Moldofsky Law

Another Disturbing Criminal Law Decision from the Alberta Court of Appeal – R v Sumner, 2019 ABCA 399 (CanLII) – Starting Point Sentencing

I noticed another disturbing criminal law decision from the Alberta Court of Appeal this week. This time, it’s about starting point sentencing.

By way of brief introduction, starting point sentencing has become very popular in recent years – particularly with the Alberta Court of Appeal (see, for example, R. v. Arcand, 2010 ABCA 363 (CanLII), R v Hajar, 2016 ABCA 222 (CanLII), and R v Godfrey, 2018 ABCA 369 (CanLII)). While it has come under intense criticism from some – see, for example, the “lone wolf” brutal criticism of the approach – and the Court itself, including the Chief Justice of Alberta, no less – by our Court of Appeal’s now-retired Justice Berger in R. v. Gashikanyi, 2017 ABCA 194 (CanLII). Also, Clayton Ruby’s harsh critique of the approach in his seminal text Sentencing: 9th edition – see §23.15 through §23.20 (available with QuickLaw subscription here), where he begins with “Notwithstanding the rather strong language in Proulx, the Alberta Court of Appeal refuses to view starting points as mere guidance.”

Prior to Justice Berger’s scathing words in Gashikanyi, his decisions in R v Legerton, 2015 ABCA 79 (CanLII), and R. v. Kain, 2004 ABCA 127 (CanLII) were similar. For a reasoned discussion of the issue of starting point sentencing, see Prof. Lisa Silver’s blog post: Sentencing to the Starting Point: The Alberta Debate.

R v Godfrey, 2018 ABCA 369 (CanLII – mentioned previously) is an excellent example of the problem of starting point sentencing in Alberta. In it, the Alberta Court of Appeal overturns an excellent decision by Prov. Ct. Judge Brown, where she sentenced drug offenders to a 90-day sentence. The Court of Appeal held that she did not pay enough attention to the 3-year starting point, and was not justified in deviating from it to such a large extent. Instead, it imposed a 21-month and 18-month sentence on the separate offenders. Unfortunately, the decision did not get appealed further. Note Justice O’Ferrall’s very strong dissent with the majority in the decision (para. 23 onwards).

R. v Chase, 2019 NSCA 36 (CanLII) is an excellent example of a case with very similar facts that went in a very different direction – outside of Alberta. The Nova Scotia Court of Appeal heard almost identical circumstances as the Alberta Court of Appeal did in Godfrey, but instead unanimously upheld the trial judge’s sentencing decision.

This takes us to the recent Alberta Court of Appeal decision – R v Sumner, 2019 ABCA 399 (CanLII). A drug offender was sentenced to 12 months of prison at the trial level. On a Crown sentence appeal, the Court of Appeal unanimously decided (in a brief 15-paragraph memorandum, mind you) that the sentence was unfit for not complying enough with the same 3-year starting point, and instead imposed a 30-month sentence. I have emailed defence counsel on this case to find out if he’s appealing the decision to the Supreme Court of Canada (the deadline for filing would likely be mid-November), but I have not yet heard back from him.

This disturbing trend – particular to Alberta’s Court of Appeal – belies a draconian approach to sentencing that tolerates little deviation from starting points. Although mandatory minimum sentences (imposed by Parliament) are routinely struck down by trial courts as unconstitutional, starting point sentences imposed by an appeal court are binding on all lower courts – subject to reversal by the Supreme Court of Canada only. It’s about time this issue was brought before the Supreme Court of Canada to decide this contentious issue for once.

Of course, the Supreme Court of Canada had already decided the issue in Proulx, among other cases. Perhaps it’s time to “re-decide” the issue – particularly when rogue Courts of Appeal refuse to follow its direction. I’ll end by quoting Chief Justice Lamer in Proulx (emphasis added):

(b)  A Need for Starting Points?

86                An individualized sentencing regime will of necessity entail a certain degree of disparity in sentencing. I recognize that it is important for appellate courts to minimize, to the greatest extent possible, “the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada”: M. (C.A.), supra, at para. 92. Towards this end, this Court held in R. v. McDonnell, [1997] 1 S.C.R. 948, that “starting point sentences” may be set out as guides to lower courts in order to achieve greater uniformity and consistency. I am also acutely aware of the need to provide guidance to lower courts regarding the use of the conditional sentence, as it is a new sanction which has created a considerable amount of controversy and confusion in its short life.

