Weekly criminal law update – June 28, 2022

Thank you again to the kind Ontario lawyer who recently reached out to me for assistance. I’ve since completed the project, and understand that he is very satisfied with the result. I continue to look 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. Regarding Legal Aid Alberta, see the Alberta provincial government’s promise a few years ago to increase Legal Aid funding by $70 million over 5 years, when they have in fact, decreased funding by 35% the last 2 years alone. For an appropriate response (3 years late, in our case), see Barristers walk out of courts in strike over pay – BBC News.
  2. A good reminder that the definition of “assault” in the Criminal Code ( 265(a)) does not require actual touching for an assault – mere attempts or threats to apply force (defined broadly) technically suffice. In R. v. Field, 2022 BCCA 197 (at paras. 27-44), a conviction for sexual assault was upheld where no physical contact occurred. H/T Prof. Sankoff’s new Beacon – included in an annual pass.
  3. Interesting commentary on the right of a party to comment on another party’s failure to call a material witness (paras. 97-129, Accurso v. R., 2022 QCCA 752). H/T P. Sankoff’s new
  4. I have lots of cases to catch up on – I’ll try to get to them by next week.
  5. EP#25 | The Deshaun Watson Defence – YouTube – Not on Record podcast. See the shocking article referenced, where an investigator admits – proudly and openly – to a presumption of guilt:

    Baker: I start by believing all the victims. Absolutely. Stand by that 100 percent. Anyone investigating a sex crime should start by believing the complainant. Provided defense provides something that refutes it, we’re going to believe that complainant.
    Hardin: So in your world of investigation, the defendant always has to prove his innocence?
    Baker: Yes.

  1. Dobbs: The Supreme Court’s Conservatives Counted to Five (ballsandstrikes.org)
  2. Amber Heard and her team have chosen to go on TV with NBC Today Show’s Savannah Guthrie and ABC’s… | by Claire Best | Jun, 2022 | Medium
  3. Presumption of innocence is often a myth – The John Howard Society of Canada : The John Howard Society of Canada
  4. Check out my recent blog posts: Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207 – Moldofsky Law, 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.

