Weekly criminal law update – July 20, 2022

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  1. Check out my recent blog posts: Ghomeshi, Guilt and Gullibility – Moldofsky Law, Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207 – Moldofsky Law, and The train wreck that is Legal Aid Alberta – Moldofsky Law.
  2. A conviction appeal of a “run-of-the-mill garden variety refusal case” is granted on grounds that the accused did not sufficiently understand English to understand her right to counsel, despite some indication of understanding: R v Polusmiak, 2022 PECA 8, at para. 9. H/T Ryan Clements.
  3. The ABCA dismisses a jury SA conviction appeal in R v McKnight, 2022 ABCA 251, where the appellant argued that the trial Crown had used sarcasm and inflammatory language in his cross-examination of the accused (a “poor form of advocacy that is generally discouraged,” per R v Saddleback, 2022 ABCA 27, at para. 5) in a lengthy, 80-page decision. After going through the convictions in extensive detail (paras. 11-116), noting that the appellate Crown conceded that ““[o]n occasion” the Crown “strayed into improper questioning” (para. 125), the Court somehow finds that the Crown’s inappropriate and sarcastic question was somewhat justified given the context (paras. 132-4). Further improper Crown “rhetoric” is “beneath the dignity of the Crown, and not to be emulated,” yet it surprisingly “does not rise to the level of impropriety that fair trial interests have been compromised” (para. 140). The appeal Crown’s irrelevant argument that two wrongs somehow make a right (as argued at para. 18 in R v BEM, 2022 ABCA 236) is enthusiastically accepted (defence counsel also used unacceptable language – para. 141). The Crown asking the accused to explain why 13 women brought complaints against him was improper, yet “ameliorated” by the trial judge’s instruction to the jury (para. 152). The question about whether one aspect of a complainant’s testimony was true was “dangerous” (para. 156). Further, references to the accused’s access to disclosure in suggesting that he tailored his evidence to match it is also improper (paras. 177-8), yet not enough as it is somehow “peripheral” to the conviction (para. 190 – duh!). Another excellent effort by Prof. Sankoff.
  4. In contrast, the ABCA grants a Crown acquittal appeal in R v Hay, 2022 ABCA 246. There was not clear evidence of consent to specific acts, despite some history of consent in the past. The ABCA’s conclusion appears to be problematic – particularly on the evidence of the accused, who testified that there was no verbal communication about acceptable acts (trial decision, para. 29). Even more problematically, it finds that the trial judge’s admission of previous sexual history violated twin myths, and that “notably absent was any evidence that Mr Hay believed the complainant had communicated consent to this specific act” (para. 19), which is not entirely accurate, particularly noting concerns with the complainant’s credibility (trial decision, paras. 91-92). The trial judge aptly observed that “mixed signals based on popular culture, where one man’s embrace of a mute woman could be perceived as either the height of passion or the moment of assault” (quoted at para. 41) in finding an honest but mistaken belief in consent. A verdict of guilty was substituted.
  5. In R v Wilde, 2022 SKCA 74, a trial judge’s insufficient assistance of self-represented accused at trial required a new trial, particularly given that the trial judge improperly shut down a line of questioning for the accused where he was trying to impeach a witness with a prior inconsistent statement (paras. 39-40). Further, the trial judge appeared to be “supplementing the Crown’s case and thereby appearing as though he was acting as an advocate for it” through excessive questioning of a witness, which was also improper (para. 55).
  6. A trial judge’s “implicit finding” of no Charter breach for officers’ ridiculing a same-sex accused was incorrect, but no stay of proceedings was necessary, as it was not “the clearest of cases”: R v Z (MJ), 2022 MBCA 61, at paras. 4-5.
  7. Crown appeal of Charter stay of proceedings on grounds that there was insufficient evidence of the accused having driven within the past 3 hours on an impaired charge dismissed, despite the circumstantial evidence being highly suggestive of such: R. v. Abdullah, 2022 ONSC 4119, at para. 8.
  8. See Shireen Bangash’s excellent article on problems with bail pending appeal in Prof. Sankoff’s latest Golden Thread. On that note, as if entirely forgetting her own comments about the extreme rarity of the public interest (3rd ground) test on appeal bail in Bobrosky, Veldhuis JA denies appeal bail on a 4-year sentence on this ground alone, where the grounds of appeal are “quite slim” yet not frivolous: R v Bennetts, 2022 ABCA 245, at para. 6.
  9. Domestic charges are stayed where it appeared police officers were communicating by text message while testifying throughout a Zoom trial. The Crown is specifically lambasted by Justice Chamberlain for its “complete inaction” in failing to provide copies of the impugned text messages to the Court: R. v. Attayee, 2022 ONCJ 315, at para. 35.
  10. Excellent acquittal on an SA charge by Shoyele J. of Edmonton. Both the complainant’s and accused’s testimony suffered from serious inconsistencies. Further, the complainant had a criminal record for major fraud. Shoyele J. properly had no patience for the Crown’s failure to tender evidence of deleted text messages that may have been very helpful to the Court: R v JWB, 2022 ABPC 151, at paras. 105-109:

