CASE LAW SUMMARIES

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1.) R v. MCCAFFREY
Judge: Summers, J

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Issue(s):
The Appellant, Shayne McCaffrey, appeals his conviction and sentence for breach of an undertaking not to communicate, directly or indirectly, with the mother of his two children. 

 

Legal Analysis:
On August 27, 2018, the Appellant was convicted of one count of breach of undertaking and was given a suspended sentence and six months probation. 

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The Appellant appeals on the three following grounds: that the trial Judge erred in finding that the Crown met its burden of proof proving mens rea beyond a reasonable doubt, that the trial Judge erred in refusing to apply the legal principle of de minimis non curat lex, and that the trial Judge erred in his determination that a discharge, absolute or conditional was not appropriate.

 

Background:

The Appellant and the Complainant, Samantha Mausz, were in a relationship between 2012 and 2016. They had two children together. The police were involved with the couple on August 21, 2017. Criminal charges were laid against the Appellant relating to domestic assault. The Children's Aid Society became involved and advised the Complainant that the Appellant was not to be alone with the children.  

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The Appellant also signed an undertaking given to an officer in charge that required him to abstain from communicating directly or indirectly with Samantha Mausz (partner), Lila McCaffrey (child) and Sarah McCaffrey (child). The Appellant brought an application seeking access to the children.

 

On October 20, 2017, Justice Summers, J. signed a temporary Order in Family Court. Following this Order, a series of calls were made on December 3, 2017. Multiple FaceTime calls were made and there was no evidence as to who made the call and the trial Judge did not speculate. The trial Judge found that the Family Court Order did not allow communication between the Appellant and the Complainant. The trial Judge did not refer to the term in the Family Court Order to the effect that the paternal grandparents would provide transportation to facilitate access as arranged by the father. 

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Further Legal Proceedings: 

It was arguable that the words opened the door for some communication between the Appellant and the Complainant for the very limited purpose of access. The role of the Judge was to determine the meaning of these terms. The Judge determined that the Order did not allow any communication between the parties, either direct or indirect. The trial Judge found that despite the lack of evidence as to who initiated the call in question on the Appellant’s phone, there was uncontested evidence that the Appellants face was on the screen while communicating with the Complainant. 

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The Complainant testified to this effect. The trial Judge accepted the evidence and found that the actus reus of the offence had been made out. On appeal, the Appellant did not challenge this finding. In regards to the mens rea, the trial Judge made a finding that the Appellant had placed the FaceTime calls in question and it was done intentionally. There was ample evidence to support this finding. 

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Conclusion: 

Therefore, the subjective mens rea could be satisfied in the following: the Accused had knowledge of the conditions of their bail Order or they were willfully blind to those conditions and the Accused knowingly failed to act according to their bail conditions, meaning they were willfully blind to the circumstances and failed to comply despite that knowledge. For these reasons, the appeal was dismissed. 

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2.) R v. STARNAMAN, 2021 ONSC 2390

Judge: Justice Kevin B. Philips 

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Issue:

There was a ruling on whether Walter Starnaman should be designated as a dangerous offender.

 

Charge(s):

Mr. Starnaman was convicted after a Judge alone trial of one count of sexual interference and one count of sexual assault, which was committed against a 10-year-old girl, CB. 

 

Background:

The timeline of offences ran from January 1, 2015 to  May 24, 2016. Mr. Starnaman had inserted his way into child CB’s life, by befriending her mother, FB. He offered his services to babysit and the assaults occurred while babysitting CB at his apartment. Mr. Starnaman would invite CB into his bed where he would then rub her private area over her clothing. It happened on several occasions. It was important to note that Mr. Starnaman’s main interest in FB’S family was with CB, rather than her mother, FB, who he just befriended to gain access to her daughter. He stands his position of trying to kindle a romantic relationship with the mother and that is how he claims to have become CB’s babysitter. Further facts findings believe this to be untrue. 

 

Walter Starnaman’s Background:

 

Walter Starnaman, who was born in 1958, has a long history of inappropriate as well as criminal sexual contact with children and the vulnerable. Mr. Starnaman was interviewed about the context of his treatment efforts for his sexual interest with prepubescent children. 

 

One occasion went back to 1977, where he was 17 at the time and took a 6-year-old girl to a garage and began to perform sexual acts. The child finally made a complaint. He said he didn’t think he caused any trouble, only that her parents would be upset. A similar event occurred in 1979, where he did the same thing but also tried to get the little girl to participate as well. 

 

The list of sexual assaults with children as well as with those who are vulnerable is very lengthy. After being certified under the Mental Health Act, Mr. Starnaman was held in many psychiatric institutions. He did not want to initiate his treatment. Eventually, a phallometric test was completed on November 10, 1995. The findings supported a diagnosis of pedophilia. 

