The Supreme Court considers and clarifies the statutory regime governing bail pending appeal in R. v. Oland, 2017 SCC 17, a case where the accused applied for bail pending appeal of his second degree murder conviction in the death of his father, for which he had been sentenced to a lengthy term of imprisonment. His application was denied under the public interest criterion set out in s. 679(3)(c) of the Criminal Code. The Supreme Court found that the rationales for release pending trial (s. 515(10)(c)) could be applied, with modifications, to the public confidence analysis in the appeal context, and went on to provide guidance on the key factors informing the competing interests of enforceability and reviewability and how they should be weighted in any given case.  In this case, where the accused presented as an ideal candidate for bail, there were no appreciable public safety or flight concerns, and the crime gravitated more toward the offence of manslaughter than to first degree murder, detention was clearly unwarranted, according to the court.  

Exigent Circumstances and Confessions Rule Clarified: SCC
In a split decision, a majority of the Supreme Court overturned the accused’s convictions on drug and firearms charges in R. v. Paterson, 2017 SCC 15, finding that the warrantless entry by police into the accused’s residence where the evidence was found was not justified by exigent circumstances and violated s. 8 of the Charter. The court found that in order for a warrantless entry to satisfy the exigent circumstances test, “the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety.  Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives” (para. 37). The majority and minority judges agreed that the search was unlawful, but disagreed on whether it should be excluded under s.24 (2) of the Charter.

The court also clarified the rationale for the confessions rule, agreeing with the Court of Appeal that it should not be expanded to apply to evidence presented at a Charter voir dire. To do so “would distort both the rule and its rationale,” said the court. “It would stifle police investigations, compromise public safety and needlessly lengthen and complicate voir dire proceedings" (paras. 21 and 24).

These articles discuss the decision:

Exigence - How Roaches Led to Clarity in the Paterson case - Robson Crim Legal blog

SCC clarifies exigent circumstances, confessions rule – Legal Feeds

In R. v. Bingley, 2017 SCC 12, a divided Supreme Court ruled that, while s. 254(3.1) of the Criminal Code does not provide for the automatic admissibility of drug recognition expert opinion evidence and the common law rules of evidence apply, where the four Mohan threshold requirements for admissibility are met and there is no question that the probative value of the evidence outweighs its prejudicial effect, the trial judge is not obliged to hold a voir dire to determine the admissibility of the evidence. The dissenting judges disagreed with the majority conclusion that Parliament has determined that the 12-step evaluation, when properly administered, is sufficiently reliable to be admitted as evidence of drug impairment at trial. In the minority’s view, “courts retain discretion to require — through evidence or precedent — confirmation that the science behind DRE evaluations meets the necessary level of reliability before admitting the evidence at trial.”  For critical commentary on the decision see:

R v Bingley: Drugs, Discretion, and Deference – The Court

R. v. Bingley: A Problematic Decision – Saskatchewan Law Review

Two recent Court of Appeal decisions involve allegations of ineffective assistance of counsel:

In R v Zamrykut, 2017 MBCA 24, the court granted the accused’s motion for fresh evidence concerning his sexual assault trial (materials disclosed to but not used by the trial counsel) for the limited use of determining his claim of ineffective assistance of counsel, and found it sufficient to establish the claim on a balance of probabilities. The conviction was overturned and a new trial ordered.

In R v Thomas, 2017 MBCA 23, a self-represented accused was granted an extension of time to pursue an application to withdraw her plea to a second degree murder charge. She argued that she was mentally unstable at the time of the plea and had been pressured by counsel to plead guilty.

The court concluded its decision in Zamrykut with the following comment on these kinds of cases:

…A finding of ineffective assistance of counsel in one case is not the equivalent of a finding that the lawyer is incompetent; rather, it is a finding that is limited to the case under review.  Even the best counsel can, over the course of a career, fall into error in a particular case, such that he or she has provided ineffective assistance in that case that undermined the reliability of the verdict and resulted in a miscarriage of justice.

Three recent Court of Queen’s Bench decisions concern claims of unreasonable delay:

In R. v. Grant, 2017 MBQB 39, the court reversed a lower court finding that there had been unreasonable delay in the prosecution of a speeding charge. The time period in question was slightly below the 18-month presumptive ceiling. The accused, who was then unrepresented, made no effort to secure an earlier trial date and did not raise any concerns regarding delay until bringing the application one month before trial. The court found that the motion judge erred in determining the applicability of the Morin analysis in the context of Jordan to summary conviction matters and in her findings concerning prejudice. The court also comments (at paras. 45-50) on the Crown’s obligation to provide particulars on a timely basis (particularly to unrepresented accused) and whether this is a problem that impacts on fair trial interests so as to raise constitutional concerns.

