In a split decision in R. v. Nur, 2015 SCC 15, a majority of the Supreme Court struck down the mandatory minimum 3 and 5 year sentences for possession of a loaded prohibited firearm imposed by s. 95(2)(a) of the Criminal Code. The court found that the broad reach of s.95, which “foreseeably catches licensing offences which involve little or no moral fault and little or no danger to the public,” creates a “‘cavernous disconnect’ between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment” and thus contravenes the s.12 Charter right not to be subjected to cruel and unusual punishment (para 83). The majority’s view on how mandatory minimums affect the crafting of proportionate sentences is expressed as follows: Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. (para. 44) These articles discuss the impact of the decision: R v Nur: The Battle of Two Approaches to Challenging a Mandatory Minimum Sentence Under s. 52 of the Constitution Act, 1982, The Court Bar renews call for safety valve after mandatory minimum ruling, Lawyers Weekly The future of mandatory minimums , How hypothetical is ‘hypothetical’?, Reasonable hypotheticals & prosecutorial discretion and Can a reasonable hypothetical offender be Aboriginal?, Policy Options SCC ruling: turning point for Ottawa's tough-on-crime laws, Advocate Daily No Empirical Evidence, National

In R. v. Araya, 2015 SCC 11, the Supreme Court considers the proper approach for an appellate court to take when reviewing the adequacy of a trial judge’s jury instructions. The court notes that the standard for jury instructions is not perfection and endorses taking a broad approach to examining alleged errors: Parsing the language in one particular sentence to determine whether it was sufficient to warn of an impermissible line of reasoning, without taking into consideration the greater context of the jury instructions and the trial itself, represents the kind of dissection and minute scrutiny this Court warned against in Cooper (para. 52).

The Court of Appeal dismissed the conviction and sentence appeal of a doctor found guilty of sexually assaulting a 15-year old patient in R. v. Abdelhamid (W.A.), 2015 MBCA 35. The court found that the trial judge had not erred in admitting a partial videotaped interview of the complainant or in assessing its reliability, but did add as an aside that it would have been preferable and a better practice for the police to have recorded their pre-interview assessment of the complainant. The court was also satisfied with the trial judge’s W.(D.) analysis and her finding that a secondary transfer of DNA evidence was not a realistic proposition.

The trial judge conducted a balanced assessment of the mitigating and aggravating factors before imposing an adult sentence of 10 years’ imprisonment on a young person convicted of breaking into the victim’s home and sexual assaulting her, according to the Court of Appeal in R. v. Anderson, 2015 MBCA 30, but erred in using a 15 year adult sentence starting point to arrive at the sentence. This approach tainted the judge’s reasoning on sentence, allowing the appeal court to reconsider the matter and to vary the term of imprisonment from ten years to eight years.

In R. v. Merriman-Johnson, 2015 MBQB 54, the court granted, in part, the accused’s motion to be tried separately with respect to some of several allegations of sexual assault dating back many years and involving six separate mentally disabled young complainants under his supervision in a care home. The accused provided cogent reasons in support of his decision not to testify with respect to four of the six complainants. The court found that, although most factors favoured one trial, there would be great prejudice to the accused if he were to be subjected to cross-examination on counts on which he had no intention of testifying.

The primary issue in Re Dew, 2015 MBQB 40 was whether the accused was entitled to access the relief from forfeiture provisions of the Controlled Drugs and Substances Act, given that the property in question was registered solely in his name and he had been acquitted of the one drug charge committed in relation to that property. His wife, who was previously on title, was convicted of selling cocaine on the property. After outlining and canvassing the factors relevant to third party relief from forfeiture applications (including the issue of complicity), the court denied the accused’s application and declined to exercise its residual discretion given the accused’s substantial criminal record and criminal associations.

The Supreme Court of Canada issued a news release in March concerning updates to its Policy for Access to Supreme Court of Canada Court Records. The revised policy details changes in the court’s practice since the original policy was issued in 2009. The Provincial Court of Manitoba is amalgamating its Youth PTC dockets effective June 2, 2015, as described in this March 18, 2015 notice from Acting Chief Justice Janice leMaistre.

Legal Aid Manitoba recently issued Notice 27-2015, which indicates that, in keeping with their new governance model that emphasizes accountability and transparency, they have posted three manuals online (a taxation manual, approved February 25, 2015; an area directors’ manual; and a corporate directors’ manual). Also noted are amendments to Regulation 225/91, following the registration of Regulation 284/14.

R v Grant: The Tale of Two Tests – this article discusses the competing tests for admission of unknown third party evidence and the MBCA and SCC decisions on this issue in the Grant case. How Long is too Long? R v Sanghera and s. 11(b) of the Charter – this article discusses the Supreme Court and Court of Appeal decisions in R v Sanghera, and what they have to say about unreasonable delay and who should bear the responsibility for it. Solitary on the spot – this Lawyers Weekly article, written by associate dean Debra Parkes, discusses two recently filed constitutional challenges to the practice of administrative segregation in Canadian prisons.

Register now to attend the following June continuing professional development programs: Bail, Sentencing and other Considerations for Persons in Custody - Judge Timothy Killeen will chair a panel of Crown and defence counsel who will give their best tips on bail applications, conditions on release, elections, entering a plea, principles on sentencing and ethical considerations. The program takes place June 11, 2015, from 4:00 to 6:00 pm in the Law Society classroom. The registration fee includes materials and a light supper, and students are offered a 50% discount. FASD and other Cognitive Challenges: What Lawyers Need to Know – Knowledgeable presenters (including a psychologist, a geneticist, a speech therapist and a representative of the FASD youth justice program) will discuss the most effective and ethical ways to assist clients diagnosed with FASD at this afternoon session on June 15, 2015. The program takes place from 12:15 to 4:45 pm in the Law Society classroom. New Language Rights Rule in Code of Professional Conduct – Acting Associate Chief Justice Marianne Rivoalen will moderate a panel examining the impact of the new language rights rule and commentary approved by the Benchers for incorporation into the Code of Professional Conduct. The program takes place on May 28, 2015, from noon to 1:30 pm in the Law Society classroom. Attend this session to learn more about your ethical and professional obligations to protect your clients’ language rights.