Book Review of Manitoba Law Journal, 2018 Vol 41(4) on Criminal Law

With the release of another special issue of the Manitoba Law Journal [the Journal], it seemed appropriate to do another review. In my review of the previous issue, I spent some time discussing the importance of such publications, and their value to the legal field as a whole. Having made that point already, I shall not reiterate it here. Instead, with this review I would like to take a more in-depth look at the content of the present issue of the Journal. The following will provide a brief overview of each of the articles contained in volume 41(4) of the Journal, along with my own thoughts where applicable. Before diving in though, I would like once again to thank all of the individuals who worked so hard to bring this issue to publication. Their superb efforts, as always, deserve the highest praise.

The present issue of the Journal is divided into three sections. The first examines issues of terrorism, national security and transnational crime. The second looks at delay, sentencing and removal, while the third deals with disclosure, exclusion of evidence and jury instructions topics. Again, the range of topics is diverse, and all deal with issues in the legal field that are both current and significant.

The initial section was, for me, perhaps the most interesting, as it coincides with my personal interests in national and international affairs. The opening article, by Rebecca Bromwich, undertakes a critical assessment of the regulation of lawyer involvement in money laundering. Bromwich discusses the decision of the Supreme Court in Canada (AG) v Federation of Law Societies of Canada, 2015 SCC 7, which found that the Law Societies alone have the jurisdiction to regulate lawyer involvement in money laundering.1 Bromwich argues that the Supreme Court’s judgement failed to recognize the full scope of money laundering as an issue, and that the Law Societies lack the capacity to effectively regulate lawyers when it comes to money laundering. Her challenge of the self-regulation model that is so firmly entrenched in Canada is extremely interesting and thought provoking. Beyond that, I think critiques like these are important in and of themselves, because constant challenge to established systems helps us to refine them. She he raises some important points that all members of the legal profession ought to consider.

In the second article of the section, Jonathan Avey examines the tension between police independence and discipline in the Canadian military. I enjoyed this article in particular because the military realm of criminal law is one which I have seldom thought about. The military has its own parallel justice system, which is policed by its own officers, MP’s. As Avey explains, there is a dichotomy to the role of an MP: their duties encompass the work of a civilian police officer, as well as the work of a soldier supporting military operations.2 Thus, while they may act as police officers, MP’s are still subject to the chain of command, a fact which can open the door to interference in police functions by superior officers. This can also put MP’s in difficult positions, such as in R v Wellwood, 2017 CMAC 4, where an MP had to decide whether he was confident enough in his authority to act that he could disobey a direct order from a superior.3 Avey asserts that, while significant progress has been made in promoting police independence within the Canadian Forces, further changes are necessary. He suggests a series of statutory and structural changes to the military policing scheme in order to achieve this. His arguments are thoughtful and comprehensive, grounded in his experience as both a practicing lawyer and as prior member of the Canadian forces for 14 years. It also provides an interesting window into an area of the criminal law that is less commonly discussed.

The final article in this section is by Leah West, and it deals with the problem of using intelligence information, such as might be collected by CSIS, to prosecute persons returning to Canada after supporting terrorist activities abroad. This is an especially relevant topic at the moment, as the conventional defeat of the Islamic State forces has led to a dispersion of many of its foreign fighters. I have been told that one concern that governments and security experts have is that many of these individuals will now attempt to return home, bringing with them the skills that they learned in their time in the Middle East. Clearly, this represents a serious security threat to countries such as Canada. According to West, as of November 2017, 60 known foreign terrorist fighters had been allowed to return to Canada from abroad. The figure gives rise to a rather obvious question: if they are known terrorist fighters, why have they not been arrested, charged and imprisoned? The problem, illustrated by West, is that there are significant difficulties in using information collected for national security and intelligence purposes in a criminal prosecution. This is the “intelligence to evidence” problem, which West first examines, then offers some suggestions for resolving.4 West suggests that Canada look to the UK for answers, as it is a jurisdiction with far more experience in the realm of criminally prosecuting terrorists. This appears to me to be an eminently sensible suggestion: emulate those who are successful in doing what you seek to do. The issues raised by West are perhaps the most pressing contained in this issue. It will undoubtedly be difficult to balance the various interests at stake in criminal terrorist prosecutions. However, as past events have demonstrated, failing to manage the risks of terrorism can cause tragic results.

