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Breaking the Chain of Causation and Responsibility: SCC
A woman who supplied her husband with the intoxicants used to cause the deaths of their children needed to do more to neutralize the effects of her participation in the murder-suicide pact or to prevent the commission of the offence in order for her defence of abandonment to have an air of reality said the court in R. v. Gauthier, 2013 SCC 32. The court identifies the essential elements of the little-used defence of abandonment in the context of aiding or abetting a crime, where merely communicating in unequivocal terms an intention to cease participating in the commission of the offence will not be enough "to break the chain of causation and responsibility." The intention to withdraw must be accompanied by acts that are likely to cancel out the effects of the acts that have already been performed to aid or abet the offender, said the court. |
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The Morally Innocent Should not be Punished: SCC
The court dismissed the Crown's appeal of an acquittal on child abandonment charges in
R v A.D.H., 2013 SCC 28, finding that, although not expressly stated, subjective fault is required under s.218 of the Criminal Code. The Crown was unable to prove that the accused, a young woman who left her newborn baby she believed to be dead in a public toilet, had the mens rea to abandon the child. As noted in this Lawyers Weekly article, the decision is viewed as a "succinct primer on mens rea."
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Jury to Decide if Defence of Provocation Has Air of Reality: SCC
The Supreme Court split on the application of the air of reality test in R. v. Buzizi, 2013 SCC 27, a second degree murder appeal concerning whether the trial judge erred by refusing three requests to put the defence of provocation to the jury. The majority found that both the trial judge and the minority erred in applying the test to assess whether the provocation defence was likely to succeed or not. The relevant question, said the majority, is whether the record contains a sufficient factual foundation for a properly instructed jury to give effect to the defence. The court ordered a new trial. |
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Vagueness Challenge Fails: SCC
Section 243 of the Criminal Code is not so vague as to infringe s.7 of the Charter, according to the court in R v Levkovic, 2013 SCC 25, which ordered a new trial in the case of a woman charged with concealing the dead body of her child. The section makes it a crime to dispose of the dead body of a child with intent to conceal its delivery, whether the child died before, during, or after birth. The accused argued successfully at trial that s.243 was unconstitutionally vague because, by applying to a child who died before birth, it interfered with her privacy right not to disclose a naturally failed pregnancy. The Supreme Court disagreed, finding that medical evidence would be required even if s. 243 provided a detailed description of the precise moment on the gestational spectrum where a miscarriage becomes a still birth. |
An Opportunity to Pay More Than Lip Service to the Gladue Principles: MBCA
The Manitoba Court of Appeal reviews how sentencing judges should apply Gladue in R. v. Gabriel, 2013 MBCA 45, a successful sentence appeal the court said presented "...a unique combination of factors - a thorough and comprehensive Gladue report which links a generational background of abuse and family dysfunction to the criminal involvement of the accused, and a proposed plan for rehabilitation." The decision highlights the need for counsel to provide case-specific information and a restorative plan to assist judges in fulfilling their duties under s.718.2(e): What has been difficult in many cases is that, while judges have taken judicial notice of the broad systemic and background factors affecting aboriginal people generally, additional case-specific information which must come from counsel and from the pre-sentence report has often been lacking. It is only through the presentation of the historical context linked to the case-specific information and presentation of a restorative plan that a judge can fully evaluate how best to sentence an accused and fulfil his/her duties under s. 718.2(e). This is particularly important where, as in this case, the history of the accused includes significant violence such that important issues of public safety are engaged." (para.22)
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Court of Appeal Clarifies What Constitutes Reasonable Grounds to Suspect
The purpose of s. 254(2) of the Criminal Code "is to provide an investigative tool that briefly detains a driver with minimum inconvenience and intrusion" said the court in R. v. Mitchell (R.), 2013 MBCA 44, and "rarely will there be a need for a police officer to obtain an alcohol consumption history from a driver" before making an ASD demand. By focussing on the accused's qualified admission as to his alcohol consumption, without considering how that fit in the context of all the information known to the officer, both the trial and appeal judge misapplied the applicable legal principles at play in assessing whether the officer met the reasonable suspicion standard. The court reinstated the conviction for driving over .08. |
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Court Divided on What Constitutes Psychological Detention: MBCA
A divided court overturned the trial judge's decision to acquit on two trafficking charges in
R. v. Koczab (A.), 2013 MBCA 43, a case which turned on whether the accused had been psychologically detained in the course of a valid traffic stop so as to trigger his rights under s.10 of the Charter. The majority found that the trial judge's failure to apply the mandated detainee-centered objective analysis caused him to overemphasize the officer's intentions in his analysis of the detention issue. In addition, the majority found that in his s. 24(2) analysis the trial judge had overemphasized the police officer's alleged egregious conduct and had made unsupported findings which led him to conclude that the officer had a deliberate disregard for the Charter rights of the accused and that the impact of the breach was significant. The dissenting judge disagreed on both counts.
