sexual assault

‘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.

Pending Sexual Assault Appeal Generates Debate about Complainants Retaining a Criminal Lawyer

Written on Behalf of Affleck & Barrison LLP

In 2016, Mustafa Ururyar, a York university student, was found guilty of sexually assaulting a fellow student and sentenced to 18 months in prison, three years of probation, and, in an unprecedented move, was ordered to pay $8,000 in restitution to the complainant for her legal bills.

While restitution orders can sometimes be made by judges in criminal cases to cover things such as therapy bills and lost wages, this marked the first time that an order has been made to cover legal fees.

The original decision is now being appealed.  The outcome of the appeal will likely have far-reaching consequences for both those accused of an offense, and well as complainants, and has already generated debate about the importance of complainants retaining their own legal counsel, particularly in cases involving sexual assault.

Appeal

The Criminal Law Association

The Criminal Law Association (CLA) has been permitted to intervene in the pending appeal and are expected to argue that is it not appropriate for a criminal court to order restitution for a complainant’s legal fees.

The CLA believes that this would be unfair since accused individuals who are ultimately acquitted do not have recourse to have the Crown (i.e.- prosecution) reimburse their legal fees. Additionally, the Association points to the fact that there are existing resources in place, such as the Victim Witness Assistance Program, that are intended to help complainants through the legal system.

The CLA’s Director stated that the complainant could have asked Crown counsel to answer any questions that she may have had about the proceedings, or about her legal rights, and that if she had any questions subsequent to that, she was free to retain counsel, however, to have the accused then pay her legal bills “wasn’t necessary”:

The general policy that an accused person bears his or her own costs, regardless of the outcome of the litigation, should also apply to a victim who chooses to avail his or herself of counsel.

Defense Counsel

Ururyar’s lawyers are expected to argue that the section of the Criminal Code that addresses damages does not address a complainant’s legal fees, which were “incurred at her own discretion”. If a complainant or an accused who has been acquitted seeks monetary compensation, that individual must go through civil court in order to obtain said compensation, therefore, the issue of restitution for legal fees ought to be dealt with via civil courts, and not criminal courts.

Further, defense counsel has stated that the original trial judge arrived at the $8,000 restitution sum arbitrarily and did not address Ururyar’s ability to may (a necessary requirement in restitution orders).

The Complainant

Mandi Gray, who chose not to have her identity masked by a publication ban, has stated that hiring a lawyer was the best decision she made, and one which she views as “completely necessary”. Gray’s counsel, a criminal defense lawyer, will be seeking leave to intervene in the appeal. He has pointed to the fact that courts, appropriately, order restitution for therapy where an accused is found guilty. Like therapy, legal representation is another “key service” that can help complainants cope with a legal process that can be demeaning, isolating, and traumatic.

Gray herself has stated that:

Without legal counsel, I would have been up against the university and the criminal justice system without a single ally. Rape costs a lot more than just emotional and career opportunities. . .  I hope future victims of the crime are empowered to retain legal counsel. This is a matter of access to justice and who should be paying for it.

The appeal is scheduled to take place on March 14th. We will continue to follow developments in this matter and will blog updates when more information becomes available.

If you are facing sexual assault or related charges, or have been a victim of an assault, contact the skilled Oshawa criminal lawyers at Affleck Barrison online or at 905 404 1947 for legal guidance. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.

Man Convicted of Sexual Assault Sentenced In Absentia After Fleeing the Country

Written on Behalf of Affleck & Barrison LLP

Moazzam Tariq, a 29-year old Brampton man convicted of sexually assaulting a woman who was too intoxicated to consent to sex, has been sentenced in absentia after fleeing the country to Pakistan.

As we previously blogged about, Tariq was found guilty of sexual assault in October of this year, based in large part on shocking surveillance videos. He was expected at his sentencing hearing earlier this month, but failed to appear.

Not the First Time the Offender Has Fled the Country

This is the second time that Tariq has left Canada in order to avoid a jail sentence. Due to an apparent failure to update the Canadian Police Information Centre (CPIC) (the national database of criminal records), both Toronto police and prosecutors were unaware that Tariq had previously been charged with dangerous driving causing bodily harm in January 2010, and that he subsequently fled to Pakistan, while on bail, with his father as surety.

Tariq was re-arrested entering Canada in September 2011, at which point he had informed officers that he had left the country to avoid jail on the outstanding charges, and spent the year in Pakistan and various European countries. He was charged with failure to appear as well as robbery, and was released on bail two days later to his father and another surety for $25,000. In July 2012 he pleaded guilty to dangerous driving. All other charges were withdrawn. Tariq received a sentence of 90 days in jail (to be served on weekend), as well as 18 months’ probation.

