Category Archives: Law Blog

Politics, Alberta Prosecutors and Danielle Smith

I don’t usually get political but I’m afraid I need to in this case.

The recent explosive headline in Alberta is that Danielle Smith – currently Alberta’s premier and leader of the United Conservative Party (UCP) had a phone conversation with Artur Pawlowski, a pastor who is currently awaiting verdict on his criminal trial for “mischief” – essentially for inciting protesters to block traffic during the early days of COVID in Coutts, Alberta.

There is an Alberta election upcoming in May. The NDP are desperately seizing on this story for much-needed traction in the battle, with the assistance of the media and the public. Surely, their premiers never talk to prosecutors.

Smith had been previously accused of “inappropriate” communication with the Alberta Prosecution Service (Crown) in relation to these charges. She appears to hold the view that the charges are mostly political and frivolous – perhaps a reasonable viewpoint though certainly not mainstream – and has suggested that the Crown drop the charges. Initially, multiple emails were confirmed by anonymous, “well-placed” sources to CBC to have been sent by Smith’s staff to prosecutors.[1] The existence of these emails were vehemently denied by both Smith and the Crown (the latter claiming to have searched nearly a million government emails finding no evidence of contact between Smith and the Crown – the search details being confidential, of course – perhaps as strong an internal investigation as SCOTUS did on its infamous recent Dobbs leak and subsequent decision).

Now, there is a video/audio recording of Smith’s phone call with Pawlowski. She seems frustrated (by the sound of it) that the Crown is not dropping the charges, and promises to continue further efforts to achieve same. Of course, she is now being pilloried for her attempt to “politicize” the Crown – essentially obstructing justice by giving her opinion to the Crown about these proceedings. At minimum, being clueless about how non-political the Crown is supposed to be and lying about her role.

What no one is criticizing are the Crown’s ethics and honesty, strangely. If the emails and/or recording exist and are valid and reflect reality (which I don’t see any reason to assume otherwise), how is Smith the only one doing something wrong? If her intervention is inappropriate, surely the Crown should have told her so immediately, disclosed the emails to the media and everyone else and made a big fuss about it. Instead, they deny the existence of the emails. Go figure.

Who did leak the emails and/or recording to the media (I’m aware that the video was available privately on YouTube for some time)?

The following educated guesses appear reasonable:

  1. Pawlowski himself – however, I don’t see much reason for him to have done so. Smith already went out of her way to help him – why would he stab her in the back? Plus, he has morals.
  2. Another enemy of Smith (e.g. Independence Party, which just booted Pawlowski, incidentally). This would be a bit of a conspiracy theory – they’d have to hate the UCP enough to attempt to destroy it, despite much common political ground.
  3. Someone from the Crown’s office – if these emails exist (and the denials are lies), I’m guessing they’d be accessible to any prosecutor in the province? My understanding is all file-related correspondence is saved on an internal database that all prosecutors can access (or at least the prosecutors who need to access it – if not all). So Smith’s emails would have been shared – at the very least – internally with some Crowns. Even if the emails do not exist, surely Smith can be taken on her word that she had “almost weekly” phone conversations with Crowns about the files – surely there’s a record of those somewhere?

    If it was someone from the Crown’s office who leaked it, why would they do so? Perhaps to trash Smith and her party? Score political points of some kind?

    If that is the case, do they not realize that they also make the Crown look bad at the same time (for covering for Smith – assuming her behaviour is inappropriate)? And for possible ethical violations more serious than hers (she’s not a lawyer and is not bound to comply with legal ethics the way lawyers are)?

So many questions, so few answers. Even more puzzling is how no one else is talking about this.



Danielle Smith discussed COVID charges ‘almost weekly’ with justice officials, according to leaked call | CBC News

CBC News stands by Coutts story despite statement from Danielle Smith’s office | CBC News

No emails found between Alberta premier’s office, prosecution following weekend search, justice ministry says | CBC News

Alberta premier’s office contacted Crown prosecution about Coutts cases: sources | CBC News

Alberta Independence Party ousts leader Artur Pawlowski | CTV News

NDP wants investigation following CBC report of Alberta premier’s office contact with Crown prosecutors | CBC News

Alberta premier says she was ‘imprecise’ when saying she contacted prosecutors | CBC News

Prosecutor says pastor’s fiery speech at Coutts blockade was criminal | CBC News

[1] “That original story of Jan. 19 included allegations by well-placed sources that a staffer had sent a series of emails to the Alberta Crown Prosecution Service challenging the prosecutors’ assessment and direction of the cases stemming from last winter’s border protests at Coutts. The premier’s office denied the allegations, saying Smith had no knowledge of anyone on her staff doing so.

Part 2 – Manufacturing Guilt: Wrongful Convictions

I believe [the accused] did something very, very wrong in that room. But I also believe that nobody has asked me to play God. I’ve been asked to apply the law. Justice belongs to God; men only have the law. Justice is perfect, but the law can only be careful. […]

If we as a jury wanted to understand why the burden of proof fell on the prosecution, and fell with such gravity, we needed only to reflect on what we had discovered directly about the real power of the state and its agents: there was, in a deep way, no recourse. Yes, there were appeal courts, constitutional protections, citizen juries like us. But in the end – in the end, there was, simply, the final power of the state. There was always this. This was a power even more terrifying, in a way, than a man with a knife in a closed room. That sort of raw, physical power, for all its horrors, can never extend indefinitely in all directions. If you were to run outside, people would object, would (in principle) come to your aid. In the room, you know this, even if you cannot actually escape. But there is nowhere to run from the state: more or less everyone outside the room (the courtroom, the prison) has already accepted the legitimacy of what the state chooses to do to you. In fact, all those people out there, they actually constitute the state itself. If you run out to them, they will help catch you. There is nowhere to go.

A Trial by Jury: Burnett, D. Graham: 9780375727511: Books –, at pp. 139 and 163.

(Part 1


In this excellent book (Duped: Why Innocent People Confess – and Why We Believe Their Confessions: Kassin Ph.D, Saul: 9781633888081: Books –, social psychologist Saul Kassin deals extensively with the psychology of false confessions. He discusses many cases of false confessions, such as the Central Park Five, in which all five innocent youth confessed falsely.

Discusses the Kitty Genovese story (1964 Queens, NY) in extensive detail (chapter 2). The case is known popularly for the “bystander effect,” given that many people ignored a vicious rape/murder they could hear – although much of that has been questioned (see also). Winston Moseley was arrested, confessed (knowing extensive detail that no one else knew), and was eventually convicted (surprisingly not executed) and died of old age in jail decades later. He also confessed to a Kralik and Johnson murder. He was never prosecuted for the Johnson murder, while someone else was wrongfully convicted for the Kralik murder. Police refused to take Moseley’s confession seriously – particularly since they already had a confession from young Alvin Mitchell (after a 50-hour interrogation) for the Kralik murder (leading to the eventual wrongful conviction of Mitchell). One of the reasons for the Mitchell wrongful conviction was the trial judge (at the second trial – the first resulted in a hung jury) refusing to allow the victim’s dying statement (that she did not recognize her assailant, which would have excluded Mitchell but not Moseley) on technical hearsay grounds – gotta love evidence law!

One shocking quote about the refusal of the prosecutor to acknowledge its error (p. 140); a theme prominent in the following book, as well:

In a 2001 rape case in West Virginia, DNA testing not only excluded confessor Joseph Buffey but also matched a convicted sex offender. Yet rather than agree to vacate Buffey’s conviction, the prosecutor’s office proposed the new theory that Buffey and the sex offender were accomplices. This theory flatly contradicted the confession extracted from Buffey, which made no mention of an accomplice, and it contradicted the victim’s own lucid account of a harrowing and protracted ordeal involving a single perpetrator. (p. 140)

Another example cited is Juan Rivera, who was found guilty at a retrial – despite DNA evidence excluding him (p. 266).

Another terrible example is Billy Wayne Cope.

Another great quote (p. ix):

I’ve seen judges unwilling to serve as the gatekeepers they get paid to be by failing to exclude from evidence confessions that were quite clearly coerced, not voluntary.

I’ve seen prosecutors bend logic until it breaks, refusing to concede innocence despite DNA results that excluded the confessor, without doubt, and identified the actual perpetrator.

I’ve read contemporaneous newspaper accounts during trial that accepted the government’s public relations spin on the case hook, line and sinker.

Convicting the Innocent

In this book (Convicting the Innocent: Where Criminal Prosecutions Go Wrong: Garrett, Brandon L.: 9780674066113: Books –, the author, Duke law professor Brandon L. Garrett, digs deep into many U.S. wrongful convictions (250 known DNA exonerations, obtaining trial transcripts of some 88% of them) and finds some appalling results. The most common exoneration was for rape (68% – for which the conviction rate apparently isn’t high enough), and another 21% convicted of both murder and rape (p. 5). A full 16% confessed to crimes they did not commit, with all but two of those confessing to details they could not have known without police “coaching” (p. 6). Eyewitness misidentification comprised 76% of the cases. “Invalid forensics” were found in 93 (of 153) analysts called by the prosecution. Informants were present in 21% of the cases. 17 were sentenced to death. More than 90% of the exonerees for whom transcripts were obtained asserted their innocence at trial. The majority of convictions went through multiple rounds of appeals untouched (p. 11). It took an average of 15 years for each exoneration. Judges and prosecutors sometimes opposed DNA testing. Most appallingly, judges (and prosecutors) sometimes initially refused to exonerate these people even after DNA proved their innocence (p. 11).

In one memorable case (David Gray), the prosecutor couldn’t remember when testifying whether he may have said something like “it won’t hurt you” when inducing a jailhouse informant to perjure himself (p. 122).

I got a kick out of a judge’s comments, during the sentencing of Michael Evans and Paul Terry, that the defendants walked with a swagger that suggested no remorse. Their lawyer bravely retorted that it is also clearly indicative of innocence (p. 162).

In the Rolando Cruz case, a few jurors later told the press that “half of the jurors had their minds made up before the trial even started” (p. 173).

At Arvin McGee’s third trial, a potential rogue juror (i.e. not prepared to convict) was extensively pressured by the other jurors to join the consensus for a guilty verdict. The defence’s mistrial application on this basis was subsequently denied. It took another 14 years for his DNA exoneration (p. 173).

In the case of Kennedy Brewer, the state refused to conduct DNA testing, lying that the sample was insufficient for testing. Many years later, post-conviction (for a brutal murder-rape of his own toddler daughter), Brewer managed to get the state to test the samples. He was excluded, so his conviction was vacated. However, the state kept him in limbo for the next 8 years, deciding whether or not to re-try him (p. 180).

Curtis McCarty had his conviction reversed twice (14 years apart) on appeal grounds, based on issues with the forensic evidence (the second time on fresh evidence about the misconduct of the expert, somehow discovered by his lawyers). He served 21 years in prison (p. 181).

In 10% of the cases that had written appeal decisions, judges had called the state’s case against the innocent and wrongfully accused “overwhelming” (p. 202).

In the late 1980s, Earl Washington Jr. had come “within nine days of his execution” (p. 219). Then, after 9 years on death row (in 1993), DNA testing practically excluded him – but not conclusively. As a result, his death sentence was commuted, but he remained in jail to serve a life sentence. He was only exonerated and released in 2001, after – get this – his lawyers discovered that the state had withheld a 1993 DNA test excluding him. A later independent audit sharply criticized the Virginia crime laboratory for producing false results and succumbing to political pressure to not exonerate Washington (p. 221).

In at least 49% of the cases, the exonerees had to obtain a judge’s order to get the DNA testing – suggesting the state improperly opposed the application (p. 227). For at least 18 exonerees, judges initially denied their applications for DNA testing (p. 228). For example, in the Bruce Godschalk case, the judge refused to order testing, seemingly convinced (wishful thinking, I’d suggest) by the strength of the confession that there would be nothing to see. Same with Byron Halsey. In other cases, it was denied on technical, procedural grounds. I’m guessing the legislation in the U.S. is far more favourable than in Canada, by the way, which is even more reluctant to entertain the possibility of innocence.

Shockingly, judges “refused to set free at least twelve exonerees despite at least preliminary DNA test results excluding them” (p 230).

A particularly cruel example is Roy Criner, where Texas Appeals Court Judge Sharon Keller fabricated creative excuses to justify not letting him go, even though DNA evidence excluded him (p. 230).

Radley Balko

See also Radley Balko very recently here:

  • You might think that if DNA testing could establish the innocence of a death row prisoner, a state would want to allow it, both so it didn’t execute an innocent man, but also so it could pursue real justice for the killer’s victims. You’d be wrong, at least in Texas. And the Supreme Court will decide this term whether Texas can get away with it.

  • Meanwhile, the Texas Court of Criminal Appeals has refused to overturn a conviction and death sentence, despite the fact that both the trial judge and the DA for the district where the prisoner was tried both say he was wrongly convicted.

Or Radley Balko on Charlie Vaughn (The maddening irrelevance of Charlie Vaughn’s innocence (, emphasis added:

Arkansas provides no real way for prisoners like Vaughn to get back into state court, even when they have persuasive evidence of their innocence. This ought to be where the federal courts would intervene. But because of the Antiterrorism and Effective Death Penalty Act (AEDPA), a law signed five years after Vaughn’s 1991 conviction, the federal courts won’t even consider the evidence of his innocence. AEDPA gives prisoners like Vaughn one shot at federal review. The two other defendants never took their shot. Vaughn took his with that handwritten letter in 1995. So now he’s out of luck.

