supreme court of canada

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”.

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.

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.

Mandatory Victims’ Surcharge Quashed by Supreme Court

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada, the highest court in Canada, has eliminated mandatory victim surcharges for convicted criminals.

The Supreme Court, in a 7-2 ruling, held that the surcharge amounts to cruel and unusual punishment. The court stated that making the victim fine mandatory does not allow sentencing judges to consider mitigating factors, ignores the goal of rehabilitation, and undermines the intention of the government to address the problem of indigenous overrepresentation in prison.

WHAT IS THE MANDATORY VICTIM SURCHARGE?

The victim surcharge, which was established in 1988, is a monetary penalty that is automatically imposed on those convicted in Canada at the time of sentencing. Five years ago, the government removed the ability for judges to waive or lower this fine and made them mandatory in all cases.

The victim surcharge can be found under section 737 of the Criminal Code. The surcharge is calculated at 30% of any fine imposed. If no fine is imposed, the surcharge is $100 for lower-severity offences and $200 for more serious offences. If the offender has the financial means and the court considers it appropriate, the offender may be ordered to pay a higher amount.

The money collected from victim surcharges was intended to be used by the government to make offenders more accountable and help fund programs and services for victims of crime.

WHAT HAPPENED AT THE SUPREME COURT OF CANADA?

Alex Boudreault (“Boudreault”), a Quebec man, pleaded guilty to several counts related to breaches of probation orders, breaking and entering, possession of stolen property, and assault with a weapon.

Boudreault, a high-school dropout who was unable to hold a steady job, was sentenced to 36 months in prison and ordered to pay a victim surcharge of $1,400 by a court in Quebec. At that time, Boudreault argued that the victim surcharge infringed his Charter rights guaranteeing him freedom from cruel and unusual punishment. These arguments were rejected by the court.

Boudreault appealed this ruling, which was dismissed by the Quebec Court of Appeal.

The Supreme Court of Appeal agreed to hear Boudreault’s appeal, along with six other similar cases. In all seven cases, the offenders argued that they were living in poverty and suffered from physical and mental illnesses, struggled with addiction in some cases, and could not afford the victim surcharges.

The Crown argued that the fines were not unacceptable as the offenders could ask for more time to pay and that the money collected was put towards improving the lives of the victims. For example, in Ontario, these funds are used to support 39 sexual assault and rape centres and the Ontario Child Witness Project (designed to help children and adolescents who are called to testify as victims or witnesses in court).

The appellants argued that the surcharges were a violation of section 12 of the Charter of Rights and Freedoms, which protects against cruel and unusual punishment. They argued that the surcharge was grossly disproportionate to the crime committed.

The majority of the Supreme Court agreed with the appellants and struck down the entire section of the Criminal Code pertaining to victim surcharges and it was “declared to be of no force and effect immediately”.

The judgment reads:

The surcharge constitutes cruel and unusual punishment and therefore violates s. 12 of the Charter, because its impact and effects create circumstances that are grossly disproportionate to what would otherwise be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.

Justice Sheilah Martin, writing for the majority decision, also stated:

Judges have been forced to impose a one-size-fits-all punishment which does not take into account the individual’s ability to pay. In this context, the resulting indeterminate punishment results in a grossly disproportionate public shaming of disadvantaged offenders. It is what most Canadians would call an abhorrent and intolerable punishment.

Although this decision eliminates all fines owed by the seven offenders and no future victim surcharges can be imposed in any circumstances, it does not eliminate outstanding victim surcharge orders. Those offenders who owe these fines, must seek relief in the courts on an individual basis.

The Liberal government is now left to determine the future of the surcharge. There is currently drafted legislation awaiting passage by the Senate giving judges the discretion to waive or apply the victim surcharge. A spokesperson for Justice Minister Jody Wilson-Raybould has advised that she is reviewing the Supreme Court decision “to assess the appropriate next steps”.

We will continue to follow any developments or changes in the law as they become available, and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about any charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week. We are available when you need us most.

Supreme Court Declines Bid for Appeal by Toronto Cop

Written on Behalf of Affleck & Barrison LLP

The highest court in Canada, the Supreme Court of Canada, has denied the request for leave to appeal made by Toronto Police Constable James Forcillo (“Forcillo”) of his 2016 conviction of attempted murder and six-year jail sentence.

