supreme court of canada

Supreme Court Rules New Changes to Jury Selection are Constitutional

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada ruled in the case of R. v. Chouhan that a law passed by the federal Liberal government that changed the jury selection process in an effort to diversify juries and prevent the rejection of potential jurors based on their race is constitutional.

This ruling is significant as there were 45 convictions in cases involving violent crimes that were awaiting the Supreme Court’s decision in the Chouhan case regarding the issue of whether the law could apply retroactively.

WHAT WERE THE CHANGES IN THE JURY SELECTION PROCESS BROUGHT ON BY THE NEW LEGISLATION?

Bill C-75, An Act to Amend the Criminal Code, was enacted in response to the public outrage over the 2018 trial of Gerald Stanley (“Stanley”), a white Saskatchewan farmer who was acquitted of second-degree murder by an all-white jury in the shooting death of an Indigenous man, Colten Boushie. During Stanley’s trial, all visibly Indigenous jury contenders were challenged and excluded using peremptory challenges by Stanley’s defence lawyers.

As we previously blogged, this new legislation revised the jury selection practice by eliminating the right of Crown prosecutors and the defence lawyers to make peremptory challenges (to object to a proposed juror without stating a reason). This Bill became law on September 19, 2019.

The new legislation still allows for “challenges for cause”, whereby either the Crown or the defence can give reasons to object to a potential juror, though the objection does not have to be accepted by the judge. The law also grants judges the discretion to stand aside jurors in order to protect public confidence in the justice system.

PARDEEP CHOUCHAN’S CONSTITUTIONAL FIGHT

Pardeep Chouchan (“Chouchan”), a South Asian man who was charged with first-degree murder, was scheduled to select a jury on September 19, 2019 (the same day that Bill C-75 came into effect). Chouchan argued that the changes to jury selection by Bill C-75 infringed his rights under the Charter of Rights and Freedoms. Chouchan also maintained that his right to a fair trial depended upon his ability to use peremptory challenges to eliminate potential racists from his jury.

Chouchan brought a constitutional challenge regarding the amendments to the Criminal Code prior to the jury section process in his trial and prior to Bill C-75 coming into effect. Chouchan also argued that the amendments should not apply retroactively.

In September 2019, the Ontario Superior Court of Justice dismissed Chouchan’s constitutional challenge. Chouchan then proceeded to trial with a jury that was created under the new legislation and he was found guilty of first-degree murder.

Chouchan proceeded to appeal the constitutional decision to the Ontario Court of Appeal, who unanimously upheld the legislation. Chouchan argued that eliminating peremptory challenges infringed his rights under the Charter. The Court of Appeal disagreed with Chouchan’s arguments and found that the abolishment of peremptory challenges does not infringe Chouchan’s rights under the Charter.

However, the appeal court ruled that the trial court did not apply the new rules regarding juries appropriately. The appeal court found that the elimination of peremptory challenges should not apply retroactively to all pending cases and should only apply to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019. Thus, the new law should not have applied to the jury selection process in Chouchan’s case. As such, Chouchan’s conviction was overturned by the appeal court with a new trial set for the fall of 2021.

THE DECISION BY THE SUPREME COURT OF CANADA

The Crown prosecutor appealed the Court of Appeal’s decision and Chouchan cross-appealed on the issue of the constitutional validity of the Criminal Code amendments.

At the Supreme Court, counsel for Muslim, Black, South-Asian and Asian-Canadian legal groups intervened to put forth the argument that peremptory challenges allow those in racialized communities to realize that a fair trial is possible. They argued that although there are “challenges for cause” and judges can eliminate jurors to protect public confidence in the justice system, neither approach is as effective in addressing presumed bias as peremptory challenges are.

According to Janani Shanmuganathan, a lawyer speaking before the Supreme Court on behalf of the South Asian Bar Association:

When the juror doesn’t look the accused in the eyes right away, or looks away quickly, or doesn’t look at all, or just looks plain hostile, and we get that feeling, how can we articulate it in words that provide a legal basis for excluding a juror?

Although the judges of the Supreme Court of Canada did not provide their reasons, they ruled that the legislation is constitutional. Furthermore, it was concluded that the appeal court should not have dismissed Chouchan’s conviction as the changes to the jury rules were merely procedural and could therefore apply retroactively. Chouchan’s conviction was restored and he now awaits his sentence.

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 have 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.

Supreme Court of Canada Clarifies Entrapment by Police in Dial-a-Dope Cases

Written on Behalf of Affleck & Barrison LLP

Canada’s highest court recently released its written decision in a pair of related cases regarding the issue of entrapment. Javid Ahmad (“Ahmad”) and Landon Williams (“Williams”) were each charged with drug offences after police purchased cocaine from them.

