Consent Vitiated by Condom Sabotage: SCC

Condom sabotage constitutes fraud and vitiates prior consent to sexual activity according to the Supreme Court in R. v. Hutchinson, 2014 SCC 19. The court was unanimous in dismissing the appeal of the sexual assault conviction, but split 4-3 on how they defined consent. These articles analyse the decision:

• Secretly Poking Holes in Condoms Vitiates Consent to Sexual Activity: SCC in R v Hutchinson - The Court.

• 'Sabotage' conviction is upheld at SCC - Lawyers Weekly.

Justifying a Stay of Proceedings for State Misconduct: SCC

In R. v. Babos, 2014 SCC 16, the Supreme Court clarifies the proper approach to be used to determine whether a stay of proceedings should be ordered when state conduct impinges on the integrity of the justice system but does not affect trial fairness (the residual category). In this case, the Crown`s misconduct (consisting primarily of intimidation and threats of further charges), while reprehensible, did not approximate the type of shocking conduct needed to justify a stay, said the majority (para. 72). The minority disagreed, finding that "a Crown who makes threats intended to bully an accused into foregoing his or her right to a trial, takes fatal aim at the heart of the public's confidence in that integrity." This blog post questions whether the decision has set too high a threshold for abuse of process warranting a stay of proceeding.

Flawed Expert Evidence and the Curative Proviso: SCC

Despite its finding that a key part of the evidence relied upon by the trial judge was inadmissible, a majority of the Supreme Court upheld the drug trafficking and importing convictions in R. v. Sekhon, 2014 SCC 15. The court found that the expert evidence of an experienced drug enforcement officer (that he had never encountered a "blind" drug courier) was flawed and should not have been admitted, but concluded that a retrial was unnecessary since the second branch of the curative proviso could safely be applied to sustain the convictions given the otherwise overwhelming evidence that the accused was aware of the cocaine secreted in the pickup truck he attempted to drive across the border. The minority disagreed with the application of the curative proviso, finding that:

If this Court excludes evidence described by the trial judge as one of the foundations of his conclusion that the appellant was guilty, it cannot then hold that the evidence against the appellant was nonetheless overwhelming without engaging in pure speculation. Such a conclusion would contradict what the trial judge himself wrote and would rest on an improper reweighing of the remaining evidence. (para.98)

These articles critique the decision:

• Expert Evidence of Police Officers and the Curative Proviso in R v Sekhon, The Court.

• Evaluating opinions, Criminal Law Casebook blog.

The Scope of Police Safety Search Powers: SCC

A police officer investigating a noise complaint did not contravene s.8 of the Charter when he pushed his way into a private residence and disarmed the accused of a loaded handgun, according to the court in R. v. MacDonald , 2014 SCC 3. The majority of the court found that such safety searches will be authorized by law provided the police officer believes, on reasonable grounds, that the search is necessary to eliminate an imminent threat to the safety of the public or the police. The minority went even further, holding that the standard should be reasonable suspicion, not reasonable belief. In the minority's view, "a police officer in the field, faced with a realistic risk of imminent harm, should be able to act immediately and take reasonable steps, in the form of a minimally intrusive safety search, to alleviate the risk." This blog post discusses the decision:  

• How sure do police have to be of a safety risk to search? The Supreme Court clarifies in R v MacDonald - The Court.

In R. v. Koczab, 2014 SCC 9, the Supreme Court restored the accused's acquittal on cocaine trafficking charges, overturning the majority decision of the Manitoba Court of Appeal that the trial judge had erred in finding a psychological detention and s.10 Charter breach. The Supreme Court followed the reasons of the dissenting appeal justice, who agreed with the trial judge that a detention had occurred when the accused received an implied direction by the police officer not to leave.

"Jumping" a Sentencing Recommendation

A judge who is contemplating sentencing an accused to a sentence that is much harsher than what the Crown is recommending should inform counsel of his/her concerns and provide them with an opportunity to present further submissions or authority, according to the Court of Appeal in R. v. Beardy, 2014 MBCA 23. The court reduced the six year sentence for attempt robbery/aggravated assault by two years, finding that the judge had made an error in principle when he "jumped" the Crown's recommendation by a significant amount without proper inquiry or reasons.

