Manitoba Law Journal
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The Troubled History of the Defence of Duress and Excluded Offences: Could the Reasoned Use of Mitigation on Sentencing Prevent Duress from (Further) Becoming Archaic, Gendered, and Completely Inaccessible?
No full textOne of the most controversial, and least discussed, elements of the defence of duress is the list of excluded offences that appears in s. 17 of the Canadian Criminal Code. In the seminal cases of R v Ruzic and R v Ryan, the Supreme Court refused to address the excluded offences and left the discussion to “another day.” This article examines the historical development of the defence through the earliest case law and the writings of Sir James Fitzjames Stephen who was one of the first theorists on duress and a major figure in drafting the Criminal Code. Stephen’s dislike of the defence of duress seems to be the only reason for the statutorily restrictive defence. This article traces the few cases following Ryan using a historic lens and current perspective to determine what is next for the embattled defence, including the place for duress and mitigation upon sentencing
Year in Review
No full text2020 was defined by the global COVID-19 pandemic, which has changed how we live, work, and interact with one another. 2020 was also notable in witnessing Canadian society adapt and respond to broader social movements calling for change. Decisions from both the Supreme Court of Canada (SCC) and the Manitoba Court of Appeal (MBCA) have responded to these shifting social norms by recognizing broad systemic issues pervasive in the justice system and society-at-large. There is much to celebrate when courts venture into these waters, but the age-old polemic of judicial activism is sure to follow when courts raise their voices beyond the confines of legal doctrine. This article comments on some of the most important cases decided in this unique and turbulent year in Canada.
We examine the jurisprudence of the MBCA and the SCC in February 2020 through February 2021, inclusive, with the goal of highlighting recent changes and developments in the criminal law. Where relevant, some appeals that fall outside of this period will be discussed due to their significance to the law. Further, using the framework and parameters developed in previous Robsoncrim “Year in Review” articles, we have attached an appendix of statistical infographics which highlight statistical findings of the decisions of the SCC and MBCA between the period of February 2020 and February 2021.
In 2020, the SCC also appears to have continued its trend of limiting full written decisions, preferring instead to issue extremely brief judgments. While clear and succinct legal writing is to be encouraged, there can be little doubt that fulsome reasons are required to guide lower courts’ decision-making. Under Chief Justice Wagner, the SCC continues to offer plenty of dissenting opinions and disagreement within the Court; all of it, however, appears more “tightly packaged” than under the previous tenure of Chief Justice McLachlin. It remains to be seen if this warm embrace of brevity is to be celebrated or if a lack of detailed analysis breeds confusion in the courts below.
 
Detained on Sight: The Socioeconomic Aspect of Social Context in R v Le
No full textReasonable-person psychological detention is an area of criminal law that has been subject to a number of jurisprudential innovations in the 21st century. This work responds to a current gap in the literature regarding the importance of socioeconomic factors to the crystallization of detention in accordance with s. 9 of the Canadian Charter of Rights and Freedoms. The thesis of this paper is that socioeconomic factors are foundational to understanding the social context in which police interactions sometimes crystallize into detention. The socioeconomic aspect of social context reveals the way police interact with individuals in a certain space. Racial aspects of social context are postulated to be tied to socioeconomic aspects insofar as the racialization of individuals tends to occur in certain spaces – namely, high-crime, low-income neighbourhoods.
The methodology of this work includes an analysis of trends in detention case law beginning with the 2009 decision of R v Grant and ending with the 2020 decisions of R v Thompson and R c Dorfeuille. Secondly, this work investigates the Honourable Michael H. Tulloch’s Report of the Independent Street Checks Review. Thirdly, this work investigates a series of studies conducted by Yunliang Meng, a geography scholar who analyzed the Toronto Police Service’s racialization of individuals as a function of space. In conclusion, this paper recommends modifications to police practices that require officers to make explicit statements at the outset of interactions with individuals which determine whether or not the individual is detained.
