Weekly criminal law update – September 28, 2022

I missed last week. My apologies. To subscribe to the mailing list (link).

  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. Conviction appeals allowed on gun charges, where “the trial judge’s finding that Ahmed was aware that there was a gun in the car because it was involved in an exchange of gunfire [involving the car’s passenger, Yusuf] rests on a fundamental misapprehension of evidence” (para. 7, 86, R. v. Ahmed, 2022 ONCA 640). Despite the searches of the car being allowable (para. 75), multiple convictions on Yusuf were also overturned, primarily due to the judge’s error on relying on photos from accused’s cell phone that may not have matched the weapon seized (paras. 92-110).
  3. In a well-reasoned SA acquittal, Funk J. finds inconsistencies in the child witness’s testimony to be fatal to the Crown’s case, despite a near-admission by the accused (paras. 103-118, 94): R v CER, 2022 ABKB 636. Justice Funk properly cautions herself on reading too much into the accused’s testimony appearing evasive or long-winded (paras. 87-93). A slight quibble with language used: “My task here is determine whether these alleged events in fact occurred. I am to do so based on my assessment of the complainant’s allegations and the accused’s denials, along with other available evidence. As difficult as that task may be […]” (para. 59, emphasis added).
  4. In another – R v L.A., 2022 ABPC 199, Stevenson J. found that numerous inconsistencies (para. 44 – largely not specified) in the complainant’s evidence required an acquittal.
  5. In contrast, in R v C.L, 2022 NLCA 53, a Crown appeal of an SA acquittal is granted. Multiple trial errors were found, including an assumption that the accused would have “noticed” objection to the activity by the complainant – then somehow jumping to the conclusion that it triggered the myth that silence was consent (para. 19 – as opposed to merely the discrepancy in the evidence as to whether an objection was made), the “myth” that the complainant’s failure to leave when she had the opportunity to was relevant (para. 20 – likely an oversimplification and/or mischaracterization of the law), reference to the complainant’s upset as indicative of anything other than the guilt of the accused as a further myth (para. 21 – it likely would not be if used to support the accused’s guilt – enough said) and very brief reference to previous, relevant sexual conversations (para . 47 – a technical violation of s. 276, perhaps – despite the Crown’s failure to object at the time). Hopefully, the accused appeals further – this is a very good example of problems with the law in Canada with regard to SA. See Twitter thread here and Lawyer’s Daily.
  6. In a major decision, the ONCA dismissed a Crown appeal of murder acquittals relying in part on accused’s “background” to support his defence of self-defence, given that it is a “modified objective” test. Grounds of appeal related to refusing to allow the Crown’s Corbett application to adduce evidence of prior disreputable conduct also dismissed. Interestingly, some of the previous instances of bad character were refused on the basis of Gladue-like principles – upheld at the ONCA, ruling that “Indigeneity is a relevant, although not dispositive, factor to take into account in a Corbett application” (para. 136): R. v. King, 2022 ONCA 665.
  7. Private Facebook messages from the accused to the complainant – where there was an expectation of privacy on the part of the accused – inadmissible without warrant despite complainant’s waiver of her privacy interest: further, the accused’s statement to police – where there was ambiguity as to whether he was properly cautioned and no audio recording was made – is also inadmissible: R. v. C.M., 2022 ONCJ 372. Interestingly, the officer’s notes of their lengthy conversation were clearly an “inadequate record (paras. 64-56), and thus inadmissible for that reason, too.
  8. In a complex hearsay and “Mr. Big” case, the trial judge’s decisions were upheld, including allowing dated pre-hypnosis statements from witnesses in a murder case: R. v. Handlen, 2022 BCCA 304.
  9. Crown application for remote witness attendance at an SA trial dismissed, in part because of a lack of information provided to ensure safeguards to protect integrity of trial process (para. 7): R. v. Sprungmann, 2022 BCPC 164. Where witness out of country, onus is on “the party objecting to the virtual testimony to satisfy the court on a balance of probabilities that proceeding in the manner sought by the application would be contrary to the principles of fundamental justice” (para. 9). Consequences included possibly jeopardizing the witness’s U.S. immigration status. Similar to #3 here.
  10. Appeal bail denied by Veldhuis J. in R v Mole, 2022 ABCA 298. While the decision may have been warranted on the first ground, I have concerns about it also being denied on the 3rd ground (para. 29) and its characterization as a “very serious” offence (para. 20 – an SA conviction with a 3.5-year sentence) in the parlance of Oland. See #7 here, for example.
  11. Appeal bail granted pending leave application to SCC in R. v. Scott, 2022 ONCA 659, where, among other grounds of appeal, the ONCA appeared to miss a primary ground of appeal.
  12. A sentence appeal is allowed, where the sentencing judge recalled the matter one week post-sentence to correct a major error – a 3-year sentence was intended to be consecutive, but instead had been made concurrent. ABCA had little patience for attempt to avoid functus doctrine: R v DEA, 2022 ABCA 308. H/T Ryan Clements.
  13. Dissent would have allowed s. 276 application in R. v. T.W.W., 2022 BCCA 312.
  14. Improper costs award against the CRA reversed in R v Van Dijk, 2022 ABCA 292.
  15. Legal Aid strike: Petition · Demand Equal Access to Justice for All Albertans · Change.org, Sankoff – TheFightforChangestoLegalAid210280mm by Gesa – Flipsnack, Backlog expected as job action continues at Alberta courts | CTV News, Alberta defence lawyers to refuse all legal aid cases starting Monday (CBC – msn.com), Criminal defence lawyers escalate job action in fight over Legal Aid funding – LiveWire Calgary, Defence lawyers will refuse new legal aid cases starting Monday | Calgary Herald, Defence lawyers to stop taking new legal aid files as dispute with Alberta continues (Global – msn.com), ‘Short-term pain’: Group of Alberta lawyers escalate job action over legal aid cases (yahoo.com), Alberta’s defence lawyers protest unfair wages | CTV News, Olayemi Olurin: Underfunding Public Defense Fuels Mass Incarceration (substack.com), Murder suspects set to be released from jail over barrister strike court delays (telegraph.co.uk).
  16. What Happens to #MeToo When a Feminist Is the Accused? – The New York Times (nytimes.com), How many more Adnan Syeds are in the justice system with no journalists to advocate for them? | GUEST COMMENTARY – Baltimore Sun, Oklahoma Lawmaker Calls for Investigation of Prosecutors Who Convicted Richard Glossip (theintercept.com), Alabama Fails to Execute Alan Miller, Could’t Find Vein (vice.com), Not on Record podcast EP#34 | Social Justice in the Courts – YouTube, EP#35 | The TRUTH About Overturned Convictions | Lawyers Examine the Adnan Syed Case – YouTube.


