The Crown appeal of an acquittal on a possession of child pornography charge in R. v. Villaroman, 2016 SCC 33, gave the court the opportunity to provide clarification on the use of circumstantial evidence in criminal cases, and in particular on how juries should be instructed on weighing circumstantial evidence. There is “no particular form of mandatory instruction,” according to the court, “(h)owever, where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it may be helpful for the jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt.” (para. 22) The court noted at para. 30 that, although no particular language is required, “it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt….Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.” For an analysis of this “modern” approach to the very old rule on circumstantial evidence see: Modernizing Circumstances: Revisiting Circumstantial Evidence in R v Villaroman - ABlawg

Amendments to s. 161(1)(c) and (d) of the Criminal Code (empowering sentencing judges to prohibit sexual offenders from having any contact with a person under 16 years of age or from using the Internet or other digital network) qualify as punishment according to the Supreme Court in R. v. K.R.J., 2016 SCC 31, such that their retrospective operation limits the right protected by s. 11(i) of the Charter. The court was divided, however, on the application of s.1 of the Charter, with the majority holding that the retrospective operation of the no contact provision (s. 161(1)(c)) is not a reasonable limit on the s. 11(i) right, but the retrospective operation of the Internet prohibition (s. 161(1)(d)) is a reasonable limit. These articles discuss both the new “punishment” test and the court’s disagreement on the proportionality of effects analysis: KRJ: A New Way to Understand “Punishment” and the Crown’s Justificatory Burden – The Court Taking Proportionality Seriously in Charter Adjudication: R v KRJ – Ablawg It is worth noting that the Manitoba Court of Appeal has already applied KRJ to set aside a retroactive non-communication order in R v RD, 2016 MBCA 88, an otherwise unsuccessful appeal of a 10-year sentence on two counts of sexual interference.

A divided Supreme Court developed a new framework for determining whether an accused has been tried within a reasonable time under s. 11(b) of the Charter in R. v. Jordan, 2016 SCC 27, with the majority imposing a presumptive ceiling (18 months from charge to end of trial in provincial court and 30 months in superior court) beyond which delay is presumed to be unreasonable, absent exceptional circumstances. Once the presumptive ceiling is exceeded, said the court, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow (para. 47). Generally, exceptional circumstances include those that: 1) were reasonably unforeseen or reasonably unavoidable; and 2) could not have been easily remedied. The court applied the new framework in companion case R. v. Williamson, 2016 SCC 28, finding a 34-month delay to be unreasonable and upholding the stay of the sexual offences against a minor charges. For a critical take on the controversial decision see: Justice In a Timely Manner: The New Framework for Trial Within a Reasonable Time - ABlawg It’s been 25 years since Askov but little has changed – Canadian Lawyer Overthrowing Precedent: R v Jordan’s Impact on the Crown and the Right to a Trial Within a Reasonable Time – The Court

In R v Douglas, 2016 MBCA 81, the court dismissed the Crown’s motion for an order quashing the accused’s certiorari application challenging the validity of two search warrants issued pursuant to s. 487 of the Criminal Code. The Crown argued that the court had no jurisdiction to hear a defence appeal from an interlocutory order prior to a conviction after trial, since s. 748(2) of the Criminal Code makes an appeal under s.784(1) subject to the provisions of Part XXI and, in particular, the limitation that restricts an accused’s right of appeal to final orders only (ss.674 and 675). The court disagreed, finding that: Part XXI is subject to section 784, rather than the other way around. Properly interpreted, the unlimited right to appeal a decision granting or refusing a prerogative remedy under section 784(1) is, in effect, an exception to the limitation from appealing an interlocutory order in Part XXI. (para. 40)

Two recent Manitoba cases, R v Pilkington (C), 2016 MBCA 80 and R. v. Baldovi et al, 2016 MBQB 179, consider the test for granting leave to cross-examine police affiants. As noted in Baldovi, to avoid unnecessary and unjustified cross-examinations that amount to mere fishing expeditions, judges take a purposive and rigorous approach to applying the test for leave. In both cases, the applicants failed to satisfy the court that cross-examination was necessary to make full answer and defence and that the cross-examination would elicit testimony tending to discredit one of the preconditions to the authorization. In Baldovi, where the court denied leave to cross-examine in respect of a number of authorizations granted for the purpose of intercepting private communications during the Project Sideshow investigation, the court noted that “(c)ross-examination of the affiant in cases of the issuance of a warrant or a wiretap authorization should not be viewed as a right…and the onus falls to an applicant to demonstrate an evidentiary basis.”

R v AMK, 2016 MBCA 87 - despite several errors by the sentencing judge (including the normally fatal error of failing to impose a specific penalty for each offence), the court declined to substantively interfere with a 140-day custodial sentence, having regard to the young offender’s high moral culpability, the seriousness of the offences, the forensic assessment, the harm to the victims, and the interests of society. R v Norton, 2016 MBCA 79 - this case raises the important issue of the manner in which “factual consent” is to be treated where a complainant over 14 years of age, but under 16, is deemed by law to be incapable of consenting to a sexual act with a person who is more than five years older. In this case, said the appeal court, the sentencing judge erred by placing too much emphasis on whether the complainant factually consented to the sexual acts that formed the basis of the charge, causing her to consider a range of sentencing that was too low. R. v. Hyra, 2016 MBQB 171 – the court found that in the unusual circumstances of this criminal harassment case, where incarcerating the accused would only “reinforce his view that he is a victim, exacerbate his already distorted perception and foster his obsessive behaviour,” a conditional sentence order would be a better path to rehabilitation and specific deterrence. R. v. Teather, 2016 MBQB 157 – a young, first time offender who endangered the lives of several firefighters and injured one, was sentenced to 6 months’ incarceration and 12 months’ probation for dangerous operation of a motor vehicle causing bodily harm and for leaving the scene of an accident. R. v. Steele, 2016 MBQB 147 and R. v. Moore, 2016 MBQB 116 – these cases review the criteria upon which dangerous offender designations are made pursuant to s. 753(1) of the Criminal Code.