 

In October of 1997, he was transferred to Queen Street Mental Health Center and in the process, pornographic tapes and magazines, involving nudism with pictures of children, were confiscated. Estimates of risk would indicate he does have a very high chance of re-offending overtime. 

Overtime, Mr. Starnaman had admitted to having a sexual interest in children but that was no longer the case, he claimed. 

 

He was then released back into the community and placed on a 810.1 bond in June of 2008 and another one in July of 2009, which would run for 2 years. Treatment notes showed a decrease of 11.25mg every 3 months of Lupron, which he was on. 

 

“Today, Mr. Starnaman declined to resume treatment with anti-androgen medication. He assured me that he has not had sexual thoughts of any type and he would inform me if any recur.  He assured me that he has no plans to re-offend. He would like to stop Lupron in order to restore his interest in children… Will discontinue Lupron (he is aware of the risks and benefits).”

A treatment note from October 17th 2011, states, “still shows indication of pedophilia.”  Another note from September 6, 2012, reads, “he agrees he should not be alone with children to avoid false accusations.” Before his last assault, the note said he had cancelled the appointment. 

 

Legal Analysis:

The Court “shall” find the offender to be a dangerous offender if the offender meets the criteria under s. 753(1). Furthermore, It is noted that sexual interference and sexual assault against a child under 16 are both punishable by up to 14 years’ imprisonment. Sexual abuse of children is inherently violent and likely to cause severe psychological damage. 

 

As the Court of Appeal has put it, “sexual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct and represents the use of compulsion against someone who is defenceless.”

 

Sentencing:

Walter Starnaman has been convicted of a serious personal injury offence as defined in s.752(a) of the Code. He is a threat to the life, safety, physical and mental well-being of people based on evidence of persistent aggressive behaviour. 

 

Conclusion:

In conclusion, Mr. Starnaman has been designated a dangerous offender.  A hearing will follow to discuss more in depth about what kind of sentence should be enforced.  

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3.) R. v. BARTER, 2021 CanLII 23883 (NL PC)

 

Charges:

 

Between the time frame of February 19, 2020 to January 9th, 2021, the accused, Mr. Barter, committed a total of ten crimes which include:

 

• Failing to appear in Court (1 Count);

• Resisting arrest (1 Count);

• Possession of ammunition in contravention of a Prohibition Order (1 Count); 

• Escaping lawful custody (1 Count);

• Breach of a Release Order (3 Counts);

• Robbery (1 Count); and

• Possession of a weapon for the purpose of committing theft (1 Count)

 

Sentencing:

 

It was concluded that a period of six years of incarceration would be an appropriate sentence in Mr.Barter’s case. The trial Judge indicated being aware that the sentence he will receive is greater than the sentence range recommended by Counsel; however, the Judge claims the range suggestion failed to accurately reflect the seriousness of the offences Barter committed.

 

Background:

On February 19, 2020, Mr. Barter entered a jewelry store in Corner Brook. He opened a case containing watches. He took a watch and ran from the store. The watch was valued at $399.00. It was returned to the store by another individual.

 

On December 1, 2020, Mr. Barter failed to appear in Court as required by an appearance notice. A warrant was issued for his arrest.

 

On December 2, 2020, he was seen walking on the street by a police officer. She stopped him and placed him under arrest. As he was being searched, he pushed the officer and ran. He was subsequently arrested at his residence. In his bedroom, the police found two rounds of ammunition. Mr. Barter had earlier been prohibited for life from possessing ammunition.

 

On December 3, 2020, Mr. Barter was released from custody. The Release Order contained a curfew condition requiring him to be inside his residence between 11:00 pm and 6:00 am daily.  

 

On December 17, 2020, at approximately 3:00am, the police conducted a curfew check at Mr. Barter’s residence. Mr. Barter was not home.

 

On Saturday, January 9, 2021, Mr. Barter called the police to check-in.  He had not checked-in on Friday, January 8, 2021, in person. His Release Order required that he report to the police in person on Fridays.  

 

On January 9, 2021, the police received a call that a robbery was taking place at Lucky’s Pub in Corner Brook. When they responded, they found Mr. Barter inside. He had been blocked from leaving by customers who were outside. Mr. Barter had a knife with a folding blade. Three employees were inside the pub with Mr. Barter. Earlier, Mr. Barter had entered the pub at 12:34pm.  He had a hood up and his face was not visible. Mr. Barter left the pub and returned at 12:36pm. He reentered and was subsequently arrested at 12:41pm.  

