R. v. Sharma, 2022 SCC 39: Whether an offender can plead guilty to the offence of importing cocaine and receive a conditional sentence. In 2012, Parliament amended conditional sentencing to exclude certain serious offences; these amendments prevented the accused from receiving a conditional sentence. PerWagner C.J. and Moldaver, Côté,Brown and Rowe JJ.:
[3] We would allow the appeal and restore the sentencing judge’s order. The impugned provisions do not limit Ms. Sharma’s s. 15(1) rights. While the crisis of Indigenous incarceration is undeniable, Ms. Sharma did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non‑Indigenous offenders, as she must show at the first step of the s. 15(1) analysis.
[4] Nor do the impugned provisions limit Ms. Sharma’s s. 7 rights. Their purpose is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences and categories of offences. And that is what they do. Maximum sentences are a reasonable proxy for the seriousness of an offence and, accordingly, the provisions do not deprive individuals of their liberty in circumstances that bear no connection to their objective.
Per Karakatsanis, Martin, Kasirer and Jamal JJ. (dissenting):
[115] Sentencing law cannot erase this country’s colonial past. Nor can it remove the causes behind an offender’s crime. But it is uniquely positioned to ameliorate — or aggravate — the racial inequalities in our criminal justice system. Ensuring that Canadian sentencing provisions are consistent with the liberty and equality guarantees under the Canadian Charter of Rights and Freedoms is therefore essential. This case requires us to do so.
…
[119] As the Crown has justified neither infringement under s. 1 of the Charter, I would conclude that the provisions are unconstitutional and would uphold the Court of Appeal’s declaration that they are of no force and effect under s. 52(1) of the Constitution Act, 1982. I would, accordingly, dismiss the appeal.
R. v. Ndhlovu, 2022 SCC 38: Challenge to the constitutionality of mandatory lifetime registration in the national sex offender registry created by SOIRA. Per Karakatsanis, Rowe, Martin, Kasirer and Jamal JJ.:
[6] This appeal requires this Court to determine whether Parliament complied with the Canadian Charter of Rights and Freedoms when it chose to remove prosecutorial and judicial discretion from s. 490.012 and introduced, under s. 490.013(2.1), lifetime registration for offenders convicted of more than one designated sexual offence. Through s. 490.012, Parliament sought to capture information about offenders that may assist police prevent and investigate sexual offences. Similarly, s. 490.013(2.1) is designed to give police a longer period of access to information on offenders at a greater risk of reoffending.
…
[12] We would allow the appeal and declare ss. 490.012 and 490.013(2.1) of no force or effect under s. 52(1) of the Constitution Act, 1982. A one-year suspension of the declaration is appropriate for mandatory registration, given concerns about public safety and the many ways Parliament could remedy the provision’s overbreadth. An immediate declaration, however, is warranted for lifetime registration for offenders convicted of more than one offence.
Per Wagner C.J. and Moldaver, Côté and Brown JJ. (dissenting in part):
[145] I depart from the majority, however, on the constitutionality of s. 490.012. In finding it unconstitutional, my colleagues fixate on the removal of judicial discretion to exempt offenders who do not pose an “increased risk” to reoffend. But the exercise of discretion was the very problem that prompted Parliament to amend the Criminal Code to provide for automatic registration of sex offenders under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”). Specifically, many judges had exercised their discretion to exempt offenders in a manifestly improper manner, and the Registry’s low inclusion rate undermined its efficacy. The evidence is clear that even low risk sex offenders, relative to the general criminal population, pose a heightened risk to commit another sexual offence. It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net.
R. v. Nahanee, 2022 SCC 37: Contested sentencing hearing: after pleading guilty, judge imposed a sentence that exceeded the range proposed by the Crown. Issue of whether the sentencing judge was required to give notice to the parties if they intended to impose a sentence in excess of the range proposed by the Crown. PerWagner C.J. and Moldaver, Brown, Rowe, Martin, Kasirer and Jamal JJ.:
[1] Where the Crown and the defence propose a specific agreed-upon sentence to a judge in exchange for an accused’s guilty plea, a stringent test, known as the “public interest” test, exists to protect that submission. The test, adopted by this Court in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, instructs judges not to depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise contrary to the public interest. Sentencing judges must not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.
…
[5] In the instant case, the sentencing judge imposed a global sentence of eight years on Mr. Nahanee for repeated sexual assaults of his two teenage nieces. This sentence exceeded the upper end of the sentencing range proposed by the Crown by two years. The sentencing judge did not provide notice that she planned to exceed the upper end of the Crown range, nor did she provide an opportunity for further submissions. Nonetheless, in my view, Mr. Nahanee has not shown that there was information he could have provided that would have impacted on the sentence; nor do the reasons of the sentencing judge disclose error. I would accordingly dismiss the appeal.