The new Criminal Proceedings Rules of the Manitoba Court of Queen’s Bench came into force October 1, 2016. The Legal Aid Regulation, Manitoba Regulation 225/91, was amended by Regulation 128/2016, effective August 30, 2016.

Dismissed Applications for Protection Orders – this QB notice confirms that the QB Registry automatically opens a file where the Provincial Court grants a without notice protection order, but not (since February 9, 2016) where such an application is dismissed. Rule 70.10 applies to applications granted after February 9, 2016. Manitoba Youth Centre Pilot Project – this Provincial Court notice indicates that as of August 8, 2016 all outstanding charges against young persons detained in custody at the Manitoba Youth Centre will be brought forward to the first appearance docket. Digital Audio Recording Access Additional DAR courtrooms – this notice, from the director of Winnipeg Court Operations, updates criminal lawyers on the increased availability of digital audio files to access adult criminal matters from outside of the courtroom.

Notice 31-2016 – this September 2016 notice updates the profession on PBOnline, Legal Aid Manitoba's internet-based certificate management system. Effective September 12, 2016, the electronic application for legal aid was made available for use by private bar panel members through PBOnline. LAM encourages all members to use electronic applications wherever possible and to use the most up-to-date version of the form. Notice 30-2016 – this notice alerts Apple iPhone users to difficulties accessing PBOnline caused by the new iOS9 upgrade. It also sets out a new schedule for process server reimbursement effective June 20, 2016.

The Manitoba Law Journal has issued a call for papers for an upcoming thematic volume dealing with Current Issues in Criminal Law. Submissions are due February 1, 2017.

Several professors at the Faculty of Law, Robson Hall, have started a blog, Robson Crim Legal Blog, providing reflections on current issues in criminal law, announcements, and breaking news stories. The editors collaborate across institutions to bring a broad range of perspectives (there are currently thirteen collaborators), and also welcome submissions from readers and students. Examples of recent posts include: Canada's Inscrutable Jury Research: Do Canadian Juries Understand Judicial Charges?; Regulating Gender: Transgender People’s Experiences in the Criminal Justice System; and Birds of a Feather Fight Drones Together: Are Canadian Skies Ready for the ‘Flying Squad’?

Let’s Talk About Lacasse: Part I and Part II – these posts from The Court discuss how the Supreme Court’s decision in R v Lacasse raised the standard for appellate review on sentencing decisions and why this may be problematic. Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible – this Slaw post discusses how defendants can challenge the reliability of electronically-produced evidence of location and links to a larger article on this topic. The Forest of Delays – this Ablawg article examines how the SCC decision in R v Vassell will impact decisions regarding s.11(b) of the Charter. On the DLW Decision and the Meaning of Modernity and Throwing the Dog a Bone: A Historical and Policy Critique of the Supreme Court’s Bestiality Ruling – these ABlawg articles critique the SCC decision in DLW and the complexities inherent in interpreting historical and value-laden legislation. Sent text message not private: ruling and Trouble with texting – these articles discuss R. v. Marakah, 2016 ONCA 542, a recent case in which a divided Ontario Court of Appeal ruled that a text message sender has no reasonable expectation of privacy in text messages stored on a recipient’s phone.

The 2016 Isaac Pitblado Lectures, Pimohtéwin tati‎ mínowastánowahk (Journey to Reconciliation): Lawyers Called to Action, will examine the Calls to Action issued by the Truth and Reconciliation Commission and explore the role of lawyers in renewing relationships between Indigenous and non-Indigenous people in Canada. The lectures will be held November 4-5, 2016 at the Fort Garry Hotel. To hear from 2016 Isaac Pitblado Organizing Committee member Joëlle Pastora Sala about why you should attend the 2016 Pitblado Lectures click here.

Credit Counselling Society Webinars – the Law Society has partnered with the Credit Counselling Society to offer fundamental financial management webinars. Register to attend the first of two webinars, The Truth about Credit, on October 28, 2016. Financial educator, Tim St. Vincent, will discuss how credit cards and ratings can have a negative impact on financial status and how this can be repaired. Plain Language Communication – learn to communicate more effectively using plain language at this lunch program to be held November 23, 2016 at the Law Society classroom. Registration discounts apply to students and teleconference participants. NEW Language Rights Rule – this lunch hour program on November 24, 2016, will examine ethical and professional obligations under the new Code of Professional Conduct rule on language rights and offer practical suggestions for both solicitors and litigators to meet those requirements. You are Not Alone: The Lawyer’s Guide to Dealing with Anxiety – learn how to recognize and manage anxiety at this highly recommended program developed specifically for Manitoba lawyers by the Anxiety Disorders Association of Manitoba. Take advantage of our reduced rate and register to attend on November 29 or 30, 2016, from noon to 1:30 pm.

The Criminal Defence Lawyers Association of Manitoba (CDLAM) fall conference will be held November 30 to December 1, 2016 at the RBC Convention Centre. Topics to be addressed include Aboriginal Issues and Criminal Law, Attacking Search Warrants, Year in Review, Blended Defences, and Strategic Decision Making. Dean Strang, one of the defence counsel in the “Making a Murderer” case, will give the keynote address on Handling the Media and will also attend the evening event on November 30th. See the program agenda and registration form for further details. Tickets for the evening event can be purchased on Eventbrite.