The Supreme Court of Canada confirmed that police must form a reasonable suspicion that the individual on the phone is dealing drugs before asking to buy drugs.

WHAT HAPPENED?

Toronto police responded to tips to investigate alleged dial-a-dope schemes. This type of scheme involves a seller communicating with their customers over cell phones and arranging to purchase drugs at an agreed upon location. In each case, officers called a particular phone number and following a brief conversation requested drugs and arranged a meeting spot to complete the transaction.

Ahmad and Williams were each arrested and charged with drug-related offences. Both accused argued at trial that their proceedings should be stayed on the basis of entrapment.

In the case of Ahmad, the police received a tip that “Romeo” was selling drugs over the phone. Following a short conversation with “Romeo”, a deal was struck to sell the officer cocaine and a location was agreed upon. The officer met “Romeo” (Ahmad) in person to sell him the cocaine, at which time he was arrested and searched. At Ahmad’s trial, he was convicted and the judge concluded that he was not entrapped as police had not offered him an opportunity to traffic drugs until their tip had been corroborated during the course of the phone conversation.

In the case of Williams, police received a tip that “Jay” was selling cocaine. The officer called “Jay” and arranged a meeting time and place to buy crack cocaine. The drug deal took place. Eleven days later, another drug deal was arranged. A month later, the police arrested Williams. At Williams’ trial, the judge concluded that he was entrapped because the officer who contacted him provided him with the option to sell drugs before forming a reasonable suspicion that he was drug trafficking. Thus resulting in a stay of the drug-related charges.

Both Ahmad’s and Williams’ cases were heard together on appeal. The majority of the Court of Appeal held that where reasonable suspicion relates to the phone number, the police can provide opportunities to commit a crime even if there is no reasonable suspicion about the person who answers the phone. Therefore, at their appeals both Ahmad and Williams were convicted of drug offences.

WHAT IS ENTRAPMENT?

Entrapment takes place when the police encourage an individual to commit a crime or provide an individual with the opportunity to commit a crime without having a reasonable suspicion that the individual is involved in that particular criminal activity.

The Supreme Court of Canada set out two categories for the defence of entrapment in the case of R. v. Mack.

The police may present an opportunity to commit a crime only without acting upon a reasonable suspicion that either a specific person is engaged in criminal activity or people are carrying out criminal activity at a specific location;
The police, while having a reasonable suspicion, go beyond providing an opportunity and induce the commission of an offence.

WHAT DID THE SUPREME COURT OF CANADA DECIDE?

On appeal to the Supreme Court of Canada, both Ahmad and Williams argued that the police did not have the required reasonable suspicion that either individual was involved in criminal activity before asking them over the phone to buy drugs.

The majority of the judges of the Supreme Court concluded that Ahmad was not entrapped and that Williams was entrapped by the police.

The court held that police can ask a person during a telephone conversation to commit a crime, but only if there is already reasonable suspicion that the person is involved in criminal activity. The reasonable suspicion must relate to the specific person committing a crime or a crime occurring in a specific location. Given the digital world that we live in, a specific location can include a phone number. Thus, police can have a reasonable suspicion that the phone number is being used for the crime before asking the person who answers the phone to commit a crime. The court was concerned about the risks to privacy of allowing the location to be expanded to virtual spaces and stated:

…to properly protect these interests, police must have reasonable suspicion over an individual or a well-defined virtual space, like a phone number, before providing an opportunity to commit a crime.

Although in both cases, the police didn’t have reasonable suspicion before calling the phone numbers, the court concluded that the police became reasonably suspicious in Ahmad’s case to suspect he was selling drugs while talking with him on the phone and before asking to buy drugs from him. In Williams case, the police asked to buy drugs from him prior to having a reasonable suspicion that he was selling drugs during their phone conversation.

The majority of the court stated:

As state actors, police must respect the rights and freedoms of all Canadians and be accountable to the public they serve and protect. …

At the same time, police require various investigative techniques to enforce the criminal law. While giving wide latitude to police to investigate crime in the public interest, the law also imposes constraints on certain police methods.

Based upon the specific circumstances in each case, Ahmad’s conviction was upheld and the stay of proceedings for Williams was reinstated.

If you have been charged with a drug-related offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Supreme Court of Canada Rules Bail Conditions Must Be Knowingly Violated

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

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

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

THE DECISION OF THE SUPREME COURT

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

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

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

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

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

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

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

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

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

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

If you have been charged with a bail related offence or have any questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

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

Written on Behalf of Affleck & Barrison LLP

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

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

WHAT HAPPENED?

