Weekly criminal law update – May 23, 2022

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  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)

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