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.

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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 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.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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