eLaw

eLaw - Criminal Law Update | December 2018 - No. 88

The Law Society of Manitoba
Professional Education and Competence

eLaw Criminal Law Update

December 2018

In This Issue

Breathalyser Maintenance Records Subject to Third Party Disclosure Rules: SCC
Mandatory Minimum Sentence Under s.151(a) CCC Unconstitutional: MBCA
Overemphasising Collateral Immigration Consequences an Error: MBCA
“A Court of Appeal Hearing is Not a Tea Party”: MBCA
Other Decisions
Legislative Update
Court Notices and Directives
Recommended Reading
Winter CPD: LSM
2018 Mid-Winter Conference: MBA
Criminal Justice Conference: CBA

Breathalyser Maintenance Records Subject to Third Party Disclosure Rules: SCC

The Supreme Court considers the disclosure of breathalyser maintenance records in two recent impaired driving appeals involving three separate accused. In R. v. Gubbins, 2018 SCC 44, the court upheld the Court of Appeal finding that breathalyser maintenance records are third party records that are not to be disclosed routinely. In R. v. Awashish, 2018 SCC 45, at issue was the Crown’s ability to use certiorari to quash an order of the trial judge requiring disclosure of breathalyser records. The Supreme Court found that extraordinary remedies like certiorari may only be used in criminal proceedings where a provincial court judge has made a jurisdictional error. In this case, the court made a legal error, not a jurisdictional one, so its original order stood. These articles discuss the decisions:

Six Feet Under: The Benefits and Misgivings of Allowing the Crown to Withhold Breathalyzer Maintenance Records and R v Awashish and the Writ of Certiorari – Robson Crim Law blog
R v Gubbins Introduces Evidentiary Hurdles for Those Charged with Driving Over 80 – The Court
Maintenance records of breathalyzer machines are subject to third-party disclosure regime: SCC – Canadian Lawyer
R v Awashish : No Remedy for Errors of Law on Interlocutory Criminal Proceedings – The Court.ca

Mandatory Minimum Sentence Under s.151(a) CCC Unconstitutional: MBCA

In R v JED, 2018 MBCA 123, the Manitoba Court of Appeal followed other Canadian appeal courts in declaring that portion of s.151(a) of the Criminal Code that prescribes a mandatory minimum sentence of one year to be of no force and effect. In particular, the court considered the rarely adjudicated issue of the constitutionality of s.151(a) for sexual offences involving children, noting that the problem with the MMS provision for these offences is that it is a sweeping law that casts its net over a wide range of potential conduct. Although the one-year MMS was not grossly disproportionate for the accused in Jed, the court found that it would be grossly disproportionate for reasonably foreseeable less-serious offenders whose conduct would be captured by the section. As such, the court found at para. 129 that s.151(a) violates s.12 of the Charter and was not justified under s.1.

The sentence appeal raised “the difficult question of determining how the principles of deterrence and denunciation are to be applied in a situation where the accused has cognitive challenges.” In the end, the court found the 90-day intermittent sentence on two counts of repeated sexual interference by the accused against his two young nieces to be demonstrably unfit, and substituted a sentence totalling 22 months. One judge would have stayed the remaining custodial portion of the sentence, but the majority dismissed the stay request and the accused was reincarcerated.

Overemphasising Collateral Immigration Consequences an Error: MBCA

The court considers “the extent to which a sentencing judge can craft a sentence in order to avoid collateral immigration consequences” in R v Yare, 2018 MBCA 114, a Crown appeal of a less than six month sentence imposed by a sentencing judge who was “not inclined to subject (the accused) to deportation hearings” despite concluding that he “ought to be jailed for about a year for these charges.” In the appeal court’s view,

the sentencing judge imposed an artificial sentence in order to circumvent Parliament’s will and, in doing so, he erred in principle by overemphasising the collateral consequences. Moreover, reducing the sentence by more than six months from what he considered appropriate to avoid immigration consequences resulted in a sentence that is not proportionate having regard to the circumstances of the offence and the moral culpability of the offender. (para. 23)

After reviewing the aggravating and mitigating factors in the case and noting the accused’s moral culpability, the court concluded that deterrence and denunciation were the primary sentencing principles at play and substituted a total sentence of 13 months and 10 days’ incarceration.

