The trial judge’s error concerning proof of colour of right and consequent finding that the accuseds’ s. 8 Charter rights had been violated tainted the acquittals on all charges and necessitated the ordering of a new trial in R. v. Simpson, 2015 SCC 40. The court had this to say on putting the colour of right defence into play: …an accused bears the onus of showing that there is an “air of reality” to the asserted defence — i.e., whether there is some evidence upon which a trier of fact, properly instructed and acting reasonably, could be left in a state of reasonable doubt about colour of right…. Once this hurdle is met, the burden falls on the Crown to disprove the defence beyond a reasonable doubt. (para. 32) In addition, “the evidential burden of showing an air of reality on colour of right is lower than the persuasive burden of establishing that s. 8 is engaged” said the court. “(A) finding that the respondents had a colour of right could only assist them in advancing the position that they had a subjective expectation of privacy. To engage s. 8, the respondents had to go one step further — they had to show that this expectation was objectively reasonable.” (para. 50)

Failing to assist the jury with a specific instruction on how to link evidence of concealment and clean-up of a death scene with the issue of intent was an incurable legal error according to the court in R. v. Rodgerson, 2015 SCC 38, necessitating a new trial on a charge of second degree murder. The court expressed concerns about “the proliferation of long and unnecessarily complex jury charges” (para. 40) and the need for trial judges to “strike a crucial balance by crafting…jury charge that (are) both comprehensive and comprehensible.” (para.50) In the court’s view, a few modest alterations (including the excising of “hours of confusing and repetitive generic instruction”) would have saved the charge from legal error. For commentary see: Criminal Law-Procedure-Charge or directions to jury – Maritime Law Book on CanLii Connects SCC offers guidance on trial judges’ jury instructions – Legal Feeds

Exercising the prerogative of mercy is a discretionary decision of the Minister, according to the Supreme Court in Hinse v. Cadnada (Attorney General), 2015 SCC 35, and those who challenge such decisions must prove bad faith or serious recklessness to succeed. In this case, the wrongfully convicted appellant, who was finally exonerated after repeated denials of his pleas for mercy over 30 years, was unsuccessful in his attempt to hold the AG for Canada accountable. The court found that the evidence did not support a finding that the Minister’s state of mind was such that he intended to harm the appellant or had knowledge of the adverse consequences his conduct would have. For commentary on the decision see: The King is Dead, Long Live the King: Hinse v. Canada (Attorney General), 2015 SCC 35 – Administrative Law Matters Have Mercy! Supreme Court Clarifies Mercy Power Under Criminal Code – Canadian Appeals Monitor Hinse v Canada: Incomplete Justice? – The Court

In R. v. Ibrahim, 2015 MBCA 62 and companion case R. v. Cook, 2015 MBCA 63, the Court of Appeal considers the differing judicial interpretations of s. 524(8) of the Criminal Code, revolving around the timing of orders of detention made under that section and affecting the calculation of credit for pre-sentence custody. According to the court, cancellation of a prior order of judicial interim release necessitates, by operation of law, an order of detention. Following an order of detention, an accused may choose to show cause why release is justified on a reverse onus basis. The court also found that the language of s. 719(3.1) requires an order of detention to become applicable, and that “the current practice of referring to the revocation process as resulting in a revocation order which has historically included an order of detention, is confusing and…should end.” (para. 8)

