The Supreme Court agreed with the Manitoba Court of Appeal decision to order a new trial in R. v. Grant, 2015 SCC 9, finding that the trial judge erred in evaluating and assessing the credibility of the unknown third party suspect evidence on a balance of probabilities. According to the court at para. 54, “(r)elevant evidence concerning an unknown third party suspect will only be excluded where its prejudicial effects substantially outweigh its probative value.” In this case, the evidence concerning the unknown third party suspect was “very relevant” and its probative value arose from the marked similarities between the alleged abductions (para.57). It was left to the new trial court to assess and weigh the probative value and prejudicial effect of the evidence.

In R. v. Perrone, 2015 SCC 8, the Supreme Court upheld the majority decision of the Manitoba Court of Appeal that “the trial judge…assessed both the credibility and reliability of the witness taking into account the areas of concerns which she outlined.” The complainant was the sole witness in the sexual assault trial, and her credibility and reliability were questioned because she lied to the court and she admitted to being intoxicated and to a mental disability described as a psychosis. The majority found that the trial judge had made an implicit finding of reliability. The dissenting judge disagreed, finding that a reliability assessment ought to have occurred, but had not. This article from The Court discusses how the appeal judges arrived at those opposing views.

The Supreme Court declared the Criminal Code provisions prohibiting physician-assisted death for competent adults suffering from grievous and irremediable medical conditions invalid in Carter v. Canada (Attorney General), 2015 SCC 5, finding that they infringe s.7 of the Charter. The court suspended the declaration of invalidity for 12 months to allow the government to respond by enacting legislation consistent with the constitutional parameters set out in the decision. These articles discuss the decision:   Supreme Court of Canada Strikes Down Prohibition against Physician-Assisted Dying in Carter v Canada: Part 1 (on stare decisis) and Part II (on s.7 of the Charter) – The Court Supreme Court of Canada Decision: Physician-assisted dying & the right to life, liberty and security of the person – Courthouse Libraries BC

R. v. Basov, 2015 MBCA 22 gave the Court of Appeal “an opportunity to review the case law from across the country to determine what sentences are being imposed in other jurisdictions” with respect to possession of child pornography under the Customs Act. The results of the review are attached as appendices to the decision, grouped by jurisdiction and prior record. The court found that 18 months was the highest sentence for an accused with no record, with the majority of sentences around one year. The highest sentence for an accused with a criminal record was 24 months, which made a sentence of 30 months for an accused with no record “outside the range of sentence for this type of offence.” (para. 30) Although a sentence outside the range is not an error if the circumstances support the higher sentence, in this case the court found that the sentencing judge erred in weighing the relevant factors, including the seriousness of the images and the fact that the accused would be deported upon release. The 30 month sentence was reduced to 20 months.

R. v. Whiteway (B.D.T.) et al., 2015 MBCA 24 - the court dismissed the conviction and sentence appeals of both accused convicted in the “execution style” murders of two teenagers following a dispute at a house party. The court described the shootings as “a despicable and senseless act of cold-blooded murder” and found nothing to justify appellate intervention. R. v. Dritsas (K.), 2015 MBCA 19 – the court considers the issues of parity, fines in lieu of forfeiture, and totality in this appeal of a sentence totaling 11 years for drug trafficking plus a fine in lieu of forfeiture of $162,000. On the issue of whether there must be direct evidence that the accused had received the proceeds of the crime for a fine to be imposed, the court found at para. 52 that some things are obvious, and “there is no duty on the Crown to take additional steps to try to obtain further proof that he actually received the money generated by these transactions.” R. v. Hyra, 2015 MBCA 17 – the court dismissed the accused’s appeal of the dismissal of his pre-trial motion to stay his criminal harassment charges for abuse of process, concluding that “there is no jurisdiction to entertain an appeal by an accused of an interlocutory proceeding or order prior to conviction.” R. v. Williamson, 2015 MBCA 16 - the court declined to overturn the accused’s convictions for driving while disqualified and flight from the police, finding that the trial judge was alive to the frailties of identification evidence and the dangers of convicting on the basis of a “fleeting glance.” R. v. Storheim (S.K.W.), 2015 MBCA 14 – the court dismissed the accused’s fresh evidence motion and conviction appeal and declined leave to appeal the eight month sentence for an historical sexual assault involving the grooming of young altar boys by the accused, a parish priest. R. v. Alexson (T.L.), 2015 MBCA 5 – this case gave the appeal court the opportunity to clarify the scope of police authority to enter private homes to deal with domestic violence situations. The court overturned the lower court decisions acquitting the accused of assaulting a police officer who had entered the accused’s home following a 911 hang-up call. “The justifiability of the officers’ conduct must always be measured against the unpredictability of the situation they encounter and the realization that volatile circumstances require them to make quick decisions,” said the court, and “(a)ssessing whether belligerent and intoxicated persons might harm other members of the household or might take out their anger against the officers is not governed by clearly defined rules. It is an exercise in discretion and judgment, often guided by experience. Second-guessing is not helpful.” R. v. H. (C.T.), 2015 MBCA 4 - the court dismissed the appeal of a young person convicted of multiple violent offences and sentenced under s. 72 of the YCJA to an effective adult sentence of 7 years to be served in a youth custody facility. The court focused on two factors (“the provision of a realistic framework for the offender’s rehabilitation and personal security and the need to provide protection to the public”) and concluded that “(g)iven the deficits described and the violence of the offences committed…a significant period of treatment in a highly structured environment” was required.

