Weekly criminal law update – May 31, 2022

I am looking for contract or freelance work, given that Legal Aid Alberta unreasonably refuses to work with me. My strengths are in written, oral and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.

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  1. Check out my latest blog posts: Trauma and memory – Moldofsky Law, Surprisingly Human: How Judges Think, by R. Posner – Moldofsky Law and The train wreck that is Legal Aid Alberta – Moldofsky Law.
  2. Mistrial declared in R v Peterson, 2022 ABQB 365 after conviction due to destroyed/late disclosure (destroyed sexual assault kit among other items). The Crown’s contention was “not wholly incorrect but oversimplifies” (para. 18).
  3. Judicial stay of proceedings granted due to police excessive force (use of Taser for 5 cycles while accused trying to flee – paras. 53, 55): R v Badger, 2022 ABPC 109.
  4. Defence s. 276 application required on trafficking charges (not enumerated offence) even when cross-examining complainant who somehow led impermissible evidence absent a Crown s. 276 application (despite being required, per R. v. Barton, 2019 SCC 33, at para. 80): R. v. Maldonado Vallejos, 2022 ONSC 2753 (QuickLaw/Google – not yet on CanLII). H/T Alan Gold.
  5. Crown appeal of Charter acquittal successful: the location of the gun being in the house was not an unreasonable inference in this case, I think: R. v. Kalonji, 2022 ONCA 415.
  6. Sentence reduced from 11 years to 10 years on fentanyl trafficking charges, where sentencing judge exceeded Crown’s position: R v Enns-Horvath, 2022 ABCA 196.
  7. Conditional discharge granted in case of lying to police about serious matter (stabbing): R. v. Merkley, 2022 ONCJ 227. H/T Alan Gold.
  8. Section 745.51 of Criminal Code authorizing imposition of consecutive 25-year parole ineligibility periods struck down: R. v. Bissonnette, 2022 SCC 23.
  9. Supreme Court of Canada backs victims in 34 sex-assault cases in row, a Globe analysis finds – The Globe and Mail (Google)
  10. Jacksonville man exonerated in 1986 child rape case | firstcoastnews.com
  11. Locked up 20 years for double-murder he didn’t commit, Daniel Taylor in line for $14.25M settlement – Chicago Sun-Times (suntimes.com)
  12. Arizona Can Kill Barry Jones, Supreme Court Rules (theintercept.com):

    In a nod to Arizona’s repeated contention at oral argument that “innocence isn’t enough” for Jones to prevail in this case, Thomas cited the court’s decision in Herrera v. Collins, which famously held that there was no constitutional prohibition against executing someone for a crime they did not commit. In a case like Jones’s, he wrote, federal intervention is “an affront to the state and its citizens who returned a verdict of guilt after considering the evidence before them.”

Trauma and memory

Since I’m no brain scientist, I thought I’d crack open a textbook (crowns believe in textbooks, right?). I had a look at Witness Testimony – Anthony Heaton-Armstrong; Eric Shepherd; Gisli Gudjonsson; David Wolchover – Oxford University Press (oup.com) – 2006 (thank goodness for a solid Calgary law library).

While skimming the book, I was looking very closely for the expected chapters on how traumatic memories can be incredibly unreliable and inconsistent – as assumed by most criminal lawyers and judges these days, especially when it applies to a complainant’s weak evidence. To my shock, I couldn’t find a single chapter (or page) stating this assumption!
The book is from 2006, long before the #MeToo movement, so maybe that explains it. It is amazing what kinds of horses**t pass for “common sense” and law these days.

As I mention here at #4, R. v. G.M.C., 2022 ONCA 2 states the following (emphasis added, para. 38):

After his general observations with respect to the assessment of evidence, the trial judge simply expressed some propositions, grounded in common experience, that are familiar to every trial judge and lawyer and to lay people. Although he used different language, I would express these as:

  • observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;

Similarly, see the disturbing case of R v ADG, 2015 ABCA 149, at para. 33, emphasis added, which I mention here:

The Supreme Court of Canada has made clear that sexual assault cases should be decided “without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R v Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v DD2000 SCC 43 at para 63, [2000] 2 SCR 275.  It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way.

See also the irresponsible and dangerous claim made by L’Heureux-Dubé J. in R. v. Osolin, 1993 CanLII 54 (SCC) (cited approvingly by Prof. Tanovich in his similarly-irresponsible article that I review here), supra note 4 at 625, where she notes that (emphasis added), “[t]here is absolutely no evidence to suggest that false allegations are more common in sexual assaults than in other offences; indeed, given the data indicating the strong disincentives to reporting, it seems much more likely that the opposite is true.”

Now let’s see what the textbook says. It begins “when witnesses lie by providing an account – whether to investigators or in court – which they know to be untrue the detection of their deceit, especially if they appear plausible or where there is no supportive or contradictory evidence, is elusive and prone to error” (p. 2, emphasis added).

Chapter 6 deals with recovered memory and false memory, and Chapter 7 deals with “crime-related amnesia.” Surely, Chapter 7 deals with trauma-related memories? Not really. It mostly deals with offenders and their convenient claims of “amnesia” – moreso than those of “victims.” As “a rule of thumb, one can say that 20 to 30 per cent of those who commit violent crimes claim amnesia” (p. 107). It states that older studies showing 20 per cent of offenders who claimed amnesia were malingerers (liars) is actually a very low number, and there are “good reasons to believe that the rate of malingering is much higher” (p. 109). Surely, no complainants are malingerers, especially if they’re brave enough to claim to be assaulted, given “disincentives” to reporting?