We have previously blogged about both the trial court decision, in which the jury found Forcillo guilty of attempted murder in the death of 18-year-old Sammy Yatim (“Yatim”), and the Ontario appeal court decision, which upheld the trial court decision.

WHAT HAPPENED?

The shooting death of Yatim on July 27, 2013 was recorded on video by a bystander showing Forcillo shooting Yatim in two separate intervals. Forcillo shot Yatim as he stood on the steps of an empty Dundas streetcar, and then resumed firing 5.5 seconds later as Yatim lay on the ground, apparently dying.

The police were called upon after Yatim exposed himself and handled a small knife on a streetcar, prompting both passengers and the driver to flee the streetcar.

Although a jury acquitted Forcillo of second-degree murder for firing the initial fatal shots, he was held guilty of attempted murder for pausing for 5.5 seconds and deciding to fire at Yatim six more times.

Forcillo was sentenced to six years in jail for firing the second set of shots which were found to be “unreasonable, unnecessary and excessive” and an “egregious breach of trust”. Forcillo proceeded to appeal his conviction and sentence, and was granted bail while awaiting his appeal.

In November, 2017, while Forcillo awaited the appeal of his conviction he was placed on house arrest bail and was living with his estranged wife, who was also his surety. During this time, SIU investigators went to his fiancee’s home to assess the apartment’s suitability. Forcillo answered the door and tried to explain that his presence at the home was only temporary. However, a lease agreement of the rental unit was found to be signed by Forcillo and his fiancée, and his name was found on the intercom directory in the apartment lobby. Forcillo was charged with failing to comply with his recognizance.

Forcillo’s bail was revoked and he was sent to prison to await the appeal of his conviction and sentence. During this time, new charges were laid against him alleging that he committed perjury by making a “false statement under oath in an affidavit” and obstructing justice by attempting to cause a judge of the Court of Appeal to act on an affidavit made under oath that contained omissions, misleading, and or false statement.

The charges for obstruction and breach of bail conditions were withdrawn after Forcillo pleaded guilty to perjury. Forcillo was sentenced by Justice Sandra Bacchus to six months in prison, on top of his existing 6 year jail term.

In April, 2018, Forcillo’s case was heard before the highest court in Ontario where his lawyers argued, in part, that the shooting should not have been divided into two separate charges as it was one continuous event. The Ontario Court of Appeal found that there were differences between the two volleys of shots by Forcillo, and therefore upheld Forcillo’s conviction and sentence.

Forcillo applied for leave to appeal to the Supreme Court of Canada. This was Forcillo’s last available remedy to overturn his conviction and jail sentence. The Supreme Court of Canada only hears approximately 11% of all cases that submit applications to be heard by the highest level of court in Canada. The court does not provide any reasons as to why cases are rejected at this level.

WHAT HAPPENS NEXT?

Forcillo officially resigned from Toronto Police Service on September 4, 2018. He becomes eligible for day parole in July 2019 and eligible for full parole as of January 2020.

Forcillo’s criminal case has now ended with the Supreme Court’s decision not to hear his appeal, however, his legal battles are not yet over. There is still a coroner’s inquest to be held, a date for which has not yet been set. Also, Yatim’s parents have filed separate civil lawsuits against Forcillo.

Sergeant Dusan Pravica (“Pravica”), who arrived on the scene seconds after Yatim was shot, is also facing one count of misconduct under Ontario’s Police Services Act and awaits a hearing before the Toronto Police Disciplinary Tribunal. The Office of the Independent Police Review Director completed an investigation following Yatim’s death (and a complaint filed by Yatim’s father) and concluded that Pravica used unnecessary force, failed to assess the totality of the circumstances, and acted in haste when he Tasered Yatim as he lay on the ground. Pravica gave evidence at Forcillo’s trial that Yatim was still clutching a knife as he approached him and he felt that Yatim still posed a threat.

We will continue to follow Pravica’s case and await the results of the hearing before the Toronto Police Disciplinary Tribunal, and will report any developments in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact 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.

Supreme Court Upholds First Degree Murder Convictions for Death of 6-Year-Old

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada (“SCC”) has upheld the first-degree murder convictions of Spencer Jordan (“Jordan”) and Marie Magoon (“Magoon”), who were charged in the death of six-year-old Meika Jordan (“Meika”).

