This webinar will explore recent developments in Canadian law that indicate a new trend toward imposing punitive measures at increasingly earlier stages of the prosecutorial process. The result is a potentially new field of criminal management some academics have dubbed “pre-crime”. Pre-crime, which seeks to use the law as a technology of surveillance, is based upon ideas now seen as commonplace in the era of the “war on terror”. Specifically, the need to ensure security at all costs, the proliferation of digital data, and the development of drones, social networking, and cloud storage to gather personal data. The webinar will be of use to anyone with an interest in criminal law, policing, and surveillance, as well as those interested in how areas of law, such as immigration, health, and anti-terrorism, are mobilizing the logic of risk and surveillance in new ways that emphasize precaution
Speaker:
Dr. Richard Jochelson is an associate professor at the Faculty of Law at the University of Manitoba and holds his PhD in law from Osgoode Hall Law School at York University, a Masters in Law from University of Toronto Law School, and a Law Degree from University of Calgary Law School (Gold Medal). He is a former law clerk who served his articling year at the Alberta Court of Appeal and Court of Queen’s Bench, before working at one of Canada’s largest law firms. He worked for ten years teaching criminal and constitutional law at another Canadian university prior to joining Robson Hall. He has published peer-reviewed articles dealing with obscenity, indecency, judicial activism, police powers, criminal justice pedagogy and curriculum development, empiricism in criminal law, and conceptions of judicial and jury reasoning. He is a member of the Bar of Manitoba and has co-authored and co-edited several books. He has recently co-authored Criminal Law and Precrime: Legal Studies in Canadian Punishment and Surveillance in Anticipation of Criminal Guilt (2018, Routledge).
The following decision was granted leave to appeal to the Supreme Court of Canada: R. v. Friesen, 2018 MBCA 69. As summarized in Supreme Advocacy Letter #11 (2019):
Mr. Friesen met the mother through an online dating website. The mother brought Mr. Friesen to her home. On the date of the offence, the mother’s children were sleeping and were being cared for by the mother’s friend in the mother’s house. Mr. Friesen asked the mother to bring the child into the bedroom. The mother’s friend was awoken by the child’s screams, entered the bedroom and took the child out of the bedroom. Mr. Friesen demanded the mother retrieve the child and threatened her if she did not comply with his demand. Mr. Friesen entered guilty pleas to sexual interference and attempted extortion. The sentencing judge imposed a sentence of six years’ incarceration concurrent on both charges. The C.A. granted leave to appeal sentence. The C.A. allowed the appeal and reduced the sentence from six to four and one-half years’ incarceration for the sexual interference conviction and reduced the sentence from six years to 18 months incarceration concurrent for the attempted extortion conviction. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is granted.”
Costs awarded personally against counsel are a rare occasion. At 41 pages, R. v. Gowenlock, 2019 MBCA 5 is a detailed analysis of when it is appropriate to do so, and the amount that should be awarded. This was a decision of first impression and had the benefit of two intervenors, the Attorney General for Manitoba and the Criminal Defence Lawyers Association of Manitoba, as well as amicus curiae.
This appeal offers this Court the opportunity to provide certainty, clarity and guidance for the development and application of principles and procedures in regard to the costs-awarding rules. It is worth re-emphasising that the discretion to exercise the power to award costs against counsel personally must be exercised with restraint and that this is especially so in the criminal context. Courts must ensure that any costs award against defence counsel does not in any way affect the accused’s right to make full answer and defence. Courts must also be aware that unjustified non-compliance with valid court-ordered timelines causes delays and that these delays prejudice the accused and undermine public confidence in the criminal justice system.
This week’s decision is the first reported provincial court decision for 2019: R. v. Osnach, 2019 MBPC 1.
[1] … The main issue to be addressed is whether the mandatory minimum one-year driving prohibition imposed under s. 259(1) of the Criminal Code may be reduced on account of time spent under a three-month provincial administrative suspension.
The issue of whether the three month administrative suspension could be included in the one year driving prohibition was likened to credit for time in custody. Choy, P.J. did not agree.
[17] I also do not accept the defence submission that the situation is analogous to credit for time in custody. In that regard, the case R. v. Wust, [2000] 1 S.C.R. 455 was relied upon by defence. I find that the leap from pre-sentence custody credit to credit for provincially mandated driving suspension cannot be made. Depriving a person of their liberty is not the same as a person being inconvenienced by the inability to operate a motor vehicle. Liberty is a fundamental individual right, whereas driving is a privilege which is earned.
The original appeal was not unanimous. R. v. Fedyck, 2018 MBCA 74 featured a significant dissent by Justice Beard. The evidence was circumstantial, and the issue on the appeal was whether the verdict was unreasonable or could not be supported by the evidence.
[24] The role of an appellate court, in reviewing a conviction based on circumstantial evidence, is to focus on “the question of whether the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him” (Villaroman at para 67).
The first “Decision of the Week” concerns an argument that comes up from time to time:
[1] When is a human being a person? Shouldn’t a human being be able to escape a photo-radar ticket fine because The Highway Traffic Act C.C.S.M. c. H60 (“HTA”) does not apply to humans, but rather only to persons?
Mr. Penner, as agent for his wife, challenged a photo-radar speeding ticket. Martin, J. quashed the appeal orally with written reasons to follow.
[3] I write them not to convey any insightful legal analysis but to provide precedent for the many justices of the peace and provincial court judges who are increasingly facing these specious arguments, gussied up like legal briefs with all the accompanying bafflegab. Those judicial officers should feel confident that they can dismiss nonsensical submissions summarily. And those promoting these points of view should know that their arguments will get the time and attention they deserve, little to none.
The Alberta Court of Queen’s Bench issued a lengthy decision on this issue in 2012, Meads v. Meads, 2012 ABQB 571. While nowhere near as lengthy, perhaps Justice Martin’s decision can be as useful.
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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