Believe it or not, this wrongful conviction inmate (self-represented, hand-written) appeal was dismissed in 1996 after a “careful and thorough review of the record” (chilling, probably false, and reminds me of similar language in R v NBM, 2021 ABCA 14: “Overall, when viewed with the benefit of the entire record, NM’s arguments in support of the first ground of appeal represent nothing more than a thinly veiled effort to convince the panel to reconsider the evidence and make different credibility assessments contrary to the standard of review and the role of this Court,” at para. 16; the word “record” is cited some 10 times there). He simply gets “one shot” and since he lost in 1995, he’s out of luck. Evidence of innocence be damned.

Manufacturing Convictions

In this 1998 book (Manufacturing guilt: Wrongful convictions in Canada: Anderson, Barrie: 9781895686937: Books –, sociologists Barrie Anderson and Dawn Anderson go through several known Canadian wrongful convictions. They raise the very interesting point of a judge’s innate conflict of interest (p. 15):

Judges therefore have a tremendous responsibility to maintain justice. However, they also have the very important task of maintaining public confidence in the judicial system and emphasizing its legitimacy. To this end, lawyer Alastair Logan (1995) asserts, the judiciary will act to preserve the reputations of police officers, prosecutors, expert witnesses or others acting on behalf of the Crown when their reputation or the system is called into question. The possibility therefore exists that a judge may unintentionally or maliciously conduct a trial or instruct the jury in a way that is prejudicial to the accused, if he or she perceives that to do otherwise would somehow jeopardize the integrity of the judicial system.

Further, commenting on prosecutorial misconduct (p. 16):

Unfortunately, the desire to win has caused many lawyers to engage in questionable, even unscrupulous, tactics, which are frequently condoned by the legal profession as a whole. Lawyers learn quickly what works well in the courtroom and what does not. What works are techniques that may distort the truth, confuse the jury and make apparent liars out of honest witnesses. The legal system is highly structured and those within it share a culture that emphasizes winning cases rather than doing justice. For too many lawyers the courtroom has become a place of winning cases rather than a forum for discovering truth and serving justice. When the need to win takes precedent over truth, the seeds of wrongful conviction have been sown in the fertile soil of legal indifference, personal greed and public apathy.

The first case dealt with in depth is Donald Marshall Jr., which I dealt with in Part 1 (the last is Steven Truscott, which I discuss extensively here). The next is David Milgaard. In that 1970 Saskatchewan case, the police pressured witnesses to perjure themselves and fabricate testimony about observing Milgaard commit a crime – similar to Marshall (and Truscott). Despite a key witness later recanting his testimony and the presence of a viable suspect (Larry Fisher, convicted in 2000), the federal government refused to admit its mistake for years.

In 1992, the Supreme Court of Canada insisted Milgaard had “a fair trial” yet granted him a new trial due to the new evidence. Eventually, Larry Fisher was charged (in 1997). The state eventually conceded its mistake and paid $10 million compensation in 1999. Milgaard was a mere 16 years old at the time of arrest/conviction (slightly older than Truscott was) He died earlier this year.

The 1992 SCC decision is troubling (paras. 3-4, emphasis added):

It is appropriate to begin by stating that in our view David Milgaard had the benefit of a fair trial in January 1970. We have not been presented with any probative evidence that the police acted improperly in the investigation of the robbery, sexual assault and murder of Gail Miller or in their interviews with any of the witnesses. Nor has evidence been presented that there was inadequate disclosure in accordance with the practice prevailing at the time. Milgaard was represented by able and experienced counsel. No error in law or procedure has been established. At the conclusion of the trial, there was ample evidence upon which the jury, which had been properly instructed, could return a verdict of guilty.

However, fresh evidence has been presented to us. Ronald Wilson, a key witness at the trial, has recanted part of his testimony. Additional evidence has been presented with respect to Milgaard’s alleged motel room confession [to friends]. More importantly, there was evidence led as to sexual assaults committed by Larry Fisher which came to light in October 1970, when Fisher made a confession.

Myopically, the SCC tried to make Ronald Wilson the “fall guy” for this wrongful conviction. They went so far as to charge him with contempt of court for his previous perjured testimony (note that contempt and perjury are almost never used against perjuring Crown witnesses, strangely enough). They later vacated the contempt citation without explanation. Would it have been that difficult for the SCC to concede that the state engaged in egregious misconduct from start to finish?

Milgaard Inquiry (2008) – available here. Incidentally, Milgaard always viewed the Inquiry’s findings as a whitewash – likely correctly.

Like Truscott, Milgaard did not testify. It is unclear whether his lawyers were also blamed for the wrongful conviction on this ground. Hopefully not.

Note that Milgaard’s 1971 appeal was dismissed (R. v. Milgaard, 1971 CanLII 792 (SK CA), with leave to appeal later predictably dismissed by the SCC. No apology forthcoming, I presume.

In 1980, Larry Fisher’s wife told police she thought her husband is guilty of this crime. Ten years later, Milgaard’s appeal counsel (the legendary Hersh Wolch) found out about this through an anonymous tip (timeline). Note the Inquiry begrudgingly admits “that the decision by Saskatoon Police not to follow up on the Linda Fisher report was not reasonable” (p. 13).

Wilbert Coffin is the next case described. It is an interesting case from rural Quebec in 1953. Three American hunters were murdered, and the government – under pressure to pin the murders on someone – settled on Coffin. Despite an incredibly weak Crown case, he was convicted in 1954, and hanged in 1956 (following his predictably unsuccessful appeals). A good illustration of how the prosecutor can manufacture a conviction (and subsequent execution) out of whole cloth. It later appeared that police suppressed proof of his innocence – a letter from one of the hunters dated after Coffin had left – p. 69. It also appears his defence lawyer (Raymond Maher) dropped the ball; promising the jury that he would call 100 witnesses to prove his client’s innocence, he called none.

Guy Morin is another disturbing example of a 1984 wrongful conviction. He was fingered by police because he appeared weird to them. The nature of the crime (a rape-murder) is the same as both Truscott and Milgaard, as well as Sophonow’s. The victim was Morin’s 9-year-old neighbour. The police claimed that an unrecorded part of their interview with Morin made him a key suspect, in their minds (p. 75). As with Truscott and Marshall, police refused to take other viable suspects seriously (note: Calvin Hoover, eventually matched as the perpetrator through DNA, is not even one of the 4 other viable suspects mentioned).

Notably, there was no time for Morin to have done the deed if the victim’s mom got home when she originally said she did. Magically, her timeline then changed by 20-30 minutes – reminding me of similarities with Truscott. Still, the timeline required that he did “all this driving, raping, killing, cleaning and shopping” in 75 minutes – a strong argument of the defence at trial (p. 82).

Eventually, the police extracted what they considered a “confession” from Morin – over a few days, he told an undercover officer that “no one would ever know the real relationship he had” with the victim (p. 81). AHA!

Also, two jailhouse informants claimed that Morin confessed to them. Of course, they were given an incentive by police to testify.

Clay Ruby, the lawyer at the first trial, insisted on a backup position that Morin was insane. The jury ultimately acquitted. Very unfortunately, the crown appealed successfully (R. v. Morin, 1988 CanLII 8 (SCC) – a slim 4-2 majority upholding the majority of the ONCA; note that in the US the State is never allowed to appeal an acquittal). A subsequent appeal based on delay was denied at ONCA, as well.

On the retrial, the judge (James Donnelly – the name rings a bell; his father, Frank Donnelly was likely Truscott’s defence lawyer) was openly and extremely hostile to defence counsel (a team led by the excellent and legendary Jack Pinkofsky). In the interim, the victim’s body was exhumed, and revealed much misconduct on the part of the forensic team (most of the results were exculpatory). There were substantial unsuccessful attempts to have the charges dismissed on the basis of police/Crown misconduct (withheld disclosure). Nevertheless, he was convicted the second time around. Courtroom observers “detected the warmth [Judge] Donnelly displayed towards the prosecution team and the repressed hostility he directed at Pinkofsky” (p. 88 – note his inauthentic obituary stating he never allowed bullying, etc.). Donnelly “encouraged the jury to endorse the most ludicrous testimony of some Crown witnesses while rejecting important defence evidence” (p. 88). In a glaring misstep identical to one taken by the trial judge in Truscott, the judge provided speculation to fill in a major gap in the Crown’s evidentiary case.

In 1993, Morin was surprisingly granted bail pending appeal – only the second person in Canada to do so after a conviction of first-degree murder (p. 89). Thankfully, less than 2 years later – right before the appeal was to be heard – DNA evidence excluded him.

See also Kirk Makin’s book Redrum the Innocent and Real Justice: Guilty of Being Weird: The story of Guy Paul Morin: Faryon, Cynthia J.: 9781459400924: Books –

In this context (following the then-recent Milgaard, Morin and Marshall exonerations), the SCC came out with R. v. Stinchcombe, 1995 CanLII 130 (SCC) – theoretically improving the State’s disclosure obligations to accused. Whether or not it affected anything in practice is a different story.

Later Kaufman Commission (1996) – available here.

Thomas Sophonow was wrongly convicted of murder/SA in 1981 Winnipeg. A teenage female employee was murdered, and Sophonow’s description was similar to the man police were lookin for. The witness they relied on was John Doerkeson, who appeared to know a lot about the incident (surprisingly never appeared to be a suspect). Did I mention Doerkeson positively “identified” Sophonow eventually? Sophonow had a strong alibi, and police largely refused to “investigate” this alibi defence. The Crown refused to accept it, in any event. At the first trial, there was a mistrial (hung jury). At the second trial, the Crown witnesses’ evidence surprisingly improved significantly. The Crown also produced multiple lying jailhouse snitches. The judge significantly hampered the defence with caustic comments about its (truthful) theory and witnesses (p. 101). The wrongful conviction was thus manufactured by the Crown and with a significant “assist” to the sworn-to-be-impartial judge.

Defence counsel (the famed Greg Brodsky) won a retrial on appeal with little trouble, thankfully. On the third trial, the Crown Stuart Whitley engaged in the ridiculous tactic of trying on “the glove” himself and claiming that it should fit Sophonow if it fit him, as they were of similar size and build (it had previously not fit Sophonow). The judge (Benjamin Hewak) shockingly agreed with the Crown over defence objection. A further defence witness was sufficiently intimidated by police prior to trial to refuse to testify. After several days of deliberation, the Crown successfully applied to excuse a single juror – clearly the only one harbouring doubt about guilt. A conviction was entered minutes later.

The Court of Appeal properly overturned the conviction, emphatic that Sophonow should not be tried for a fourth time. The Crown unethically appealed the decision to the SCC – thankfully without success.

Sophonow sat in jail for 4 years for a crime he did not commit. The Manitoba government refused to provide any compensation – insisting that he needed to prove his innocence.

Fifteen years later (in 2000), Sophonow was cleared of the accusations and awarded $2.6 million, with an Inquiry struck. He still has no idea what information the state had, as they somehow continue to refuse to share it with him.

Manufacturing Guilt: Wrongful Convictions

We’ve all had clients convicted of crimes when we were sure of their innocence. I have two as I stand here. I can remember them, and they haunt me. You wonder, was it my fault? And you’re bound to blame yourself. In the two cases that haunt me, I have no doubt it was my fault.

But the problem is I’m not the one who has to serve the time because I messed up; it’s some poor individual and likely poor in every sense of the word who is going to have to do my time. And we know it can happen to anyone, from a judge of the Quebec Court of Appeal wrongly convicted of first degree murder in 2012 to a 14 year-old boy in Clinton, Ontario, wrongly convicted in 1959.

– James Lockyer, Sopinka Lecture, CLA conference, November 19, 2021, For the Defence, Aug. 2022, p. 9.

I’ve been reading a lot about wrongful convictions the last few years. There are no shortage of Canadian ones, but I have also been reading about other ones. Adnan Syed is a recent, notorious US wrongful conviction recently all over the news. Jacob Hoggard’s recent conviction and sentence has been all over Canadian news – it remains to be seen, but I have a strong suspicion that it is a legal (and/or factual) wrongful conviction – I wouldn’t mind the trial transcripts, if anyone has access to them. Further, I think the US criminal trial rules are more robust than Canada’s (for example, the state cannot appeal acquittals there), which makes the almostdaily stories of US wrongful convictions that much more concerning. In this post, I will discuss some of the ones I have been reading about (specifically, Donald Marshall Jr., Arthur Lucas and Ronald Turpin), and some common themes I’ve noticed. Please also see my detailed post about Steven Truscott, a grisly 1959 wrongful conviction of a 14 year-old boy (referenced above by the legendary James Lockyer – the other reference is to Justice Delisle.

Donald Marshall Jr.

Donald Marshall Jr. was a young, Indigenous male wrongly accused and convicted of murder in 1971 in Nova Scotia. He was released in the early 80s and it hit the public consciousness in 1986 with the release of the book Justice denied: The law versus Donald Marshall: Harris, Michael: 9780771596902: Books – Following the public outcry, a Royal Commission was struck (predictably), which ultimately criticized very harshly just about everyone involved in the case – up to and including the Court of Appeal justices who ultimately allowed the appeal.

I read Justice Denied, as well as a shorter book by Bill Swan, Real Justice: Convicted for Being Mi’kmaq: The story of Donald Marshall Jr.: Swan, Bill: 9781459404397: Books – (one in a series of books about wrongful convictions – there’s also one on Truscott, Milgaard, Morin, Rubin Carter (U.S.), etc.).

