Weekly criminal law update – April 25, 2022

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  1. Excellent and surprising sentencing case from the ABCA: R v Friesen, 2022 ABCA 147. The Crown – clearly unhappy with the conditional sentence imposed by Stirling J. in a CP case – appealed. Hopefully a good omen for #5 hereLlewellyn, a similar sentencing decision by the same judge.
  2. In this case, the trial judge’s allowance of reliance on a video statement by a child SA complainant who later claimed to not remember the events was problematic, due to hearsay concerns. There were also indications that the claims may have been fabricated – R. v. S.S., 2022 ONCA 305. The trial judge “improperly downplayed the importance of cross-examination” (para. 50), plus a problematic finding that the child had “no motive to fabricate” (para. 67 – here I thought absence of evidence is not evidence of absence). The majority overturns the conviction. Dissent by MacPherson JA, with unnerving contention that “the inherent trustworthiness of [complainant’s] statement is the only likely explanation for her vivid descriptions” – as circular as reasoning can possibly get (not to mention naïve), in my view (para. 99). Crown almost certainly appealing this further, with a good chance of success. H/T C. Sewrattan. Ultimately, sentenced to 10 years for this offence, with a long-term offender designation granted (para. 131). The reasons for conviction suggest that it perhaps was not a wrongful conviction (factually, at least) – yet, convicting on the basis of a child’s video statement (later recanted) without the ability to cross-examine is problematic nonetheless. It should be difficult to ground a conviction beyond a reasonable doubt on the basis of a weak Crown case such as this.
  3. Nice case on bad character evidence. A new trial on a child SA required because similar fact evidence improperly allowed by trial judge upon an application (after-the-fact conduct peripherally related), noting the “vast morass of authority that was hopeless to reconcile” in this area (para. 14): R. v. J.W., 2022 ONCA 306. H/T Ryan Clements.
  4. Back in Alberta, meanwhile, another extremely tenuous sexual assault conviction appeal is dismissed: R v DEA, 2022 ABCA 143. Arguments of uneven scrutiny are having an “unwarranted renaissance” (para. 34), it seems. Despite the complainant likely sending a very questionable text (as it relates to her credibility, motive to fabricate etc. in the context of a custody battle, as well as a “central” inconsistency – e.g. paras. 35, 27), the trial judge believed her, so who are we to question it? The trial judge did make findings that “were hers to make,” (para. 36), and the Court simply “cannot interfere” (para. 37)! As icing on the cake, the Court quotes a known wrongful conviction in support of its decision: R v Yebes1987 CanLII 17 (SCC)(para. 38). Since there is perhaps a chance that the SCC will grant leave to appeal, it should be appealed. I will not get into bail chances.
  5. Another nice Ontario Charter case: R. v. Scopel-Cessel, 2022 ONCA 316. In this case, officers neglected to provide right to counsel while executing a search warrant for CP in a home. While the trial judge largely found no Charter violations, the ONCA disagreed, finding significant breaches, subsequently quashing the convictions and entering acquittals. Notes Durham Regional Police’s regular disregard for Charter rights (para. 51) – clearly a “Charter-free zone” when compared to, say, the utopia of Calgary, in which I am privileged to reside. It’s a good thing findings of law are entitled to far less deference than findings of fact.
  6. Prof. Sankoff’s great new podcast episode on the “quagmire” that sexual assault trials have become. Mentions his upcoming bail pending appeal seminar – excited about that too (I’ve mentioned concerns with ABCA jurisprudence in this area; for example, #1-3 here). When is the one about quagmires on SA appeals?
  7. Melissa Lucio’s execution in Texas for a crime she quite likely did not commit has been delayed for now – a mere 2 days before the scheduled execution. She was convicted of murdering her toddler daughter 15 years ago – on the basis of a coerced “confession” and likely shoddy forensic “evidence.” Note that “Prosecutors say Lucio had a history of drug abuse and at times had lost custody of some of her 14 children” – as if that has anything to do with anything (a classic red herring – or bad character insinuations). The prosecutor also said “I don’t disagree with all the scrutiny this case is getting. I welcome that” – LOL!
  8. On a related note to #2,4,7 above and generally to “deference” to findings of fact at trial (as I also critique at #1-3 here and #4 here), I note “The central challenge in criminal defense is persuading fact-finders to do what they are loath to: free someone who might in fact be guilty simply because it hasn’t been proven” (Abbe Smith, Guilty People, 2020, Rutgers Univ. Press, p. 41, emphasis added). Also, see p. 186 of P. Gall, Judicial Deference to Administrative Tribunals in Canada: Its History and Future, edited by J. Robertson et al., 2014, Lexis Nexis (in the context of deference to administrative tribunals, emphasis added):

