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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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