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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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