    I appreciate the concern that this could take us back to the bad old days when courts too freely interfered in administrative areas about which they knew nothing, negatively affecting the resolution of issues in accordance with the wishes of legislatures. But the Court’s antidote to this – a broad application of a reasonableness standard based on the blind faith that all administrative decision-makers know what they are doing and that they are capable of doing justice in most, if not all, cases – has, in my respectful view, led to an abdication of the essential role of our courts in ensuring that justice is served in accordance with the rule of law.

    As Paul Weiler understood when he was the Chair of the Labour Relations Board, deference should be earned and not automatically granted. Reviewing courts can and should be trusted to accord the proper degree of deference based on their express consideration of the relevant contextual circumstances in each case. As Chief Justice McEachern said in his response to my paper, that is the proper role of the superior courts in our legal system.

The ends justify the means – weekly criminal law update – April 18, 2022

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  1. Wow! A stop of a vehicle leading to a driving while prohibited charge is dismissed on the basis of racial profiling in pulling over the car. Primarily on the grounds that the car was later searched “incident to arrest” and nothing was found, and this problematic search “can also colour and taint what had gone before, including the stop” (para. 34), and the search betrayed “probable racially stereotypical thinking” (para. 38): R. v. Ffrench, 2022 ONCJ 134, courtesy of Slaw.
  2. The SCC released its latest in R. v. Tim, 2022 SCC 12. Similar to Stairs – dealt with last week. The officer made an initial arrest on the basis of a mistaken belief that the pill he saw in the car was a controlled substance. Subsequent searches “incident to arrest” revealed a concealed, loaded firearm, among other things. Interestingly, the ABCA majority had found no Charter breach – the SCC unanimously agreed that it was a Charter breach, but allowed the evidence anyway under s. 24 – disagreeing with the dissenting ABCA justice (Veldhuis) on remedy. While the SCC ruled 6-1, it likely would have been 6-3 had Martin and Karakatsanis JJ. participated – as they dissented in Stairs. See thread by Nader Hasan and Canadian Lawyer. Will be interesting to see where Moldaver J.’s replacement falls on the Charter spectrum.
  3. Stay of proceedings for late Crown disclosure upheld – R v Jobb, 2022 SKQB 47 – HT P. Milczarek.
  4. Yet another problematic SA conviction: R. v. R.R., 2022 ONCJ 158. It was a “he said she said,” where the complainant was extremely drunk, and waited about a year to make a complaint. See para. 81, emphasis added:

    Of potentially more significance is that she told the investigating officers she was not sure if R.R. attempted to put his finger into her vagina, whereas in court she testified she remembered that occurring. She also testified that R.R. pulled her pants down to her knees, but in her police statement she said it was near her ankles. Those are important details. However, I may accept some, none or all of her evidence: see R. v. C.P., 2021 SCC 19 at para. 35. Furthermore, as she was both intoxicated and experienced a traumatic event, it is understandable that she might have difficulty recalling some of these details with precision: see G.M.C., supra at para. 38. She explained she “froze” due to her fear, just wanted it to stop, and acted still or lifeless as a survival instinct.

    In other words, despite some significant inconsistences, the trial judge is entitled to believe, some, all or none of the evidence so “too bad so sad,” essentially. Good luck on appeal. The “trauma” angle comes up a lot, and is probably bad science. How can courts continue to play armchair psychologist with this stuff, with no expert evidence? Hindsight is usually 20/20, but I wonder if a trial with a jury would not have been a better plan here.

