Supreme Court Considers Tough on Crime Legislation

The federal government's tough on crime agenda is not faring well at the Supreme Court of Canada these days. In the most recent trilogy of cases (R v Summers, 2014 SCC 26, R v Carvery, 2014 SCC 27 and R v Clarke, 2014 SCC 28 - considering provisions of the Truth in Sentencing Act limiting the courts' ability to allow extra credit for time served prior to sentencing) the court concluded "that loss of access to parole and early release constitutes a 'circumstance' capable of justifying enhanced credit." (R v Summers, 2014 SCC 26, para. 34). "Had Parliament intended to alter the well-established rule that enhanced credit compensates for the loss of eligibility for early release, it would have done so expressly," according to the court (para.7). The court also found in Clarke that s. 5 of The Truth in Sentencing Act is unambiguous that the caps only apply to persons charged after the Act came into force. In this case the credit limits were found to apply where the accused committed the offences he was convicted of before the Act came into force but was not charged until after it was in force. These articles discuss the decisions:

• SCC rejects feds' cap on custody credit - Lawyers Weekly;
• SCC defends judicial discretion in sentencing - Legal Feeds blog.

In Canada (Attorney General) v. Whaling, 2014 SCC 20, the court unanimously struck down s. 10(1) of the Abolition of Early Parole Act, finding that it infringed the s. 11(h) Charter right not to be "punished . . . again" for an offence. The section allowed for retrospective application of the Act to deny early day-parole eligibility to three first-time, non-violent offenders who were sentenced prior to the enactment of the Act. The decision in Whaling only affects those sentenced before the Act came into force in March of 2011. For further information on the case see:

• Repeal of early parole rights violates Charter: SCC - Legal Feeds blog;
• Parole ban is shot down by SCC ruling - Lawyer Weekly.

Failing to comply with statutory disclosure requirements on the transfer of a prisoner was procedurally unfair and therefore unlawful according to the Supreme Court in Mission Institution v. Khela, 2014 SCC 24. At issue in the case was the state of the law with respect to the writ of habeas corpus, particularly whether a provincial superior court may rule on the reasonableness of an administrative decision to transfer an inmate to a higher security institution or whether the reasonableness of the decision must be dealt with by the Federal Court on an application for judicial review. The court found:

...superior courts are entitled to review an inmate transfer decision for reasonableness on an application for habeas corpus with certiorari in aid. If a decision is unreasonable, it will be unlawful. Support for this conclusion can be found in the nature of the writ, in past court decisions regarding the writ, and in the importance of swift access to justice for those who have been unlawfully deprived of their liberty.... Moreover, it is well established that a superior court hearing a habeas corpus application may also review a transfer decision for procedural fairness (paras. 3 and 4).

These articles review the decision:

• SCC denies bid by Ottawa to limit prisoner challenges Legal Feeds blog;
• Upper courts have a say in jail transfers Lawyers Weekly.

Steele Appeal Heard: SCC

The Supreme Court heard the appeal of R. v. Steele (J.M.), 2013 MBCA 21 on April 17, 2014. The court considered whether the Manitoba Court of Appeal erred in concluding that a 30-second robbery in which the accused threatened that he had a gun but did not produce it, was not a "serious personal injury offence" under s.752 of the Criminal Code because it did not "involv[e] the use or attempted use of violence." The factums and webcast can be viewed on the Supreme Court website.

Withdrawing a Guilty Plea: MBCA

The Court of Appeal decision in R. v. Castel, 2014 MBCA 31, looks at what circumstances justify the court in exercising its discretion to permit the withdrawal of a guilty plea. The essential question to be determined in each case is whether allowing the withdrawal is in the interests of justice. In this case, where the appellant had been an active participant in the negotiations leading to the plea and was familiar with the process from past pleas, the court was not persuaded that it would be in the interests of justice to permit him to call fresh evidence or to withdraw his plea. The court also dismissed the appellant's bid for additional credit for pre-sentence custody.

Multiple Offender's Appeals Dismissed: MBCA

The court dismissed the fresh evidence motion and conviction and sentence appeals of a multiple offender in R. v. Roussin (B.), 2014 MBCA 24 and 30. The court rejected all issues raised by the appellant arising from his trials, including arguments related to severance, wiretap evidence, Vetrovec warning, and the mens rea for uttering threats. The fresh evidence which the appellant sought to introduce, involving comments allegedly made by a juror, did not meet the requirements to admit hearsay evidence, according to the court.

