Manitoba Law Journal
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“Interrogators often use honey, not vinegar, in pursuit of the truth”: Resistance, the Constitutional Right to Silence and Judicial Responses to Cell-Plant Operations
No full textPolice officers employ numerous tactics to elicit incriminating statements from an accused. For instance, law enforcement officials will sometimes insert undercover police officers into a detention cell to procure evidence – cell-plant operations. During the 1990s, the Supreme Court of Canada held that where undercover state agents actively elicit incriminating statements from an accused while in detention, such conduct violates the latter’s right to silence situated in section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”). Remaining silent is a legitimate way to resist the power of the state when it conducts investigations. Police officers undermine this right and ability to resist when dispatching undercover officers in this manner, since an accused is unaware that they are speaking to state agents. However, an accused person with the assistance of their lawyer(s) may further resist the prosecution’s intended use of these incriminating statements through litigation – specifically, applications to exclude evidence under the Charter. While the Court has not considered cell-plant cases since 1999, Canadian trial courts at the superior court level have developed the right to silence jurisprudence concerning cell-plant cases. In addition, the Supreme Court of New Zealand has adopted the legal tests formulated by its Canadian counterpart. This article examines this jurisprudence, revealing how some decision-makers are showing sensitivity to the spatial context in which these operations occur. The case law also exposes how undercover officers may impact their exchanges with accused persons by building temporary and situational relationships with them. This is despite the lack of a prior relationship between the accused and undercover agent(s). In turn, this raises concerns about whether state actors have actively elicited incriminating statements from an accused. The jurisprudence also highlights how undercover officers are engaging in the functional equivalent of an interrogation despite the Supreme Court of Canada’s decisions in the 1990s admonishing against these tactics. An examination of this jurisprudence provides tools to challenge prosecution attempts to use cell-plant statements in future cases
Charter, Constitutionality and the Honour of the Crown: Considering an Additional Constraint
No full textThe provincial governments of Ontario and Quebec recently deployed section 33 of the Canadian Charter of Rights and Freedoms to curtail labour rights and religious freedoms in ways that have surprised voters and lawyers alike. Many commentators argue that section 33 was intended to be used sparingly in only the direst of circumstances. This contention does not survive a plain reading of the Constitution Act, 1982. In this paper, we explore the common law doctrine of the honour of the Crown and its potential constraint on executive power that gives texture to elected leaders’ and public officials’ relationship to the Constitution and the state. We analyze the doctrine’s development to argue that the honour of the Crown resonates with the popular sentiment shared by many: elected leaders cannot simply deploy section 33 at will. The feudal concept of honour owed to and from the Crown animates the Westminster system and Canada’s Charter of Rights and Freedoms in ways that provide legal arguments that may constrain political leaders from tyranny and overreach
An Exploration of Influences of Sociodemographic Characteristics of Supreme Court Justices in Judicial Decision-Making in Income Tax Cases, 1920-2003
No full textSocio-demographic characteristics of Supreme Court justices were found to have influenced their judicial decision-making in income tax cases from 1920-2003. Based on historical voting patterns, voting scenarios were constructed to describe voting propensities of selected Supreme Court justices. The voting scenarios suggest that Canadian judges sharing similar socio-demographic characteristics are expected to exhibit similar judicial behavior. Therefore, in the deliberation of cases in which a wide range of perspectives is needed, a more socio-demographically diverse court is preferred. As demonstrated in this paper, quantitative analysis can raise useful questions on judicial decision-making, but qualitative analysis is required to completely answer the questions.