Weekly criminal law update – June 21, 2022

Thank you again to the kind Ontario lawyer who recently reached out to me for assistance. I’ve since completed the project, and understand that he is very satisfied with the result. I continue to look 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 recent blog posts: Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207 – Moldofsky Law, 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. Guilty pleas struck where circumstances suggest the pleas were uninformed. R v DMB, 2022 ABQB 397.
    3. Stay of proceedings for charge of assault police causing bodily harm for multiple Charter Police should have either arrested or let suspect go, once he refused to answer questions (para. 65). Acquitted of all other charges. Unequivocal findings of racial profiling and excessive use of force, including use of a taser, “egregious police conduct” and “cruel and unusual punishment” (e.g. paras. 82-83, 126, 130): R. v. Chase, 2022 ONCJ 253.
    4. In another problematic ABCA bail decision, Schutz JA finds that – despite a drug trafficking appeal being not frivolous, it is weak and subsequently fails on the 3rd prong (public interest) branch of the test: R v Yanga, 2022 ABCA 203. In yet another, Schutz JA’s original decision denying appeal bail on the same (3rd ground) is denied again on a s. 680 review application with Wakeling JA: R v Viau, 2022 ABCA 195. Disturbingly, in both cases, Schutz JA finds that “there is no real risk the applicant will serve all or even a substantial part of his sentence before his appeal is heard” – as if serving one’s full sentence is somehow a requirement for appeal bail (para. 10, R v DAV, 2022 ABCA 99; Yanga at para. 11).
    5. New trial ordered on a youth murder conviction where accused’s phone contents – obtained in breach of right to counsel – were relied upon: R v F (JM), 2022 MBCA 52. HT Ryan Clements (I think).
    6. New trial ordered where trial judge speculated by “taking judicial notice” that someone cannot take a garbage bag out of a box without first removing their glove: R v Hussein, 2022 ABCA 219. The panel refuses the Crown’s submission that the conviction can be saved under s. 686, properly citing R v Morrissey (1995), 1995 CanLII 3498 (ON CA) (para. 23).
    7. In R v Bykovets, 2022 ABCA 208, a decision of Ho J. (as she then was – who is being appealed a lot recently, incidentally) – the lone dissent of Veldhuis J. to grant a new trial entitled the appellant to an appeal as of right to the SCC, on section 8 Charter grounds (search for IP address information by police without a warrant). Well done Ian McKay and Sarah Rankin!
    8. In R v BEM, 2022 ABCA 207 – a 33-pager, a partial dissent of Veldhuis J. allows yet another conviction appeal to go to the SCC. Congrats to Peter Sankoff and Heather Gagnier! I critique the decision in detail here: Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207 – Moldofsky Law.
    9. A conviction appeal with very late disclosure by Calgary Police and Crown somehow dismissed: R v RV, 2022 ABCA 218.
    10. SA charge stayed for delay and police failure to disclose the SA kit. In fairness to the Crown, it looks like the error was entirely the fault of police and/or court staff: R v Fox, 2022 ABPC 117. HT Alan Gold’s NetLetter.
    11. Appeal allowed (with proper Crown consent) where trial judge elevated threshold from “reasonable prospect” to a “substantial likelihood” on the faint hope clause regarding parole ineligibility for murder: R. v. Liu, 2022 ONCA 460.
    12. Constitutional challenge to mandatory alcohol screening regime dismissed in R v Dylan Alexander Pratt, 2022 ABQB 407.
    13. Charter violations found (section 10 – right to counsel) but statements admitted under s. 24(2): R v Bhaloo, 2022 ABPC 116.
    14. In R. v. M.M., 2022 NSCA 46, the awful SCC case of Friesen is distinguished in the context of youth sentencing: “However, judges engaged in sentencing young persons for sexual assault must be very cautious in their use of Friesen” (para. 82). HT Ryan Clements. In contrast, imprisonment for similar offences should have been imposed for an adult offender: R. v. M.M., 2022 ONCA 441.
    15. The rare caught crooked prosecutor pays a price – a mere one-year license suspension for withholding disclosure that had led to a 12-year prison sentence. Disgracefully, he is appealing his sanction: Top criminal silk suspended over ‘lamentable’ disclosure failings | News | Law Gazette.
    16. Toronto police chief apologizes to Black community as race-based data released | The Star, Toronto drug case collapses due to missing evidence | CTV News, Quebec justice system in crisis, legal experts say – The Lawyer’s Daily (thelawyersdaily.ca), Episode 198 – Cops don’t know their own law | Sandy & Nora Talk Politics (sandyandnora.com)
    17. EP#23 | Marshaling the Defence in the Criminal Justice System – YouTube, Girls say they lied about mother’s husband because he switched off wi-fi (timesofmalta.com), Due Process for College Students Undermined by New Jersey Title IX Bill (reason.com), Bite Mark Evidence: What You Should Know About This Debunked Science (innocenceproject.org), Slavery Is Still Legal for Two Million People in the U.S. | Vera Institute, ‘It should never have happened’: How everyone turned a blind eye to Alan Hall’s wrongful conviction | Stuff.co.nz
    18. The federal government, unhappy with the 9-0 Supreme Court of Canada decision finding that its 30 year-old legislation about extreme intoxication is unconstitutional, (see #2 here) are shamelessly right back at it, looking for ways to shoehorn the legislation in again. Not even an apology for 30 years of bad law?
    19. BURNETT, R., HOYLE, C. and SPEECHLEY, N.-E. (2017), The Context and Impact of Being Wrongly Accused of Abuse in Occupations of Trust. The Howard Journal of Crime and Justice, 56: 176-197:

      Even in cases where the evidence only consists of testimony from the alleged victim and is strongly rebutted by the alleged perpetrator, the moral imperative not to ‘let down another victim’ or to leave a possible sex offender free to cause further harm may be compelling (Webster, 1998;2005). While this must, logically, reduce the chances of guilty persons avoiding prosecution (‘false negatives’), it also risks increasing the likelihood of innocent people being presumed or found guilty (‘false positives’).

Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207

I read a recent ABCA case of a conviction appeal dismissed that illustrates for me the extent of the quagmire that is sexual assault law in Canada.

The decision is indexed as R v BEM, 2022 ABCA 207. The majority decision is by Schutz and Slatter JJ.A., with a partial dissent by Veldhuis JA (on one issue only – far from the only problem with the conviction) – allowing for an appeal as of right to the Supreme Court of Canada on that issue alone.

The conviction was by a jury in 2021, for a historical sexual assault allegation. The trial judge was Henderson J. The charges appear to have been laid in 2015, and they were alleged to have occurred some 25 years prior to the trial (para. 3). Para. 4 begins, “The defence position was that the sexual assaults never occurred, which involved a direct challenge to the believability of the complainant.” This sentence grates on my nerves (like nails on a chalkboard) and is a good example of what bugs me about the decision. It is also not the only such sentence. The defence position clearly was not that “it never occurred” but rather that the Crown did not prove guilt beyond a reasonable doubt. This is not a credibility contest, nor is it an inquiry. The defence position “involved a direct challenge to the believability of the complainant”? How about “the Crown position involved a direct challenge to the believability of the accused” – that would be a lot less problematic. Essentially, to paraphrase the great BARD, “presumption of innocence – whither art thou?”

The main issue is whether the Crown’s “story” to the jury about his own childhood memories was prejudicial to the accused – the majority somehow found that it was not. Apparently two wrongs make a right – as defence counsel had referred briefly to his childhood (mentioning that 25 years ago was “40 pounds and a bunch of grey hairs ago” – italics in original, para. 6), the Crown’s misconduct story with extensive detail about his own childhood memories was somehow on par with that, and was “not serious” (para. 28).

It gets worse. The Crown appears to give extensive unqualified “expert evidence” on the subject of trauma and memory. For example, at para. 13 (emphasis added):

Why can’t [the complainant] give you more detail about what she considers — she says now she believes to be the first time? Well, here is a suggestion, trauma perhaps. The first time initially I think there would be a greater – it’s common sense to reason a greater level of trauma to a 13-year-old child. As it becomes routinized, that is routine, perhaps less trauma as the events are ongoing. (Transcript, p. 190, l. 35 to p. 191, l. 3)

See my recent comments in Trauma and memory – Moldofsky Law (along with this). Shockingly, no criticism by the ABCA of this “expert” evidence whatsoever. The Crown gives more “expert evidence” in para. 13 about how memory works. How the Crown can get away with not calling an expert on memory at this type of trial is simply unconscionable and is probably misconduct in and of itself. I guess making it up as we go along is just fine and dandy for the ABCA.

Here’s another incredibly problematic paragraph (para. 14, emphasis added):

Crown counsel then discussed some of the possible shortcomings in the complainant’s evidence, specifically relating to details of events that happened 25 years earlier, inconsistencies, and gaps in her memory: whether and how her clothes were removed at particular times, what type of clothing she was wearing, whether or when she was in a bed, timing of the assaults, locations etc. Crown counsel discussed inconsistencies between the complainant’s statement to the police, her testimony at the preliminary inquiry, and her testimony at trial. He argued that differences in recounting complex historic experiences at different times did not necessarily mean that the memories were unreliable. Crown counsel argued that the complainant’s failing to “fill in the gaps” in her evidence showed she was attempting to be truthful.

Where does one even start? Inconsistencies about all sorts of details – one would argue not peripheral ones, in that it deals with locations, etc. – can all be chalked up to trauma, somehow, and are not only not credibility problems, they’re credibility boosters! Oath helping, if you will – the more inconsistencies, the better! We’re not even ashamed, at this point. To hell with that quaint, outdated notion of the presumption of innocence – that went down the drain 50 years ago with the equally-outdated requirement for corroboration!

Despite all of this awful, unqualified Crown “expert evidence” the conviction is somehow good enough. Of course, the Crown applies a blatant double standard, arguing – despite his “expert” opinion – that most inconsistencies in the appellant’s version should be fatal to his credibility (para. 16). He didn’t know if there was a door? Obviously lying! Even more disturbing, “you can rely on [the complainant’s] evidence. You can be confident that she’s telling you to [sic] truth about her lived experience. She’s constrained by the truth” (para. 16). It’s unclear how “constrained by the truth” the Crown was.