87                That said, I do not find it necessary to resort to starting points in respect of specific offences to provide guidance as to the proper use of conditional sentences.   In my view, the risks posed by starting points, in the form of offence-specific presumptions in favour of incarceration, outweigh their benefits. Starting points are most useful in circumstances where there is the potential for a large disparity between sentences imposed for a particular crime because the range of sentence set out in the Code is particularly broad. In the case of conditional sentences, however, the statutory prerequisites of s. 742.1  considerably narrow the range of cases in which a conditional sentence may be imposed. A conditional sentence may only be imposed on non-dangerous offenders who would otherwise have received a jail sentence of less than two years. Accordingly, the potential disparity of sentence between those offenders who were candidates for a conditional sentence and received a jail term, and those who received a conditional sentence, is relatively small.

88                The minimal benefits of uniformity in these circumstances are exceeded by the costs of the associated loss of individualization in sentencing. By creating offence-specific starting points, there is a risk that these starting points will evolve into de facto minimum sentences of imprisonment. This would thwart Parliament’s intention of not excluding particular categories of offence from the conditional sentencing regime. It could also result in the imposition of disproportionate sentences in some cases.

The Supreme Court of Canada’s surprising decision in R. v. R.V., 2019 SCC 41

The Supreme Court of Canada has come out with an interesting “trilogy” of cases on sexual assault in the past few months: R. v. Barton, 2019 SCC 33 (CanLII), R. v. Goldfinch, 2019 SCC 38 (CanLII), and now R. v. R.V., 2019 SCC 41 (CanLII). I have the most concerns over the most recent one – R.V. In this case, the Supreme Court overruled (by a 5-2 majority) a unanimous Ontario Court of Appeal decision (R. v. R.V., 2018 ONCA 547 (CanLII), decided by MacFarland, Watt and Paciocco JJ.A.) ordering a new trial where defence was wrongly precluded from asking critical questions during cross examination of the complainant. While the Supreme Court agreed that – notwithstanding s. 276 of the Criminal Code – the questions should have been allowed, it found that nevertheless it likely did not make enough difference in the trial to justify ordering a new trial.

The facts were essentially that a relative was accused of a sexual assault after the complainant was impregnated. Without any evidence as to paternity, the complainant accused the appellant of the assault (she was also underage, so “consent” would not have made a difference). The appellant’s counsel wanted to question her about other people who may have impregnated her, and the trial judge did not allow the s. 276 application. Meanwhile, the Crown was free to ask the appellant about the pregnancy.

Both the Court of Appeal and Supreme Court found it unfair that the appellant was not allowed to question her about this, given the centrality of the pregnancy in this case. However, the Supreme Court found that it did not matter enough, and enough avenues were available for the defence to sufficiently cross-examine.

I am troubled by this decision. Not only does it (and its predecessor, Goldfinch) quote Professor Elaine Craig’s disturbing book Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession in which she criticizes just about every judge and defence lawyer in the country (more on this in another post), it essentially condones trial unfairness and prejudice to an accused in the context of a sexual assault trial. As it is, the laws surrounding sexual assault trials are confounding and frankly contradictory (more on this another time, of course). Further, the fear of insulting complainants or of appearing to not be gentle enough on complainants appears to lead to multiple wrongful convictions in the context of sexual assault trials (I wonder how concerned Professor Craig is about these). These cases are starting to show the inherent challenges in the law of sexual assault – particularly in a “Me Too” era where fawning over victims is applauded. I’m optimistic that the law on sexual assault trials will – hopefully soon – start to make more sense.

One and Done: the Alberta Court of Appeal’s Disturbing Approach to Bail Reviews in R v Ledesma, 2019 ABCA 60

The Supreme Court of Canada has established the requirements for a bail review in numerous decisions – notably, St-Cloud and more recently in Myers.

