Police Require Warrant to Obtain Internet Subscriber Information: SCC

Police will no longer be able to obtain subscriber information from an internet user's ISP without a warrant following the Supreme Court's June 13, 2014 decision in R. v. Spencer, 2014 SCC 43. The court found that internet users have a reasonable expectation of privacy associated with their internet activities and that the "lawful authority" exception in PIPEDA (s.7(3)(c.1)(ii)) does not create a basis for such private information to be turned over to police. A request for voluntary disclosure by an ISP amounts to a search, according to the court, and requires a warrant. (para. 66) The court went on to confirm the accused's conviction for possession of pornographic material, however, finding that excluding the evidence in this case would bring the administration of justice into disrepute. These articles discuss the implications of the case for internet privacy:

Internet users' privacy and anonymity protected by Supreme Court: R v Spencer- Barry Sookman

Canada's Supreme Court sends strong message on internet privacy in R v Spencer- Norton Rose Fulbright

Prosecutorial Discretion: SCC

Crown counsel are not constitutionally obliged to consider an accused's aboriginal status when seeking a mandatory minimum sentence (in this case on the accused's fifth impaired driving conviction), according to the Supreme Court in R. v. Anderson, 2014 SCC 41. First, the duty to impose a proportionate sentence rests upon judges, not Crown prosecutors, and their distinct roles should not be conflated. In addition, inviting judicial oversight of the numerous discretionary decisions that Crown prosecutors make on a daily basis "is contrary to our constitutional traditions," said the court at para. 32.The court also confirmed that the scope of prosecutorial discretion is expansive and includes the tendering of notice, and that "exercises of prosecutorial discretion are only reviewable for abuse of process." (para. 36) This Legal Feeds article discusses the impact of the ruling on Aboriginal status and this ABLawg post summarizes the court's approach to prosecutorial discretion.  

Spontaneous Utterances: MBCA

The court reviews the traditional common-law test for the admission of a spontaneous (or excited) utterance as an exception to the hearsay rule in R. v. Head, 2014 MBCA 59, an unsuccessful appeal of a second degree murder conviction in a gang shooting. At issue was whether the judge erred in refusing to admit a post-shooting conversation between the accused and another person (concerning whether the victim had a gun) because it was not made contemporaneously. The court found that the analysis as to whether a declarant's statement is sufficiently contemporaneous is functional, and that "while the location and timing of the declarant's statement are relevant factors, they are not determinative." In this case, the court found that the conversation was made sufficiently contemporaneous to a shocking and dramatic event, the unanticipated shooting of a rival gang member, that the possibility of concoction or distortion could safely be excluded and the statement should have been admitted. Since the judge's error related to an issue the jury was otherwise necessarily aware of, however, the curative proviso applied and the appeal was dismissed.

The Who, What and When of Vetrovic Warnings: MBCA

The Court of Appeal examines the law regarding Vetrovic warnings in R v. Fatunmbi, 2014 MBCA 53, an unsuccessful conviction and sentence appeal on two counts of sexual assault by an assistant manager of a group home. The court found at para. 43 that the following factors must be considered on an appeal to determine the need for and/or the adequacy of a jury charge regarding inconsistent or unreliable evidence:

(1)     the nature and significance of the inconsistencies or other factors that underpin the allegation of unreliability or lack of credibility of the evidence/witness at issue;

(2)     the importance of the evidence to the outcome of the case and, in particular, to the accused's guilt;

(3)     whether defence counsel objected to the jury charge on this basis or asked for any type of warning during the trial; and

(4)     how the impugned evidence was treated in the jury charge, whether there should have been a warning, if there was none, and, if there was, whether it was sufficient.

When it applied this analysis to the facts in this case, the court found it could not conclude that the trial judge's failure to give a cautionary warning was so clearly wrong as to amount to an injustice.

Awarding Enhanced Credit a Deeply Entrenched Practice: MBCA

The Manitoba Court of Appeal weighed in on the interpretation of s. 5 of the Truth in Sentencing Act with its decision in R. v. Baron (C.M.), 2014 MBCA 43. Following the Supreme Court of Canada reasoning in R. v. Clarke, 2014 SCC 28 and R. v. Summers, 2014 SCC 26, the court found that the accused would be subject to the credit limits stipulated in the Truth in Sentencing Act (since the Act applies to an accused who committed offences before the legislation came into force but was charged after it came into force), but that the trial judge had erred in refusing to grant enhanced credit because there had to be "exceptional" circumstances and "very good reason" to do so. Although enhanced credit is not to be granted in every case, said the court,

...sentencing judges are to continue the deeply entrenched and long-standing practice endorsed by the Supreme Court of Canada ...of awarding enhanced credit for both the quantitative consequences of pre-sentence detention arising from the loss of eligibility for early release and parole and the qualitative consequences relating to the condition of remand custody including programming opportunities.

