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eLaw - Criminal Law Update
December 2014 - No. 68
ISSN 1916-3916
In This Issue
Guidance on Warrantless Cell Searches Incidental to Arrest: SCC
Coerced Confessions and Privacy Rights of Detainees: MBCA
Possession of Child Pornography Conviction Upheld: MBCA
Overcharging Trend Must Cease: MBQB
Recent Sentencing Decisions
Legislative Update
Court of Queen's Bench Notices
Legal Aid Manitoba Notices
Recommended Reading
Continuing Professional Development: LSM
2015 MBA Mid-Winter Conference

Guidance on Warrantless Cell Searches Incidental to Arrest: SCC

 

A divided Supreme Court issued its first ruling on cellphone searches incidental to arrest in R. v. Fearon, 2014 SCC 77. The majority found that warrantless cell phone searches conducted during an arrest do not offend s. 8 of the Charter provided the police follow strict guidelines. In articulating their approach the court struck a balance between the important law enforcement objectives served by prompt cell phone searches and the individual and societal interests in privacy. Four conditions must be met for a search to be valid: the arrest must be lawful; the search must be truly incidental to the arrest; the extent of the search must be tailored to its purpose; and the police must take detailed notes (para. 83). In this case, where the evidence on the nature of the search was lacking, the court found the search was not reasonable, but admitted the evidence because its exclusion "would undermine the truth seeking function of the justice system." For comments on the decision see:

Coerced Confessions and Privacy Rights of Detainees: MBCA

 
The court considers two issues in R. v. Coaster, 2014 MBCA 108, a manslaughter conviction appeal based on the voluntariness of a video-recorded confession: (1) whether the confession was coerced by an implicit offer of leniency; and (2) whether the accused's s.10(b) right to privacy was breached because he was not alone while exercising his right to counsel prior to giving his statement. On the first issue the court found that, while the implicit offer of lenient treatment in this case was "significant," the trial judge did not err in finding that the police tactics had "no coercive effect" on the accused. The court cautioned, however, that "analysis of voluntariness is contextual and case specific, therefore a similar sort of inducement made in a different context may lead to exclusion." (para. 30)

On the second issue, the court started its analysis by noting that it had never previously considered the standard for assessing a detainee's privacy rights and that there is a lack of appellate consensus on this issue. The broader and more flexible standard articulated by the ONCA in Playford is to be preferred, said the court, "because it is centered on the reasonableness of the perspective of a detainee, as opposed to the auditory abilities of the police" and it allows an accused to prove a breach based on subjective and objective considerations and the Crown to rebut by showing that the accused exercised the right. In this case the court found there was no actual invasion of privacy and dismissed the appeal.
Possession of Child Pornography Conviction Upheld: MBCA

In R. v. K. (T.), 2014 MBCA 97, the appeal court upheld the accused's conviction for possession of child pornography, rejecting his arguments that the evidence found on a computer (seized from his parents' house after his girlfriend reported seeing questionable images on it) should have been excluded pursuant to s.24(2) of the Charter;  and that the judge had misapprehended the evidence relied upon to find that he had the requisite knowledge to be in possession of the pornographic material.  

Overcharging Trend Must Cease: MBQB

The court's frank observations in R. v. Harper, 2014 MBQB 228, on the financial costs and institutional strain occasioned by the trend of overcharging and by unrealistic sentencing positions, are instructive. The 82 count indictment (respecting eight armed robberies) was unnecessary and unwieldy, said the court, and in the end made no tangible difference in assessing either the accused's culpability or a fit and appropriate sentence (8 Ω years). The court also blamed a 30 month delay on protracted plea discussions and noted that   "disagreements between counsel respecting sentencing matters are too often an excuse leading to delay, by putting off the tough call until another time" and "(t)his style of practice must be discouraged." (para.45)
Recent Sentencing Decisions
  • R. v. Flett (L.L.), 2014 MBCA 111 - the court dismissed the accused's appeal of her sentence of life imprisonment for 5 counts of manslaughter, finding that the sentence was neither harsh nor excessive considering her acts of deliberate arson resulted in multiple deaths as well as significant mental anguish to the victim who escaped.
     
  • R. v. Desjarlais, 2014 MBQB 224 - the court sentenced a 60 year old aboriginal healer convicted of sexually assaulting and exploiting a vulnerable client to 2 years less a day plus three years' probation.
     
