Cross Country Noteup - January 2023
R v Hills, 2023 SCC 2: soundly rejected the effort to “revisit” section 12 Charter jurisprudence and to abandon the use of reasonably foreseeable scenarios, describing Justice Wakeling’s “personal and idiosyncratic approach” as lacking merit and “completely contrary to both precedent and principle”. Because, for the purpose of the reckless discharge of a firearm offence, a “firearm” may include a BB gun or a paintball gun that are “not known to inflict deadly force” and a “place” has a “very wide meaning” encompassing “anything from a windowless garden shed to a residential home”, there are reasonably foreseeable scenarios that make the now-repealed mandatory minimum sentences (of 4 and 5 years, respectively) unconstitutional.
Writing for the (8:1) majority, Justice Martin describes imprisonment as “the harshest form of punishment in Canada”. Not only does it entail “the complete removal of an offender’s liberty, it also has a ripple effect that touches nearly every aspect of the offender’s life and physical and mental health, employability, children, and community”. Moreover, where the impact of imprisonment is greater on a particular offender - because of disabilities, race, employment in law enforcement etc - a reduction in sentence may be appropriate. Query whether this might apply to sexual offenders.
R v Hilbach, 2023 SCC 3: in contrast to Hills, the Court upholds the mandatory minimum sentences for robbery with a firearm - including the 4-year one which has since been repealed - because these crimes “are framed in such a way that they cannot be committed in innocuous circumstances by offenders who are all but morally blameless”.
R v Dingwall, 2023 BCCA 16: a few days before Hills was released, the BCCA confirmed that the same, now-repealed mandatory minimum sentences for reckless discharge of a firearm were constitutional and that the judge was wrong to disregard binding precedent on the basis of a “new” but “unreasonable” hypothetical offender.
R v Ratt, 2023 SKCA 2: section 244.2(1)(a), requiring that firearm be discharged “into or at a place”, means that it must be discharged from one physical place into or at a different physical place. Shooting at ceiling from within 1-storey home may be crime, but not this one.
R v Ankur, 2023 NSCA 2: although a conviction for impaired driving now triggers as a collateral consequence “a likelihood or possibility of deportation" for foreign nationals, "the notion that a fine of $1,000.00 can constitute cruel and unusual punishment is untenable".
R v Kehoe, 2023 BCCA 2: the Crown's position, adopted by the judge - that because the accused was disconnected from his Métis heritage, Gladue should play little role - was "deeply flawed" as disconnection is one of the “very harms” linked to colonial policies that Gladue seeks to address.
R v Ross, 2022 SKCA 149: an indeterminate sentence was replaced with a long-term supervision order because the judge failed to fully consider Gladue and whether culturally-based treatment within the institution might reduce his risk; the appeal court found that it would. Also from this month, see: R v
Runions, 2023 ABCA 29, where the sentencing judge “failed to provide any reasons justifying the indeterminate sentence in place of the less severe measures and failed to grapple with the evidence regarding the scope of treatment options available to the appellant”.
R v Wilkinson, 2023 BCCA 3: frantically running away from an unmarked police car patrolling at night in a high-crime area justified an investigative detention even if police were not investigating a specific crime and there were possible innocent explanations for flight.
R v Dhillon, 2023 BCCA 38: despite some confusion in case law, protective pat-down searches incidental to investigative detentions only require the police to have “reasonable suspicion” of a threat to safety, not “reasonable grounds to believe”. Also, there is no “imminent threat” requirement.
R v Simpson, 2023 ONCA 23: where the police ask a detainee - who was detained while he was leaving a store - if he wants to speak to a lawyer at that time and he responds “I will at some point”, it was open for judge to find that this "did not qualify as an invocation of the right to counsel", thus no duty to hold-off questioning.
R v Soosay, 2023 ABCA 23: if an accused cannot be trusted on minor details, then a judge may not trust him on more important ones. However, using a prior compelled statement to impeach an accused on minor details is not likely “incriminating” under section 13 of the Charter even if it reduces his overall credibility.
R v Lundle, 2023 ABCA 11: while counsel had no notes of any conversations with his client about his election and decision to testify, he was able to defend himself against an ineffective assistance claim based on his “normal practice", namely, that he "would have had those conversations". NB: take notes!
R v Fox, 2023 ONCA 40: "wrong and exaggerated" legal advice from a lawyer during "mid-trial parking lot conversation" caused the accused to feel like he "would never see his 4-year-old daughter again if he were convicted after trial" and produced an involuntary guilty plea.
R v Abdulle, 2023 ONCA 32: the judge correctly admitted evidence of prior “turf war” incidents between rival gangs to provide context and motive that the accused - an admitted gang member - committed a retaliatory murder, even though he was not directly involved in those prior incidents.
R v Clayton, 2023 BCCA 33: if a defence expert opinion relies on an interview with the accused but the accused refuses to speak with the Crown expert, the judge can draw a limited inference that cooperating with the Crown’s expert “might have been harmful to the defence case” and may treat the defence expert opinion with skepticism
R v Cunningham, 2023 ONCA 36: the 7-year sentence imposed on a man who plotted and “attempted to murder the mother of his unborn child" (by stabbing her in the neck) was "manifestly unfit". The judge "lost sight of denunciation and deterrence" and relied on outdated case law. 15 years imposed on appeal.