The Supreme Court issued an oral judgment in R. v. Neville, 2015 CanLII 71798 (SCC), setting aside second degree murder and attempted murder verdicts and ordering a new trial due to the trial judge’s unclear instructions on the jury’s question concerning the distinction between “to kill” and “to murder.” Instead of clarifying the nature of the concern and then addressing it, the judge merely referred the jury to his written instructions, an error which may have had an effect on the verdicts, according to the court. These articles shed light on the SCC deliberations and on the Court of Appeal decision: Live from the Supreme Court of Canada: Steven Michael Neville v The Queen- The Court R. v Neville: Responding to jury questions - CBA

The review provisions of BC’s roadside suspension scheme (allowing police to sanction drivers for impaired driving at the side of the road on the basis of a portable breath device test) offer reasonable protection against abusive exercise of the state power to intrude on the individual’s private sphere, according to the Supreme Court in Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 (para. 109). The court also found, however, that the breath sample seized under the scheme in effect at the time was contrary to s. 8 of the Charter. Companion case Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, deals with the scheme as it was subsequently amended to address the s. 8 violation. In this case, the court rejected the accused’s argument that the ASD result alone could not provide the officer with the reasonable grounds required by s. 215.41(3.1) and that the officer was also required to point to other confirmatory evidence of impairment. The court concluded: Roadside driving prohibitions are an important tool for confronting and reducing the devastating effects of impaired driving. Courts have repeatedly held that driving prohibitions serve the twin purposes of increasing highway safety and deterring impaired driving…. Allowing the police to rely on ASD test results is critical to the fulfilment of these objectives….. ASD testing provides an immediate, efficient tool for assessing whether an individual’s ability to drive is affected by alcohol. It establishes a common standard for removing drivers from the road who pose an elevated risk to others. It also serves to deter drunk driving (paras. 37 and 40). These articles discuss the decisions: Impaired Driving and Approved Screening Devices - ABlawg Wilson v British Columbia: A Clear-Cut Ruling to Save Lives and BC’s Latest Scheme to Deter Drinking and Driving Largely Upheld in Goodwin – The Court SCC upholds B.C.’s automatic roadside suspensions regime – Legal Feeds blog Top court warns fairness a must in roadside driving suspensions – Lawyers Weekly

The Court of Appeal reduced the accused’s combined 105 month sentence (arising from guilty pleas to 10 child pornography and sexual offences) to 87 months in R v GJM, 2015 MBCA 103, finding that the sentencing judge erred in her application of the totality principle in the circumstances of this case. The court found that the judge’s “small reduction” for totality did not achieve proportionality, given the absence of the more egregious behaviour and aggravating factors typically found in this type of case and the fact that the accused was a first time offender who pled guilty. The court declined to consider a new argument raised by the accused concerning the constitutionality of s. 719(3.1) of the Code, since this issue is currently before the Supreme Court.

In R v Roulette, 2015 MBCA 102, the court upheld the conviction and one-year sentence of a woman found guilty of obstructing justice and contravening a detention order by enlisting a friend to send Facebook messages to the victim designed to dissuade him from testifying against her in their domestic dispute matter. “Attempting to obstruct the course of justice by dissuading a witness from testifying is a serious matter striking at the integrity of the justice system that must be denounced and deterred through a meaningful prison term…,” said the court, and “…a one-year sentence for what amounts to witness tampering without a threat, while towards the high end of the range, cannot be said to be demonstrably unfit given the accused’s complete disregard of the judge’s direction not to communicate with the complainant.” (para. 9)

R v Rhodes (KHC), 2015 MBCA 100 – the court found no factual foundation to support a finding of probable miscarriage of justice and therefore declined to consider the accused’s argument that counsel at his second trial was incompetent. The sexual assault conviction was affirmed. R v Saunders, 2015 MBCA 98 – the court upheld a 12-month impaired driving sentence despite finding that the sentencing judge erred in considering an irrelevant factor (at trial the judge found no causal connection between the impaired driving and the death of an individual run over by the accused, yet considered the accident an aggravating factor when imposing sentence). R v Beaulieu, 2015 MBCA 90 – this appeal raises several issues concerning sentencing for breaches of conditional sentences, including what factors the court can consider when exercising its discretion to apportion suspended time back to the running of an offender’s CSO (s. 742.6(16)), and when the court should exercise its discretion under s. 742.6(14) to credit time towards the running of the CSO for unreasonable delay in executing a warrant.

