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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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