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    Reminds me of my Dec. 2019 blog post, which is now somewhat out of date, given SCC in R. v. Parranto, 2021 SCC 46: Up, up and away: the Alberta Court of Appeal sets 9 year starting point for wholesale fentanyl trafficking: R v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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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