Here’s the “money” quote (p. 111, emphases added):

In comparing offenders’ memory before, during, and after the crime, Christianson and von Vogelsang [footnote omitted] found that it was more common to completely lose memory of what happened during the crime than information immediately before or after the crime. This pattern was evident for both groups, but was most pronounced in the reactive group. Note that this pattern is opposite to what is normally found when studying memory for emotional events. That is, subjects typically remember the emotion-inducing event quite well, but show impaired memory for information preceding and/or succeeding the highly arousing event.

This would suggest that the “law” that “trauma-affected” memories (of course, assuming trauma occurred, which is perhaps inconsistent with the presumption of innocence, to start) are often recalled poorly is nothing but pure, unadulterated, Grade A Alberta horses**t – of course, it is also binding “law” on just about all courts. It is not “soft science” or any other kind of science – although it is perhaps a selective distortion of science.

I also deal with this here, at #6. Note that my favourite podcast recently dealt with this topic, as well.

Complainants are well-coached by Crowns (ethically or otherwise) these days to claim “trauma” and to insinuate that their glaring inconsistencies should be entirely discounted, given their “trauma.” I had one lying complainant claim that “you’re in trauma. You’re not going to remember everything until everything settles out” explained why she left out significant details in her initial report to police – regurgitated by the Crown in closing submissions when claiming that her lying witness should be believed despite her inconsistencies. The gullible judge clearly accepted these “submissions” – asking me (emphasis added):

So just — just drawing from normal human experience where one is struck to the point of unconsciousness or being rendered unconscious, is it unreasonable for that person perhaps to have things mixed up? The chronology of events mixed up or — and, you know, we don’t have any experts here, but just, you know, drawing from human experience, when a person is put into a traumatic situation or a very fluid situation where there is violence involved, you know, are you suggesting that, you know, if you have a sequence of events, they’ll — messed up, that that points to the — points to a deliberate attempt to mislead the Court or — — you know, goes to credibility?

Yes, sir, yes it does. It also goes to reliability, too. Needless to say, my client was wrongly convicted.

How many dozens of wrongful convictions are happening daily thanks directly to this clearly well-established “science” and law?

To quote the timeless Eddie Greenspan from 35 years ago: “if we keep diluting our evidentiary rules; if we threaten our police, Crown attorneys, and judges with censure for applying the same common sense, or the same discretion, in cases of alleged sexual assault as they do in all other criminal investigations and trials, we will inevitably end up with innocent people convicted and ruined.”

Weekly criminal law update – May 23, 2022

I am looking for contract or freelance work, given that Legal Aid Alberta unreasonably refuses to work with me. My strengths are in written, oral and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.

To subscribe to the mailing list (link).

  1. Check out my latest blog posts: Surprisingly Human: How Judges Think, by R. Posner – Moldofsky Law and The train wreck that is Legal Aid Alberta – Moldofsky Law.
  2. Multi-pronged appeal of CP convictions (including allegations of ineffective assistance of defence counsel) allowed on basis that trial judge refused to put defence of “mistake” to jury, finding incorrectly that it had “no air of reality”: R v LaFrance, 2022 ABCA 182, para. 43. Similar to Wong (ABCA, #4 last week).
  3. Opinion evidence from expert that 180 Percocet pills contained in a Ziploc bag were “for the purpose of trafficking” was improper and led to an overturned conviction. The Crown should have left the available inference to the jury, but having an “expert” confirm it risked that the jury would accept the opinion without “critically considering the evidence”: R. v. Satkunananthan, 2022 ONCA 393, para. 32.
  4. Evidence certifying the alcohol standard along with certificate of qualified technician required for Crown to establish proof of driving with BAC over .08%.: R v Blomberg, 2022 SKPC 19. H/T Alan Gold.
  5. Discharge substituted for conditional sentence on sentence appeal for fraud under $5,000. The accused had demonstrated exceptional rehabilitation and had repaid the amount stolen. Sentencing judge erred by “setting the bar too high” for availability of a discharge by “imposing a threshold of exceptionality”: R. v. Mills, 2022 ONCA 404, at paras. 9-10, emphasis added.
  6. CSO for CP offence by Judge Brown in Calgary: R. v. Bultmann, 2022 ABPC 106, relying on R v Friesen2022 ABCA 147 (discussed at #1 here). Will be interesting to see the sentence on Ehbrecht, an animal case. Reading Bultmann and Friesen, one would think a CSO is possible. Of course, reading R v Chen, 2021 ABCA 382, one would think it is not. We shall see, I suppose.
  7. A nice ABlawg post by Prof. Lisa Silver on the SCC’s pending sentencing decision in Sharma (constitutionality of unavailability of conditional sentences): Does the Punishment Fit the Crime? | (ablawg.ca)
  8. Great Twitter thread by law student dispelling some myths about the defence of extreme intoxication – recently dealt with in Brown (SCC – #2 last week).
  9. Listen to the 2 recent Not on Record podcast episodes.
  10. Kathleen Folbigg: Genetics may help free Australian woman convicted of killing her 4 babies | CNN
  11. My son is found not guilty – Bettina Arndt (substack.com)

