eLaw

eLaw - Criminal Law Update | May 2017 - No. 82

The Law Society of Manitoba
Professional Education and Competence

eLaw Criminal Law Update

May 2017

In This Issue

Sexual Exploitation Conviction and Sentence Upheld: MBCA
Gang Affiliate Evidence Confirmatory Despite Evidence of Collusion: MBCA
Impairment Evidence Lacking: MBQB
Validity of Guilty Plea Questioned: MBQB
Murdering for No Reason Highly Blameworthy: MBQB
Other Recent Cases
Legislative Update
Provincial Court Notice
Recommended Reading
Continuing Professional Development: LSM
MBA Programs

Sexual Exploitation Conviction and Sentence Upheld: MBCA

The Court of Appeal upheld the sexual exploitation conviction of a 48-year-old man who had consensual sexual relations with a 17-year-old girl employed by his wife, but dismissed the Crown’s appeal of the 18-month sentence in R v Frost, 2017 MBCA 43. The trial judge’s analysis of the legal principles underlying the notion of “position of trust” and characterization of the relationship as one of trust was based on a cumulative assessment of the nature and circumstances of their relationship, according to the court, and was largely a factual finding which could not be interfered with absent palpable and overriding error. On the sentence appeal, the court found this was not the case to attempt to resolve the “confused and difficult” issue of whether it is appropriate to apply the sentencing jurisprudence from major sexual assault cases to sexual exploitation cases, given their conclusion that the 18-month sentence was not demonstrably unfit for this offender.

Gang Affiliate Evidence Confirmatory Despite Evidence of Collusion: MBCA

In R v Kakeeway, 2017 MBCA 40, the Court of Appeal dismissed the accused’s argument that the trial judge who convicted him of second degree murder erred in considering the evidence of three of his gang affiliates as confirmatory in relation to one another and in finding that there was material and independent evidence capable of confirming the evidence of each of the affiliates. Regarding materiality, the accused argued that, because the only issue in the case was whether he was the shooter, to be held material the potentially confirmatory evidence had to speak directly to that issue, but the court disagreed, noting at para. 6 that “confirmatory evidence need not incriminate an accused.” On the issue of whether “collusory conduct” between the affiliates rendered the evidence incapable of being confirmatory, the court noted that the trial judge gave careful consideration to the evidence of collusion and her finding that the evidence was independent was subject to deference.

Impairment Evidence Lacking: MBQB

In R. v. Recksiedler, 2017 MBQB 72, an accused who struck and killed a young female pedestrian after running a red light was found guilty of dangerous operation of a motor vehicle causing death but not guilty of impaired driving causing death, despite evidence from his friends that he had been drinking in the 24 hours prior to the accident. Given the lack of solid evidence of impairment and the absence of any evidence that alcohol impairment played a role in the accident, impaired driving could not be proven (the Crown led no expert opinion evidence respecting the effect of the alcohol consumed, over the period of time it was consumed; and, as noted by the court, not a single police officer who dealt with the accused after the accident observed even one indicator or sign of impairment and the only eye witness testimony was unreliable).The causation element of the dangerous driving charge was obvious, however.

Validity of Guilty Plea Questioned: MBQB

An accused who was not properly informed before entering a plea of guilty to a charge of attempted murder was allowed to withdraw the plea before sentencing in R. v. Granados, 2017 MBQB 69. The judge, who noted he was “highly concerned with the advice the accused received,” preferred the accused’s evidence that he pled guilty to avoid a sentence of 15 years over that of his defence counsel, who denied having mentioned such a sentence. In addition, it would be a perversion of justice to allow a guilty plea to remain in effect where an accused person was persuaded to plead guilty on the basis of misleading legal advice, according to the court.

Murdering for No Reason Highly Blameworthy: MBQB

The court raised parole eligibility from 10 to 13 years on a second degree murder conviction in R. v. Mohamed, 2017 MBQB 64, finding the unprovoked and senseless killing of an individual barely known to the accused to be “a particularly evil act.” Following a party where the accused and the victims had limited interaction, the accused called to the victims as they were walking across the Osborne bridge, and stabbed them as they approached. The sentence on the attempted murder, in which “the injuries sustained were ultimately not significant,” was nine years concurrent.