Analysing ASD Demands: MBQB

An officer who waited 15 minutes to administer a roadside ASD test (because he thought the accused might still have alcohol in his mouth which would give a false reading) breached the accused's s.8 Charter rights according to the court in R. v. Bergen, 2014 MBQB 84. The trial judge erred in finding that the officer had a sufficient reason to delay, said the court, since there was no specific evidence to suggest the test would be compromised and the officer had deliberately not asked the accused when he had consumed his last drink. The decision contains a helpful analysis of ASD demands and of when officers should ask about recent alcohol consumption.

Recent QB Decisions

R. v. Knott, 2014 MBQB 72 - a battered wife who stabbed and killed her abusive husband was acquitted of second degree murder. The court considers battered women's syndrome, PTSD, and whether, on the particular facts, the accused acted in self-defence.

R. v. Sidwell, 2014 MBQB 74 and R. v. Musaka, 2014 MBQB 75 - in both these decisions the court reviews the factors to consider on a sexual assault sentencing.

R. v. Cummer, 2014 MBQB 62 - the court rejects the accused's defence that he honestly believed that the victim was 16 years old and consented to the sexual activity.

R. v. Mayan, 2014 MBQB 58 - the court dismissed the accused's application for habeas corpus due to lack of credible evidence in support of his argument that he was only 17 at the time of the offence.

R v Grant, 2014 MBQB 38 - the court upheld the accused's speeding conviction, concluding that there is no legal requirement to post warning signs prior to a reduction in the speed limit and that the actual speed zone signs are what designate a "restricted speed area."

Legislative Update

Federal

Bill C-14, the Not Criminally Responsible Reform Act, received royal assent on April 10, 2014. The Criminal Code amendments will come into effect July 10, 2014 and the National Defence Act provisions will come into force on a date to be fixed by order of the Governor in Council. See the backgrounder for more information.

The federal government introduced Bill C-32, the Canadian Victims Bill of Rights, on April 3, 2014 and it is currently at second reading in the House of Commons. The bill proposes sweeping changes to create clear statutory rights for victims of crime (including the right to information, protection, participation and restitution), and to establish a complaint process for breaches of those rights. More explicit information on the bill can be found in the legislative summary and in the backgrounder. This Lawyers Weekly article critiques the bill.

Manitoba

The Manitoba government introduced Bill 57, The Highway Traffic Amendment Act (Countermeasures Against Drug-Impaired Driving) on April 29, 2014. As explained in the explanatory note, the bill incorporates the Criminal Code evaluation system to identify drug impairment into the suspension, seizure and forfeiture program under The Highway Traffic Act, so that drug-impaired driving is treated consistently with alcohol-impaired driving. The bill contains consequential amendments to The Drivers and Vehicles Act.

Bill 60, The Restorative Justice Act, promotes the development and use of restorative justice programs in Manitoba by requiring the Department of Justice to develop policies respecting the use of restorative justice programs and establishing an advisory council to aid the government in the design and implementation of such programs.

Practice Direction re Criminal Pre-Trials: MBQB

In keeping with the Court of Queen's Bench Practice direction on Criminal Pre-trials, commencing April 1, 2014 Crown and defence counsel are required to file pre-trial briefs before the first pre-trial conference in every criminal case. This new practice is designed to ensure more effective use of court time by the early identification of issues.

Notice re Courtroom Designations for the Provincial Court

This Provincial Court notice details the changes to courtroom designations as of April 7, 2014 due to operational changes.

Recommended Reading

Speak up, defence advised - this Law Times article examines the decision in R. v. Pletsas, 2014 ONSC 1568, in which the appeal judge found that the trial judge had usurped the role of Crown counsel when he improperly intervened in the examination-in-chief of the two police officers called as Crown witnesses. Defence counsel need to be more aggressive in objecting to such interventions according to those cited in the article.

Voir Dire - the April 2014 edition of the CBA Criminal Law section newsletter contains articles on The SCC and Gladue; primers on direct and cross-examination strategies and conducting effective oral arguments in the court of appeal; and a summary of the section's law reform activities.  

Bad Law - this Canadian Lawyer cover article examines the history of the Bedford decision striking down Canada's prostitution laws and the lawyer behind the constitutional challenge.

MBA/CBA Programs

Top 5 Criminal Cases for 2013-2014 - the Criminal Law section of the MBA is wrapping up the year with its annual review of cases at this lunch program on May 26, 2014. Rekha Malaviya and Ryan Rolston are the presenters.

The CBA has two web conferences left in its Criminal Law Academy:

• The Status of Character Evidence Rules: Eroded or Enhanced? - criminal law experts will examine recent developments in bad character and/or propensity evidence at this May 9, 2014 online program.

• Evidence in the Sentencing Phase - learn what evidence you need in the sentencing process at the final program in the Criminal Law Academy, May 29, 2014.