In the “very unusual circumstances” of R. v. M.S., 2017 MBQB 12, the court stayed all charges relating to allegations of sexual assault on a child due to unreasonable delay. The “gross period under review” was 44.4 months, with 9.6 months of inherent delay and 34.8 months for institutional and Crown delay. No delay was attributable to the accused and waiver was not an issue. An additional factor in the case was the lengthy pre-charge delay (seven years) and its impact on the quality of the evidence.

In R. v. Richard, 2017 MBQB 11, the court dismissed the accused’s application to stay a second degree murder conviction for unreasonable delay, finding that his s. 11(b) rights had not been breached. The timeframe from arrest to final conviction exceeded 5 years, within which there was a trial, appeal, and retrial. Among the issues considered were: the law with respect to s.11(b) and the appellate process; how, or how much, to rewind the constitutional clock for a retrial; waiver of delay (including the issue of the timing of an application by former defence counsel to be removed from the record); and what constitutes exceptional transitional circumstances.

R v Anderson, 2017 MBCA 31 – the court found that the judge minimized or mischaracterized several aggravating factors in departing from the appropriate range and imposing a 90-day intermittent sentence for impaired driving cause bodily harm. While mitigating factors existed, including Gladue, this was not a case where departure from the guidelines was warranted. The court substituted a six-month sentence, but stayed the remaining custodial portion of the sentence given the rehabilitative steps taken by the accused.

R v Spence, 2017 MBCA 26 – the court upheld the trial judge’s ruling not to exclude statements made by the accused to an undercover officer after speaking to counsel. An earlier statement made to the UCO was excluded, and the accused argued that there was a strong contextual connection between the statement made in breach of the Charter and the later statements.

R. v. Raposo, 2017 MBQB 43 - an accused who fired a 22-caliber pen gun at a gas station attendant through a glass window and shot at two police officers on two occasions during the subsequent police chase, was found guilty of three counts of attempt to commit murder (using a firearm) and three counts of pointing a firearm, among other charges. The court did not accept the accused’s testimony (that he only wanted to scare the three complainants and did not intend to kill or point a firearm at any of them) and had no reasonable doubt about his guilt in all the circumstances.

Federal

Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, was referred to the Standing Senate Committee on Legal and Constitutional Affairs on March 2, 2017. It proposes amendments to the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination and to the Criminal Code to extend the protection against hate propaganda to any section of the public that is distinguished by gender identity or expression and to affect sentencing on such crimes. For further information see the legislative summary, departmental information, and the Slaw article Gender Identity and Gender Expression Protection Under the Law.

Bill C-28, An Act to amend the Criminal Code (victim surcharge), was introduced and received first reading October 21, 2016. It amends the victim surcharge provisions in the Criminal Code to return to judges the discretion to waive the federal victim surcharge in cases of demonstrated undue hardship. For further information see the backgrounder and legislative summary. 

Bill C-32, An Act related to the repeal of section 159 of the Criminal Code, was introduced and received first reading on November 15, 2016. It repeals s.159 (which singles out one sexual act and treats it differently) and provides that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid. The backgrounder provides the context for the proposed repeal and this CBA submission supports its enactment.

Bill C-37, An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts, was referred to the Standing Senate Committee on Legal and Constitutional Affairs on March 9, 2017. It proposes changes to several acts to create a new drug strategy with harm reduction as a core pillar. See the legislative summary for further details.

Bill C-38, An Act to amend An Act to amend the Criminal Code (exploitation and trafficking in persons, proposes amendments to a previous Act that received royal assent in 2015 but was never brought into force, so that certain sections of that Act can come into force on different days.

Bill C-224, An Act to amend the Controlled Drugs and Substances Act (assistance — drug overdose), passed second reading in the Senate and was reported and amended by the Standing Senate Committee on Legal and Constitutional Affairs on March 7, 2017.

Bill C-226, An Act to amend the Criminal Code (offences in relation to conveyances) and the Criminal Records Act and to make consequential amendments to other Acts, is before the Standing Committee on Public Safety and National Security. It is a private member’s bill proposing significant changes to impaired driving legislation in Canada. The Criminal Justice section of the CBA published its response to the bill urging a cautious approach to legislative change in this area and recommending that Bill C-226 not become law.

Bill C-305, An Act to amend the Criminal Code (mischief), was reported with amendments on March 20, 2017. This private member’s bill proposes expanding the Criminal Code section dealing with damage to property due to crime motivated by hate to include motivation by hate based on gender identity and sexual orientation and to include public buildings such as universities and cultural centres.

Bill C-324, An Act to amend the Controlled Drugs and Substances Act (production of or trafficking in substances), received first reading December 1, 2016. This private member’s bill amends the Controlled Drugs and Substances Act to prohibit the possession, production, sale or importation of substances to be used in the production or traffic of certain other prohibited substances.