The court stresses the importance of addressing the potential immigration consequences of a criminal conviction in R. v. Ali, 2015 MBCA 64, an unsuccessful appeal of a nine-month prison sentence for dangerous operation of a motor vehicle causing bodily harm by a sympathetic first time-offender originally from Somalia but now a permanent resident of Canada. The court pointed out that no one at the sentencing hearing raised the issue of the consequences of a “serious criminality” conviction under s.36(1) of the Immigration and Refugee Protection Act (i.e. that a permanent resident may be declared inadmissible to Canada, subject to a removal order and ultimately lose their immigration status). The court noted at para.12 that: In a multi-cultural society such as Canada, who is, and who is not a citizen, can only be ascertained by direct inquiry. Our expectation…is that, in cases of “serious criminality,” counsel will, as a matter of routine, put an offender’s immigration status before the court as background information…. Failing that, the sentencing judge should inquire about an offender’s immigration status in cases of “serious criminality,” on his or her motion. For further information on the steps lawyers can take to avoid claims against them for failing to appreciate potential immigration consequences see these Avoid A Claim blogposts: Can a criminal conviction make your client inadmissible for residency/citizenship? and Immigration consequences of criminal convictions: An update.

R v Kuzyk (C), 2015 MBCA 85 - outlines the correct procedure for the suspension of a conditional sentence order (specifically, whether s.679 or s.683(5)(f) of the Criminal Code applies). R v Vandermeulen (M), 2015 MBCA 84 – the court stayed proceedings and overturned the accused’s convictions on several sexual assault related charges, finding that a 37-month delay in bringing the relatively simple matter to trial was unreasonable and breached the accused’s s.11(b) Charter rights. None of the delay was attributable to the accused. R v NG et al, 2015 MBCA 81 – the three year combined sentence imposed in R v NG, 2014 MBPC 63 (a recent case involving the cyber bullying and sexual exploitation of a 14-year-old girl) exceeded the two year single offence YCJA maximum according to the court, which substituted an 18-month custody and supervision order consisting of 12 months of secure custody, and six months of community supervision followed by six months of supervised probation. R. v. Glays, 2015 MBCA 76 – the appeal court set aside sexual assault convictions and ordered a new trial after finding that the trial judge had misapprehended the credibility evidence by applying a stricter and more critical level of scrutiny to the evidence of the accused than to that of the complainant. R. v. Locke, 2015 MBCA 73 – the trial judge in this case did not err in refusing to draw an adverse inference from the absence of physical evidence of sexual interference. The Crown has wide discretion to call witnesses or evidence and is under no obligation to call evidence it considers unnecessary as long as proper disclosure is provided. R. v. Walker, 2015 MBCA 69 – this decision considers the limited use of prior consistent statements to assess the credibility of a witness in the context of a complaint of historical sexual abuse. R. v. Flett, 2015 MBCA 59 - appeal allowed where trial judge refused an adjournment to allow the young offender to challenge a placement order to serve his sentence in a penitentiary. The appeal court found that the youth court judge misdirected himself on the law and failed to take into account the youth’s positive behaviour in the facility and the fact that he could be managed there. R. v. Fagnan, 2015 MBQB 144 – the court excluded blood samples taken from an accused whose Charter right to counsel was breached when the police officer, acting on the incorrect assumption that samples had to be taken within two hours of driving, waited only 20 minutes for return calls from lawyers before proceeding to take the sample. R. v. Seymour, 2015 MBQB 141 – the court stayed weapons trafficking charges after finding that the actions of the police in posing as hunters who needed parts to fix a damaged rifle amounted to entrapment. The court considers two elements of the law of entrapment: what constitutes inducement and the meaning of reasonable suspicion. Wiebe v. Bonnefoy et al., 2015 MBQB 118 – the court issued a writ of habeas corpus granting the appellant’s return to medium security at Stony Mountain Institution, finding that the procedure used to upgrade him to a maximum security risk was not fair and the decision based on it was void. R. v. Willis, 2015 MBQB 114 – the court found that excluding murder from the application of the statutory defence of duress does not violate s. 7 of the Charter. The exclusion is founded on the importance of the sanctity of life and no just society can excuse murder as a morally involuntary choice, according to the court. In an earlier decision the court dismissed the accused’s challenge to the voluntariness of his murder confession. R. v. Hansell, 2015 MBQB 109 – the court imposed a sentence of 26 months’ imprisonment on a 19-year-old accused convicted of dangerous/impaired driving causing death. Inattention due to texting while driving was a significant causative factor. R. v. Marcelin, 2015 MBQB 98 – the court could not condone the serious breach of the accused’s Charter rights when he was arrested “in a precipitous manner on the vague tip of an informant which was not corroborated.” As a result, evidence fatal to the Crown’s case was excluded. R. v. Frost, 2015 MBQB 96 – the court considers the meaning of “position of trust or authority” and “exploitive relationship” in s.153(1) of the Criminal Code, and finds a 48-year-old man who had consensual sexual relations with a 17-year-old girl employed by his wife guilty of sexual exploitation under the section.

