After reviewing the principles applicable in sentencing those convicted of impaired driving causing death, the majority in R. v. Lacasse, 2015 SCC 64 restored the six and a half year trial sentence which the Quebec Court of Appeal had found to be outside the established sentencing range. “(A)lthough ensuring parity in sentencing is in itself a desirable objective,” said the court, “the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded” and “(t)he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation.” (para.58) The court also noted that the objectives of deterrence and denunciation are particularly relevant to offences that might be committed by ordinarily law-abiding people, such as impaired driving. In addition, the court found that the trial judge had not erred in considering the frequency of impaired driving offences in his region when determining the deterrent sentence.

In R. v. Appulonappa, 2015 SCC 59, the court found the former s. 117 of the Immigration and Refugee Protection Act (making it an offence to “organize, induce, aid or abet” the coming into Canada of people in contravention of the IRPA) to be unconstitutional, insofar as it “permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members.” (para.5) The court read the overbreadth down to bring the section into conformity with the Charter, however, and remitted the charges against the organizers of the people smuggling venture to trial.

Sections 130(1)(a) and 117(f) of the National Defence Act (which extend the jurisdiction of military tribunals in relation to all underlying federal offences) are not overbroad and do not offend s. 7 of the Charter, according to the Supreme Court in R. v. Moriarity, 2015 SCC 55. The court found that prosecution under military law of members of the military engaging in the full range of conduct covered by these sections is rationally connected to the maintenance of discipline, efficiency and morale, regardless of the circumstances of the commission of the offence. This post from The Court examines the case in more detail.

Nucci et al v Canada (Attorney General), 2015 MBCA 122 - in line with Court of Appeal decisions from Ontario and BC, the Manitoba Court of Appeal has ruled that the retrospective abolition of the accelerated parole review process infringes s. 11(i) of the Charter and cannot be saved by s.1. R v Racca, 2015 MBCA 121; R v Tran (A), 2015 MBCA 120; and R v Peters, 2015 MBCA 119 – these appeals all consider the adequacy of conditional or suspended sentences for cocaine trafficking. The common issue raised in the appeals is whether there were “exceptional circumstances” warranting a departure from the established sentencing range. In Racca, where the 50-year-old accused was engaged in mid-level commercial trafficking of a highly addictive hard drug, the court found the conditional sentence to be “clearly inadequate” and substituted a 36 month sentence; in Tran, on the other hand, the court found it would be counterproductive to send the youthful and immature young offender with no prior involvement to jail, let alone a penitentiary term. Finally, in Peters, where the appeal turned mainly on the applicability of the Gladue-Ipeelee principles, the court upheld the trial judge’s restorative justice approach. R v Hanslip, 2015 MBCA 114 – the court provides guidance on applications for production of records under s.278 of the Code. In this case, the order requiring the Agency to produce records concerning its investigation of child abuse allegations was quashed. R v Fenske (HB), 2015 MBCA 113 - Crown granted leave to appeal on whether the appeal judge erred in overturning the trial judge’s finding that the accused’s breathalyzer tests were administered as soon as practicable. This raises the included or additional issue of whether the appeal judge erred in finding that the trial judge reversed the burden of proof by finding that there was no evidence that a technician was available at a closer police detachment and thereby incorrectly placed the onus on the accused. R v Dilk, 2015 MBCA 111 - leave to appeal granted on whether the appeal judge erred in misapprehending the evidence and in finding that the accused had a lawful excuse for breaching a prevention order (due to a period of acquiescence in which the terms of the agreement were loosely interpreted). R. v. Gordon, 2015 MBQB 196 – considers the circumstances under which the court can order a fine in lieu of forfeiture under s.462.37 of the CCC.

Given the relatively small number of reported decisions involving impaired driving by drugs, R. v. Manaigre, 2015 MBPC 56, is instructive. The decision “sets out the law with respect to impaired driving by drugs and then spends some time outlining the evidence of the drug evaluator who conducted the tests and the evidence of the forensic toxicologist who provided opinion evidence as to the physical and psychological effects of marijuana.” (para. 2). Ultimately, despite his own evidence that he had consumed and felt the effects of the drug, the accused was acquitted, as the judge was not satisfied beyond a reasonable doubt that his ability to drive was impaired.

Legislative Update In Force The Safer Roads Act (Drivers and Vehicles Act and Highway Traffic Act Amended), S.M. 2015, c. 39 was proclaimed in force December 1, 2015. It amends The Drivers and Vehicles Act to require reporting of serious driving offences and to make explicit the registrar’s power to suspend licences and to delegate duties. It also amends The Highway Traffic Act concerning the time and conditions for licence suspensions. Further details can be found in this news release. Section 5 of The Highway Traffic Amendment Act (Enhancing Passenger Safety), S.M. 2013, c. 50, came into force December 1, 2015, enhancing the requirements for wheelchair vehicle restraints. This news release summarizes the changes. Introduced Bill 10, The Criminal Property Forfeiture Amendment Act, introduced December 1, 2015, amends the Act to change the standard of proof required for granting interim orders to prevent the sale or movement of property that is the subject of forfeiture proceedings. Other amendments are summarized in the explanatory note and news release.

The Court of Appeal issued a notice entitled Directive Regarding Appeal Proceedings Involving Allegations of Ineffective Counsel in First Instance on January 15, 2016. The directive sets out the proper process for dealing with the issues raised in such appeals and for involving counsel in first instance. The Court of Queen’s Bench issued two practice directions on December 7, 2015: Exhibits on Bail Reviews in Court of Queen’s Bench (requiring certain documents to be filed on bail review and revoking a previous practice direction) and Scheduling of Trial Dates in Criminal Matters (requiring trial dates to be set at the first pre-trial conference and within fixed deadlines). Both directions came into effect immediately. The Provincial Court issued three notices on January 6, 2016: Defence Brought Forward Procedures for In Custody Matters (changing the process for such requests); Afternoon Assignment Court (Pilot Project) (implementing a pilot Tues-Thurs afternoon assignment court for dispositions and special bails); and Disposition Dockets (introducing changes to scheduling of sentencing matters in courtrooms 303 and 308).

Criminal Defence Advocacy Skills Workshop – this all-day workshop on March 19, 2016, will focus on pre-trial considerations (building your case theory) and mastering the skill of cross-examination. Enrollment in this popular program is limited, so register early to confirm your spot. Recently called lawyers receive special pricing. Aboriginal Law Series – this series continues with upcoming programs on Section 91(24): The Evolution of Federal Jurisdiction and Implications for Provincial Governments on February 1, 2016 and Urban Reserves as a Tool for Economic Development, on March 16, 2016. The series will wrap up with a unique opportunity to explore Indigenous Legal Traditions at Turtle Lodge on Sagkeeng First Nation. Mindfulness Based Stress Reduction for Lawyers – Stress is an inevitable part of the practice of law and it can lead to anxiety and behaviours that are counter-productive. Learn how to target the mind-body impact of stress at this February 29, 2016 lunch meeting, to be held in the Law Society classroom.

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. For further information see the agenda and registration information.