Weekly criminal law update – September 16, 2022

To subscribe to the mailing list (link).

  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. A concerning conviction appeal is dismissed in R v McCrimmon, 2022 ABCA 289. Bad character evidence is not enough of an issue, essentially (para. 35), and the Crown’s summation of the law of sexual assault is good enough – if not correct (note that the panel refuses to address the question of whether the address was actually correct – paras. 26-27). The panel even manages an unwarranted dig at appellate counsel (“Appeal counsel has reviewed the jury charge in detail checking for errors” – para. 7).
  3. Crown application for multiple witnesses to testify remotely at a major fraud trial dismissed: R v Barry, 2022 ABQB 600.
  4. Edmonton Remand Centre trashed by Henderson J. in R v Starrett, 2022 ABKB 613. A gruesome manslaughter sentence was reduced by a mere 3 months (para. 114, citing “a gross violation of their duty to protect all prisoners at the ERC”) as a result of this state misconduct (rarely called out), and a further 4 months for vigilantism that may not have constituted state misconduct (para. 126). Surprisingly, Friesen-esque “bonus” sentences are not yet common for this offence.
  5. Wrongful Conviction Watch™: a horrendous U.S. wrongful conviction recently recognized in ‘Serial’ podcast case: Prosecutors move to vacate Adnan Syed’s conviction : NPR. Will be binge-listening to the 8-year-old podcast series on it – Serial. Seems to have included significant prosecutor/police misconduct – shocker, I know. Also, Police apologise for wrongful conviction of man executed 70 years ago | Cardiff | The Guardian, Illinois Innocence Project helps win release of wrongfully convicted Lake County man | NPR Illinois, Claiming Innocence, Alabama Death Row Inmate Seeks New Trial (usnews.com), Jury awards New York man with 13 alibi witnesses $5 million for wrongful conviction (nbcnews.com).
  6. Legal Aid: Opinion: Alberta’s legal aid system is being starved of funding – The Globe and Mail (free version), Starving legal aid is threatening Ontario’s justice system | The Star (free version), Barrister strike: Criminal law is not dying, it’s dead, says barrister – BBC News, Guest Post: Criminal barristers need the patience of monks but we have not taken vows of poverty – BarristerBlogger.
  7. Misc.: Green-lighting torture in Israel: A tragic, unifying court decision – The Jerusalem Post (jpost.com), The Credibility and Reliability of Memory at Trial (thelighthouseproject.ca), Cancel Culture – by Amna Khalid and Jeffrey Aaron Snyder (substack.com), Manitoba lawyers react to call for reverse onus bail changes for knife crimes – The Lawyer’s Daily (thelawyersdaily.ca), Uju Anya on Her Tweet About Queen Elizabeth II (thecut.com), Johnson v Hutchinson: Federal Judges Make Very Bad Amateur Scientists (ballsandstrikes.org), Domestic violence gravy train – Bettina Arndt (substack.com), Benjamin Mendy found not guilty of one count of rape – BBC News, Chief Justice John Roberts defends Supreme Court’s legitimacy | CNN Politics, The Victim Who Became the Accused | The New Yorker, Brooklyn Prosecutors Seek to Throw Out Scores of Convictions – The New York Times (nytimes.com).

