Christopher Husbands: Eaton Centre Shooter Granted New Trial By: Katelyn Bell, Summer Law Student In a previous blog post, we discussed the possibility of a new trial being granted to Christopher Husbands. Husbands was the perpetrator in the 2012 Eaton Centre shootings, which killed two people. Husbands was found guilty of two counts of second-degree murder in 2015. Recently, Husbands argued that his 2015 trial was prejudiced as a result of an improperly selected jury, and as such, he argued that he was entitled to a new trial. Last Friday, the Ontario Court of Appeal agreed. The Court overturned Husbands’ convictions as a result of the trial judge’s “irreparable mistake” with regards to the jury selection. As discussed in the previous post on this issue, in the 2015 trial, static jurors were imposed by the trial judge, despite Husbands’ lawyers’ request for rotating jurors. The Court of Appeal acknowledged that Husbands’ request was clear, and the trial judge was wrong to have imposed static jurors. According to the Court of Appeal, “In accordance with the current state of the law… what occurred here cannot be salvaged.” This decision comes as little surprise, as the Court of Appeal has made the law clear on this point: the improper use of static jurors will render a conviction voidable (R v Noureddine). As the Noureddine decision stems from the highest court in Ontario, it is binding on all lower courts in the Province. It is the trial judge’s failure to follow Noureddine that has led to the overturning of Husbands’ convictions. Yet, it is likely to take more than a year before a new trial for Husbands gets underway. As Husbands was acquitted on the charge of first-degree murder, his new trial will be on the charges of second-degree murder, as well as aggravated assault and criminal negligence causing bodily harm. If you require representation for criminal disputes, please contact Devry Smith Frank LLP’s criminal lawyers. For all other legal services and inquiries, please take a look at our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawJuly 25, 2017June 22, 2020
Driver Charged in Attack of 74 year-old Cyclist in Peterborough By: Nicolas Di Nardo A video that surfaced (WARNING: Graphic Content) on the internet of an incident that occurred last Tuesday around 11 a.m., has led to a man being charged for aggravated assault and assault with a weapon. The man in question, David Fox, 65, is shown in the graphic video beating a man with a club while kneeling over top of him on the side of the road. Police have said that an argument had taken place between the 74 year old cyclist and the truck driver prior to the attack. Fox’s only defence in the video when confronted was that he “tried to walk away.” Later on it was reported that Fox had fled with scene in his truck. Luckily for the cyclist, the woman recording was able to get a clear shot of the attacker, the truck’s make, model, and license plate, not to mention also capturing part of the attack. She unfortunately was unable to record the beginning of the confrontation that led to the attack. A number of bystanders cam to the aid of the cyclist when they realized what was going on, and attempted to contain the driver until police arrived, but were unsuccessful. An hour later, Police arrested David Fox, while the cyclist was transported to the hospital, and was treated and released. David Fox is scheduled to appear in court on August 24th, and was released from custody. If you require representation for criminal disputes, please contact Devry Smith Frank LLP’s criminal lawyers. For all other legal services and inquiries, please take a look at our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawJuly 25, 2017June 22, 2020
Driver of Vehicle that Killed Cyclist in 2015 to be Sentenced By: Nicolas Di Nardo Back in June 2015, Mitchell Irwin, now 21, struck a cyclist, Adam Excell, 26, while he was biking at night. Now two years later, Irwin owned up to his actions and pled guilty to dangerous driving causing death on Friday. At the time of the accident that took place in the area of Yorkville, Irwin was 19. The statement of facts which was agreed upon, outlines the night of the incident: 11:20 p.m.: Excell was making a left turn onto Davenport during an amber light, after oncoming traffic had stopped Irwin was weaving through vehicles, sped into the intersection and hit Excell According to a collision reconstruction report, Irwin was going 87 km/h in a 50 km/h zone Excell was thrown a significant distance, suffered major head trauma and passed away at the hospital Irwin then continue to drive home after the collision to Keswick, Ontario The next day Irwin surrendered to police The initial arrest charged Irwin in accordance with the Criminal Code: Criminal negligence causing death (sec. 220) Failing to remain (sec. 252) Violating bail conditions, which includes: Communicating with two friends who were in the car at the time Consuming alcohol After the court appearance on Friday, Excell’s family made a point to discuss dangerous driving in many of their statements to the media, and how the actions of these drivers can seriously damage the lives of the victim’s family members. It impacts you differently when you hear about it on the news, versus when it ends up being one of your own. Even though you hear about cyclists in the news quite frequently (unfortunately), when it is a family member, it becomes personal. The case resumes this morning and Mitchell is expected to be sentenced. If you require representation for criminal disputes, please contact Devry Smith Frank LLP’s criminal lawyers. For all other legal services and inquiries, please take a look at our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawJuly 24, 2017June 22, 2020
