New Approach Needed in Regulating Prostitution: SCC

Fault Element Subjective in Uttering Threats: SCC

Specific Authorization Required to Search Computer Data: SCC

Police intending to search the data stored on a computer found within a place for which a search has been authorized require specific authorization to do so according to the Supreme Court in R v Vu, 2013 SCC 60 (para. 64). Privacy interests in computers are markedly different from privacy interests in other receptacles (like files and cupboards) and police must obtain prior authorization to search them. In practical terms this means "that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for." If police come across a computer when they do not have prior authorization they may seize it to ensure the integrity of the data, but they must obtain a separate warrant before searching the data. The decision applies to all types of computers, including smartphones, but its scope is restricted to warrantless searches of a place and it would not necessarily apply to computer searches conducted incident to arrest or in other exigent circumstances.

Court Differs on When Provocation Defence Can Be Put to Jury: SCC

In two recent decisions (R. v. Cairney, 2013 SCC 55 and R. v. Pappas, 2013 SCC 56), the Supreme Court clarifies when the defence of provocation (particularly self-induced provocation as a partial defence to a murder charge) can be put to a jury. In both cases the majority found the defence had "no air of reality" and should not have been left to the jury. The minority disagreed on the latter issue, finding that the judge's decision to leave the provocation defence with the jury was proper. The decisions have been criticized for unduly restricting the role of juries in such cases:  

• Self-Induced Provocation Is No Defence to Murder: SCC in R v Cairney, R v Pappas The Court;

Jury Notations Admissible as Fresh Evidence: MBCA

In R. v. Richard (D.R.) et al, 2013 MBCA 105, the court granted the fresh evidence motion of one of three co-accused and ordered that she receive a new trial on the conspiracy to commit murder/first degree murder charges. The accused sought to present fresh evidence of notations made by jury members on an edited transcript provided to the jury for use in its deliberations. The court found that while normally the jury secrecy rule prevents the court from inquiring into what use the jury made of exhibits in its deliberations, in this case the notations constituted evidence extrinsic to the process and the court could consider whether they should be admissible as fresh evidence. The court found that in view of the paucity of evidence against the accused, any speculation that the jury might have considered what was edited from the transcripts in arriving at its decision was sufficient to undermine the reliability of the verdicts against the accused and maintaining the verdicts would amount to a miscarriage of justice.

Physical Impossibility of Transmitting HIV by Spitting Not a Defence to Attempt Charge: MBCA

An HIV-positive accused who intended to transmit HIV by spitting at a police officer was properly acquitted on the charge of aggravated assault but was guilty of attempted aggravated assault according to the Court of Appeal in R. v. Bear (C.W.), 2013 MBCA 96. The trial judge`s conclusion that the likelihood of transmission was not high enough to support a finding of actual endangerment was irrelevant to a conviction on the attempt charge. "An accused is guilty of an attempt if he intends to commit a crime and takes legally sufficient steps towards its commission. Physical impossibility is not a defence to a charge of attempt. The crime of attempt consists of intent to commit the completed offence together with some act more than preparatory taken in furtherance of the attempt." (para.69)

When the Interests of Justice Require Severance: MBQB

In R. v. Hanska, 2013 MBQB 295 the court granted the accused's application to sever a 24-count direct indictment into two trials covering two incidents. The Crown argued the incidents, which took place 90 minutes apart and in which the same handgun was used, were legally and factually related. Noting that severance applications are relatively case specific, the court outlined the factors to consider when determining whether the interests of justice require severance. In this case, the most important factor was the right to full answer and defence in light of the accused's intention to testify regarding only one of the incidents.

Challenging Mandatory Minimum Sentences for Firearms Offences

Reviewing Search Warrant Authorizations: MBQB

New Self-Defence Provisions Apply Retrospectively: MBQB

Police Officers Not Roadside Quizmasters Seeking Accused's "Final Answer": MBQB

The Crown successfully appealed the accused's acquittal on a charge of refusing to provide a breath sample in R v Hiebert, 2013 MBQB 240. The court found that the crime of refusal was complete when the accused unequivocally refused both the formal demand and the subsequent refusal warning, and his later recantation to a different officer following his arrest was not part of the same series of events.   

