted of Sex Crimes

Written on Behalf of Affleck & Barrison LLP

Bertrand Charest, a former Canadian national ski coach, was found guilty of 37 charges including sexual assault and sexual exploitation for the abuse of athletes he coached between 1991 and 1998 in June, 2017. He has been in custody since his arrest in March, 2015.

THE CHARGES

Charest was facing 57 charges including sexual assault, sexual exploitation and one charge of sexual assault causing bodily harm. The 12 victims reported that the abuse took place between 1991 and 1998 in Quebec, Whistler, New Zealand, and the United States. The victims ranged in ages from 12 to 18 at the time of the offences.

Charest was found guilty of 37 of the 57 charges laid against him. He was acquitted on 18 charges and the court could not speak to two of the counts as they related to events that occurred in New Zealand. The guilty verdicts pertained to charges involving nine of the twelve women.

The victims’ credibility was central to the case. Judge Lepine stated,

                        The court believes the complainants and their testimonies are credible and reliable.

This is particularly noteworthy as the events in question took place more than two decades ago.

One victim gave evidence that Charest took her to have an abortion when she was 15 years old after having unprotected sex with him on numerous occasions. She stated that the sexual encounters continued after the abortion as Charest purchased contraceptives for her after getting a prescription from his own father.

Although Charest did not testify at the trial, his lawyer, Antonio Cabral, stated that the accused believed that the sexual relations he had with the young skiers was consensual.

Judge Sylvain Lepine emphasized that the victims in this case were vulnerable and compromised because they were afraid to lose Charest as their coach. Some of the victims gave evidence that they were in love with Charest at the time, but eventually came to understand that they had been manipulated. Judge Lepine stated that Charest’s actions represented an unequivocal abuse of trust and power.

THE SENTENCING

Charest was sentenced on December 8, 2017 to 12 years in prison. He has already served time and now has seven years and 10 months remaining in his sentence.

Judge Lepine had many harsh words for Charest and recognized that Charest “did not and does not recognize the gravity or consequences of his actions”. In his sentencing, Judge Lepine emphasized the turmoil that Charest caused in the lives of his victims, including loss of trust, suicidal thoughts, intense stress, problems with intimacy, eating problems, and more.

Charest’s victims delivered emotional impact statements to the court, using phrases such as “being robbed of my childhood”, living with “shame, guilt and disgust”, and describing his behaviour as resembling that of “a predator”.

Judge Lepine stated in his remarks at the sentencing,

 This behaviour is not acceptable in 2017, it wasn’t in 1998, just as it wasn’t in 1950 or any other era.

Judge Lepine also had harsh words for Alpine Canada when he stated,

 Alpine Canada and its leaders failed miserably in their role as guardians and protectors of these young athletes. …Their parents had entrusted them with their safety. Alpine Canada chose rather to close its eyes, to not believe these young women and to hide the truth.

In response, the Chair of the Board of Alpine Canada Martha Hall Findlay provided a statement stating,

 Instead of being there for the athletes, instead of providing support when these activities were discovered, Alpine Canada put itself first, not the victims. In doing so, Alpine Canada failed them. More than 20 years on, I want to say, personally and on behalf of Alpine Canada, that we are profoundly sorry.

Alpine Canada has recently changed its policies and procedures to prevent situations like this from happening in the future. SafeSport has been created to act as an independent body to review claims of abuse and investigate them outside of any conflict of interest from a particular team or organization.

THE FUTURE FOR CHAREST

Charest’s lawyer, Antonio Cabral, has appealed the sex-crime convictions on behalf of his client. Cabral alleges a lengthy list of legal errors made by the trial judge. Cabral specifically took issue with Judge Lepine describing Charest as a “veritable predator”.

Cabral has advised that he will ask the Quebec Court of Appeal to have Charest released pending the ruling on the appeal of the convictions.

We will continue to follow this case and provide updates as they develop.