Per Karakatsanis and Côté JJ. (dissenting):
[74] Sentencing is a dynamic process in which the art of advocacy, the adversarial context, and the parties’ legitimate expectations play an important role; the parties are entitled to put their best foot forward to respond to the case they must meet. They must be able to address a point of fact or law that is of concern to the sentencing judge, and which could result in a more severe deprivation of liberty. Where this is not done, there is a breach of the duty of procedural fairness which, in itself, will generally warrant appellate intervention. In such a case, the appellate court should conduct a fresh assessment to determine a fit sentence.
R. v. Tessier, 2022 SCC 35: Admissibility of statements under the confessions rule; when suspects should receive a caution when speaking with police. Issue of when police considered person a suspect. Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Rowe, Kasirer and Jamal JJ:
[3] The principal issue raised on appeal to the Court is whether the Crown met its heavy burden to show, beyond a reasonable doubt, that Mr. Tessier’s statements were voluntary pursuant to the common law confessions rule. The Court of Appeal said the trial judge failed to address the key question in this case: whether, in the absence of a caution, Mr. Tessier had been denied a meaningful choice to speak to the police “knowing that he was not required to answer police questions, or that anything he did say would be taken down and could be used in evidence” (2020 ABCA 289, 12 Alta. L.R. (7th) 55, at para. 54 (emphasis in original)). The appeal bears upon two related doctrinal questions under the confessions rule: first, the requirements of the operating mind doctrine and, second, the impact of the absence of a caution on voluntariness prior to detention or arrest.
…
[13] For the reasons that follow, I propose to restore Mr. Tessier’s conviction for first degree murder rendered by the jury. I agree with the Court of Appeal that some of the trial judge’s explanations of the voluntariness rule were incomplete. However, with the utmost respect, I disagree that these amounted to reviewable legal errors that undermined the finding at trial that Mr. Tessier’s statements to the police were voluntarily made. Even in the absence of a caution, and even if one were to consider Mr. Tessier to have been a suspect at the time of questioning, the record confirms that the trial judge’s determination on voluntariness should not have been disturbed on appeal.
Per Brown and Martin, JJ. (dissenting):
[126] Applying our restated test, the question in this case becomes whether Mr. Tessier spoke to police voluntarily with awareness about what was at stake. In our view, he did not. When the police contacted him to secure information in relation to their homicide investigation, he was not initially informed that he was not required to speak to police and that what he said could be used as evidence. Further, both the officer’s adversarial questioning and the information pointing to Mr. Tessier as a suspect increased his objective risk of self-incrimination. As the majority acknowledges (at para. 61), the trial judge committed palpable errors by ignoring key information that would have raised a reasonable suspicion that Mr. Tessier committed the crime. The Crown failed to rebut the presumption of involuntariness, and the statements should not have been admitted. We would therefore dismiss the appeal and confirm the judgment of the Court of Appeal setting aside the conviction and ordering a new trial.
R. v. Schneider, 2022 SCC 34: Admissibility of hearsay evidence; whether trial judge erred in admitting overheard statements into evidence. Analysis of the legal framework for admissibility of evidence in a criminal trial and discussion of exclusionary rules. Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ:
[6] The Crown asks this Court to allow the appeal and restore the conviction. I would do so. The trial judge did not err in admitting this part of the brother’s evidence. There is no basis in law to differentiate between “micro” and “macro” context when determining whether evidence is capable of meaning and, therefore, relevant. All the evidence is capable of informing a judge’s analysis of this question.
Per Karakatsanis and Brown JJ (dissenting):
[89] We would dismiss this appeal. We do not disagree with our colleagues’ framework for assessing relevance and probative value. What divides us is its application here. In our view, for the reasons of Justice Goepel at the Court of Appeal, a jury could not ascertain the meaning or relevance of the overheard statements (2021 BCCA 41, 400 C.C.C. (3d) 131). As well, their prejudicial effect outweighed any tenuous probative value they may have had. The overheard statements were inadmissible.
R. v. Krywonizka, 2022 MBCA 85: Appeal by Crown of conditional sentence imposed following guilty plea to six counts of firearms-related offences. Judicial consideration of the proper approach to sentencing for multiple offences, thus determining whether a sentence should be concurrent or consecutive. Leave to appeal the sentence granted, appeal dismissed.
R. v. Soroush et al, 2022 MBCA 84: Appeal of convictions by a jury for first degree murder (3) and second degree murder (1). Issues raised include the sufficiency of the jury charge and correctness of certain rulings. Some issues overlap different accused and could affect all convictions. CA analysed each issue separately. Appeal dismissed.
R. v. Neak Ngen, 2022 MBCA 83: Appeal of conviction for sexual assault alleging ineffective assistance from trial counsel. Accused alleges he asked for an interpreter when meeting with his lawyer and did not understand why he was not given the option to testify. Trial counsel denies they had difficulty communicating. Appeal dismissed.
