Weekly criminal law update – August 16, 2022

I continue to look for 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. Convictions overturned and new trial ordered where trial judge may have relied on impermissible hearsay evidence in arriving at drug trafficking convictions (paras. 31, 35: R. v. Burgess, 2022 ONCA 577).
  2. Video statement to police by complainant (hearsay) admitted into trial evidence despite complainant not attending trial. While I don’t necessarily quarrel with the holding (para. 93, R v. JNB, 2022 ABPC 169), I don’t like the language in para. 83 (emphasis added): “when considering the context of AG’s non-appearance despite the service of the subpoena, the most cogent explanation for her non-attendance must be that she was left with no confidence that her complaint would be taken seriously by the Court, or that she was fearful of coming to Court, and that she – like many domestic violence complainants – was conflicted about participating in the prosecution.”
  3. In another hearsay case, a conviction appeal was dismissed in R v Love, 2022 ABCA 269. The accused’s out-of-court statements were admissible, and the search warrant based on local court orders to Facebook – an American corporation – was admissible.
  4. In R v Badu, 2022 ABCA 267, a trial judge’s admission of a Charter-incompliant search was overturned. A search warrant for drugs required eight hours to have elapsed from delivery and/or an alarm to have been triggered, neither of which occurred. Although the evidence would have later been “discoverable” (para. ), this was insufficient, as it does “not always lessen the seriousness of a Charter breach” (para. 28). Further, there was a right to counsel (s. 10 – para. 68) Charter breach – a 7-hour delay while completing the search (para. 7). Wakeling JA gives partly concurring reasons (paras. 86-214). Trial counsel is the same as appeal counsel – which I think is generally a good idea, despite conventional “wisdom” otherwise.
  5. In a basement brawl between neighbours resulting in a lost eye for the complainant, Barley J. properly acquits the accused, given uncertainty as to what occurred and the possibility of self-defence. Further, the accused’s calling 2 “character witnesses: was acceptable: R v Danard, 2022 ABPC 164, at para. 24. It was uncertain who “started the fight” – para. 25. Further, the accused testified to delivering only one punch – uncertain whether self-defence would have been accepted had he admitted to more (para. 39).
  6. Twitter thread regarding juries, “Function Over Form: Reviving the Criminal jury’s Historical Role as a Sentencing Body” by Chris Kemmitt (umich.edu), Don’t Let Judges Lie to Juries about Conscientious Acquittal | Cato at Liberty Blog.
  7. Press releases by CTLA/CDLA etc. re: Legal Aid Alberta roster lawyer strike, Aug. 11: “If Minister Shandro and [Legal Aid Alberta] CEO Panusa continue to bury their heads in the sand, our members will continue to withdraw legal services.” Mr. Savage (president of CDLA) said: ““We are not working for 10 cents on the dollar anymore and our clients deserve better. We want to be comfortable and provide proper service just like any prosecutor or judge does,” he said. “Legal aid in Alberta has been chronically underfunded for years, if not decades, and now the chickens are coming home to roost.” – Alberta defence counsel begin withdrawing services as part of legal aid protest – The Lawyer’s Daily (thelawyersdaily.ca), Alberta legal aid lawyers extend job action and threaten more over compensation, funding | CTV News, Legal aid lawyers expand job action after ‘dismissive’ meeting with justice minister | Edmonton Journal, Letter to AG Shandro from ACJ-AJJ (AB Legal Aid – Final) 11 Aug 22.pdf – Google Drive.
  8. Check out my recent blog posts: Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding – Moldofsky Law, 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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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