Defence lawyers requested that the SCC reverse a decision by the Alberta Court of Appeal, which upgraded Jordan and Magoon’s second-degree murder convictions after ruling that Meika had been confined prior to her death (a condition that automatically increases the severity of a murder offence).

Under the original second-degree murder convictions, Jordan and Magoon had been sentenced to life in prison without parole for a minimum of 17 years. The upgraded first-degree murder convictions carry an automatic life sentence with no chance of parole for 25 years.

WHAT HAPPENED?

On November 14, 2011, Meika died after spending the weekend at the home of her father, Jordan, and stepmother, Magoon. The six-year-old was tortured for days leading up to her death by being forced to run stairs, dragged up and down the stairs by her ankles, repeatedly hit and even burned. She suffered damage to her internal organs and a subdural hematoma and cerebral swelling caused by at least five blows to her head. No medical attention was sought until Meika was in complete cardiac and respiratory failure. Jordan and Magoon told police that Meika had fallen down the stairs, however, the medical evidence supported a pattern of frequent and intentional violence.

Jordan and Magoon were charged with first degree murder and convicted of second degree murder at trial in 2015. They appealed their convictions and the Crown prosecutors appealed the first degree murder acquittals. The Alberta Court of Appeal dismissed the accuseds’ appeals, but allowed the Crown appeals. The Appeal Court held that the accused unlawfully confined Meika rendering them liable for first degree murder under section 231(5) of the Criminal Code of Canada (“CC”).

The SCC refused to hear an appeal to have the convictions entirely quashed, but did hear arguments on the Alberta Court of Appeal’s decision to upgrade the charge from second-degree murder to first-degree murder.

The nine SCC justices took less than 10 minutes to come to the decision to dismiss all appeals in November, 2017. The SCC found that the Court of Appeal did not err in substituting verdicts of guilty of murder in the first degree. The written reasons for the ruling were released on April 13, 2018.

MURDER IN THE FIRST DEGREE

The crime of murder is deemed as the most vicious of crimes in Canadian society. This is reflected in the harshness of the sanctions and punishments for this crime.

In Canada, there are two divisions of murder and one of manslaughter. First degree murder is planned and deliberate (with a few exceptions), whereas second degree murder is defined as murder that is not first degree (not premeditated). Manslaughter is defined as a homicide committed without the intention to cause death.

First degree murder bears an automatic life sentence with no possibility of parole for 25 years. Once on parole, offenders remain on parole for the rest of their life and must report to a parole officer and are subject to conditions of their parole. If any of the conditions of parole are broken, they are sent directly back to prison without a hearing.

WHAT IS FIRST DEGREE MURDER UNDER SECTION 231(5) OF THE CRIMINAL CODE?

There are some homicides automatically deemed first degree murder, even if they were not intentional or planned. These include assassination of a police officer or prison employee on duty (section 231(4) of the CC) or murder committed in conjunction with one of the following offences (section 231 (5) of the CC):

hijacking;
sexual assault;
sexual assault with a weapon;
aggravated sexual assault;
kidnapping;
forcible confinement;
hostage taking;
terrorism;
intimidation;
criminal harassment; or
any offence committed on behalf of a criminal organization.

The section of the CC that was applied in Meika’s case was section 231(5)(e), which reads as follows:

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible confinement);

The case of R. v. Pritchard explained Parliament’s intention to “treat murders committed in connection with crimes of domination as particularly blameworthy and deserving of more severe punishment”.

The applicable test to be applied in determining guilt of first degree murder under section 231(5)(e) of the CC was set out in R. v. Harbottle. The Crown must establish beyond a reasonable doubt that:

the accused was guilty of the underlying crime of domination or of attempting to commit that crime;
the accused was guilty of the murder of the victim;
the accused participated in the murder in such a manner that he/she was a substantial cause of the death of the victim;
there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and
the crimes of domination and murder were part of the same transaction.

