In R v Kovich (GW); R v Bittern (CN), 2016 MBCA 19, the Manitoba Court of Appeal considers an issue that courts across the country have been unable to agree on: the constitutionality of the exemptions to enhanced credit for pre-sentence custody relating to revocation of bail and prior criminal record. The court concludes that the two exemptions constitute an unjustifiable infringement of s. 7 of the Charter for two reasons: First, the exemptions subject identically-placed offenders to different periods of imprisonment (depending on whether they are able to obtain bail) for reasons that are not relevant to the determination of a proportionate sentence, thereby interfering with the principle of proportionality in the sentencing process, which is a principle of fundamental justice. Second, the exemptions go too far in that they overreach in their effect; they target those who commit crimes while out on bail or violent offenders but in reality, they capture offenders who are unable to get bail because of socio-economic reasons, not because of their conduct.” (para. 162)

The focus of the sentence appeal in R v Guimond (MJ) et al, 2016 MBCA 18 is twofold: first, whether the judge erred in declining to reduce the manslaughter/assault sentences totaling 12 years because of Gladue factors; and second, the methodology used in sentencing on the offence of assault causing bodily harm in association with a criminal organization (s. 467.12 CCC). The accused was unsuccessful in arguing that his sentence should have been reduced in light of Gladue factors. The judge’s decision not to de-emphasize denunciation/deterrence given that the killing was gang related and “about maintenance of a viable, sophisticated and highly profitable illegal drug trafficking business,” was fully supported by the record and not an error, said the court. On the issue of the appropriate methodology to arrive at a proportional sentence for any criminal organization offence the court had this to say about the spartan evidence tendered by the Crown as to why the Indian Posse was a criminal organization for the purposes of s.467.1 of the Code: The exceptional regime in the Code in relation to criminal organization offences does not include shortcuts as to proof of the attributes of a criminal organization, or an accused’s involvement with the criminal organization, for the purposes of sentencing. Accordingly, absent agreement, the Crown must prove the character of the criminal organization as well as the nature of an accused’s involvement in the criminal organization with admissible evidence, whether from the facts and inferences to be drawn from a predicate offence, expert evidence or otherwise. (para.17) In this case, however, the facts were sufficient to support the conclusion that the Indian Posse was a criminal organization and the circumstances of the offence (a teenage homicide resulting from the rivalry between two criminal organizations over control of criminal activity) warranted more than a nominal consecutive sentence.

A sentence of one year for a crime of extreme violence (recklessly and repeatedly firing a gun into a home) sends the wrong message and is demonstrably unfit, according to the Court of Appeal in R v McMillan, 2016 MBCA 12. The court found that the sentencing judge failed to give sufficient weight to denunciation and general deterrence (the most important considerations in firearm-related offences); greatly overemphasized the effect of bullying as a mitigating factor and, by doing so, underemphasized the accused’s high degree of moral blameworthiness; and incorrectly equated pre-trail bail with pre-sentence custody (“bail is not jail”), giving the accused undeserved credit for time spent on bail. The court substituted a sentence of four years’ imprisonment, making it unnecessary to engage the Charter issue of whether the four-year minimum sentence violated s.12 of the Charter. The court granted the accused’s request not to be reincarcerated for the remaining 33 months of the sentence, however, taking into account the time elapsed since serving the original sentence, the accused’s success on supervised probation, the negative effect of reincarceration on rehabilitation, and the fact that if the correct sentence had been imposed at the outset the accused would be out on day parole. Although the three appeal judges concurred in the result, one judge disagreed with the conclusion that the sentencing judge overemphasized the effect of bullying as a mitigating factor to be considered in assessing moral blameworthiness.

R v Fraser, 2016 MBCA 9 - the appeal court denied the applicant’s motion to reinstate an abandoned notice of motion for an extension of time to file a conviction appeal respecting a 25- year-old trafficking charge to which he had pled guilty, served time, and been pardoned in 1999. While sympathetic to the applicant’s situation (he believed, incorrectly, that a pardon was the same as an appeal and would vacate the conviction for US residency purposes), the court found he had not met the three part test for extension in that he had not shown a continuous intention to prosecute the appeal nor explained the delay. R v Kennedy, 2016 MBCA 5 – in granting the Crown’s conviction and conditional sentence appeal on firearms charges, the court looks to the post-Nur sentencing decisions for guidance and concludes that, absent minimal moral blameworthiness, deterrence and denunciation must be given significant weight. R. v. Frost, 2016 MBQB 21 – the court imposes an 18 month sentence on a man convicted of sexually exploiting his family’s teenage “helper.”

The Court of Queen’s Bench issued a practice direction concerning Scheduling of Sentencing Hearings on February 1, 2016. The direction, requiring sentencing dates to be set on the date of conviction or plea, came into effect immediately. On February 24, 2016, the Provincial Court issued an update to its January 28 notice concerning the new location of the St. Boniface court. The update advises that, due to construction delays, scheduled court sittings of the Provincial Court and the Court of Queen’s Bench will be moved to 408 York Avenue and Small Claims Court sittings will be moved to 373 Broadway and 408 York Avenue until completion of construction. All court registry services will be moved to the new location at 614 Rue des Meurons effective February 29, 2016.

Is there a new view on defence ethics? - this In House article presents varying viewpoints on the ethical boundaries lawyers should observe when defending those charged with sex crimes. Think Making a Murderer can’t happen in Canada? Think again – wrongful convictions are not unheard of in Canada, and constant vigilance, not complacency, is needed to protect our justice system, says the author of this Canadian Lawyer article. R v Meer : the Trouble with Bad Lawyers - this post from The Court concerns the recent SCC decision in R. v. Meer, 2016 SCC 5, an unsuccessful arson appeal involving allegations of lawyer incompetence.

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 Urban Reserves as a Tool for Economic Development, on March 16, 2016, and will wrap up on May 17, 2016 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.