Ontario Court Justice Mara Greene stated that “had we known his history he would have been put in custody immediately” and would likely not have been granted bail on the sexual assault charge. Justice Greene called Tariq’s escape a “foregone conclusion”.

After Tariq’s sexual assault conviction earlier this year, his father was asked what had happened when he had previously acted as Tariq’s surety following the dangerous driving charges. The father did not disclose that his son had fled the jurisdiction then, telling the court only that Tariq had committed a minor breach of his bail conditions because he lived within 500 meters of a school.

Offender Had Been Required to Surrender His Passport

At the time Tariq fled the country this time, he was on $10,000 bail, was required to live with his father in Brampton, and had to be home between the hours of 10pm and 6am. Upon conviction, he had also been required to surrender his passport. Allegedly, Tariq provided authorities with an expired passport that had been forged to appear current. He then used his valid Pakistani passport to leave Canada on November 18th through Montreal, stopping in Qatar, before ultimately ending up in Pakistan.

Prosecutors and the Court initially learned that Tariq was missing when he failed to show up at the sentencing hearing. However, he had been reported to have breached his bail on November 24th, after his father removed himself as surety, telling police that Tariq had gone to Vancouver on business and then subsequently stopped answering phone calls. A nationwide warrant for Tariq’s arrest was subsequently issued on December 5th, at which point Tariq had already been out of the country for two weeks.

At the time of the sentencing hearing, prosecutor Nathan Kruger told Justice Green that “Your Honour can make a reasonable inference that [Tariq] will not be returning and will not be found prior to Dec. 19”. Greene stated that communication between jurisdictions “clearly needs to be improved” adding that:

I have found Mr. Tariq guilty of a serious personal injury offence that affects the core integrity of the human body. And the potential risk to others if he remains in the community, given his disregard for the legal system is really concerning…[i]f there had been better communication mechanisms in place, if CPIC was updated properly we would not be in this position.

Following the initial sentencing hearing, Tariq’s defense lawyer was removed as his counsel at her request.

The Sentence

On December 19th, Tariq was sentenced to two years and nine months in prison.

At the hearing, Justice Greene acknowledged that it was unusual to proceed with sentencing in the absence of the offender, however, in this case it was necessary to allow the victim to move forward with her life.

Justice Greene took the victim’s impact statement into account when setting the sentence, acknowledging the immense trauma the victim was suffering and stating:

It is difficult to imagine that feeling of stopping to be who you are because of someone else’s callous violence towards you…

Prosecutors had sought a three-year sentence. They did not ask the Justice to consider Tariq’s flight as part of the sentence, telling the Court that if he was found and returned to Canada the issue of his flight would be dealt with separately.

Tariq’s father is expected to have a hearing next year over whether or not he should forfeit the $10,000 he provided for bail.

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

47 Suspects Charged in Nationwide Human Trafficking Investigation

Written on Behalf of Affleck & Barrison LLP

Twenty sex workers suspected of working against their will, were rescued earlier this month as a result of Operation Northern Spotlight, a massive cross-Canada human trafficking investigation. Most of those rescued are under 19, and some are as young as 14.

Over the past year, Canadian police forces worked with the FBI in a coordinated effort to fight human traffickers. The OPP spearheaded the latest phase of the operation, which involved more than 350 officers and staff from 40 police agencies across Canada. The investigation led to the arrest of 47 people who are facing more than 130 charges including trafficking in persons, forcible confinement, child pornography, and sexual assault with a weapon.

U.S law enforcement agencies conducted Operation Cross Country, a similar operation south of the border, which resulted in the arrest of more than 150 “pimps” and the rescue of 152 minors.

Human Trafficking and Related Charges 

The charges laid in Phase 5 of Operation Northern Spotlight included:

  • Trafficking in Persons under 18
  • Trafficking in Persons
  • Procure Sexual Services under 18
  • Procure Sexual Services
  • Receive Material Benefit under 18
  • Receive Material Benefit
  • Communicate for the Purpose of Obtaining for Consideration the Sexual Services of a Person
  • Exercise Control
  • Make Child Pornography
  • Distribute Child Pornography
  • Possess Child Pornography
  • Child Luring
  • Advertise Another Person’s Sexual Services
  • Assault
  • Obstruct Police
  • Resist Arrest
  • Controlled Drug and Substances Act (CDSA) offences

Human Trafficking in Canada 

Human trafficking charges can be laid against any person who recruits, transports, transfers, receives, holds, conceals, or harbours a person, or any person who exercises control, direction, or influence over the movements of a person for the purposes of exploiting them, or facilitating their exploitation for a forced labour or sexual reason.