The Alberta Court of Appeal, however, has decided to limit the value of a bail review to an accused person: R v Ledesma, 2019 ABCA 60 (CanLII). Reading carefully, it refers specifically to a subsequent bail review application – not a first bail review application (e.g. denial at provincial court and then review at a superior court) [Nov. 1, 2019 edit: this last point is not technically accurate, but the cases it quotes are mostly subsequent bail reviews. More importantly, its damaging comments are all obiter dicta – see paras. 43-45]. Regardless, it appears to limit the availability of a “change in circumstances” argument to a “significant” change – preferably one that one was simply not available on the initial bail application. It is likely to mislead courts into thinking the change in circumstances argument is now restricted in this way (at least in Alberta) – whether or not this was an intended consequence of the decision:

See paras. 33-35:

[33]           To be clear, however, second or subsequent bail applications must not be seen to be a forum at which a previously disappointed applicant seeks a fresh judge’s exercise of judicial discretion, or a redetermination of findings of fact made on the initial review: R v Sarancino, 1989 CanLII 7197 (ON SC), [1989] OJ No 28 at para 18, 47 CCC (3d) 185 (Sup Ct). Abuse of forum-shopping is avoided if subsequent bail applications are restricted to cases where there is a significant change in circumstances and “not just an attempt for a second or further bite at the apple”: Seti-Mayinga at para 31.

[34]           In our view, moreover, a change of strategy does not amount to a change of circumstances. Rather, an applicant for bail is obliged to put his or her best foot forward at the original hearing. Put another way, the original bail hearing is not a consequence-free opportunity to simply “test the waters” and if bail is refused on the basis of the applicant’s initial plan, then it is time to “up the ante” in subsequent applications, and offer other options that were known to the applicant at the original applicant [sic], and which may have been less convenient, more expensive, or more restrictive.

[35]           A bail applicant is well advised not to treat the original bail application or any subsequent bail application as a form of fluid, malleable, ongoing negotiation or debate with the court, that will somehow permit the applicant to hold in reserve known but less preferred release options, on the theory that if the original bail hearing is unsuccessful, then the less preferred options can be offered up to the court the next time around, or perhaps the time after that. This dicta applies both in the present context of a severely over-taxed Alberta court system, and otherwise in the event that that situation improves.

The damage is partially mitigated in para. 41:

[41] In the latter situation, where the accused has recently been charged, remanded into custody and wishes to be released as quickly as possible thereafter, it may be unreasonable and unfair to preclude adducing any additional evidence at a subsequent application. In such a situation, the applicant’s counsel may need additional time to analyze and weigh the advantages and disadvantages of using evidence of alternate available release options. But, the applicant’s need to show the original bail judge a reason that is legitimate and reasonable, means new evidence will not be admitted where the accused person wishes to “drag out the application for release” or where the accused is attempting “to engage in judge-shopping”: St-Cloud at paras 125, 127, 133-134. It is the former situation with which we are concerned in the case at bar.

See, however, paras. 131-134 of R. v. St-Cloud, 2015 SCC 27:

[131]                     Moreover, despite the importance of these values, this Court has also stated that the due diligence criterion should not be applied as strictly in criminal matters as in civil cases: Palmer, at p. 775, quoting McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484, at p. 493. The weight to be given to this criterion depends on the strength of the other criteria or, in other words, on the totality of the circumstances: R. v. Price, 1993 CanLII 76 (SCC), [1993] 3 S.C.R. 633, at p. 634; see also Warsing, at para. 51. In G.D.B., this Court stated that “an appellate court should determine the reason why the evidence was not available at the trial”: para. 20. A generous and liberal interpretation of the meaning of “new evidence” in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principles developed by this Court.

[132]                     I am therefore of the opinion that a reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable. This is how the “due diligence” criterion from Palmer must be understood in the context of the review provided for in ss. 520 and 521 Cr. C. The nature of the release system and the risks associated with it demand no less.

