Weekly criminal law update – Nov. 27, 2022

My strengths are in written, oral and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.

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  1. Improper Calgary Crown closing submissions apparent here: “And she said the accuser had no motive to make up allegations against his former coach 3 1/2 years after last playing for him.” Jurisprudence is fairly clear that absence of evidence of a motive to fabricate is not evidence of absence – see e.g. R. v. B.T.D., 2022 ONCA 732, at para. 84 (dealt with at #2 here). My tweets. Crown is a 2009 call.
  2. Despite serious mistakes (Crown suggesting accused tailored his evidence to the disclosure, judge suggesting jury should find facts before engaging with the law, and the Crown telling the jury that accused fabricated his evidence to avoid a murder conviction), ONCA somehow upholds a murder conviction: R. v. Hayles-Wilson, 2022 ONCA 790. The flimsy conclusion reached by Nordheimer, Gillese, Sossin J.J.A. is that “In the end result, I am not satisfied that the trial judge’s errors in these three respects, in an otherwise fault-free trial, served to undermine the integrity of the verdict reached” (para. 40). Certainly, this should be appealed further. Note para. 19: “Given the numerous times that this court has made the point about it being improper for Crown counsel to suggest that an accused person has tailored their evidence to fit disclosure or the trial evidence, it is a mystery to me why some Crown counsel persist in doing so.” Sara Little’s summary here.
  3. Section 278 application dealt with here. Not sure whether conclusion that evidence of cheating shouldn’t be relevant in the context of a motive to fabricate, as was found here: R v DK, 2022 ABPC 240, at para. 46.
  4. Defence application to re-call Crown complainant for further cross-examination (mid-trial change of counsel) denied where lines of cross-examination not proffered, and no Browne v Dunn need for it: R v. Raymond, 2022 ABPC 238.
  5. Mistrial ordered on 3rd SA trial (see here for a previous mistrial ruling this year for the same matter with the same Crown on the file – W. Dawson, K.C., a 40-year call) due to poor Crown closing submissions (presented and relied on facts not in evidence – specifically prohibited previously by judge, some 12 examples of where Crown relied on stereotypical reasoning, used defendant’s right to be present at trial against him, improperly insinuated that defence counsel had relied on myths, suggested complainant had no motive to lie – see #1 above, a “grave mischaracterization” of accused’s statement to police – that complainant “just laid there” when he was clear that she had enjoyed herself, and misrepresenting the police statement as if it had been evidence led by the Crown). Fourth time’s the charm, eh? R v Cartwright, 2022 BCSC 1971. H/T Alan Gold’s NetLetter.
  6. Another important SA decision (re: after-fact conduct, para. 87) courtesy of Alan Gold: R. v. Koge, 2022 NSPC 37. Again, improper Crown submission of “no motive to fabricate” (para. 67). It was entirely a “he said she said” trial – she alleged some sexual touching and he denied all of it. Russell J. finds that the evidence of the next morning is essentially collateral and irrelevant (paras. 74, 52-59). Includes a concerning adoption of largely wrong decision of R. v A.R.D., 2017 ABCA 237 at paras. 86-87. A very close (arguably unnecessarily microscopic) review by Russell J. of the accused’s evidence gave no reason to disbelieve it (para. 116), while the complainant’s “evolving” narrative led to some tentative concerns about her “reliability” (paras. 145, 131). A very cautious approach, with the obviously appropriate result. A win’s a win, I suppose? Regarding absence of evidence of a motive to fabricate, the Court states unequivocally: “It is impermissible for this Court to move from an absence of evidence that the complainant had to motive to fabricate to the conclusion that the complainant must be telling the truth” (para. 140).
    At paras. 80-81, regarding after-the-fact conduct (complainant participating in SA medical examination, which offered no evidence helpful to the Crown:

    The fact that a complainant pursues a complaint does not lockstep equate it to the guilt of an accused. This would effectively shift the onus of proof from the Crown to the accused.
    The reality that A.B ultimately agreed to participate in what was described as a physically invasive and emotionally intrusive sexual assault examination may be supportive of credibility. However, it is certainly not determinative.

  7. Court of Appeal rejects ‘insufficient’ reasoning of trial judge, overturns sex assault conviction – The Lawyer’s Daily (thelawyersdaily.ca) – refers to R. v. J.N., 2022 ONCA 776, which I dealt with at #5 last week. The only ground of appeal “necessary to address to overturn this wrongful conviction was “insufficient reasons.” The “trial judge seemed to go out of [his] way to immunize the complainants’ evidence from meaningful credibility examination,” according to Michael Spratt – a rather damning indictment of the trial judge, possibly not at all uncommon in this #MeToo era.
  8. The concept of “adoptive admission” (e.g. not challenging an accusation received via text message) is considered in R. v. Gordon, 2022 ONCA 799 (e.g. at para. 54, “The jury was told to take a cautious approach to considering the adoptive admission, that a party’s failure to take issue may be ambiguous, and to consider other explanations”).
  9. Crown conviction appeal allowed where trial judge took “piecemeal” approach to assessing the evidence: R. v. Abdelrahman, 2022 ONCA 798.
  10. 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.
  11. Wrongful Conviction Watch™: Michael Politte, Missouri man convicted as a teen of murdering his mother, says the real killer is still out there – CBS News, He Was Wrongly Imprisoned at 16. Eight Years Later, He Walks Free. – The New York Times (nytimes.com), Sask. Sisters jailed for murder meet again after 18 years – SaskToday.ca, Muzzling media does not help right the wrongs of past failures of justice: CAJ (yahoo.com), Why Did the Justice System Target Aaron Swartz? – Rolling Stone, Wrongful imprisonment leads to $45 million lawsuit award for Ohio man (usatoday.com), Jake Tapper: My Father’s Quest to Free C. J. Rice – The Atlantic, The Kevin Johnson story | Guest Columnists | stlamerican.com, Kevin Johnson’s attorneys, special prosecutor ask Missouri Supreme Court to stay execution • Missouri Independent, Missouri 19-year-old can’t watch her father’s execution, judge rules (nbcnews.com), Public defenders say Queens DA’s evidence sharing practices violate spirit of discovery reform — Queens Daily Eagle (queenseagle.com), Brush principal faces prison for investigating student sexting (coloradosun.com), Exclusive: Under oath, Little Rock narcotics officers say they destroyed evidence, routinely violated the Fourth Amendment (substack.com).
  12. Misc.: The Judge and the Case That Came Back to Haunt Him – The New York Times (nytimes.com), ‘No use for inmates:’ Former jail guard gives inquest insight into culture | London Free Press (lfpress.com), Investigative delay hits two years for youth who claims head injury from Edmonton police (msn.com), Alabama Woman Jailed for Using Drugs During Pregnancy Wasn’t Even Pregnant (jezebel.com), Freedom Convoy lawyer booted out of Emergencies Act inquiry | National Post, Katie Meyer’s suicide should be blamed on Michele Dauber, Stanford and the Department of… | by Claire Best | Nov, 2022 | Medium, Why Wasn’t Emma Roberts Canceled After Her Altercation With Evan Peters? (thethings.com), Videos showing jail guards punching inmate played in court after failed bid to hide them | CBC News, Officers at encampment rally | The Star, No guards will face trial in inmate beating caught on video | Miami Herald, Attorney-General Doug Downey’s regrettable habit of enabling Premier Doug Ford’s worst instincts | The Star, Opinion | The Search for Beauty in a Prison Cell – The New York Times (nytimes.com).

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