Weekly criminal law update – Nov. 11, 2022

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  1. Check out my recent blog posts: Part 2 – 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.
  2. In a terrific case, the ONCA overturns a conviction on grounds of uneven scrutiny: R. v. B.T.D., 2022 ONCA 732. There were misapprehensions of evidence, as well as “clear” judicial uneven scrutiny found – “the trial judge [Kelly Byrne, J. ONSC] showed a tolerant and relaxed degree of scrutiny of the complainant’s evidence, as compared to the harsh lens that she trained on the appellant’s evidence” (paras. 53, 61). Lack of proven motive to fabricate had somehow helped the Crown – another common and inexcusable error (para. 84). Stunningly, quantity of details was a makeweight for the complainant’s credibility, but had the opposite effect on the accused’s (paras. 34, 61). The complainant’s suppression of certain text messages were problematic, too (para. 50 – no mention of absence of evidence concerns or state misconduct in not obtaining a proper copy of the texts). The trial judge reversed the burden of proof and engaged in “unexplained selective excerpting” of text messages (paras. 67, 73 – note that accusing a trial judge of “cherry picking” was adjudged to be “well beyond the pale” at paras. 8, 10 of R v Saddleback, 2022 ABCA 27). Another must-read for the judiciary and Crown. A nice sequel to #8 (R. v. S.G2022 ONCA 727). My tweets here. Judge properly criticized here.
  3. Similarly, in Cervantes, the ABCA overturns an SA conviction: New trial ordered for two Calgary men in gang-rape case | Calgary Herald. The successful ground of scrutiny was insufficient reasons – the Court likely avoiding the uneven scrutiny angle. Interestingly (and likely properly), ineffective assistance of counsel was not argued, despite the trial judge claiming there was such an issue (claiming Browne v Dunn concerns at para. 73, R v Cervantes, 2021 ABPC 169). Also, the same trial judge that I impugn below (under Wrongful Conviction Watch™ and previously). As the appeal decision is not yet on CanLII, I am hopeful of an update next week, presuming the decision is published by then. My tweets. Excellent work Prof. Sankoff and Andrea Serink.
  4. In another shocker for the ABCA, a first-degree murder conviction is overturned: R v Kebede, 2022 ABCA 353 (media). Evidence led by the Crown to prove first-degree murder may have been “equivocal and speculative” (para. 23).
  5. In R v Tsang, 2022 BCCA 345, another SA conviction is overturned due to stereotypes and mistakes against the accused. The trial judge’s “assessment of the evidence in this regard is affected by implicit, unsupported assumptions about “normal behaviour”” (para. 53). The “assumption that he would not have abstained from unprotected sex because he was a “controlling” person, in my view, is unsubstantiated, untethered to the evidence and a prejudicial stereotype” (para. 65). Further, the trial judge mistakenly characterized the expert opinion as injuries that were “inconsistent” with consensual sex (para. 101). Given the laundry list of errors found, uneven scrutiny can be avoided altogether (para. 115). Relies heavily on Kiss, Cepic, MacIsaac and other excellent ONCA jurisprudence.
  6. Evidence of prior flirting was not relevant in this case, and was properly dismissed at the s. 276 application, although “flirting and forms of physical contact could have significant probative value” (para. 50, R. v. O.F., 2022 ONCA 679 – H/T P. Sankoff’s latest Beacon). Not entirely sure I agree with ONCA’s conclusion at para. 54 that this was improper and its invocation of “twin-myth reasoning” (at paras. 57, 60). Similar to R. v. T.W.W., 2022 BCCA 312 (briefly mentioned at #13).
  7. In a disappointing follow-up to Ndhlovu (#3), the SCC narrowly upheld the constitutionality of the Harper-era removal of conditional sentence for serious offences in R. v. Sharma, 2022 SCC 39 (141 pages). Widely criticized by defence bar and academics – primarily on s. 15 (equality) Charter grounds. It appears the Trudeau government is going to (hopefully soon) bypass this decision with Bill C-5. With the recent retirement of Moldaver J., it is very likely the decision would have gone the other way were it heard now.
  8. In a concerning ABCA decision, Justices Slatter, Strekaf, and Feehan dismiss an SA conviction appeal. “Although the closing statement of Crown counsel was problematic and improper in some ways” plus an absence of Crown evidence, the conviction appeal is dismissed: para. 35, R v EF, 2022 ABCA 366. My tweets. Note that “folksy” Crown arguments were also a problem, downplayed by ABCA majority in R v BEM, 2022 ABCA 207 (blog).
  9. An absence of evidence is an important factor to consider by the trier of fact – R. v. Harris, 2022 ONCA 739, at para. 131. H/T P. Milczarek. Seems contrary to EF, above.
  10. In even more disturbing ABCA jurisprudence, Wakeling JA claims that “An applicant convicted of a serious crime who applies for bail pending appeal must demonstrate that his or her appeal is more likely to succeed than fail” (emphasis added, at paras. 3, 23 – R v SDH, 2022 ABCA 367). This is a blatant error, where the test is properly that the applicant merely needs to show the appeal is “not frivolous” – 679(3). Wakeling J. was previously specifically chastised (gently, unfortunately) on this very point in R. v Sidhu, 2015 ABCA 308 by a panel of the ABCA (at para. 13). I have been complaining about this sort of thing for years, as have others. The decision is simply unconscionable. May be a worthwhile case for the Canadian Judicial Council to intervene. My tweets.