Bradford Man Charged with Child Abandonment By: Nicolas Di Nardo Canada Day, the day we celebrate an important milestone, the anniversary of the enactment of the Constitution Act, 1867 (July 1, 1867). The celebration this year was a special one, it is Canada’s 150th. However, this past Canada Day a man enjoyed the day a little too much. A 33-year-old man from Bradford was charged with abandoning a child and failing to provide the necessities of life, and was held for a bail hearing. South Simcoe Police responded to a call about a man refusing to leave a bar at 1:45 a.m. on Saturday, July 1. When police arrived, he became belligerent and was arrested due to his intoxicated state. They then brought him to the police station to sober up, as there was no one home to take care of him. At about 6 a.m., the man told police that his son, 2 years-old, was home alone. Once police located the boy, they brought him to the hospital as a precaution and now the child is in the custody of the Children’s Aid Society. Devry Smith Frank LLP is a full service law firm located in Barrie, providing services to Barrie and the surrounding areas. We provide a wide range of legal services. If you require representation for criminal disputes, contact Devry Smith Frank LLP’s Barrie lawyers. For any other legal services and inquiries, please call our Barrie office directly at 705-812-2100 or visit our website. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlogJuly 10, 2017June 22, 2020
Ken Pagan granted Conditional Discharge over Beer Can Toss Incident By: Nicolas Di Nardo Ken Pagan, known as the Toronto Beer Can Thrower was sentenced last week. If you are not caught up with the incident, please look to our previous blogs: Toronto Beer-Tosser Charged With Mischief Ken Pagan: Toronto Beer Tosser Pleads Guilty Pagan was granted conditional discharge which includes: No criminal record (if he complies with probation) 12-month probation At least 10 hours of community service a month Barred from attending any MLB games (already banned from the Rogers Centre) 200 hours of community work (already has done 100 hours this year) Must stay 500 metres away from the Rogers Centre Since the incident, Ken has been delivering pizzas and working as a janitor. He does not believe he will be able to return as a journalist as a result of the incident. If you require representation for any reason, please contact our firm at 416-449-1400, or visit our website to find the lawyer that best suits your needs. If you require a criminal law lawyer, please visit our criminal law page and contact lawyer David Schell. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawJuly 4, 2017June 22, 2020
The Fight Against Solitary Confinement By: Katelyn Bell, Summer Law Student The issue of solitary confinement has been long-standing in Canada. Solitary confinement is meant to be ordered on a temporary basis, not on an indefinite one. In recent years, the issue has come to the forefront, after several Canadian inmates committed suicide while in solitary. Ten years ago, Ashley Smith, a 19 year-old inmate in solitary, strangled herself to death in her cell while prison guards watched and videotaped it. Smith spent a total of 1,047 days in solitary confinement, and had been placed on high suicide watch. Unquestionably, Smith’s lengthy stay in solitary was a contributing factor in her suicide. Calls to limit the segregation of prisoners grew much louder after Smith’s 2007 death, but unfortunately, the problem has persisted. Last fall, a prison guard’s tip-off to Ontario’s chief human-rights commissioner revealed that Adam Capay – a 23 year old inmate – had spent over four years in solitary confinement, totalling 1,636 days: segregation analogous to torture. Without question, the rights of those individuals confined to a single cell for such long periods of times violates their rights under the Canadian Charter of Rights and Freedoms. Under the Charter, Canadians have the right to life, liberty and security of the person, the right against unfair detainment, and the right to be free from cruel and unusual punishment. In British Columbia, a trial seeking to challenge Canada’s solitary confinement prison policies as “cruel and unusual punishment” is scheduled to begin on July 4, 2017. However, the Liberals are looking to halt this trial. Why? Because the government is finally working on a solution to the inappropriate use of segregation. An application filed with the Supreme Court of British Columbia on June 20, 2017 argues that proceeding with the July trial would be a waste of court resources, because the concerns about prolonged segregation are being addressed in new legislation – Bill C-56. So, how are they being addressed? The legislation introduced by the Liberals limits the amount of time federal inmates can be held in segregation cells. If Bill C-56 is passed, inmates would not be allowed to be held more than 15 days in solitary. But before the 15-day limit, Correctional Service Canada will have an 18-month transition period, during which time the cap will be set at 21 days. These proposed time limits will of course be subject to safety and security requirements, and also, it must be ensured that other reasonable alternatives are available. But 15 days is a long time… Most of us have experienced “one-of-those-days,” where whether at work, home, or