Weekly criminal law update – Nov. 21, 2022

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  1. In a quick follow-up to Sharma (#7 last week), Trudeau’s Liberal government has moved swiftly to allow conditional sentences for most offences and to cancel most mandatory minimum jail sentences.
  2. Following up to #3 last week, the decision has been released on CanLII: R v Cervantes, 2022 ABCA 363. While the ABCA overturns an SA conviction on grounds of insufficient reasons for conviction by the trial judge (Stevenson J.), one wonders if the Court is not engaging in a bit of whitewashing by mentioning only the “successful” ground of appeal and being extremely brief with its vague reasons (less than 1 page needed for these).
  3. In any event, for another wrongful SA conviction (bringing to mind the #MeToo cultural phenomenon), see R. v. Peters, 2022 ONCA 794 in which the Crown conceded a wrongful conviction (Globe). Again, the reasons here are unfortunately very brief (2 short paragraphs). One wonders if the Court is attempting to cover up for a possible laundry list of errors by the trial judge (Justice C.M. Brochu), prosecutor, etc.
  4. Moving right along, in R. v. D.D., 2022 ONCA 786, yet another wrongful SA conviction is overturned (it is with some relief that I learned that esteemed wrongful conviction advocate Laura Nirider presented at a recent Canadian judicial conference). In this case, the trial judge’s (Justice A.C.R. Whitten) disturbing finding was that “[the complainant’s] evidence has the quality of a child bearing witness to a progressive sexual abuse by herself [sic]. There are plenty of childlike details such as taste, the sound of photographs; [sic] the sound of the zipper, the yellow couch, and the concrete floor and the puddles of semen on the floor, which are so compelling, there is no reasonable doubt as to what she attests to” (para. 7). The main problem was found to be that the complainant was an adult at the time of trial (not a child) – rather than the fact that the reasons betray a presumption of guilt on the part of the judge (paras. 8-9). Again, in what appears to be a whitewash, it is “unnecessary to address the remaining grounds of appeal that were argued” (para. 10).
  5. In a fourth consecutive wrongful SA conviction (a record, to date – I hope), the conviction is overturned on the ground of insufficiency of reasons given by the trial judge (Justice G. Wakefield). Thankfully, the other 4 grounds of appeal are enumerated (para. 8), although they are also “unnecessary” to address given the finding on the first ground: R. v. J.N., 2022 ONCA 776, at para. 9. Does anyone still think a SA trial should be held before a judge without a jury? SCC – take note.
  6. Shaigec J. refuses to impose jail time in default of payment of a traffic fine, due to accused’s impecuniosity: R v Fisher, 2022 ABPC 232.
  7. Conviction for contempt of court a “miscarriage of justice”: R v Burles, 2022 NWTCA 3, at para. 12 (Lawyer’s Daily). Judge D.F. Molloy dealing with judicial discipline in unrelated matter.
  8. Ogle J. rules that sexual exploitation and sexual assault are separate offences for “Kienapple” purposes (noting conflicting caselaw), but that the sentences should be concurrent – R v MG, 2022 ABPC 222, at paras. 6, 15.
  9. Following up to #12 last week, in the Harnett case, it appears Justice Loparco made the correct decision: R v AM, 2022 ABKB 754. See para. 209, “Regardless, the plan to flee or the reason behind it does nothing to help answer the question of his subjective intent for murder during the third segment of the flight – namely the 21 seconds after the Vehicle leaves the berm.” Also, para. 250. Note that the defence previously tried unsuccessfully to move the trial out of Calgary due to the intensity of the media coverage and public outrage (para. 12).
  10. A conviction is overturned on Charter grounds: a driver is detained for driving an unregistered vehicle. The passenger’s bag is then search for “inventory purposes” resulting in finding drugs: R. v. Myers, 2022 NSCA 69.
  11. Accused is acquitted of human trafficking, due to insufficient evidence of exploitation; “the Crown has not proved beyond a reasonable doubt that the Complainant had a reasonable concern for her safety”: R v Harris, 2022 ABKB 759, at para. 9, 55.
  12. Following up to #13 last week, apparent racial undertones seem apparent: R v Al Aazawi, 2022 ABCA 361 (initial sentence nearly quadrupled). See, for example, “Through no fault of her own and in circumstances no child can control, a distressed and homesick little girl began to mirror her father’s dissatisfaction with, and extreme attitude toward, her mother. Mr. Al Aazawi did not act in ZA’s best interests. He exploited his position of trust and authority with ZA and placed his notions of honour and his misogynistic view of Ms. Mahdi first. That view has no place in Canadian society” (para. 77). This would appear to reflect the Court speculating, assuming and putting its “spin” on events – correct or otherwise. I am hopeful that this is appealed further, as it appears to be inconsistent with Friesen ­– of course, Friesen also cited in support of the decision (para. 92). Wakeling J.’s concurring opinion states that the “starting point” for this offence should be 10 years (para. 165).
  13. 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.
  14. Legal Aid strike: Manslaughter and child custody cases at risk over legal aid job action, say judges | CBC News, Alberta family lawyers to form association amid legal aid job action | CBC News, Opinion: Without legal aid boost, Albertans will fall through cracks  | Calgary Herald, How Ontario can save money by investing in legal aid for at-risk people | The Star.
  15. Wrongful Conviction Watch™: Trial by Fire | The New Yorker (2009 article about blatant Texas wrongful conviction and execution – minimal follow-up here), Saskatchewan Justice department seeks to muzzle media in sisters’ case (aptnnews.ca), 188 Convictions Tied to Discredited N.Y.P.D. Officers Are Tossed Out – The New York Times (nytimes.com), Police Used 911 Call Analysis to Arrest a Mother on Murder Charge — ProPublica, Repeated police misconduct cost taxpayers $1.5 billion in settlements – Washington Post, The Long Fight for Justice (Voices of the Innocent 2022) – YouTube, To avoid Rikers, the innocent might plead guilty – New York Daily News (nydailynews.com), Special Prosecutor Alleges Racial Bias Tainted Kevin Johnson’s Prosecution | St. Louis Metro News | St. Louis | St. Louis Riverfront Times, Prosecutors drop another murder case handled by former Chicago Police detective Reynaldo Guevara – Chicago Sun-Times (suntimes.com), Arizona Executes 76-Year-Old Man after Refusing DNA and Fingerprint Testing | Death Penalty Information Center, No Such Thing as “Progressive Prosecutors” | Beyond Criminal Courts (beyondcourts.org), What Happened to Brendan Dassey – After Making a Murderer 2022 Update – Gazette Review, rabia O’chaudry on Twitter: “@EfrayimMoldofs1 @AlbertaJSG @innocence @InnocenceCanada @itsjasonflom @EvidenceProf It’s been 23 years I still can’t get the full files from the Baltimore county police on Adnan’s case. Yes, it’s completely typical.” / Twitter.
  16. : How working on prison executions harms people and changes their views : NPR, Lawyer fumes over London jail inmate’s death – the 21st since 2009 | London Free Press (lfpress.com), John Hale on Twitter: “My volume of sex assault trials has been creeping up over the years. The time taken up on these trials has increased exponentially, thanks largely to the s. 278.92 regime that requires complex applications to be brought pre-trial. A couple of thoughts from a trial lawyer. /2” / Twitter, Hobby Lobby Leak: Sam Alito Is Exactly Who You Thought He Was (ballsandstrikes.org).

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