  11. In R. v. McLenachan, 2022 ONSC 6202, Schreck J. overturns a conviction on grounds of ineffective assistance of [very senior] trial counsel, primarily finding that counsel had engaged in “sexually inappropriate behaviour” with the accused (para. 132). See media (non-paywalled). Well done appellate counsel Sherif Foda and Emily Dixon.
  12. Looking forward to reviewing the reasons (when published) acquitting a young accused of murder (convicting on manslaughter) of Cst. Harnett, a Calgary police officer who was tragically killed when the driver tried to escape. Lots of uncivil (and likely unjustified criticism) of the judge’s decision by police, and surprisingly, featured prominently in local media See tweets.
  13. In another ABCA decision, I look forward to reviewing the successful Crown sentence appeal in R. v. Al Aazawi, [2022] A.J. No. 1333 when it’s released on CanLII (initial sentence tripled) – particularly Wakeling JA’s concurrence. My tweets. Note disturbing local media coverage, per usual.
  14. Evidence excluded due to Charter breaches: R. v. Robertson, 2022 ONSC 5795. A traffic stop which was really an impromptu investigation into drug trafficking was not Charter-compliant. McCarthy J. finds that “I conclude that what was really happening on the morning of February 7, 2020, was an investigation, perhaps impromptu, but nonetheless real, into potential drug trafficking. Perhaps, it was an investigation which lacked sufficient evidence to support a warranted stop, seizure, and search of the vehicle.  It nonetheless raised the tantalizing prospect of finding drugs if an HTA basis could be relied upon to stop a vehicle in which a known drug dealer had just been spotted” (at para. 26). This led to a “cascading effect” (para. 29), resulting in further breaches of s. 10 (right to counsel) and s. 8 (unreasonable search).
  15. An excellent acquittal by Fradsham J. on tickets for a pastor’s failure to enforce distancing rules in a church during COVID, due to a lack of evidence and baseless assumption that the pastor was required to enforce the order for other people (R v Stephens, 2022 ABPC 220, at paras. 54-55).
  16. In R v Rai, 2022 ONCA 703: “misadvised by counsel, accused pleaded guilty to driving offences without being aware of automatic, indefinite licence suspension under provincial law. Illustrative of how hard it is to set aside pleas, Court finds no reasonable possibility he would have done differently had he known.” Lifted directly from Ryan Clements. See also Sara Little.
  17. Guilty pleas quashed where accused not present at important parts of in-chambers discussions: R. v. S.M., 2022 ONCA 765. Self-represented appeal – Dan Stein volunteering as amicus. Sara Little’s summary.
  18. In R v Solivio, 2022 SKCA 117, an SA conviction appeal is dismissed. Significantly, it states, “There is also case law that supports the idea that a trial judge may take into account the length of time a youth spends on the stand as an aspect of the required common-sense approach” (para. 48) and “mental or physical exhaustion may play a role in assessing both demeanor and credibility” (para. 50). Worth using for defence and adult witnesses, too.
  19. Conviction overturned for “obstructionist” self-represented accused, who was excused from the courtroom, and subsequently convicted without the opportunity to present a defence: R. v. Viau, 2022 ONSC 5825.
  20. In R v Braima, 2022 ABKB 708, Woolley J. finds that the accused is not guilty as a party to manslaughter, despite “middling” a drug transaction gone wrong (another individual in the car – identified by a pseudonym only likely for the safety of the accused) appeared to shoot the deceased to rob him of $1,000 – para. 51).
  21. Ryan Clements – October roundup (September’s) – I wish he’d continue posting on his website.
  22. Wrongful Conviction Watch™: Bone Valley: Chapter 9 | Coming Clean on Apple Podcasts, Not on Record Podcast (Neuberger/Davison) EP#41 | Double Standards in Court | Lawyers RANT – YouTube, Appeals court denies death row inmate Richard Glossip’s request for hearing on new evidence (msn.com), Pulitzer-winning author says podcast clears Leo Schofield in wife’s 1987 murder (tampabay.com), Title IX: Biden Changes Mean Return to ‘Dark Ages’ for Falsely Accused Students | National Review, America’s Sexual Red Scare – TK News by Matt Taibbi (substack.com), Academe Is a Hotbed of Craven Snitches (chronicle.com), Laura Kipnis’s Endless Trial by Title IX | The New Yorker, Peter Ellis, the Creche Case & Me | Newsroom, SCC denied leave to appeal in a case that I had previously strongly criticized, and have significant concerns that it is a wrongful conviction: Calgary doctor won’t get to appeal rape conviction to nation’s top court (msn.com).
  23. Misc.: Closely divided court scrutinizes various provisions of Indian Child Welfare Act – SCOTUSblog, Legal group raises concerns about prisoner review system – The Globe and Mail, ‘Middle-finger stunt’ and a judge’s hug raise ethics issues in Parkland, Florida, school shooter’s trial (abajournal.com) – my tweets here (see also), Peel police Tasering autistic teen ‘big failure,’ says father | The Star, ‘You did it to yourself,’ officer tells 9-year-old girl pepper-sprayed by police in newly released video (nbcnews.com), Revealed: Four Supreme Court justices attended right-wing gala — risking the credibility of the court (msn.com).

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