eLaw

eLaw - Criminal Law Update | August 2018 - No. 87

The Law Society of Manitoba
Professional Education and Competence

eLaw Criminal Law Update

August 2018

In This Issue

Solicitor Client Privilege Not a Sword to Pierce Informer Privilege: SCC
Sentencing a Highly Individualized Process: SCC
CSC Must Ensure Appropriateness of Indigenous Offender
Policies and Programming: SCC
On-Duty Theft Conviction and Sentence Divides Appeal Court: MBCA
Allegations of Judicial Bias Should Not be Made Lightly: MBCA
Absence of Aggravating Factors Not Mitigating: MBCA
Trafficking Conviction Stands Despite Unlawful Search: MBCA
Sextortion a Form of Sexual Violence: MBCA
Other Court of Appeal Decisions
Queen’s Bench Decisions
Legislative Update
Court Notices
Recommended Reading
Fall CPD

Solicitor Client Privilege Not a Sword to Pierce Informer Privilege: SCC

Police officers charged with crimes are not entitled to disclose information to their defence lawyer which may reveal the identity of confidential informers involved in the case unless they can demonstrate that their innocence is at stake, according to the Supreme Court in R. v. Brassington, 2018 SCC 37. The court declined to establish a new exception to informer privilege sourced in the right to solicitor-client privilege, which the court noted does not provide a license to the client to communicate information that is otherwise protected from disclosure. Neither the right to solicitor-client privilege nor the right to make full answer and defence relieves police officers of their obligations to keep informer-privileged information in the strictest confidence. The court saw “no reason to advantage police officers who, by virtue of their positions of trust, have information that has been confided to them for safekeeping. They hold that information strictly for law enforcement purposes, and may use it only in furtherance of those purposes. It is not their information to exploit for personal juridical gain.” (para. 52)

Sentencing a Highly Individualized Process: SCC

The Supreme Court’s 6-1 decision in R. v. Suter, 2018 SCC 34, sheds light on a number of issues informing the delicate art of crafting individualized sentences in complex fact situations. Factors considered by the Supreme Court in its decision included: the tragic circumstances of the case (a two-year-old child was killed when the accused accidentally drove his car onto a restaurant patio while arguing with his wife); improper legal advice to refuse a breathalyser test; vigilante attacks on the accused (who was beaten at the scene and later abducted and had his thumb cut off) and his wife; the Court of Appeal finding of “impaired by distraction”; and the scope of appellate review and sentencing. Finding errors in the approach of both the sentencing judge (4 month sentence) and the Court of Appeal (26 months), the court took the unusual step of re-sentencing the accused to time served (10.5 months). This ABlawg article analyzes the decision: A Fine Balance: Sentencing Suter in the Supreme Court of Canada.

CSC Must Ensure Appropriateness of Indigenous Offender Policies and Programming: SCC

In using impugned and arguably discriminatory psychological and actuarial risk assessment tools in conducting needs and risk assessments of Indigenous offenders the Correctional Service of Canada breached its statutory obligations under s. 24(1) of the CCRA, according to a majority of the Supreme Court in Ewert v. Canada, 2018 SCC 30. The court noted at para. 59, that to achieve the objectives of humane custody and assist in the rehabilitation and reintegration of Indigenous offenders, “the CSC must ensure that its policies and programs are appropriate for Indigenous offenders and responsive to their needs and circumstances, including needs and circumstances that differ from those of non-Indigenous offender populations. For the correctional system, like the criminal justice system as a whole, to operate fairly and effectively, those administering it must abandon the assumption that all offenders can be treated fairly by being treated the same way.” Commentators have criticized the court’s finding that there was no violation of Charter rights and have questioned the efficacy of the declaratory relief given the lack of specificity and deadlines for compliance: Eighteen Years of Inmate Litigation Culminates with Some Success in the SCC’s Ewert v Canada – ABlawg and Who is worthy of constitutional protection? A Commentary on Ewert v Canada – Robson Crim Legal Blog

On-Duty Theft Conviction and Sentence Divides Appeal Court: MBCA

In R v Fedyck, 2018 MBCA 74, an unsuccessful appeal by a firefighter of his conviction and sentence for theft under $5000 committed while attending to an “obvious death” call involving an elderly woman, the Court of Appeal was divided on the issue of whether the trial judge misapprehended the evidence and engaged in impermissible speculation. The majority found that the evidence of the accused’s fellow firefighters concerning his unusual behaviour was relevant and admissible and that the decision of the trial judge was reasonably open to him on the totality of the evidence, despite alternative inferences put forward by the accused as to why he had the cash and gold necklaces. The majority also upheld the 6-month sentence despite inadvertent errors by the sentencing judge concerning statutorily aggravating factors and mitigating circumstances.