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

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

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

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

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

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

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

THE SUPREME COURT OF CANADA DECISION

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

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

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

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

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

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

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

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

If you have been charged with a driving related offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

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.

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 se xual 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.

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.

Supreme Court Overturns Convictions in Favour of Racialized Man

Written on Behalf of Affleck & Barrison LLP

A recent decision by the Supreme Court of Canada is sending a strong message regarding the harm of over-policing racial minorities in inner-city neighbourhoods.

In a 3-2 decision, the Supreme Court of Canada held that the police had no reasonable cause to enter a backyard and question an Asian-Canadian man and therefore set aside his convictions for possessing a gun, drugs and illicit cash.

WHAT HAPPENED?

In the evening of May 25, 2012, twenty year old Tom Le (“Le”) was speaking with four young black men in the backyard of a Toronto housing complex.

Police officers were tipped off by security guards who patrolled the complex that there were concerns of drug trafficking in the backyard of this address and that a suspect had been observed there.

Two police officers entered the backyard without consent or a judicial warrant and began to question and request identification from the young men. A third officer patrolling the perimeter of the property stepped over a low fence and told one of the men to keep his hands where he could see them.

One officer demanded that Le provide his ID and he was asked about the contents of a bag that was slung across his body. Le then attempted to flee the scene and was quickly tackled and apprehended. His bag was found to contain a loaded handgun and a considerable amount of cash. At the police station, Le turned over 13 grams of cocaine to police.

At his trial, Le argued that the evidence should be excluded under section 24(2) of the Charter of Rights and Freedoms as police violated his constitutional rights to be free from arbitrary detention and unreasonable search (contrary to sections 8 and 9 of the Charter).

At trial, the judge rejected Le’s position that police violated his rights under the Charter and found that police had legally detained Le. He was found guilty of several gun and drug offences and was also unsuccessful in challenging his convictions at the Ontario Court of Appeal. Le proceeded to commence an appeal to the Supreme Court of Canada.

SUPREME COURT OF CANADA’S DECISION AND REASONS

Contrary to the lower court decisions, the majority of the highest level of court in Canada threw out the convictions as a result of serious violations of Le’s rights under the Charter. The court ruled that the police actions amounted to an arbitrary detention and serious violation of Le’s rights and therefore the evidence must be excluded.

The purpose of section 9 of the Charter, prohibiting arbitrary detention, is to protect Canadians against unjustified state interference. A detention may not necessarily involve physical restraint, but may exist in a situation where “a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave”.

The Supreme Court found that in this case the detention was arbitrary as the police were trespassers and had no legal authority to detain the accused. Furthermore, their intimidating behaviour made Le feel as though he was unable to leave, even though he had the right to do so.

Although the incident occurred in a high-crime neighbourhood, the court found that the police did not have the authority to enter a private yard. The court stated:

Indeed, that a neighbourhood is policed more heavily imparts a responsibility on police officers to be vigilant in respecting the privacy, dignity and equality of its residents who already feel the presence and scrutiny of the state more keenly than their more affluent counterparts in other areas of the city.

The majority judges also found that the police had engaged in “carding” (a topic that we have previously blogged about), which is the police practice of randomly stopping and questioning individuals who are not suspected of any crime. This is a practice that unjustifiably affects racialized individuals.

The court found that the incident of the police entry into the backyard was another example of the experience of racialized young men who are targeted, stopped and questioned.

The court stated:

The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonable suspicion of criminal activity is more than an inconvenience. Carding takes a toll on a person’s physical and mental health. It impacts their ability to pursue employment and education opportunities.

Le’s lawyers, were thankful for the Supreme Court decision in favour of their client and the message that is being distributed. Emily Lam stated:

We’re grateful that the court heard us, that they heard the voices of marginalized and racialized communities, all of whom have been saying that they are police differently, and the court recognizing that their experience has been different.

Samara Secter stated:

I think this is a push from the Supreme Court to have police recognize that everyone’s rights deserve respect.

There has been no real response from Toronto Police Services other than its spokesperson stating that the ruling is being “reviewed and considered by the Toronto Police Service’s professional standards unit”.

Supreme Court Rules a Crucial Element of Child Luring Law is Unconstitutional

Written on Behalf of Affleck & Barrison LLP

Last month the highest court in Canada ruled that a provision in the law forbidding the luring of children over the internet is unconstitutional and ordered a new trial for alleged offender Douglas Morrison (“Morrison”). This decision may result in a number of child luring convictions being overturned across Canada.