[133]                     I wish to be clear that such new evidence is not limited to evidence that was unavailable to the accused before the initial hearing because, for example, the prosecutor did not disclose it to the accused. It is possible that the prosecutor will give the evidence to the accused only at the very last minute before, or very shortly before, the initial hearing. Depending on the circumstances of a given case, it could be unreasonable and unfair to say that if the accused does not use such evidence at the initial hearing, he or she will be precluded from adducing it on a subsequent application for review, that is, after his or her counsel has had the necessary time to analyze it and weigh the advantages and disadvantages of using it. In each case, the reviewing judge will have to determine whether the reason why the accused did not tender such pre-existing evidence earlier was legitimate and reasonable.

[134]                     This requirement to show a reason that was legitimate and reasonable means that it will be open to the reviewing judge to refuse to admit new evidence where it is alleged to have actually been in the interest of the accused to drag out the application for release or where the accused is alleged to have tried to use the review to engage in judge shopping. In this way, the conception of new evidence in the context of ss. 520 and 521 Cr. C. reflects both the need to ensure the integrity of our criminal justice system and the need to protect the rights of accused persons in proceedings that are generally expeditious.

In R. v. Myers, 2019 SCC 18 (in the context of a s. 525 – or “90 day” review, whereas typical bail reviews are under sections 520 or 521), the Supreme Court of Canada re-affirms the test set out in St-Cloud, and clarifies that a change in circumstances is defined rather generously:

[49] Furthermore, both parties are entitled to make submissions on the basis of any additional “credible or trustworthy” information which is relevant or material to the judge’s analysis. The admissibility of any material that existed at the time of the initial bail hearing but was not presented at that point should also be governed by the criteria of due diligence and relevance discussed in St-Cloud, at paras. 130-35. In the context of a s. 525 review, the judge must be particularly attentive to any new evidence or material change in the circumstances of the accused and to its impact on the question whether his or her continued detention in custody is justified. For example, the period of pre-trial detention may have afforded the accused person time to make arrangements for a suitable surety, develop a comprehensive release plan or take other steps that would negate the initial basis for his or her detention under s. 515(10). [Emphasis added.]

I’d like to think that Ledesma will not be used to limit the ability of an Accused to argue a change in circumstances – particularly in the context of a first s. 520 review, given the Supreme Court’s pronouncements in St-Cloud and Myers.

Politics and Criminal Law

Photo credit: https://bit.ly/2SEBMj7

I’ve been thinking recently a lot about politics and its effect on criminal law in Canada. It’s fairly self-evident that our criminal justice system is greatly affected by political actors. For example, most appointments to the judiciary are selected by political actors. The Criminal Code is written, and amended regularly, by Parliament (here’s an interesting blog post on this). Our entire criminal justice system, including bail, sentencing, jails, and criminal law itself, are heavily influenced by politics.

I have been enjoying listening to excellent criminal law podcasts recently, such as The Docket and Of Counsel, and I’m starting to get a better sense of areas of criminal law and the criminal justice system that are weak or in need of improvement, etc. I will focus on these areas in future posts.

My first post will be about drug sentencing and starting points – particularly in Alberta. In another post, I will discuss sexual assault trial procedure. Another post will address bail.

I argue that the criminal matter has 3 main components: bail, trial, and sentencing. Of course, there are other issues, such as jail conditions, appeals, etc. – but I focus on these three.

The first – bail – is when someone is charged with a criminal offence, and the justice system decides whether or not to grant the person release pending the trial or resolution of their criminal matter. In a good percentage of matters, the accused is released on bail. In many cases; however, they’re not, and I will discuss this in detail in a later post.

The second – trial – is when the accused enters a not-guilty plea (rather than a guilty plea) to their charge. The Crown then needs to prove the guilt of the accused beyond a reasonable doubt in front of the Court. This is not easy for the Crown in many cases, although I will argue that it has gotten a lot easier for the Crown in cases of sexual assault.

The third stage – sentencing – is what happens after the accused is either found guilty at trial or if the accused bypasses the trial stage by pleading guilty. (If the accused is found not guilty at trial, or if the Crown otherwise withdraws the charges, sentencing is avoided.) I sometimes find this to be the most interesting stage in that the Court needs to craft a fit sentence for the offender taking into account their aggravating and mitigating factors, their unique personal circumstances and those of the offence, as well as caselaw (as in sentencing precedents – similar sentences for similar offences are what’s aimed for), Parliamentary directives (regarding type of sentence and minimum sentences, etc.), along with keeping in mind totality and other principles. Sentencing is arguably the most complex aspect of criminal law, and perhaps the most important. This is where the “rubber hits the road” in terms of our criminal law: regardless of how bail or trial is conducted, is the offender sentenced to decades, years or months of jail, or none at all?

