eLaw

eLaw - Criminal Law Update | October 2017 - No. 84

The Law Society of Manitoba
Professional Education and Competence

eLaw Criminal Law Update

October 2017

In This Issue

Mistake of Age Defence Clarified: SCC
“Wholly Inadequate” Reasons an Error of Law: MBCA
Court of Appeal to Settle the Law on Jordan: MBCA
Use of Myths and Stereotypes in the Determination of Credibility Invidious: MBCA
Other Court of Appeal Decisions
Legislative Update
Provincial Court Notice
Juristat on MMS
MMS.Watch
Recommended Reading
2017 Isaac Pitblado Lectures
Winter Replays: LSM
Continuing Professional Development: MBA

Mistake of Age Defence Clarified: SCC

In R. v. George, 2017 SCC 38, the Supreme Court provides guidance on what raises a reasonable doubt in respect of the objective element in s.150.1(4) of the Criminal Code, which requires an accused person who is five or more years older than a complainant who is 14 years of age or more but under the age of 16, to take “all reasonable steps to ascertain the age of the complainant” before sexual contact. The objective element is designed to enhance protections for youth, according to the court, and “(d)etermining what raises a reasonable doubt in respect of (it) is a highly contextual, fact-specific exercise.” In this case, the trial judge who acquitted the 35-year-old woman who had sexual intercourse with a 14-year-old she reasonably believed was over the age of consent, made no legal errors in assigning weight to the evidence. The court went on to clarify, in obiter, that “overt indicia of exploitation may diminish the credibility of an accused person’s purported mistaken belief in the complainant’s age, or the reasonableness of the steps taken by that accused person… but they are not required for the offence itself to be made out.” (para. 26)

"Wholly Inadequate” Reasons an Error of Law: MBCA

The Court of Appeal ordered a new trial in R v WDT, 2017 MBCA 94, a case involving allegations of sexual assault and interference against three child victims. Both the accused and the Crown appealed the trial verdict, jointly arguing that inadequate reasons precluded them from seeking meaningful appellate review and that trial fairness and the administration of justice were adversely impacted. They also asserted that two of the verdicts were inconsistent and that a new trial was necessary on all counts. The court agreed, finding that the reasons did not “inform the parties of the basis for the verdict, provide public accountability or permit meaningful appellate review” and that it was unclear on what basis the trial judge convicted the accused of sexual interference but acquitted him of sexual assault given the admitted facts.

Court of Appeal to Settle the Law on Jordan: MBCA

In R v Grant, 2017 MBCA 84, the court granted the accused leave to appeal from a summary conviction appeal judge decision applying Jordan to find that a delay of just under 18 months in prosecuting a photo radar speeding charge did not infringe the accused’s right to be tried within a reasonable time pursuant to s. 11(b) of the Charter. The court found that the case involved a matter of substance of sufficient importance to merit its attention, especially given the conflicting decisions interpreting what institutional delay is reasonably acceptable for highway traffic offences and the tension between “the weight to be assigned the simplicity of the prosecution of offences…and the allocated institutional resources.”

Use of Myths and Stereotypes in the Determination of Credibility Invidious: MBCA

The court dismissed the accused’s appeal of his sexual assault related convictions in R v CAM, 2017 MBCA 70, finding that the judge’s credibility assessment was not the product of an uneven scrutiny of the evidence and did not undermine trial fairness, as argued by the accused. The court rejected unequivocally the accused’s submission that the complainant’s credibility as to her version of events was undermined because it did not conform to some “idealized standard of conduct” and cautioned against the use of myths and stereotypes to discredit the credibility of complainants in allegations of sexual violence. According to the court, “(t)he law is now well settled that the use of myths and stereotypes has no place in the determination of credibility because such reasoning corrupts and distorts the trial process and may result in an unfair trial. Trial judges have a heavy responsibility to ensure that counsel do not introduce the spectre of such forbidden reasoning into a trial.” (paras. 50-51)

Other Court of Appeal Decisions

R v Shahnawaz et al, 2017 MBCA 93 – the court granted the two accused leave to appeal their ten year sentences on drive by shooting convictions, but dismissed the appeal finding that, while the judge erred when he determined the overall length of incarceration before deciding whether the sentences should be consecutive or concurrent and in ignoring the conditions of interim judicial release as a mitigating factor on sentencing, neither error had an impact on the sentence, which was “not unfit.”