In this landmark decision regarding the validity of child luring laws in Canada, the Supreme Court of Canada struck down two parts of the child luring laws found under section 172.1 of the Criminal Code. The decision in R. v. Morrison will affect those cases where police officers pretend to be minors in an effort to apprehend suspected online predators.

WHAT IS THE CHILD LURING LAW IN CANADA?

The offence of child luring in Canada can be found in section 172.1 of the Criminal Code. Child luring is defined as using the internet to communicate with an individual who is, or who the perpetrator believes to be, under the age of 18 for the purposes of committing the offence of sexual exploitation, incest, child pornography or sexual assault.

You may also be charged with child luring if you communicate with an individual you know, or believe to be, under the age of 16 for the purposes of committing the offence of sexual exploitation, invitation to sexual touching, indecent exposure to a person under the age of 16 or abduction of a person under 16 years old.

If the Crown chooses to proceed by indictment (more serious offences) and you are found guilty of child luring, you will face a minimum of one year in prison, up to a maximum of 14 years in prison. If the Crown chooses to proceed summarily (less serious offences), you will face a minimum of 6 months in jail, up to a maximum of 2 years less a day.

WHAT HAPPENED IN R. v. MORRISON?

Morrison was charged with child luring under section 172.1 of the Criminal Code. He posted an online ad on Craigslist pursuing sexual conversations and stating he was interested in younger girls. His ad was entitled “Daddy looking for his little girl”.

Over the course of two months, police posed as a 14 year old girl named “Mia”. Morrison began a sexual discussion with Mia, requested that she touch herself sexually, suggested she watch pornography, asked her for photographs, and arranged to pick Mia up after school (the encounter never occurred). Consequently, Morrison was charged with child luring.

During his trial, Morrison argued that he believed he was speaking to an adult online who was role playing as a character of a 14 year old girl. He maintained that the rules on Craigslist require that users are to be 18 years old or older. He was convicted at trial and the conviction was upheld by the Ontario Court of Appeal.

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

On appeal to the Supreme Court of Canada, Morrison brought three Charter of Rights and Freedoms (“Charter”) challenges pertaining to section 172.1 of the Criminal Code. The Charter arguments before the court were the following:

Section 172.1(3) violated his right to be presumed innocent under section 11(d) of the Charter;
Section 172.1(4) contains presumptions (requiring a person to take reasonable steps to ascertain the age of the individual they are contacting and to ensure he/she is not underage) that were not in accordance with the principles of fundamental justice and violated section 7 of the Charter, which protects the right to life, liberty and security of a person; and
Section 172.1(2)(b) contains a mandatory minimum sentence of one year in prison which violated the guarantee against cruel and unusual punishment found in section 12 of the Charter.

The Supreme Court of Canada overturned Morrison’s conviction citing errors made by the trial judge. The Court ruled unanimously that the government’s wording of the child luring law violates the presumption of innocence guaranteed by the Charter. It is the role of the Crown to prove beyond a reasonable doubt that an accused genuinely believed he/she was communicating with an individual who was underage.

Justice Michael Moldaver, writing for the majority of the Court, stated:

In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage. Nothing less will suffice.

The accused, in his/her defence, may prove that he/she took “reasonable” steps to determine if the alleged victim was underage. If this cannot be shown, then the accused cannot argue that he/she believed the alleged victim was of legal age.

The Supreme Court was also asked to consider the appeal by the Crown that Morrison was not given the mandatory one-year minimum sentence. The trial judge gave Morrison a four month sentence, and ruled that the one year mandatory minimum sentence found in the Criminal Code was unconstitutional as it violated the guarantees found in the Charter against cruel and unusual punishment. However, the majority of the justices did not rule on this issue.

Given the potential ramifications resulting from the Supreme Court of Canada’s decision in R. v. Morrison, we will continue to follow any developments in the news and the case law and will report any updates that become available in this blog.

In the meantime, if you are facing child luring charges or have any questions regarding your legal rights, please contact the knowledgeable criminal defence 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. We are available when you need us most.

Canada’s Highest Court Finds Teacher Guilty of Voyeurism for Secretly Recording Students’ Cleavage

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada ruled last week that an Ontario high-school teacher, Ryan Jarvis (“Jarvis”), is guilty of voyeurism for using a pen camera to secretly take videos of female students.

The highest court in Canada decided that the teenage students were entitled to a reasonable expectation that they would not be surreptitiously recorded by their teacher.

WHAT HAPPENED?