Marshall and a young friend, Sammy Seale, were in a park late at night. Whether they were talking to or attempting to shake down an older man and his friend is not entirely clear. Either way, the older man stabbed Seale, killing him. Marshall ran away, but not before getting a minor gash on his arm from the knife (the man attempted to kill him, too). Marshall gave his story to police, and several friends backed up his story (they didn’t see the actual stabbing, but were there before and after). The police refused to accept Marshall’s story and insisted on pinning the murder on Marshall. They bullied his friends into testifying against him – openly suborning perjury by pressuring his friends into claiming they saw Marshall stab Seale and whatever other details the police insisted on feeding them.

At trial, Marshall was wrongly convicted. Among other things, the trial judge refused to allow the defence to question a key prosecution witness about his recantation of his evidence (right there at the courthouse). A week or so after the wrongful conviction, the young man who accompanied Roy Ebsary (the actual murderer) confessed to police about what exactly happened. The police refused to take it seriously, nor to disclose it to defence.

At trial, the prosecution insisted on showing the gory evidence – in all its detail – to the jury. Not at all for the purpose of inflaming emotions, of course. Another theme prominent in Lucas, below.

The Crown’s expert testified that Marshall’s injury was likely not self-inflicted. At trial, he claimed it was possibly self-inflicted. See what he did there? The Crown further attempted to get the jury to believe that there was no bleeding from Marshall’s injury that required 10 stitches (Justice Denied, p. 133). To that end, he openly misrepresented the evidence of one witness (Maynard Chant) to the jury – Chant had confirmed the arm was bleeding. The Crown wanted the jury to believe he had not bled, so that the blood on his jacket would have to have come from someone else (i.e. Seale). There wasn’t much forensic testing of blood back then – even now, forensic testing tends to not be done (or not disclosed, anyway) in cases where it doesn’t favour the Crown.

Crown tried to use “I hate cops” tattoo on his arm against him (195). Irrelevant bad character evidence clearly as popular then as it is today in manufacturing wrongful convictions.

Defence tried to cross-examine officer about crucial conversation between this officer and another witness (Chant). Crown objected on the basis of “hearsay” – given that the accused was not present for the conversation (144) – a pretty popular tactic (then and now) to try and minimize unfavourable evidence. The judge refused to allow the question, noting that the defence could ask when they questioned Chant. The author points out that it would be just as impermissible to ask the question of Chant as it was (supposedly) to ask it of the officer (146). Thankfully, when the Crown tried that objection later, he was unsuccessful (164). Chant admitted that he did not tell police anything at the time about the identity of the attacker – on 3 distinct occasions. Of course, his earlier statements to police were never provided, as police took even more “liberties” with disclosure back then than they do now.

Some very well-coached Crown witnesses were not providing the hoped-for testimony (regarding time of incident, other people around (151). At the prelim, Chant claimed he saw Marshall pull a knife out of his pocket and stab the victim. At trial, he said he saw him pull something out of his pocket, and he wasn’t sure what it was (155). The Crown “saved” that mistake by later reading out the transcript in the presence of the witness – clearly reminding him of his previous “forgotten” testimony. Suborning perjury again, methinks (159).

The witness didn’t recognize the attacker at the time and didn’t remember what the attacker had “hauled” out of his pocket. After much “gentle” prodding by both the Crown and the judge – mostly without the jury present – he adopted his previous perjury – for the most part (162). The judge also asked more questions at the end of his testimony – further reinforcing the evidence.

Meanwhile, the other main Crown witness, John Pratico, an extremely troubled young man, tried to recant his entire testimony before testifying – in the presence of one of the defence lawyers, the Crown, and Marshall’s father. He said his previous statement that he saw Marshall stab the victim wasn’t true. The Crown reminded him of the penalty for perjury – a common tactic designed to encourage perjury, ironically – if the false story is changed, the accused is threatened with “perjury.” It worked. His trial testimony was more-or-less what the Crown hoped for – pure perjury. He was actually very drunk at the time of the murder – as he admitted at trial (171) – Crown tried to use his admission to drinking to show his “honesty” – 213 – a common pathetic trick these days, as well. He admitted to telling another kid, Tom Christmas, that Marshall hadn’t stabbed Seale. He claimed to see the stabbing – despite being drunk – and that Marshall stabbed with his right hand – he was actually left-handed (note that the cut to his arm was to his left arm).

When defence tried to ask him about his recantation the day before, it was mostly shut down by the judge, “limiting” the defence to “relevant” matters – essentially deciding it was not relevant (how convenient! – 177). No one told the defence about Pratico’s being a patient in a psychiatric institution. The Crown and judge both seemed “convinced” that someone had “tampered” with Pratico, given that he had tried to recant some of his perjury (181). The Crown then brought up Tom Christmas (another Marshall friend) “threatening” Pratico, mentioned the associated charges, then conveniently neglected (he’d “momentarily forgotten” this detail – 183) to mention that he himself had previously withdrawn the charges – as they were obvious lies. Obstruction of justice by falsely accusing Christmas of same, no doubt.

This time, unlike in Truscott’s wrongful conviction, the accused chose to testify in his own defence. Not that it made much difference. He was railroaded all the same.

Credibility, reliability entirely the issues at trial. As in many of these cases, no “hard” evidence. Nothing but lies for the Crown case. As usual, the Crown got a wrongful conviction, and we’re all left scratching our heads wondering how it happened – on one of the rare occasions that we acknowledge a wrongful conviction.

The judge’s charge to the jury was very obviously biased against the accused (suggesting no motive to lie for Chant, for example, and that his flip-flopping was less than material, and that there was no evidence Chant and Pratico were “in cahoots” – 215-8). I guess there wasn’t “evidence” either that it was a complete frame job by the police, either.

The guilty verdict followed a mere 4 hours after the charge to the jury. The judge thanked counsel – praising the Crown for “displaying an attitude that was in the best tradition of the profession of law” (219). Did he mean by the Crown’s obstructing justice, suborning perjury or inducing a wrongful conviction? It’s not clear.

The sentence was life imprisonment – thank goodness capital punishment was abolished in Canada a few years before (de facto abolished in 1963, formally in 1976).

A few days after the wrongful conviction, the police had a witness (MacNeil) who actually witnessed the murder try to tell them what he knew. He was told to get lost, essentially – by both police and the Crown, after police very briefly questioned the actual murderer (believing his pathetic and self-serving denial and after he passed a lie detector test, despite having a very related criminal record involving a knife). Also, some of the Crown witnesses had previously told police versions of events similar to what the truth actually was – a truth practically beaten, of course, out of them by the police and Crown, and not disclosed to defence). Of course, defence was not told of any of this. Meanwhile, Marshall had been appealing his conviction – this information may have been helpful on a fresh evidence application.

Marshall had to lie (pretend he was guilty) to satisfy the prison officials to move him to a medium security institution (this is extremely common nowadays, too, particularly at parole hearings – heaven help a wrongfully convicted person who refuses to “admit” guilt or otherwise confess).

In 1981, Marshall was introduced by chance to the person who witnessed the murder. He then wrote to the actual murderer (Roy Ebsary), pleading with him to admit to his crime. He wrote, “I pray that you’ll be honest about it and ask God to give me the strength to forgive you and to forgive the people that were involved with my Trial” (308). Finally, the police opened a proper investigation into the wrongful conviction, and quickly determined the truth. He was finally allowed out on parole in 1982 – once it started to become obvious that he was, in fact, innocent.

After the fresh evidence hearing on appeal, both Crown and defence recommended an acquittal. The Crown’s factum included this gem: “it seems reasonable to assume that the public will suspect that there is something wrong with the system if a man can be convicted of a murder he did not commit” (366). YA THINK?

Apparently, the new story that Marshall provided to the new RCMP investigator Harry Wheaton was that he and Seale were attempting to rob Ebsary when the latter stabbed them. This was consistent with the story Ebsary finally told the investigator. Previously, Marshall had testified that they had merely offered cigarettes to Ebsary when Ebsary got angry at them. Bill Swan strongly criticizes this version (of a robbery) as having been pressured out of Marshall by the investigator in Marshall’s eagerness to get released from prison, even though it may have not been the truth (p. 155). Apparently, the Commission in 1989 was also highly critical of this detail, finding that Wheaton had placed stress on Marshall to induce this “detail.” It also served to partially absolve the system of its misconduct and greatly reduced the amount of compensation he was entitled to.

The Crown went on to blame the accused for his wrongful conviction – as appalling as it was false. Somehow, to uphold the “integrity” of the system, we need to blame the victims of it. What a joke. No mention at all of any of the perjury suborned by both the Crown and police, surprisingly. Shockingly, the 5 justices of the Nova Scotia Court of Appeal endorsed the Crown’s historical revisionism, disgracefully agreeing with the Crown that his wrongful conviction was entirely his fault (paras. 79-85, emphasis added – R. v. Marshall, [1983] N.S.J. No. 322 (NSCA) (QuickLaw/Google) – 48 pages):

Donald Marshall, Jr. was convicted of murder and served a lengthy period of incarceration. That conviction is now to be set aside. Any miscarriage of justice is, however, more apparent than real.

In attempting to defend himself against the charge of murder Mr. Marshall admittedly committed perjury for which he still could be charged.

By lying he helped secure his own conviction. He misled his lawyers and presented to the jury a version of the facts he now says is false, a version that was so far-fetched as to be incapable of belief.

By planning a robbery with the aid of Mr. Seale he triggered a series of events which unfortunately ended in the death of Mr. Seale.

By hiding the facts from his lawyers and the police Mr. Marshall effectively prevented development of the only defence available to him, namely, that during a robbery Seale was stabbed by one of the intended victims. He now says that he knew approximately where the man lived who stabbed Seale and had a pretty good description of him. With this information the truth of the matter might well have been uncovered by the police.

Even at the time of taking the fresh evidence, although he had little more to lose and much to gain if he could obtain his acquittal, Mr. Marshall was far from being straightforward on the stand. He continued to be evasive about the robbery and assault and even refused to answer questions until the court ordered him to do so. There can be no doubt but that Donald Marshall’s untruthfulness through this whole affair contributed in large measure to his conviction.

We accordingly allow the appeal, quash the conviction and direct that a verdict of acquittal be entered.

No doubt this dubious opinion from the NSCA adversely affected his compensation. It also reflects the grossly unethical inability of “the system” to admit fault – also something seen nowadays all the time. The judgment is – correctly – called “pitifully grandiose and self-serving” (369). The “judgment was quickly assailed in the press as a political rather than a judicial document, a mere whitewash” (369). Does anyone criticize the judicial system like that these days? Even a whisper that our justice system might be slightly political is generally roundly denounced these days – blasphemy! In Canada, of course – in the US, I understand criticism of the justice system is allowed.

When it came to compensation, the Crown refused to release its file to Marshall’s lawyer – adversely affecting his quantum of compensation (the less of their misconduct he know of, the better – from its perspective). He was finally offered $270,000 in 1984 – inclusive of his legal bills – an absolute pittance, which he accepted, because he was desperate. He also needed to waive the right to sue.

The actual murderer was eventually sentenced to one year of jail for the cold-blooded murder, the same offence a young Marshall was wrongly sentenced to life in prison for (R. v. Ebsary, 1986 CanLII 4648 (NS CA).

The entire 7-volume 1989 Royal Commission results appear to be available here. A brief 44-page synopsis is available here. It includes the following scathing comments about the Nova Scotia Court of Appeal (reproduced at Bill Swan, p. 155):

We are at a loss to understand how the Court of Appeal could conclude that there was no miscarriage of justice when, on the evidence before it, Marshall’s conviction was secured by perjured testimony obtained through police pressure, and his counsel was precluded from full cross-examination because of lack of disclosure by the Crown.

For any citizen to spend eleven years in jail in a federal penitentiary for a crime he did not commit constitutes – even in the narrowest sense – a miscarriage of justice in the extreme.

Apparently, the Canadian Judicial Council struck an investigation into the Court of Appeal’s conduct – almost unheard of these days on wrongful convictions, unfortunately. See p. 36 of its findings, strongly criticizing the NSCA for stating that it was not a miscarriage of justice. Despite the NSCA’s “legal error” and “inappropriate comments,” the CJC decided not to remove the judges from office (p. 39). Ah well. Shocking result when compared to that of Judge Camp – a blog post I need to get to already.

See also A scathing report | Maclean’s | FEBRUARY 5, 1990 ( and Eleven years of hell | Maclean’s | SEPTEMBER 8, 1986 (

Another thing was his junior appeal lawyer (Stephen Aronson) worked mostly pro bono and suffered from burnout, quitting law after the experience. Similarities with Ross Mackay, below.

Arthur Lucas and Ronald Turpin

I read a terrific book about famed defence counsel Ross Mackay: Ross Mackay, The Saga of a Brilliant Criminal Lawyer: And his big losses and bigger wins in court and in life: Batten, Jack: 9781988824390: Books – (2020). He is also referred to by James Lockyer in his 2021 Sopinka Lecture quoted above. A terrific defence lawyer who battled personal demons (addictions and whatnot) and died at 51 years old. The above two convictions were the last executions in Canada, and Mackay defended both (2 weeks apart, mind you) in 1962. The first (Lucas) seems to be almost certainly a wrongful conviction, while Turpin’s is 50/50, I’d say. See The end of the rope: The story of Canada’s last executions | The Star

Lucas was accused of a double murder in Toronto. There was almost no evidence of his guilt, other than a ring at the scene which had belonged to him (Lucas claimed to have pawned the ring). Police officer (Fallis) had seen Lucas in a diner the morning of the incident and would have made a helpful alibi witness had he been willing to assist Mr. Lucas (spoiler alert: he wasn’t).