Surprisingly Human: How Judges Think, by R. Posner

I recently read Richard Posner’s excellent 2010 book, How Judges Think. He pulls back the curtain on judicial thinking, clarifying a topic seldom discussed or understood. He puts the lie to the commonly held perception that judges’ reasoning is (for the most part) Divinely inspired. He reinforces Justice Berger’s somehow-controversial comments in R. v. Gashikanyi, 2017 ABCA 194 (decision cited approvingly in R. v. Parranto, 2021 SCC 46, at para. 130) that “Judges are no different than butchers, bakers, and candlestick makers” (at para. 72). I thought now is a good time to post my thoughts on the book, especially given the recent international uproar over the US Supreme Court’s expected reversal of Roe v. Wade and – on a smaller scale – the ABCA’s decision on pipelines and the SCC’s decision in Brown (discussed at #2 and 9 of last week’s update). I also deal with the subject generally in my December 2021 blog post: Policing Thoughtcrime: The Role of Law Societies? – Moldofsky Law. See also.

He points out, at p. 114, that appellate review is often “intuitive”: “So what is involved in appellate review is, at bottom, simply confidence or lack thereof in another person’s decision. That is an intuitive response informed by experience with similar decisions. It is not rule- or even standard-driven, except in the clearest of cases, but it is not mindless guesswork either.”

He laments the lack of methodological rigour that goes into training judges (p. 118): “Apart from brief orientation sessions and occasional continuing legal education seminars, judges in our system are not actually “trained,” which is an interesting commentary on the methodological rigor, or rather the lack thereof, of judging. Judicial training is “learning by doing” – a further clue to the largely tacit character of judicial reasoning.”

He has some practical advice for appellate counsel (p. 119), which incidentally reminds me that I wanted to review Point Made one of these days: “Rather than beating appellate judges over the head with cases, which is the standard technique of appellate advocacy, appellate lawyers would be more effective if, recognizing the essentially legislative character of much appellate adjudication and the essentially pragmatic disposition of most American judges, they emphasized instead the practical stakes in their cases and how the stakes would be affected by the court’s deciding those cases one way rather than another.”

He mentions judges’ “reversal aversion” (p. 141): “District judges also do not like to be reversed. Even though a reversal has no tangible effect on a judge’s career if he is unlikely to be promoted to the court of appeals in any event – and little effect even then – it can imply criticism rather than merely disagreement, and no one likes a public rebuke.”

He excoriates judges’ intellectual laziness and bullying tactics (pp. 142-3): “Because a federal district judge has more decision freedom than judges in career judiciaries, personal factors – including the kind of intellectual laziness that consists of acting prematurely on intuition rather than (also) on analysis and evidence, and even the delights of tormenting the lawyers who appear before the judge – are likely to play a larger role in his behaviour than in that of his counterparts in career judiciaries perhaps especially tormenting the lawyers, because that affects neither the judge’s reversal rate nor his backlog, but on the contrary reduces his backlog by inducing more settlements.”

He notes the obvious – that judges can be highly selective in their use of language and are capable of “spinning” almost anything, as are lawyers too, certainly (p. 144):

Appellate judges in our system often conceal the role of personal preferences in their decisions by stating the facts selectively, so that the outcome seems to follow from them inevitably, or by taking liberties with precedents. Yet the doctrine of precedent exercises some constraint even on the minority of appellate judges who are ambitious to place their own distinctive stamp on the law. […]

A newly-appointed Supreme Court justice may pay lip service to most of the Court’s earlier decisions even if he dislikes the policies on which they rest. But he will construe those decisions narrowly in order to minimize their impact. And when he finds himself, as he often will, in the open area in which conventional sources of law, such as clearly applicable precedents, give out, he will not feel bound by those policies. So if he can command a majority the law will veer off in a new direction. Eventually, the old precedents will be interpreted to death, or finally, overruled explicitly. (pp. 276-7) […]

There is almost no legal outcome that a really skillful legal analyst cannot cover with a professional varnish. So a Supreme Court justice – however questionable his position in a particular case might seem to be – can, without lifting a pen, or touching the keyboard, but merely by whistling for his law clerks, assure himself that he can defend whatever position he wants to take with enough professional panache to keep the critics at bay. (p. 286) […]

If the Justices acknowledged to themselves the essentially personal, subjective, political, and, form a legalist standpoint, arbitrary character of most of their constitutional decisions, the – deprived of “the law made me do it” rationalization for their exercise of power – they might be less aggressive upsetters of political applecarts than they are. But that is probably too much to expect, because the “if” condition cannot be satisfied. For judges to acknowledge even just to themselves the political dimension of their role would open a psychologically unsettling gap between their official job description and their actual job. Acknowledging that they were making political choices would also undermine their confidence in the soundness of their decisions, since judges’ political choices cannot be justified by reference to their professional background or training. Judges do not like to think that they expressing an amateurish personal view when they decide a difficult case. Some judges “agonize” over their decisions; most do not; but both sorts feel a psychological compulsion to think they are making the right decision. (Some judges think that just by virtue of their having been made judges, their decisions must be right, or at least as right as any other judge’s). A judge who does not become comfortable with his decision by the time it is handed down might ever after be tormented by doubts that it was correct. No one likes to be tormented, so judges do not look back and worry about how many of their thousands of judicial votes may have been mistaken. (p. 289)

He points out the Supreme Court’s sensitivity to its portrayal in mainstream media (p. 146): “The irony is that Supreme Court justices pay even less attention to academic criticism than lower-court judges do, though more to the reactions of legislators, the general public, and the media.”