“A Court of Appeal Hearing is Not a Tea Party”: MBCA

A pointed and heated exchange between counsel for the accused and one member of the panel hearing a first degree murder conviction appeal fell short of demonstrating a reasonable apprehension of bias toward the accused, according to the judge in question, who declined to recuse himself. The judge noted at para. 16 of R v Van Wissen, 2018 MBCA 100, that ”(u)nlike trial courts, where judges typically do not descend into the arena, appellate court judges are expected to enter the fray and challenge counsel and the validity of the arguments being advanced.” Neither the conviction appeal (R v Van Wissen, 2018 MBCA 110) nor the recusal motion were successful. This Osler article discusses the recusal decision.

Other Decisions

R v Devloo, 2018 MBCA 108 – the court denied the application for judicial interim release pending appeal brought by an accused convicted of conspiracy to traffic in cocaine and sentenced to 10 years, finding that the public interest would be better served if the accused remained in custody given the seriousness of the offences and the substantial sentence. Other factors of significance included the fact that the grounds of appeal, while not frivolous, could be difficult to advance successfully and that the delay in advancing the appeal was mitigated by early preparation of the trial transcripts.

R v S (WEQ), 2018 MBCA 106 – the court dismissed the accused’s motion for leave to appeal for a second-level appeal, finding that the SCA judge committed no error in deferring to the decision of the trial judge (that an officer does not need to have a specific offence in mind in order to have a subjective belief on reasonable grounds that an indictable offence has been committed and that the officer in this case had objectively reasonable grounds to arrest without a warrant).

R v Tummillo, 2018 MBCA 95 – the court upheld the trial judge’s rulings dismissing all of the accused’s Charter arguments related to his convictions on impaired driving cause bodily harm charges, including her finding that the 51 month total delay should be reduced to just under 30 months due primarily to delay occasioned by the accused. Arguments concerning breaches of ss. 7, 8 and 9 of the Charter were also rejected.

R v Owens, 2018 MBCA 94 – the appeal court found no factual foundation for the accused’s claim that she was not properly prepared for trial and no valid concern of ineffective assistance of counsel. Her motion to adduce fresh evidence and her conviction appeal (she argued that she should have been convicted of manslaughter not second degree murder) were dismissed.

R v Bisson, 2018 MBCA 92 – despite finding that the sentencing judge may have erred in categorizing the accused as a mid- rather than high-level cocaine trafficker, the appeal court found that the 8-year sentence imposed was not demonstrably unfit and dismissed the Crown’s sentence appeal.

R v Volden, 2018 MBCA 91 – as a final comment in this unsuccessful sexual assault conviction appeal the court warns against advancing grounds of appeal outside the notice of appeal without seeking leave, concluding at para. 13:

We would…stress the importance of an initiating document clearly and precisely identifying all of the grounds of appeal that an appellant wishes to advance so that the appeal can proceed in a fair and orderly manner and without delay.

R v Beardy, 2018 MBCA 90 – the court dismissed the accused’s appeal of his second degree murder conviction, finding no evidentiary foundation for the subjective component of the provocation defence and no misdirection by the judge on the necessary intent. In a final comment concerning the instructions on intent the court said:

The alleged error was the possible confusion resulting from the judge using an abbreviated description of the form of intention described in section 229(a)(ii) of the Code later in his charge….We would discourage trial judges from using abbreviated descriptions of the mental states set out in sections 229(a)(i)-(ii) after both states of mind have been properly explained to the jury. It is unnecessary to use such abbreviations to explain the concept of jury unanimity on the question of intent. (paras. 4 and 6)

R. v. Wasserman, 2018 MBQB 151 – unsuccessful attempt by accused to reopen trial following a finding of guilt by introducing fresh evidence of an unproven third party breach to show a pattern of police misconduct.

