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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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