eLaw

eLaw - Criminal Law Update | December 2017 - No. 85

The Law Society of Manitoba
Professional Education and Competence

eLaw Criminal Law Update

December 2017

In This Issue

Text Messages May Be Protected Under s.8 of the Charter: SCC
Joint Trials Permissible and Desirable: SCC
Supreme Court Addresses Collateral Immigration Consequences
Warrantless Seizure Reasonable: MBCA
Avoiding the Certiorari Maze of Jurisdictional Versus Legal Error: MBCA
Adult Sentence Required for Violent Highly Morally Culpable Crimes: MBCA
Collateral Immigration Consequences Should Not Skew Sentencing Process: MBQB
Other Recent Decisions
Legislative Update
Report on Legal Aid
Recommended Reading
Winter Replays: LSM
Criminal Justice Conference: CBA

Text Messages May Be Protected Under s.8 of the Charter: SCC

Two recent Supreme Court of Canada decisions address whether there is a reasonable expectation of privacy in sent and received text messages. In both R. v. Jones, 2017 SCC 60 (where the messages were stored on a Telus server) and R. v. Marakah, 2017 SCC 59 (where they were on a co-accused’s phone), the court confirmed that text messages themselves (apart from their physical location) can be protected against unreasonable search or seizure under s. 8 of the Charter. To assert s. 8 protection a claimant must first establish a reasonable expectation of privacy in the subject matter of the search, said the court, which is assessed in the “totality of the circumstances.” The majority outlined four lines of inquiry to guide this analysis: whether the claimant has a direct interest and a subjective and objectively reasonable expectation of privacy in the subject matter of the search. In Marakah, the court found that the police conduct in accessing and searching the electronic conversation through the co-accused’s phone without a warrant two hours after his arrest was sufficiently serious to favour exclusion of the evidence. In Jones, however, the court found that while it is objectively reasonable for the sender of a text message to expect a service provider to keep information private, in this case the accused’s s. 8 Charter right was not breached because the stored records were lawfully seized by means of a production order under s. 487.012 (now s. 487.014) of the Criminal Code. These commentaries elaborate on the decision:

Supreme Court of Canada Rules Text Messages Can Attract a Reasonable Expectation of Privacy - CyberLex

Can We Talk? A Brief Look At The Supreme Court of Canada’s Holistic Approach to Electronic Conversations – CanLII Connects

SCC rulings weigh in on privacy of text messages - Canadian Lawyer

Joint Trials Permissible and Desirable: SCC

In R. v. Sciascia, 2017 SCC 57, the Supreme Court overturned an Ontario Court of Appeal ruling to find that trial judges have jurisdiction to conduct joint trials on provincial offences and summary conviction criminal charges. As summarised in para. 9 of the decision, four considerations informed the majority’s analysis:

First, no provision in the relevant statutes prohibits an OCJ judge from conducting a joint trial of criminal and provincial offences. Second, allowing for a joint trial is consistent with enhancing efficiency — the main objective underlying the enactment of the POA. Third, in this case, the charges in question related to the same course of events, establishing a clear factual nexus. Finally, there was no prejudice to the accused — indeed, he expressly consented to the joint trial taking place. In these circumstances, conducting a joint trial was both permissible and desirable in the interests of justice.

Supreme Court Addresses Collateral Immigration Consequences

A conditional sentence is not a “term of imprisonment” for the purpose of assessing a permanent resident’s inadmissibility to Canada on grounds of serious criminality under s. 36(1)(a) of Immigration and Refugee Protection Act, according to the Supreme Court in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50. The court also found that the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time the offence was committed, not at the time of admissibility determination. The decision of the Minister’s delegate (referring Tran to an admissibility hearing after he was convicted of a federal offence and received a 12-month conditional sentence) was quashed and the matter was remitted to a different delegate. This article from The Court reviews the decision.