He criticizes the similarity and/or lack of diversity among most judges (p. 155): “Judges who come from the same social and professional background are likely to think alike. So when they disagree they will be arguing from shared premises. Arguments from shared premises can lead to objectively verifiable conclusions – which is not to say that the conclusions are correct. Conclusions that follow logically from incorrect premises have no warrant of correctness.”

He points out the obvious problem of life tenure (p. 158): “Whether in the academy or in the judiciary, life tenure guarantees independence but also invites abuse because it eliminates any penalty for shirking.”

He makes the interesting point that judicial salaries need to be just high enough and not too high (p. 169): “Another effect of a much higher salary, having a similar consequence, would be to attract leisure-loving practitioners. […] And so the obverse of the proposition that low judicial salaries drive out dissatisfied judges is that the low salaries operate as a screening device: only lawyers who really want to be judges will accept the financial sacrifice required.”

He notes the arrogance (colloquially known as “judge-itis” that sometimes accompanies a judicial appointment – p. 306): “Cocooned in their marble palace, attended by sycophantic staff, and treated with extreme deference wherever they go, Supreme Court justices are at risk of acquiring an exaggerated opinion of their ability and character.”

While I’m on the topic, I thought I’d mention some related points from other works.

In Judicial Conduct and Ethics (by Shaman, Lubet, Alfini – 1990, Michie), the authors note thatUnfortunately, the public and organized bar appear to be more interested in judicial ethics and judicial accountability than the judges are” (p. vii), and that “acquiring a sensitivity to ethical issues will help avoid the two principal charges filed against judges: (1) conflict of interest and (2) inappropriate demeanour (unnecessary harshness, sarcasm, and name-calling)” (p. x). Judges are to: “perform their work with a high degree of competence, and should treat litigants, witnesses, attorneys, and others who appear before them with courtesy and respect. […] In sum, they should inspire trust and confidence, and should bring honor to the judiciary” (p. 2).

They also note that (p. 31), “Vindictive comments or threats towards attorneys in connection with court proceedings have generally been prompted by improper retaliatory motives on the part of the judges in question. Thus, judges have been sanctioned for making rude and vindictive comments or threats to attorneys who sought to disqualify the judge, bring disciplinary charges against the judge, or appeal a ruling of the judge.”

In Judges on Trial by Shimon Shetreet (Elsevier, 1976), the author cites (at p. 187) R v Gray [1900] 2 QB 36 (could not find digital version), in which “The Court expressed the view that ‘judges and courts alike are open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to the law or the public good, no court could or would treat this as contempt of court.’” See also here and here.

Quoting R. v. Ex Parte Blackburn 1968 QB, he states (p. 190):

Lord Denning M.R. stated that the courts will “most sparingly exercise” the power of contempt, and will never use [it] as a means to uphold [their] own dignity. Commentators are fully entitled to voice outspoken criticism. […]

Salmon L.J. said:

It is the inalienable right of everyone to comment fairly upon any matters of public importance. This right is one of the pillars of individual liberty – freedom of speech… no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith.

At p. 244, he notes the importance of civility as between the Bar and the Bench: “Sankey L.J. observed: “the Bar is just as important as the Bench in the administration of justice, and misunderstandings between the Bar and the Bench are regrettable, for the prevent the attainment of that which all of us desire – namely, that justice should not only be done, but should appear to have been done”” (Hobbs v. Tinling 1929).

Weekly criminal law update – May 15, 2022

I am looking for contract work, given that Legal Aid Alberta unreasonably refuses to work with me. My strengths are in written and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.

To subscribe to the mailing list (link).

  1. Check out my latest blog post on the fiasco that is Legal Aid Alberta: The train wreck that is Legal Aid Alberta – Moldofsky Law (my first blog post other than weekly updates in 6 months). I’m hoping to post a bunch more over the next few months – have already drafted several.
  2. In what I consider to be the most significant decision in a generation (at least), in R. v. Brown, 2022 SCC 18 (104 pages long), after some 28 years, the ABCA upholding s. 33(1) is struck down by a unanimous 9-0 SCC panel. Constitutionality of s. 33(1) of the Criminal Code (allowing for criminal liability of extremely intoxicated individuals, akin to automatism, for general intent offences) is struck on the basis that “To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions” (emphasis added, para. 9).
    It is a huge moral victory for defence and civil liberties in Canada, generally, despite the fact that it deals with an extremely rare defence. While the SCC “hastened” to add that Parliament can certainly cook up new ways to ensure criminal liability for someone in this category, given the importance of “protecting victims” (para. 10 – grrr), the cat is out of the bag. Let’s not forget that the SCC has unanimously struck down idiotic legislation that has been active for the last 28 years. Besides, all 3 justices at the ABCA got it totally wrong (note that even the dissenting justice, Khullar JA, found it to be unconstitutional but saved it under s. 1). Sure, Parliament can choose to try again, but will they and should they? We’ll see. Perhaps my favourite paragraph (para. 127):

    To be clear, this conclusion rests on the specific concerns Parliament had when enacting s. 33.1. This case engages unusual issues and should not be seen as allowing governments to justify attempts to expand criminal liability as a routine matter. The accountability objective must, as here, be defined with precision, distinct from the means and, importantly, be sufficiently compelling from a societal perspective to warrant the overriding of rights.