Allegations of Judicial Bias Should Not be Made Lightly: MBCA

In R v Baldovi et al, 2018 MBCA 64, the Court of Appeal declined to interfere with a motion judge’s conclusion that there was not a reasonable apprehension of bias on the part of the judge granting six wiretap authorizations in the Project Sideshow investigation. Prior to his appointment to the bench, the judge had worked in the same office as the Crown seeking the authorizations and had previously prosecuted one of the targets of the investigation. The court rejected all arguments by the accused concerning the legal test for reasonable apprehension of bias, noting that the threshold to rebut the strong presumption of judicial integrity and impartiality “always remains high and never varies” (para.19) and that “Canadian case law is clear that no reasonable apprehension of bias exists merely because a judge who is a former Crown prosecutor presides over a criminal matter that was “in the office” while they were still a Crown prosecutor.” (para.56)

Absence of Aggravating Factors Not Mitigating: MBCA

Ostensible consent by a person under age 18, who cannot legally consent to the sexual contact in question, is not a mitigating factor for the determination of the offender’s sentence, according to the Court of Appeal in R v SJB, 2018 MBCA 62. The court found that the trial judge erred in treating the lack of coercion, threat or pressure on the complainant (the accused’s 17-year-old stepdaughter) to participate in sexual intercourse and the absence of intimate images being taken as mitigating factors and in characterizing the repeated instances of sexual intercourse as acts of opportunity, not grooming. In determining an appropriate sentence, the Court of Appeal noted that “(s)entencing offenders for the offence of sexual exploitation requires acute sensitivity to subtleties related to the commission of the offence, the offender, the harm occasioned to the victim(s) and the needs of society.” While acknowledging that there was “no principled reason not to look to the four to five-year starting point” urged by the Crown, the court was of the view that an individualized sentence for this accused required a reduction from this point. The court substituted a 3-year sentence for the 18-month sentence originally imposed.

Trafficking Conviction Stands Despite Unlawful Search: MBCA

R v Molnar, 2018 MBCA 61, is a Charter appeal in a sniffer-dog drug case concerning the difference between reasonable suspicion to detain and reasonable and probable grounds to arrest (see para. 35) Acting on a tip, the RCMP found a suitcase containing marijuana in a train baggage car and arrested the accused without further evidence connecting her to the suitcase. Overturning the lower court decision that the RCMP had reasonable grounds to believe that the accused was travelling with the suitcase and that the arrest was lawful, the Court of Appeal found that, while the evidence was strong to establish a reasonable suspicion, the required strong connection between the suitcase and the accused (for the RCMP to have objective reasonable grounds to arrest her) did not exist. Although the court found neither the arrest nor the searches and seizures incidental to the arrest lawful, it dismissed both the accused’s motion to exclude the evidence under s. 24(2) of the Charter and her trafficking conviction appeal.

Sextortion a Form of Sexual Violence: MBCA

In R v McFarlane, 2018 MBCA 48, a sentence appeal illustrating “the pernicious effects that the misuse of technology can have on personal privacy and sexual integrity,” the Court of Appeal adjusted the accused’s 18-month sentence on sextortion convictions but not the combined sentence length. The court commented as follows on the proportionality arguments:

…the gravity of the extortion offence was serious. Extortion is punishable by up to life imprisonment. For good reason, extortionists have been treated harshly by the courts for centuries. It is also important to appreciate that sextortion is a form of sexual violence even though it occurs through the medium of the internet. As with physical abuse, a victim’s freedom of choice over his or her sexual integrity is violated. The long-term psychological harm to a victim…closely resembles what happens in a case of physical sexual assault… Finally, it is difficult to hold such offenders accountable because the crime is remotely committed and the nature of the internet provides predators with a degree of anonymity; in this case, it took the efforts of five different law-enforcement agencies in two countries over many months to solve the case. (para. 19)