    Obviously, evidence of these picture(s) or other messages could have been produced to assist the Court in its truth-seeking role. These pieces of evidence could have provided a clearer picture of the circumstantial relationship and communication between the Complainant and the Accused that preceded the alleged sexual assault, for the purpose of a robust contextual credibility analysis. For instance, although the Crown argued that the exchange of text messages by the Accused and the Complainant were not “flirtatious,” the Crown failed to produce any form of evidence to counter the suggestion by the Defence that the Complainant sent a “vagina picture” to the Accused.
    Notwithstanding the Crown’s potential ability to retrieve the deleted picture(s) or other messages from the relevant service provider, there is no evidence before me that such a recovery effort was pursued with the requisite tenacity.
    It is my view that if the Crown wanted this Court to: (i) infer sexual intention, or (ii) the likelihood of a subsequent sexual assault from the Accused’s “sexting” with Complainant, or (iii) alternatively to conclude that there was no flirtation between the two of them, she has the minimum onus of providing evidence of a wholesome transcript or excerpts of the relevant text messages – including the comprehensive contents of the Complainant’s responses – for context.
    Without the background context of these deleted picture(s) and other text messages exchanged between the Accused and the Complainant, this Court faced serious difficulty with objectively determining what actually transpired, and who – out of the two parties – is telling the truth about the preceding circumstances as well as the substance of the alleged sexual assault.
    The Crown’s failure to produce evidence of these retrievable “deleted messages” at trial leads this Court, in part, to conclude that the Crown has failed to meet her onus of proving the Accused’s guilt beyond reasonable doubt.

  11. Further to the discussion of sarcasm in #2 above (McKnight), in Law Society of British Columbia v. Harding, 2022 BCCA 229, the BCCA overturns their Law Society’s finding of a lawyer’s professional misconduct, finding that (paras. 91-95, H/T Ryan Clements):

    Certainly a lawyer’s use of mockery and sarcasm will often be poor advocacy because it can come across as insulting and arrogant, turning the listener against the lawyer, and creating sympathy towards the witness being victimized by the lawyer. But humour and sarcasm have been used by many great trial lawyers and speakers over the course of history to illustrate the weakness of a witness’s evidence or the outrageousness of a position.
    Had the LSBC Panel considered the full context, I am not satisfied that it would have concluded that using sarcasm or humour in a closing address, to suggest a witness’s evidence is ridiculous, is a bright line that can never be crossed. It depends on the context and how it is delivered.
    While it would not be good faith or reasonable for a lawyer to deliberately violate the legal principles applicable to jury addresses, or to deliberately attempt to cause a mistrial; it could be something less than professional misconduct to err in the exercise of judgment as to what is acceptable advocacy and to thereby cause a mistrial.
    To draw upon Groia, it could be disproportionate to lawyers’ freedom of expression, and would undermine the important duty of lawyers to engage in resolute advocacy, if lawyers were penalized professionally for their in-court statements about an opposing party’s expert witness or opposing counsel in a closing address to the jury, where there was a reasonable basis for the statements and they were made in good faith believing them to be within the boundaries of a proper jury address.
    In this case, the LSBC Panel erred in its approach, in that it did not consider whether Mr. Harding made his closing address in good faith, and had a reasonable basis for saying the things he said and believed it to be within the legal boundaries of a proper closing address.

