Weekly criminal law update – Oct. 9, 2022

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  1. Brand new SCC decision in R. v. Schneider, 2022 SCC 34, overturning a murder acquittal on the basis of hearsay (overheard “confession” devoid of context), appearing to distinguish (or overrule) its previous decision in R. v. Ferris, 1994 CanLII 31 (SCC). See Lawyer’s Daily.
  2. Appeal bail granted by Veldhuis J. on serious convictions of child SA, where the trial judge appeared to have rejected the appellant’s description of an unrelated incident and hence rejected the appellant’s denial of the substantive allegations: R v JDC, 2022 ABCA 304 (para. 11).
  3. Unsurprising result: Alberta Crown appeal allowed where sentencing judge undercut joint submission of 2 years jail and imposed non-custodial sentence for drug trafficking, where CSO not yet available as I note here: R v Sharifi-Jamali, 2022 ABCA 322. Surprising that ABCA did not wait until SCC releases its imminent decision in Sharma. Wondering if there will be “pre-Sharma” drug sentencing cases, as we now refer to “pre-Friesen” child SA cases. A good contrast with v. Ellis, 2022 BCCA 278 (I deal with at #8 here; see Suspended sentence for drug dealer ‘demonstrably unfit’: appeal court | Calgary Herald and Fentanyl jail terms a Dickensian error walked back by B.C. court | Vancouver Sun).
  4. In another concerning Crown sentence appeal, a sentence of 90 days jail for domestic assault causing bodily harm is overturned and replaced with 9 months. Among the issues is disagreement as to the facts – the accused appeared to claim it was a mutual fight, for the most part, while the Agreed Statement of Facts was less clear about this: R v Drews, 2022 ABKB 658.
  5. Conditional discharge not granted (probation instead) for non-major SA charge, despite immigration consequences (non-PR): R v Hadni, 2022 ABPC 195.
  6. A nice acquittal in R v Kajita, 2022 ABPC 201 – Stevenson J. with E. Ryland as defence counsel. For another nice acquittal by the same judge and defence counsel, see R v L.A., 2022 ABPC 199 – dealt with at #4 last week.
  7. Another acquittal in R. v. Ackerman, 2022 ONSC 5381. Massage therapist accused of SA against 4 different clients – inconsistencies in narrative and the “totality of the evidence” (para. 126) were fatal to the Crown’s case.
  8. September 2022 Summaries — LITTLE LEGAL, Cross Country Noteup – Criminal Appeals from September 2022 | CanLII Connects, The Defence Toolkit – October 8, 2022 – Sitar & Milczarek (sitarmilczarek.com).
  9. Defence lawyers indict province’s legal aid funding hike | Calgary Herald, The maddening irrelevance of Charlie Vaughn’s innocence (substack.com), -Supreme Court Term Preview: Just Call the Justices “Republicans” and “Democrats” (ballsandstrikes.org), Mother forced to give birth in filthy Maryland jail cell as nurses laughed at her, lawsuit claims (msn.com), Vancouver Police Board settles over handcuffing of Indigenous man, granddaughter (msn.com), Size of Alberta class action on bail hearing delay ‘well in excess’ of 17,000 people, lawyer says – The Lawyer’s Daily (thelawyersdaily.ca), Supreme Court May Make Acquitted Conduct Sentencing Illegal (reason.com), The Law Garage: Rebecca McConchie and Lindsay Board: “In terms of JJ, I felt disappointed but also invigorated in the sense that I was thinking ‘okay, well what next?'” (fireside.fm), What would retired justice Moldaver say? – The Lawyer’s Daily (thelawyersdaily.ca), Sex offender post-incarceration program imperilled | Eileen Henderson and Cliff Yumansky – The Lawyer’s Daily (thelawyersdaily.ca),
  10. 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.

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