eLaw

eLaw - Criminal Law Update | July 2017 - No. 83

The Law Society of Manitoba
Professional Education and Competence

eLaw Criminal Law Update

July 2017

In This Issue

Lawful Demand Not a Precondition to Use of Evidentiary Shortcuts: SCC
Establishing Substantive Reliability of Hearsay Evidence: SCC
Clarifying What Constitutes Unreasonable Delay and Reaffirming Jordan: SCC/MBCA/MBQB
Time to Ensure Consistent and Fair Application of Bail Provisions: SCC
Insatiable Appetite for Adjournments Must End: MBCA
Applying Gladue: MBCA and MBQB
Recent Sentencing Decisions
Legislative Update
Provincial Court Notice
Call for Papers
Recommended Reading
Summer CPD Replays: LSM
Save the Date

Lawful Demand Not a Precondition to Use of Evidentiary Shortcuts: SCC

In R. v. Alex, 2017 SCC 37, a 5-4 majority of the Supreme Court upheld the s. 258 CCC evidentiary shortcuts permitting the Crown to establish an accused’s blood-alcohol concentration by filing a certificate recording the accused’s breath readings (and relieving the Crown from having to call a technician and a toxicologist at every trial), even where the demand may have been unlawful. “Requiring the Crown to prove the lawfulness of the breath demand before the evidentiary shortcuts can apply would frustrate their overriding purpose: to streamline the trial process in this heavily litigated and complex area of the law,” according to the majority. The court rejected the appellant’s argument that Parliament intended the provisions to include a lawful demand precondition to provide “another protection of the accused” in the face of police powers of compulsion, finding at para. 46 that “the Charter now fulfills the role of regulating the lawfulness of police breath demands in a more effective and logical manner.”

Establishing Substantive Reliability of Hearsay Evidence: SCC

The Supreme Court clarifies the standards for admission of hearsay evidence in R. v. Bradshaw, 2017 SCC 35, a case in which the admissibility of a video‑recorded re-enactment by one co-accused implicating his co-accused in the murders, rested on whether threshold reliability was met. The issue at the heart of the appeal was when and how a trial judge can rely on corroborative evidence to conclude that substantive reliability is established. According to the majority at para 4, “corroborative evidence may be used to assess threshold reliability if it overcomes the specific hearsay dangers presented by the statement. These dangers may be overcome on the basis of corroborative evidence if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.” The court outlines the steps to determine this issue at para. 57 of the decision. In this case, the majority found that the corroborative evidence relied on by the trial judge was insufficient and the evidence should not have been admitted. The Legal feeds post, Supreme Court sets ‘high bar’ for admissibility of hearsay evidence, discusses the import of the decision.

Clarifying What Constitutes Unreasonable Delay and Reaffirming Jordan: SCC/MBCA/MBQB

Several recent decisions reaffirm and clarify the new framework governing the s.11(b) Charter right to be tried within a reasonable time set out one year ago in R. v. Jordan:

In R. v. Cody, 2017 SCC 31, the Supreme Court rejected pleas by provincial AG interveners to modify the Jordan framework to provide for more flexibility in deducting and justifying delay, stating emphatically that the Jordan framework now governs the s. 11(b) analysis and “must be followed and…cannot be lightly discarded or overruled.” (para. 3). The court also stressed that “every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time.” In this case, neither case complexity nor transitional considerations justified the 36.5 months of net delay and the court restored the original stay of proceedings on the drug and weapons charges.

In R v Schenkels, 2017 MBCA 62, the Manitoba Court of Appeal rejected the accused’s bid to have her sexual assault conviction stayed for unreasonable delay totalling 30 months, 19 days. Although the trial took place in superior court, the accused argued that the presumptive ceiling of 18 months should apply since she had been denied a preliminary hearing when the Crown preferred a direct indictment. The court disagreed, finding that Jordan is clear “that the presumptive ceiling is based on the court in which the trial occurs, subject to the one exception for a trial in the provincial court after a preliminary inquiry.” (para. 46)

In R. v. B.S.H. et al, 2017 MBQB 104, a transitional case considering how Jordan applies to matters decided under the YCJA, the court declined to set a specific presumptive ceiling for youth matters, but did acknowledge that generally they should not be vetted against the same presumptive ceiling as adult matters. The judge dismissed the youths’ applications for a judicial stay of proceedings, however, finding at para. 29 that he could not “fathom a circumstance where a murder charge should be judicially stayed or dropped for a delay of 37-40 months, even for a youth, in a transitional case without some demonstrated prejudice respecting legal or evidentiary issues potentially impacting the trial.”

And, in R. v. K.G.K., 2017 MBQB 96, the court considers the novel issue of how, if at all, judicial delay in the rendering of a decision should be treated under the new Jordan framework. After balancing and reconciling all of the relevant constitutional principles and interests at play, the court found that judicial deliberation time must be excluded from the presumptive ceiling analysis. The court went on to find, however, that judicial delay in decision-making may be violative of an accused’s constitutional right to be tried within a reasonable time, where it is “shocking, inordinate and unconscionable,” but the nine-month delay in this case did not warrant the exceptional Charter remedy.

For analysis on R. v. Cody and on the impact of Jordan one year out see:

R v Cody: The Supreme Court Stands Their Ground on Unreasonable Delay - ABlawg

Shocking the Criminal Justice System Into Action – Slaw

Unanimous SCC confirms Jordan framework on trial delays – CBA National

Time to Ensure Consistent and Fair Application of Bail Provisions: SCC

In R. v. Antic, 2017 SCC 27, the Supreme Court confirms the importance of fair and consistent application of the bail provisions across the country and of strict adherence to the “ladder principle” (codified in s. 515(3) of the CCC and favouring release at the earliest reasonable opportunity and on the least onerous grounds). The court sets out the principles and guidelines which should be adhered to when applying the bail provisions in a contested hearing at para. 67 of the decision. For commentary see this Legal Feeds post.