In the meantime, if you are facing sexual assault charges or have questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 90-5404-1947. For your convenience, we offer 24-hour phone services. We are available when you need us most.

HIV Positive Status to Potentially Factor into Sexual Assault Sentencing

Written on Behalf of Affleck & Barrison LLP

Crown prosecutors in Saskatchewan recently clarified that an HIV positive man facing charges for choking a woman unconscious and then sexually assaulting her will not be charged with aggravated sexual assault. However, the Crown has argued that the man’s HIV status and the victim’s subsequent fear of having potentially contracted the virus should be considered during sentencing.

What Happened?

The sexual assault occurred in May 2015. The victim was on her way home after socializing with friends at a pub. She was accompanied by a friend until she was about half block from her apartment. As she cut through a back alley, she was approached by the man in question, who rode his bike alongside her, started making inappropriate comments, and touching her. The man eventually tackled her, choked her unconscious, and forcibly penetrated her before she eventually escaped.

After the man was arrested, the victim learned that he was HIV-positive. She was treated with potent post-exposure antiretroviral drugs and experienced six months of anxiety while she awaited her test results (which were negative).

Aggravated Sexual Assault

The Crown initially charged the man with aggravated sexual assault due to his HIV-positive status. Originally, the risk of transmission to the victim was considered the aggravating factor in the assault, however, the Crown reconsidered its original charge after evidence from an infectious disease specialist revealed that the man had regularly been taking antiretroviral drugs which suppressed his virus to a low enough level that transmission was “nearly impossible”. The man’s HIV-positive status, therefore, did not endanger the woman’s life.

He was still convicted of aggravated sexual assault, but it was because he choked the victim, not because of his HIV-positive status.

Prosecutors asked for a minimum sentence of 12 years, arguing that the victim’s fear of contracting HIV had been real, even if the actual risk of doing so was not. They noted that:

However low the risk is, the anxiety for the victim when she found out that this individual was in fact HIV-positive, is an aggravating factor.

HIV Prosecutions in Canada

As we previously blogged about, the majority of HIV-related prosecutions in Canada involve consensual sexual relationships which eventually led to prosecution because an HIV-infected partner did not disclose his or her status.

In 2012, the Supreme Court of Canada clarified that individuals with low-level HIV who use condoms when they engage in sexual relations, cannot be charged with aggravated sexual assault for non-disclosure of their status.

Since then, HIV activists have argued that the SCC’s criteria are too stringent and that medical advances in reducing transmission risk have progressed to the point that it is not necessary for individuals to have both a low viral load and to wear a condom. Experts have said that adding a condom to the situation “negligibly changes the risk” because the risk of transmission is already basically zero.

In this case, experts praised the fact that prosecutors recognized the reduced transmission risk, despite the lack of condom use, to determine that a charge of aggravated sexual assault was not justified.

Perception of Risk as Aggravating Factor

Both the Crown and defence lawyers recognized that, in this case, the victim’s fear of transmission could be considered an aggravating factor. However, the Defence is asking for a five-year sentence. Sentencing was delayed by three weeks in order to provide the Judge time to review a Gladue Report (a special pre-sentencing hearing into an Indigenous perpetrator’s background).

The provincial and federal governments are both currently reviewing the criminalization of HIV non-disclosure. We will continue to follow the developments and will provide updates as they become available.

In the meantime, if you have questions about your rights, contact one of the knowledgeable and well-respected Oshawa criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our lawyers have experience successfully defending charges of aggravated assault and sexual assault. We will take the time to understand the particular circumstances of your case and work to achieve the best possible result.

Changes Coming to Sexual Assault Provisions in the Criminal Code

Written on Behalf of Affleck & Barrison LLP

We have blogged extensively about sexual assault, as public debate about this offence continues to rage in light of multiple newsworthy events in recent years, and as the law evolves in recognition of changing norms.

