Weekly criminal law update – March 28, 2022

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  1. On a defence appeal, Crown asks ONCA to depart from binding precedent in Jordan, and to find that a stay of proceedings is not the only remedy available for a Jordan (excessive delay) breach. This was not dealt with at trial, and is thus a new argument that the Crown was prohibited from bringing. The Crown’s reference to stays under Jordan as “automatic judicial guillotines” (para. 58) is called “needlessly incendiary” (para. 61): R. v. Charity, 2022 ONCA 226 – one of the 2 Crowns already called out in recent Lawyer’s Daily post regarding R. v. Ste-Marie, 2022 SCC 3 – to be fair to the Crown, this appeal was heard in September 2021 – well before both judgments were released. Will be interesting to see how aggressively this will be prosecuted by provincial regulators (I’d be surprised if they even open a file; frankly, they shouldn’t). Would it be the same if it was defence counsel accused of same? Apparently, getting a little carried away with rhetoric is not necessarily a “career-ender” for government lawyers.
  2. Speaking of Jordan, see R v Ghraizi, 2022 ABCA 96. Excellent decision in which a delay 2 months above the ceiling – despite illness of the Crown and the pandemic’s circumstances, a stay of proceedings was warranted.
  3. Pre-sentence reports again called out for inappropriately voicing “the author’s personal views of the offender’s behaviour and attitude” – R. v. Neville, 2022 ONCJ 110, para. 26. See paras. 26-30. HT Pawel Milczarek.
  4. I greatly enjoyed Palma Paciocco’s strong critique of the problematic, recent SCC decision of R. v. G.F., 2021 SCC 20 in her recent article (entitled Presumptions, Assumptions, and Reasons for Reasons: The Sufficiency of Trial Judgments After R. v. G.F., available on WestLaw/Google). She writes (pp. 1-4):

    The majority reasons in R. v. G.F. have curtailed and confused the law governing appellate review for sufficiency of reasons … While the G.F. majority did not expressly overturn Sheppard and related cases, it has effectively resiled from them” […]In other words, if the trial judge might have gotten it right, then the appellate court should rest on the presumption that they did get it right. With respect, this analysis all but eviscerates the ground of appeal it is meant to frame up. […]Put bluntly, telling the losing party in a criminal case to just trust that the judge got it right is, if anything, likely to decrease that party’s trust in the trial judge and in the system as a whole. (p. 4)

  5. Some other interesting stuff below, starting with Abbe Smith (US): Can You Be a Good Person and a Good Prosecutor? (2001), Are Prosecutors Born or Made? 2012, and Judges as Bullies (2017).
  6. Politics – judiciary. Brave journalists like Sean Fine from the Globe and Mail getting lots of flak for saying the obvious truth: that our Supreme Court is political. See this 2011 National Post article:

    But if criminal justice experience was the deciding criteria, Queen’s University law professor Don Stuart said there were undoubtedly “better judges to choose from.”
    He agrees Moldaver is a “very experienced jurist” with a wealth of criminal justice experience, but believes Ontario appeals court judge Marc Rosenberg and David Doherty would have made wiser choices.
    He suspects Moldaver’s comments on the charter likely won over the Tories.
    “He doesn’t write too many pro-accused judgments,” Stuart argued. “That might have been a deliberate choice by the Harper government which obviously is not in favour of too many activist court judgments.”

  7. Civility – A. Woolley – (2008), Does Civility Matter?, at 188:

    Hard-hitting and unvarnished critiques are essential to working towards the justice system we should have, and to ensuring that lawyers play the role they need to play within that system. Pursuing the impossible dream of a positive public image, or seeking to soften the discomfort of hearing unpalatable and uncivil truths, is not required. What is required is strong and cogent debate about how lawyers can be ethical-how they can balance the competing values inherent in the difficult but fundamental role they play in a democratic society. The civility movement should be abandoned in favour of this more difficult but ultimately more fruitful and important task.

  8. See also Woolley’s conclusion in “Uncivil by too much civility”?: Critiquing Five More Years of Civility Regulation in Canada, 2013 CanLIIDocs 759 (266):

    What sort of lawyers do we want? Do we want lawyers who call out other lawyers for misconduct? Or do we want lawyers who fail to do so for fear that their criticisms will be sanctionable? Law societies may prefer the latter; they may believe that the reputation of the profession will be best preserved if lawyers act with decorum or silence in the face of other lawyers’ misbehaviour. But the argument here is that the only hope for retaining public respect is if the public believes that lawyers and the legal profession will protect them from wrongdoing by other lawyers through formal regulation and through informal social sanctions like shaming and shunning. The law societies should be rewarding the lawyers who have the courage and determination to take on that task rather than sanctioning them for their choice of words.