  1. Excellent Ontario case, with Matthew Gourlay as counsel: R. v. TG, 2022 ONSC 2063. The summary conviction appeal justice overturned some counts of historical sexual assault convictions of a teacher. The main error was the trial judge’s refusal to allow defence cross-examination of complainants on both collusion and delayed disclosure (paras. 22-24, 43-46) – despite a 16-day trial with 159 pages of reasons given at the trial level (para. 6). Crowns and judges take note – sexual assault convictions can (and should be) overturned due to overzealous, misguided objections and constraint of the defence.
  2. Prosecutorial misconduct in this US wrongful conviction (this, this, this, this and this too). Simply shocking!
  3. Following up on my point last week of Legal Aid’s atrocious behaviour (#2): R v Kelly, 2022 ABPC 82 a 6-month delay for Legal Aid Alberta to appoint counsel was considered. As the Court did not have details of the reasons for the delay in this case, it was unprepared to consider the delay as “institutional delay” (paras. 32-37). It also quotes R. v. Pastuch, 2017 SKQB 211, a Saskatchewan case that properly called Legal Aid’s conduct in the delay as treating the accused’s case “shabbily and unprofessionally.”
  4. Interesting case of criminal harassment. The accused called a real estate lawyer who he thought was acting for him, describing himself as a “dangerous guy” who gets “what [he] wants” (para. 4). He was charged with harassment – not uttering threats. The trial judge ultimately finds that there is a reasonable doubt as to whether the complainant was harassed (paras. 22-23). It will be interesting to see what the ABCA thinks, if the Crown chooses to appeal: R v Woodman, 2022 ABPC 80.
  5. Fascinating acquittal in R. v. N.G., 2022 ONSC 1875. Both the accused and complainant lied dreadfully throughout the trial, in a case where a drunken fight led to the loss of the complainant’s nose in a domestic context. Alan Gold sets the standard; hopefully the interest groups don’t make a huge fuss. Conlan J. concludes (paras. 34-35):

    This Court feels terrible about what happened. I know that A.D. will be hurt by some of my comments about her evidence, and I take no pleasure in that. A.D. suffered an awful injury to her face. Whatever happened that morning, she did nothing to deserve that. This is not an exercise in sympathy, however. It is a criminal trial, with a relatively high standard of proof that is commensurate with the presumption of innocence.
    The presumption of innocence is not eroded simply because a judge or jury feels badly for a terribly injured person. It is not eroded simply because the accused’s evidence is rejected. It remains throughout the trial, and throughout the decision-making process, and in this case throughout all three stages of the “W.(D.) test”.

Weekly criminal law update – April 11, 2022

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  1. Problematic deference to trial judge’s findings of fact in tenuous case – yet again (R. v. J.L., 2022 ONCA 271, at para. 3.)

    Although J.L. raises concerns about the trial judge’s credibility evaluation that are not entirely without merit, when examined in the context of the reasons for judgment as a whole, those concerns do not overcome the significant deference that must be given to the trial judge’s credibility determinations, recently reinforced by Karakatsanis J. in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81‑82. As explained below, we therefore deny the conviction appeal:

  1. R. v. G.F., 2021 SCC 20 strikes again in R v Vaca, 2022 ABCA 127. In that case, a unanimous ABCA panel dismiss a conviction appeal. There were significant concerns with insufficient reasons given for conviction as well as with the treatment of the appellant at the summary conviction appeal, as noted concerningly by Veldhuis JA in the leave application (e.g. paras. 20-24). This case is also demonstrative of major problems with Legal Aid and access to justice in Alberta – the appellant was self-represented on his initial appeal, and only had s. 486 duty counsel at trial. Perhaps his (possible) wrongful conviction would have been less likely had he been represented.
  2. Another “problematic” conviction in R v Kownirk, 2022 NUCJ 11. “He-said she-said;” accused evidence rejected without any reason given at all. Disturbing, inaccurate and uncorrected Crown position altogether (para. 31, emphasis added): “The Crown’s position is that his asking about sex was insufficient in all the circumstances. No words were asked about vaginal or anal intercourse. He was aware of her intoxication. Therefore, the Crown submits it has met its burden of proof in this case.”
  3. The SCC’S latest in R. v. Stairs, 2022 SCC 11 has been widely and rightly criticized by the defence bar (I’m hopeful that, in future, said bar will be equally critical of other bad decisions, such as GF and RV). Reporting to a 911 call of domestic violence, police enter the home (justifiably) without warrant. Officer sees 3 ounces of meth in “plain view” after the arrest, during a “safety search” – found to be a reasonable and allowed search. The drugs were found after the arrest, and found in “least intrusive” manner – paras. 3, 10. Appears to be a major “watering down” of Charter rights, and it includes significant “deference” both to the police and to the trial judge’s findings of fact. As the dissent correctly point out (para. 147), “as a rationale, “you never really know” could apply any time the police make an arrest in a home.” Exploits vulnerability of domestic violence victims (paras. 91-97) to justify reduced privacy interests for all concerned, which is problematic, to say the least. Note that this concerning language is also used by the dissent, who claim that the extra searches may “revictimize victims” or discourage them from reporting violence (para. 123). The ends appear to justify the means.On a related note, I’m reading excellent critiques of the SCC’s decisions in TWU, Doré, Multani, etc. about results-oriented decision-making.
  1. Nice sentencing decision by newly appointed Judge G. Hatch, going slightly over the Crown’s recommended sentence for serious firearms offences for a young, Indigenous offender, but reducing the total sentence slightly to allow for probation: R v Moonias, 2022 ABPC 83
  2. A great 2017 article: “the assertions of the “neurobiology of trauma” that infuse these materials make it almost impossible for the accused to mount a defense. When such assumptions are held by those sitting in judgment, he says, “how do you prove your innocence?”” Similarly, Judge Brenda K. Sannes: The university trained its investigators that “inconsistency in the alleged female victim’s account [is] evidence that her testimony is truthful, because of alleged trauma….Plaintiff alleges that the investigation relied on ‘trauma informed techniques’ that ‘turn unreliable evidence into its opposite,’ such that inconsistency in the alleged female victim’s account. . .becomes evidence that her testimony is truthful.” — Doe v. Syracuse University
  3. Reggie Jackson’s excellent take defending Will Smith’s slap and calling out racist attacks of it
  4. Yet another egregious wrongful conviction – the elderly Justice Delisle of the Quebec Court of Appeal, wrongly convicted of murder of his late wife and now exonerated a decade later. The pathologist was – surprise – grossly negligent. The Court tossed the charges, refusing to allow the Crown to pursue a retrial. Justice Émond’s 99-page French-language decision here: R v. Delisle, 2022 QCCS 1160. Gosh – I just discussed another egregious wrongful conviction last week (David Klassen, #9). I wonder what we’ll discuss next week – I guess it will depend on which conviction CBC’s Fifth Estate next chooses to investigate. Again, I really hope (but don’t expect) that the inquiry will look very closely at potential Crown misconduct (such as occurred here).

