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”.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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