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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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