eLaw

eLaw - Criminal Law Update | February 2018 - No. 86

The Law Society of Manitoba
Professional Education and Competence

eLaw Criminal Law Update

February 2018

In This Issue

Indeterminate Sentences Constitutional: SCC
Ensuring Juries are Properly Instructed: MBCA
Photo Lineup Identification Evidence: MBCA
Role of Exceptional Circumstances in Sentencing “Limited and Rare”: MBCA
45 Months’ Delay Unreasonable: MBQB
Recent Sentencing Decisions
Provincial Court Notice and Form
Recommended Reading
Criminal Justice Conference: CBA

Indeterminate Sentences Constitutional: SCC

The Supreme Court considers the constitutionality of the dangerous offender/indeterminate sentence regime in R. v. Boutilier, 2017 SCC 64, with a divided court finding no overbreadth in either s. 753(1) (the designation provision) or s. 753(4.1) (the penalty provision). All judges agreed that s. 753(1) is not overbroad, since consideration of future treatment prospects has always been part of the prospective assessment of risk under the section. With respect to s. 753(4.1), the majority found it does not impose punishment that is grossly disproportionate or create a presumption in favour of indeterminate detention contrary to s. 12 of the Charter. One judge disagreed, finding that, by demanding a singular focus on public safety, s. 753(4.1) imposes indeterminate detention in cases where it is grossly disproportionate to the sentence mandated by the sentencing principles in the Criminal Code and the public protection objective of the dangerous offender scheme, and is therefore unconstitutional. These two articles from The Court comment on the decision:

R v Boutilier: The Dangerous Offender Regime and the Spectre of Indeterminate Sentences

A response to R v Boutilier and the Constitutionality of Indeterminate Sentences

Ensuring Juries are Properly Instructed: MBCA

The Court of Appeal comments on jury charges and Vetrovec warnings in R v Ross, 2018 MBCA 7, an unsuccessful appeal of a second degree murder conviction where the only evidence directly implicating the accused contained several contradictions and inconsistencies and came from a difficult and reluctant witness. On the issue of whether the trial judge erred in his charge to the jury by failing to give sufficient instruction on the dangers of convicting the accused based solely on the unconfirmed evidence, the court found that while it may well have been preferable for the trial judge to have included a more traditional Vetrovec-type warning, the instructions given sufficiently alerted the jury to the potential frailties of the evidence. The court went on to comment on the duty on counsel to assist trial judges to ensure that juries are properly instructed. In this case, the trial judge was not asked to provide a Vetrovec or Vetrovec-type warning to the jury. “While failure to object to the charge is not determinative, it is a relevant factor for an appellate court to consider in assessing the overall sufficiency of the jury instructions and the materiality of the alleged error,” said the court, particularly in cases where obvious tactical considerations come into play. (paras. 17-18)

Photo Lineup Identification Evidence: MBCA

Two recent drug trafficking appeals consider challenges to the photo lineup identification process:

In R v Campbell, 2018 MBCA 4, a trial judge’s characterization of the photo lineup evidence as “tainted” (because the undercover officer identified the accused from the same photo he had seen earlier as a target of the investigation) was unfortunate, but did not raise a question of law, according to the court. The court rejected the Crown’s argument that the judge should have considered it to be recognition evidence, which would have strengthened rather than weakened the identification evidence. “While the jurisprudence often recognizes that recognition evidence may be afforded greater weight than stranger identification evidence, it is not, by necessity, a principle of law as argued by the Crown,” said the court. The appeal of the acquittal on drug trafficking charges was dismissed.

In R v Delorme, 2017 MBCA 119, the accused alleged ineffective assistance of counsel in appealing his conviction on a charge of trafficking in cocaine. Among other things, he argued that his trial counsel’s failure to cross-examine the undercover police officer in relation to the photo lineup was in violation of the rule in Browne v Dunn. The court disagreed, finding that the accused had not established a factual component for this allegation.

Role of Exceptional Circumstances in Sentencing “Limited and Rare”: MBCA

The starting point for the offence of breaking, entering and stealing a “restricted firearm” from a dwelling-house (contrary to s. 84(1) of the Code) for a mature offender pleading guilty with no record and prior good character would be a sentence of 30 months’ imprisonment, according to the Court of Appeal in R v Burnett, 2017 MBCA 122. In this case, although “the accused’s personal circumstances allowed for the imposition of a sentence with a degree of leniency,” the original 90-day intermittent sentence for a crime that was both pre-meditated and profit-motivated (being paid to steal a gun and refusing to co-operate in its recovery) was found to be unfit given the absence of exceptional circumstances. The court also discusses the relevant considerations in determining whether re-incarceration will serve the ends of justice at para. 40. The court substituted a sentence of 18 months’ imprisonment and a fine of $4,000 for the original sentence, but permanently stayed the remaining period of imprisonment.

45 Months’ Delay Unreasonable: MBQB

Delay exceeding 45 months resulted in the court staying sexual assault convictions against two self-represented accused in R. v. S.F. and D.G., 2017 MBQB 216. The Crown argued that the defence was responsible for significant delay, including that due to the unavailability of cross-examination counsel appointed at the request of the Crown pursuant to s. 486.3 of the Criminal Code. The court found, however, that neither accused was responsible for this or other delay in the straightforward case. The court also found that the transitional exceptional circumstance did not apply.

Recent Sentencing Decisions

R. v. Anderson, 2018 MBQB 13 – balancing the objectives of promoting the rehabilitation of an 18-year-old with an otherwise clean record and the need to protect the public by allowing for a maximum period of supervision after incarceration, the court imposed an effective sentence of four years followed by three years of probation for manslaughter, noting that the accused had a much less significant role in the assault that caused the victim’s death than his co-accused.

R. v. Safaye, 2017 MBQB 217 – the accused, a street to mid-level drug dealer, was sentenced to four years concurrent on two cocaine trafficking charges.

R. v. Merkl, 2017 MBQB 197 – a first time offender convicted of several sexual offences involving 6 and 4 year old children babysat by his girlfriend was sentenced to a total of 44 months’ imprisonment.

R. v. Green, 2017 MBQB 181– the court imposed a sentence of life imprisonment on a youth sentenced as an adult for second degree murder.

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 and has been referred to committee. 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-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-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 proposed 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.

Provincial Court Notice and Form

The Provincial Court issued a notice on January 10, 2018, concerning changes to the Request to File Material in the Provincial Court form. The changes will alert judges to the anticipated issues in the proceeding.