The “pull of bail” (the moral pressure brought to bear on an accused by the risk of forfeiture assumed by the surety) is essential to the functioning of the bail system and acts as a guiding principle in the court’s exercise of its discretion to grant relief from forfeiture according to the court in R. v. Tymchyshyn, 2015 MBQB 23, but “its effectiveness may be maintained by something less than full forfeiture in some cases.” In this case, where the surety was well aware of his duties and took them seriously, the court reduced the forfeiture from $100,000 to $75,000.

Retroactive or retrospective application of the Abolition of Early Parole Act to offenders sentenced after the repeal of the accelerated parole review process does not violate their s.7 and s.11(i) Charter rights according to the court in Nucci v. Canada (A.G.), 2015 MBQB 7. The court declined to follow the BCCA decision in Liang v. Canada (Attorney General), 2014 BCCA 190, finding that “(t)he Supreme Court of Canada in Whaling made it clear that the offenders’ expectation of liberty in relation to parole was based on the parole system that was in place at the time of sentencing, and not at the time of offence commission.” (para.35)

R v NG, 2014 MBPC 63 is purportedly the first reported decision to impose a custodial sentence under the Youth Criminal Justice Act on cyberbullying and sexual exploitation charges. Among other things, the court found that the psychological trauma suffered by the 14-year-old victim as a result of the cyberbullying campaign against her constituted “bodily harm” within the violent offense definition under the YCJA and allowed the court to impose a two year custodial sentence on the two accused youth. The court also noted that since 2012 deterrence and denunciation are both relevant factors in the sentencing of young persons and both applied here. The decision is discussed in the article Cyberbullying A Child Means Custody: Even For A Young Person, published on CanLll Connects.

The Protecting Canadians from Online Crime Act (Bill C-13), which received royal assent December 9, 2014, came into force March 9, 2015. 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, this CBA report on the bill, and these commentaries: Bill C-13: Lawful Access and the Relationship Between Organizations, Cyber-bullying and the Protection of Privacy Rights – SnIP/ITs Bill C-13: Cyberbullying Bill Introduces New Lawful Access Measures - Blakes

R v Fearon: Cell Phones, Privacy, and the Supreme Court in the Digital Age - this article from The Court discusses the majority and minority decisions in the recent SCC case dealing with warrantless cell phone searches. Canada's crime rate: Two decades of decline – the overall police-reported crime rate in Canada has been falling for more than 20 years according to this Statistics Canada Megatrends report. The trend is most notable for property crime, but also applies to violent crime and other offences. Convictions and Orders Under the Sex Offender Information Registration Act (SOIRA) – this post from The Stream discusses the legal framework governing SOIRA orders and clarifies when they apply. Breath Samples at Prom an Unreasonable Search – this Slaw post discusses the recent ONSC ruling in Simon Gillies et al v. Toronto District School Board, 2015 ONSC 1038, in which the court found the use of mandatory breathalyzers at a high school prom violated s. 8 of the Charter. Civil Recovery – this article criticizes the use of demand letters threatening to take legal action against shoplifters unless they pay the retailer’s costs and damages.

The Federation of Law Societies’ 2015 National Criminal Law Program will be held July 6-10, 2015 in Edmonton, Alberta. The conference theme is Evidence, Ethics and the Administration of Justice. On the faculty from Winnipeg are: The Hon. Justice Richard A. Saull (who will chair a panel on competence and compellability and participate in one on cell phone searches) and Ami Kotler (who will participate in a panel on right to counsel and a breakout session on third party suspects and inadequate investigations). For further details see the program schedule and registration.