Legislative Update

Federal

The federal government introduced Bill C-36, the Protection of Communities and Exploited Persons Act, on June 4, 2014, approximately six months after the Supreme Court struck down Canada's prostitution laws in Canada (Attorney General) v. Bedford, 2013 SCC 72. The bill passed second reading on June 16, 2014 and is currently before the Standing Committee on Justice and Human Rights and at pre-study before the Standing Senate Committee on Legal and Constitutional Affairs. Details of the proposed legislation can be found in the press release, backgrounder, legislative summary, and Slaw article.

Provincial

A minor amendment to s.7(5) of The Constitutional Questions Act, came into effect April 1, 2014, increasing the timeframe for service of notice of constitutional challenges on the AGs from 14 to 30 days.  

Bill 2, The Highway Traffic Amendment Act (Safety of Workers in Highway Construction Zones), was proclaimed in force effective May 16, 2014. As noted in the explanatory note it permits regulations to be made to enhance safety and signage in construction zones.

Bill 23, The Highway Traffic Amendment Act (Increased Sanctions for Street Racing), was proclaimed in force effective May 15, 2014. It increases the impoundment period for motor vehicles seized pursuant to the act to seven days and gives the police the authority to suspend the driving privileges of the vehicle's driver for the same period.

The Highway Traffic Amendment Act (Powers of Traffic Authorities over Cycling Traffic) was proclaimed in force effective May 1, 2014. It gives traffic authorities (municipalities and First Nations) explicit authority over cycling traffic on the highways that are under their jurisdiction and makes minor amendments to adapt to changes in the ways that vehicles and bicycles use the road.

Provincial Court Notices and Practice Directions

The Provincial Court issued a Pre-Trial Coordination Protocol effective May 12, 2014. It applies to all adult criminal prosecutions in the court.

On May 29, 2014, the Provincial Court issued a notice amending the Pre-Trial Coordination Protocol by eliminating all out-of-custody adult administrative courts. Matters existing before June 16, 2014 will continue to have access to Administrative Courts until September 2014.

By notice of the Provincial Court dated June 18, 2014, effective June 23, 2014 a Request to file material in the Provincial Court form must be attached to all material filed in the court, whether the materials are filed at the court office or in chambers. The form is available on the court website.

A court notice titled Seniority of Counsel in Video Courtroom and dated June 26, 2014 advises counsel appearing in this court to attend court by 9:45 a.m. to advise the clerk of any client scheduled to appear that day so that the clerk can prepare a seniority of counsel list for the correctional centres linking to the courtroom. Requests to change the list made after the deadline must be made to the presiding judge.

Legal Aid Notice

Legal Aid Manitoba issued a Notice effective June 2, 2014, concerning PBOnline upgrades, Winnipeg duty counsel back-up, and the issue of using LAM to route client calls. The notice also provides a link to LAM's instructional video tutorial on the upgrades to PBOnline.

Recommended Reading

Harper ignores Supreme Court in new prostitution law- this Law Times article critiques the proposed new legislation on prostitution laws (Bill C-36), introduced June 4, 2014.

Lawyers offer contrarian view on sentencing laws and Defence of mandatory minimums misses the mark- these two Law Times articles comment on the May 2014 McDonald-Laurier Institute paper titled Parliamentary Restrictions on Judicial Discretion in Sentencing: A Defence of Mandatory Minimum Sentences.

Downside of the Reid Technique - this Lawyers Weekly article discusses the unreliability of eyewitness testimony extracted using high pressure interrogation tactics.

2014 Annual National Criminal Law Program

The Federation of Law Societies' annual National Criminal Law Program will be held July 7-11, 2014, in Halifax, Nova Scotia. The conference theme is Criminal Procedure - Ethics and the Charter. Download the complete conference schedule, program faculty list, and registration form for further information.

Manitoba to Host 2014 CAPCJ Conference

Manitoba judges will host the Canadian Association of Provincial Court Judges annual education conference in Winnipeg, from September 17-20, 2014.The theme of the 2014 CAPCJ conference is Criminalizing Social Issues: A Human Rights Crisis. It will look at the justice system's treatment of chronic offenders, issues of mental health, poverty, literacy and addiction and will discuss innovative ways of delivering justice to marginalized people.