Intoxication short of automatism is not available as a defence to a general intent offence such as arson, according to the Supreme Court in R. v. Tatton, 2015 SCC 33. The actus reus of the offence of arson is the damaging of property by fire, said the court. The mental element is the intentional or reckless performance of the illegal act, and no additional knowledge or purpose is needed. The court set aside the acquittal and ordered a new trial, finding that the trial judge’s critical findings of fact were tainted by his belief that self-induced intoxication was relevant to the issue of intent. This Legal Feeds post discusses the decision.

The private use defence to child pornography is not available if the youths involved were sexually exploited in the making of the images, according to a unanimous Supreme Court in R. v. Barabash, 2015 SCC 29. The court clarifies the elements of the private use exception and examines the role exploitation plays in determining the lawfulness of recorded sexual activity. This cannot be considered in isolation, according to the court at para. 53, and “(w)here the Crown seeks to rely on s.153 to negate the legality of the sexual activity depicted, the judge must also determine whether it occurred in the context of an exploitative relationship. If so, the sexual activity is not lawful, and the private use exception does not apply.” In this case, the trial judge failed to consider the extent to which the two older accused men may have exercised control over two vulnerable, deeply troubled and runaway 14-year-old girls. A new trial was ordered.

In its controversial ruling in R. v. Kokopenace, 2015 SCC 28, a majority of the Supreme Court overturned an ONCA ruling that the Ontario government undermined public confidence in the integrity of the justice system by violating the accused’s Charter rights in failing to ensure adequate aboriginal representation on his jury. The Supreme Court majority took a circumscribed view of representativeness, finding that it “focuses on the adequacy of the jury selection process (but)…does not require the state to ensure that any particular perspective is represented on the jury roll, nor does it require the state to ensure that its source lists proportionately represent all groups that are eligible for jury duty. It follows that the test to determine whether the state has complied with its representativeness obligation focuses on the process used throughout jury selection as opposed to the ultimate composition of the jury roll.” (para.59). The minority disagreed, concluding at para. 304 that: This Court has repeatedly referred to the systemic discrimination against Aboriginal people in the criminal justice system. The unintentional yet substantial under-representation of members of that race from the jury roll inevitably, in my view, casts a long shadow over the appearance that justice has been done. It seems to me that the Court should not, on one hand, direct other courts to take these social realities into account while, on the other, choosing to ignore these same realities when they confront us in an awkward context. In my view, it could not be clearer that, as a result of state action and inaction, persons of the accused’s race were substantially under-represented on the jury roll. As these commentaries reflect, response to the decision has been polarized: Majority Decision Disappointing for Equality Rights in the Criminal Justice System – Nation Talk SCC ruling on juries is the right decision – Advocate Daily Majority Decision Disappointing for Equality Rights in the Criminal Justice System – LEAF Aboriginals not entitled to ‘representative’ jurors, SCC rules – Legal Feeds Opportunity to serve trumps ultimate jury composition – Lawyers Weekly

The Supreme Court provides guidance on the application of s. 515(10)(c) of the Criminal Code in R. v. St-Cloud, 2015 SCC 27, in particular, the circumstances in which pre-trial detention of an accused is necessary in order to maintain the confidence of the Canadian public in the administration of justice (the tertiary ground). In the court’s opinion, this ground for detention has been unduly restricted by some courts, and is not necessarily limited to exceptional circumstances..(or) to the most heinous of crimes (para.5).The court summarizes the essential principles that must guide justices in applying s. 515(10)(c) at para. 87 and concludes at para.88 that “if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.” The decision has generated a lot of discussion: Lawyers predict more overcrowding after St-Cloud – Law Times Judges in a (St) Cloud – Canadian Lawyer Avoid Cloudy Thinking: The Tertiary Grounds For Detention and the YCJA - This CanLii Connects article addresses how St-Cloud will affect youth detention. Every St Cloud Has a Silver Lining  – CanLii Connects