Insatiable Appetite for Adjournments Must End: MBCA

R v J.M.O., 2017 MBCA 59, a double (Crown and accused) appeal of a blended adult and youth sentence relating to two armed robberies, is a must-read decision for criminal lawyers, especially those representing young offenders. The 166-paragraph decision examines, among other things, the principles at play in crafting and imposing adult sentences for young persons (including the effect of the 2012 amendments to the YCJA, which the court says should not be overstated and do not signal a departure from the historical purpose of the legislation being a limited use of custodial sanctions for offending behaviour); the legal effect of cognitive limitations in ascertaining moral blameworthiness; the adequacy of youth sentences to hold young people accountable; the interplay of sentencing factors under the Code and YCJA and consideration of general deterrence as a factor given the seriousness of the offence; the relevance of post-sentencing conduct eroding any evidentiary basis for amenability to rehabilitation; reincarceration of an already released offender; and, most importantly, delay and the need for greater judicial scrutiny of the rationale for any adjournment request post-Jordan. The court concludes by noting that the public interest in the orderly and expeditious administration of justice is wider than the Crown’s role in prosecuting an individual crime on behalf of society and by reiterating the message in Cody, that to “effect real change” at ending the culture of complacency in the criminal courts, a more critical and proportional use of the adjournment remedy is required from now on.

Applying Gladue: MBCA and MBQB

In R v Rennie, 2017 MBCA 44, the court rejected the accused’s argument that his 30-month sentence on mischief and assault peace officer charges was unfit because the sentencing judge failed to properly consider how Gladue applied to him. In considering the Gladue factors the judge found that the accused had “not been materially disadvantaged in the way that is described in any of the leading cases dealing with Aboriginal offenders.” In the Court of Appeal’s view, while the sentencing judge could have phrased his comments in a fashion that was less subject to a negative interpretation, he did not out-and-out reject the consideration of Gladue factors and was therefore not in error. The court concluded by noting that “where counsel provides scant information and elects not to have a Gladue report prepared regarding an accused’s Aboriginal heritage, it becomes more difficult…to later claim that the sentencing judge failed to properly consider those issues.” (para.23)

In R. v. Atkinson, 2017 MBQB 80, a sentencing decision concerning a violent home invasion, the court did not accept that the acknowledged Gladue factors should reduce the accused’s high moral blameworthiness, nor that they should influence the ultimate sentence. The accused received a global sentence of nine and one-half years. In the final two paragraphs of the decision the court makes some observations on issues in the corrections system which could be addressed.

Recent Sentencing Decisions

R v McKay, 2017 MBCA 55 – the appeal court found that a sentence of 30 months for two home invasion armed robberies was demonstrably unfit and increased the sentence by two years.

R. v. R.C.R.T., 2017 MBQB 113 - the court imposed a 5-year sentence for a major sexual assault (on the accused’s 8-year-old daughter). The sentence could affect the accused’s immigration status and result in his return to El Salvador after 19 years in Canada.

R. v. Emslie, 2017 MBQB 106 – the accused, an indebted drug dealer, was sentenced to eight years for a targeted home invasion robbery of another drug dealer.

R. v. Hidalgo, 2017 MBQB 100 – despite personal circumstances favouring a lower sentence, the court declined to go below the range set by the Court of Appeal in Grant and imposed a nine-year sentence on the accused, a high-level drug dealer who pled guilty to conspiracy to traffic a total of six kilograms of methamphetamine in a series of five separate transactions.

R. v. Odine, 2017 MBQB 88 – a U of M business student from Nigeria who pled guilty to 24 charges related to his participation in an online mass marketing fraud received a global sentence of 54 months.

Legislative Update

Federal

These bills recently received royal assent:

Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, received royal assent and came into force June 19, 2017. It amends 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-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.

These bills were at the following stages when Parliament adjourned for the summer on June 21, 2017:

Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, passed second reading and was referred to the Standing Committee on Health on June 8, 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, passed second reading and was referred to committee on May 31, 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-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, was introduced June 6, 2017 and was referred to the Standing Committee on Justice and Human Rights on June 15, 2017. It amends the Criminal Code to remove unconstitutional or obsolete provisions and modify certain sexual assault provisions. For further information see the legislative summary, departmental information, and these Canadian Lawyer and Legal Feeds blog posts.

Bill C-305, An Act to amend the Criminal Code (mischief), was reported without amendment in the Senate on June 21, 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 is in second reading in the Senate. 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), is before the House of Commons in second reading.

Provincial

Bill 15, The Department of Justice Amendment Act, received royal assent and came into force June 2, 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, received royal assent June 2, 2017 and will come into force on proclamation. 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, received royal assent June 2, 2017 and will come into force on proclamation. 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, received royal assent June 2, 2017 and will come into force on proclamation. It 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), received royal assent and came into force June 2, 2017, with the exception of Parts 2, 3, 5, and 6 which will come into force on proclamation. It 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.

Provincial Court Notice

The Provincial Court issued a notice on June 19, 2017 that a video conferencing connection became available June 12, 2017 between Portage la Prairie Provincial Court and Headingly. The notice indicates how the new connection will change court scheduling, transportation guidelines, and communication between counsel and clients.

Call for Papers

The Manitoba Law Journal and RobsonCrim.com have issued a call for papers on issues related to criminal law for their open access Manitoba Law Journal. The deadline for submissions is February 1, 2018.