On the morning of Day 1 of Lucas’ trial, the experienced Crown (Henry Bull) informed a young Mackay that he wanted to advance a last-minute motion to try the accused on both victims together. The main concern for Mackay was an extremely graphic photograph would now be entered into evidence before the jury, where it otherwise wouldn’t need to be. Helpfully, the Crown opined that it would “do no injustice to the accused” (p. 111). Technically, the judge denied the Crown’s application (in that he did not put both murders on the same information), but he allowed the application insofar as to allow the photographs from the non-related murder into the first trial. Ross had “the horrible feeling that Bull had suckered him. Bull was going to get the explicit and grisly photo of Newman shown to the jury” (p. 113).

When Mackay later objected to the photos on the obvious grounds of prejudice, Bull insisted they were needed to show the location of the injuries. Justice McRuer agreed with Bull “every step of the way” and went so far as to asset “I am quite sure the jury will not have their minds inflamed.” Did I mention, the judge was Jim McRuer AKA “Hanging Jim” – celebrated in this book, and later Chief Justice of Ontario.

Then, Bull introduced into evidence the blood-soaked bedsheets, leaving them in the courtroom for the next few days. Mackay later said, “there was no doubt in my mind that the stench of the bloody sheets effectively denied Lucas a fair trial” (p. 114). Duh!

For Lucas’ cross-examination, McRuer often joined Bull “in a kind of tag-team questioning” (p. 121). They focused on Lucas’ lifestyle as a pimp – entirely irrelevant to the charges and entirely prejudicial bad character evidence, likely to sway the jury toward conviction (surprise!). A law student observing the trial (Nancy Morrison – later a judge in BC) observed that the words being “hammered” at the jury throughout the trial were “pimp” and “Detroit.” To her, it seemed that Mackay “got no breaks whatsoever from the judge. But the Crown did” (p. 123).

During Mackay’s closing submissions, McRuer interrupted to admonish him that circumstantial evidence had more substance than Mackay was allowing for, and to accuse him of conjecture (p. 125).

The Crown’s closing (predictably, not at all interrupted by McRuer) suffered from some major flaws, including suggesting he had called all the evidence had had promised to (in fact he hadn’t; he had promised to exhibit slightly bloody clothing of Lucas’ and hadn’t) and suggested that Lucas’ testimony was new (in fact, he had given largely the same story to Detroit police officer McCarty – Mackay later regretted not subpoenaing McCarty to testify – although he likely would not have attended – and when appellate counsel later wrongfully blamed Mackay for the wrongful conviction it was largely on this ground).

A mere 2 weeks after Lucas was wrongfully convicted and sentenced to hang, Ronald Turpin’s trial began. The trial judge (George “Bill” Gale – also later Chief Justice of Ontario) insisted on starting the trial earlier – to Mackay’s great dismay and despite his desperate plea not to do so.

Turpin was charged with murder for killing a police officer (Nash). He insisted it was self-defence and the officer had shot first. He was well-known to police, and had good reason to believe they would kill him on sight, as he was considered armed and dangerous.

On the first day of trial, Mackay tried to have the trial moved out of Toronto, and hence adjourned by default. Gale refused the application, “seizing on the one misstep Mackay took in his pleadings” (p. 141). Examples of pre-trial negative publicity cited by Mackay included one in a tabloid called “Hush Free Press,” with Gale opining that it was “a rag circulated amongst persons who have peculiar tastes.”

The Crown was Arthur Klein. The defence was essentially self-defence. Turpin testified, obviously.

In Gale’s charge to the jury, he “left no doubt which side he preferred” (p. 157).

“You heard of his way of life,” Gale said of Turpin. “Is he likely to tell a falsehood to protect himself at this trial? Was he guilty of some contradictions in his own evidence?”

Gale couldn’t find a single item in Turpin’s story that could be described as credible. Many of the details were implausible. Some defied commonsense. Predictably Gale ridiculed Turpin’s version of the opening minutes of his encounter with Nash when, according to the picture that Turpin drew, Nash balanced his police flashlight, his own gun and Turpin’s gun, the keys to the truck […]

In Gale’s further opinion, the Crown had proven beyond a reasonable doubt that Turpin intended to kill Nash or to do him bodily harm that he knew was likely to cause death. Gale explained to the jurors that these were just his personal conclusions. The jurors could make up their minds for themselves. Then, rather as an afterthought, Gale offered a precis of Mackay’s case for the defence.

“It wasn’t very hard to see where things were headed,” Mackay’s assistant, Steve Posen, said years later. “The attitudes of Arthur Klein and Justice Gale were leading in the same direction, which was a conviction of capital murder.” […]

With the greatest of respect,” Mackay said, “Your Lordship has left the impression that there is nothing favourable to say about Turpin.”

“I am inclined to think that is so, Mr. Mackay,” Gale said.

I pause to note that judicial comments showing bias toward the Crown would appear to be entirely improper (note that the same thing happened in Truscott, Marshall, Lucas, etc.). It is appalling that this was (and/or is) acceptable to anyone.

Gale said Mackay had “brilliantly defended” Turpin. McRuer had said Mackay was “a credit to the profession” in his pro bono defense of Lucas (Legal Aid – as terrible as it currently is – practically didn’t exist back then). Nevertheless, Mackay was somehow “blamed” for the Lucas wrongful conviction.

Appellate counsel Walter Williston decided to make Mackay the “fall guy” for the Lucas wrongful conviction (p. 164). He was unsuccessful at both levels of appeal, although at the SCC, one justice (Cartwright) properly thought it was a wrongful conviction and provided a lone dissent. At the Ontario Court of Appeal (QuickLaw/Google – you’re welcome), “Laidlaw admitted that McRuer erred pretty significantly, all his errors being prejudicial to Lucas, but it was just too bad that these errors weren’t substantial enough to add up to a miscarriage of justice. And in perhaps the most egregious of McRuer’s errors, namely his failure to catch Bull’s false claim about the “damning evidence” of the bloody clothing, the ultimate blame lay, not with McRuer [nor Bull], but with Mackay” (p. 167).

Kerwin, for the SCC majority, found that “everybody made errors during the trial. Bull did, McRuer did, and so did Mackay. Probably, Kerwin appeared to say, Mackay’s errors were the most damning of all. Mackay should have brought Inspector McCarty’s exchanges with Lucas to the trial judge’s attention. That would have eliminated the prosecution’s claim that Lucas invented his own story of innocent behaviour at the time of the killing. It might have made a different in the jury’s decision. But it was too late for any of this, too late to introduce the McCarty material” (p. 169).

Mackay struggled with his demons moreso following these convictions and hangings. The “nightmares with the murmuring soundtrack of the Lucas and Turpin voices still assaulted him every time he lay his head down” (p. 170). Eventually, Mackay’s practice improved, although he was later disbarred for trust accounting irregularities. A few years later, he applied and was re-admitted, but his alcohol (and/or gambling) addiction eventually devolved into a cocaine addiction, and he died of cancer at 51 years old.

Mackay was wrongfully accused of ineffective assistance of counsel while the judges and Crowns were essentially let off the hook – a recurring theme, I’ve noticed.

Sophonow, Morin, Milgaard, etc.

Let’s keep going – shall we?

Eh, I’m already close to 5,000 words (8 pages single-spaced). I think I’ll stop here and aim to continue with a Part 2 in coming weeks, focusing on the following books: Manufacturing guilt: Wrongful convictions in Canada: Anderson, Barrie: 9781895686937: Books –, Convicting the Innocent: Where Criminal Prosecutions Go Wrong: Garrett, Brandon L.: 9780674066113: Books –, and Duped: Why Innocent People Confess – and Why We Believe Their Confessions: Kassin Ph.D, Saul: 9781633888081: Books –

Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding

This is a copy of the letter I sent to Alberta Justice Minister this morning:

August 3, 2022

Via Email to:  

The Honourable Minister Tyler Shandro

Minister of Justice and Solicitor General & Deputy House Leader

204 Legislature Building

10800 – 97 Avenue

Edmonton, AB

T5K 2B6

Dear Sir:

RE:     Inadequate Legal Aid Budget has Roster Counsel at Breaking Point              

Criminal defence lawyers in Alberta continue to work incredibly hard for their indigent, highly-vulnerable clients and to maintain a struggling criminal justice system. They do this despite inexcusable underfunding by both your government of the Legal Aid Alberta (LAA) system over the last few years, as well as inexcusable conduct by LAA to minimize funding it provides to its roster counsel by refusing coverage and challenging invoices at every opportunity (note the CTLA’s comment that LAA engages in a “smoke and mirrors approach to cover up for the fact that they have been given insufficient funding to work with” – CTLA letter, dated July 15, 20220, p. 4 – press release).

While it is difficult to calculate the amount of money owed by LAA to its roster lawyers, it is straightforward to calculate the amount by which your government has underfunded LAA – and by extension, its roster lawyers – over the past few years.

Provincial government funding of LAA steadily increased from 2016 through 2019 (by 57%), and was then drastically cut by 35% through 2021, and slightly increased for 2022 to return back to 2018 levels. The 2022 amount was basically the same as 2017, which is inexcusable to say the least (particularly given the inflation rate of 17% since 2017).

Per the CTLA’s letter to you, emphasis added (p. 4 – and the CBC’s article dated Oct. 11, 2018), “In 2018 the NDP government added $14.8 million to the LAA budget, which was used to cover shortfalls for the 2018 year. The NDP committed to a further $17.5 million for 2019-2020, $16.6 million for 2020-2021 and $21.2 million for 2021-2022.”

The CDLA interprets that generously as a further $17.5 million for 2019-20 exclusive of the $14.8 million added to the year ending 2019 and onwards. While the CDLA’s numbers are somewhat inaccurate (p. 3), they tell a story of $54.6 million underfunded through 2022:

Year Promised Delivered Arrears
2018-2019 $104.1M $104.1M Nil
2020-2021 $105.9M $91.8M $14.1M
2021-2022 $110.4M $69.9M $40.5M

The corrected version should read as follows:

Year Promised Delivered Arrears
2018-2019 $104.1M $104.1M Nil
20-21 (19-20) $107M $91.8M $15M
21-20 (20-21) $105.9M $69.9M $36M
21-22 $110.4M $82.3M $28M
Total     $79M

That’s an additional $25 million unaccounted for in the CDLA’s numbers.

Be that as it may, it is unclear why the numbers should be read as generously as the CDLA does. A simple reading of “a further $17.5 million for 2019-20” is inclusive of the $14.8 million added to the year ending 2019 and onwards. As such, the correct numbers should read [extremely difficult to paste chart here]:


As you can see, the total shortfall (or arrears) owed by your government to LAA is a whopping $174 million (and counting) over the last 3 years alone. At best, reading as generously as the CDLA, the shortfall should be $79 million.

It is unclear to me why this massive shortfall has hitherto been unaddressed by LAA, CTLA, CDLA, etc.

As I pointed out in my latest weekly criminal law update (#1):

Finally, Alberta’s criminal defence lawyers are mobilizing to address the $174 million funding shortfall from the provincial government to Legal Aid Alberta over the last 4 years: Alberta legal aid lawyers threaten job action over ‘funding neglect’ | Edmonton Journal (also Calgary Herald, CBC, Calgary Sun). Correct numbers here (spreadsheet).

I have also blogged about my concerns previously: The train wreck that is Legal Aid Alberta – Moldofsky Law.

I will not get into further detail, such as LAA’s roster spend decreased 16% from 2017 to 2022, while its internal spend increased 26% over that time period. The numbers speak for themselves, and are appalling.

I have reviewed your letter addressed to Mr. Savage, CDLA president, dated Aug. 2, 2022, stating that you are open to eventually consider increasing LAA’s budget, and that, among other things:

Access to justice is essential for Albertans. I encourage you to work with Legal Aid Alberta on their administrative review of the current tariff system. I am confident Legal Aid Alberta’s work on modernizing the tariff system will create many administrative efficiencies increasing accountability, sustainability, and transparency of our legal aid plan.

With the greatest respect, we do not need your platitudes. Nor do we need to “modernize” any LAA tariff system. What we need is for your government to honour its unmet commitment of $174 million over the last 3 years. I technically write only for myself, although I suspect many other defence counsel in Alberta share my views. I am gratified that CTLA, CDLA and other organizations are banding together to send a strong message to your office.

As the CDLA pointed out (p. 8 of its letter), the CBA reported that every dollar spent on Legal Aid returns $6 of public funds saved elsewhere (p. 2, CBA Backgrounder).

Solidarity from LAMDA and WiCCD is appreciated:

Defence counsel work tirelessly to safeguard the rights of some of Alberta’s most marginalized and vulnerable people. They provide skilled and necessary assistance in every corner of the province. They have done so in spite of rates that are a fraction of what Legal Aid organizations in other provinces pay, and with allocated hours, which mean they do much of their work for free.

I eagerly await prompt, public statements of solidarity with the defence lawyers of Alberta from the following organizations (not a complete list):

  1. All levels of Court in Alberta
  2. Criminal Lawyers’ Association (Ontario)
  3. Alberta Crown Attorneys’ Association
  4. Canadian Bar Association – Alberta branch
  5. Legal Aid Alberta
  6. Law Society of Alberta
  7. Calgary Bar Association

I trust the above to be satisfactory and ask that you please contact me directly with any questions.