Federal Several sections of the Common Sense Firearms Licensing Act, S.C. 2015, c. 27, came into force September 2, 2015 by Order in Council: P.C. 2015-1171 and P.C. 2015-1172. Sections 45, 46(3), 46(2), 46(4) to (7), 47, 48(1) and (2), 49(2), 50, and 51 of the Victims Bill of Rights Act, S.C. 2015, c.13, came into force July 23, 2015, by Order in Council: P.C. 2015-846. Sections 2-19 of the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23 came into force July 16, 2015. Part 3 of the Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, came into force July 16, 2015 by Order in Council: P.C. 2015-1073, affecting the Criminal Code, the Prisons and Reformatories Act, and the Youth Criminal Justice Act. Bill C-2, An Act to amend the Controlled Drugs and Substances Act, and Bill C-26, the Tougher Penalties for Child Predators Act, both received royal assent June 18, 2015. Bill C-51, the Anti Terrorism Act, 2015, received royal assent June 18, 2015. Part 5 came into force July 1, 2015 affecting the Immigration and Refugee Protection Act, and ss. 2 to 8 and 11 to 13 came into force August 1, 2015. Private member’s Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons) received royal assent June 18, 2015 and came into force 30 days later. Bill S-7, the Zero Tolerance for Barbaric Cultural Practices Act, received royal assent June 18, 2015. As noted above, Part 3 came into force July 16, 2015. Manitoba Sections 56 to 66, 69 to 77, 90, 91(1)(e) and (f), and 104 of The Police Services Act were proclaimed in force effective June 18, 2015. The amendments establish the independent investigation unit into police officer conduct and allow for the appointment of civilians to monitor the investigations.

Prison law reform – this National blog post discusses four resolutions concerning prison reform put forward by the CBA’s Committee on Imprisonment and Release. The resolutions deal with overuse of solitary confinement, health care for federal offenders, access to counsel, and programs for aboriginal offenders. Expert Witnesses – this Slawtips post offers tips on finding and qualifying expert witnesses. Guidance on disclosure requirements for search warrants welcomed – this Law Times article discusses R. v. Crevier, 2015 ONCA 619, in which the Ontario Court of Appeal explains how to apply the Garofoli step six procedure to search warrants. An Age of Facts? R. v. Smith, 2015 SCC 34 and What Were They Smoking? - these blog posts discuss the Supreme Court finding in R. v. Smith, 2015 SCC 34, that a medical access regime that only permits access to dried marihuana unjustifiably violates the guarantee of life, liberty and security of the person contrary to s. 7 of the Charter. R v Tatton: The Confounding Distinction between Specific and General Intent – this article from The Court discusses the Supreme Court’s decision in R. v. Tatton, 2015 SCC 33, clarifying when a self-induced state of intoxication can negate intent.

Self-Represented Litigants Series in the Criminal Law Context: Tips for Defence Counsel – Self- represented litigants raise issues for all players in the justice system, particularly defence counsel, who must consider such issues as when to bring a Rowbotham application or a motion under s. 486. Learn the do’s and don’ts of dealing with SLRs from an expert panel at this lunch hour program on December 1, 2015. Register to attend in person at the Law Society classroom or by individual or group tele-presentation.