    Mega congrats to all of the counsel, courts and parties involved in this game-changing decision.
    I say it’s time to similarly review other bad legislation (e.g. s. 276 – possibly 273.2, etc.).

  3. R. v. Sullivan, 2022 SCC 19 (66 pages) is a “companion case” to Brown. While some are concerned about its implications in the context of horizontal stare decisis, I’m not. Keep in mind that it was dealing with declarations of constitutional invalidity, and doesn’t substantially change the law on stare decisis.
  4. A major decision by the ABCA unanimously allowing a defence appeal of a trial judge’s refusal to put the defence of honest but mistaken belief to the jury in an SA case where the accused’s evidence suggested the possibility that there was an “air of reality” to the defence, and that he had taken reasonable steps to ascertain consent: R v Wong, 2022 ABCA 171. Significantly, the experienced trial judge’s conclusion that the accused needed to “ask” permission, in the context of this case, was incorrect (para. 7).
  5. Trial judge dismissing 2 male jurors for the sole purpose of a more balanced jury in terms of gender representation was reversible error, necessitating a new trial: R. v. Azzi, 2022 ONCA 366 (the trial was pre-Chouhan).
  6. Search warrant excised on basis that accused’s phone number was obtained from a hotel for the express purpose of tracking it. There was privacy interest, and s. 8 was breached (para. 165). Argument on section 24 was reserved (para. 6): R v Neumann, 2022 ABQB 314 – not yet available on CanLII (QuickLaw/Google) – H/T Alan Gold’s NetLetter.
  7. Accused’s statement to authorities “compelled” under traffic laws (reporting collision to police), and as such, were inadmissible against him at trial for impaired driving, resulting in acquittal: R. v. Thorne, 2022 ONCJ 193 – H/T Alan Gold’s NetLetter.
  8. Joint submission of 90 days jail “jumped” to 8 months, on guilty pleas to uttering a death threat and a breach of probation in the domestic context, with Gladue factors: R v Pecinka, 2022 ABPC 81. Not sure if it makes a lot of sense (pragmatically speaking), as Crown is likely to consent appeal, I’d think.
  9. ABCA trashed by most of the country for its latest decision favouring Alberta’s government regarding oilsands (Reference re Impact Assessment Act, 2022 ABCA 165 – 219 pages). Strongly criticized by academics (here and here too). In case you didn’t already think law = politics (see also #17 last week).
  10. Opinion: The legal defence of extreme intoxication is not inherently anti-feminist – The Globe and Mail
  11. Black GTA man cleared of murder in shooting of ‘racist’ Kingston man | The Star
  12. Our politicians must better respect the judicial independence of tribunals | The Star
  13. The trauma of proving my good character | Canadian Lawyer (canadianlawyermag.com) – not recent.
  14. Alison Saunders’ critics attack ‘disastrous’ five-year reign of the CPS | Daily Mail Online – not recent.

The train wreck that is Legal Aid Alberta

I have lots to say about Legal Aid Alberta (LAA) and its funders. They’ve slashed their budget drastically the last few years – with an extreme, detrimental impact on both the public and the lawyers who depend on it for their livelihoods. Given their very tight budget (and drastic reductions in funding from Alberta’s provincial UCP government), they’ve made the decision to fund far fewer matters (certificates), for less money per certificate, and to nickel-and-dime its roster lawyers to exasperation.

LAA admits as much: “we committed to reimagining the way we operate to refine our business processes to maximize our funding dollars—and ultimately enhance our services to clients” (p. 6 of PDF, 2019-2020 LAA Annual Report, emphasis added). Everything else about the reports demonstrates this as well. Below, I will detail the dollars and cents.

Average cost for Level 1 certificates (adult) was $1,152 in 2020 (about 70% of all certificates – criminal is about 80% of total certificates) – slightly lower for youth at $853 (p. 13). Down to $1,074 in 2021 (p. 17) – a relatively small reduction of 7%. Average family law certificate spend was $3,391 – p. 14 – 3 times the spend for adult Level 1 criminal certificates.

LAA’s total spend in 2020 was about $70 million for certificates (drastically reduced by 35% last year) and about $41 million for internal expenses (staff, lawyers, overhead, etc. – p. 27), which totals ~$110 million – about the amount they made in revenue that year (approx. 80% from AB government). Legal Aid has 300 staff (including lawyers) and 1,200 roster lawyers (p. 8 – here).

For the next year (last year – 2020-2021), the average cost of duty counsel roster certificates went down about 15% from the 2 previous years (p. 17, 2021). Interestingly, the total number of Level 1 certificates went down from 20,000 or higher over the previous 3 years to a mere 13,000 in 2021 – a reduction of 35% (in addition to the 35% reduction in total certificate spend, 25% reduction in criminal certificate spend, and 12% reduction in criminal per certificate spend). The number of Level 1 youth certificates went down by a full 50% (p. 18). Interestingly, youth certificates had far less fluctuation in cost per certificate (looking only at Level 1 and 2/2.5) than adult certificates from 2020 to 2021.