The Crown continued with his brilliant oratory (para. 16, emphasis in original):

Well, memories change but yet memories can be relied upon. You know, for years my own personal experience — you know, you can talk about, you know, your own personal experience. It’s a well known analogy — I had a personal memory which I believe to be true that while on a camping trip when I was in grade 3, I slipped in a campground shower, bashed the back of my head, and had to go for stitches. That was my memory. […] My memory has been sort of shifted but fundamentally the truth of the experience — the core of the experience is persistent. Remains the same throughout. And I think that’s what’s happening here. That’s what happens naturally, that’s real life. That’s what [the complainant] is narrating to you folks. A lived experience. You can rely on her evidence (Transcript, p. 200, l. 36 to p. 202, l. 5).

Immediately following the Crown’s closing address, defence counsel “stated that he was “seriously contemplating a mistrial application” because of Crown counsel’s suggestion that the complainant had no motive to lie, and the suggestion that defence counsel had misrepresented that the complainant had testified that the sexual assaults happened “every time”. No objection was raised respecting the Crown’s personal anecdote about slipping in the shower” (para. 17). Unfortunately, the “no motive to lie” angle is not further explored, although absence of evidence is not evidence of absence.

Have a load of this (paras. 37, 39 emphases added):

When the Crown’s address to the jury is challenged, the core issue must be whether the trial was rendered unfair. While it would obviously have been better if the personal anecdote had been left out, it must be considered in context to assess its potential effect on the fairness of the trial. As stated in Pisani at p. 740: “There can be no unyielding general rule that an inflammatory or other improper address to the jury by Crown counsel is per se conclusive of the fact that there has been an unfair trial”. […]

The comment was “folksy”. It was not disrespectful, exaggerated, overzealous, inflammatory, or sarcastic, and it did not invite any prohibited line of reasoning: R. v Tokaryk2019 ABCA 439 at paras. 30-32. It was on the topic of “human memory”, an issue on which evidence is generally not called. Arguments about how human memory works are entirely appropriate, and human memory is a topic on which the jury is expected to apply its life experience. Overall, there is no risk that the Crown’s reference to this personal anecdote resulted in any miscarriage of justice.

Thankfully, Veldhuis JA’s dissent gives us an even better idea of how bad a wrongful conviction this was and is (legally).

The trial judge instructed the jury as follows: “The fact that [the complainant] waited 20 years to make the complaint is entirely irrelevant to the issues you have to decide. You must ignore this fact” (para. 60), with similar comments in para. 61 about the complainant later leaving her young child in the care of the accused. This jury charge is blatantly incorrect. Veldhuis JA for a unanimous panel (para. 1) concedes that this was improper, yet again, not a big enough problem.

Veldhuis JA continues with the completely nonsensical “stereotypical assumptions about sexual assault victims are “a form of ‘prohibited reasoning’, like the rule that the accused’s criminal record cannot be used to show that he had a propensity to commit the crime”. But trial judges and juries are entitled to use assumptions about the ordinary conduct of people to assess credibility” (para. 75). So they’re forbidden but also not forbidden? Super helpful – thanks for clarifying!

Yet again, I bring to you R. v. D.D., 2000 SCC 43 at para. 65 which is relatively straightforward and it’s unclear why it’s constantly butchered by so many courts and Crowns (emphasis added):

[T]here is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave.  Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse.  Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.  In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.  A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

It is one factor to consider – but not the only one. It is not prohibited nor forbidden!

See also R v ADG, 2015 ABCA 149, which surprisingly gets it mostly right (at para. 32, emphasis added):

Yet this does not mean that no consideration whatsoever can be given to the timing of the disclosure of abuse: R v TEM, 1996 ABCA 312 at paras 9-11, 187 AR 273, leave to appeal to SCC refused [1997] 2 SCR xv. The importance of delayed disclosure will vary depending on the circumstances of the particular complainant: TEM at para 11. Victims of sexual assault will have different reasons for reporting abuse at different points in time. It is up to finders of fact to evaluate the testimony of complainants and determine their credibility on the basis of all the evidence, including the timing of their disclosure.

