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
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.
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
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
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
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.
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
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
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
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
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
|Collateral Consequences of Criminal Convictions and Quick Tips
– these CBA publications address the potential implications of criminal
convictions beyond imprisonment (affecting employment, housing, voting,
volunteering and even citizenship) and are a useful reference for
lawyers speaking to sentence or advising clients charged with criminal
You are not Alone: Ontario and British Columbia Invalidate Solitary Confinement – this post from The Court discusses two recent trial level decisions which find that ss. 31-37 of the Corrections and Conditional Release Act violate s. 7 of the Charter (Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491 and British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62).
Return to Sender: Reasonable Expectations of Privacy in R v Marakah - this post from The Court comments on the majority and minority decisions in Marakah
and discusses the implications for the prosecution of online crimes
such as child luring, sharing online images, and trade in banned
Consultation on Federal Cannabis Regulation – the CBA’s Working Group on Cannabis published its submission on Health Canada’s Proposed Approach to the Regulation of Cannabis
in January 2018. It addresses such issues as the types of proposed
licences, security clearances, packaging and labelling, and health
products, among other things.
The Robson Crim Legal blog features several new student posts, including:
Criminal Justice Conference: CBA
|The theme of the CBA’s spring Criminal Justice Conference is The Pre-Trial Motion Puzzle. Topics to be covered include: delay and Vukelich motions and Corbett applications. The program takes place on April 21, 2018, in Vancouver. For further details see the conference agenda and registration form.