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.

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    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’).

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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