Fresh Evidence Motion Granted in Exceptional Circumstances: MBCA

The court allowed the Crown's fresh evidence motion and sentence appeal in R. v. Kunicki, 2014 MBCA 22, a case where, through the inadvertence of the Crown and the silence of defence counsel, the sentencing judge was unaware of the circumstances of an intervening drug charge and the accused's changed living arrangements, and of the undisclosed criminal record of the friend who provided a reference and offered to house and employ the accused. The court substituted a sentence of two years' incarceration followed by two years' probation for the conditional sentence of two years less a day.

Unclear Explanation Vitiates Verdict: MBCA

The trial judge's failure to provide an adequate explanation for a credibility assessment that included a finding of consensual sex, on the one hand, and a finding of a revocation of consent, on the other hand, made it impossible to assess the reasonableness of the sexual assault verdict, said the court in R. v. Wright, 2013 MBCA 109. The court set aside the conviction but refrained from ordering a new trial since the accused had already served most of his sentence.

Expert Evidence Needed to Explain DNA Transfer: MBCA

Unclear instructions on how the jury was to deal with evidence that the DNA of the complainant's boyfriend was found on the accused's penis constituted an error in law according to the court in R v Pruden, 2013 CanLII 83110 (MBCA). The court overturned the accused's sexual assault conviction and ordered a new trial.

Jurisdiction to Hear Release Applications Continuing: MBQB

The decision in R. v. Mayen, 2014 MBQB 29, settles a difference of opinion among Provincial Court judges as to whether they lose jurisdiction when an accused has been arraigned in the Court of Queen's Bench. The court found that a justice has continuing jurisdiction to hear an application for release under s. 515(1) regardless of the point in the proceedings.

Legal Aid Manitoba Notice to the Profession

This March 2014 notice from Legal Aid Manitoba reminds lawyers seeking coverage to appeal to the Manitoba Court of Appeal, the Federal Court of Appeal, or the Supreme Court of Canada to ensure they submit the appropriate documentation in compliance with s.12 of the Legal Aid Manitoba Regulation. The notice attaches a copy of a new appeal application form which must accompany the standard Legal Aid Application where coverage for an appeal is sought. The notice also reminds lawyers to sign up for PB Online, Legal Aid's new online application system. Effective April 1, 2014 Legal Aid will issue all certificates and disclosure electronically.  

Recommended Reading

Motor Vehicle Stops and the Charter: Points to Consider and Some Interesting Cases - this recently posted BC CLE article reviews the law concerning motor vehicle stops which evolve into criminal investigations.

The problem with 'Mr. Big' - this Lawyers Weekly article examines whether additional protections against self-incrimination are needed in cases involving undercover police operations.

Defence counsel brace for victims' rights bill - in this Law Times article the defence bar reacts to the federal government announcement that it will introduce a victims' bill of rights.

Conservatives do about-face on marijuana - this Law Times article examines the reaction to the government`s changing stance on marijuana decriminalization.

Criminal Defence Advocacy Skills Workshop

The latest installment of the popular defence advocacy skills workshop focuses on Jury Trials. The day long workshop takes place May 10, 2014 at the Provincial Law Courts building, 408 York Avenue. Topics to be considered include: jury selection, dealing with witnesses, closing statements, and jury charges. Register soon as enrollment is limited.

Criminal Justice Conferences

The Federation of Law Societies 2014 National Criminal Law Program, Criminal Procedure, Ethics and the Charter, will be held July 7 - 11, 2014, in Halifax, Nova Scotia. For more detailed information see the program schedule and faculty list.     

The 2014 National Criminal Justice Conference, Crime and Persuasion: How to Get Through the Evidentiary Motion, takes place April 12, 2014 in Vancouver. For more detailed information see the conference agenda and registration form.