Weekly criminal law update – June 7, 2022

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    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.

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