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Criminal Case Law "Year in Review": Supreme Court of Canada & Manitoba Court of Appeal

To view the entire Criminal Case Law Review: Oct 1, 2016 - Oct 31, 2017 click here.

On November 29, 2017, I was lucky enough to present at the Manitoba Crown-Defence conference in Winnipeg. The Manitoba Court of Appeal and Supreme Court of Canada decided a number of important cases in the criminal law realm in 2016-2017. 58 criminal appeals were released in Manitoba while 27 Supreme Court of Canada criminal cases came down. 3L research students Amy Gelhorn and Nicole Deniset put together a detailed summary of these cases which is posted with this blog. It is a tremendous resource for law students, practicing lawyers and the judiciary.

There were many important cases from the Supreme Court of Canada including R v. Paterson, 2017 SCC 15 in which the court explores the limits of s.8 of the Charter in the context of residence searches.

The Court opted to exclude evidence under s.24(2) of the Charter that was found by police after entering an apartment. The case brings up interesting issues of privacy and police discretion as well as providing trial courts with yet more guidance on applying the Grant criteria for exclusion of evidence under s.24(2). Paterson also confirms that the voluntary confessions rule does not apply in a Charter voir dire because the guilt or innocence of the accused is not at stake in that voir dire, only in the trial proper.

Other important Charter decisions from the top court included R v. Rowson, 2016 SCC 40, a ss. 9 & 10 case concerning arbitrary detention and right to counsel in the impaired driving context; R v. Diamond, 2016 SCC 46 another search case under s.8, this time dealing with issues of plain view after a traffic stop; and R v. Antic, 2017 SCC 27, an important bail decision in which the Supreme Court clarifies the role a cash deposit and sureties can and should play in the judicial interim release of an accused.

The Supreme Court also released two decisions on delay pursuant to s.11(b) of the Charter, R v. Cody, 2017 SCC 31 and R v. Hunt, 2017 SCC 25, the former confirming the Court’s position in R v. Jordan, 2016 SCC 27 that presumptive ceilings apply to criminal matters and their application will be taken very seriously indeed.

The law of evidence saw a number of important decisions also, not least of which was R v. Bradshaw, 2017 SCC 35 where the Supreme Court dove headfirst into the role of corroborative evidence as it applies to the substantive reliability aspect of the principled exception to the hearsay rule.

This 5-2 split of the Supreme Court has once again changed to the role of corroborative evidence as it relates to the reliability analysis, taking the law from the opposing positions articulated in R v. Khan [1990] 2 S.C.R. 531 and R v. Starr, 2000 SCC 40 and settling on a new test for when corroborative evidence can be used to establish substantive reliability: “A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay dangers relate to the declarant’s sincerity, truthfulness is the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.” [para 44, Emphasis added] Under this new test, Bradshaw certainly has the potential to limit the amount of hearsay evidence that will qualify as reliable under the principled approach to admissibility.

R v. Bingley, 2017 SCC 12 was another important decision for the law of evidence, Chief Justice McLachlin (as she then was) explaining that though the Common law rules of evidence apply to expert evidence admissibility pursuant to CCs. 254(3.1) (i.e. the R v. Mohan [1994] 2 S.C.R. 9 criteria for expert evidence, as augmented by White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, is the applicable test for trial judges to apply to establish whether expert opinion evidence is admissible), the Drug Recognition Experts (DRE) expertise has been “conclusively and irrebuttably established by parliament.” Where this will leave expert evidence voir dires in impaired by drug prosecutions will unfold in due course. As the number of impaired by drug cases steadily increases, it will be interesting to see how courts deal with future challenges to the expertise of DRE’s.

In the Manitoba Court of Appeal, R v. Rennie, 2017 MBCA 44 (Leave to the Supreme Court of Canada dismissed) explored the important issue of when a sentencing judge must take Gladue factors under CC s. 718.2(e) into account in determining a fit and appropriate sentence for aboriginal offenders.

In choosing a “middle ground” between the two opposing visions of Gladue application expressed in R v. Kreko, 2016 ONCA 367 and R v. Laboucane, 2016 ABCA 176 (CanLII), the Manitoba Court of Appeal commented: “A sentencing judge cannot simply ignore the fact that an offender has an Aboriginal background, but on the other hand, she or he is not bound to find that such a background will automatically lead to a conclusion that the offender has been disadvantaged because of that background.” This case could have a far-reaching impact for sentencing judges and counsel who continue to wrestle with the proper application of Gladue principles in our courts.

Overall, it has been a very interesting year with many important decisions changing the way in which the procedural and substantive aspects of criminal law are practiced. The Supreme Court of Canada continues to shape our Charter landscape as evidenced by the recent decisions concerning a reasonable expectation of privacy in text messages (see R v. Marakah, 2017 SCC 59 & R v. Jones, 2017 SCC 60). The next year will doubtless bring more changes to our discipline and will continue to provide students, lawyers and judges with access to the latest in criminal law jurisprudence, research and commentary.

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