Yours truly,

Moldofsky Law

Efrayim Moldofsky

Barrister and Solicitor

Ghomeshi, Guilt and Gullibility

Given the Supreme Court of Canada’s recent horrendous decision in R. v. J.J., 2022 SCC 28 (extending its half-decade Crown win streak for sex assaults at that Court to 35) that I blog about here and the recent jury verdict in the Jacob Hogaard case (noting the awful, one-sided media coverage of it), I thought I’d post my comments on the Jian Ghomeshi trial from 2016 which directly led to this awful legislation. Justice Moldaver even made very pointed (clueless, to boot) remarks to defence counsel Megan Savard at the JJ hearing criticizing Ms. Henein’s stellar and irreproachable (per Prof. Craig) defence of Ghomeshi (1:53-2:01). Clearly, the naïve and irresponsible government, media, general public and SCC viewed the Ghomeshi acquittals as a gross miscarriage of justice, when they were, in fact, everything but that. Listen to the recent embarrassing, irresponsible and cringe-inducing podcast by Jesse Brown of Canadaland on this, who continues to refuse to admit defeat (and/or his journalistic misconduct) in attempting to destroy Ghomeshi all these years now. I managed to get my hands on the trial transcripts of the Ghomeshi trial, and will review them below.

Since 2 of 3 complainants have a publication ban, I’ll refer to them as Complainants 1 (L.R.  – edit July 18, 2022 – Linda Redgrave, who subsequently waived the publication ban), 2 (Lucy Decoutere), and 3 (S.D.). Let’s deal now with some of those pesky details, shall we?

When confronted with emails largely contradicting her trial version of events, one complainant claimed the email was “bait” to get him to call to get her to explain why he punched her in the head. She didn’t think a “common person” would believe her explanation – y’think? She claimed at trial that she had no romantic feelings toward him after – again, highly contradicted by her emails (no, nothing at all to do with myths or stereotypes). Of course, nowadays, the SCC and Parliament have ensured that lying complainants are less likely to be confronted with their texts/emails that contradict their narrative without a s. 278 application and advance notice of the lies they can expect to have to answer for.

Complainant 1 (L.R.)

Ghomeshi had a bright yellow VW Beetle at the time (p. 45). He kisses her, then grabs her hair “really, really hard.” Later, she goes to his house alone after a taping. He then pulls her hair and punches her “multiple times” in the head – while he’s somehow also pulling her hair (57). Crown asks her why she didn’t run out of house, why she didn’t scream, why she waited so long to report – all arguably myths, technically. She claims that she didn’t report at the time, because of societal “stigma” of reporting sexual assault – star defence counsel Marie Henein properly objects to evidence of “societal stigma” and ends that.

LR never saw him again, but contacted him again. Did not discuss details of her allegations with Complainants 2 and 3.

Cross-examination – excellent. Begins by confirming that she took oath to tell truth both in police statement and at court. LR had reviewed her statement week prior. Her statement to police (13 years after the alleged incident) took a mere 25 minutes – shocking on its own. Police never asked her to show them neighbourhood of residence (or asked about it). Same with not following up on emails she admitted to sending accused. Does not recall officer telling her not to read more about the case.

Accused was smittennot dazzled (later just an “interest”) – with her. Interesting distinction – obviously fibbing/lying. Denies telling her friend she herself was smitten by accused. Fudges on whether she told friend after first incident that she really liked him and wanted to see him again (technically, arguably a myth – many judges/Crown would eagerly jump in to protect complainant at this point these days on grounds of relevance and/or impermissible myths). Almost gets her to admit that she was angry after 2nd meeting that he was not terribly interested in her. And that her third meeting was meant to be romantic between her and accused. Then gets her to admit that she went straight to the car after – not the pub – given that it was a snowstorm.

Then, gets her on the Beetle – it was a GTI. She’s “not a connoisseur of cars.” Told Kevin Donovan of the Toronto Star that Ghomeshi yanked her hair hard. Then tries to backtrack – Kevin Donovan “changed her story” but admits saying accused yanked her hair hard. Her hair was long at the time – “retracts” her email follow-up to police saying she had hair extensions at the time. Doesn’t admit to lying when she said on TV that he pulled her hair right after she got in the car – during direct, she said after kissing. Other inconsistencies noted (head smash allegation retracted, changes story on whether shocked, etc.). Notes that whatever happened in the car, it wasn’t enough to keep her away (myth?).

Told media she never contacted him again after 3rd incident. Confirms this multiple times. Then Henein pulls out stacks of emails she sent him afterwards. Simply glorious. “Good to see you again” and “your show is still great.” Second email with photoshopped photo of herself in a string bikini – downloaded 3 hours prior to sending. Myths – my foot. Maybe she was too “traumatized” to remember how obsessed with him she was?

Another email says she’s been watching him on TV – despite claiming that every time she saw his face she’d be traumatized.

Complainant 2 – Lucy Decoutere

She met Ghomeshi at a Banff event, and flirted with him. She went to Toronto to see him, and he took her to dinner and then back to her house, where he “started kissing me, and then he took me by the throat and he just pushed me against the wall, cutting off my breath, and he slapped me three times” (228 – as revealed in cross-examination, the sequence had previously been very unclear, in her renditions to media and police). She then stayed, to “placate the situation.” Afterwards, they “might have kissed on the sofa,” sitting close together on the sofa, and kissing each other good night, as she didn’t want to “seem frosty” – all of the kissing is added at trial and not previously mentioned to police nor media, as noted by Ms. Henein in cross-examination (she specifically told police that nothing significant had happened after, as she somehow didn’t think this was “consequential”). She didn’t tell anyone about this incident because she wanted to “protect him.” She then spent the weekend with him, and later sent him flowers (also revealed at or during trial).

On cross-examination, she is confronted with photos of her cuddling Ghomeshi in the park, after the alleged assault. She “doesn’t remember” the photos being taken. She didn’t “understand the relevance of after-incident contact,” which Ms. Henein points out is a “very well-rehearsed answer.” Her prior testimony that she had no intention of pressing charges was a lie, as demonstrated by a message she sent, in which she said she wants him “f**king decimated” – despite her further perjury that she has “compassion” for him. She had some “casual” emails after the fact with him, which she realized she should possibly let the Crown know of the day before – after LR was decimated on the stand. She cannot find the emails, though. Thankfully, Ms. Henein has them, and – at that time – was allowed to ambush the Crown’s lying witness with them.

She previously claimed to have lost access to the emails, but subsequently tells police she deleted them. When she is confronted with these “forgotten” emails, it includes post-incident emails she sent to Ghomeshi such as “Sunday, in my brain has a slot all for you. rrrrrrr.” She signs her subsequent email “torn between two lovers.” She wants to “play with him” in Banff. She further emails, “If I don’t get to hang with you while we are in Banff, I’m going to beat the crap out of you.” She sends a photo to him, with the subject “Proof that you can’t live without me.” She further tells him “let me know when you want to hook up. I’m doing stuff, but would happily use you as a procrastination technique” – note, that her lies statements to police and media were that she had no subsequent romantic interest in him. Also, “had a really great dream the other night. You were with me in Toronto.” Among many other “forgotten” emails is one of her “fellating” a bottle. Although she told police his hands terrified her, her letter said she “loved” his hands. Her emails stated “I think you are magic and would love to see you” and she wants to “frolic on the beach” with him. She “wants to f**k his brains out. Tonight.” Sounds very non-romantic to me! Her love letter that she “forgot” about mentions that he was “too sparkling.” And “what on Earth could be better than lying with you, listening to music and having peace. Nothing.”

Complainant 3 (SD)

After this second devastating Crown witness – also destroyed by excellent cross-examination – Ms. Henein informs the Court that it appears SD had been listening to the news – contrary to the Court’s order – and now also had additional information to “disclose.” They then require a last-minute s. 276 application on the basis of this last-minute disclosure. She met Ghomeshi at a music festival at which she was performing. He takes her out to dinner, and she sees him again at the festival, later. They kiss on a bench in the park, and then she “felt his hands on my shoulders and his teeth and then – and then his hands go around my neck and he was squeezing.” That led to “some difficulty breathing,” and he tried to “smother” her. She then gets a cab and goes home, and her mind is a “big blank” as to what else occurred. She later goes out for dinner (again) and to a bar with him, thinking she may have “misread” the situation. Good lord.

The plot thickens. After the bar, there was further “romantic activity” at her home – this was only disclosed at the last minute, of course. She hadn’t thought it was “relevant” to disclose earlier. If it wasn’t Crown misconduct yet for not staying the proceedings to this point (and/or charging all 3 complainants with crimes of perjury), by now it certainly is.

The lies continue. Despite being obviously terrified of him after their original encounter, she later saw him alone at her home romantically because she was – I kid not – “notoriously known for giving people second, third and fourth chances.” She saw him again multiple times afterwards, before she ended her relationship with him.

Kevin Donovan also apparently “lied” – by saying Ghomeshi attacked her, when she had used less aggressive language and claims to have told him that the kissing was initially consensual. She testifies that he “kind of” choked her with both hands, but she had previously told police that she can’t remember if it was with 1 or 2 hands.

Decoutere messaged her that her police statements will be part of a “Jenga tower” – presumably to topple Ghomeshi. She also demonstrably lied under oath (during direct) that she had not discussed her allegations with Decoutere prior to going to police. Her communications with and about other complainants were properly subject to a disclosure request – although I’m sure many Crowns would consider such disclosure “irrelevant” and/or privileged (particularly pertaining to its conversations with complainants).

She is shown to have lied when claiming to have no interest in Ghomeshi (“professionally” and/or personally).

Just to get defence’s hands on disclosure of all of this correspondence, clearly very difficult – even before the idiotic legislation, and especially now. Defence had to go through costly, lengthy, unpredictable third-party disclosure records applications, it appears. SD writes to Decoutere, “They didn’t get into specifics, but for example, if they want our conversation even though the cops have it, they have to put in an application for it, then I, we, would sit with a court appointed lawyer and go over everything and decide what can, cannot be shown. They also said it really depends on how much money he wants to spend. More digging, more money.” It is alarming that most liars can so easily get away with their lies – back then, and especially now. God forbid we allow defence access to any “embarrassing” or “highly personal” communications! Since the presumption of innocence is an absolute joke (or a rape myth) – at best, what could possibly go wrong with this policy?

SD’s very last-minute disclosure of having spent some more time with Ghomeshi and engaging in sex with him, apparently at her place and he spends the night there – clearly blocked from her “traumatized” mind until the very last-minute, coincidentally. Of course, SD insists (with a straight face, apparently) that this minor detail was “irrelevant” – incidentally, likely agreed to by the Crown, SCC and everyone else. She had lied under oath to police previously when she said there was no consensual sexual contact. Only things that “made her feel bad” were relevant, in her view. It was an “omission” and of an “embarrassing” detail (a “misjudgment”), she later claims – and not at all a lie. And things she did not expect to be called out on for lying about, I’d respectfully submit.

Incidentally, it is not too late for the Ontario Attorney General to do its duty and charge all 3 lying complainants with perjury, which was extreme and blatant in this case. Surely, they’ve been busy and have merely overlooked their responsibility and ethical obligations to date on this file. If they refuse to do their duty, individuals should initiate a private prosecution. It is appalling that blatant criminal behaviour is overlooked, excused and encouraged when it comes to Crown witnesses.

R. v. Ghomeshi, 2016 ONCJ 155 is a very fair, reasonable and understated judgment, detailing the (obvious) reasons for the acquittal. Horkins J. points out (gently, I’ll add) with regard to LR that “The impossibility of this memory makes one seriously question, what else might be honestly remembered by her and yet actually be equally wrong?” (para. 36). And “The negative impact that this after-the-fact conduct has on L.R.’s credibility is surpassed by the fact that she never disclosed any of this to the police or to the Crown” (para. 40). LR’s evidence was approached – properly – “with great scepticism” and she “deliberately breached her oath to tell the truth” (paras. 41, 43).

Ms. Decoutere’s further encounters with Ghomeshi, were in her view “inconsequential” (paras. 53, 59) – which reminds me of similarly memorable language at para. 80 of R. v Saddleback, 2020 ABPC 168. Horkins J. finds, correctly, that “It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police” (para. 60). Inconsistencies in her narrative of the sequence of events – while generally forgivable (yuck – para. 64), are inexcusable in this instance, due to the “shifting” narrative. In violation of her oath to tell the police the truth, she made the choice to “consciously suppress relevant and material information” which indicates (again – gently) “a failure to take the oath seriously and a wilful carelessness with the truth” on Decoutere’s part (para. 67).

We’re just getting started (paras. 87, 94, 109, 114):

In the framework of a credibility analysis in a criminal trial, Ms. DeCoutere’s attempt to hide this information evidences a manipulative course of conduct. This raises additional and mounting concerns regarding her reliability as a witness. […]

Let me emphasize strongly, it is the suppression of evidence and the deceptions maintained under oath that drive my concerns with the reliability of this witness, not necessarily her undetermined motivations for doing so. It is difficult to have trust in a witness who engages in the selective withholding relevant information. […]

The extreme dedication to bringing down Mr. Ghomeshi is evidenced vividly in the email correspondence between S.D. and Ms. DeCoutere. Between October 29, 2014 and September 2015, S.D. and Ms. DeCoutere exchanged approximately 5,000 messages. While this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the Court to proceed with caution. Ms. DeCoutere and S.D. considered themselves to be a “team” and the goal was to bring down Mr. Ghomeshi. […]

S.D.’s decision to suppress this information until the last minute, prior to trial, greatly undermines the Court’s confidence in her evidence. In assessing the credibility of a witness, the active suppression of the truth will be as damaging to their reliability as a direct lie under oath.