A real mensch – the Honourable Mr. Justice Michael Moldaver

moldaver

(Photo credit: https://bit.ly/2RmOylH)

I had the good fortune of listening to Mr. Justice Michael Moldaver of the Supreme Court of Canada last week. He gave the Milvain Lecture at the University of Calgary’s law school – I understand he spent a few days giving the third-year law students feedback during their advocacy course. He spoke candidly about his life and experiences as a criminal lawyer and a judge. Here are some highlights:

He talked about the stresses and pressures of being a criminal lawyer, as well as being a judge. He stated that “judges who care” are under a lot of stress. He spoke about some of his low points as a lawyer, and the second-guessing he subjected himself to after some of his losses.

He learned that trials are brutal, and “there’s no certainty in the courtroom”. He took pride in avoiding trial wherever possible, and working out plea arrangements with the Crown – his cases would only go to trial approximately 2% of the time.

He was accused of being more of a social worker than a lawyer during his lawyering days, and he took pride in this.

He spoke of how success as a lawyer is not measured by money or number of wins, but by how one “plays the game.” How integrity, respect, and hard work should be the trademark of a lawyer, and should be the benchmark with which to measure success.

He mentioned that every lawyer can do great things, and that he’s not referring to arguing landmark judgments in the Supreme Court. Rather, little wins like helping the “little guy” navigate the complex legal system. He said that one of the most meaningful mementos he has at home is a small statue he was given by a client, a woman he defended in a murder case, in which he was successful. She had a defence of self-defence against her abusive husband. He made very little money off of Legal Aid for that trial and almost no fame or celebrity, but remembering the difference he made in that woman’s life makes that statue priceless to him.

During the Q&A session, he talked more about the stresses and learning curve he underwent as a judge at different levels of court. In response to my question about how he handled the stresses as a lawyer, he said it helped to be honourable and reliable in his dealings with the Crown and police (and rarely going to trial).

He made the interesting point that he never accepted major cases where he didn’t believe his client was innocent or at least was possibly innocent – he felt he wouldn’t do a good job of advocating if he didn’t believe in the client’s innocence. He mentioned the importance of being “comfortable in your own skin”, regardless of what others say.

It was an honour to hear insights and advice from one of this country’s most respected legal minds. Thank you, Mr. Justice Moldaver.

Alberta’s Court of Queen’s Bench weighs in on R v Sohal and pre-trial credit for license suspension

In Alberta, there has been much debate over the last few years regarding license suspensions for impaired driving. Essentially, for the last few years, one’s driver’s license was suspended indefinitely in Alberta pending the result of impaired driving charges. In 2017, the Alberta Court of Appeal struck down the provincial legislation providing for this arrangement, in Sahaluk v. Alberta (Transportation Safety Board) 2017 ABCA 153 (CanLII). The Court found that it was unconstitutional to indefinitely suspend the accused’s license pending the result of the accused’s charges. As a result, the province enacted new legislation that provided for a 90-day suspension only, as of April 2018. However, the question remained as to whether the accused should be granted credit for time served under a provincial suspension if the accused later pled guilty or was found guilty under the Criminal Code of Canada. For example, if the accused pleads guilty to an impaired driving charge, and their punishment under the Criminal Code is the 1-year minimum license suspension for a first-time offender, should they be given credit for the 90 days served under the new provincial suspension (or longer, under the old regime)? The Provincial Court of Alberta has been divided on this issue, with R v Sohal 2018 ABPC 86 (CanLII) and R v Ludwig 2018 ABPC 122 (CanLII) suggesting that it may be granted; and R v Chan 2018 ABPC 155 (CanLII) and R v Kiyawasew 2018 ABPC 160 (CanLII) suggesting that it should not. Sohal has been appealed to the Court of Queen’s Bench in Calgary (Justice deWit presiding). The matter was heard in July 2018, and we are awaiting a written decision on this matter.