Weekly criminal law update – March 22, 2022

  1. Wow! An acquittal on a SA trial in R v Harnett, 2022 ABQB 213 following a 6-day trial. The 42-page decision outlines the allegations in detail and notes significant inconsistencies and discrepancies with the complainant’s narrative, as well as text and other post-incident contact casting doubt on her narrative. The trial followed a 37-page decision allowing the use of necessary texts in R v Harnett, 2022 ABQB 122, followed by a second such application (a mere 18 pages – R v Harnett, 2022 ABQB 150). Here’s to hoping that the SCC gets rid of this s. 278.92-94 nonsense in its pending decision in R v JJ.
  2. Very concerning decision by ABCA in R v Wollach, 2022 ABCA 95. Absolutely a “he-said she-said” SA case, conviction upheld. By definition, the odds of wrongful conviction are very high. Concerning language, at para. 24: “An appellate court must show great deference to the trier of fact’s assessment of witness credibility and cannot interfere with credibility.” Note that the distinction between, say a “major” or “minor” discrepancy is entirely subjective, in the “eye of the beholder” and almost entirely impervious to appeal. Nothing to see here. Note that the most respected defence lawyer in the country (Brian Greenspan) expertly argued the appeal. Also, accused’s Google searches used against him at trial – problematic in itself (the Crown spent “considerable time” cross-examining about his Google searches of “consent” prior to his meeting police (trial decision, paras. 113, 178-9, and noted approvingly on appeal, at para. 12). Senior trial counsel had been accused of “propensity reasoning” (para. 150, 169) – likely imprecise if not incorrect. The accused was accused of “evasive, self-serving, and internally inconsistent” (para. 157) evidence at trial – problematic too. Bizarrely, there were insinuations at trial that he drugged the complainant, using his medical knowledge (he was a doctor), yet the Crown abandoned that argument both at opening and at closing (unclear why such innuendo was required at all, in that case – para. 159) – bizarrely mentioned twice in the appeal decision (paras. 8, 10). At the mistrial (denied here), Judge Stevenson points out there’s blame “to go around on both sides” (para. 57) regarding inadvertently “missing” the complainant’s statement and not properly disclosing it. Despite a major inconsistency (complainant appears to talk about feeling a condom in her statement – paras. 72-4, but at trial said she hadn’t felt or seen one – para. 28 – difficult to assess without a transcript; eight other inconsistencies were alleged, per appeal at para. 32, surprisingly not specified in any of the decisions and related language concerningly vague), the mistrial was denied. If it looks like a duck… Thankfully, defence counsel was not accused of using propensity reasoning on appeal – at least not by the Court.
  3. Conviction at SA trial, with Judge Bascom presiding. Despite acknowledging inconsistencies and evasion with complainant’s testimony, her narrative sufficiently reliable and corroborated by other evidence to support the conviction (paras. 52-61, R v D’Souza, 2022 ABPC 56)
  4. SA conviction – defence witness called “contemptible hypocrite” (para. 24). “It is unfortunate that neither the prosecution nor the investigator thought to obtain them [important text messages], or ask him to bring them to court” (para. 39). Despite multiple inconsistencies and credibility issues with the child witness in a sexual assault (he-said, she-said), a conviction followed (para. 82). Accused’s memory was essentially “too precise” (para. 63) 3 years later – without expert evidence, likely a finding vulnerable on appeal. His testimony is “unbelievable” and “tailored” to answer the allegations (para. 65) – also a highly problematic findings, perhaps (R v Bendick, 2022 ABPC 19)
  5. A disturbing news story from Manitoba, where an Indigenous young mother (accused) was openly insulted in court. Surely, if she was a complainant, it would have been remarkably different. The article notes “The insults were neither addressed nor denounced” by the Judge. It appears neither the Crown or defence counsel objected, either. My favourite quote, and one I may have to start quoting at trials:

    The Crown must be very cautious to avoid the perception it is interfering or interrupting during cross-examination of a witness by defence lawyers, a spokesperson from the provincial government said in a written statement.
    “Not only could it impact a trial strategy and intrude on the accused’s right to make full answer and defence, but it could also appear to be trying to protect or rehabilitate a witness inappropriately,” said the spokesperson, who did not give their name or identify the government department for whom they were speaking.

