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).

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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