The Court of Queen’s Bench did issue a decision on this issue on October 2, 2018, by Justice Mandziuk out of Edmonton: R v Watson, 2018 ABQB 832 (CanLII). This case was an appeal from a decision by Assistance Chief Judge Anderson of the Provincial Court to grant credit for the suspension. In upholding ACJ Anderson’s decision, Watson seems to strongly favour the Sohal line of cases, and suggests that, at least in Alberta, pre-trial license suspension credit may be provided. It will not be surprising if this decision is appealed to the Court of Appeal by the Crown.

How to find law articles with reduced blood, sweat and tears

I graduated from University of Calgary’s law school in 2016 with a lot of debt, an excellent resume and hardly any articling interviews. In fact, I can count on one hand the number of summer and articling interviews I had during my three years of law school.

I managed to find an articling position approximately 9 months after graduation, and finally found one where I was happy (in terms of the kind of work I was doing) 9 months after that. I have now finished my articles and have been called to the bar. I want to share some of my experiences and advice for those who have struggled with, or are currently struggling with, finding articles and summer employment.

Figure out what you want to do – the earlier the better

It is incredibly important to know what area of law you want to work in. Law school is not good at preparing students for the workforce, in that the academic and multidisciplinary environment are not always relevant to the practice of law. It’s important that you get a sense early on of what you do and do not want to practice and with which kind of people (clinical courses and experiences can help with this), and focus on those kinds of firms. It is impractical and frustrating to target every firm in your province when you can focus your efforts on a much smaller number of firms that actually interest you.

Network a lot – in person

Much has been said about networking. I think it is a critical part of finding work. Most of my efforts revolved around cold-calling and cold-emailing. Needless to say, there were very few positive results from this, and it involved a lot of effort and time. A much more efficient way to job-hunt is to meet people that practice in areas in which you want to practice, spend time with them, get to know them, and ask them about their work. You can mention that you’re looking for summer/articling employment, but don’t expect anything from them in terms of employment. Possibly they’ll have an opportunity for you; more likely they won’t, but they may still know of others who need help, and they can introduce you to others who do or do not need help. This way, you’re meeting people practicing in your areas, establishing good connections with them, and possibly even getting a job opportunity from them or someone they recommend. You can’t lose.

I know this can be draining and difficult, but it’s far more efficient and rewarding than calling and emailing. Of course, you can do the odd phone call to set up a meeting, but focus on in-person meetings. Showing up unannounced at an office is far better than an email which likely never gets seen or returned. I read Take Aim: How to Get Noticed and Hired in Tough Times by Joy Cohen, and found it really helpful in providing networking and job search advice.

Another good way to meet lawyers is at networking meetings, such as CBA sessions. These are rather hit-and-miss, but attending events and volunteering can be a good way to meet people. Also, ask people to put your resume on SoloNet or similar listservs that have a wide viewership. Remember, you have a lot of value to offer many firms, and you will find the firm that will appreciate your skills. It will take time and effort, but it’s certainly worth it.

Don’t be discouraged by negative experiences you have. There will be many lawyers that promise to help you and don’t, or promise to follow up on your email but don’t, etc. Focus on the positive. There are many lawyers that are eager and willing to help you – either by providing a listening ear, giving helpful tips regarding potential employers, and more. Find them.

Refuse unpaid work

I understand there are some firms that offer unpaid work. I would recommend against firms offering unpaid work, or anyone accepting it. I understand people can be desperate, but I think this is a little extreme. If the firm values your work so poorly that it refuses to pay you for it, I don’t see how there’s any potential for it to be a good experience for the student. [Jan. 6, 2024 edit: while those offering unpaid work can be exploitive, unpaid work can be beneficial when you are offering it or it is being offered by someone worth working with.]

January 15, 2021 edit: I should add that partial articles may also be very helpful, and I used these. If your provincial law society allows it (Alberta does), it may be a lot easier to “sell” an articling principal on a commitment of – say – 3 months, rather than the full year (or whatever length of term is required). Once you get your foot in the door, it gets a lot easier to find the next position. [Jan. 6, 2024 edit: you can also check programs like LSA’S Articling Placement Program.]