Family certificates, on the other hand, went up in cost per certificate (about 20%) last year – p. 18, although the total number of family/child welfare certificates issued also decreased drastically (by about 50% – even higher if you look at previous years). Immigration certificates also were drastically reduced (about 70% in quantity) but increased in cost per certificate (about 20%).

Average Level 2/2.5 certificate spend was $2,354 in 2021 – down more than $200 from the year before (considering that there are 6,741 such certificates – a total savings of approx. $1.5 million right there; similar to the total savings per Level 1 certificate from the previous year). The total savings on Level 3 certificates is about $1 million. Per certificate savings total about $4 million (about 12% of total spend on criminal certificates of $31 million) last year then – even forgetting the drastic 35% reduction in number of certificates, which seems to have saved LAA another ~$30 million.

Total revenue in 2021 was only $70 million from the province (a reduction of $20 million). Total savings on criminal adult certificates was about 25% from 2020 to 2021 (from $42 million to $31 – p. 31). Spending on family certificates was reduced from $17 to $9 million – about a 50% reduction. While LAA’s overhead and staff expenses experienced a slight increase, their total spend on roster went down drastically from $69 million to $45 (35%) in a single year. So the total “pot” available for the roster was cut by more than one-third in one year alone.

Note that Ontario’s total Legal Aid expenses was reduced a more modest 15% in 2021 (p. 36) – and government revenue was stable (p. 34), although they’re expecting a huge, appalling 30% decrease in provincial funding this year, despite significant and necessary pushback from both the defence bar and the judiciary. A slight reduction in average cost per criminal certificate in Ontario (p. 28 – $1,750 to $1,672 – about 5%; similar to the reduction in cost per certificate in Alberta – and also cost per certificate, although Ontario had much less of a drastic reduction in number of criminal certificates issued – about 10% there to 35% in Alberta – see. p. 26).

In Ontario, the tariff is also much better to counsel, as it generally pays a lot more. Further, the hourly rate is significantly higher than Alberta’s (by some 10-60%), and BC’s hourly rate is even higher. Total spend on criminal certificates increased from 2020 to 2021 in BC (p. 23).

All this in a time when criminal cases are supposedly at an all-time high, with record numbers of new judges and crowns being hired (all unionized and compensated quite comfortably, of course). Note, “The release said that in the past two years there has been a 12 per cent increase in the number of active criminal cases.” So, criminal cases in Alberta have not at all reduced – merely LAA’s willingness to fund them (by 35%), and for the few that they do fund, they insist on pinching every last penny.

Note that LAA had a surplus of nearly $7 million last year (p. 31 – I wonder how much of that total is owed to its roster lawyers?), and pretty much “broke even” the year before. Instead of “streamlining” or “modernizing” the tariff, they could start by paying a reasonable wage, treating roster counsel with basic decency, and not drastically reducing the number of matters it funds in one year (by 35%, with a subsequent reduction in roster spend of 40% – particularly when their internal expenses increased – clearly, their salaries didn’t go down, while we were chopped by up to 40%).

Looks like LAA tried to pay call centre agents up to 18% less a couple of years ago. LAA appears to have a single-minded focus, and that is to save every penny possible. Whether that’s consistent with their duty to the public or to roster counsel appears to be irrelevant, in their view. Their “relationship” and “trust” with roster lawyers appears to be at an all-time low, and it’s not clear that they care about that one whit (note their disrespect to senior counsel about the contract they force roster counsel to sign, referred to by senior counsel as “shocking” and “disrespectful”). Note also their ironic claim to conduct “business to the highest ethical standards” (p. 8), which is especially hilarious if the person “in power” who attempted to bribe said senior counsel in the above article by offering her a vaunted Q.C. appointment were she to essentially shut up was on LAA’s payroll.

I’m looking forward to LAA’s 2022 report – I suspect it will be released in July (last year’s was July 27). I definitely hope it’s not as awful as 2021 (July 2022 edit: here it is. Roster spend went up by 15%, and provincial funding increased 18% – I’ve made a handy spreadsheet here).

Looking at Alberta’s provincial budget alone; its health budget is $22 billion next year (p. 127) – more than a third of its total budget. Education is $8.4 billion (p. 131) – not including post-secondary. Its funding of Crown prosecution service (ACPS) is $99 million (includes prosecutors, already well-paid, who received a significant and well-deserved pay bump recently; note, it does not include federal prosecutors for drug offences) – 3 times what LAA paid for adult criminal roster counsel, $63 million for “Victims of Crime and Public Safety Fund” (almost twice what LAA paid for adult criminal roster counsel), some $215 million for Court and Justice Services (judges who are paid approximately $0.5 million each per year if you include pension, etc. which is apparently not enough; note 13 new Alberta judges appointed just recently – possibly includes Legal Aid) – a 10% increase from the last year (p. 137), for a total of a whopping $1.48 billion for the justice system (also includes exorbitant amounts to police and prisons – provincial only; as an aside, the $0.5 billion the province spends on police is separate from the other $0.5 billion spent by the City of Calgary alone on its police services). A mere $31 million spent by LAA on roster counsel for adult criminal certificates, and $42 million on total roster (includes family, immigration, youth criminal, etc.). The total of $42 million spent on legal aid certificates is down a shocking 40% from the year before. I will put some charts below.