It gets even better (paras. 118, 119, 121, 135, 137, 138):

I accept Ms. Henein’s characterization of this behaviour. S.D. was clearly “playing chicken” with the justice system. She was prepared to tell half the truth for as long as she thought she might get away with it. Clearly, S.D. was following the proceedings more closely than she cared to admit and she knew that she was about to run head first into the whole truth.

S.D offered an excuse for hiding this information. She said that this was her “first kick at the can”, and that she did not know how “to navigate” this sort of proceeding. “Navigating” this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth. […]

The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in this particular case. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct. […]

However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances. […]

Each complainant was confronted with a volume of evidence that was contrary to their prior sworn statements and their evidence in-chief. Each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion. It is this aspect of their evidence that is most troubling to the Court. […]

The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception. [emphasis added]

The consensus among media and legal academics was generally that Horkins J. was wrong – if not in his verdict, than in his stated reasons for it. Joshua Sealy-Harrington (a moderate, I suppose; others would probably call for Horkins’ immediate firing) accuses Horkins J. of making “genuine mistakes.”

Sealy-Harrington says, “In other words, Justice Horkins declines the harder position that these complainants lied about being assaulted and adopts the softer position that, due to their inconsistencies, the veracity of their claims of assault is not beyond reasonable doubt – a reasonable conclusion based on the record before him, and a conclusion that carefully delineates the dishonesty he is actually identifying in his reasons.” Technically, he’s correct – Horkins J. did not call them actual liars about everything (I suppose he wanted to keep his job), but he came pretty darn close to it, actually. Further:

It is undeniable that Justice Horkins’ description of this behaviour as “odd” is rooted in the stereotype that credible sexual assault victims avoid their abuser at all costs after an assault (even though the contrary has been consistently documented in the context of sexual abuse, and even though such an expectation surely imposes absurd expectations on women assaulted by their ongoing partners (see here and here).

No, actually. It has nothing to do with stereotypes; everything to do with lies.

Of course, irresponsible media and legal academics and practitioners fell over themselves in their rush to condemn the acquittals, some using reserved language, like Sealy-Harrington (while most did not). Surprisingly, Prof. Elaine Craig (perhaps the least responsible academic of the self-proclaimed “experts”) did not criticize the judgment in her book, although she was as big a proponent for the atrocious legislation that arose from it as anyone else. If the judge was in Alberta, I assure you there would have been a Crown complaint about him.

Alice Woolley (previously an academic, and now a justice in Alberta – a former professor of mine and actually a decent person) criticized the judgment too. What is consistently and conspicuously absent from all of this “analysis” is the presumption of innocence, which I understand has not yet been classified as a rape myth (not that I should give the SCC and Parliament any more bright ideas). And no, it was not the prosecutors’ fault that the complainants lied through their teeth – what may be their fault is the prosecutors not seeing that sooner and failing to stay the proceedings when they did. Clearly, blaming the prosecutors in this case (or the judge or defence, what have you) is necessary (“Further, it allows the lawyer to help ensure that the witness gets to provide her testimony, and that she will not end up looking like a liar when she is telling the truth”). Bollocks!

Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207

I read a recent ABCA case of a conviction appeal dismissed that illustrates for me the extent of the quagmire that is sexual assault law in Canada.

The decision is indexed as R v BEM, 2022 ABCA 207. The majority decision is by Schutz and Slatter JJ.A., with a partial dissent by Veldhuis JA (on one issue only – far from the only problem with the conviction) – allowing for an appeal as of right to the Supreme Court of Canada on that issue alone.

The conviction was by a jury in 2021, for a historical sexual assault allegation. The trial judge was Henderson J. The charges appear to have been laid in 2015, and they were alleged to have occurred some 25 years prior to the trial (para. 3). Para. 4 begins, “The defence position was that the sexual assaults never occurred, which involved a direct challenge to the believability of the complainant.” This sentence grates on my nerves (like nails on a chalkboard) and is a good example of what bugs me about the decision. It is also not the only such sentence. The defence position clearly was not that “it never occurred” but rather that the Crown did not prove guilt beyond a reasonable doubt. This is not a credibility contest, nor is it an inquiry. The defence position “involved a direct challenge to the believability of the complainant”? How about “the Crown position involved a direct challenge to the believability of the accused” – that would be a lot less problematic. Essentially, to paraphrase the great BARD, “presumption of innocence – whither art thou?”

The main issue is whether the Crown’s “story” to the jury about his own childhood memories was prejudicial to the accused – the majority somehow found that it was not. Apparently two wrongs make a right – as defence counsel had referred briefly to his childhood (mentioning that 25 years ago was “40 pounds and a bunch of grey hairs ago” – italics in original, para. 6), the Crown’s misconduct story with extensive detail about his own childhood memories was somehow on par with that, and was “not serious” (para. 28).

It gets worse. The Crown appears to give extensive unqualified “expert evidence” on the subject of trauma and memory. For example, at para. 13 (emphasis added):

Why can’t [the complainant] give you more detail about what she considers — she says now she believes to be the first time? Well, here is a suggestion, trauma perhaps. The first time initially I think there would be a greater – it’s common sense to reason a greater level of trauma to a 13-year-old child. As it becomes routinized, that is routine, perhaps less trauma as the events are ongoing. (Transcript, p. 190, l. 35 to p. 191, l. 3)

See my recent comments in Trauma and memory – Moldofsky Law (along with this). Shockingly, no criticism by the ABCA of this “expert” evidence whatsoever. The Crown gives more “expert evidence” in para. 13 about how memory works. How the Crown can get away with not calling an expert on memory at this type of trial is simply unconscionable and is probably misconduct in and of itself. I guess making it up as we go along is just fine and dandy for the ABCA.

Here’s another incredibly problematic paragraph (para. 14, emphasis added):

Crown counsel then discussed some of the possible shortcomings in the complainant’s evidence, specifically relating to details of events that happened 25 years earlier, inconsistencies, and gaps in her memory: whether and how her clothes were removed at particular times, what type of clothing she was wearing, whether or when she was in a bed, timing of the assaults, locations etc. Crown counsel discussed inconsistencies between the complainant’s statement to the police, her testimony at the preliminary inquiry, and her testimony at trial. He argued that differences in recounting complex historic experiences at different times did not necessarily mean that the memories were unreliable. Crown counsel argued that the complainant’s failing to “fill in the gaps” in her evidence showed she was attempting to be truthful.

Where does one even start? Inconsistencies about all sorts of details – one would argue not peripheral ones, in that it deals with locations, etc. – can all be chalked up to trauma, somehow, and are not only not credibility problems, they’re credibility boosters! Oath helping, if you will – the more inconsistencies, the better! We’re not even ashamed, at this point. To hell with that quaint, outdated notion of the presumption of innocence – that went down the drain 50 years ago with the equally-outdated requirement for corroboration!

Despite all of this awful, unqualified Crown “expert evidence” the conviction is somehow good enough. Of course, the Crown applies a blatant double standard, arguing – despite his “expert” opinion – that most inconsistencies in the appellant’s version should be fatal to his credibility (para. 16). He didn’t know if there was a door? Obviously lying! Even more disturbing, “you can rely on [the complainant’s] evidence. You can be confident that she’s telling you to [sic] truth about her lived experience. She’s constrained by the truth” (para. 16). It’s unclear how “constrained by the truth” the Crown was.

The Crown continued with his brilliant oratory (para. 16, emphasis in original):

Well, memories change but yet memories can be relied upon. You know, for years my own personal experience — you know, you can talk about, you know, your own personal experience. It’s a well known analogy — I had a personal memory which I believe to be true that while on a camping trip when I was in grade 3, I slipped in a campground shower, bashed the back of my head, and had to go for stitches. That was my memory. […] My memory has been sort of shifted but fundamentally the truth of the experience — the core of the experience is persistent. Remains the same throughout. And I think that’s what’s happening here. That’s what happens naturally, that’s real life. That’s what [the complainant] is narrating to you folks. A lived experience. You can rely on her evidence (Transcript, p. 200, l. 36 to p. 202, l. 5).

Immediately following the Crown’s closing address, defence counsel “stated that he was “seriously contemplating a mistrial application” because of Crown counsel’s suggestion that the complainant had no motive to lie, and the suggestion that defence counsel had misrepresented that the complainant had testified that the sexual assaults happened “every time”. No objection was raised respecting the Crown’s personal anecdote about slipping in the shower” (para. 17). Unfortunately, the “no motive to lie” angle is not further explored, although absence of evidence is not evidence of absence.

Have a load of this (paras. 37, 39 emphases added):

When the Crown’s address to the jury is challenged, the core issue must be whether the trial was rendered unfair. While it would obviously have been better if the personal anecdote had been left out, it must be considered in context to assess its potential effect on the fairness of the trial. As stated in Pisani at p. 740: “There can be no unyielding general rule that an inflammatory or other improper address to the jury by Crown counsel is per se conclusive of the fact that there has been an unfair trial”. […]

The comment was “folksy”. It was not disrespectful, exaggerated, overzealous, inflammatory, or sarcastic, and it did not invite any prohibited line of reasoning: R. v Tokaryk2019 ABCA 439 at paras. 30-32. It was on the topic of “human memory”, an issue on which evidence is generally not called. Arguments about how human memory works are entirely appropriate, and human memory is a topic on which the jury is expected to apply its life experience. Overall, there is no risk that the Crown’s reference to this personal anecdote resulted in any miscarriage of justice.

Thankfully, Veldhuis JA’s dissent gives us an even better idea of how bad a wrongful conviction this was and is (legally).

The trial judge instructed the jury as follows: “The fact that [the complainant] waited 20 years to make the complaint is entirely irrelevant to the issues you have to decide. You must ignore this fact” (para. 60), with similar comments in para. 61 about the complainant later leaving her young child in the care of the accused. This jury charge is blatantly incorrect. Veldhuis JA for a unanimous panel (para. 1) concedes that this was improper, yet again, not a big enough problem.

Veldhuis JA continues with the completely nonsensical “stereotypical assumptions about sexual assault victims are “a form of ‘prohibited reasoning’, like the rule that the accused’s criminal record cannot be used to show that he had a propensity to commit the crime”. But trial judges and juries are entitled to use assumptions about the ordinary conduct of people to assess credibility” (para. 75). So they’re forbidden but also not forbidden? Super helpful – thanks for clarifying!

Yet again, I bring to you R. v. D.D., 2000 SCC 43 at para. 65 which is relatively straightforward and it’s unclear why it’s constantly butchered by so many courts and Crowns (emphasis added):

[T]here is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave.  Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse.  Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.  In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.  A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

It is one factor to consider – but not the only one. It is not prohibited nor forbidden!

See also R v ADG, 2015 ABCA 149, which surprisingly gets it mostly right (at para. 32, emphasis added):

Yet this does not mean that no consideration whatsoever can be given to the timing of the disclosure of abuse: R v TEM, 1996 ABCA 312 at paras 9-11, 187 AR 273, leave to appeal to SCC refused [1997] 2 SCR xv. The importance of delayed disclosure will vary depending on the circumstances of the particular complainant: TEM at para 11. Victims of sexual assault will have different reasons for reporting abuse at different points in time. It is up to finders of fact to evaluate the testimony of complainants and determine their credibility on the basis of all the evidence, including the timing of their disclosure.

R. v. Roth, 2020 BCCA 240, cited by Veldhuis JA at para. 73, also does a somewhat-better job, at para. 130-131, emphasis added:

However, this does not mean that the evidence surrounding the driver’s attendance at the home, including the complainant’s conduct during that interaction, was not open for consideration in the credibility assessment and the trial judge was obliged to steer away from it.  The risk of myths and stereotypes distorting a judge’s fact‑finding or reasoning process does not prohibit use of a complainant’s behaviour for all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court).  Although a piece of evidence may carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole, in the context of the case’s particular “factual mosaic”: R. v. D.(D.), 2000 SCC 43 at para. 65Kiss at paras. 101–102.  In my view, what A.R.D. and like cases warn against is the improper use of this type of evidence, not any use at all.

The sole “bone” Veldhuis JA throws the accused here (and the majority agree with her on this point – para. 1) is para. 77:

But that does not mean that a delay in reporting is always “entirely irrelevant” and must be “ignored”. It would have been more helpful if the jury was told something like:

“The fact that [the complainant] waited 20 years to make the complaint is something you may consider. However, do not rely on any stereotypical assumption that sexual assault complainants will immediately report an assault because there are many reasons for delayed reporting. You should consider all the circumstances surrounding the events before deciding if the case has been proven beyond a reasonable doubt.”

In this case, the appellant concedes that the instruction was sufficient because on this record, the delay was irrelevant. That is simply because the defence did not choose to make any use of it, and it had no probative value. But in another case, the late delay might have some probative value beyond the stereotype.

While the above from Veldhuis JA is remarkably ambiguous and non-committal, it’s far better than what we usually see on the subject of myths – particularly in Alberta and the Supreme Court of Canada, the latter of which has a current 34-case Crown win streak.

The leaving her child with the accused is a “myth” to the extent that it assumes she’d “avoid” him – again forbidden but also allowed, apparently (para. 79). To the extent that it argued her credibility was adversely impacted because she said she wanted to cut off all contact with him – that was apparently a “legitimate” avenue of attack (para. 80), despite the fact that she did not appear to say that she did cut off all contact.