  1. Criminal barristers reveal why they are striking | Metro News

Ghomeshi, Guilt and Gullibility

Given the Supreme Court of Canada’s recent horrendous decision in R. v. J.J., 2022 SCC 28 (extending its half-decade Crown win streak for sex assaults at that Court to 35) that I blog about here and the recent jury verdict in the Jacob Hogaard case (noting the awful, one-sided media coverage of it), I thought I’d post my comments on the Jian Ghomeshi trial from 2016 which directly led to this awful legislation. Justice Moldaver even made very pointed (clueless, to boot) remarks to defence counsel Megan Savard at the JJ hearing criticizing Ms. Henein’s stellar and irreproachable (per Prof. Craig) defence of Ghomeshi (1:53-2:01). Clearly, the naïve and irresponsible government, media, general public and SCC viewed the Ghomeshi acquittals as a gross miscarriage of justice, when they were, in fact, everything but that. Listen to the recent embarrassing, irresponsible and cringe-inducing podcast by Jesse Brown of Canadaland on this, who continues to refuse to admit defeat (and/or his journalistic misconduct) in attempting to destroy Ghomeshi all these years now. I managed to get my hands on the trial transcripts of the Ghomeshi trial, and will review them below.

Since 2 of 3 complainants have a publication ban, I’ll refer to them as Complainants 1 (L.R.  – edit July 18, 2022 – Linda Redgrave, who subsequently waived the publication ban), 2 (Lucy Decoutere), and 3 (S.D.). Let’s deal now with some of those pesky details, shall we?

When confronted with emails largely contradicting her trial version of events, one complainant claimed the email was “bait” to get him to call to get her to explain why he punched her in the head. She didn’t think a “common person” would believe her explanation – y’think? She claimed at trial that she had no romantic feelings toward him after – again, highly contradicted by her emails (no, nothing at all to do with myths or stereotypes). Of course, nowadays, the SCC and Parliament have ensured that lying complainants are less likely to be confronted with their texts/emails that contradict their narrative without a s. 278 application and advance notice of the lies they can expect to have to answer for.

Complainant 1 (L.R.)

Ghomeshi had a bright yellow VW Beetle at the time (p. 45). He kisses her, then grabs her hair “really, really hard.” Later, she goes to his house alone after a taping. He then pulls her hair and punches her “multiple times” in the head – while he’s somehow also pulling her hair (57). Crown asks her why she didn’t run out of house, why she didn’t scream, why she waited so long to report – all arguably myths, technically. She claims that she didn’t report at the time, because of societal “stigma” of reporting sexual assault – star defence counsel Marie Henein properly objects to evidence of “societal stigma” and ends that.

LR never saw him again, but contacted him again. Did not discuss details of her allegations with Complainants 2 and 3.

Cross-examination – excellent. Begins by confirming that she took oath to tell truth both in police statement and at court. LR had reviewed her statement week prior. Her statement to police (13 years after the alleged incident) took a mere 25 minutes – shocking on its own. Police never asked her to show them neighbourhood of residence (or asked about it). Same with not following up on emails she admitted to sending accused. Does not recall officer telling her not to read more about the case.

Accused was smittennot dazzled (later just an “interest”) – with her. Interesting distinction – obviously fibbing/lying. Denies telling her friend she herself was smitten by accused. Fudges on whether she told friend after first incident that she really liked him and wanted to see him again (technically, arguably a myth – many judges/Crown would eagerly jump in to protect complainant at this point these days on grounds of relevance and/or impermissible myths). Almost gets her to admit that she was angry after 2nd meeting that he was not terribly interested in her. And that her third meeting was meant to be romantic between her and accused. Then gets her to admit that she went straight to the car after – not the pub – given that it was a snowstorm.

Then, gets her on the Beetle – it was a GTI. She’s “not a connoisseur of cars.” Told Kevin Donovan of the Toronto Star that Ghomeshi yanked her hair hard. Then tries to backtrack – Kevin Donovan “changed her story” but admits saying accused yanked her hair hard. Her hair was long at the time – “retracts” her email follow-up to police saying she had hair extensions at the time. Doesn’t admit to lying when she said on TV that he pulled her hair right after she got in the car – during direct, she said after kissing. Other inconsistencies noted (head smash allegation retracted, changes story on whether shocked, etc.). Notes that whatever happened in the car, it wasn’t enough to keep her away (myth?).

