Reasonable Suspicion Standard for Sniffer Dog Searches: SCC

Co-accused's Admissions Inadmissible Where Reliability Can't be Adequately Tested: SCC

In R. v. Youvarajah, 2013 SCC 41, the Supreme Court found that the prior written statement of a minor co-accused shooter implicating the adult accused as the orchestrator of the murder was inadmissible. The co-accused made the statement as part of his plea agreement, but later refused to adopt the statement at the accused's trial. "The administration of justice would not be enhanced in permitting admissions made by a co-accused in his own interest, as part of a plea bargain for a conviction of a lesser crime and favourable sentence, to be used against a co-accused, in circumstances where the reliability of the statements cannot be adequately tested," said the majority at para. 64. This post from The Court discusses the decision.

Punitive Charitable Donation Order Not A Sentencing Option: MBCA

obiter and concluded:

New Trial Ordered for Police Officers Convicted of Assault: MBCA

In R. v. Moyse, 2013 MBCA 71, the court allowed the fresh evidence appeal of two police officers convicted of assaulting the complainant in a parking lot (where there was camera surveillance) and again on route to the detachment office. A new trial was ordered to allow the police officers to present the testimony of a forensic pathologist to the effect that the complainant's injuries could have been caused by the struggle in the parking lot and by him banging his head against the police car shield, and that it was not the case that a further alleged assault was required to explain the injuries. On a side issue concerning joint representation, the court warned against such retainers, calling them "fraught with difficulties and dangers."

Joint Possession of Residence Not Sufficient to Infer Possession of Buried Gun: MBCA

The Court of Appeal quashed the possess weapons convictions in R. v. MacLeod (J.M.) et al., 2013 MBCA 48, because the guns in question were found buried in a dog run at the jointly occupied residence and there was no evidence pointing to either of the individual occupiers to infer that they had control of the dog or dog run and possession of the weapon.

Other QB Decisions

R. v. Abdelhamid, 2013 MBQB 201 - a doctor convicted of assaulting a 15-year-old hospital patient was sentenced to 5 years' imprisonment and accorded no credit for the time he spent in detention in Greece pending extradition.

R. v. Kille, 2013 MBQB 200 - the accused's social worker girlfriend who discovered and reported finding child pornography on the accused's computer was not a person in authority regarding statements made to her by the accused.

R. v. Dritsas, 2013 MBQB 186 - this lengthy decision reviews the sentencing principles applicable to serious cocaine and cannabis trafficking convictions resulting from the Project Sport Track investigation.

R. v. Rhodes, 2013 MBQB 166 - the accused is convicted on sexual assault charges following a retrial ordered by the Court of Appeal.

Legislative Update

Federal

The following justice-related bills were passed at the end of June:

Private member's Bill C-299, An Act to Amend the Criminal Code (kidnapping of young person), received royal assent and came into force June 26, 2013. It amends the Criminal Code to prescribe a minimum punishment of five years when a kidnap victim is under sixteen years of age, unless the person who commits the offence is a parent, guardian or person having the lawful care or charge of the victim.

Bill C-51 received royal assent June 26, 2013 and will come into force by order in council. As detailed in the legislative summary, it amends the Witness Protection Program Act to enhance witness protection, especially with respect to organized crime and terrorism.

Bill C-37 received royal assent June 19, 2013 and will come into force by order in council. It seeks to increase offenders' accountability to victims of crime by doubling victim surcharge amounts and making them mandatory for all those convicted of a criminal offence.

Bill S-209 received royal assent and came into force June 19, 2013. It amends the Criminal Code by expanding the list of permitted sports under the prize fighting provisions.

Bill S-9 received royal assent June 19, 2013 and will come into force by order in council. It introduces four new indictable offences concerning activities involving nuclear or radioactive material, devices, or facilities into Part II of the Criminal Code.

Bill C-309 came into force when it received royal assent on June 19, 2013. 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.