R. v. Roth, 2020 BCCA 240, cited by Veldhuis JA at para. 73, also does a somewhat-better job, at para. 130-131, emphasis added:

However, this does not mean that the evidence surrounding the driver’s attendance at the home, including the complainant’s conduct during that interaction, was not open for consideration in the credibility assessment and the trial judge was obliged to steer away from it.  The risk of myths and stereotypes distorting a judge’s fact‑finding or reasoning process does not prohibit use of a complainant’s behaviour for all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court).  Although a piece of evidence may carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole, in the context of the case’s particular “factual mosaic”: R. v. D.(D.), 2000 SCC 43 at para. 65Kiss at paras. 101–102.  In my view, what A.R.D. and like cases warn against is the improper use of this type of evidence, not any use at all.

The sole “bone” Veldhuis JA throws the accused here (and the majority agree with her on this point – para. 1) is para. 77:

But that does not mean that a delay in reporting is always “entirely irrelevant” and must be “ignored”. It would have been more helpful if the jury was told something like:

“The fact that [the complainant] waited 20 years to make the complaint is something you may consider. However, do not rely on any stereotypical assumption that sexual assault complainants will immediately report an assault because there are many reasons for delayed reporting. You should consider all the circumstances surrounding the events before deciding if the case has been proven beyond a reasonable doubt.”

In this case, the appellant concedes that the instruction was sufficient because on this record, the delay was irrelevant. That is simply because the defence did not choose to make any use of it, and it had no probative value. But in another case, the late delay might have some probative value beyond the stereotype.

While the above from Veldhuis JA is remarkably ambiguous and non-committal, it’s far better than what we usually see on the subject of myths – particularly in Alberta and the Supreme Court of Canada, the latter of which has a current 34-case Crown win streak.

The leaving her child with the accused is a “myth” to the extent that it assumes she’d “avoid” him – again forbidden but also allowed, apparently (para. 79). To the extent that it argued her credibility was adversely impacted because she said she wanted to cut off all contact with him – that was apparently a “legitimate” avenue of attack (para. 80), despite the fact that she did not appear to say that she did cut off all contact.

I’ll leave you with a fantastic, related article, Due Process for College Students Undermined by New Jersey Title IX Bill (reason.com) (emphasis added):

However, some of those “providing services” to victims are also meant to be impartial investigators of serious allegations, such as university employees involved in adjudicating allegations of sexual assault. Giving “victim-centered” training to those employees raises the question of whether a victim-centered approach also allows for an impartial examination of the evidence and testimony for and against a student accused of sexual assault.

Students accused of Title IX violations already face low standards of evidence. If S.B. 2469 passes, every university employee involved in hearing a case would also be trained to see the accuser as more credible by default.

Such training requirements exist elsewhere in higher education. According to “Title IX and ‘Trauma-Focused’ Investigations: The Good, The Bad, and the Ugly,” a 2019 paper published in the Journal of Applied Research in Memory and Cognition, these trainings often assert that a victim must be believed—even if their story is deeply flawed. In fact, they often argue that having a confusing or unclear story is a sign that a complainant is telling the truth—as such flaws in testimony are the result of trauma. As the authors write, “A particularly ugly feature of [this] training is that it specifically suggests that if memory reports of alleged victims fit the ‘profile’ of those expected from a trauma victim, this fit should serve as evidence that the report is true.”

In a 2015 Harvard Law Review article, legal scholar Janet Halley examined Harvard’s “victim-centered” training, writing that it “is 100% aimed to convince [employees] to believe complaints, precisely when they seem unreliable and incoherent.” If Title IX investigators and decision makers are taught that every complainant is telling the truth—and that any inconsistencies are themselves signs of trauma—then any hearing is essentially a show trial. The accuser is telling the truth because they are the accuser, regardless of what the accused may say in response.

Requiring these trainings only makes sense if legislators believe that everyone accused of a Title IX offense is guilty—something which has been proven over and over to be untrue. The uncomfortable truth about Title IX investigations—and sexual assault investigations more broadly—is that there is rarely conclusive evidence against the accused, and some accusations are indeed false.