I’ll leave you with a fantastic, related article, Due Process for College Students Undermined by New Jersey Title IX Bill ( (emphasis added):

However, some of those “providing services” to victims are also meant to be impartial investigators of serious allegations, such as university employees involved in adjudicating allegations of sexual assault. Giving “victim-centered” training to those employees raises the question of whether a victim-centered approach also allows for an impartial examination of the evidence and testimony for and against a student accused of sexual assault.

Students accused of Title IX violations already face low standards of evidence. If S.B. 2469 passes, every university employee involved in hearing a case would also be trained to see the accuser as more credible by default.

Such training requirements exist elsewhere in higher education. According to “Title IX and ‘Trauma-Focused’ Investigations: The Good, The Bad, and the Ugly,” a 2019 paper published in the Journal of Applied Research in Memory and Cognition, these trainings often assert that a victim must be believed—even if their story is deeply flawed. In fact, they often argue that having a confusing or unclear story is a sign that a complainant is telling the truth—as such flaws in testimony are the result of trauma. As the authors write, “A particularly ugly feature of [this] training is that it specifically suggests that if memory reports of alleged victims fit the ‘profile’ of those expected from a trauma victim, this fit should serve as evidence that the report is true.”

In a 2015 Harvard Law Review article, legal scholar Janet Halley examined Harvard’s “victim-centered” training, writing that it “is 100% aimed to convince [employees] to believe complaints, precisely when they seem unreliable and incoherent.” If Title IX investigators and decision makers are taught that every complainant is telling the truth—and that any inconsistencies are themselves signs of trauma—then any hearing is essentially a show trial. The accuser is telling the truth because they are the accuser, regardless of what the accused may say in response.

Requiring these trainings only makes sense if legislators believe that everyone accused of a Title IX offense is guilty—something which has been proven over and over to be untrue. The uncomfortable truth about Title IX investigations—and sexual assault investigations more broadly—is that there is rarely conclusive evidence against the accused, and some accusations are indeed false.

Sexual assault is a serious crime that often goes unpunished. However, we shouldn’t respond to this unpleasant fact by attempting to lower the standard of evidence—or in this case, bias Title IX employees toward the complainant.

Title IX investigators make crucially important decisions about whether to find someone responsible for sexual assault and intimate partner violence. Training Title IX employees to see the complaining party as always truthful, as S.B. 2469 would require, also means training them to assume that the accused party is always guilty. That is not a just scheme, even if it guarantees that every actual victim receives justice.

Trauma and memory

Since I’m no brain scientist, I thought I’d crack open a textbook (crowns believe in textbooks, right?). I had a look at Witness Testimony – Anthony Heaton-Armstrong; Eric Shepherd; Gisli Gudjonsson; David Wolchover – Oxford University Press ( – 2006 (thank goodness for a solid Calgary law library).

While skimming the book, I was looking very closely for the expected chapters on how traumatic memories can be incredibly unreliable and inconsistent – as assumed by most criminal lawyers and judges these days, especially when it applies to a complainant’s weak evidence. To my shock, I couldn’t find a single chapter (or page) stating this assumption!
The book is from 2006, long before the #MeToo movement, so maybe that explains it. It is amazing what kinds of horses**t pass for “common sense” and law these days.

As I mention here at #4, R. v. G.M.C., 2022 ONCA 2 states the following (emphasis added, para. 38):

After his general observations with respect to the assessment of evidence, the trial judge simply expressed some propositions, grounded in common experience, that are familiar to every trial judge and lawyer and to lay people. Although he used different language, I would express these as:

  • observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;

Similarly, see the disturbing case of R v ADG, 2015 ABCA 149, at para. 33, emphasis added, which I mention here:

The Supreme Court of Canada has made clear that sexual assault cases should be decided “without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R v Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v DD2000 SCC 43 at para 63, [2000] 2 SCR 275.  It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way.

See also the irresponsible and dangerous claim made by L’Heureux-Dubé J. in R. v. Osolin, 1993 CanLII 54 (SCC) (cited approvingly by Prof. Tanovich in his similarly-irresponsible article that I review here), supra note 4 at 625, where she notes that (emphasis added), “[t]here is absolutely no evidence to suggest that false allegations are more common in sexual assaults than in other offences; indeed, given the data indicating the strong disincentives to reporting, it seems much more likely that the opposite is true.”

Now let’s see what the textbook says. It begins “when witnesses lie by providing an account – whether to investigators or in court – which they know to be untrue the detection of their deceit, especially if they appear plausible or where there is no supportive or contradictory evidence, is elusive and prone to error” (p. 2, emphasis added).

Chapter 6 deals with recovered memory and false memory, and Chapter 7 deals with “crime-related amnesia.” Surely, Chapter 7 deals with trauma-related memories? Not really. It mostly deals with offenders and their convenient claims of “amnesia” – moreso than those of “victims.” As “a rule of thumb, one can say that 20 to 30 per cent of those who commit violent crimes claim amnesia” (p. 107). It states that older studies showing 20 per cent of offenders who claimed amnesia were malingerers (liars) is actually a very low number, and there are “good reasons to believe that the rate of malingering is much higher” (p. 109). Surely, no complainants are malingerers, especially if they’re brave enough to claim to be assaulted, given “disincentives” to reporting?

Here’s the “money” quote (p. 111, emphases added):

In comparing offenders’ memory before, during, and after the crime, Christianson and von Vogelsang [footnote omitted] found that it was more common to completely lose memory of what happened during the crime than information immediately before or after the crime. This pattern was evident for both groups, but was most pronounced in the reactive group. Note that this pattern is opposite to what is normally found when studying memory for emotional events. That is, subjects typically remember the emotion-inducing event quite well, but show impaired memory for information preceding and/or succeeding the highly arousing event.

This would suggest that the “law” that “trauma-affected” memories (of course, assuming trauma occurred, which is perhaps inconsistent with the presumption of innocence, to start) are often recalled poorly is nothing but pure, unadulterated, Grade A Alberta horses**t – of course, it is also binding “law” on just about all courts. It is not “soft science” or any other kind of science – although it is perhaps a selective distortion of science.

I also deal with this here, at #6. Note that my favourite podcast recently dealt with this topic, as well.

Complainants are well-coached by Crowns (ethically or otherwise) these days to claim “trauma” and to insinuate that their glaring inconsistencies should be entirely discounted, given their “trauma.” I had one lying complainant claim that “you’re in trauma. You’re not going to remember everything until everything settles out” explained why she left out significant details in her initial report to police – regurgitated by the Crown in closing submissions when claiming that her lying witness should be believed despite her inconsistencies. The gullible judge clearly accepted these “submissions” – asking me (emphasis added):

So just — just drawing from normal human experience where one is struck to the point of unconsciousness or being rendered unconscious, is it unreasonable for that person perhaps to have things mixed up? The chronology of events mixed up or — and, you know, we don’t have any experts here, but just, you know, drawing from human experience, when a person is put into a traumatic situation or a very fluid situation where there is violence involved, you know, are you suggesting that, you know, if you have a sequence of events, they’ll — messed up, that that points to the — points to a deliberate attempt to mislead the Court or — — you know, goes to credibility?

Yes, sir, yes it does. It also goes to reliability, too. Needless to say, my client was wrongly convicted.

How many dozens of wrongful convictions are happening daily thanks directly to this clearly well-established “science” and law?

To quote the timeless Eddie Greenspan from 35 years ago: “if we keep diluting our evidentiary rules; if we threaten our police, Crown attorneys, and judges with censure for applying the same common sense, or the same discretion, in cases of alleged sexual assault as they do in all other criminal investigations and trials, we will inevitably end up with innocent people convicted and ruined.”

Surprisingly Human: How Judges Think, by R. Posner

I recently read Richard Posner’s excellent 2010 book, How Judges Think. He pulls back the curtain on judicial thinking, clarifying a topic seldom discussed or understood. He puts the lie to the commonly held perception that judges’ reasoning is (for the most part) Divinely inspired. He reinforces Justice Berger’s somehow-controversial comments in R. v. Gashikanyi, 2017 ABCA 194 (decision cited approvingly in R. v. Parranto, 2021 SCC 46, at para. 130) that “Judges are no different than butchers, bakers, and candlestick makers” (at para. 72). I thought now is a good time to post my thoughts on the book, especially given the recent international uproar over the US Supreme Court’s expected reversal of Roe v. Wade and – on a smaller scale – the ABCA’s decision on pipelines and the SCC’s decision in Brown (discussed at #2 and 9 of last week’s update). I also deal with the subject generally in my December 2021 blog post: Policing Thoughtcrime: The Role of Law Societies? – Moldofsky Law. See also.

He points out, at p. 114, that appellate review is often “intuitive”: “So what is involved in appellate review is, at bottom, simply confidence or lack thereof in another person’s decision. That is an intuitive response informed by experience with similar decisions. It is not rule- or even standard-driven, except in the clearest of cases, but it is not mindless guesswork either.”

He laments the lack of methodological rigour that goes into training judges (p. 118): “Apart from brief orientation sessions and occasional continuing legal education seminars, judges in our system are not actually “trained,” which is an interesting commentary on the methodological rigor, or rather the lack thereof, of judging. Judicial training is “learning by doing” – a further clue to the largely tacit character of judicial reasoning.”

He has some practical advice for appellate counsel (p. 119), which incidentally reminds me that I wanted to review Point Made one of these days: “Rather than beating appellate judges over the head with cases, which is the standard technique of appellate advocacy, appellate lawyers would be more effective if, recognizing the essentially legislative character of much appellate adjudication and the essentially pragmatic disposition of most American judges, they emphasized instead the practical stakes in their cases and how the stakes would be affected by the court’s deciding those cases one way rather than another.”

He mentions judges’ “reversal aversion” (p. 141): “District judges also do not like to be reversed. Even though a reversal has no tangible effect on a judge’s career if he is unlikely to be promoted to the court of appeals in any event – and little effect even then – it can imply criticism rather than merely disagreement, and no one likes a public rebuke.”

He excoriates judges’ intellectual laziness and bullying tactics (pp. 142-3): “Because a federal district judge has more decision freedom than judges in career judiciaries, personal factors – including the kind of intellectual laziness that consists of acting prematurely on intuition rather than (also) on analysis and evidence, and even the delights of tormenting the lawyers who appear before the judge – are likely to play a larger role in his behaviour than in that of his counterparts in career judiciaries perhaps especially tormenting the lawyers, because that affects neither the judge’s reversal rate nor his backlog, but on the contrary reduces his backlog by inducing more settlements.”

He notes the obvious – that judges can be highly selective in their use of language and are capable of “spinning” almost anything, as are lawyers too, certainly (p. 144):

Appellate judges in our system often conceal the role of personal preferences in their decisions by stating the facts selectively, so that the outcome seems to follow from them inevitably, or by taking liberties with precedents. Yet the doctrine of precedent exercises some constraint even on the minority of appellate judges who are ambitious to place their own distinctive stamp on the law. […]

A newly-appointed Supreme Court justice may pay lip service to most of the Court’s earlier decisions even if he dislikes the policies on which they rest. But he will construe those decisions narrowly in order to minimize their impact. And when he finds himself, as he often will, in the open area in which conventional sources of law, such as clearly applicable precedents, give out, he will not feel bound by those policies. So if he can command a majority the law will veer off in a new direction. Eventually, the old precedents will be interpreted to death, or finally, overruled explicitly. (pp. 276-7) […]

There is almost no legal outcome that a really skillful legal analyst cannot cover with a professional varnish. So a Supreme Court justice – however questionable his position in a particular case might seem to be – can, without lifting a pen, or touching the keyboard, but merely by whistling for his law clerks, assure himself that he can defend whatever position he wants to take with enough professional panache to keep the critics at bay. (p. 286) […]

If the Justices acknowledged to themselves the essentially personal, subjective, political, and, form a legalist standpoint, arbitrary character of most of their constitutional decisions, the – deprived of “the law made me do it” rationalization for their exercise of power – they might be less aggressive upsetters of political applecarts than they are. But that is probably too much to expect, because the “if” condition cannot be satisfied. For judges to acknowledge even just to themselves the political dimension of their role would open a psychologically unsettling gap between their official job description and their actual job. Acknowledging that they were making political choices would also undermine their confidence in the soundness of their decisions, since judges’ political choices cannot be justified by reference to their professional background or training. Judges do not like to think that they expressing an amateurish personal view when they decide a difficult case. Some judges “agonize” over their decisions; most do not; but both sorts feel a psychological compulsion to think they are making the right decision. (Some judges think that just by virtue of their having been made judges, their decisions must be right, or at least as right as any other judge’s). A judge who does not become comfortable with his decision by the time it is handed down might ever after be tormented by doubts that it was correct. No one likes to be tormented, so judges do not look back and worry about how many of their thousands of judicial votes may have been mistaken. (p. 289)

He points out the Supreme Court’s sensitivity to its portrayal in mainstream media (p. 146): “The irony is that Supreme Court justices pay even less attention to academic criticism than lower-court judges do, though more to the reactions of legislators, the general public, and the media.”

He criticizes the similarity and/or lack of diversity among most judges (p. 155): “Judges who come from the same social and professional background are likely to think alike. So when they disagree they will be arguing from shared premises. Arguments from shared premises can lead to objectively verifiable conclusions – which is not to say that the conclusions are correct. Conclusions that follow logically from incorrect premises have no warrant of correctness.”

