Breathalyser Maintenance Records Subject to Third Party Disclosure Rules: SCC
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
Overemphasising Collateral Immigration Consequences an Error: MBCA
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’
“A Court of Appeal Hearing is Not a Tea Party”: MBCA
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.
|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)
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.
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
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
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
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:
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
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.
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.
Winter CPD: LSM
|Cultural Diversity & Practising Law
– this program offers a practical approach to the complex and sometimes
thorny discussion of how to become more inclusive in an increasingly
diverse world. Presenter Dr. Rehman Abdulrehman will share tips and
strategies to help you navigate these complex and sometimes
uncomfortable interactions and discuss potentially polarizing issues
such as the impact of unconscious bias and privilege. The program
will be held February 12, 2019, from noon to 4:00 pm in the Law Society
classroom, 3rd floor, 260 St. Mary Ave.
Procrastination and Professional Liability Insurance Claims – staff
from the Law Society Professional Liability Insurance Department will
review the ethical and practical reasons lawyers should not
procrastinate when they become aware of circumstances that may give
rise to a claim and share tips on how to beat this common condition in
this practical webinar scheduled to run from noon to 1:00 pm on
February 13, 2019. Webinar group discounts apply where more than two
people register together.
2018 Mid-Winter Conference: MBA
|The Manitoba Bar Association’s 2019 Mid-Winter Conference
will take place January 24-25, 2019 at the Fairmont Hotel.
Continuing professional development sessions of interest to criminal
lawyers include: Understanding Common Diagnoses in Youth Forensic
Reports; Non-Consensual Distribution of Intimate Images; and Minding
Your Own Business: Making, Marketing, and Managing Your Practice. For
further details see the conference brochure.
Criminal Justice Conference: CBA
|The theme of the Canadian Bar Association’s annual Criminal Justice Conference
concerns witnesses: how to prepare, lead and cross-examine them and how
to deal with complications such as recanting, Vetrovec, and vulnerable
witnesses. The conference will be held April 6, 2019 in Vancouver, BC.
Justice Sheilah Martin is the keynote speaker.