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Sniffer-dog Searches and Search Incidental to Arrest: MBCA
Drugs seized from the trunk of a vehicle following a sniffer-dog search should not have been excluded from evidence pursuant to s. 24(2) of the Charter according to the appeal court in R. v. Frieburg (T.L.), 2013 MBCA 40. The police had a reasonable suspicion that there were drugs in the car so they were authorized to conduct the sniffer-dog search and the subsequent trunk search without obtaining a warrant and to seize the package pursuant to s.489(2) of the Criminal Code. On the separate issue of whether searching the vehicle (which was parked a mile away from where the accused was subsequently arrested) was a search of the "immediate surroundings" and thus incidental to the arrest, the court agreed with the trial judge that this search breached s.8 of the Charter. The court ordered a new trial on the trafficking charge. |
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Sentencing Youths: MBCA
The judge who imposed the maximum youth sentence on a 17-year-old who had murdered his abusive father "demonstrated her understanding of the complex principles applicable in this case and applied them with care in this very difficult sentencing" said the court in R. v. A. A. Z., 2013 MBCA 33. The lengthy appeal decision is a primer on the youth sentencing regime and a must-read for those practising in this area. |
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Conviction Entered on Lesser Included Offence: MBCA
The trial judge's failure to direct his mind to the lesser included offence of simple possession when he acquitted on a single trafficking charge was an error in law said the court in R v Schritt, 2013 MBCA 32. The accused had testified that he possessed the cocaine for personal use, and given this record the Court of Appeal entered a verdict of guilty on the included offence and imposed a $1000 fine. |
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Update on Legislation
Bill S-7, the Combating Terrorism Act, received royal assent April 25, 2013 and will come into force on a day or days to be fixed by order of the Governor in Council. The legislative summary and backgrounder explain its impact.
Bill C-37, the Increasing Offenders' Accountability for Victims Act, passed third reading in the Senate on April 30, 2013 and is awaiting proclamation. It amends the Criminal Code by doubling the victim surcharge that offenders must pay and ensuring that the surcharge is automatically applied in all cases.
Bill C-43, the Faster Removal of Foreign Criminals Act, passed third reading in the Senate May 30, 2013 and is awaiting proclamation. It will result in faster removal of foreign criminals as outlined in this table.
Senate Public Bill S-209 amends the Criminal Code by expanding the list of permitted sports under the prize fighting provisions. It passed third reading in the House of Commons June 5, 2013 and will come into force upon royal assent.
Private member's Bill C-309, the Preventing Persons from Concealing Their Identity during Riots and Unlawful Assemblies Act, passed third reading in the Senate on May 23, 2013 and will come into force when it receives royal assent. It amends the Criminal Code to make it an offence to wear a mask or other disguise to conceal one's identity while taking part in a riot or an unlawful assembly. This bill was proposed as a response to the Stanley Cup riots in Vancouver. As noted in this CBC article, the maximum penalty for contravening the act is 10 years imprisonment. |
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Notices and Practice Directions
The Court of Queen's Bench issued a practice direction concerning Summary Conviction Appeals - Assignment Court on May 9, 2013. The notice, which came into effect immediately, stipulates that both factums must be filed before a summary conviction appeal can be set down on the Summary Conviction Appeal Assignment Court list. Appeals will be set for a time slot of at least two hours. Appeals involving complex issues should be set for one day. Two day hearings are to be set down through the trial coordinator.
The Provincial Court issued a notice concerning Provincial Court Circuit Sittings for the Winnipeg 2014 schedule. The new schedule amalgamates several circuit points and replaces the monthly cycle with a four-week cycle.
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Recommended Reading
Lawyers practising criminal law may be interested in these recent publications:
- Are smartphones computer systems under the Criminal Code? - this blog post criticizes the Alberta Court of Appeal decision in R. v. Cockell, 2013 ABCA 112, in which the court overturned the accused's conviction on three counts of child luring using a computer system (s.172.1(1) of the Criminal Code) because there was no evidence the accused's Blackberry smartphone was a "computer system" within the meaning of the section.
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Call for Interest
Lawyers interested in being considered for appointment to the roster of officers to review stabilization orders under The Youth Drug Stabilization (Support for Parents) Act are asked to forward their resume to Ms. Lori Middendorp, Coordinator for Appeals,165 St Mary's Road, Winnipeg, MB, R2H 1J1. This legislation allows parents and guardians to request that youths experiencing significant instability due to severe substance abuse be detained at the Youth Addictions Stabilization Unit for the purpose of assessment and possible stabilization. Stabilization order appeals are heard by a review panel consisting of a lawyer and an addiction specialist appointed by the minister. |
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MBA Programs
The Criminal Law section of the Manitoba Bar Association is hosting two programs this month:
- Welcome to the Practice of Criminal Law - this seminar is designed for articling students who will appear in Provincial Court on criminal matters and their principals. It will consist of a panel discussion followed by a meet and greet with provincial judges, Crown attorneys and defence counsel. It takes place June 17, 2013, from 4:00 to 6:30 p.m. at Room 413, Law Courts Building, 408 York Avenue.
- Top 5 Criminal Cases for 2012-2013 - speaker Nathaniel Carnegie will discuss recent decisions on impaired driving issues, search and seizure of computers, sentencing of aboriginal offenders, and enhanced credits for pre-trial custody following R. v. Stonefish at this lunch meeting on June 28, 2013. It takes place in the 2nd floor conference room at 444 St. Mary Avenue.
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National Criminal Law Program
The Federation of Law Societies' 40th annual National Criminal Law Program will be held July 8-12, 2013 in Ottawa, Ontario. The conference theme is "Substantive Criminal Law, Advocacy, and the Administration of Justice." Download the complete conference schedule, program faculty list, and registration form for further information.
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2013 Crown Defence Conference
The 11th annual Crown Defence Conference will be held October 16-17, 2013 at the Winnipeg Convention Centre. A tentative schedule is available on the conference website. Guest speakers include Madam Justice Michelle Fuerst, who will speak on self-representation, and Wally Oppal and Doug Le Pard, who will discuss the missing women's inquiry.
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