Told media she never contacted him again after 3rd incident. Confirms this multiple times. Then Henein pulls out stacks of emails she sent him afterwards. Simply glorious. “Good to see you again” and “your show is still great.” Second email with photoshopped photo of herself in a string bikini – downloaded 3 hours prior to sending. Myths – my foot. Maybe she was too “traumatized” to remember how obsessed with him she was?

Another email says she’s been watching him on TV – despite claiming that every time she saw his face she’d be traumatized.

Complainant 2 – Lucy Decoutere

She met Ghomeshi at a Banff event, and flirted with him. She went to Toronto to see him, and he took her to dinner and then back to her house, where he “started kissing me, and then he took me by the throat and he just pushed me against the wall, cutting off my breath, and he slapped me three times” (228 – as revealed in cross-examination, the sequence had previously been very unclear, in her renditions to media and police). She then stayed, to “placate the situation.” Afterwards, they “might have kissed on the sofa,” sitting close together on the sofa, and kissing each other good night, as she didn’t want to “seem frosty” – all of the kissing is added at trial and not previously mentioned to police nor media, as noted by Ms. Henein in cross-examination (she specifically told police that nothing significant had happened after, as she somehow didn’t think this was “consequential”). She didn’t tell anyone about this incident because she wanted to “protect him.” She then spent the weekend with him, and later sent him flowers (also revealed at or during trial).

On cross-examination, she is confronted with photos of her cuddling Ghomeshi in the park, after the alleged assault. She “doesn’t remember” the photos being taken. She didn’t “understand the relevance of after-incident contact,” which Ms. Henein points out is a “very well-rehearsed answer.” Her prior testimony that she had no intention of pressing charges was a lie, as demonstrated by a message she sent, in which she said she wants him “f**king decimated” – despite her further perjury that she has “compassion” for him. She had some “casual” emails after the fact with him, which she realized she should possibly let the Crown know of the day before – after LR was decimated on the stand. She cannot find the emails, though. Thankfully, Ms. Henein has them, and – at that time – was allowed to ambush the Crown’s lying witness with them.

She previously claimed to have lost access to the emails, but subsequently tells police she deleted them. When she is confronted with these “forgotten” emails, it includes post-incident emails she sent to Ghomeshi such as “Sunday, in my brain has a slot all for you. rrrrrrr.” She signs her subsequent email “torn between two lovers.” She wants to “play with him” in Banff. She further emails, “If I don’t get to hang with you while we are in Banff, I’m going to beat the crap out of you.” She sends a photo to him, with the subject “Proof that you can’t live without me.” She further tells him “let me know when you want to hook up. I’m doing stuff, but would happily use you as a procrastination technique” – note, that her lies statements to police and media were that she had no subsequent romantic interest in him. Also, “had a really great dream the other night. You were with me in Toronto.” Among many other “forgotten” emails is one of her “fellating” a bottle. Although she told police his hands terrified her, her letter said she “loved” his hands. Her emails stated “I think you are magic and would love to see you” and she wants to “frolic on the beach” with him. She “wants to f**k his brains out. Tonight.” Sounds very non-romantic to me! Her love letter that she “forgot” about mentions that he was “too sparkling.” And “what on Earth could be better than lying with you, listening to music and having peace. Nothing.”

Complainant 3 (SD)

After this second devastating Crown witness – also destroyed by excellent cross-examination – Ms. Henein informs the Court that it appears SD had been listening to the news – contrary to the Court’s order – and now also had additional information to “disclose.” They then require a last-minute s. 276 application on the basis of this last-minute disclosure. She met Ghomeshi at a music festival at which she was performing. He takes her out to dinner, and she sees him again at the festival, later. They kiss on a bench in the park, and then she “felt his hands on my shoulders and his teeth and then – and then his hands go around my neck and he was squeezing.” That led to “some difficulty breathing,” and he tried to “smother” her. She then gets a cab and goes home, and her mind is a “big blank” as to what else occurred. She later goes out for dinner (again) and to a bar with him, thinking she may have “misread” the situation. Good lord.