It’s very simple, LAA and provincial governments around the country: either fund Legal Aid properly or continue to decimate the strength and independence of the defence bar, openly encourage wrongful convictions and inappropriate guilty pleas, and make it more obvious how little you respect the vital work of the criminal defence bar by funding them exponentially less than everyone else in the justice system. Your call – not mine.

 

Charts

Weekly criminal law update – May 9, 2022

I am looking for contract work, given that Legal Aid Alberta unreasonably refuses to work with me. My strengths are in written and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.

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  1. NCR finding overturned, due to insufficient reasons, etc. Also, the charges were relatively minor (possession of weapon) and NCR was likely inappropriate for that reason alone (paraphrasing). A good reminder that NCR should only be used in extreme situations: R. v. Laming, 2022 ONCA 370.
  2. SCC finds that Jordan delay starts over upon ordering of a new trial: R. v. J.F., 2022 SCC 17.
  3. In R. v. Lai, 2022 ONCA 344, a new trial is ordered where the trial judge’s route to liability came late and as a surprise to both counsel (finding that the removal of a towel was itself sufficient for the SA conviction).
  4. In R. v. Panzo, 2022 ONCA 359, convictions were overturned and acquittals entered after a jury conviction on party liability – for co-accused Bailey only. A drug transaction occurred, and Bailey had been in the residence, later leaving (and running from police). There was an absence of proper jury instructions on party liability, and the judge should not have given an instruction on co-conspirators’ exception to the hearsay rule. Further, there were inconsistent verdicts relating to Bailey (para. 51), suggesting the jury was confused about the law and various routes to liability.
  5. Past sexual conduct improperly used against accused in a “historic” SA judge-alone trial required a new trial – GG c. R., 2021 QCCA 1835, at para. 41.
  6. In R. v. Mbuyamba and Anderson, 2022 ONSC 2491, an acquittal was appropriate in a circumstantial case of firearms charges where the accused did not testify. While the circumstantial evidence was highly suggestive of knowledge (and hence possession), it was insufficient for a finding of guilt beyond a reasonable doubt. Roger J. points out that “it is also important not to jump to conclusions too quickly by “filling in the blanks”” – para. 53.
  7. Trial judge exceeded Crown’s recommended sentence (not a joint submission) without giving sufficient reasons nor providing an opportunity for counsel to address appropriateness of sentence, and was hence overturned: R. v. Bagheri, 2022 ONCA 357.
  8. Murder appeal allowed where improper jury instruction on identification evidence: R. v. Grant, 2022 ONCA 337.
  9. Somewhat disturbing conclusion – denial of appeal bail on 3rd ground (public interest) for 8-year sentence by Trotter JA: R. v. M.S., 2022 ONCA 348. Same on 7 years in R v RYM, 2022 ABCA 148 (Legal Aid Alberta unreasonably refusing coverage), 3 years in R v DRS, 2021 ABCA 171, and 14 months in R. v Price, 2022 NLCA 25. Contested on 14 months in R v Mitchell, 2022 ABCA 151 (last week, #3). HT Ryan Clements (his April post here).
  10. In R. v. Rafuse, 2021 NSPC 63, charges of CP were stayed as a result of Charter breaches (s. 8). The accused’s computers were seized pursuant to a search warrant, but the Report to Justice was filed over a year late, and the items were not returned to the accused, despite multiple requests. H/T Alan Gold’s NetLetter last week (QuickLaw).
  11. In R v Ejetsiak, 2022 NUCA 2, a conviction for assault is overturned due to trial judge’s misapprehension of evidence (incorrectly stating that the officer testified that the complainant showed bruising, paras. 34-35). H/T Ryan Clements.
  12. In R v Bunn, 2022 MBCA 34 – low sentence of 28 months prison upheld (para. 129) on Crown appeal for SA – despite error of sentencing judge in relation to non-disclosure of HIV status (para. 56). Considers Gladue, Friesen, – noting repeatedly that Parliament has not raised the maximum prison sentence in 40 years (e.g. paras. 74, 80), despite the rhetoric in Friesen.
  13. In another well-reasoned acquittal, see Semenuk J’s reasons in R v H.H., 2022 ABPC 98 (similar to #7 last week). Significant concerns with the complainant’s credibility and inconsistencies (e.g. para. 128) led to a reasonable doubt – despite Browne v Dunn issues with the accused’s evidence (para. 126).
  14. Failure to instruct the jury on the defence of provocation when it would have been better to do so (“to err on the side of caution” – paras. 67, 80) justified overturning a murder conviction. However, Crown’s “troubling” and inflammatory comments were insufficient on their own, in the “context” of this case, to justify a new trial (para. 45): R. v. Barrett, 2022 ONCA 355.
  15. CJO Strathy released an excellent paper on the importance of mental health in the legal profession (Lawyer’s Daily).
  16. Recent Crown pay bump in Alberta, as well as 12 new provincial court judges Unfortunately, not a single one of the judges has a criminal defence background. It is also extremely unlikely that defence lawyers in Alberta will ever be paid (through Legal Aid) anything close to the relative fortune that Legal Aid in BC or Ontario pays. Note significant pushback from some defence lawyers here.
  17. The US Supreme Court’s intention to “cancel” abortion after 50 years has shocked the world. It perhaps lays bare the obvious truth that law and politics are essentially the same thing. See this and this: “But if a half-century of progress toward a more equal society, painstakingly achieved across many fronts by many actors, can be so easily jettisoned with the wave of a few judicial hands, the problem to worry about isn’t the court’s. It’s democracy’s. It’s ours.”
  18. Regarding judicial education, see Kyla Lee’s excellent attack on Keira’s Law – Lawyer’s Daily.
  19. The Unsolved Murder of Beverly Smith is an excellent new series on Amazon Prime about Mr. Big operations and wrongful accusations (Toronto Life).