Sexual assault is a serious crime that often goes unpunished. However, we shouldn’t respond to this unpleasant fact by attempting to lower the standard of evidence—or in this case, bias Title IX employees toward the complainant.

Title IX investigators make crucially important decisions about whether to find someone responsible for sexual assault and intimate partner violence. Training Title IX employees to see the complaining party as always truthful, as S.B. 2469 would require, also means training them to assume that the accused party is always guilty. That is not a just scheme, even if it guarantees that every actual victim receives justice.

Weekly criminal law update – June 12, 2022

Thank you to the kind Ontario lawyer who recently reached out to me for assistance. I continue to look 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. In R. v. Goforth, 2022 SCC 25, the SCC decides 6-3 that jury instructions were good enough, essentially – overturning a 2-1 SKCA decision. See Brown J.’s strongly-worded dissent (paras. 61-68) – note that the dissent applies the curative proviso, noting “In substance, and their protestations to the contrary notwithstanding, my colleagues are applying the curative proviso” (para. 66), and Lawyer’s Daily. Majority decision harshly criticized by defence bar – likely for good reason.
  2. Another SA disturbing conviction is upheld. In R. v. J.G., 2022 ONCA 452, a conviction for historic child SA was upheld despite an acquittal on the first 2 counts and the trial judge having “clearly misspoke” (para. 6). Irritatingly, “It was open to the trial judge to accept the evidence which satisfied the elements of the offence of sexual interference” (emphasis added, para. 7).
  3. In yet another, a conviction appeal is dismissed despite problematic findings of “no motive to fabricate” on the part of multiple Crown witnesses, refusal to allow defence to ask complainant about her scars (suggesting mental health concerns), numerous inconsistencies trivialized by the trial judge, and the appellant’s argument that the judge’s reasoning was “circular […] in essence, that she found the complainant to be credible because she was sexually assaulted and that she was sexually assaulted because she was credible” (para. 93). It was “open to the trial judge to characterize the frailties in the complainant’s testimony as relatively insignificant” (emphasis added, para. 114): R. v. Davies, 2022 BCCA 172.
  4. As a welcome counter-point to the above two in the informal “wrongful conviction watch™,” significant lack of “recall” by the complainant (highly suggestive of fabrication, I’d suggest) led to an acquittal for this charge of child SA: R. v. M.S.C., 2022 NLSC 87. There was a custody dispute (para. 63). Makes one wonder how the Crown ever thought this prosecution was in the public interest. I guess with the “right” judge, anything is possible? Note, however, the unfortunate and incorrect assertion that “it would be impermissible stereotypical reasoning to make any such inference or to assess the Complainant’s credibility on the basis of when she reported the incidents to her mother, the police or anyone else” (para. 66), which is inconsistent with R. v. D.D., 2000 SCC 43 at para. 59 and R. v. TG2022 ONSC 2063, reviewed at #5 here.
  5. Further to my comments about bail pending appeal (e.g. #9 here and #2 here), in R. v. S.F.M., 2022 NSCA 37, bail pending appeal is opposed and denied on the 3rd ground, finding that the appeal is “weak” (para. 32 – relevant to 1st and 3rd grounds) and that the release plan is weak (sounds like 2nd ground concerns – para. 33). To her credit, Derrick JA appears to have thoroughly reviewed the file (paras. 8-19).
  6. Contrast the above with R. v. D.S., 2022 ONCA 450 in which bail pending appeal was granted. van Rensburg JA finds that “at least the ground respecting the trial judge’s assessment of the complainant’s credibility may have some merit. There were several inconsistencies in the complainant’s testimony […]” (para. 8).
  7. Appeal dismissed where excessive force used in arrest justified significant reduction in sentence: R v Bidlock-Hawkins, 2022 ABCA 201.
  8. Nice sentencing case from ABCA justices (not dissimilar from R v Friesen2022 ABCA 147-discussed at #1 here). In this case, a 2-year jail sentence was upheld on Crown appeal for child SA offences. However, it appears that a “step up from pre-Friesen [SCC] cases” is expected: R v Pauloosie, 2022 NUCA 3 at para. 46. Hopefully, the SCC in Sharma will walk back some of its problematic rhetoric in Friesen. H/T Prof. Sankoff’s new Beacon – included in an annual pass.
  9. Speaking of Prof. Sankoff, check out his latest Golden Thread Magazine. It has an excellent write-up by Léo Fugazza about chronic funding inadequacies of the criminal justice system in Quebec.
  10. Check out my recent 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. I had been meaning to do a post on the Ghomeshi trial transcripts, but appear to have lost most of my draft on it. I will need to redo.
  11. Disgraceful advocacy journalism regarding recent the Jacob Hoggard SA verdict (convicted on 1 of 3 counts). Crown tried to revoke bail after the conviction, instead judge imposed a curfew.
  12. Some excellent recent criminal law podcasts. Listen to Podcast (rivalaw.ca) (episodes 3-4) with some great book recommendations. Also, The Lawyers Lounge Podcast – PODash, episode 15 with Mona Duckett, Q.C. I’m not a major fan of R v Naslund, 2022 ABCA 6, but otherwise an excellent episode. Includes a nice reference to More Tough Crimes, a 2017 book.
  13. Interesting articles: Toforest Johnson is on Alabama’s death row for a crime he almost certainly didn’t commit – The Washington Post, Hundreds Have Left N.Y. Public Defender Offices Over Low Pay – The New York Times (nytimes.com), Canadian police forces flouted the law despite judges’ warnings | The Star.
  14. After leak, Supreme Court seethes with resentment and fear behind the scenes : NPR, Judge Can’t Hike Prison Sentence Over Defendant Cussing at Him, Ohio Supreme Court Rules (reason.com).