The plot thickens. After the bar, there was further “romantic activity” at her home – this was only disclosed at the last minute, of course. She hadn’t thought it was “relevant” to disclose earlier. If it wasn’t Crown misconduct yet for not staying the proceedings to this point (and/or charging all 3 complainants with crimes of perjury), by now it certainly is.

The lies continue. Despite being obviously terrified of him after their original encounter, she later saw him alone at her home romantically because she was – I kid not – “notoriously known for giving people second, third and fourth chances.” She saw him again multiple times afterwards, before she ended her relationship with him.

Kevin Donovan also apparently “lied” – by saying Ghomeshi attacked her, when she had used less aggressive language and claims to have told him that the kissing was initially consensual. She testifies that he “kind of” choked her with both hands, but she had previously told police that she can’t remember if it was with 1 or 2 hands.

Decoutere messaged her that her police statements will be part of a “Jenga tower” – presumably to topple Ghomeshi. She also demonstrably lied under oath (during direct) that she had not discussed her allegations with Decoutere prior to going to police. Her communications with and about other complainants were properly subject to a disclosure request – although I’m sure many Crowns would consider such disclosure “irrelevant” and/or privileged (particularly pertaining to its conversations with complainants).

She is shown to have lied when claiming to have no interest in Ghomeshi (“professionally” and/or personally).

Just to get defence’s hands on disclosure of all of this correspondence, clearly very difficult – even before the idiotic legislation, and especially now. Defence had to go through costly, lengthy, unpredictable third-party disclosure records applications, it appears. SD writes to Decoutere, “They didn’t get into specifics, but for example, if they want our conversation even though the cops have it, they have to put in an application for it, then I, we, would sit with a court appointed lawyer and go over everything and decide what can, cannot be shown. They also said it really depends on how much money he wants to spend. More digging, more money.” It is alarming that most liars can so easily get away with their lies – back then, and especially now. God forbid we allow defence access to any “embarrassing” or “highly personal” communications! Since the presumption of innocence is an absolute joke (or a rape myth) – at best, what could possibly go wrong with this policy?

SD’s very last-minute disclosure of having spent some more time with Ghomeshi and engaging in sex with him, apparently at her place and he spends the night there – clearly blocked from her “traumatized” mind until the very last-minute, coincidentally. Of course, SD insists (with a straight face, apparently) that this minor detail was “irrelevant” – incidentally, likely agreed to by the Crown, SCC and everyone else. She had lied under oath to police previously when she said there was no consensual sexual contact. Only things that “made her feel bad” were relevant, in her view. It was an “omission” and of an “embarrassing” detail (a “misjudgment”), she later claims – and not at all a lie. And things she did not expect to be called out on for lying about, I’d respectfully submit.

Incidentally, it is not too late for the Ontario Attorney General to do its duty and charge all 3 lying complainants with perjury, which was extreme and blatant in this case. Surely, they’ve been busy and have merely overlooked their responsibility and ethical obligations to date on this file. If they refuse to do their duty, individuals should initiate a private prosecution. It is appalling that blatant criminal behaviour is overlooked, excused and encouraged when it comes to Crown witnesses.

R. v. Ghomeshi, 2016 ONCJ 155 is a very fair, reasonable and understated judgment, detailing the (obvious) reasons for the acquittal. Horkins J. points out (gently, I’ll add) with regard to LR that “The impossibility of this memory makes one seriously question, what else might be honestly remembered by her and yet actually be equally wrong?” (para. 36). And “The negative impact that this after-the-fact conduct has on L.R.’s credibility is surpassed by the fact that she never disclosed any of this to the police or to the Crown” (para. 40). LR’s evidence was approached – properly – “with great scepticism” and she “deliberately breached her oath to tell the truth” (paras. 41, 43).