Jarvis was charged with the criminal offence of voyeurism (section 162(1)(c) of the Criminal Code) after it was discovered that he had taken videos of female students’ faces, chests, and cleavage area with his pen at a high school in London, Ontario.

These videos were recorded during 2010 and 2011 and took place throughout the school, including the hallways, classrooms, cafeteria, staff offices, and even outside of the building. The 27 students who were filmed by Jarvis ranged in age from 14 to 18 years old and did not know that they were being recorded.

At trial in 2015, Jarvis was acquitted as the trial judge held that while the students had a reasonable expectation of privacy, it was not clear that the videos were taken for a sexual purpose.

As we have previously blogged, the Ontario Court of Appeal dismissed the Crown’s challenge of the trial judge’s ruling and upheld Jarvis’ acquittal. The majority of the appeal court found that the videos were taken for a sexual purpose, however, the court found that the students should not have an expectation of privacy in areas of the school where they congregate or learn.

At the Court of Appeal, there was one dissenting judge who was convinced that the students were entitled to a reasonable expectation of privacy in the circumstances and would have entered a conviction on that basis.

This dissenting opinion at the appeal court level allowed the Crown prosecutor a right to appeal the decision to the Supreme Court of Canada. Therefore, the issue before the Supreme Court was whether the Court of Appeal erred in finding that the students recorded by Jarvis should not have a reasonable expectation of privacy in the circumstances and for the purposes of section 162(1) of the Criminal Code.

The offence of voyeurism as set out in the Criminal Code is committed when a person surreptitiously observes or makes a visual recording of another person who is in “circumstances that give rise to a reasonable expectation of privacy”, and in Jarvis’ case the observation or recording is done for a sexual purpose.

WHAT DID THE SUPREME COURT OF CANADA DECIDE?

The nine judges of the Supreme Court of Canada all agreed that Jarvis should be found guilty, although there were two different lines of reasoning followed by the judges in coming to this decision.

The majority of the Supreme Court emphasized that the offence of voyeurism was predicated on concerns of rapidly developing technology, which may be abused for the purpose of secret viewing or recording for a sexual purpose and involving a breach of privacy.

Chief Justice Richard Wagner, writing for the majority of the court, provided a non-exhaustive list to assist a court in determining whether a person was observed or recorded in circumstances that give rise to a reasonable expectation of privacy, including:

The location the person was in when he/she was observed or recorded;
The nature of the conduct (either an observation or recording);
Awareness of or consent to potential observation or recording;
The manner in which the observation or recording was made;
The subject matter or content of the observation or recording;
Any rules, regulations or policies that governed the observation or recording in question;
The relationship between the person who was observed or recorded and the person who did the observing or recording;
The purpose for which the observation or recording was made; and
The personal attributes of the person who was observed or recorded.

The majority of the court was satisfied that the students that had been recorded were in circumstances that give rise to a reasonable expectation of privacy based upon the following considerations:

the location of the recording;
the fact that the impugned conduct was a recording rather than mere observation;
the manner in which the videos were recorded;
the fact that that these students were unaware that they were being recorded;
the content of the videos which focused on intimate parts of the students’ bodies;
a school board policy prohibiting this type of recording;
the fact that the recordings were made in breach of a relationship of trust between Jarvis and his students;
Jarvis’ purpose in making the recordings; and
the fact that the individuals who were recorded were young persons.

Chief Justice Wagner wrote:

The explicit focus of the videos on the bodies of the students recorded, including their breasts, leaves me in no doubt that the videos were made in violation of the students’ reasonable expectations of privacy.

Justice Wagner made it clear that the concept of privacy is “not an all-or-nothing-concept” and “being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording”.

Justice Rowe, writing for the minority judges, stated:

Had Jarvis placed himself in the position of the pen-camera and simply observed the students, they would undoubtedly have recoiled. It was reasonable in the circumstances for the students to expect not to be observed and recorded in the way that they were.

The Court has confirmed that it is illegal for teachers to secretly take pictures or video of their students for a sexual purpose, even if the students are in a public area or in view of the school’s security cameras.

WHAT HAPPENS NEXT?

Given the findings by the Supreme Court of Canada, a conviction has been entered against Jarvis and he awaits his sentence.

Jarvis is also facing a disciplinary hearing from the Ontario College of Teachers for allegations of sexual, psychological, and emotional abuse, in addition to unprofessional conduct.

We will provide updates regarding this case in this blog as information becomes available.

In the meantime, if you have any questions regarding voyeurism 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. We offer a 24-hour telephone service and we are available when you need us most.