Warrantless Seizure Reasonable: MBCA

In R v Warren, 2017 MBCA 106, “the court is once again called on to consider the important question of the ability of police to seize evidence pursuant to section 489(2) of the Criminal Code (seizure without a warrant) and the circumstances under which that section is applicable.” In this case, the firearms were seized by a police officer who observed them when he was in the house securing the safety of three children in a domestic violence situation. The lower courts erred, said the court, in applying Godoy to find that s. 489 (2) did not apply since the seizing officer was no longer lawfully in the home when the firearms were seized. In the court’s view, “the observations by the seizing officer and the decision to seize the impugned items did not change the fact that he was lawfully in the residence. It was at the moment that the seizing officer observed the unlawfully stored, unsecured firearms, that the authority to seize that evidence crystalized pursuant to s. 489(2)(c). The court entered convictions on the firearms charges and remitted the matter for sentencing.

Avoiding the Certiorari Maze of Jurisdictional Versus Legal Error: MBCA

The Court of Appeal set aside an order of certiorari and reinstated an order of discharge on a sexual assault charge in R v C.M.M., 2017 MBCA 105, finding that the remedy of certiorari was not available where the preliminary judge’s decision to discharge the accused when the Crown chose not to call the complainant for cross-examination did not give rise to a jurisdictional error. The court declined counsels’ request to provide direction as to the meaning of ss. 540 (7) and (9) of the Criminal Code (concerning alternate ways of providing evidence at preliminary inquiries), given the narrow nature of appellate jurisdiction. The court did note, however, that the Crown could have avoided the cumbersome remedy of certiorari by addressing the alleged error of the preliminary judge through the more expeditious direct indictment power under s. 577. In an era of presumptive time limits for criminal cases going to trial and the duty of full disclosure, said the court, the Crown “should give very serious consideration to preferring direct indictments” to ensure the timely adjudication of criminal cases on their merits. “In an appropriate case, such a course of action is more proportional to remedy inherent or unforeseen delays in the criminal process than the alternative of, after a discharge, entering the certiorari maze of jurisdictional versus legal error.” (para. 14)

Adult Sentence Required for Violent Highly Morally Culpable Crimes: MBCA

In R v McClements, 2017 MBCA 104, the Court of Appeal granted the Crown’s application to impose an adult life sentence on a 17-year-old gang associate who committed a random, violent and unexplained murder. At the heart of the appeal was the analysis required by s. 72(1) of the YCJA and the related jurisprudence, particularly with respect to the issue of moral blameworthiness. The court found that the sentencing judge erred in not addressing (1) whether the Crown had rebutted the presumption of diminished moral blameworthiness (s.72(1)(a)); and (2) whether a youth sentence would be long enough to reflect the seriousness of the offence and the accused’s role in it (accountability analysis). With regard to the latter, the court noted that:

The jurisprudence is clear that for a youth sentence to hold a young person accountable, it must achieve two objectives: 1) It must be long enough to reflect the seriousness of the offence and the young person’s role in it; and 2) It must be long enough to provide reasonable assurance of the young person’s rehabilitation to the point where he can be safely reintegrated into society. If the Crown demonstrates that either objective of accountability is not met, an adult sentence must be imposed. (para. 70)

Collateral Immigration Consequences Should Not Skew Sentencing Process: MBQB

In two recent decisions involving accused without Canadian citizenship the court rejected requests from defence counsel to impose sentences of less than six months in light of the collateral immigration consequences (deportation) of a longer sentence:

R. v. Gebru, 2017 MBQB 182 – an accused who counselled another to murder or rob his business partner was given a five year custodial sentence. The court rejected the defence request to depart from the usual custodial sentence and impose a sentence of less than six months given the collateral immigration consequences to the accused, finding that this would not be proportionate to the gravity of the offence and the degree of responsibility of the accused.

R. v. Moustafa, 2017 MBQB 170 – the court imposed an 18-month sentence on a non-citizen convicted of trafficking cocaine, observing that a lesser sentence would circumvent the provisions and policies of the Immigration and Refugee Act and result in a separate sentencing scheme where deportation is a risk.

Other Recent Decisions

R v Moose, 2017 MBCA 112 – the Court of Appeal upheld convictions for several robbery related offences, finding that the judge considered and weighed the importance of the evidence that undermined the reliability of the eyewitnesses with appropriate care and that the verdicts were reasonable.

R. v. Grant, 2017 MBQB 176 – the totality of the circumstantial evidence in this case (including unreliable or inadequate DNA testing results) fell short of the criminal standard of proof beyond a reasonable doubt and resulted in the accused being acquitted on a second degree murder charge.