R. v. Sidwell (K.A.), 2015 MBCA 56 – the court considers the applicability of the totality principle to expired sentences and the use of sentencing precedents in child sexual abuse cases. On the latter issue the court concludes “that regardless of whether the charge is one of sexual interference or sexual assault, the jurisprudence indicates that the starting point is four to five years for the major sexual assault of a child when in a position of trust, assuming that the accused is a mature person with no criminal record and prior good character.” (para.49) Hyra v. Manitoba et al., 2015 MBCA 55 – the court dismisses an appeal from a decision striking out a claim for negligent prosecution, finding that there is no cause of action in negligence against an individual Crown prosecutor for non-disclosure during criminal proceedings. R. v. Hardy (S.R.), 2015 MBCA 51 – this case raises the issue of the allocation of the legal and evidential burdens between the accused and the Crown where an accused requests a Charter remedy for an arbitrary detention on a warrantless arrest. The accused argued that the decision to detain him overnight was not based on his level of intoxication, but was intended as punishment for the fact that he refused to provide a breathalyzer sample. The court found that, while a Crown evidential burden may become engaged in the course of a s. 9 application, the ultimate burden of proving the breach remains on the accused. In this case, where there were credibility issues and a lack of evidence from the accused, the court found that the overnight detention was not unreasonable. R. v. Johnson, 2015 MBCA 50 – the appeal court reduced a sentence for bank robbery from 7 plus years to 4 years 9 months, finding, in part, that treating the use of an imitation firearm as an aggravating circumstance in the robbery and also sentencing for the use of an imitation firearm in the same robbery justified appellate intervention. R. v. Dick (K.D.), 2015 MBCA 47 – the court declined to reduce a 7 year sentence for manslaughter despite finding that the trial judge erred in applying Gladue at the end of the sentencing process and in not permitting the accused to speak to the issue of whether his written statement (which his lawyer helped prepare) was a deliberate attempt to mislead. R. v. Burdett, 2015 MBQB 69 and R. v. Burdett, 2015 MBQB 77 – these decisions involve the conviction and sentencing of the accused for impaired driving of an all terrain vehicle resulting in the death of one of the passengers. The accused was sentenced to 21 days’ incarceration; 2 years supervised probation; 60 hours of community service work; and a one-year driving prohibition. R. v. Fenske, 2015 MBQB 81 – the accused was acquitted due to the court’s finding that the Crown was not permitted to rely on the certificate of analysis from a breathalyzer test taken after an unexplained delay of 25 minutes (while the accused was transported to an RCMP station in Carmen rather than breathalyzed at a municipal police station).

Bill C-32, the Victims Bill of Rights Act, received royal assent April 23, 2015. Sections 1 to 44 and 52 to 54 come into force on July 22, 2015, 90 days after receiving royal assent. Details on the new legislation can be found in the backgrounder, the legislative summary, and in this CBA commentary on the bill. Bill C-479, An Act to Bring Fairness for the Victims of Violent Offenders, received royal assent and came into force April 23, 2015. Bill C-44, the Protection of Canada from Terrorists Act, received royal assent and came into force April 23, 2015, amending the Canadian Security Intelligence Service Act. Changes to CSIS are detailed in the backgrounder and legislative summary. Bill C-51, the Anti-terrorism Act, 2015, giving CSIS the mandate to disrupt terror plots in the planning stage, passed in the House of Commons on May 6, 2015, and is now in third reading before the Senate. This backgrounder on C-51 and C-44 (published on SSRN by two law professors) and the consolidated version of the amendments raise legal doubts about the new powers.

The Court of Appeal issued a Notice of Filing Timeline Discontinued on May 28, 2015, confirming that the individualized Notice of Filing Timeline document developed when the Court of Appeal Criminal Rules were amended in 2010 will be discontinued and no longer circulated. A link to the July 1, 2010 summary of the Requirements for filing and serving documents – Criminal Rules is available on the Court of Appeal website. By Practice Direction issued May 27, 2015, the Court of Queen’s Bench confirms that the moving party must contact the Exhibit Officer to ensure that exhibits filed at the bail hearing in Provincial Court are available to the review court. This Provincial Court notice confirms that, due to low numbers, two youth PTC dockets were amalgamated effective June 2, 2015. Digital Audio Recordings Access - this Provincial Court notice confirms that, as of April 13, 2015, members can access digital audio files of the Domestic Violence Bail Court from their offices before noon the next business day.

False premise: How the veracity of confessions affects confirmatory evidence – in this Lawyers Weekly article a psychologist discusses the difficulties associated with evaluating confirmatory evidence of voluntary confessions. Appeal court raps jury over inconsistencies – this Lawyers Weekly article comments on the Ontario Court of Appeal decision on inconsistent verdicts in R. v. Al-Kassem, 2015 ONCA 320 and its implications for indictment drafting. Bill S-7 — Zero Tolerance for Barbaric Cultural Practices Act - this paper (a submission to the Senate Human Rights Committee on Bill S-7) contains the comments of various CBA sections on the legal concerns raised by the bill, currently at the report stage and purportedly fast tracked for approval this session. Bill C-35 — Justice for Animals in Service Act (Quanto's law) – this Criminal Justice section letter to the chair of the committee on Justice and Human Rights opposes certain provisions of Bill C-35 adding new mandatory consecutive sentences to s.270 of the Criminal Code, dealing with assaults on law enforcement officers. The bill was reported without amendment on May 6, 2015. Stereotypes continue to arise in sexual assault cases - this Law Times commentary presents opposing views on whether some judges continue to rely on stereotypes in sexual assault cases.

Bail, Sentencing and other Considerations for Persons in Custody - Judge Tim Killeen will chair a panel discussing what Crown and defence counsel need to know about bail applications and sentencing hearings on June 11, 2015, from 4:00 - 6:00 pm at the Law Society classroom. Students receive a 50% discount on their registration fees. FASD and other Cognitive Challenges: What Lawyers Need to Know – Judge Mary Kate Harvie and an expert panel will discuss how FASD and other cognitive challenges impact communication and behaviors and identify ethical issues arising in cases where an FASD diagnosis is a factor at this afternoon session on June 15, 2015. The program takes place from 12:15 - 4:45 pm at the Law Society classroom.