I’ve missed a few weeks. My apologies.
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- Check out my recent blog posts: Manufacturing Guilt: Wrongful Convictions – Moldofsky Law, Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding – Moldofsky Law, Ghomeshi, Guilt and Gullibility – Moldofsky Law, and The train wreck that is Legal Aid Alberta – Moldofsky Law.
- After the recent drama in Schneider (discussed at #1 here), roundly criticized by the defence bar for its reduced emphasis on context – contrary to its recent position in JJ, the SCC came out with R. v. Tessier, 2022 SCC 35. Appallingly, the ABCA’s ordering of a new trial was overturned on the basis that the accused’s confession to police – absent a caution and when not a suspect – was admissible. See Canadian Lawyer.
- In perhaps the most exciting SCC decision of the year so far (in a pretty good year for the SCC), the Court decided (a narrow 5-4 majority) that the mandatory SOIRA (sex offender) registration for anyone committed of any sexual offence is unconstitutional: R. v. Ndhlovu, 2022 SCC 38 (Lawyer’s Daily). Unfortunately, Parliament is likely to immediately “salvage” it with slightly-tweaked legislation to quell the anticipated uninformed public outcry (e.g. see this idiocy from a lawyer) – as encouraged to do so by the Court. In better news, the long-awaited Sharma decision is being release this Friday!
- Stay of proceedings granted where police videotaped accused using washroom without notice, and Crown subsequently played the video in court, “an affront to human decency and dignity” – para. 5, R. v. Simpson, 2022 ONCJ 262.
- In an interesting Garofoli application, Champion J. concluded that “The ITO is thus neither sufficient nor adequate evidence that would have justified the issuance of the warrant” (R v Daigle, 2022 ABPC 202 at para. 85). Weaknesses included “bootstrapping” opinion evidence from landlord, poor-quality images, lack of precision, a “vague and undetailed” tip, identification without explanation, etc. (paras. 36-75).
- Whitling J. finds that a conceded right to counsel breach was blatant, yet insufficiently egregious to justify a stay of proceedings (R v Campbell, 2022 ABKB 663, at paras. 18, 115).
- In R v Hoggard 2022 ONCA 728, appeal bail is granted fortunately. However, the charges are called “extremely serious” – a questionable finding given Oland, and the appellant is improperly compelled to hurry the conviction appeal (paras. 10, 13). The Crown concedes the appeal is arguable and “not frivolous,” (but just “barely” so – para. 8).
- An excellent case on SA myths is R. v. S.G. 2022 ONCA 727. In this appeal, Doherty, Benotto and Copeland JJ.A. bravely overturn an SA acquittal (for now, anyway) on a misapprehension of evidence by the trial judge (Dellandrea J.). essentially, the judge found there were no material inconsistencies between the complainant’s prior affidavit and trial testimony. The other mistake was misunderstanding the timing of the complaints. Importantly, and contrary to R. v A.R.D., 2017 ABCA 237 (affirmed by the SCC), it states what should not be controversial: “D.D. does not stand for the proposition that timing of disclosure is irrelevant to credibility. Rather, any issues of timing of disclosure must be assessed in the context of the trial evidence as a whole” (para. 43). Are you listening, ABCA and SCC?
- In an interesting SA conviction, Jeffrey J. finds that numerous inconsistencies in the accused’s versions of events is fatal to his credibility and reliability (interestingly enough, inconsistencies in complainants’ versions generally are often chalked up to “trauma”). Also, the complainant was incapable of consent due to her degree of intoxication – a finding that may be vulnerable on appeal: R v Hofley, 2022 ABKB 679.
- Concerning conviction by Sihra J. on non-major SA in R v Del Rosario, 2022 ABPC 183 despite numerous inconsistencies in complainant’s testimony.
- A courageous acquittal by Pharo J. in child SA allegation where there were significant problems and inconsistencies with the evidence of each of the complainants as well as the accused: R v DWC, 2022 ABPC 216.
- A hate crime against Muslim women netted a total of a 16-month jail sentence. While I don’t quibble with the reasoning or result (generally, although language like, “The Muslim community is looking to this Court for justice” is somewhat concerning – para. 114), the Crown recommended 8-10 months for the hate crime, and the judge “jumped” it by going with 12 months: R v Stevens, 2022 ABPC 213 (para. 148) – without notice and contrary to the law, as recently re-affirmed in R. v. Nahanee, 2022 SCC 37.
- Conviction overturned in impaired case where officer handcuffed accused unnecessarily: R. v. Vine, 2022 ONSC 3297.
- Criminal charges for defacing a Nazi statue in Alberta: Edmonton journalist accused of vandalizing statue vows ‘vigorous defence’ (msn.com).
- R v Royal, 2022 ABCA 330 – Court of Appeal quashes contempt conviction for Edmonton lawyer who refused judge’s mask order | Edmonton Journal. Also, Former Alberta justice minister’s contempt conviction tossed on appeal | Edmonton Journal.
- Legal Aid strike(s): Calgary Remand Centre inmates say defence lawyer job action leaving them stuck in custody | CBC News, Criminal Lawyers’ Association calling on Ontario for more funding for legal aid | CP24.com.
- Wrongful Conviction Watch™: Abuse, Chaos and Cruelty in Louisiana Juvenile Detention – The New York Times (nytimes.com), Andre Thomas: Civil Rights Always Yield to the American Legal System’s Bloodlust (ballsandstrikes.org), ‘They ruined my life’: Ontario mother to sue OPP over 1st-degree murder charge | Globalnews.ca, Maurice Hastings, California man imprisoned for 38 years, is freed after DNA evidence points to different person – CBS News, Feminist Witch-Hunts in Academic Philosophy (empowerinnocent.wixsite.com), 3 men imprisoned for 28 years freed after judge vacates murder convictions – ABC News (go.com), Child sex trial based on ‘oath vs. oath’ – The Lawyer’s Daily (thelawyersdaily.ca), Not on Record Podcast (Neuberger/Davison) EP #37 | The Dirty Words of Sex Assault Trials – YouTube, Baltimore prosecutors drop charges against Adnan Syed, as last-ditch DNA tests exclude him – Baltimore Sun, Adnan Syed is finally home with his family. Let’s reunite others unjustly incarcerated with theirs. | by The Council on American-Islamic Relations (CAIR) | Sep, 2022 | Medium, Woman jailed after domestic abuse lies put ex in prison – BBC News, A Prosecutor’s Change of Heart in a Capital Case at the Supreme Court – The New York Times (nytimes.com), Citing ‘overwhelming and outrageous’ errors by prosecutors, East Bay judge throws out child sex abuse case (mercurynews.com) (“The judge blasted the “overwhelming and outrageous” failures by prosecutors and chided Oakland police investigators for “careless handling” of reports that still couldn’t be located at the time of dismissal”), Jay Willis on Twitter: “The prosecutor asked members of the all-white jury if they were willing to “take the risk” that a Black defendant, if found not guilty, would “ask your daughter out, or your granddaughter out.” Again, his lawyers did not object. Again, totally fine, says the Supreme Court. https://t.co/7KzusKcv61” / Twitter.
- : Appeal filed against Alberta Review Board ruling that Matthew de Grood still a risk | Globalnews.ca, Racial profiling: Quebec judge orders end to random traffic stops | CTV News, Gulley v. Kansas: The Supreme Court Is Breaking Its Promises to Children In the Criminal Legal System (ballsandstrikes.org).