R. v. Ndlovu, 2017 MBQB 157 – a gang affiliate who used gang resources to produce a loaded firearm used by an associate in a dispute outside a nightclub (resulting in the victim’s death) received a nine-year sentence after pleading guilty to manslaughter.

There have been several drug trafficking conviction/sentencing decisions over the last few months:

R. v. Devloo and Ong, 2017 MBQB 180 - the co-accused were convicted on multiple counts of conspiracy to traffic and trafficking cocaine arising out of Project Distress. Defence counsel challenged the testimony and credibility of a civilian agent used by the police.

R. v. Castelein and Berthelette, 2017 MBQB 173 – the court was satisfied that the tenant of the apartment in which drugs were found knew about the drugs and allowed them to be kept there. She was found guilty of four counts of possession, but her co-accused houseguest was acquitted.

R. v. Banayos (O.), 2017 MBQB 175 and R. v. Banayos (C.), 2017 MBQB 174 – a brother who played a leadership role in a quarter-kilogram level cocaine trafficking scheme and laundered the proceeds in an ATM to his sister’s account received a 10-year total sentence and was fined $51,040. His sister, who was also convicted on possess proceeds of crime and laundering charges, was sentenced to a period of incarceration of 15 months.

Legislative Update

Federal

Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, passed third reading in the House of Commons on November 27, 2017 and is currently before the Senate at second reading. 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-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, is in second reading before the Senate. It amends the Criminal Code to strengthen the legislative provisions relating to driving while impaired by drugs and, among other things, introduces new offences relating to driving while impaired by drugs and provides for the roadside use of oral fluid drug screening devices. For further information see the legislative summary, press releases and background documents, and this report by the CBA’s Criminal Justice section.

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 referred to the Standing Committee on Justice and Human Rights on June 15, 2017, was reported with amendments on November 20, 2017, passed third reading on December 11, 2017, and is currently before the Senate. The bill 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), passed by the Senate without amendment on October 18, 2017 and came into force on royal assent on December 12, 2017. This private member’s bill expands 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. 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.

Bill C-373, An Act respecting a federal framework on distracted driving, was introduced October 18, 2017 and is in second reading. It provides for the development of a federal framework to deter and prevent distracted driving and sets out consultation, review and reporting requirements in relation to the framework.

Bill C-375, An Act to amend the Criminal Code (presentence report), was introduced October 19, 2017 and is in second reading. It amends the Criminal Code to require that a presentence report contain information on any mental disorder from which the offender suffers.

Bill S-206, An Act to amend the Criminal Code (protection of children against standard child-rearing violence), was introduced in December of 2015 and is currently at second reading in the Senate.

Bill S-231, An Act to amend the Canada Evidence Act and the Criminal Code (protection of journalistic sources), received royal assent in the Senate October 18, 2017. It amends the Canada Evidence Act to protect the confidentiality of journalistic sources and the Criminal Code regarding the granting of search warrants relating to journalists.

Bill S-237, An Act to amend the Criminal Code (criminal interest rate), was referred to the Standing Committee on Banking, Trade and Commerce on November 23, 2017. It proposes amendments to the Criminal Code to reduce the criminal rate of interest on personal credit advances from sixty per cent to the Bank of Canada’s overnight rate plus twenty per cent.

Bill S-240, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs), was introduced on October 31, 2017 and is currently at second reading before the Senate. It creates new offences in relation to trafficking in human organs and tissue

Provincial

Bill 11, The Safe and Responsible Retailing of Cannabis Act (Liquor and Gaming Control Act and Manitoba Liquor and Lotteries Corporation Act Amended), was introduced on December 5, 2017. As indicated in the explanatory note, it amends The Liquor and Gaming Control Act and The Manitoba Liquor and Lotteries Corporation Act to authorize and regulate the retail sale of cannabis in Manitoba when such sales are permitted by the federal government.

Report on Legal Aid

The House of Commons Standing Committee on Justice and Human Rights recently released its report on Legal Aid (Part 2 of Access to Justice report). It contains ten recommendations to address the significant challenges faced by legal aid plans across the country.