 
The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence
No full textThis article examines the demise of the “all reasonable steps” requirement in s. 150.1(4) of the Criminal Code which limits an accused’s ability to assert a mistaken belief in age as a defence to sexual offences against children where he has failed to take such steps. The article demonstrates that the Court of Appeal for Ontario in R v Carbone has rendered this requirement meaningless in Ontario. Even where the Crown has met its burden to prove beyond a reasonable doubt that the accused did not take “all reasonable steps” to ascertain age, the Crown must still go on and prove mens rea as to the fact that the complainant was under the age of consent. The article argues that, where there is no suggestion that a legislative provision is unconstitutional, courts should not use statutory interpretation to effectively read a legislative provision out of existence, especially where it was intended to protect children from sexual contact with adults
Constitutionalizing Gladue Rights: Critical Perspectives and Prospective Paths Forward
No full textWhile remedial sentencing practices for Indigenous accused in Canada have often been described in rights-based terms, Canadian jurisprudence has been reluctant to characterize s. 718.2(e) of the Criminal Code as an actual “right.” At the same time, front-line judges who are witnesses to — and complicit in — the systemic overincarceration of Indigenous people have created something more out of Gladue than a Criminal Code sentencing guideline. Indeed, they have followed our apex Court’s direction that “application of the Gladue principles is required in every case involving an Aboriginal offender.” Following a few recent expansions of Gladue into yet more spheres of the administration of colonial justice, this paper investigates whether there is utility in reconceiving Gladue as a Charter right. While the substantive and theoretical criticisms of the legal policy mechanism of Gladue are valid, binding judicial and administrative decision-makers with a Charter responsibility to consider the particular circumstances of Indigenous realities when liberty interests of an accused are at stake can serve to strengthen the check on colonial maladministration of justice
Triaging and Mediating to Meet the Needs of Families Under The Family Dispute Resolution (Pilot Project) Act of Manitoba
No full textThe Family Dispute Resolution (Pilot Project) Act of Manitoba (“FDRA”) creates a three-year pilot project which will mandate the resolution of certain family disputes outside of the courts. Under the FDRA, “resolution officers” will be responsible for triaging families into these alternative resources. Currently, without supplementary regulations, the FDRA provides insufficient guidance to resolution officers to enable them to conduct this triaging role effectively. This is problematic as triaging is the first major step in the FDRA process and will set the course for the parties’ entire dispute resolution experience under the new scheme.
Given the importance of this step, and the likelihood that mediation will be one of the primary processes used to resolve disputes under the FDRA, I have attempted to create enhanced guidelines to help resolution officers match parties to the optimal type of mediation to fit their particular needs. These guidelines, which can hopefully help to inform the future drafting of regulations to the FDRA, were informed by both the mediation literature and the results of qualitative interviews which I conducted with some of Manitoba’s most knowledgeable family mediators.
Ultimately, I outline several factors which can impact the resolution of family disputes through mediation, and which must therefore inform the triaging decisions of resolution officers. I also argue that resolution officers should be required to receive specific professional mediation designations, and that to facilitate the most successful implementation of the FDRA, the government should not only take the insights from my research into consideration but should also commit to further consultations with our province’s family mediators and other ADR professionals
The Premier Should Not Also Be the Attorney General: Roncarelli v Duplessis Revisited as a Cautionary Tale in Legal Ethics and Professionalism
No full textFrom time to time, a Premier or Prime Minister appoints themself as Attorney General. In this article, I argue that this dual portfolio is inherently and incurably problematic and should be avoided and indeed prohibited. I do so from the perspective of legal ethics and professionalism. The springboard for my analysis is the conduct of Quebec Premier and Attorney General Maurice Duplessis in the classic case of Roncarelli v Duplessis. While there may well be perceived benefits that tempt Premiers to serve in the dual role, any lawyer who does so unavoidably violates his or her professional obligations. For this reason, I argue that law societies or legislatures, or both, should introduce an explicit prohibition against this dual role
“Ultra Vires and Void”: An Executive Inquiry Takes on Manitoba’s Legislative Building Crisis (And Wins)
No full text“Ultra Vires and Void”: An Executive Inquiry Takes on Manitoba’s Legislative Building Crisis (And Wins
Talking to Strangers: A Critical Analysis of the Supreme Court of Canada’s Decision in R v Mills
No full textIn R v Mills, an undercover officer acting without a warrant posed as a 14-year-old girl online and communicated with Mr. Mills through Facebook messages. The officer eventually arranged a meeting with, and arrested Mr. Mills who sought to have the message evidence excluded.
The Supreme Court unanimously ruled to allow the evidence. However, only Justice Martin agreed that Mr. Mills’ s. 8 rights were engaged and infringed. This paper takes the position that the Mills decision is inconsistent with prior s. 8 jurisprudence regarding content neutrality and expectation of privacy in conversations. The type of sting operation used in Mills should have been classified as participant surveillance requiring a warrant.
In Mills, the Supreme Court unduly adjusted the balance of power to favour law enforcement. The result of the Mills decision is that law enforcement may continue to use this investigative technique unregulated, and unencumbered. Such an adjustment in favour of law-enforcement is not justified. Other investigative techniques are available to law enforcement and obtaining a warrant would not unduly hinder child luring investigations. Failure to oversee these operations could have a potential chilling effect on legitimate online relationships and reinforce stereotypes about hypersexualized youth online