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.

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  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)

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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