Weekly criminal law update – June 12, 2022

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  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).

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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