Provincial

The Highway Traffic Amendment Act (Speed Limits in School Zones) was proclaimed September 15, 2013, amending The Highway Control Act to allow local governments to set lower speed limits in school zones.

Provincial Court Notices

The Provincial Court recently issued a notice concerning detailed Practice Directives for Contested Applications in Provincial Court of Manitoba, effective November 4, 2013. The fundamental objective of the Practice Directives is to reflect the public interest in having in place procedures that ensure contested proceedings in the Provincial Court of Manitoba are dealt with justly and efficiently.

By notice dated July 2, 2013, the Chief Judge of the Provincial Court has suspended all previous Case Management Conference Protocols. Case management conferences are now held only on request of counsel or if required by the court

Recommended Reading

These publications may interest criminal lawyers:

Insanity and Automatism - this English Law Commission report examines how the criminal defences of insanity and automatism operate in practice and debates whether the law has the right test to distinguish between those who should be held criminally responsible for what they have done, and those who should not. Summaries of the report are also available on the Commission website.

The Stream, the Courthouse Libraries BC blog, often publishes posts on the details of new legislation. Two recent posts, The Citizen's Arrest and Self-defence Act and Response to the Supreme Court of Canada Decision in R. v. Tse Act, deal with changes to the Criminal Code provisions concerning citizens' rights to protect their property and wiretapping.

Conditional Forgiveness and the Parole Board - this Slaw post discusses the revocability of criminal pardons (or "record suspensions" as they are now more accurately called).

Gladue Practices in Provinces and Territories - this is a Department of Justice Canada status

report on provincial and territorial policies and practices that reflect the principles set out in Gladue regarding: specialized courts for Aboriginal accused; training and awareness initiatives for judges, probation officers, and court workers; procedures for sentencing, bail and parole hearings when a case involves an Aboriginal offender; and community justice programs and resources for Aboriginal offenders.

SCC Declines to Distinguish Between Express and Implied Verbal Statements for the Purpose of Hearsay Analysis and Applies a Principled Approach to Admitting Drug Purchase Calls in R v Baldree - this post from The Court discusses the SCC decision in R. v. Baldree, in which the court found that evidence of a drug purchase call obtained when the police answered the accused's cell phone was inadmissible hearsay and should have been excluded.

Fall CPD: LSM

Register soon for these fall CPD programs:

Criminal Defence Advocacy Skills Workshop - Defending Sexual Assault Charges - the criminal defence advocacy workshop series continues with this all day program on defending sexual assault charges on October 26, 2013. Expert faculty from the court and defence bar will provide guidance on the issues arising in the three main categories of sexual offences: child sexual assault, historical allegations, and consent issues. Register soon as enrollment is limited. Participants should note that a new location will be used for this workshop, which will take place at the Law Courts.

Legal technology expert and lawyer Barron Henley is back with three new sessions:

Legal Technology & Practice Management: What's Coming and the Best of What's Out There Now, on October 23, 2013, will cover cloud computing, e-mail management, technology management and planning and malpractice avoidance strategies; and

Legal Drafting with Microsoft Word - Fundamental & Advanced Sessions, on October 24, 2013, will be delivered in two sessions dealing with the fundamentals and advanced techniques of drafting with Word. To save money register for both sessions.

Employee Engagement and Accountability: Build a High Performance Culture - this is the first program in the Leadership Skills series, designed to help lawyers improve their individual leadership style and enhance their performance as well as the performance of those around them. It takes place November 14, 2013, from 9:00 a.m. to 3:00 p.m. at the Law Society classroom. Presenters Judy Mathieson and Denise Zaporzan will introduce practical skills to help participants align culture with strategy to create a high performance mindset in the workplace. Register for more than one session in the series and save money.

Pitblado Lectures

The 2013 Isaac Pitblado Lectures, titled Human Rights Challenges and Achievements, will take place November 22-23, 2013, at the Fort Garry Hotel. Presenters will cover a variety of topical human rights issues including equality jurisprudence, the future of human rights tribunals and commissions, and how international human rights law impacts Manitoba practice.