Weekly criminal law update – May 9, 2022

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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).

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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