If you are facing a human trafficking or related charge, contact us online or at 905-404-1947 to speak with an experienced criminal defence lawyer. We take all steps needed to protect your best interests, both immediate and long term. We maintain a 24-hour emergency service line, and our office is within steps of the Durham Consolidated Courthouse.  We offer a free confidential consultation to all perspective clients.

Ontario Judge Finds Woman Was Too Intoxicated to Consent to Sex

Written on Behalf of Affleck & Barrison LLP

Following a four-day trial, Moazzam Tariq, a 29-year-old Brampton man, has been found guilty of sexual assault after a judge ruled that his victim was too drunk to consent to sex.

The case raises important questions about when a person becomes incapable of granting informed consent while still conscious. The case is also unique as it involved telling video surveillance footage that became instrumental in the Judge’s final decision.

What Happened?

The complainant testified that she awoke alone in a hotel room. She had no recollection of where she was or how she had gotten there, but that she “felt violated” and knew that she had been penetrated. She reported a sexual assault to police. Within a few weeks, the police arrested Tariq, based on surveillance footage from the nightclub the complainant had been at that evening, as well as from the hotel.

The Crown

At trial, the complainant did not dispute that she went to the hotel with Tariq, however has no recollection of getting there, and very little recollection of the evening. She testified that she had had only a vague memory of someone hovering over her in the hotel room. She recalled saying “no” two or three times, but did not remember saying yes at any point. The results of a sexual assault exam had revealed semen in her vagina matching Tariq’s.

Surveillance video from both the nightclub and the hotel was obtained by the Crown, and played at the trial. The first video shows Tariq pouring alcohol down the complainant’s throat straight from the bottle twice, slapping her on the bottom as he helps her to her feet, grinding up against her, and holding her up as she staggers towards the door. Video from the hotel a short time later show the complainant leaning heavily against Tariq as he escorts her through the front door, and later shows her in the elevator with her eyes half open, slumped against the wall.

Both surveillance videos can be seen here: http://bcove.me/x7bfv2hf

The Defense

Tariq did not testify in his defence. His counsel argued that video does not allow for an accurate assessment of a persons’s state of mind or their decision making capacity. A toxicologist testified that poor motor skills do not necessarily mean that someone is “cognitively impaired’. The defence further argued that the complainant displayed deliberate, conscious decision making while at the nightclub (refusing drinks, and not wanting to dance) as well as an awareness of her surrounding (keeping track of her cellphone and purse, adjusting her clothing). According to defence counsel, this means that deliberate, conscious decision making could also have taken place later that evening in the hotel room where the sex took place. Lastly, defence argued that there is no way to know when precisely the sex took place between the parties’ arrival at the hotel and Tariq’s departure in the morning.

The Judge

Justice Mara Greene found that the complainant lacked the capacity to consent to sex with Tariq, a “virtual stranger”. She further stated that it defied “common sense” that the parties would have stayed awake for hours and then had sex, or that the complainant had fallen asleep, woken up, and then had sex, based on the short time the parties spent together, their lack of conversation, and the complainant’s unresponsive manner.

Justice Greene further stated:

In my view, the only reasonable inference from all the evidence is that [the complainant] was disoriented, confused, not aware of what was really going on around her and not capable of making voluntary informed decisions.

The test for granting informed consent is whether the person in question can understand the risks and consequences of sex and have the ability to realize that he/she can refuse. The threshold is quite high, as only a “minimal cognitive capacity” is required to consent to sex.

In this instance, Justice Greene was ultimately satisfied beyond a reasonable doubt that

…[the complainant] did not appreciate where she was or what she was doing…[she] did not realize she could refuse to go with Mr. Tariq and say no to sexual intercourse.

Moreover, Justice Greene found that Tariq knew that the complainant could not consent, or was wilfully blind to the fact that she could not. However, since he did not testify, there was no basis to make a conclusion as to whether he had a mistaken belief that the complainant had consented to having sex with him.

Ultimately, the video surveillance did not provide sufficient evident to find that the complainant did not consent to sex with Tariq, but was sufficient to establish that she was to intoxicated to have the ability to consent to sex, and that Tariq clearly ignored those signs.

Ultimately, Justice Greene found Tariq guilty of sexual assault. He will be sentenced on December 1.

Importance of the Video Evidence

Certainly in an age of social media, camera phones, and generally increased availability of video footage, this case may set an important precedent.

The introduction of video evidence in a sexual assault case is rare. In this case it played a critical role in establishing reasonable doubt with respect to the complainant’s ability to consent to sexual activity. The Judge relied almost entirely on the surveillance footage to demonstrate the complainant’s lack of capacity to made decisions at crucial portions of the evening.

If you are facing sexual assault or related charges, contact the skilled defense lawyers at Affleck Barrison online or at 905 404 1947. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.