Earlier this week, Canada’s Justice Minister introduced Bill C-51, which seeks to remove 20 criminal offences that are currently outdated or have been invalidated by court decisions, and clarify other exisitng provisions, including sexual assault provisions. The move is the Liberal government’s efforts to clean up the Criminal Code and other laws to accurately reflect changes in our understanding of critical issues.

Among the expected changes is an amendment that will explicitly state that a sexual assault complainant cannot consent to sex if they are unconscious, and that sexts or photos or videos cannot be used to discredit a complainant.

What Does This Mean?

Consent

The amended sexual assault provisions will not define or answer the question “how intoxicated is ‘too intoxicated’ to consent to sex”- that determination will remain in the hands of judges who will continue to make decisions on a case by case basis.

Currently, case law states that consent requires the ongoing, conscious agreement of both parties engaging in sexual activity while that activity is taking place. This should be clear, but unfortunately, it is not always, and consent or the credibility of one or both of the parties becomes the primary issue in sexual assault proceedings.

Rape Shield Provisions

Additionally, under current rape shield provisions, a complainant’s private medical records are not admissible at trial, unless the accused can establish that the records are critical to disproving the allegations, or vital to the accused’s constitutional right to a fair trial. However, the medical records cannot be used to support an accused’s claim that the complainant is somehow blameworthy in the alleged assault, more likely to have consented to sexual activity, or less credible.

The proposed changes would add emails, texts, other communications, as well as other personal records (e.g.: diaries, counseling records) to the list of records that are inadmissible under rape shield provisions.

The proposed changes would also clarify that sexting as well as emails, pictures, or videos with sexual content sent before or after an alleged assault could not be used against a complainant, and would also be subject to rape shield provisions.

Legal Counsel for Sexual Assault Complainants

The Bill also provides that sexual assault complainants have a right to their own legal counsel where rape shield questions are at issue. A judge would have to inform the complainant of that right and be required to consider their objections to having their private records and communications heard in court.

“Mistaken Belief”

The proposed changes would also codify existing restrictions on when an accused can use the defence of an “honest, but mistaken belief” that the complainant consented to sex. For instance, it is not legally possible to claim that the complainant’s failure to resist or protest meant that there was consent. Similarly, an accused cannot claim ignorance of the law or misunderstanding of what consent entails.

We will continue to follow the progression of this Bill and will blog about updates as they become available. In the meantime, if you have been accused of sexual assault or any related charges, contact the Oshawa criminal defence lawyers at Affleck & Barrison LLP online or at 905 404 1947. We offer 24-hour phone services and a free confidential consultation and we are available when you need us most.

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Ontario Judges Must Undergo Mandatory Training on Sexual Assault Laws

Written on Behalf of Affleck & Barrison LLP

The issue of sexual assault has been making headlines in recent months, with several judges across the country coming under fire for controversial comments made during sexual assault trials, or verdicts issued in those trials.

Recently, Ontario’s Attorney General announced that any new judges called to the bench will have to undergo additional training, including training on sexual assault laws. The Attorney General has credited Lise Maissonneuve, Ontario’s Chief Justice, for taking the first step in this new initiative.

Sexual Assault Laws Training for Incoming Ontario Judges

The Attorney General’s announcement comes in the wake of mounting pressure from both victims’ groups and Ontario Members of Parliament after controversial comments made by various judges. Recently, a judge in Alberta asked a woman at the centre of a sexual assault trail why she had not kept her “knees together” to prevent the attack. Another judge in Nova Scotia acquitted a taxi driver who was accused of sexually assaulting a passenger, after the judge ruled that it was “possible” the woman, who was severely intoxicated at the time of the assault, had consented.

Some critics have noted that the new initiative, which involves an education plan, only encourages judges to attend criminal law seminars that include an option of sexual assault training, but does not mandate the sexual assault component of the training. The Attorney General has noted that the government could not introduce any mandatory legislation out of respect for judicial independence, but that the importance of the training in sexual assault law specifically has been emphasized.  The new training will include “legal and social context issues (around sexual assault)”, which will be integrated into a number of programs.