 
Preface
No full textThe Manitoba Law Journal is committed to preserving the voices of distinguished jurists from this province. In that context, we are honoured to present this issue. It includes reflections on his retirement by the Honourable Chief Justice Richard Chartier. This is accompanied by remarks by Chief Justice of Canada, the Right Honourable Richard Wagner, as well as the Honourable Justice Freda Steel of the Manitoba Court of Appeal and the Honourable Margaret Wiebe of the Provincial Court of Manitoba. This issue also contains a comprehensive analysis of the jurisprudence of Chief Justice Chartier, by Melanie Bueckert and Michael Rice. The final contribution in the volume is a focused look at the judgments of the retiring Chief Justice in the area of civil procedure, by Gerard Kennedy
The Access to Justice Needs of Manitobans: Legal Practitioners’ Views
No full textA unique survey of Manitoba legal practitioners’ views on the greatest access to justice needs of Manitobans, we bring experiential data to the question of how to facilitate access to justice for Manitobans. This is truly unique, first-hand, Manitoba-focussed research and we can think of no better place to publish than the Manitoba Law Journal
Sentencing in Line with Society: R v Bunn and the Manitoba Court of Appeal’s Use of Social Understanding as a Justification for Increased Sentences
No full textEver since the pivotal judgement in R v Friesen was given by the Supreme Court of Canada, courts around the country have continued to grapple with its legacy. Recently, the Manitoba Court of Appeal adopted the spirit of Friesen in its recent ruling, R v Bunn, and held that the principles espoused within Friesen should not be limited solely to cases of sexual assault involving children. Building on this principle, the Manitoba Court of Appeal provided non-quantitative guidance citing society’s and the courts’ deepened understanding of harm as a justification to call for increased sentences for sexual assault involving adult victims. This paper analyzes this approach by the Manitoba Court of Appeal through theoretical, practical, and hypothetical lenses. It determines that the MBCA’s approach is underpinned by Durkheimian functionalism and bolsters the courts’ role in upholding societal values, enhances proportionality in sexual assault sentencing, and has hypothetical application as a general rule for raising, or lowering, sentences for offences through non-quantitative guidance
Proving Deprivation in Criminal Fraud: Has the Court in R. c. Landry Cast the Net Too Wide?
No full textThere can be no fraud without deprivation. This trite limiting principle is a universally-accepted bedrock of the offence of criminal fraud under s. 380(1) of the Criminal Code. The Quebec Court of Appeal’s recent split decision in R. c. Landry, suggests that even a remote and tenuous risk of financial harm can suffice. But perhaps more troubling is the point at which the majority holds that a risk of harm materializes for the purpose of assessing deprivation at the actus reus stage. According to the majority, it is not once the fraudulent scheme is completed, but rather at the exact moment of the dishonest act. In this piece, I argue that the majority of the Court of Appeal’s approach is incorrect and I instead suggest that the dissenting judgment of Madam Justice Cotnam is more consistent with binding jurisprudence, and that the majority’s decision will have sweeping implications. Most importantly of which will be to further broaden the concept of deprivation to include an even wider scope of conduct and risk of pecuniary harm. I conclude by suggesting that the majority’s analysis to assessing deprivation at the actus reus stage will largely leave little room for the offence of attempt fraud
Crown Prosecutors and Government Lawyers: A Legal Ethics Analysis of Under-Funding
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Crown prosecutors and government lawyers are reliant on governments for their funding but exert no meaningful influence or control over such funding decisions. Nonetheless, this article demonstrates that as a question of law, under-funded Crown prosecutors and government lawyers risk violating their professional duties. If so, they must promptly inform the government, refuse new matters and, if necessary, withdraw from existing matters. If the government purports to block such refusal or withdrawal and does not provide adequate funding, resignation will become necessary. While law societies will likely not prioritize disciplinary action against such lawyers, the policy reasons to forego such proceedings do not mean that the legal answer is wrong and should or will change. This discordance with practical reality demonstrates that legal ethics generally – and the rules of professional conduct more specifically – do not adequately appreciate the practice settings of government lawyers and Crown prosecutors. Nonetheless, any changes to the legal framework governing all lawyers should be considered carefully as they would have major implications for the regulation of the legal profession
Forward
No full textWe at the Manitoba Law Journal are honoured to publish this monograph as a peer-reviewed contribution to public understanding of issues fraught with importance and complexity. It offers profound insight into the moral and human dimensions of state-sanctioned death. This study, with its industry, rigor, precision, and originality, stands as a model of scholarship. Readers will find no more reliable guide than this author and this author and this boo
Chapter 7: “Arthur Ellis”: His True Identity as Alexander Armstrong English
No full textChapter 7 “Arthur Ellis”: His True Identity as Alexander Armstrong Englis