R v Gowenlock, 2017 MBCA 82 and R v Gowenlock, 2017 MBCA 79 – these decisions deal with the court’s decision to appoint amicus to assist the court in arguing against a defence counsel’s challenge to a court order requiring him to pay $1000 costs personally for failing to comply with a court-imposed deadline for filing a motion brief.

R v Ackman, 2017 MBCA 78 – the court declined to extend the Bedford decision (declaring s. 212(1)(j) invalid) to a charge of living on the avails of prostitution of persons under the age of 18 years (s. 212(2)), finding that the underlying premise in Bedford was that prostitution was not illegal as it pertained to adults, but that prostitution involving persons under the age of 18 years was and continues to be illegal.

R v McDonald, 2017 MBCA 72 – the court overturned the accused’s first degree murder conviction and ordered a new trial, finding that that the trial judge erred in admitting portions of a prior consistent statement of a jailhouse informant and in failing to properly instruct the jury to prevent its improper use in their deliberations

Legislative Update

Federal

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 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 referred to the Standing Committee on Health on June 8, 2017 and reported with amendments on October 5, 2017. It enacts the Cannabis Act to provide legal access to cannabis and to control and regulate its production, distribution and sale. For further detail see the executive summary, task force report, press release and background documents, and these Slaw and Dentons overviews.

Bill C-47, An Act to amend the Export and Import Permits Act and the Criminal Code (amendments permitting the accession to the Arms Trade Treaty and other amendments), had second reading October 3, 2017 and was referred to the Standing Committee on Foreign Affairs and International Development. Among other things, it introduces a new system to regulate arms brokering.

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-56, An Act to amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act, was introduced and received first reading on June 19, 2017. It is intended to restrict the use of administrative segregation and strengthen Canada’s federal correctional system. For further information see the legislative summary and departmental information.

Bill C-305, An Act to amend the Criminal Code (mischief), had third reading in the Senate on September 28, 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 in second reading before the Senate as of October 2017. It is a private member’s bill designed to ensure that new judges who oversee sexual assault cases have adequate training on the sensitivities and laws surrounding sexual assault and violence. 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.

Provincial

The Provincial Court Amendment Act, S.M. 2017, c.4, was proclaimed August 9, 2017 and came into force September 1, 2017. It amends The Provincial Court Act to provide that an administrative judicial justice of the peace is to be appointed to assist the Chief Judge in the administration and management of all judicial justices of the peace. As well, a retired judicial justice of the peace may be designated as a senior judicial justice of the peace and can be assigned duties by the Chief Judge when there is a temporary shortage of judicial justices of the peace.

The Provincial Offences Act and Municipal By-law Enforcement Act, S.M. 2013, c. 47, Sch. A, was proclaimed August 9, 2017 and will come into force November 20, 2017.

The Fatality Inquiries Amendment Act, S.M. 2017, c.15, was proclaimed October 11, 2017 and will come into force November 1, 2017. It clarifies when an inquest into a death is to be held, including deaths while in custody and deaths resulting from use of force by a peace officer.

The Legislative Security Act, S.M.2017, c.17, was proclaimed October 4, 2017 and came into force October 11, 2017. It deals with security in the legislative precinct.

Provincial Court Notice

The Provincial Court issued a notice on Video Conferencing Connection – Brandon Court on August 29, 2017. The notice confirms that a new video conferencing link between the Brandon Provincial Court and several correctional centres will be available as of September 6, 2017.

Juristat on MMS

Juristat released its research study on Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences on August 29, 2017. It explores the impact of the mandatory minimum penalties for Criminal Code offences enacted from 2005 to 2012, using data from the Integrated Criminal Court Survey. The study is limited to an examination of sentencing outcomes for three offence categories: selected sexual violations against children, child pornography and selected firearms-related offences.

MMS.Watch

MMS.Watch, an ongoing project by rangefindr.ca to monitor the constitutionality of each mandatory minimum sentence in the Criminal Code and the Controlled Drugs and Substances Act, is free for non-commercial use. For further information see the Slaw post New MMS.watch Website Tracks Constitutionality of Canadian Mandatory Minimum Sentences. Note also that the MBA is presenting a free webinar on Rangefindr on November 21, 2017 (see below).