Ms. Decoutere’s further encounters with Ghomeshi, were in her view “inconsequential” (paras. 53, 59) – which reminds me of similarly memorable language at para. 80 of R. v Saddleback, 2020 ABPC 168. Horkins J. finds, correctly, that “It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police” (para. 60). Inconsistencies in her narrative of the sequence of events – while generally forgivable (yuck – para. 64), are inexcusable in this instance, due to the “shifting” narrative. In violation of her oath to tell the police the truth, she made the choice to “consciously suppress relevant and material information” which indicates (again – gently) “a failure to take the oath seriously and a wilful carelessness with the truth” on Decoutere’s part (para. 67).

We’re just getting started (paras. 87, 94, 109, 114):

In the framework of a credibility analysis in a criminal trial, Ms. DeCoutere’s attempt to hide this information evidences a manipulative course of conduct. This raises additional and mounting concerns regarding her reliability as a witness. […]

Let me emphasize strongly, it is the suppression of evidence and the deceptions maintained under oath that drive my concerns with the reliability of this witness, not necessarily her undetermined motivations for doing so. It is difficult to have trust in a witness who engages in the selective withholding relevant information. […]

The extreme dedication to bringing down Mr. Ghomeshi is evidenced vividly in the email correspondence between S.D. and Ms. DeCoutere. Between October 29, 2014 and September 2015, S.D. and Ms. DeCoutere exchanged approximately 5,000 messages. While this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the Court to proceed with caution. Ms. DeCoutere and S.D. considered themselves to be a “team” and the goal was to bring down Mr. Ghomeshi. […]

S.D.’s decision to suppress this information until the last minute, prior to trial, greatly undermines the Court’s confidence in her evidence. In assessing the credibility of a witness, the active suppression of the truth will be as damaging to their reliability as a direct lie under oath.

It gets even better (paras. 118, 119, 121, 135, 137, 138):

I accept Ms. Henein’s characterization of this behaviour. S.D. was clearly “playing chicken” with the justice system. She was prepared to tell half the truth for as long as she thought she might get away with it. Clearly, S.D. was following the proceedings more closely than she cared to admit and she knew that she was about to run head first into the whole truth.

S.D offered an excuse for hiding this information. She said that this was her “first kick at the can”, and that she did not know how “to navigate” this sort of proceeding. “Navigating” this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth. […]

The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in this particular case. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct. […]

However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances. […]

Each complainant was confronted with a volume of evidence that was contrary to their prior sworn statements and their evidence in-chief. Each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion. It is this aspect of their evidence that is most troubling to the Court. […]

The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception. [emphasis added]

The consensus among media and legal academics was generally that Horkins J. was wrong – if not in his verdict, than in his stated reasons for it. Joshua Sealy-Harrington (a moderate, I suppose; others would probably call for Horkins’ immediate firing) accuses Horkins J. of making “genuine mistakes.”

Sealy-Harrington says, “In other words, Justice Horkins declines the harder position that these complainants lied about being assaulted and adopts the softer position that, due to their inconsistencies, the veracity of their claims of assault is not beyond reasonable doubt – a reasonable conclusion based on the record before him, and a conclusion that carefully delineates the dishonesty he is actually identifying in his reasons.” Technically, he’s correct – Horkins J. did not call them actual liars about everything (I suppose he wanted to keep his job), but he came pretty darn close to it, actually. Further:

It is undeniable that Justice Horkins’ description of this behaviour as “odd” is rooted in the stereotype that credible sexual assault victims avoid their abuser at all costs after an assault (even though the contrary has been consistently documented in the context of sexual abuse, and even though such an expectation surely imposes absurd expectations on women assaulted by their ongoing partners (see here and here).

No, actually. It has nothing to do with stereotypes; everything to do with lies.

Of course, irresponsible media and legal academics and practitioners fell over themselves in their rush to condemn the acquittals, some using reserved language, like Sealy-Harrington (while most did not). Surprisingly, Prof. Elaine Craig (perhaps the least responsible academic of the self-proclaimed “experts”) did not criticize the judgment in her book, although she was as big a proponent for the atrocious legislation that arose from it as anyone else. If the judge was in Alberta, I assure you there would have been a Crown complaint about him.