Weekly criminal law update – September 6, 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.

To subscribe to the mailing list (link).

  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 concerning case, a youth who had been detained almost 20 years due to a finding of “not criminally responsible” was finally let go: R. v. J.G., 2022 ONCA 622. The overuse of NCR findings continues to be a major problem – see also #1 here.
  3. In a bizarre case, the ONCA grants a Crown appeal of an acquittal and grants a new trial. The trial consisted of video evidence only – what appeared to be a sexual assault due to extreme intoxication: R. v. Tubongbanua, 2022 ONCA 601.
  4. In R v Iwanciw, 2022 ABPC 170, the Crown’s sentencing position of 3 months’ jail “demonstrates a complete lack of understanding of the gravity of the offence” in a criminal harassment case. Applying R v Sidhu, 2022 ABCA 66 (which I dealt with in my first weekly update – #2), Cochard J. applies an 18-month conditional sentence order, with 24-hour house arrest (with exceptions) for the first 12 months.
  5. While a “drafting error” explains why a driving prohibition cannot be imposed for the offence of criminal negligence causing death, a driving prohibition is not available: R. v. Boily, 2022 ONCA 611, para. 43.
  6. A courier for 220 grams of fentanyl and 1 kilogram of cocaine had his sentence reduced from 12 years to 9 years in British Columbia: R v McLean, 2022 MBCA 60 – H/T CanLII Connects. Conviction appeal dismissed.
  7. The More Things Change, the More They Stay the Same: Bail Pending Appeal After R v Oland by Kenneth Grad :: SSRN (briefly noted at #10 last week), “Despite Oland’s clear instruction that the public confidence inquiry should be reserved for exceptional cases, following Oland consideration of public confidence is far from exceptional” – p. 3, and refers to a glaring “widespread misapplication of Oland” – p. 36. I’ve pointed out systemic problems in the area of bail pending appeal countless times now (e.g. 1-3 here, #4 here, #8 here).
  8. A terrific article by Daniel Del Gobbo: “Lighting a Spark, Playing with Fire: Feminism, Emotions, and the Legal” by Daniel Del Gobbo (dal.ca). Deals with carceral state, crime logic, a “neoliberal publicity stunt,” etc. Also on CanLII. See also Ryan Clements’ monthly roundup for August.
  9. Prof. Tanovich’s latest article: A Principled Approach to Assessing the Absence of Motive to Lie in Sexual Assault Cases | CanLII. He appears to suggest that an absence of evidence of motive to fabricate should be conflated with evidence of no motive to fabricate, which is extremely concerning. He states “the reasonable inference that people do not lie under oath about being sexually violated often times by those close to them without a compelling and obvious motive to lie” which is dangerous and irresponsible (and obliterates the presumption of innocence) on its face. He further claims, “the issue is whether a reasonable inference of no motive to lie can be drawn from all of the circumstances of the case” – a troubling finding, particularly when most peripheral details are deemed “irrelevant” and hence inadmissible at trial. I have concerns that he is competing with Prof. Craig to be the most irresponsible academic in the country when it comes to sexual assault – particularly troubling in Tanovich’s case, as he is otherwise considered an authority on the law of evidence and has argued leading cases at the Supreme Court, including R. v. Golden, 2001 SCC 83.
  10. Legal Aid AB CEO should quit over op-ed, say striking defence lawyers | Edmonton Journal, Legal aid lawyers walk picket line at Calgary courthouse | CTV News, Editorial by legal aid president called ‘vile,’ prompts calls for resignation | CBC News, Alberta defence lawyers walk out of Edmonton, Calgary courts as part of latest job action | Globalnews.ca, Criminal defence lawyers walk out of courts to protest of lack of funding for Legal Aid – LiveWire Calgary, Joanna Hardy-Susskind’s Diary: Wigs on the picket line – New Statesman
  11. The Burden of Proof in Sexual Assault | The New Republic, Robed in secrecy: How judges accused of misconduct can dodge public scrutiny (nbcnews.com), Heck v Humphrey: The Supreme Court Keeps Discovering Exciting New Ways to Ignore Police Misconduct (ballsandstrikes.org), Brisbane cabbie bashed after false rape claim, court told (brisbanetimes.com.au), Why does Canada still allow torture here at home? | The Star, Texas 7 death row inmate Randy Halprin may get new trial | wfaa.com, Cultural war moves to libraries as some groups demand removal of books. : NPR.