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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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