anywhere, the day seems to go on forever. Imagine 15 of those. In a row. Although the new legislation will limit inappropriate segregation, 15 days still seems to be far too long to be in solitary. Again, the analogy can be drawn to torture. While some argue to lessen the allotment from 15 to 5, others demand a total ban on segregation, calling it cruel and unusual punishment, and thereby a violation of the Charter. (see s. 12) Ultimately, the bill is a step in the right direction. But because the bill has only received its first reading, there is no guarantee that the bill will be enacted. And if it is enacted, its form remains uncertain, as Parliament may choose to amend the legislation. For this reason, those behind the lawsuit – the John Howard Society and the B.C. Civil Liberties Association – want the July 4 trial to proceed. The government’s application to adjourn the trial was heard on Friday in Vancouver. Justice Peter Leask reserved his decision, and the parties are due back in court tomorrow. Devry Smith Frank LLP is a full-service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal Law, Human Rights LawJune 26, 2017June 22, 2020
Upcoming Liberal Changes to Mandatory Minimum Sentences It’s not often that political party leaders will keep the promises they have made to the public. However, in the case of mandatory minimum sentences, Prime Minister Trudeau and the Liberal party seem to have kept their promise for reform. Although some legal experts argue that the delivery of the promise is long overdue, it’s important to remember that slow progress is better than no progress. It is indisputable that changes to the criminal justice system and sentencing reforms are necessary. When the Conservatives were in power, they imposed and increased mandatory minimum penalties for dozens of criminal offences, thus taking away the discretionary powers of Canadian judges and thereby contradicting section 718.1 of the Criminal Code (section 718.1 instructs the court to take the degree of responsibility of the offender into account when handing down a sentence). In addition to a clear. 718.1 violation, mandatory minimum sentences are also constitutionally deficient, as they do not allow for an individualized response to sentencing and are therefore disproportionate when applied to intellectually disabled persons for instance. It is a fundamental principle that sentences remain proportionate to the gravity of the offence and the degree of responsibility of the offender. Yvon Dandurand, a criminologist at the University of the Fraser Valley, hypothesizes that the new legislation introduced by the Liberals will again provide flexibility to judges by creating special exceptions to some mandatory minimum penalties, while abolishing others. Of course, the Conservatives will oppose any changes to mandatory minimums, as it is contrary to their agenda to “get tough on crime.” According to one MP, “If some [mandatory minimum sentences] are going to be getting a break in the next couple of weeks here, … obviously we’ll oppose that.” Though any opposition is likely to be baseless, as the Supreme Court has already struck down two of the Conservative sentencing reforms last year. Ultimately, the changes brought in by the previous Conservative government—in an effort to “get tough” on crime—are unjust, socially harmful, unconstitutional in some cases, and are overall bad public policy. Furthermore, they fail to achieve their stated purpose of reducing crime. Change to the system is therefore necessary, and will likely be accepted by Judges across Canada, including those at the Supreme Court. Change to the system is also necessary in order to address the worsening problem of backlogs in the courts. This is a problem Canadians are very aware of following the Supreme Court’s ruling that imposed limits on the length of time an accused person can wait to stand trial. For more information on court delays, check out our previous blog posts by personal injury & criminal lawyer David Schell: Delays in our Ontario Civil Courts Solving Ontario Court Delays: Is Limiting Preliminary Hearings The Answer? As mentioned above, slow progress is better than no progress, and the changes to be introduced by the Liberal government this spring are both highly anticipated and essential. Though there are some concerns as to how cautious an approach the Liberals will take regarding mandatory minimum reform (note the cautious approach being taken in medically-assisted dying for instance), in the long run, it is hoped that Canada will once again return to being a system that emphasizes discretion, rather than one that emphasizes rules. If you are in need of a lawyer, please visit our website and contact one of our many lawyers today. If you have any questions you may also contact us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawMay 9, 2017June 22, 2020
