Weekly criminal law update – August 31, 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. In a ground-breaking decision, a 2013 conviction is reversed in R. v. Murphy, 2022 ONCA 615. The female accused had not disclosed her HIV-positive status, resulting in an SA conviction – based on the science and law at the time (despite no transmission of the illness; now known to be “zero risk” – para. 5). I’m still trying to wrap my head around Kirkpatrick – not entirely certain this decision is consistent with it. Congrats to Colleen McKeown of Daniel Brown Law in Toronto for her excellent advocacy.
  3. Conviction appeal allowed in R. v. N.P., 2022 ONCA 597. It is a likely “he-said she-said” wrongful conviction (legally and/or factually) overturned on technical W.D. grounds. Bizarrely, the appellant testified that 2 incidents occurred, while the complainant insisted that just 1 occurred. While both suffered from inconsistencies and credibility issues, the judge accepted the accused’s testimony with regard to the number of incidents only.
  4. An apparently ill-advised conviction appeal on tenuous grounds of ineffective assistance of counsel dismissed in R. v. Sagos, 2022 ONCA 603. Includes the following nugget (para. 30):

    Trial lawyers are required to act with reasonable skill, knowledge and ability in the representation of their clients. Lawyers must often make difficult judgments in the course of litigation. The exercise of that judgment is not measured with the benefit of hindsight, or by speculation about what reasonably might have been done differently. For example, cross-examination does not fall below the competence standard because other questions could reasonably have been asked of the witness. There are many ways to cross-examine a witness. Some are better than others. None necessarily demonstrate professional incompetence.

  5. In a courageous and proper acquittal, Mandziuk J. acquits the accused of the charge of sexual assault where there are significant inconsistencies with the evidence of both the complainant and the accused – particularly the complainant’s perjury testimony that she was not intoxicated or on drugs during the incident: R v Howe, 2022 ABQB 580.
  6. Crown self-defence acquittal appeal dismissed – that victim hid gun in pocket after being shot is not an unreasonable inference: R. v. Sparks-MacKinnon, 2022 ONCA 617.
  7. In a thorough sentencing decision (citing some 75 cases), Mandziuk J. sentences an offender to 10.5 years of jail total for extortion, confinement, sexual assault, harassment, etc. : R v HPM, 2022 ABQB 584.
  8. In R v J.M., 2022 ABPC 173, numerous inconsistencies and post-incident conduct (hiding in closet from police) establish the accused’s guilt, per Cummings J.
  9. Briefly weighing in on The Hon. Justice Michele O’Bonsawin’s recent appointment to the Supreme Court of Canada: I am excited generally, although there may have been a “political” element to the appointment. While her PhD thesis has been withheld, I don’t see her as having anything to lose by making it available now that she’s been appointed.
  10. Canadian Bar Association – CBA Alberta statement on calls for increased funding for Legal Aid Alberta (cba-alberta.org), Eric Morain : écoeuré par le système judiciaire, l’avocat pénaliste jette l’éponge | CNEWS, Community editorial board: We need more lawyers in Cornwall, SDG, and Akwesasne | The County Weekly News, La. man wrongfully convicted of rape at 17 exonerated decades later (usatoday.com), Man convicted in fatal 1997 New Orleans shooting freed | News | nola.com, Black pastor in Alabama says he was wrongfully arrested while watering flowers : NPR, The More Things Change, the More They Stay the Same: Bail Pending Appeal After R v Oland by Kenneth Grad :: SSRN, https://duncankennedy.net/documents/Photo articles/Legal Education and the Reproduction of Hierarchy_J. Leg. Ed..pdf (1982), “Stay Wrong”: When State Supreme Courts Fought Back | Balls and Strikes, Makaela Bacon: woman who faked rape fronts court | news.com.au — Australia’s leading news site, They wanted justice for their mentally ill loved one who died in jail. Now those hopes are crushed | CBC News.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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