Weekly criminal law update – August 2, 2022

My apologies for missing last week’s update (my first week missed in 5 months). I was dealing with some personal matters.

I continue to look for contract or freelance work, given that Legal Aid Alberta continues to unreasonably refuse 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. Finally, Alberta’s criminal defence lawyers are mobilizing to address the $174 million funding shortfall from the provincial government to Legal Aid Alberta over the last 4 years: Alberta legal aid lawyers threaten job action over ‘funding neglect’ | Edmonton Journal (also Calgary Herald, CBC, Calgary Sun). Correct numbers here (spreadsheet).
  2. In a 164-page decision, the SCC extended its Crown winning streak on SA cases to 36: R. v. Kirkpatrick, 2022 SCC 33. In that case, sexual consent was contingent on the use of a condom. As the accused did not comply with this requirement on one incident of otherwise-consensual sex, he was charged with sexual assault, and his convictions were upheld. However, condom sabotage (as opposed to not wearing one altogether) is dealt with under fraud, per R. v. Hutchinson2014 SCC 19, which strains credulity. Conducting this analysis under the mens rea element of the assault (rather than under the separate offence of fraud or mischief) appears to be problematic in that it “opens the floodgates” to liability on other types of fraud (e.g. lying about being on birth control). See the excellent 51-tweet thread by Prof. Sankoff on this. The SCC engages in typical, embarrassing sloganeering and rhetoric with “because “[t]oday, not only does no mean no, but only yes means yes”” (at para. 52) – somewhat indicative of the degree of analysis underpinning its decisions generally. The concurring reasons (4-5) are somewhat more intellectually honest, finding that Hutchinson governs, and deals with it under fraud (thus arriving at the same result that the acquittal was untenable and a new trial was required).
  3. The SCC rules, by a narrow 5-4 margin, that evidence (a confession) obtained with significant Charter violations of the accused’s right to counsel should be excluded: R. v. Lafrance, 2022 SCC 32. Despite officers’ telling the accused he was “free to leave,” a reasonable person might conclude that he was not free to leave. Notably, the factors of youth and race also favoured a finding that he was detained, in this circumstance. The dissenting justices agreed with (and were deferential to) the trial judge who found that there was no detention, hence no Charter violation. Further, the dissent found that subsequent confusion on the part of the accused did not require a further right to consult with a lawyer.
  4. In R. v. Sundman, 2022 SCC 31, the SCC unanimously finds that a fleeing victim (who had previously been confined in a truck) is still considered “unlawfully confined” during the escape attempt, with the result that the murder was classified as first-degree. This would appear to be “pretzel” (and/or results-oriented) logic to my unsophisticated mind.
  5. In R. v. Chow, 2022 ONCA 555, the ONCA found that the owner had no reasonable expectation of privacy in his Airbnb home at the relevant time. Decision criticized by Chris Sewrattan here. Hopefully, leave to appeal is sought and granted.
  6. Toronto cop ‘intentionally misled’ court, gun and drug case collapses | The Star. Reasons at R. v. Downes, 2022 ONSC 4308.
  7. Order for accused to sit at counsel table for jury trial on first-degree murder charges, despite Crown opposition: R. v. Douse, 2022 ONSC 3163. Jurisprudence otherwise conflicted. Schreck J. concludes that “In my view, where fair trial rights are involved, it is better to err on the side of caution. As a result, in considering whether an accused should sit at counsel table, it is appropriate to consider that having the accused sit in the dock carries with it a risk of prejudice” (para. 38). Severance application previously granted here.
  8. In R v Rasberry, 2022 ABPC 155, Jivraj J. found that “While I do not think that the Complainant was attempting to deceive the Court, the gaps and inconsistencies in her testimony raise some doubt about the reliability of her evidence” (at para. 46). The obvious perjury of the complainant, however, is made rather clear in the subsequent paragraph. Further, “Examined in isolation, one might be tempted to view these inconsistencies as being inconsequential. However, when looked at as a whole, they are, in my view, sufficient to raise some doubt about the reliability of her evidence” (at para. 48, emphasis added). Further concerning language by the same judge in his reasons for conviction in R v Saddleback, 2020 ABPC 168, where the complainant’s testimony – despite being “a little unsettling,” “concerning,” “troubling” and “questionable;” some of the inconsistencies amounted merely to “minor discrepancies” and were hence “inconsequential” (at paras. 59, 60, 71, 80). The latter conviction was initially challenged in R v Saddleback, 2022 ABCA 27, and was subsequently conceded by the Crown. Similar language by the same judge also in R v Ferraz, 2021 ABPC 166 (QuickLaw/Google Drive). The complainant was a “credible witness” – despite some glaring weaknesses and discrepancies (between her police statement and within the trial) “not all of which can be cast aside as merely “innocuous” or “peripheral”” (emphasis added, para. 97). The accused “came across as credible” (para. 98). At para. 99, emphasis added: “The end result is that the evidence of the accused, viewed in the context of all the other evidence, including that of the complainant, has left me with some doubt that he could be telling the truth.” It is unclear whether it would be as “tempting” to view inconsistencies in the evidence of the accused as generously, notwithstanding the presumption of innocence.
  9. Crown appeal of a CSO for voyeurism charges dismissed in R v Germain, 2022 ABCA 257. The ABCA expressly declines Crown’s invitation “to rule that denunciation and deterrence must be the primary considerations in sentencing for the offence of voyeurism” against adults (para. 69).
  10. Inconsistent jurisprudence with respect to the ability of the Crown to extract driver information from a vehicle after an accident without a warrant is dealt with in R v Major, 2022 SKCA 80. A unanimous SKCA finds that while a warrant “could have been obtained,” it was not required (para. 66). Nevertheless, a new trial was ordered, given that there was no expert evidence with regard to the integrity of the electronic data (paras. 102-3). H/T Ryan Clements.
  11. Thorough 110-page reasons for SA acquittal clearly not good enough for the complainant in R v Ukabam, 2022 SKQB 128, who proceeded to complain about the judge. I can see why some judges are perhaps loath to acquit.
  12. 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.
  13. Tamara Lich’s political detention properly overturned on appeal and is also trashed by Ari Goldkind, a rare Canadian lawyer who is prepared to publicly criticize the justice system from a non-“woke” perspective.
  14. Justice warriors in the dock – Bettina Arndt (substack.com), Brighton Uber driver victim of false sexual assault claim | The Argus, 5-4: Brett Kavanaugh – Unlocked Premium Episode on Apple Podcasts, Alberta appeal court sets aside contempt sanctions against pastor, brother and cafe owner | CBC News (reasons here), Not on Record podcast – EP#29 | Tamara Lich & Hockey Canada – YouTube.
  15. The Conservative Agenda Depends On Judges Being Terrible Historians (ballsandstrikes.org), Alito’s speech mocking foreign leaders also offered an offensive vision of religious freedom. (slate.com), Olayemi Olurin – Being Black & Principled in white America (substack.com), Kim Ogg Wants a Democratic Socialist Judge Thrown Off the Bench – Texas Monthly.

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