R. v. Spotted Eagle, 2022 MBCA 75: Appeal of conviction for possession of methamphetamine for the purpose of trafficking. Accused seeks to have conviction set aside or, in the alternative, substitute a conviction for simple possession. He argues that the evidence was insufficient to find a conviction for trafficking. Appeal dismissed.
R. v. Tarapaski, 2022 MBCA 74: Appeal of conviction of possession of a non-restricted firearm without being a holder of a licence, and two counts of possession of firearms when bound by an order prohibiting it. Item in question was an improvised firearm, not an inoperable commercially manufactured firearm (para 19). Analysis of the limits of a statutory definition. Test set out in R. v. Covin, [1983] 1 S.C.R. 725 and summarized in R. v. Vader, 2012 ABQB 288. Appeal dismissed.
R. v. Meilleur, 2022 MBCA 71: Appeal of conviction of manslaughter and sentence of 13 years imprisonment, after trial by judge and jury. Accused submits that the trial judge erred in admitting an inculpatory statement he gave to police. He appeals sentence on the basis that it was harsh and excessive. Conviction appeal dismissed; leave to appeal sentence granted and also dismissed.
R. v. Ostamas, 2022 MBCA 68: Appeal of sentence ordered in 2016 for pleading guilty to three counts of second degree murder. Accused was sentenced to life imprisonment with 25-year periods of parole ineligibility consecutively. Accused argues that given s. 745.51 has been found unconstitutional (R. v. Bissonnette), the 25-year periods should be made concurrent rather than consecutive. Crown agrees. Appeal allowed.
R. v. Sinclair, 2022 MBCA 65: Accused seeks leave to appeal and appeals sentence of five years’ incarceration on charges including luring, possession of child pornography, making child pornography and others. Crown agrees that errors were committed warranting appellate intervention, but that sentence should be increased, not decreased. Steel, J.A. makes a considerable analysis of the requirements for determining an appropriate sentence after Friesen. Discussion of the principle of proportionality and moral culpability of offender. Sentence increased to eight years.
R. v. Devos, 2022 MBKB 185: Accused was convicted of impaired driving causing death and dangerous driving causing death. Crown requested a sentence of four years; defence submitted three years of supervised probation, or an intermitten sentence of up to 90 days. Accused had a clean record and his pre-sentence report indicated he was a very low risk to re-offend. Thorough review of the case law on convictions for similar offences. Leven, J. orders a sentence of six months in prison, followed by three years of supervised probation.
R. v. Crate, 2022 MBKB 182: Appeal of conviction for having care and control of a motor vehicle while impaired. Main issue on appeal relates to infringement of appellant’s bail rights after arrest. Appellant was arrested in Norway House, held for over 24 hours before her first appearance, and then transferred to Thompson for her bail hearing. Question of whether the trial judge erred by failing to find a systemic constitutional violation. Grammond, J. concluded that such a finding is a mixed question of fact and law; applicable standard of review is correctness. Considerable analysis of Charter breaches and what appropriate remedies are available. Grammond, J. found that the appellant’s bail rights were breached in multiple ways but this was not one of the clearest cases, and a stay of proceedings was refused.
R. v. Saunders, 2022 MBKB 177: Sentencing decision for conviction by a jury for second degree murder. Conviction carries a mandatory sentence of life imprisonment with no right to apply for parole for at least 10 years. Crown submits that parole ineligibility period should be 16 years; accused submits 10 years should apply. Kroft, J. considers the nature of the offence, the character of the offender, the principles of sentencing and finds 13 years parole ineligibility is appropriate.
R. v. M. (H.), 2022 MBPC 42: Sentencing decision for manslaughter. Accused was just under 18 at the time of the offence. Crown requests accused be sentenced as an adult; defence argues that the Crown has not rebutted the presumption of diminished moral culpability. Considerable evidence and reports filed including FASD Centre multidisciplinary report, several Psychological Forensic Assessment reports, Gladue report, book of victim impact statements, and youth criminal record of accused. Devine, P.J. gives a lengthy explanation and analysis of the sentencing principles for young people under the Youth Criminal Justice Act. First prong of test not satisfied (presumption of reduced moral culpability rebutted). Second prong is whether the maximum youth sentence adequate to hold the accused accountable. Defence is suggesting a three year IRCS order. Devine, P.J. imposes the maximum youth sentence of three years’ IRCS.
Michael R. Dambrot. Section 8 of the Canadian Charter of Rights and Freedoms. (2022) 26 C.R. (3d) 97 (WLC – LSM members can request a copy).
Section 8 of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982 [en. by Canada Act, 1982 (Eng.), c. 11] provides that “everyone has the right to be secure against unreasonable search or seizure.” When this section is coupled with the discretion contained in s. 24(2) to exclude from criminal proceedings evidence obtained in a manner that infringes s. 8, it can readily be seen that these few words will have a dynamic impact on the course of criminal prosecutions in Canada.
Jeff Buckstein. Alberta Court of Appeal Reduces Sentence for Sexual Offences on Gladue Analysis. The Lawyer’s Daily, 15 September 2022. Case comment re R. v. Dichrow, 2022 ABCA 282. Accused argued trial judge did not take in to account his Indigenous heritage as a Métis person.
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