Observations on the Harm of Cocaine Trafficking: MBQB

In R. v. MacLeod, 2013 MBQB 242, the court addressed its concerns about appearing to "sanitize or depersonalize" the crime of cocaine trafficking in the unique circumstances of the sentencing (which dealt with whether and how the accused should be credited for time served in custody under s. 719(3)) by observing:

The ugly fact of the matter is that cocaine and crack trafficking is a disease on our community and there is nothing noble or romantic about the gangs behind it. No matter what the outward show or the claims of being mere social clubs, at the core, gangs like the Hells Angels or Redlined or Rock Machine are a bunch of violent, selfish criminals who prey on, and use, others in all social and economic levels of society. The harm to any community from Winnipeg to isolated northern aboriginal reserves is seen daily by the consequences of cocaine trafficking, from users who steal and rob to support their habit, to shootings over turf, to violent beatings over debts, to extortion, and to other violent assault, rapes and killings while under the influence of these drugs. Trafficking in serious drugs like cocaine and crack destroys people, it destroys families. All this should never be forgotten, even where it may not be a critical part of a specific judgment.

Provisions Limiting Discretion to Award Enhanced Credit Unconstitutional: MBPC

Update on Legislation

The Increasing Offenders' Accountability for Victims Act, S.C. 2013, c.11, formerly Bill C-37, came into force October 24, 2013, doubling the victim surcharge paid by offenders and eliminating judicial discretion to waive it.

Bill C-14, the Not Criminally Responsible Reform Act, previously Bill C-54, was reinstated on November 25, 2013 and is currently before the senate. It "amends the mental disorder regime in the Criminal Code and the National Defence Act to specify that the paramount consideration in the decision-making process is the safety of the public and to create a scheme for finding that certain persons who have been found not criminally responsible on account of mental disorder are high-risk accused. It also enhances the involvement of victims in the regime." This backgrounder provides further details. For a critical response to the proposed changes see: Sometimes risk is a medical matter - Doctors, not judges or juries, should decide the fates of not criminally responsible offenders and Bill to reform NCR provisions puts public at greater risk: lawyer.

Provincial Court Practice Direction

The Provincial Court recently published Practice Directives For Contested Applications in the Provincial Court of Manitoba. The eleven directives outline the proper procedure for preparing and conducting contested proceedings, including sections on timing, court documents, service, applications, withdrawal as counsel, constitutional questions, and case management conferences. Court forms and a schedule of provincial court offices are appended to the directives.

Legal Aid Manitoba Notice to Profession

In this December 2013 notice Legal Aid Manitoba encourages all private bar panel members to obtain training and begin using PBOnline, which will be the primary method of certificate delivery to panel members as of April 1, 2014. The notice sets out the technical requirements of the system and describes how to access training. It also discusses changes to area director offices effective January 1, 2014 and details how to use the Can Talk Translation service for client interviews.

Recommended Reading

Counsel can't vet police notes: SCC - this Legal Feeds article discusses Wood v. Schaeffer, 2013 SCC 71, the recent SCC decision in which the majority found permitting police officers to consult with counsel before preparing their notes to be an anathema to the transparency intended by the Police Services Act.

Detecting the drugged driver≠ - this Lawyers Weekly article reviews the developing case law on evaluations under s. 254(3.1) of the Criminal Code (provisions concerning drug impaired driving).

Mandatory Minimum Sentences for Firearms Possession are Unconstitutional, Says ONCA - this blog post from The Court discusses the judicial response (in Ontario) to mandatory minimum sentences for firearms possession.

Crime Comics and the Remnants of a Moral Panic - this Slaw post discusses the little known and archaic Criminal Code provision prohibiting the publication of crime comics.

2014 MBA Mid-Winter Conference

The Manitoba Bar Association's Mid-Winter Conference will be held January 23-25, 2014, at the Fairmont Hotel. Continuing professional development sessions are scheduled all day Thursday and Friday, and include the following programs which may interest criminal lawyers: A Roadmap for Statutory Interpretation; Lawyers in the Media: Sound-bytes and Pitfalls; Own the Podium: Achieving Ethical Excellence in Your Practice; and Changing Legislative Landscape: Aboriginal People and Rights.