Solving Ontario Court Delays: Is Limiting Preliminary Hearings The Answer? In the wake of the Supreme Court of Canada’s decision in R. v. Jordan, there have been various suggestions on how to deal with the issue of delay in the Ontario courts. One such idea is that of Ontario Attorney General Yasir Naqvi. It has been reported that the Attorney General recently wrote the Federal Justice Minister with a request to greatly limit the use of preliminary hearings in an attempt to speed up the justice system. For laypeople and those who do not practice criminal law this begs the questions – what is a preliminary hearing and what value does it provide the criminal justice system and those facing charges? The right to a preliminary hearing (or preliminary inquiry) and the procedure behind it arise out of Part XVIII of the Criminal Code. An accused can elect a preliminary inquiry but only in more serious cases where the charge(s) are proceeding by way of indictment. The main purpose of a preliminary inquiry is to determine whether there is enough evidence for an accused person to proceed to trial on those offences for which they have been charged. The preliminary inquiry itself is held before a Provincial Court Judge and the Crown (prosecutor) calls witnesses to testify along with any other evidence they require. In this respect, it is somewhat similar to a trial. However, rather than making a determination with respect to guilt or innocence, the Judge in a preliminary inquiry only has to determine whether there is sufficient evidence to proceed to a trial. The legal test is whether a properly instructed jury, acting reasonably, could return a verdict of guilt on the evidence presented. If the Judge is satisfied that there is sufficient evidence on any such charges then the accused is ordered to stand trial on those charges. If the Judge is not satisfied that the test has been met then the charges where there is insufficient evidence are dismissed. This legal test is a very easy test for the Crown to meet and as such most accused persons who elect a preliminary inquiry are ordered to stand trial. Despite the fact that most preliminary inquiries end with an accused headed towards trial, there are a number of reasons the prelim has value and is a useful tool in the criminal justice system. For all parties involved (prosecutor and defence), it helps to narrow the issues for criminal cases and in some cases, it gets rid of charges where there is insufficient evidence. From the perspective of criminal defence lawyers, a major value of the preliminary inquiry is that it provides those charged with serious offences a chance to fully discover the strength of the Crown’s case. While it has been argued that disclosure requirements on the Crown provide any and all needed discovery of the case, this disclosure cannot replace actually hearing from Crown witnesses and seeing the evidence in court. The preliminary inquiry provides a full opportunity for the accused to see how reliable and credible the evidence is against them. It also provides tactical opportunities such as obtaining possible admissions from witnesses or deciding whether there are legitimate grounds to proceed with a Charter argument. It is hard to see how limiting preliminary inquiries will significantly reduce any delay in the Ontario courts. One reason is that it appears they do not occur that often. A recent article in the Toronto Star dated March 20, 2017, quoted information from Stats Canada which outlined that preliminary inquiries were only requested or held in about 3 percent of completed adult criminal cases in 2014-2015. That statistic would seem to indicate that preliminary inquires are at most a small part of the delay problem. Fully addressing the delay in Ontario courts is likely going to require numerous changes, as well as the provision of resources in the form of more judges, prosecutors and other court staff. For more information on this matter, please review our previous blog post Delays in Our Ontario Civil Courts. If you require legal assistance, please contact our Criminal Law Lawyer David Schell, or call Devry Smith Frank LLP at 416-449-1400 today. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawMarch 28, 2017June 19, 2020
Open Courts in the Digital Era: Contextualizing the Toronto Star’s Legal Challenge to Alleged Tribunal Secrecy Recently, the Toronto Star has embarked on a legal challenge against what it describes as “blanket secrecy” within Ontario’s administrative tribunal system. At the core of their claim is today’s topic: the open court principle. The Star seeks, inter alia, a declaration that this principle applies to quasi-judicial tribunals in the same way as it does to courts, particularly with regard to tribunal records (namely, “pleadings, exhibits, legal briefs and all other documents on which adjudication is based”; see the Statement of Claim). The case raises interesting questions about the place of open courts in an era where access to information – including the very personal and very private – is more or less instantaneous and all but indifferent to geography. Open courts have long been held up as a fundamental component of not only our justice system but of the very rule of law on which our society is built. Yet when the open court principle was first articulated, its authors could not have foreseen what “openness” would mean in 2017. To the principle’s great advocates, from Jeremy Bentham to Louis Brandeis, today’s world would seem truly alien. So, do the rationales for open courts still hold up? Should we rethink the open court principle? Thinking about these questions requires a closer look at the open court principle, and it’s underlying objectives. The Principle In simple terms, the open court principle holds that court proceedings, “including the evidence and documents tendered,” must be open to the public and that juries’ verdicts and judge’s decisions must be publicly delivered or publicly available (Lukács v. Canada (Canadian Transportation Agency), FCA 2015, at para 27). The principle enjoys a strong legal foundation in Canada. The common law has long regarded the principle as integral to the rule of law. Further, as Michel Bastarache (formerly) of the Supreme Court of Canada wrote, “the open court principle gains importance from its clear association with free expression protected by s. 2(b) of the Charter” (Named Person v. Vancouver Sun, SCC 2007 at para 33). In Ontario, the Courts of Justice Act states that “all court hearings shall be open to the public”, subject to court rules, and unless “the possibility of serious harm or injustice to any person justifies a departure from [that] general principle”. Open courts also get a good press in philosophy circles. Jeremy Bentham famously wrote that, ‘In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.’ ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’ (as quoted by the Supreme Court, here) Some, like Patricia Kosseim of the Office of the Privacy Commissioner of Canada (OPC), would argue that Bentham’s emphasis on disciplining the judiciary serves a yet more fundamental societal value: public confidence in the justice system. To Chief Justice Beverley McLachlin, in turn, this value is “a cornerstone … one of the features of all societies sharing a cultural commitment to the rule of law” (see her Honour’s 2012 speech here). Absent this public confidence, she argues, people will neither settle their disputes in courts nor obey court orders. “Practical Obscurity” and the Digital Era This rationale begs the question: what if the openness of a court or tribunal proceeding can, in fact, undermine the public’s confidence in the administration of justice? Especially in the digital era, argues Kosseim, open courts present novel privacy concerns which may discourage the public from asserting their legal rights and remedies in the first place. Consider this example: An employee is considering bringing a harassment claim before the Ontario Human Rights Tribunal. She works in a specialized field with very few potential employers. Some of the details of the incident underlying her claim might prove embarrassing if publicized and easily accessed online and might even affect her ability to secure future employment. She reasons that if pursuing the claim might make public that information, it is not worth the risk. Those advocating a rethinking of the open court principle often raise this type of scenario alongside the concept of “practical obscurity” (see, e.g., here). This concept refers to the “built-in privacy protection” that exists when trying to access court or tribunal records involves considerable effort, regardless of the fact that the records are technically open to the public. Under such circumstances, nefarious uses of one’s information will be less likely. Some view this as a practical compromise between openness and respect for privacy. Today, web-based case law databases have thrown a wrench in the cogs. While these services serve many laudable aims, “practical obscurity” cannot operate the way it used to. Notably, both pay-for-use and free databases – e.g. Westlaw and CanLII, respectively – intentionally prevent direct searches through search engines like Google. But this is a small obstacle, and some less scrupulous entrepreneurs have found ways around. If practical obscurity ever struck a balance, it’s been skewed towards publicity. From this perspective, the Star’s goal of securing easier access to tribunal records might represent a further imbalance. On the other hand, we should be mindful that open courts are not an absolute demand for the justice system. There were always exceptions, something that would appear appropriate in the context of both courts and administrative tribunals. In fact, the legal test applicable to “all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings” expressly requires balancing the harm and benefit of such action (see the “Dagenais/Mentuck” test, here, as affirmed and broadened here). One might argue, then, that the open court principle should apply presumptively to tribunals as well, but subject to a similar test. This is essentially the Star’s position; that this test should be applied to any restriction on access to tribunal records. Whether this is the right approach, and how exactly it might be applied, are questions we’ll have to leave to the courts. The status quo, wherein inconsistent, ad hoc rules apply to access these records, certainly leaves room for improvement. Traditional courts and tribunals are different by design, but they occupy much the same space in Canadians’ lives, and much of the same tension, namely between openness and privacy, would appear applicable to both. How differently should they be treated? Generally speaking, the Star is on to something: there is nothing trivial about secrecy sewing itself into the fabric of our justice system, or even appearing to. If the recent jump in sales of George Orwell’s 1984 is any indication, the public remains very much alive to matters of transparency and public accountability. Whether the newspaper’s position is validated will be interesting to see. In any case, with so many basic values at stake – privacy, openness, the rule of law, freedom of expression, and many others – the courts would do well to tread carefully. An important question has been put to them, and their response will echo into the future. There is a lot to consider in just about any proceeding, and our lawyers know it. If you or someone you know is in need of legal representation, please do not hesitate to contact us at 416-449-1400 in Toronto, 705-812-2100 in Barrie, or 289-638-3171 in Whitby, or send us an email at info@devrylaw.ca. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawMarch 7, 2017June 18, 2020