This brings us to the next section of the issue: Vulnerable Populations: Delay, Sentencing, and Removal. First up is R v Jordan: A Ticking Time Bomb, by Keara Lundrigan. This article focuses on the consequences of the Supreme Court’s well known decision in R v Jordan, 2016 SCC 27. Lundrigan asserts that Jordan is problematic in that it does nothing to incentivize more efficient prosecutions or to combat the culture of complacency that has developed towards delays and timeframes. She is also critical of the recommendation of a Senate committee to replace the remedy of a stay of proceedings with a system of costs for s 11(b) violations.5 Lundrigan argues, amongst other things, that by establishing a descriptive ceiling rather than a prescriptive one on timelines, the Court failed to incentivise decreases in delays below those ceilings, and thus did not address the underlying issue that causes delay in the first place.6 Delay is invariably one of the more complicated issues faced by the legal system, because it is bound up in the wider issue of governmental resource allocation. I found her arguments on the topic of s 11(b) remedies to be particularly persuasive. Hers is a valuable contribution to both the criminal and constitutional spheres.

The next article, by Haley Hrymak, critiques the response of British Columbia courts to the rising opioid and fentanyl crisis. It is argued that emphasising deterrence by lengthening the sentences of street level traffickers will fail to deter, increase the number of people in custody and will disproportionately impact indigenous persons and those struggling with addictions.7 These are extremely difficult issues to resolve and one on which opinions, especially among the general public, appear polarised. Hrymak’s critique is highly fact driven, making excellent and skillful use of research and numbers to support her points. It is a very well-done contribution, and worth a read, whatever one’s thoughts are on the fentanyl issue. Whether you agree or disagree with Hrymak, the facts that are presented make it clear that the present approach to dealing with this problem is not working.

The final article of the penultimate section of this issue is by Sasha Baglay, and examines how courts have considered collateral immigration impacts in sentencing, following the decision in R v Pham, 2013 SCC 15. This decision saw the Supreme Court hold that collateral immigration consequences may be taken into account during sentencing as part of the personal circumstances of the accused.8 Baglay finds that subsequent to this ruling, courts have been inconsistent in their approach to certainty of removal as a factor. The expectation was that as the likelihood of removal and severity of consequences increased, courts would be more likely to find this factor compelling.9 What was found was a large degree of inconsistency, reflecting that participants in sentencing are not particularly familiar with immigration law, and that they are still developing the requisite knowledge base.10 Baglay goes on to offer a number of suggestions on ways that this learning process can be expedited. Most salient among them, in my view, is that defence counsel needs to become better versed in immigration law. Here Baglay touches on a deeper issue that pervades the entire legal field. In an ideal world, all defence counsel would be adequately familiar with all areas of the law, as would judges and all participants in the system. Unfortunately, we do not occupy a perfect world. While I certainly agree that defence counsel ought to familiarise themselves with immigration law, as Baglay has clearly demonstrated its relevance in some cases, it is also not fair to expect counsel, (or judges) to always be familiar with every possibly relevant aspect of law. Rather, I think lawyers of all stripes need to become better at spotting potential factors that might be beyond their particular expertise, and then either bringing themselves up to speed or getting help from someone with the necessary knowledge. No one can know everything, but good counsel can recognise when they do not know something and do something about it.

We now arrive at the final section of this issue of the Journal. Opening this section is Myles Anevich with a piece on modifying disclosure in the US justice system. He argues that the favoured mode of resolution in the modern justice system is plea bargaining, not trials, and that the systemic orientation of the US justice process towards trials is out of touch with this shift in practice. In particular, disclosure obligations at the guilty plea stage are virtually non-existent. In response to this, Anevich offers three potential solutions, the last of which would be adoption of Canada’s approach to disclosure at the relevant stage of proceedings.11 I found this article to be rather fun in the respect that normally we are critiquing the Canadian system here. Let’s be honest: neither lawyers nor academics talk about what is going well. If someone is writing an article or giving a talk, or even just talking about the system with a colleague over a beer, we are all generally decrying the flaws in Canadian justice. It is important that we aim to fix what needs fixing, rather than resting on our laurels. However, it is still fun to see this reminder that there are things that (at least someone thinks) we are getting right. It is also interesting to see some American content, especially given the similarities in our countries’ approaches to law and the level to which US jurisprudence influences Canada.

Next is Heather Donkers’ article which explores the use of third-party records as a tool to challenge the credibility of sexual assault complainants. Donkers reviews the development of the law governing third-party record applications and examines a sample of cases applying the scheme to see how the judiciary has applied it, with a focus on the balancing of complainants’ privacy and equality with the full answer and defence rights of accused.12 Donkers argues that the interests and rights of complainants are under-analysed or even ignored by courts, contrary to the intent of Criminal Code s 278.5. What I found particularly disturbing about Donkers’ findings was the number of occurrences where judges appeared to ignore aspects of the prescribed legal tests entirely, sidestepping or simply not analyzing certain factors. This suggests that the core of the issue is not with the Mills decision or the black-letter law governing third-party record disclosure, but rather with the judiciary itself. Frankly, there is no reason that any judge should not consider the full range of factors, especially when the legislation provides a list. It will be interesting to see how trends develop going forward, as attitudes and norms (hopefully) change, and turnover in the judiciary continues.