  • R v LP, 2014 MBQB 210 - the accused, a 50 year old immigrant from the Philippines, was sentenced to 60 days in jail for the third of three sexual "touchings" involving his cousin's wife, described as being "at the low end of the spectrum of sexual assaults."
Legislative Update

The Protecting Canadians from Online Crime Act  (Bill C-13) received royal assent December 9, 2014 and will come into force in three months. The goal of the new law is to help law enforcement protect victims (particularly children) from online crime such as cyber bullying. Among other things, it prohibits the non-consensual distribution of intimate images and empowers courts to order the removal of such images from the internet. It also modernizes the investigative powers of the police and the tools used to obtain electronic evidence. For more information see the legislative summary and this CBA report on the bill.

The Safer Witnesses Act, SC 2013, c 29 came into force November 1, 2014 (other than s. 23, which came into force on assent). Its aims are to improve the federal witness protection program by enhancing its interaction with provincial, territorial and municipal programs and to better protect those who require and provide protection, particularly as regards organised crime and terrorism.

Sections of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16 came into force November 20, 2014, affecting sections 16, 17 and 20 of the Immigration and Refugee Protection Act. For further information see the legislative summary.

Provincial

The Highway Traffic Amendment Act (Countermeasures Against Drug-Impaired Driving), SM 2014, c 23 was proclaimed in force December 1, 2014, incorporating Criminal Code evaluations to identify drug impairment into The Highway Traffic Act suspension, seizure and forfeiture program, so that drug-impaired driving is treated consistently with alcohol-impaired driving.

The Highway Traffic Amendment Act (Enhancing Passenger Safety), SM 2013, c 50 came into force on December 1, 2014, with the exception of s.5. It amends the HTA to require a vehicle's passengers to be seated on a part of the vehicle that is designed and equipped for passenger seating and to prohibit the vehicle's driver from driving while a passenger is not seated properly. It also amends the Act's existing requirements concerning seat belt use.
Court of Queen's Bench Notices

 

The Court of Queen's Bench issued a notice on November 12, 2014 elaborating on the practice to be followed when setting matters down on the new Protection Order Hearings List. The notice reminds counsel with matters on the list to come prepared to address resolution of the matter or to engage in a meaningful discussion as to how to narrow the issues for hearing.

The November 14, 2014 notice titled Bail Reviews in Court of Queen's Bench sets out requirements which must be met for a bail review application to proceed. Failure to comply with the guidelines will constitute a waiver of the accused's appearance.  

Legal Aid Manitoba Notices

Legal Aid recently issued two notices:  Notice 25, which details their access to justice initiative and announces the suspension of the Enhanced Duty Counsel Project effective December 1, 2014; and Notice 26, which discusses the reintroduction of the Clinical Criminal Law course at the University of Manitoba; and the development of an online legal aid application, to begin testing effective December 15, 2014.
Recommended Reading  
Continuing Professional Development: LSM

Winter CPD Replays - Spend the colder months catching up on popular cpd programming by viewing video replays of past LSM programs. Refreshments are not included at the replays, but you are welcome to bring your own.

Everyday Ethics Series - Register for multiple sessions in this 6 month series of lectures on ethics issues featuring Allan Fineblit, Q.C., and save money as you learn what you need to know to practise responsibly. Upcoming sessions include Privilege and Confidentiality on January 9, 2015 and Mobility 101 on February 11, 2015. You can also register to attend one or more of the first three sessions in the series, which will be shown in video replay on January 6, 2015. 

Dealing with Expert Opinion Evidence - counsel of all experience levels encounter challenges when working with expert witnesses. Experienced litigators Steve Vincent and Jeff Baigrie will walk you through what you need to know about expert opinion evidence at this lunch hour program on February 20, 2015. Register now to attend either in person or by tele-presentation.
2015 MBA Mid-Winter Conference

The Manitoba Bar Association's Mid-Winter Conference will be held January 22-24, 2015 at the Fairmont Hotel, with continuing professional development sessions scheduled all day Thursday and Friday. The Criminal Law section is sponsoring a program called Everything You Wanted to Ask About the Child Abuse Registry on Friday afternoon. For further details see the brochure or registration form.
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