 

When Mr. Barter entered the pub on the second occasion, he had a knife in his hand. He repeatedly threatened to stab the pub’s employees. One employee locked herself in an office.  One locked herself in a bathroom. The third stayed and gave Mr. Barter $186.00.

At the time, Mr. Barter was bound by a Release Order issued on December 3, 2020. This Order prohibited Mr. Barter from concealing knives upon his person.

 

Defendant’s Background:

 

Mr Barter also has an extensive criminal record that extends over the time period of 1985 to 2016 and consists of 137 prior convictions. 

 

Mr. Barter’s criminal record consists primarily of property offences such as theft and possession of stolen property, as well as the breaching of a multitude of Court Orders:

 

• For the offence of resisting arrest, a period of one month of imprisonment;

• For the offence of escaping lawful custody, a period of one month of imprisonment, concurrent;

• For the theft offence, a period of three months of imprisonment, concurrent;

• For the failure to report to the police, a period of two months of imprisonment, consecutive; 

• For the failure to comply with the curfew condition, a period of two months of imprisonment, consecutive; 

• For the failure to appear in Court, a period of three months of imprisonment, consecutive;

• For failing to comply with the release condition prohibiting him from concealing knives upon his person, a period of four months of imprisonment, consecutive;

• For possession of the ammunition in contravention of a Prohibition Order, a period of four months of imprisonment, concurrent;

• For the robbery offence, a period of five years of imprisonment, consecutive; and

• For the offence of possession of a weapon for the purpose of committing an offence, a period of four months of imprisonment, concurrent.

 

Conclusion:

Mr. Barter is sentenced to a period of six years of imprisonment, reduced by one hundred and twenty-one days.

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4.) R v MOORE, 2021 ONCJ 192 

Judge: Justice Patrice F. Band 

 

Charges:

Mr. Mark Moore pleaded guilty to the following indictable Criminal Code offences on November 4, 2019:

• Possession of child pornography, contrary to s. 163.1(4);

• Distribute child pornography, contrary to s. 163.1(3);

• Arranging or agreeing with another person to commit the s. 271 offence of sexual assault on a person under 16 years of age, contrary to s. 172.2(1)(b).

 

Background:

Over a period of five weeks, between May and June of 2018, Mr.Moore engaged in online conversations with a police officer (Tanya) who he believed to be a single mother of 2 girls, one child, age 8 and the other child, age 10. Tanya supposedly  ran a daycare. During these conversations Mr. Moore would tell Tanya to “groom and sexually” assault her daughters as well as another 18-month year old toddler in her care. He told Tanya to give them MDMA or alcohol to loosen them up or make them unconscious. He said he wanted her to fondle them and engage in sex with them.

 

When Tanya told Mr. Moore that she had done it, he said he wished he had been there too. The two of them then discussed child pornography and Mr. Moore sent Tanya 18 images, in which two of them met the definition of child pornography.

 

Eventually, their conversations led to a plan to meet-up where they would go to his apartment and a sexual assault of all three girls would take place. The meet-up was cancelled once by Tanya, but then on June 11th, 2018,  they agreed to meet again at Rosedale subway station in Toronto, ON, where he was then arrested. 

 

Police conducted a search of his phone and laptop. In total, there were 247 images. There were chats and images that met the definition of child pornography. It ranged in age from babies to teens. They contained sexual acts of all kinds, including bondage-restraint violence and bestiality. One was described as a child around 6-8 years old in a cage, crying, as she performed sexual acts on an adult male. The evidence found on Mr. Moore's laptop was very disturbing and degrading. He had also expressed sexual interest in his own daughter, who was 6 years old, at the time.

 

Background of Mr.Moore: 

Mr. Moore, at the time, was 48 years-old and experienced sexual abuse from his uncle, as a child. Mr. Moore was diagnosed with pedophilic disorder (non-exclusive type), as well as generalized anxiety disorder and social anxiety disorder. He attempted to commit suicide in October of 2018, after his arrest. 

For most of his life, Mr. Moore has had a deviant sexual appetite, fantasizing about children, rape, animal sex and domination. Mr. Moore completed a 30-week forensic sexual behaviour program and is taking medicine including a SSRI. Aggravating and Mitigating factors were assessed to determine sentencing.
 

Sentencing:

It was found that a fit and proportionate “global” sentence is one of 29 months.  As such, and in consideration of the principle of totality, Justice Patrice F. Band imposed the sentences as follows:

• Possession of child pornography – s. 163.1(4): 14 months

• Distribute child pornography – s. 163.1(3): 14 months (concurrent)

• Arranging to commit sexual assault on a child – s. 172.2(1)(b): 15 months (consecutive).

 That sentence will be reduced by 79 days to reflect pre-sentence custody.

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