In separate decisions released April 15, 2016, the Supreme Court of Canada struck down two sentencing laws from the former government’s tough-on-crime agenda, finding both mandatory minimum sentences for non-violent drug offenders (R. v. Lloyd, 2016 SCC 13) and certain limits on credit for pre-trial detention (R. v. Safarzadeh-Markhali, 2016 SCC 14) to be unconstitutional. In both cases the court found the laws to be overly broad, catching people in ways that have nothing to do with the legislative purpose of enhancing public safety and security. These articles discuss the decisions in more detail: SCC Tosses Tough on Crime Agenda Out the Window - Slaw SCC strikes down two tough-on-crime measures – Legal Feeds See also R v Nasikapow, 2016 MBCA 35, a recent Manitoba Court of Appeal decision confirming earlier findings on the constitutionality of s.719 (3.1) of the Criminal Code.

Commentators are questioning whether infanticide should remain a criminal offence following the Supreme Court’s decision in R. v. Borowiec, 2016 SCC 11. The court rejected the Crown’s bid to have a mother convicted of infanticide retried on second degree murder charges for leaving her two children to die in a dumpster. The appeal focussed on “the legal meaning of the phrase “her mind is then disturbed”, a phrase which is not defined in the Code and for which the case law has provided little explanation.” After examining the legislative history and evolution of the crime of infanticide the court sets out its conclusions on how the phrase should be applied at para. 35. In the court’s opinion, “Parliament intended the concept of a “disturbed” mind in this offence to have its ordinary meaning, so as to provide a broad and flexible legal standard which will serve the ends of justice in the particular circumstances of these difficult cases. While we can provide some limited guidance for trial judges and juries, the rest is left, by Parliament’s design, to their good judgment.” (para. 2)

In R v Singh, 2016 MBCA 38, the Court of Appeal deleted a curfew condition from the probation order imposed on an accused who had been convicted of personating someone else to avoid arrest and sentenced to 6 months’ incarceration followed by 18 months’ supervised probation. “While the protection of the community may have required a period of probation and a reporting requirement for this individual, there was no evidence that the additional curfew condition had any further rehabilitative or public safety purpose, and could only be described as punitive,” said the court at para. 3.

According to the Court of Appeal in R v Giesbrecht, 2016 MBCA 34, the sentencing judge erred when he concluded that a joint sentencing recommendation for a conditional sentence on numerous fraud charges concerning misuse of prepaid funeral expenses was not appropriate and was not the product of a true plea bargain since the quid pro quo was lacking. The quid pro quo in this case included the uncertainty of conviction in light of the anticipated difficulties in the Crown’s case as well as the opportunity to avoid further delay and cost, said the court, which also disagreed with the sentencing judge’s conclusion that an institutional sentence was required to send a message of denunciation and deterrence. The court stressed that a sentencing judge should depart from a joint submission only when there are cogent reasons for doing so (para.10).

In two recent appeals the court overturns sexual assault/interference convictions due to misapprehension of the complainant’s evidence: R v DNS, 2016 MBCA 27 – the appeal court overturned a sexual assault conviction because misapprehension of the complainant’s evidence by the judge affected the reasoning process leading to the conviction. Specifically, the judge did not address a weakness in the DNA evidence and this affected the reliability of his credibility finding concerning the complainant. No new trial was ordered as the accused had already served his sentence. R v WAW, 2016 MBCA 26 – the court ordered a new trial on a charge of sexual interference where the trial judge made an incorrect inference that was in direct contradiction to the testimony of the complainant, and then used that inference to confirm other aspects of her evidence in convicting the accused. R v Berthelot, 2016 MBCA 25 – the court upheld a 15 month concurrent sentence on nine charges of credit card fraud, concluding that “(d)enunciation and general deterrence are of paramount importance in fraud cases involving the use of stolen personal financial information” and that “(t)he moral culpability of such premeditated conduct is significant and…will result in lengthy sentences, even for first-time youthful offenders.” (para. 8) R v LLP, 2016 MBCA 28 – a procedural error (using the Jewell approach to calculate sentence on multiple counts of sexual interference on children) resulted in an overall unfit sentence of five and one half years, allowing the Court of Appeal to impose a new sentence of eight years.

In R. v. Fryza, 2016 MBQB 55, an impaired driving appeal, the court acquitted an accused who had been convicted twice on the same charge, finding it would be grossly unfair and prejudicial to order a third trial given the failure of the Crown to follow the Court of Appeal’s instructions on proving the blood alcohol level of the accused by either re-serving the (originally faulty) Certificate of Analysis or by calling the breathalyzer technician to testify at the second trial. The court rejected the Crown’s argument that an inference could be drawn that there had been constructive service of the certificate through pre-trial disclosure.

Ontario ruling shows limits on definition of impaired driving – this Legal Feeds post discusses R. v. Toyota, 2016 ONCJ 112, an Ontario Court of Justice decision in which the court found that a drunk driver passed out in a running car was not in care and control of the vehicle and acquitted on all charges. Aboriginal Dangerous Offenders and Sentencing – this article discusses the BCCA decision in R. v. Jennings, 2016 BCCA 127, in which the court upheld the imposition of a dangerous offender designation on an Aboriginal man charged with sexual assault against an 8 year old, despite the fact that no Gladue report was ordered. Violent crime down, but justice costs increase – administration of justice offences are dominating the caseload at courthouses and contributing to the rise in justice system costs according to the federal justice department official quoted in this Law Times article, and the government is exploring alternative ways to handle such offences. Former DOJ lawyer calls for amendments after losing Charter challenge – this Legal Feeds post discusses the dismissal of a former senior Justice Department lawyer’s challenge to Ottawa’s constitutional review process.

Aboriginal Law Series – this series 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 Support Staff – law offices can be stressful environments in which to work. This practical program will provide law firm support staff with stress management tools and techniques to help them deal with work stress arising from interpersonal and personality conflicts, heavy workloads, and deadlines. Register your staff to attend this lunch program taking place at 12 noon on May 9, 2016 at the Law Society classroom.

Top Supreme Court/Court of Appeal cases for 2015-16 – consider bringing a non-member buddy to this Criminal Justice section lunch meeting on May 5, 2016 at the Law Society classroom. Speakers from Manitoba Justice and Legal Aid Manitoba will review the top SCC decisions of the 2015-16 year.

The Federation of Law Societies’ annual National Criminal Law Program will be held July 4-8, 2016, in Charlottetown, PEI. The conference theme is Substantive Criminal Law, Advocacy, and the Administration of Justice. Download the complete conference schedule and registration form for further information.