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

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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