Weekly criminal law update – May 1, 2022

I am looking for contract work, given that Legal Aid Alberta unreasonably refuses to work with me. My strengths are in written and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.

To subscribe to the mailing list (link).

  1. Confession to police upheld on appeal (4-3) in New York, despite blatant breaches of right to counsel. Holy ****. Showing that Canada is not yet this bad on Charter issues, see R. v. Dussault, 2022 SCC 16. A unanimous Supreme Court found that police undermining of right to counsel (by, for example, lying to the accused that they would be allowed to meet counsel in person) requires police to provide a new opportunity to consult with counsel. Can’t think of how many times I see police on video – when trying to coerce a confession – belittling defence counsel (who typically advise against making any statement). Such belittling could probably render the subsequent confession inadmissible.
  2. Surprising result in R. v. Alas, 2022 SCC 14: ONCA majority overturned on defence of provocation, where the appellant was defending his domestic partner from an attacker at a bar. Conviction restored.
  3. Appeal bail granted by ABCA, where ground of appeal was not uneven scrutiny: R v Mitchell, 2022 ABCA 151 – third ground (public interest) surprisingly contested despite a prison sentence of a mere 14 months.
  4. In R v Geick, 2022 ABCA 150 (my own file so I should be careful), an application for funding of transcripts only is denied on this appeal (pro bono, so far – para. 3) of a wrongful conviction. Concerningly, the appellant is capable of running the appeal himself (despite having a Grade 8 education – para. 14), and somehow, the appeal does not engage broader societal issues (para. 13). The result is incompatible with the results in R v McKechnie, 2020 ABCA 247 and R v Mavros, 2021 ABCA 421 – both ABCA cases cited by the Crown. Needless to say, I am bringing a further, similar application in a few weeks.
  5. Last week I mentioned (#3), in which a new trial on a child SA was required because similar fact evidence was improperly allowed. This week in R. v. Houle, 2022 ONCA 325, the opposite occurs – a new trial is ordered on a Crown appeal of acquittal, because the trial judge improperly refused to allow the evidence (of prior incidents of a dog injuring others, demonstrating criminal negligence on the part of the owner).
  6. In R v Bowers, 2022 ABCA 149, the ABCA again trashes the argument of uneven scrutiny on yet another strong conviction appeal – surprisingly got bail pending appeal back in 2020. A full 16 pages. Significant concerns arise from the reasons. First, the appellant’s credibility is discounted because of “I don’t remember” responses and his intoxication (para. 19) – the former is rarely used against complainants (given their presumed trauma – the record for “I don’t knows” not counting against complainant I think is 111 – R v SAS, 2021 ABPC 258, para. 50). Criticizes courts that have found uneven scrutiny for “reweighing evidence” (para. 36). Acknowledges that these appeals are typical in SA cases where almost no real evidence other than stories told by witnesses is made available. Paperny JA states for the unanimous panel: “the unstated premise that if both the complainant and accused have defects in their evidence, it is necessarilyunfair for the trial judge to accept the complainant’s evidence and reject that of the accused. I agree that “this is tantamount to contending that a complainant’s evidence in sexual assault cases must be corroborated in order to be accepted.”” At least it’s not accused of being a rape myth, so there’s a net positive, I suppose. A blatant error, in my view, is the conclusion that the trial judge’s speculation that the complainant would not have invited the appellant, whom she had just met at house party, to lie down with her (para. 56) was acceptable – likely inconsistent with jurisprudence from Ontario such as R. v. Cepic, 2019 ONCA 541 and R. v. J.L., 2018 ONCA 756, etc. – see the marvelous new text Modern Criminal Evidence by Gourlay et al., 2022, Emond (10% off with P. Milczarek’s link), pp. 61-63.
  7. Have a gander at this excellent acquittal by Judge Semenuk of Calgary: R v PMB, 2022 ABPC 93. In that case, a father is accused of multiple historic child SA charges against his daughters. There are a ton of “I don’t remembers” provided by the complainants and other inconsistencies (e.g. paras. 82, 106). The accused did not testify. There were acrimonious divorce proceedings as a backdrop to the (likely false) allegations.
  8. A powerful piece by a popular U.S. public defender: America’s Hypocrisy on Violence: The Case of Police Brutality (substack.com)
  9. For yet another example of why uninformed, knee-jerk, idiotic criminal justice reform is always a bad idea, see Racially divided Toronto murder verdict highlights problems with Ontario juries, lawyers say | The Star.
  10. For some more wrongful conviction stories from the U.S., see Prosecutors drop conviction in 1991 murder case tainted by CPD detective – Chicago Sun-Times (suntimes.com)