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.


One thought on “Weekly criminal law update – September 28, 2022”

Leave a Reply