Alice Woolley (previously an academic, and now a justice in Alberta – a former professor of mine and actually a decent person) criticized the judgment too. What is consistently and conspicuously absent from all of this “analysis” is the presumption of innocence, which I understand has not yet been classified as a rape myth (not that I should give the SCC and Parliament any more bright ideas). And no, it was not the prosecutors’ fault that the complainants lied through their teeth – what may be their fault is the prosecutors not seeing that sooner and failing to stay the proceedings when they did. Clearly, blaming the prosecutors in this case (or the judge or defence, what have you) is necessary (“Further, it allows the lawyer to help ensure that the witness gets to provide her testimony, and that she will not end up looking like a liar when she is telling the truth”). Bollocks!

Weekly criminal law update – July 13, 2022

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. Appeal bail granted on SCC conviction as-of-right appeal in R v BEM, 2022 ABCA 236 by Watson JA. I criticize the appeal decision here. Likely would not have received bail without dissent, which is unfortunate. Further, perhaps the ABCA should revise their rules to allow for 20-30 page memorandums on bail applications (rather than 5 pages double-spaced), seeing that some 37 cases were cited for this bail decision alone.
  2. In another excellent Prof.-Sankoff-as-counsel bail decision, appeal bail is granted by Veldhuis JA in R v Bobrosky, 2022 ABCA 242. Veldhuis JA correctly notes that “”Only a fraction” of cases involve the public confidence criterion: Oland at para 29. This criterion will rarely play a role, much less a central role, in granting or denying release pending appeal: Oland at para 29” (at para. 23, emphasis added – contradicting R v Yanga, 2022 ABCA 203, R v Viau, 2022 ABCA 195, R v DAV, 2022 ABCA 99, R. v. S.F.M., 2022 NSCA 37, etc.). The SCC desperately needs to repeat its message from R. v. Oland, 2017 SCC 17 (and/or Zora) – cut-and-paste is fine; given that its message was clearly missed by many appeal courts. See also my criticisms here (and here), for example.
  3. In R v HB, 2022 ABCA 240, appeal bail is denied by Watson JA, yet the grounds of appeal appear to be addressed thoroughly, rather than dismissed out of hand.
  4. New trial granted to one accused, where trial judge misapprehended the evidence by calling a recording of the accused a “known” recording of him when it had not been properly verified: R v Havyarimana, 2022 ABCA 235, at paras. 37-38.
  5. In a brave acquittal, Shaw PCJ found that he had no reason to disbelieve either the accused’s or complainant’s contradictory testimonies in a youth SA trial, and subsequently had to acquit: R V EK, 2022 ABPC 142, at paras. 17, 19.
  6. Statements compelled under traffic laws after an accident inadmissible against accused for impaired driving: R v Korduner, 2022 ABPC 139. Similar to v. Thorne2022 ONCJ 193, #7 here.
  7. In my Crown Misconduct Watch™ (distinct from my Wrongful Conviction Watch™), the Ontario Crown argued successfully against Tamara Lich’s bail release on the 3rd ground on a minor breach (previous bail review release here), despite the theoretical rarity of the third ground being applicable (see Bobrosky, #2 above, in the context of appeal bail). The JP found that her detention was necessary to maintain confidence in the administration of justice. See paras. 57-65 of St-R. v. St-Cloud, 2015 SCC 27, which clarifies that although the third ground is not technically restricted to rare cases, in consequence it will only be applied in rare cases (para. 50), and criteria include gravity of offence and length of jail sentence potentially faced. Further, the Crown appears to have misstated the maximum sentence as 10 years for the breach, when it is actually 2 years (at most). Unfortunately, due to the political nature of this matter, it is rarely being criticized by the bar.
  8. And in Alberta, the Crown not only allowed many impermissible comments in Victim Impact Statements in a sentencing hearing for a gruesome crime (here too), the Crown also submitted to the Court that the accused’s previous release on bail “significantly impacted the community and the outrage that led to protests outside his home were “justified and predictable” (emphasis added). In this case, a previous bail release led to vigilante misconduct, necessitating his re-surrender to custody. Clearly, bail and punishment are being conflated (by the public and/or judicial actors).
  9. For more counsel misconduct, defence counsel in Quebec appears to have argued at a hate speech trial that “I learned in school that six million people died in concentration camps to save money.” Thankfully, the judge told counsel (a Ms. Poussard), “I advise you to stop: what you are saying is not reasonable.” Without weighing in on the words used and whether they meet the criteria of hate speech, counsel comments seem to cross “the line.”
  10. A conditional discharge was granted for sexual assault in Quebec this month. I agree that the sentence was likely inappropriate by being too lenient, and that a conditional sentence may have been appropriate. Nevertheless, I don’t think the judge should be fired, especially if judges regularly “throwing the book” at the accused and/or wrongfully convicting them are not fired, too.
  11. 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 – July 5, 2022

