Weekly criminal law update – August 23, 2022

I continue to look for work, given that Legal Aid Alberta continues to unreasonably refuse to work with me (and I’d boycott them, either way). 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. 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.
2. Confession made to a therapist confidential and should not have been used in criminal proceedings. Child SA conviction overturned as a result by a 2-1 majority of the Quebec Court of Appeal – expect the Crown to appeal further, unfortunately: Chatillon c. R., 2022 QCCA 1072 (Lawyer’s Daily). Trial voir dire here.
3. In R. v. Bhadresa, 2022 ONSC 4691, a conviction appeal is granted by Harris J. on the ground that the trial judge improperly relied on complainant’s “after-the-fact emotional state” as corroborative of her testimony (para. 4). The police officer found her “frantic and crying” in the park after a domestic incident. While “after-the-fact conduct” can be used, “Like any circumstantial evidence, the relationship between a proved fact (the emotional state) and the fact in issue (the assault) must be scrutinized” (para. 21). As both sides testified that they had a major disagreement, her emotional upset was as consistent with the accused’s innocence as his guilt. Trial judges (and Crowns) need to be much more careful when trying to make this type of argument (particularly in Ontario). See also R. v. Lakhan, 2022 ONCJ 362, at paras. 51-57. Also, I note that the accused’s lack of concern for her safety was used against him (problematic generally due to impermissible bad character evidence, although commonly used in this context; although in this case he claimed to be concerned about her, so less problematic here than usual) – para. 15.
4. First degree murder conviction overturned where trial judge erred by leaving the conviction open to the jury since s. 231(5) of the Criminal Code was improperly relied upon – the forcible confinement occurred before the murder – not concurrently, as required. Further, evidence of provocation which was culturally specific was allowed, although found to not meet the test on the facts (para. 84): R. v. Singh, 2022 ONCA 584 (Lawyer’s Daily, also).
5. In an interesting acquittal, the accused is acquitted of the offence of obtaining sexual services for consideration from person under 18 years, given that he claimed to not see the message clarifying the age of the undercover officer posing online as the youth. His further claim to have told the undercover officer that he would only see an adult – contradicted by the officer – appears to have been accepted (following a change of counsel rectifying what otherwise would have been a Browne v. Dunn issue). Entrapment was not an issue, as the accused initiated the conversation. The accused was acquitted of 286.1(2), but convicted of the lesser, included offence – it is an offence as against an adult, too s. 286.1(1): R V A.N., 2022 ABPC 175. Also, note that the accused’s initials were used – likely a kind gesture by trial judge (Lamoureux J.).
6. A fact-based SA acquittal in R. v. Valiquette, 2022 ONSC 4530. At paras. 58-59, Ellies J. concludes (see also R. v. Khan, 2022 NSSC 223 and R.v. Boujaoude, 2022 QCCQ 5383):
   

   For the reasons expressed above, I do not fully accept the evidence of either the complainant or the accused about the events of the night in question. Nonetheless, when considered in the context of the evidence as a whole, the evidence of the accused leaves me with a reasonable doubt about whether he struck the blow alleged by the complainant and whether she consented to the sexual acts in which they engaged thereafter.
   Because the Crown must prove beyond a reasonable doubt that the complainant did not consent, the accused must be found not guilty.

7. Argument of ineffective assistance of trial counsel on multiple grounds (accused’s decision not to testify, reliance on myths, etc.) properly denied in R v Mazhari-Ravesh, 2022 MBCA 63. H/T Ryan Clements.
8. In R. v. Ellis, 2022 BCCA 278 (Lawyer’s Daily), an 18-36 months’ jail sentencing range in BC (5-year “starting point” in Alberta, which is supposedly the same thing as a range – R. v. Parranto, 2021 SCC 46, para. 18) is entirely ignored and probation appropriate instead because accused an addict (and female) who pled guilty. Original sentence largely upheld on appeal, although probation term extended. Will be interesting to see if Crown appeals and forces SCC to reconcile conflicting sentencing jurisprudence – cases like this and Sharma (which is forthcoming at the SCC) with its hardline approach in Friesen (child sexual assault) and to a lesser degree, Parranto (high-level trafficking). The SCC – decidedly non-“woke” when it comes to sentencing sexual offenders (unless locking ‘em up and throwing away the key counts as “woke” these days, which it probably does) – will need to determine how “woke” to be when sentencing vulnerable addicts. Mental gymnastics – my favourite.
9. A conflict of interest is found given that previous defence counsel on the matter recently joined the Hamilton Crown office. This despite the fact that it was clear that said “reputable” counsel had not discussed the file inappropriately with anyone, as justice needs to “be seen to be done” (para. 12). The Crown office’s “reactionary” approach of not having systems in place to deal with said conflicts until the issue was raised by current defence counsel unacceptable (para. 14). Consequently, the Hamilton Crown was required to pass the matter to a different office: R. v. Skye-Davis, 2022 ONCJ 378.
10. Defence lawyers to refuse serious crime files over Legal Aid Alberta funding | CBC News, Barristers back strike that ‘will bring wheels of justice to a halt’ | News | The Times, Mitch McConnell greatly damaged US democracy with quiet, chess-like moves | Gary Gerstle | The Guardian, Justice Department investigating Arkansas officers’ use of force in arrest caught on video (msn.com).
11. Judges who sent kids to for-profit jails ordered to pay $200M (msn.com), Steven Avery files another appeal of his murder conviction in Manitowoc County killing of Teresa Halbach (yahoo.com), The Hosts of ‘5-4’ Never Trusted the Supreme Court – The New York Times (nytimes.com), What Happened to Joe Nathan James? – The Atlantic, How Dan Price’s Social Media Fame Fueled Abuse Allegations – The New York Times (nytimes.com).