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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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