Other Recent Decisions

R v Genaille, 2017 MBCA 38 – the appeal court upheld a sentence of two years’ incarceration, followed by two years’ supervised probation for an aggravated assault involving a vicious beating, finding that the sentencing judge took into account all the relevant considerations (including positive post-offence conduct and significant Gladue factors) and made no errors.

R. v. Kionke, 2017 MBQB 60 – the court convicted the accused on two counts of second degree murder in the stabbing deaths of two fellow rooming house residents, finding the alternate possible scenarios put forward by the defence to explain the multiple stab wounds to be “frivolous and far-fetched” and incapable of raising a reasonable doubt.

R. v. Shams et al., 2017 MBQB 33 – a commercial truck driver accused of trafficking a controlled substance was unsuccessful in convincing the court that he had no knowledge of the 388 pounds of marihuana found concealed in hockey bags in his trailer during a routine inspection. He was also unsuccessful in his s.11(b) Charter motion to have the proceedings stayed for unreasonable delay, given the 40-month timeframe between arrest and trial. The court noted that the accused had been granted a ten month adjournment over the objection of the Crown and applied the principles applicable to transitional cases to conclude that the stay should not be granted.

Legislative Update

Federal

These bills recently received royal assent:

Bill C-37, An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts, received royal assent and came into force on May 18, 2017, except as noted here. The bill makes 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-224, An Act to amend the Controlled Drugs and Substances Act (assistance — drug overdose), received royal assent and came into force May 04, 2017. It provides some legal protection for individuals who seek emergency help during a drug overdose.

Progress was made on these bills as described:

Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, was presented without amendment by the Standing Senate Committee on Legal and Constitutional Affairs on May 18, 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 and departmental information, as well as the Slaw article Gender Identity and Gender Expression Protection Under the Law.

Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, was introduced and received first reading on April 13, 2017. As noted in the executive summary, it enacts the Cannabis Act to provide legal access to cannabis and to control and regulate its production, distribution and sale. For further information see the task force report on legalization, the press release and background documents, and these Slaw and Dentons overviews.

Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, was introduced April 13, 2017 and had second reading May 19, 2017. It amends the provisions of the Criminal Code that deal with offences and procedures relating to drug-impaired driving. For further details see the legislative summary, backgrounder, and the Ablawg post:
Smoke and Mirrors? With Marihuana Legalization, Parliament Proposes to Drastically Expand Police Power

Bill C-305, An Act to amend the Criminal Code (mischief), passed first reading in the Senate as of May 11, 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-337, An Act to amend the Judges Act and the Criminal Code (sexual assault), 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. It received first reading in the Senate on May 16, 2017. For further information see the reading list and party press releases, this submission from the CBA’s Criminal Justice section, and the Canadian Lawyer article ‘Judicial Accountability’ Bill highlights well intentioned hysteria.

Bill S-230, An Act to amend the Criminal Code (drug-impaired driving), had second reading in the House of Commons on April 4, 2017.

No progress has been made on the following criminal law bills still before Parliament (with the exception of Bill C-226, which will not be proceeded with, effective May 3, 2017).

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-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-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, a private member’s bill proposing significant changes to impaired driving legislation in Canada, will not proceed (as of May 3, 2017).

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 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 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. For more information see the reading list and party press releases and the CBA article Sympathy for fallen cop basis of flawed proposed legislation.

Provincial

Bill 15, The Department of Justice Amendment Act, received third reading May 18, 2017. It 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, passed second reading on April 24, 2017 and the Justice Committee reported without amendment on May 17, 2017. It 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, passed second reading on March 22, 2017 and the Justice committee reported without amendment on April 6, 2017. It 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. The Justice Committee reported it without amendment on May 17, 2017.

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. The Justice Committee reported it without amendment on May 17, 2017. See the news release and explanatory note for further details.

Provincial Court Notice

The Provincial Court issued a notice re Winnipeg Consent Bails on May 19, 2017. The notice is effective June 1, 2017, and applies to all applications for judicial interim release in Winnipeg.