Weekly criminal law update – April 4, 2022

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  1. In a Charter case, Khullar JA’s dissent (majority is Wakeling and Crighton JJA) is interesting. She allows consideration of s. 8 and 9 Charter breaches not raised at trial (e.g. search of vehicle incident to arrest). Will be watching for at SCC. I’m leaning towards the majority myself – despite the trial judge’s finding that there was a Charter breach, it was found to be justified under s. 1. I don’t see how adding “quantity” of Charter breaches (e.g. search of vehicle) changes that, especially where the search was justified (the arrest was for the same offence – unlike cases where arrest for unrelated offence, then becoming a “fishing expedition”). Interestingly, the appeal bail application had previously been denied – Veldhuis JA finding the merits of his appeal to be “not strong” (para. 18) on the 3rd branch of the test. Now, he has a dissent at the ABCA on his “weak” appeal, and has an automatic right to appeal to the SCC: R v Zacharias, 2022 ABCA 112 (I’ve also heard of conviction appeals being granted by consent, despite two prior findings at appeal bail that the appeal was frivolous).
  2. Lawyer’s Daily deals with R v Wollach, 2022 ABCA 95 – an unsuccessful appeal of a possible wrongful SA conviction, which I covered two weeks ago (you’re welcome, Lawyer’s Daily!). The case is illustrative of how difficult it is to win, or even run, an SA conviction appeal. Senior appellate counsel accused of using myths by the Crown during the hearing, which I observed – thankfully, not adopted by the Court in its reasoning. At least, Court found the appeal wasn’t frivolous at the bail stage despite Crown arguing otherwise, where Veldhuis JA ultimately released him on conditions akin to house arrest. I guess accusing most respected defence counsel in the country of misconduct by bringing a frivolous appeal is par for the course on a SA conviction appeal these days (e.g. Law Society of Alberta’s Code of Conduct expressly states: “5.1-2 When acting as an advocate, a lawyer must not: (b) take any step in the representation of a client that is clearly without merit”). I sometimes think appeal bail would be much simpler if the test were changed to “I don’t want you walking around my neighborhood” as was done here. There would certainly be less of a need to prematurely speculate that the appeal is frivolous if that were the test.
  3. Despite not granting appeal bail on a SCC leave application, Crighton JA correctly finds that the appeal to the SCC is “not frivolous” (para. 5) – R v Way, 2022 ABCA 109.
  4. R v. Banks, 2022 NSSC 77 – HT Alan Gold in his excellent weekly NetLetter through QuickLaw last week – defence contested request for Crown list of anticipated trial witnesses/schedule granted. Thankfully, “trial by ambush” is not condoned. Surprising that application required altogether, and that it was contested.
  5. Excellent sentencing case (conditional sentence) in case of serious domestic violence (including choking and pointing a loaded firearm). Stirling PCJ notes (at paras. 71-72):