In Meika’s case, the SCC found that although there were no physical restraints used, Meika was physically restrained and restricted to remain in her bedroom or the basement. Furthermore, given the parent child relationship there is less of a requirement for physical restraints due to the unequal relationship that exists. “[D]isciplining a child by restricting his or her ability to move about freely (by physical or psychological means), contrary to the child’s wishes, which exceeds the outer bounds of punishment that a parent or guardian could lawfully administer, constitutes unlawful confinement.” Therefore, the SCC found that the Harbottle test was met.

If you have been charged with a serious 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.

Supreme Court of Canada Finds That Some Texts Are Considered Private

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about the topic of whether there is a reasonable expectation of privacy in text messages. The Supreme Court of Canada (“SCC”) ruled last week that Canadians can expect the text messages that they send to remain private even after they reach their destination (i.e. depending on the circumstances, there may be a reasonable expectation of privacy in text messages even after they have been sent to another person).

In a 5-2 ruling, the SCC in R. v. Marakah set aside the firearms convictions of a man whose incriminating text messages were found on the phone of an alleged accomplice by Toronto police.

WHAT HAPPENED?

An Ontario man, Nour Marakah, sent text messages regarding illegal transactions in firearms to his accomplice, Andrew Winchester. The police obtained and executed warrants for both Marakah’s and Winchester’s homes. While conducting the search, the police found Marakah’s Blackberry and Winchester’s iPhone and proceeded to search both devices, which revealed the incriminating text messages. These messages were then used as evidence to charge Marakah.

At trial, Marakah argued that the messages should not be admitted as evidence against him because they were obtained in violation of his rights against unreasonable search or seizure under the Canadian Charter of Rights and Freedoms (“Charter”).

The Ontario application judge found that the warrant for Marakah’s home had been invalid and that the text messages recovered from his own Blackberry could not be used against him. However, the court admitted the text messages from Winchester’s iPhone as evidence. Based on these messages, Marakah was convicted of multiple firearms offences.

The Court ultimately found that while someone who sends a text message has a reasonable expectation of privacy, this expectation ends when the message reaches the intended recipient.

Marakah appealed to the Court of Appeal, where he was unsuccessful. The majority of the Court agreed that Marakah could have no expectation of privacy in the text messages retrieved from Winchester’s iPhone, and therefore could not make a case against their admissibility. Marakah appealed further to the SCC.

SUPREME COURT OF CANADA RULING

The SCC allowed Marakah’s appeal, set aside the convictions and entered acquittals on all charges against him.

The Court found that Marakah had a reasonable expectation of privacy concerning his text messages. Therefore, the texts used as evidence to convict him had violated his guaranteed right to be protected against unreasonable search or seizure under the Charter.

In this case, Marakah was found to be the author of the text messages that he expected to remain private. He had asked the recipient of the messages, Winchester, on numerous occasions to delete the messages. Marakah’s conviction was thrown out because the search was unreasonable and violated his right under section 8 of the Charter.

Chief Justice Beverly McLachlin, writing for the majority, stated,

I conclude that depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8 and that, in this case, Mr. Marakah had standing to argue that the text messages at issue enjoy s. 8 protection.

The SCC did set out a four-step test to determine if and when one can reasonably expect privacy:

What was the subject matter of the alleged search?
Did the claimant (i.e. the person claiming privacy) have a direct interest in the subject matter?
Did the claimant have a subjective expectation of privacy in the subject matter?
If so, was the claimant’s subjective expectation of privacy objectively reasonable?

The SCC found that Marakah had standing to challenge the search based upon the following:

The subject matter of the search was the electronic conversation between Marakah and Winchester;
Marakah had a direct interest in the subject matter;
Marakah subjectively expected the subject matter to be private;
Marakah’s expectation was objectively reasonable.

The Court concluded that without the incorrectly admitted text message evidence, which was found to be inadmissible, Marakah would have been acquitted.

CAUTION BY THE SUPREME COURT OF CANADA

The SCC did caution that the expectation of privacy is not automatic and depends upon the facts of each case and that the outcome may be different in other circumstances. Chief Justice Beverley McLachlin noted,

This is not to say, however, that every communication occurring through an electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing to make arguments regarding s. 8 protection. This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards.

Therefore, we must expect that the law will adapt to changes and developments in technology and communication over time. As these changes take place in the law, we will continue to provide updates through this blog.

To speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, call Affleck & Barrison at 905-404-1947 or contact us online. We offer a free consultation and are available to help you 24/7.