These Court of Queen’s Bench decisions all involve voir dire rulings on admissibility: R. v. Jolicoeur and Houston, 2015 MBQB 170 - this decision considers the admissibility of evidence obtained by the police after stopping and searching a vehicle driven by a former police officer with gang associations. The judge conducts an analysis of allegations the police breached the ss. 8, 9 and 10(b) Charter rights of the accused. Although certain breaches were found to exist, the court declined to exclude the evidence seized, since admitting it would not bring the administration of justice into disrepute (s.24(2)). R. v. Woodford, 2015 MBQB 168 - the court permits the Crown to introduce evidence of three prior assault convictions and two breaches of non-contact orders pertaining to the victim, finding that the probative value of the proposed evidence in this second degree murder case exceeds the potential prejudicial effect. R. v. Corlett, 2015 MBQB 155 – what took place in the lead up to and search of the residence in this drug case “did not amount to implied consent to entry into a private dwelling,” according to the court at para. 38.

The Restorative Justice Act was proclaimed in force November 16, 2015. As noted in the explanatory note, the new legislation promotes the development and use of restorative justice programs in Manitoba. It requires the Department of Justice to develop policies respecting the use of restorative justice programs and establishes a council to advise the government on design and implementation of such programs. This November 18, 2015 news release highlights aspects of the government’s 5 year restorative justice strategy and provides a link to background information on the new Restorative Justice Advisory Council.

Legal Aid Manitoba recently issued Notice 28-2015, concerning its Access to Justice Initiative (25-2014) and the use of Agreement to Pay contracts.

The brain, guilt and public safety - A look at neuroscientific evidence in Canadian criminal proceedings – this Lawyers Weekly article examines the growing use of neuroscientific evidence in Canadian criminal cases and highlights patterns in the way this evidence is affecting outcomes. Court approves police search of cell phone used in teacher parking lot drug deals – this BLG article reviews the Supreme Court test (R v Fearon) for police searches of cell phones and examines how it is applied in R v. Jones, 2015 SKPC 29, a recent Saskatchewan case involving teenage drug dealers. Anti-Corruption Course Book - the CBA Anti-Corruption Team sponsored and contributed to this first course book of its kind on anti-corruption, a comprehensive account of the historical, social, economic and political dimensions of corruption. The book also compares US, UK and Canadian anti-corruption regimes. Warrantless search upheld in drug case – the author of this Lawyers Weekly article questions whether the use of warrantless home searches in drug cases is on the increase.

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. ReelTime CLE Seminars are back by popular demand on November 23-24, 2015, with a series of four sessions featuring movies raising common ethical and professional dilemmas faced by lawyers and the corresponding toll they can take on a lawyer’s mental health and physical well-being: Wrestling with Ethical Dilemmas (on juggling the demands of practice); Don’t Let the Jokers Drive you Batty! (on dealing with difficult people); Practising “Dirt Law” and Keeping your Nose Clean (on the stresses of practising real estate law); and Wellness in Reel Life (practical guidance on self-care). Register for two or more sessions and save. The Aboriginal Law Series continues on December 8, 2015 with a primer on Understanding Treaties. Panelists will explore the current legal framework around treaty making and treaty interpretation in Canada, navigating between pre-confederation and post-confederation treaties, modern treaties and those treaties currently being negotiated. Register now to attend in person or by tele-presentation. The Law Society is bringing back popular presenter Martin Latz for two limited enrollment programs in December: GAIN THE EDGE!® Negotiation Strategies for Lawyers on December 3, 2015 and Advanced Negotiation Strategies for Lawyers on December 4, 2015.

The Manitoba Review Board: NCR and Unfit Accused – John Stefaniuk, chair of the Manitoba Review Board, will discuss the board’s role in dealing with accused who are found to be not criminally responsible (NCR) or unfit to stand trial, the implications of such a finding, and the standards by which the board makes its decisions at this section meeting on December 11, 2015. Access to Justice / Legal Services for Manitoba Children and Youth – At this December 10, 2015 lunch program four speakers will reflect on the barriers and challenges faced by Manitoba’s aboriginal youth in accessing justice/legal services, and highlight examples of innovation and opportunity in this area.

Mark your calendars to attend the MBA’s 2016 Mid-Winter Conference which will take place January 21-23, 2016 at the Fairmont Hotel.

The CBA’s National Criminal Justice Conference, Anatomy of a Trial, will take place April 9, 2016 in Vancouver, BC. Panellists, including the Honourable Justice Moldaver of the Supreme Court of Canada, will offer pointers on all aspects of preparing for and conducting trials.