    The primary investigating officer, who has extensive experience in domestic violence, has stated she has never witnessed an individual who has put in the amount of work as Mr. Llewellyn. It is exceedingly difficult to change the direction of one’s life, particularly where there is addiction to alcohol and drugs. Over the past 14 months or so, Mr. Llewellyn has done the difficult and ongoing work required to address alcohol and drug addiction.  It is apparent from all of the material before me that Mr. Llewellyn is committed to rehabilitation, committed to his children and committed to living a law abiding and productive life.

    We’ll see what the ABCA thinks – Crown doubtless appealing, as it is for R v Sharifi-Jamali, 2022 ABQB 52: R v Llewellyn, 2022 ABPC 67.

  6. A fairly disturbing ONCA conviction appeal dismissed: R. v. I.W., 2022 ONCA 251. Appellant should absolutely seek leave to appeal to the SCC. The complainant “mixed up” the location of the alleged encounters (para. 11), her outburst in front of the jury (“You’re defending a creep. You’re defending a [expletive] creep” At other points, again with the jury present, she referred to the appellant as a “loser”, a “creep” and a “rapist” – para. 16), and significant fresh evidence showing the appellant did not live at the Brooklin apartment at the time alleged (paras. 61-66) -all dismissed. This one definitely sets off my wrongful conviction radar. Her response when confronted with an inconsistency “I guess I didn’t really remember it” sounds more than a little fishy to me – para. 9. My favourite is para. 30, regarding the outbursts (emphasis added):

    I think it important to, first, place these outbursts in their proper context. M.B. was a youthful witness, 18 years old at time of trial, testifying about events that occurred when she was 15 and 16. Upon my review of the record, it is fair to say that hers was a lengthy and vigorous cross-examination. She was, understandably, upset and emotional.

    If we presume that she was lying (which is a perfectly fair assumption), why is her being upset “understandable?” Of course, if we assume guilt, her emotion is perfectly understandable.

  1. Very serious convictions (home invasion robbery at gunpoint) overturned for confusion created by over-charging:

    In our view, there is no safe way of separating out the confusion that was created by the erroneous jury instructions as between the various counts or as between the two appellants. If the jury was left in a state of confusion regarding what the Crown needed to establish for a conviction beyond a reasonable doubt, it cannot be said with any level of comfort that the confusion would only have permeated their consideration of some charges and not others.” – Para. 12, R. v. Akhi, 2022 ONCA 264

  1. Entrapment – illustrative of the difficulty in applying the test for entrapment. Apparently, had they said “sell me cocaine” it would have been entrapment, but not “u good for powder?” Dealt with by Ryan Clements in his Feb. 2022 roundup (March one here). A bit of a “distinction without a difference” it would seem to me. – R. v. Zakos, 2022 ONCA 121
  2. A very disturbing wrongful conviction overturned by Minister of Justice last week (David Klassen of BC – press release, Lawyer’s Daily, thanks to UBC Innocence Project. The Crown pathologist had testified that the death was not an accident, which was false. Not the only time this “expert” lied for the Crown. A quick Google search turns up this. See paras. 11-12 of the 2020 bail decision:

    In terms of the head trauma suffered by Ms. McLeod, attributing them unequivocally to intentional force, as did Dr. McNaughton in the first instance, is certainly questionable. […] Further, it is concerning that Dr. McNaughton has recently softened his view as to causation.  As concerning as the criticisms of Dr. McNaughton’s opinion by these experts, is the manner in which his opinion was expressed in his evidence at trial.  That opinion was not the same as the one to which he testified at the preliminary inquiry, nor was it completely aligned with his written report.  At trial, Dr. McNaughton came up with a theory that differed from both, and was essentially conclusive of the theory of intentional force as the cause of Ms. McLeod’s head trauma.

    I really don’t want to see a government cover-up on this one. We’re entitled to – at minimum – a thorough inquiry, focusing on likely Crown misconduct by using a lying “expert.” Heads should roll. The Law Society of BC has to look at it very closely. The victim should be paid a minimum of $25 million to demonstrate that the public and “system” will learn from its mistake. News coverage here. See an interesting article on tunnel vision here and Center for Prosecutor Integrity.