Weekly criminal law update – March 13, 2022

  1. An ONCA majority overturns a conviction for first-degree murder for both appellants, due to trial judge not giving jury the options of a conviction for second-degree murder or manslaughter. This despite trial defence counsel agreeing with the charge that only first degree murder was appropriate (see paras. 47-48). Dissenting opinion by MacPherson JA, agreeing with majority on one appellant only, and not the other. MacPherson JA calls her colleague’s conclusion “backwards” (para. 76). Expect to see it at SCC next year – R . v. Doxtator, 2022 ONCA 155
  2. A conviction for sexual assault of a child is overturned by a unanimous ONCA panel on multiple grounds in R. v. S.R., 2022 ONCA 192. The trial judge made no fewer than three material misapprehensions of the evidence (paras. 10-14). The court specifically rejects the Crown’s position that the errors were “minor” (para. 18).
  3. Yet another sexual assault conviction unanimously overturned (ONCA again) for trial judge impermissibly accusing accused of tailoring testimony to fit Crown disclosure. An almost blatant reversal of proof, perhaps. It’s shocking that this continues to occur: R. v. C.T., 2022 ONCA 163. Also incredible that appeal won with duty counsel. Hat tip Pawel Milczarek in his excellent Defence Toolkit this week.
  4. Fascinating decision by Harris J. of the ONSC in R. v. McKenzie-Walcott, 2022 ONSC 1350 (hat tip Tom Engel). A traffic stop led to search of a car and seizure of marijuana. The smell of burnt (as opposed to fresh) marijuana was insufficient to justify the search, given that the scent lingers and it can be difficult to determine the timing of when the marijuana had been smoked, per R. v. Polashek, 1999 CanLII 3714 (ON CA). The trial Crown is called out for suggesting Polashek should not be followed, as though the smell of marijuana had somehow become more familiar in the last couple of decades (paras. 19-22). A marijuana stem – ostensibly visible in the car’s interior – did not add enough to justify the search, either, given that it is not marijuana itself (paras. 29-30). The Crown is also accused of “distorting the evidence” (para. 36) and using ex post facto reasoning to justify the search (para. 52). Trial Crown ultimately accused of “There is a reasonable apprehension that the Crown’s crucial independence from the police was lost in this case together with the fundamental quasi-judicial Minister of Justice role vital to the prosecution of criminal offences” – para. 62. Officer Dunfield is found to have perjured himself (para. 63) and his “conduct exhibited bad faith and a deliberate and wilful disregard for the Applicant’s” Charter rights (para. 67). Evidence excluded. Not yet available on CanLII – freely available here (or QuickLaw).
  5. An excellent SKCA decision, overturning a conviction where trial judge implied the jury had the binary choice of accepting either witness’ testimony – neglecting to mention that they could accept some of each or neither altogether. It was a “credibility contest” and an “either/or” approach (para. 69). There was also a material misapprehension of evidence (para. 79). See para. 59 of R v Thalheimer, 2022 SKCA 25:

    Further, the presumption of correct application – which, as some commentators have pointed out, is based on questionable assumptions (David M. Tanovich, “Testing the Presumption That Trial Judges Know the Law: The Case of W. (D.)” (2001) 43 CR (5th) 298; Palma Paciocco, “Presumptions, Assumptions, and Reasons for Reasons: The Sufficiency of Trial Judgments After R. v. G.F.” (2021) 71 CR (7th) 54) – has limited scope, relates only to the basic principles of criminal law, and is a presumption, not an invariable rule. Professor Don Stuart, Faculty of Law, Queen’s University, suggests that “decisions involving ambiguity on a key issue should not be resolved by a presumption of accuracy. It is the presumption of innocence and the standard of proof beyond reasonable doubt that are at stake” (“R v G.F., Criminal Reports – Comments” (WL)). I would agree that these fundamental principles must always govern.

  6. An excellent acquittal by Judge LeGrandeur of Lethbridge, Alberta on a sexual assault trial. There appeared to be credibility problems with both the complainant and accused. The accused “flip flopped” in his testimony (para. 83). The complainant, for her part, had no markings on her neck, despite claiming to be seriously choked by the accused (para. 90) and her testimony also suffered from other inconsistencies (paras. 91-92). See the conclusion, paras. 93-95 of R v Hurlburt, 2022 ABPC 46:

    Given these inconsistencies, I am unsure about the credibility and reliability of her testimony concerning the 271 and 267(c) allegations. In the context of these particular incidents, these inconsistencies in the Complainant’s testimony are not insignificant and raise some concerns about the accuracy of her testimony. These inconsistencies of course could be a product of the circumstances in which these incidents allegedly occurred in the sense that the stress of the moment left her without a complete or perfect memory of what took place or the sequence of what took place, or it could be that she is filling in or confabulating certain parts of it, albeit these are not things that she indicated she did not remember, rather she was inconsistent in her testimony with respect to what she did remember.