R. v. Barca, 2022 MBCA 80: Accused appealing conviction for careless use of a firearm, and seeking leave to appeal his sentence. Crown is appealing acquittal of reckless discharge of a firearm. RCMP arrived at a rural residence in response to a 911 hang up wellness call. Accused shot at them; they left then returned with backup. Significant analysis of judicial consideration of “recklessness”. Examination of possible remedies. Accused appeals dismissed; Crown appeal allowed, CA determined sentence.
R. v. Lavallee, 2022 MBCA 79: Appeal over conviction for criminal contempt of court and request for leave to appeal sentence. This decision only concerns the conviction. Contemnor entered a guilty plea to the offence of contempt. Defence argued that she essentially purged that contempt. CA agreed with trial judge; conviction appeal dismissed.
R. v. Fox, 2022 MBKB 207: Sentencing decision for conviction of second-degree murder. The offence carries a mandatory life sentence, with the only issue left to determine is the length of time before the accused is eligible for parole. Crown argues for 16 years; defence argues it should remain at the 10 year minimum. Discussion of whether a sentencing decision is an appropriate vehicle to comment on systemic racism in the parole system. Champagne, J. decides it is not appropriate. Considering aggravating and mitigating factors, appropriate period of parole ineligibility is determined to be 15 years.
R. v. V. (R.), 2022 MBKB 190: Sentencing decision for conviction for several sexual offences against a child. Crown seeks a custodial sentence of 12 years; defence seeks six to seven years in custody. Objectives of denunciation and deterrence are the primary considerations; statutory prescribed minimum and maximum sentences of one year and 14 years must also be taken into consideration. Consideration of the guidelines as set out in R. v. Friesen, 2020 SCC 9. Taking into account aggravating and mitigating factors, Kroft, J. imposes a 10 year custodial sentence.
R. v. Gamblin, 2022 MBKB 187: Accused tried for second degree murder. Question in this case is whether the Crown proved the accused is the person responsible. Analysis of the witnesses’ testimony and video evidence presented by the police. Keyser, J. found Crown successfully proved guilt beyond a reasonable doubt.
R. v. Desilva, 2022 MBPC 51: Decision on validity of search warrant. ITO was based on information from a confidential informant. Accused argues information in the ITO did not disclose reasonable grounds to believe that an offence was committed. Summary of test as set out in R. v. Pilbeam, 2018 MBCA 128. Analysis of the credibility of the information as well as whether it was corroborated. Based on totality of the circumstances, judge found that the ITO was not sufficient and the search breached the accused’s s.8 Charter rights.
R. v J.W., 2022 MBPC 49: Sentencing decision where accused was found guilty of assault causing bodily harm after a trial. Victim was his 21 month old stepson. Denunciation and deterrence are the primary sentencing objectives for offences involving the abuse of children. Crown seeks a sentence of four years; defence argues one year followed by two years of supervised probation is appropriate. Frederickson, P.J. orders a custodial sentence of 22 months, followed by a period of supervised probation for two years.
R. v L.J.D., 2022 MBPC 48: Sentencing decision after accused entered guilty pleas to charges for sexual interference and aggravated assault. Offences took place separated by a number of years. Victim of sexual interference was a young child. Victim of assault was severely injured and is now paraplegic. Harvie, P.J. considered caselaw, aggravating and mitigating factors and the principle of totality. Accused is sentenced to 10 years for aggravated assault served consecutively to the sexual interference sentence of four years. Sexual interference sentence reduced by one year for totality.
R. v. Caribou and Olenick, 2022 MBPC 45: Accused are jointly charged with possessing stolen property and multiple firearms offences. They were pulled over on a traffic stop. Vehicle (a scooter) was determined to be stolen. Search of a purse and backpack turned up firearms. Ms. Caribou pleaded guilty to some of her charges and testified; Mr. Olenick did not. Credibility of witness’s testimony at issue. Lord, A.C.P.J. accepted her explanations. Mr. Olenick convicted of all charges.
Brandon Trask and Evan Podaima. Blurred Lines: A Critical Examination of the Use of Police Officers and Police Employees as Expert Witnesses in Criminal Trials. (2021) 44-6 Man. L. J. 48.
This paper analyzes recent Canadian case law in relation to the use of expert witnesses and determines that structure-related concerns ultimately pertaining to bias have played a significant role in court determinations as to the admissibility of expert evidence. Guided by this finding, the authors propose a new two-stream expert structure in order to present a model for proactively reducing concerns relating to impartiality, independence, and bias about experts called by the Crown.
Lisa Silver. What did you say? Making Sense of the Admissibility of Evidence in R. v. Schneider. ABlawg.ca, 13 October 2022. Case comment on R. v. Schneider, 2022 SCC 34.
Great LEXpectations RSS Feed