We get many requests for decisions on sentencing, particularly where parties are aware of a particular sentence, however, often the decision is not reported. Last month the Provincial Court of Manitoba published several sentencing decisions, some of which are highlighted here.
R. v. Alcantara, 2019 MBPC 67 challenged the constitutionality of the mandatory minimum sentence for the offence of luring.
[1] …. Counsel agree that the Court should first determine the fit and appropriate range of sentence, given this offender’s personal circumstances and need not examine the constitutional issue if the Court determines that the fit and appropriate sentence is within the range set out by the mandatory minimum. On the other hand, if the Court determines that a one year sentence is grossly disproportionate for Mr. Alcantara, the constitutionality of the sentencing provision is engaged, and the Court must determine if one year in jail amounts to cruel and unusual punishment for Mr. Alcantara.R. v. Alcantara (Rolston, P.J.)
R. v. Little, 2019 MPBC 60 concerns the appropriateness of a joint sentencing submission. Along with a pre-sentence report, the Court ordered a supplementary Gladue-style appendix for further consideration of the offender’s circumstances.
[45] … I am therefore, given his youth, his vulnerability and his Gladue and s. 718.2(e) factors (which apply to all offenders), of the view that the jointly proposed sentence should not be confirmed, that something less will be adequate and purposeful in the offender’s unique and most unfortunate circumstances. …R. v. Little (Corrin, P.J.)
R. v. Goodman, 2019 MBPC 77 describes the difficulty of arriving at an appropriate sentence when the offender, with a diagnosis of Fetal Alcohol Spectrum Disorder commits a serious offence.
[1] Sentencing is often described as more of an art than a science. This is because although the Criminal Codesets out sentencing principles, the Court must still balance them in light of the circumstances of the offence and the offender. R. v. Goodman (L.M. Martin, P.J.)
All of these decisions offer significant analysis in their reasons and guidance for future sentences. The library also has other resources available for finding sentencing decisions, in print and e-book format. Please don’t hesitate to contact us for help crafting your submissions on sentencing.
On behalf of Public Prosecution Service of Canada:
Regarding Fentanyl and Acetylfentanyl Certificates
Since February 22, 2018, all Fentanyl Certificates of Analyst that the Public Prosecution Service of Canada has received from Health Canada’s Drug Analysis Service have stated that they analysed the substance to be “Fentanyl or an isomer thereof.” The Controlled Drugs and Substances Act (CDSA) Schedule I, item 16, does not list “isomers” as one of the included substances of Fentanyl. However, we have recently been advised by Health Canada that Fentanyl, as listed at subitem 16(5) in Schedule I of the CDSA, and Acetylfentanyl, not listed but captured under item 16 in Schedule I of the CDSA, currently have no known isomers that could have been seized and analyzed by Health Canada. As a result, for all Certificates of Analysis that say “fentanyl, or its isomers”, the substance referred to was Fentanyl, and for “Acetylfentnayl, or its isomers”, the substance referred to was Acetylfentanyl.
Way back in May 2018, I wrote about a project out of Saskatchewan to create a database for researching Gladue principles. This resource was going to operate under a subscription model, but has just received funding to make it open access. Content is from Saskatchewan, however, researchers in other jurisdictions will likely find it a useful starting point. It would be even better if other jurisdictions found a way to add on to it.
We are thrilled to announce additional digital criminal law content available to all members: Emond Publications award-winning Criminal Law series.
Emond’s award-winning Criminal Law Series offers clear, concise guidance on the practical and procedural aspects of criminal law. Ideally suited for members of the criminal bar and judiciary, this collection covers discrete areas of criminal practice, anchored by the expertise of General Editors Brian H. Greenspan and Justice Vincenzo Rondinelli. Most titles are authored by both defence and Crown counsel, lending balance and comprehensiveness to the series.
These e-books are accessible by signing in to the member’s portal, clicking on the “Library Resources” on the left hand navigation panel, and then scrolling to the bottom of the page. Don’t miss out on our other resources there, like Rangefindr.ca, a criminal sentencing digest. Go to our “Legal Ease” page for guides on how to use these products if you have difficulty, or contact us at library@lawsociety.mb.ca.
This week’s decision comes from Nova Scotia. I found there were two very interesting facets to it that warranted bringing to the attention of members in Manitoba.
R. v. Hoyeck, 2019 NSSC 7 concerns an employer who was charged with failing to take reasonable steps to prevent bodily harm to an employee. The trial began before a judge and jury, but after two days, the jury was dismissed. After jury selection, one of the jurors sent a note to the judge about investigation into his LinkedIn account by the Crown (para. 3). As noted in this article by Norm Keith at Fasken:
The jury was discharged after one of the prosecutors, Mr. Keaveny was the subject of controversy about his use of social media to investigate prospective jurors.
Nova Scotia Employer Acquitted in Westray Bill Prosecution
The benefit of this development is there is now additional case law on the subject of the responsibility of an employer in the death of an employee. There is a very high standard of proof required to convict an employer of Occupational Health and Safety criminal negligence. In this instance, the employee was a licensed Red Seal Mechanic and more qualified in his work than the owner. Although Chipman, J. was critical of the employer in his workplace practices:
… Based on all of the evidence it is impossible for me to conclude beyond a reasonable doubt that Mr. Hoyeck did anything or omitted to do anything (that was his duty to do or not do) such that he is guilty of criminal negligence causing death. …
A frequent request of the library is for research on the validity of a search of a vehicle. This decision from the Alberta Court of Appeal analyses the steps the police must take to ensure compliance with sections 8, 9, 10 and 24(2) of the Charter.
[3] The appellant appears to urge that this dominant objective in the mind of the police officer, contaminated the interaction with the appellant such as to occasion within the interaction between them the following “cascading” series of Charter breaches: (a) an almost immediate and continuing arbitrary detention contrary to s 9 of the Charter, (b) an improper questioning contrary to s 10 of the Charter, (c) unreasonable searches and seizures under s 8 of the Charter in the forms of a police dog sniffing around the vehicle and a pat down search of the appellant, (d) an unlawful delay in advising the appellant the reason for detention contrary to s 10(a) of the Charter and (e) an unlawful delay of advisement of the appellant’s right to counsel on detention under s 10(b) of the Charter: adapting what this Court said in R v Ali, 2016 ABCA 261 (CanLII) at para 3, [2016] AJ No 914 (QL).
[4] The appellant goes on to say the evidence of the police seizure of hard drugs and a gun with ammunition from the vehicle should be excluded under s 24(2) of the Charter.
What is interesting to me is that Watson, J. references Crozier v. Cundey, a decision of 1827:
[35] For what it is worth, the real mitochondrial father of both discretionary powers and limits thereon by police may be Crozier v Cundey (1827), 6 B&C. 232[1]. There, speaking as if it had long been thus, the King’s Bench noted where police might proceed without warrant and when they might not[2]. Crozier need not be dismissed as merely a quirk of history. Tracing its influence through later cases shows it to be a foundation stone on which a significant part of police authority and its limits came to be constructed over the generations.
The Manitoba Law Library would like to acknowledge with gratitude that we are situated on Treaty One Territory, the traditional lands of the Anishinaabe, Cree and Dakota peoples, and the homeland of the Métis Nation.
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