    I am unable to conclude, despite these inconsistencies, that the Complainant is lying about what happened, but neither am I able to say that I can accept her testimony as being entirely accurate. When I consider the testimony of the Accused, in the context of the testimony of the Complainant, which is also subject to reliability questions, I am left with a reasonable doubt that the allegations made by the Crown with respect to the s271 and 267(c) charges are proven true.

    My conclusion that the evidence in this case leaves me with a reasonable doubt is not the same as deciding in any positive way that the events as alleged by the Complainant never happened. The underlying principle demanded by the concept of proof beyond a reasonable doubt is that even if a criminal fact finder does not entirely believe evidence inconsistent with guilt, if the fact finder is left unsure whether the evidence is true, there is a reasonable doubt and an acquittal must follow. That is the case here.

Weekly criminal law update – March 6, 2022

I’m hopeful of doing a weekly criminal law roundup or update. I may set this up as an email, too, through Mailchimp.

  1. Nice language re “myths” at para. 44 of solid acquittal: “Surely, if evidence that the complainant ran from the scene in a distraught state can be used to corroborate her story, evidence that she did not mention the assault can be used to undermine it.” – R. v. D.A.B., 2021 MBQB 185
  2. Concerning ABCA panel decision last week. Harassment sentencing case where Crown had asked for house arrest and judge went with 9 months jail. ABCA says at least 3 years jail would have been appropriate (para. 79) – with very little supporting caselaw (hopefully not a new “starting point”). In the result, uphold original sentence, given that Crown did not appeal it. Illustrative of vast disparities in sentencing philosophies and practices. Decision likely written by Justice Wakeling, who I like, although I typically don’t agree with him – his decisions are well-written and very clear. No beating around the bush, and is prepared to call out SCC when he thinks it appropriate. – R v Sidhu, 2022 ABCA 66.
    Reminds me of my Dec. 2019 blog post, which is now somewhat out of date, given SCC in R. v. Parranto, 2021 SCC 46: Up, up and away: the Alberta Court of Appeal sets 9 year starting point for wholesale fentanyl trafficking: R v Felix, 2019 ABCA 458 (CanLII) – Moldofsky Law. See also my take in Alberta defence lawyers disappointed in Supreme Court decision validating starting-point sentences | CBC News
  3. Appeal ‘another example’ of prejudicial similar fact evidence resulting in new trial: lawyer – The Lawyer’s Daily (thelawyersdaily.ca): R v Whitehead, 2022 SKCA 19. Very interesting case where Crown similar fact evidence application was improperly allowed. Nicely done, Brian Pfefferle.
  4. Nice acquittal on SA charge by Judge Pharo out of Lethbridge AB with some great language: “The Court must weigh all of the evidence and may reject or accept some, none or all of the witness’ testimony after having taken into account a multitude of factors, including but not limited to appearance or demeanor ability and opportunity to perceive, ability to recall, motivation, probability or plausibility, and internal or external consistency.” – Para. 18, R v DCM, 2022 ABPC 47. Much better than the less-nuanced language in e.g. R. v. François, 1994 CanLII 52 (SCC – “juries are routinely charged that they may accept all of the evidence, some of the evidence, or none of the evidence of each witness”), R. v. B.C., 2011 ONCA 604, at para. 5).
  5. Excellent work by Peter Sankoff and Heather Gagnier – winning a conviction murder appeal. Important on how juries should be instructed where one co-accused implicates another; judge improperly told jury to be skeptical of accused’s evidence – R v Whiskeyjack, 2022 ABCA 76
  6. Fresh evidence application allowed (at initial stage) by Wakeling JA in R v Harris, 2022 ABCA 70. A Freudian slip, perhaps? See para. 22, emphasis added:

    It is not asking too much of an offender to insist that he or she proceed with reasonable expedition upon learning of the existence of new evidence.

I’m reading Justice Denied, a fascinating 1986 book about the wrongful conviction of Donald Marshall Jr. (video, Inquiry, article, Macleans 1987 article). A lot of similarities with the Truscott wrongful conviction (my blog post here). I’m currently working on a blog post about this, as well as on Marie Henein’s latest book and a review of the Ghomeshi trial transcript.