Weekly criminal law update – June 7, 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. Murder conviction overturned due to “reasonable apprehension of bias” because trial judge close friend of Crown and had dinner together right after the trial, essentially. I don’t really see this as problematic to the extent that the Court does: R. v. Cowan, 2022 ONCA 432. Incidentally, the charge itself is ethically questionable. It’s a murder charge for a “suicide pact” where the driver was severely injured but not killed.
    2. Inconsistencies in complainant’s evidence in historical SA which – which although individually may be “inconsequential,” can be problematic collectively, although not sufficiently so in this case – paras. 26-28. However, failure to consider complainant’s animus and other motives to fabricate, along with other inconsistencies and weakness in the Crown case were fatal to the conviction and required a new trial. Court expressly rejects Crown’s argument that such arguments call on discredited “rape myths” of fickle women lying out of spite, particularly given that the animus had nothing to do with the allegation itself (para. 33 – failing to note that such an expansive view of “myths” could deprive other defendants of a basic defense). Crown’s “interpretation” of GF and REM suggesting that either decision is “a call to shield insufficient reasons and potentially dangerous convictions from appropriate appellate scrutiny” expressly disagreed with: para. 58, R v W.D.M, 2022 SKCA 64. H/T Ryan Clements (his May update here).
    3. Another SA conviction appeal allowed, on 4 of 6 grounds of appeal. The Crown’s expert was improperly relied on for credibility inferences, a WD jury misdirection, improper Crown cross-examination of accused on lack of complainant’s motive to fabricate, and improper use of after-the-fact conduct evidence: R. v. D.M., 2022 ONCA 429.
    4. Conviction overturned where accused’s silence to police used against her at trial: R. v. Guillemette, 2022 ONCA 436. The defence of necessity was raised, and the accused’s failure to immediately tell police her trial version of events should not be used against her.
    5. In this Charter case, a search of a locked safe was surprisingly allowed “incident to arrest”: R. v. Smith, 2022 ONCA 439.
    6. Insufficient mitigating factors made a conditional sentence inappropriate for CP offences in R v Tadashore, 2022 ABPC 115, finding that one year of jail was necessary (distinguishing from other comparator cases such as discussed at #6 here).
    7. Check out my recent 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.
    8. I’m hoping to do a blog post on the Ghomeshi trial shortly, given the recent jury verdict in the Jacob Hoggard case.