Bill C-337, An Act to amend the Judges Act and the Criminal Code (sexual assault), introduced February 23, 2017, was referred to the Standing Committee on the Status of Women following second reading. It is designed to ensure that new judges who oversee sexual assault cases have adequate training on the sensitivities and laws surrounding sexual assault and violence.

Bill S-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women), has passed third reading in the Senate and is awaiting first reading in the House of Commons.

Bill S-217, An Act to amend the Criminal Code (detention in custody), introduced in the Senate on February 3, 2016, was referred by the House of Commons to the Standing Committee on Justice and Human Rights on March 8, 2017. It requires the prosecutor to make it known at the bail hearing if the accused has a criminal record, is currently facing other criminal charges or has failed to appear in court in the past.

Bill S-230, An Act to amend the Criminal Code (drug-impaired driving), was passed by the Senate in December (with amendments) and had first reading in the House of Commons on February 9, 2017.

Provincial

The provincial government introduced several new acts in early March:

Bill 15, The Department of Justice Amendment Act, amends the Act to provide that a person who is or was prosecuted cannot sue a Crown attorney for things done or not done in performing a duty relating to a prosecution. Instead, the person may bring a proceeding against the Attorney General. See the news release and explanatory note for further details.

Bill 16, The Fatal Inquiries Amendment Act, updates the Act to streamline and clarify the rules for inquests. For more information see the government news release and the explanatory note to the bill.

Bill 17, The Court Security Amendment Act, authorizes security officers to conduct searches for and seize liquor, illegal drugs, and weapons when people come to court and to evict anyone causing a disturbance. The news release provides further details.

Bill 18, The Legislative Security Act, deals with security in the legislative precinct and, among other things, it allows security officers to screen people entering the Legislative Building for weapons and authorizes the Registrar of Motor Vehicles to disclose certain vehicle licensing records to security officers.

Bill 25, The Cannabis Harm Prevention Act (various Acts amended), amends several Acts to address health or safety concerns that will arise when cannabis consumption is no longer illegal. See the news release and explanatory note for further details.   

The Director of Court Operations issued a notice confirming that, as of March 20, 2017, digital audio recording access is available for Courtroom 409.

Judicial Justice of the Peace Night Court – this notice from the Provincial Court refers to changes in the scheduling of night court starting in October 2017.

As detailed in two Court of Queen’s Bench practice directions from February 10, 2017 (Child Protection Proceedings and Rota and Scheduling Changes), a new child protection model that prioritizes child protection proceedings and addresses unacceptable delay has been implemented effective March 6, 2017. Materials from a recent cpd program provide more detail on the new model and are available for purchase from the Education and Competence Department of the Law Society.

Timelines for Filing of Material in Chambers Court – this Court of Appeal notice issued February 8, 2017 clarifies the deadlines for filing material on motions and notes that they will be strictly enforced.
All three levels of court (Court of Appeal, Queen’s Bench, and Provincial Court) issued notices concerning court attire in February.  

Notice 33-2017 alerts lawyers to changes in how certificates will be assigned to private bar and staff counsel; reminds lawyers that effective April 1, 2017, LAM will require that all private bar statements of account be created and submitted electronically through PBOnline; stresses that as of April 1, 2017 older versions of the Legal Aid application form will no longer be accepted; and encourages judicious use of technology in aid of creating cost efficiencies at LAM.

How to keep sexual assault cases on track – this Canadian Lawyer article by Karen Busby discusses what can be done about the low reporting and conviction rates in sexual assault cases. In contrast, in a recent Lawyers Weekly article, defence counsel argue against implementing fundamental changes in this area (such as re-writing the law on consent), which they argue would violate the Charter-guaranteed presumption of innocence and the right to a fair trial in sexual assault prosecutions.

Canada’s Longest Recent Sentences and the Questions and Controversies of Consecutive Life Sentences – this article from The Court explores the use of s.745.51 (a 2011 amendment to the Criminal Code allowing judges to order that life sentences be served consecutively) in recent sentencing decisions.

The Robson Crim Legal March newsletter contains articles on the right to remain silent, electronic monitoring programs, photo radar, the role of hegemony in justifying and perpetuating the criminalisation of HIV non-disclosure and transmission cases, and non-consensual sharing of intimate images.

Retaining the Preliminary Inquiry – this CBA Criminal Justice section letter to the Minister of Justice supports the retention of preliminary inquiries and sets out five main points that militate against their elimination.

The deadly side of Tasers – this Lawyers Weekly article discusses the risk factors and costs of using conducted energy weapons (Tasers) in law enforcement.

Letting a ‘Sleeping’ Law Lie? The Case of Canada’s Blasphemy Law – this Robson Crim Law blog post discusses why s.296 of the Criminal Code is fundamentally flawed and should be repealed.

Is jury duty a mental health hazard? – this FindLaw blog post references the launch of a new Ontario program offering free counselling services to jurors.