Possible Training for Incoming Federal Judges

At the federal level, Members of Parliament from across all parties have also pledged their support for a bill introduced by Rona Ambrose which would likewise require new federally appointed judges to take part in training on sexual assault issues.

We will continue to monitor developments in this area and report on any updates as they become available. In the interim, If you are facing sexual assault or related charges, contact the skilled defense lawyers at Affleck & Barrison online or at 905 404 1947. We offer 24-hour phone services and a free confidential consultation and our office is within steps of the Durham Consolidated Courthouse.  We are available when you need us most.

Trial Judges “Unusual” Approach in Sexual Assault Case Questioned on Appeal

Written on Behalf of Affleck & Barrison LLP

We’ve previously blogged about an unusual restitution order made by a Toronto judge in a high profile sexual assault case involving two York University students. An appeal court recently considered the conviction and sentencing stemming from those sexual assault charges, and the original trial judge’s order was heavily criticized.

A Discussion on How the Criminal Law System Treats Sexual Assault

In 2016, Mustafa Ururyar was found guilty of sexually assaulting a fellow student at York University. Mr. Ururyar was sentenced to 18 months in prison, three years of probation and ordered to pay $8,000 in restitution to the victim of the assault to cover her legal bills (an unprecedented order). Mr. Ururyar appealed the conviction and sentencing.

The central question on appeal was whether the Ontario Court Justice Marvin Zuker’s decisions to convict Mr. Ururyar, and sentence him to 18 months in jail, as well as his comments made about the accused during trial, showed bias or the appearance of bias.

Mr. Ururyar’s defense lawyer argued that Justice Zuker engaged in a “scathing and personal condemnation” of Mr. Ururyar and distorted the evidence. Justice Zuker’s judgment shows bias against Mr. Ururyar, is hard to understand, illogical, and fails to properly analyze the evidence.

The appeal hearing devoted time to discuss what the role of a judge ought to be during a time of national debate about how the criminal justice system has been prosecuting sexual assault cases recently.

The Crown prosecutor argued that Justice Zuker’s commentary on the meaning of informed consent, victim-blaming, rape myths and trauma were a result of the current social context, and public concerns in the wake of the Jian Ghomeshi scandal, as well as the recent sexual assault hearing in Alberta in which Justice Robin Camp asked the complainant why she couldn’t keep her “knees together”. The prosecutor noted that such recent decisions have caused the public to lose confidence in the administration of justice.

However, Justice Dambrot disagreed with Justice Zuker’s approach, stating that

Of course it is important to dispel myths, but you do that by deciding cases correctly and appropriately not by using your podium of reasons for judgment as a place for your own manifesto…It is dangerous thing. Judges judge. They should do it right. They should do it according to the principles that apply. And they should do it fairly in accordance with their oath. They should not apply myths and if counsel suggests a myth then (they) absolutely should say ‘what are you talking about?’

Superior Court Justice Michael Dambrot called Justice Zuker’s approach “unusual”, and, over the course of the appeal hearing accused him of “showing off”, and stated that Justice Zuker’s reasoning appeared to be “unmoored”. He took issue with the “sarcastic tone” employed by Justice Zuker in the decision and found it “troublesome” that Justice Zuker had spent a significant amount of time commenting on sexual assault myths and stereotypes rather than making clear, factual findings about the facts at hand.

Justice Dambrot acknowledged that the procecutor’s explanation of Justice Zuker’s reasoning was persuasive; however, Justice Zuker himself had failed to explain why he had made his decisions, and did not clearly connect the rape myths he wanted to dispel with the evidence in this case.

If the conviction is ultimately overturned, and a new trial is ordered, another key issue in the appeal (whether it was appropriate for Justice Zuker to order Mr. Ururyar to pay the victim $8,000 in legal fees) might not be decided.

Justice Dambrot’s decision is expected on June 8. We will continue to follow developments in this matter and will blog about updates as information becomes available.

If you are facing sexual assault or related charges, contact the skilled Oshawa criminal 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.