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.

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  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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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