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. Constitutionality of reverse disclosure provisions for all communications in an SA trial upheld 6-3 in R. v. J.J., 2022 SCC 28. The decision is properly trashed by the national defence bar almost unanimously (see Twitter etc.) – contrast with this. Brown J.’s sharply-worded dissent includes that “Parliament has legislated a formula for wrongful convictions. Indeed, it has all but guaranteed them” (para. 205) and “While I am mindful of the need to accord deference to Parliament’s choice of means and legislative objective, this is not a close call. The harmful impacts and risk of wrongful convictions outweigh any potential benefits of the regime” (para. 317), and that “Giving meaning and operation to the presumption of innocence is the accused’s right to make full answer and defence. This extends to calling the evidence necessary to establish a defence, and challenging the evidence called by the prosecution (Seaboyer, at p. 608)” – para. 267. I have not yet read the full 263-page decision. Flow chart by Naomi Sayers here. Many pointing out that majority opinion inconsistent with established law in Fearon, Mills (2019), etc. P. Sankoff points out that added complexity is incongruent with the underfunding of Legal Aid.
  2. See R v AB, 2022 ABPC 128 at paras. 13, 17: “Stereotypical thinking must also be avoided. The suggestion that complainants in sexual assault cases tell the truth and would not expose themselves to stresses of a trial, unless their story were true, goes against the accused’s presumption of innocence […] Protecting the liberty of an accused and guarding against conviction of an innocent person, require a solid foundation for a guilty verdict, whether the complainant is an adult or child.”
  3. A proper acquittal on an SA charge by Hollins J., due to inconsistencies and issues with complainant’s narrative: R v Karam, 2022 ABQB 439. At para. 74, the “Crown has simply not proven beyond a reasonable doubt that the accused committed a sexual assault. There were just too many pieces that did not fit, any number of which could have raised a reasonable doubt but which, when taken together, most assuredly do.”
  4. Uneven scrutiny appeal allowed on historic child SA convictions. The unnamed judge’s failure to note consistencies in accused’s testimony (para. 55), speculation (both assuming complainant was “protecting” a friend when there was no evidence of such and speculating as to what type of discipline would be “proportionate” for the accused – paras. 65, 78) and a material misapprehension of evidence (para. 89) all necessitated a new trial: R. v. M.P.H., 2022 BCCA 216. H/T P. Sankoff, I think.
  5. Insufficient identity evidence on a robbery charge leads to an acquittal in R v Munn, 2022 ABQB 457.
  6. Defence counsel was required to go over the trial testimony of the accused in extensive detail prior to trial, resulting in mistrial in this case: R v Hearn, 2022 ABQB 448 at para. 21. Note that the Crown is entitled to never speak a word with its main witness(es) prior to trial, without having to worry about being accused of ineffective assistance of counsel.
  7. Mistrial application denied on the facts where ineffective assistance of counsel is alleged some 6 years after conviction: R v Hanaysha, 2022 ABQB 447.
  8. Breath results excluded because of right to counsel violation – accused asked to speak to lawyer who was in fact paralegal: R. v. Somasundaram, 2022 ONCJ 285. H/T Alan Gold.
  9. CSO for small amounts of fentanyl trafficked in Ontario: R. v. Shearer, 2022 ONCJ 288.
  10. Ryan Clements’ June roundup is here.
  11. The Founders Loved Jury Trials. Almost No One Gets One Anymore. (reason.com), Barrister Strikes: ‘We Value Our Corporate Bodies More Than Those of Our Children’ | Law.com International, The Criminal Bar on strike – 9 things you need to know – The Secret Barrister, Why are criminal barristers taking part in an “unnecessary and irresponsible strike”? – The Secret Barrister,
  12. 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.