Other Court of Appeal Decisions

R v Friesen, 2018 MBCA 69 – the Court of Appeal found that the sentencing judge erred when he applied a starting point for sexual interference that required a position of trust which was absent in the case and in imposing an excessive sentence for attempted extortion. The case involved a major sexual assault on a four-year-old child in the presence of the child’s mother, who the accused attempted to extort. The appeal court reduced the 6-year sentence to four and one-half years for the offence of sexual interference and 18 months concurrent for the offence of attempted extortion.

R v CJ, 2018 MBCA 65 – in a case that turned on credibility findings by the trial judge, a majority of the Court of Appeal ordered a new trial on sexual interference/exploitation charges involving a 17-year-old accused and a 6-year-old complainant, finding that the judge misapprehended certain evidence and drew improper inferences in a manner that was unfair to the accused. The dissenting judge found no basis to intervene in the trial judge’s negative credibility assessment since no palpable and overriding error had been made.

R v Sass, R v Zammit, 2018 MBCA 46 - the key issue in these two sentence appeals concerns the reasonableness of the judges’ application of the principle of “exceptional circumstances” to justify the imposition of a non-custodial sentence for commercial trafficking in cocaine. In both cases the Court of Appeal set aside the suspended sentences and substituted terms of imprisonment.

Queen’s Bench Decisions

R. v. Siwicki, 2018 MBQB 115 – a man who pled guilty to criminal negligence causing his 89-year-old mother’s death was sentenced to 3 months’ imprisonment. The mother suffered from dementia and died from sepsis after being left on the floor for several weeks after falling out of bed. As his mother’s sole caregiver the accused was in a position of trust and, while there was plenty of evidence that he was a devoted son and was respecting his mother’s wish to remain at home, the court concluded that his actions were a serious abdication of his responsibilities requiring the imposition of a punitive sentence (paras. 41-42).

R. v. N.A., a.k.a. N.T-S., 2018 MBQB 93 – the court declined to sentence a young person convicted of manslaughter as an adult, finding that the Crown had not met its onus to demonstrate that a youth sentence would not be of sufficient length to hold the accused accountable. Taking into consideration the fact that the accused did not initiate the confrontation and was found to be a very low risk to reoffend, the court was satisfied it would not be in the public interest to further incarcerate him. He was sentenced to a custody and supervision order for a period of one year.

R. v. M. (S.R.), 2018 MBQB 86 – this case also considers whether a youth sentence would hold the accused sufficiently accountable for her participation in an “egregious” robbery and forcible confinement offence. The court found that the Crown had not met either prong of the test for acceptance of an adult sentence, but sentenced the accused to a youth sentence approximating just under six years (factoring in time in custody on an enhanced credit basis).

R. v. McLeod, 2018 MBQB 73 and R. v. Kionke, 2018 MBQB 71 – these two cases consider the sentencing principles at play in determining the appropriate period of parole ineligibility on second degree murder convictions.

R. v. Asselin, 2018 MBQB 55 – a witness who intentionally ignored a subpoena to testify at a second degree murder trial was convicted of contempt of court and sentenced to 9 months’ imprisonment.

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 Senate on June 7, 2018 (after 46 amendments) and was given royal assent on June 21, 2018. It is scheduled to come into effect October 17, 2018. 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 this Slaw summary: Status of Federal, Provincial and Territorial Cannabis Act.

Regulations controlling the production, distribution, sale, importation and exportation of cannabis by federal licence holders were filed July 11, 2018.

Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, received royal assent on June 21, 2018. Sections 12-50 come into force 180 days after royal assent. It amends the Criminal Code to strengthen the legislative provisions relating to driving while impaired by drugs. Among other things, it 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 and this report by the CBA’s Criminal Justice section. The amendments are described as huge and controversial in this National Post article, and constitutional challenges are expected: Tough new impaired laws raise concerns in the West – Canadian Lawyer

Bill C-66, the Expungement of Historically Unjust Convictions Act, was granted royal assent June 18, 2018 and is now in force. It creates a procedure for expunging certain historically unjust convictions (involving consensual sexual activity between same-sex persons) and provides for the destruction or removal of the judicial records of those convictions from federal repositories and systems. For further information see the legislative summary, departmental information and background documents, and the Parole Board of Canada expungement process, guide and application form. The CBA article, Bill C-66 not a complete fix for historically unjust convictions, critiques the bill.