The third article of the section looks at the role of police conduct in s 24(2) analyses. The author, Patrick McGuinty, argues that the first step of evidence exclusion test under s 24(2) of the Charter, which considers the seriousness of the state’s Charter infringing conduct, has become the determinative factor of the test. This is contrary to the instruction of the Supreme Court who stated, when developing the test in R v Grant, 2009 SCC 32, that all three factors are to be weighed equally.13 As part of his argument, McGuinty highlights the inconsistency with which courts have interpreted the concept of “good faith policing”, which plays a significant role in assessing police conduct under the first step. Ultimately, he argues that the lack a clear definition of good faith policing renders the great weight that the judiciary appears to put on this first step hazardous, and that this needs to be remedied so that reckless and negligent police conduct cannot be miscategorized.14 The problem that McGuinty describes is one that I have noticed myself while reading cases. There have been numerous occasions where I have read a judgement that found police to have acted in good faith, and thought to myself: the police conduct was clearly not the result of an honest mistake. As with the previous article however, I am not sure that a definition will help to remedy this when judges seem to be the problem. I worry that even with a clear definition of good faith, some judges will persist in misconstruing poor policing as good faith policing. Perhaps that is too cynical a view. Regardless, I think that McGuinty raises good points, and clarifying definitions is always a helpful step in the development of the law.

We come now to the final article of the final section of this issue of the Journal. In this piece, Lisa A Silver asserts the revolutionary nature and great importance of the decision in R v W(D), [1991] 1 SCR 742. Silver explores the impact of W(D), highlighting how it has become a fundamental principle and concept of the criminal trial. I had particular fun reading this piece due to Silver’s writing style, which makes generous use of metaphorical imagery. It is all the more fun because it does not detract from the very important points that she makes about the import of Justice Cory’s three-step jury instruction on credibility assessments.15 It is a fascinating journey that demonstrates the far-reaching impact that that a few lines in a judgement can have on the common law, depicted in a fashion to match the W(D) decision’s epic ascendance to “an invigorating principle representing the plurality of what is at stake in a criminal trial”.16 I definitely recommend reading this piece: it will give greater insight into an important aspect of the criminal trial process, and will makes obtaining that insight fun into the mix.

That brings us to the conclusion of this review of volume 41:4 of the Manitoba Law Journal. As before, I found myself engaged by its contents. It is interesting, relevant and packed with valuable insights into many aspects of criminal law. It contains useful, reliable information for academics or students looking for material on the covered topics, and all of the articles contained within are clear and well argued. If you are looking for a publication to read or reference, you cannot go wrong with the present issue.

Endnotes

1 Rebecca Bromwich, “(Where is) the Tipping Point for Governmental Regulation of Canadian Lawyers? Perhaps it is in Paradise: Critically Assessing Regulation of Lawyer Involvement with Money Laundering After Canada (Attorney General) v Federation of Law Societies of Canada”, (2018) 43:4 Man LJ 1 at 1.

2 Jonathan Avey, “Police Independence vs Military Discipline: Democratic Policing in the Canadian Forces”, (2018) 43:4 Man LJ 27 at 28.

3 Ibid, at 38.

4 Leah West, “The Problem of ‘Relevance’: Intelligence to Evidence Lessons from UK Terrorism Prosecutions” (2018) Man LJ 43:4 57 at 57.

5 Keara Lundrigan, “R v Jordan: A Ticking Time Bomb” (2018) Man LJ 43:4 113 at 114-115.

6 Ibid, at 122.

7 Haley Hrymak, “A Bad Deal: British Columbia’s Emphasis on Deterrence and Increasing Prison Sentences for Street-Level Fentanyl Traffickers”, (2018) Man LJ 43:4 149 at 149.

8 Sasha Baglay, “In the Aftermath of R v Pham: A Comment on Certainty of Removal and Mitigation of Sentences” (2018) Man LJ 43:4 181 at 182.

9 Ibid at 183.

10 Ibid at 215.

11 Myles Anevich, “Disclosure in the 21st Century: A comparative Analysis of Three Approaches to the Information Economy in the Guilty Plea Process” (2018) Man LJ 43:4 219 at 219.

12 Heather Donkers, “An Analysis of Third Party Record Applications Under the Mills Scheme, 2012-2017: The Right of Full Answer and Defence versus Rights to Privacy and Equality” (2018) Man LJ 245 at 245.

13 Patrick McGuinty, “Section 24(2) of the Charter, Exploring the Role of Police Conduct in the Grant Analysis” (2018) Man LJ 273 at 274.

14 Ibid at 275.

15 Lisa A Silver, “The WD Revolution” (2018) Man LJ 43:4 307 at 308.

16 Ibid at 307.