R. v. Ahmed, 2018 MBQB 133 – despite concerns about possible collusion and fabrication of evidence by the accused and his witnesses, the court found that the defence had established a plausible alternate theory as to the accused’s knowledge of the drugs, cell phones and cash in his possession and could not be satisfied beyond a reasonable doubt that the accused knew he was in possession of cocaine or that he had possession for the purpose of trafficking. The accused was found not guilty.

Legislative Update

Federal

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 before the Senate and the committee reported the bill without amendment on December 4, 2018. Among other things, the bill introduces a new system to regulate arms brokering. For further information see the legislative summary.

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 at third reading before the Senate as of October 30, 2018. The bill amends the Criminal Code to remove unconstitutional or obsolete provisions and to 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-71, An Act to amend certain Acts and Regulations in relation to firearms, is in second reading before the Senate. 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, is in first reading before the Senate as of December 3, 2018. It proposes reforms to modernize the criminal justice system and reduce court delays by, among other things, updating interim release provisions, abolishing peremptory challenges of jurors, restricting the availability of preliminary inquiries to offences punishable by imprisonment for life, repealing unconstitutional provisions, and amending the Youth Criminal Justice Act. For further details see the legislative summary, Charter statement, and these articles:

Feds Introduce Justice Reforms With C-75 and Update on Bill C-75: Elimination of Criminal Practices in Law School Clinics - 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 and Omnibus Bill C-75 attracts
wide-ranging response – CBA National

Bill C-83, an Act to amend the Corrections and Conditional Release Act and another Act, amends the Corrections and Conditional Release Act to, among other things, eliminate the use of administrative and disciplinary segregation; authorize the Commissioner to designate structured intervention units; require the CSC to provide less invasive alternatives to physical body cavity searches and to consider systemic factors unique to Indigenous offenders in all decision-making. It was reported with amendments on December 4, 2018.

Bill C-84, An Act to amend the Criminal Code (bestiality and animal fighting), received second reading and was referred to committee October 29, 2018. It amends the Criminal Code to broaden the scope of the bestiality and animal fighting offences

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), is in first reading before the Senate as of November 8, 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-215, An Act to amend the Criminal Code (sentencing for violent offences against Aboriginal women), is in second reading before the House of Commons as of November 26, 2018. It amends the Criminal Code to require a court, when imposing a sentence for certain violent offences, to consider the fact that the victim is an Aboriginal woman to be an aggravating circumstance.

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. It is in second reading before the House of Commons as of November 20, 2018.

Bill S-250, An Act to amend the Criminal Code (interception of private communications), is currently in second reading before the Senate.

Bill S-251, An Act to amend the Criminal Code (independence of the judiciary) and to make related amendments, is before committee in the Senate as of November 27, 2018.

Provincial
The fourth session of the forty-first legislature opened November 20, 2018.

Bill 7, The Highway Traffic Amendment Act (Immediate Roadside Prohibitions), was introduced on November 29, 2018. Among other things, it amends The Highway Traffic Act to allow peace officers to impose immediate roadside prohibitions on drivers based on blood alcohol content. For further details see the explanatory note to the bill.

Court Notices and Directives

Schedule of Hearings (Holiday Break 2018) – this memorandum advises of the hearing schedule for motions and bails between Dec 24, 2018 and Jan 3, 2019.

Service Changes Effective November 13, 2018 – this notice details several service changes made by Manitoba Justice as part of its ongoing efforts to improve services and access to justice. Changes have been made to digital audio recording access and e-filing, both effective November 13, 2018. In addition, a project to improve courthouse wi-fi access is being phased in on a priority basis.

Federal PTC and Federal Administrative Dockets – this Provincial Court notice advises of changes to federal PTC and administrative dockets effective January 1, 2019.

HTA MATTERS - Night Court and St. Boniface Court – this Provincial Court notice outlines new scheduling for Highway Traffic Act matters effective January 16, 2019.

Pre-Trial Coordination Protocol - this September 1, 2018 Provincial Court practice directive sets out the pre-trial coordination protocol for all criminal prosecutions involving adults appearing in the Provincial Court – Winnipeg Centre.