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), is at first reading in the Senate as of June 12, 2018. 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, is currently before the Standing Senate Committee on Legal and Constitutional Affairs. 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 this Canadian Lawyer article.

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-71, An Act to amend certain Acts and Regulations in relation to firearms, was at the report stage on June 20, 2018. Among other things, it targets gun violence by expanding background checks for those seeking to acquire firearms and introducing mandatory licence verification and record keeping by those selling firearms. For further information see the legislative summary and Charter statement.

Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, had second reading and was referred to committee on June 11, 2018. It proposes reforms to modernize the criminal justice system and reduce court delays. For further details see the legislative summary, Charter statement, and these articles:

Feds Introduce Justice Reforms With C-75 - Slaw

Liberal government justice reforms will cause further delays, criminal lawyers say – Canadian Lawyer

Sweeping changes proposed for Criminal Code – Law Times

Trial and error: criminal justice reform – CBA National

Bill C-337, An Act to amend the Judges Act and the Criminal Code (sexual assault), was referred to committee in the Senate on May 31, 2018. 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-375, An Act to amend the Criminal Code (presentence report), was reported with an amendment on May 10, 2018. 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 referred to committee in the Senate on May 31, 2018.

Bill S-237, An Act to amend the Criminal Code (criminal interest rate), is in third reading in the Senate. 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), creates new offences in relation to trafficking in human organs and tissue. The Senate adopted the committee report as amended on June 14, 2018.

Bill S-250, An Act to amend the Criminal Code (interception of private communications), was in second reading before the Senate as of May 29, 2018.

Bill S-251, An Act to amend the Criminal Code (independence of the judiciary) and to make related amendments, was introduced May 29, 2018 and is at second reading in the Senate.

Provincial

Part 5 of The Cannabis Harm Prevention Act (Various Acts Amended), S.M. 2017, c. 22, was proclaimed in force effective April 1, 2018.

Bill 11, The Safe and Responsible Retailing of Cannabis Act (Liquor and Gaming Control Act and Manitoba Liquor and Lotteries Corporation Act Amended), received royal assent June 4, 2018 and will come into force on proclamation. Section 1, s. 3(1)(a) and ss. 22 to 32 were proclaimed in force effective June 20, 2018. As detailed 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.

Bill 17, The Drivers and Vehicles Amendment and Highway Traffic Amendment Act, received royal assent on June 4, 2018 and will come into force on royal assent or proclamation. It makes changes to provincial laws to provide stricter penalties for careless and distracted driving.

Bill 25, The Non-Smokers Health Protection and Vapour Products Amendment Act (Prohibiting Cannabis Consumption in Outdoor Public Places), received royal assent on June 4, 2018 and will come into force on proclamation. It prohibits the smoking or vaping of cannabis in outdoor public places and other places specified by regulation.

Bill 26, The Impaired Driving Offences Act (Various Acts Amended), received royal assent June 4, 2018 and comes into force on royal assent or a specified date. It responds to the changes enacted in federal Bill C-46. See the explanatory note for further details.

Court Notices

Notice - Ordering Transcript of Recording of Proceeding – this Court of Appeal notice, issued July 10, 2018, advises that effective immediately anyone can order a transcript of the recording of any Manitoba Court of Appeal proceeding that is open to the public and that took place after June 21, 2018.

Appeals Under The Provincial Offences Act – this June 22, 2018 practice direction deals with the procedure for appeals under The Provincial Offences Act and replaces the direction for summary conviction appeals issued on May 9, 2013.

Announcement of Provincial Court of Manitoba's Judicial Authorization Registry – this Provincial Court announcement from April 12, 2018 advises that effective April 16, 2018, the court will allow public access to a registry of all judicial authorizations sought in Manitoba since November 1, 2017 and sets out the application process.

Youth Dispositions Scheduled by the Youth Disposition Coordinator – this April 12, 2018 notice discusses the booking of youth dispositions and requests for youth special sittings.