He points out the obvious problem of life tenure (p. 158): “Whether in the academy or in the judiciary, life tenure guarantees independence but also invites abuse because it eliminates any penalty for shirking.”

He makes the interesting point that judicial salaries need to be just high enough and not too high (p. 169): “Another effect of a much higher salary, having a similar consequence, would be to attract leisure-loving practitioners. […] And so the obverse of the proposition that low judicial salaries drive out dissatisfied judges is that the low salaries operate as a screening device: only lawyers who really want to be judges will accept the financial sacrifice required.”

He notes the arrogance (colloquially known as “judge-itis” that sometimes accompanies a judicial appointment – p. 306): “Cocooned in their marble palace, attended by sycophantic staff, and treated with extreme deference wherever they go, Supreme Court justices are at risk of acquiring an exaggerated opinion of their ability and character.”

While I’m on the topic, I thought I’d mention some related points from other works.

In Judicial Conduct and Ethics (by Shaman, Lubet, Alfini – 1990, Michie), the authors note thatUnfortunately, the public and organized bar appear to be more interested in judicial ethics and judicial accountability than the judges are” (p. vii), and that “acquiring a sensitivity to ethical issues will help avoid the two principal charges filed against judges: (1) conflict of interest and (2) inappropriate demeanour (unnecessary harshness, sarcasm, and name-calling)” (p. x). Judges are to: “perform their work with a high degree of competence, and should treat litigants, witnesses, attorneys, and others who appear before them with courtesy and respect. […] In sum, they should inspire trust and confidence, and should bring honor to the judiciary” (p. 2).

They also note that (p. 31), “Vindictive comments or threats towards attorneys in connection with court proceedings have generally been prompted by improper retaliatory motives on the part of the judges in question. Thus, judges have been sanctioned for making rude and vindictive comments or threats to attorneys who sought to disqualify the judge, bring disciplinary charges against the judge, or appeal a ruling of the judge.”

In Judges on Trial by Shimon Shetreet (Elsevier, 1976), the author cites (at p. 187) R v Gray [1900] 2 QB 36 (could not find digital version), in which “The Court expressed the view that ‘judges and courts alike are open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to the law or the public good, no court could or would treat this as contempt of court.’” See also here and here.

Quoting R. v. Ex Parte Blackburn 1968 QB, he states (p. 190):

Lord Denning M.R. stated that the courts will “most sparingly exercise” the power of contempt, and will never use [it] as a means to uphold [their] own dignity. Commentators are fully entitled to voice outspoken criticism. […]

Salmon L.J. said:

It is the inalienable right of everyone to comment fairly upon any matters of public importance. This right is one of the pillars of individual liberty – freedom of speech… no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith.

At p. 244, he notes the importance of civility as between the Bar and the Bench: “Sankey L.J. observed: “the Bar is just as important as the Bench in the administration of justice, and misunderstandings between the Bar and the Bench are regrettable, for the prevent the attainment of that which all of us desire – namely, that justice should not only be done, but should appear to have been done”” (Hobbs v. Tinling 1929).

The train wreck that is Legal Aid Alberta

I have lots to say about Legal Aid Alberta (LAA) and its funders. They’ve slashed their budget drastically the last few years – with an extreme, detrimental impact on both the public and the lawyers who depend on it for their livelihoods. Given their very tight budget (and drastic reductions in funding from Alberta’s provincial UCP government), they’ve made the decision to fund far fewer matters (certificates), for less money per certificate, and to nickel-and-dime its roster lawyers to exasperation.

LAA admits as much: “we committed to reimagining the way we operate to refine our business processes to maximize our funding dollars—and ultimately enhance our services to clients” (p. 6 of PDF, 2019-2020 LAA Annual Report, emphasis added). Everything else about the reports demonstrates this as well. Below, I will detail the dollars and cents.

Average cost for Level 1 certificates (adult) was $1,152 in 2020 (about 70% of all certificates – criminal is about 80% of total certificates) – slightly lower for youth at $853 (p. 13). Down to $1,074 in 2021 (p. 17) – a relatively small reduction of 7%. Average family law certificate spend was $3,391 – p. 14 – 3 times the spend for adult Level 1 criminal certificates.

LAA’s total spend in 2020 was about $70 million for certificates (drastically reduced by 35% last year) and about $41 million for internal expenses (staff, lawyers, overhead, etc. – p. 27), which totals ~$110 million – about the amount they made in revenue that year (approx. 80% from AB government). Legal Aid has 300 staff (including lawyers) and 1,200 roster lawyers (p. 8 – here).

For the next year (last year – 2020-2021), the average cost of duty counsel roster certificates went down about 15% from the 2 previous years (p. 17, 2021). Interestingly, the total number of Level 1 certificates went down from 20,000 or higher over the previous 3 years to a mere 13,000 in 2021 – a reduction of 35% (in addition to the 35% reduction in total certificate spend, 25% reduction in criminal certificate spend, and 12% reduction in criminal per certificate spend). The number of Level 1 youth certificates went down by a full 50% (p. 18). Interestingly, youth certificates had far less fluctuation in cost per certificate (looking only at Level 1 and 2/2.5) than adult certificates from 2020 to 2021.

Family certificates, on the other hand, went up in cost per certificate (about 20%) last year – p. 18, although the total number of family/child welfare certificates issued also decreased drastically (by about 50% – even higher if you look at previous years). Immigration certificates also were drastically reduced (about 70% in quantity) but increased in cost per certificate (about 20%).

Average Level 2/2.5 certificate spend was $2,354 in 2021 – down more than $200 from the year before (considering that there are 6,741 such certificates – a total savings of approx. $1.5 million right there; similar to the total savings per Level 1 certificate from the previous year). The total savings on Level 3 certificates is about $1 million. Per certificate savings total about $4 million (about 12% of total spend on criminal certificates of $31 million) last year then – even forgetting the drastic 35% reduction in number of certificates, which seems to have saved LAA another ~$30 million.

Total revenue in 2021 was only $70 million from the province (a reduction of $20 million). Total savings on criminal adult certificates was about 25% from 2020 to 2021 (from $42 million to $31 – p. 31). Spending on family certificates was reduced from $17 to $9 million – about a 50% reduction. While LAA’s overhead and staff expenses experienced a slight increase, their total spend on roster went down drastically from $69 million to $45 (35%) in a single year. So the total “pot” available for the roster was cut by more than one-third in one year alone.

Note that Ontario’s total Legal Aid expenses was reduced a more modest 15% in 2021 (p. 36) – and government revenue was stable (p. 34), although they’re expecting a huge, appalling 30% decrease in provincial funding this year, despite significant and necessary pushback from both the defence bar and the judiciary. A slight reduction in average cost per criminal certificate in Ontario (p. 28 – $1,750 to $1,672 – about 5%; similar to the reduction in cost per certificate in Alberta – and also cost per certificate, although Ontario had much less of a drastic reduction in number of criminal certificates issued – about 10% there to 35% in Alberta – see. p. 26).

In Ontario, the tariff is also much better to counsel, as it generally pays a lot more. Further, the hourly rate is significantly higher than Alberta’s (by some 10-60%), and BC’s hourly rate is even higher. Total spend on criminal certificates increased from 2020 to 2021 in BC (p. 23).

All this in a time when criminal cases are supposedly at an all-time high, with record numbers of new judges and crowns being hired (all unionized and compensated quite comfortably, of course). Note, “The release said that in the past two years there has been a 12 per cent increase in the number of active criminal cases.” So, criminal cases in Alberta have not at all reduced – merely LAA’s willingness to fund them (by 35%), and for the few that they do fund, they insist on pinching every last penny.

Note that LAA had a surplus of nearly $7 million last year (p. 31 – I wonder how much of that total is owed to its roster lawyers?), and pretty much “broke even” the year before. Instead of “streamlining” or “modernizing” the tariff, they could start by paying a reasonable wage, treating roster counsel with basic decency, and not drastically reducing the number of matters it funds in one year (by 35%, with a subsequent reduction in roster spend of 40% – particularly when their internal expenses increased – clearly, their salaries didn’t go down, while we were chopped by up to 40%).

Looks like LAA tried to pay call centre agents up to 18% less a couple of years ago. LAA appears to have a single-minded focus, and that is to save every penny possible. Whether that’s consistent with their duty to the public or to roster counsel appears to be irrelevant, in their view. Their “relationship” and “trust” with roster lawyers appears to be at an all-time low, and it’s not clear that they care about that one whit (note their disrespect to senior counsel about the contract they force roster counsel to sign, referred to by senior counsel as “shocking” and “disrespectful”). Note also their ironic claim to conduct “business to the highest ethical standards” (p. 8), which is especially hilarious if the person “in power” who attempted to bribe said senior counsel in the above article by offering her a vaunted Q.C. appointment were she to essentially shut up was on LAA’s payroll.

I’m looking forward to LAA’s 2022 report – I suspect it will be released in July (last year’s was July 27). I definitely hope it’s not as awful as 2021 (July 2022 edit: here it is. Roster spend went up by 15%, and provincial funding increased 18% – I’ve made a handy spreadsheet here).

Looking at Alberta’s provincial budget alone; its health budget is $22 billion next year (p. 127) – more than a third of its total budget. Education is $8.4 billion (p. 131) – not including post-secondary. Its funding of Crown prosecution service (ACPS) is $99 million (includes prosecutors, already well-paid, who received a significant and well-deserved pay bump recently; note, it does not include federal prosecutors for drug offences) – 3 times what LAA paid for adult criminal roster counsel, $63 million for “Victims of Crime and Public Safety Fund” (almost twice what LAA paid for adult criminal roster counsel), some $215 million for Court and Justice Services (judges who are paid approximately $0.5 million each per year if you include pension, etc. which is apparently not enough; note 13 new Alberta judges appointed just recently – possibly includes Legal Aid) – a 10% increase from the last year (p. 137), for a total of a whopping $1.48 billion for the justice system (also includes exorbitant amounts to police and prisons – provincial only; as an aside, the $0.5 billion the province spends on police is separate from the other $0.5 billion spent by the City of Calgary alone on its police services). A mere $31 million spent by LAA on roster counsel for adult criminal certificates, and $42 million on total roster (includes family, immigration, youth criminal, etc.). The total of $42 million spent on legal aid certificates is down a shocking 40% from the year before. I will put some charts below.

It’s very simple, LAA and provincial governments around the country: either fund Legal Aid properly or continue to decimate the strength and independence of the defence bar, openly encourage wrongful convictions and inappropriate guilty pleas, and make it more obvious how little you respect the vital work of the criminal defence bar by funding them exponentially less than everyone else in the justice system. Your call – not mine.



Policing Thoughtcrime: The Role of Law Societies?

I’ve been thinking a lot recently about the role Law Societies play in regulating the opinions expressed by lawyers. Lawyers are required to be “respectful” of tribunals and courts, yet they’re also required to be critical of injustice when they see it. How does one reconcile these sometimes-conflicting duties, and who decides what behaviour is acceptable?

We live in a time of societal reckoning. Given the pandemic and some of the issues that have been front and centre, it is a time when many are challenging fundamental assumptions about how (and by whom) law is created, enforced and imposed. Although respect for our legal systems is required, fundamental rethinking of our legal systems themselves may require some creative thinking – and may occasionally show less respect than we’re accustomed to for the systems we have in place. People are beginning to challenge systemic racism and biases in our justice systems. Is that suggestive of respect for our legal system? I’d think not.

I’ve been openly critical of courts and our justice system – usually in specific instances – on my blog, for instance. I asked on Twitter (back in April) what people think of this, given that I had noticed several lawyers on Twitter deleting comments they had made that were slightly critical of the Supreme Court. One lawyer privately noted that he liked the points that I made. Another lawyer (bravely) publicly commented that “The litany of wrongful convictions in this country have exposed a series of systemic issues in our justice system. Robust and reasoned criticism should be encouraged” – which is perhaps more aspirational than practical. The very fact that lawyers are constantly deleting their comments is precisely indicative of the concern I am raising – if lawyers are terrified of criticizing courts, what kind of justice system is this altogether? An Orwellian version of 1950s McCarthyism? Other present-day countries for whom freedom of speech is an absolute joke?

It brings to mind the saga of Joe Groia – the lawyer who was harassed by the Law Society of Ontario for decades, finally to be vindicated by the Supreme Court some 4 years ago. He spoke at my school a while back, and he was easily the most inspiring figure I heard there – and I heard more than one Supreme Court justice speak. More on him below.


A major problem with our justice system is its aura of invincibility. Judges are practically equated with deities. This is not helpful to anyone, yet it permeates the culture in legal circles. I think treating judges as human beings would go a long way toward leveling the playing field and making our justice system more equitable, accessible and just.

For example, judges are “presumed to be impartial” and courts are often very resistant to the idea that a judge made a mistake – or worse, appeared to be biased against one side or another. I actually had a judge practically scream at me (while denying a mistrial application) about how fair all judges on the bench were – prior to my successful appeal of his trial decisions – primarily on the ground of bias.

Why are we so resistant to the idea that judges are human beings, and often simply do not bring their best selves to work? Lawyers – including very senior ones – are constantly disciplined for various misdemeanours and accounting irregularities, etc. Why do we assume that, once someone is appointed to the bench – particularly given that many appointments are political – they turn into a saint who can do no evil? Who does this fantasy serve? Certainly not the public nor the “administration of justice.” See Richard Posner’s excellent book for more on the humanity of judges.

Note the excellent decision of R. v. Gashikanyi, 2017 ABCA 194 – cited approvingly by the Supreme Court in R. v. Parranto, 2021 SCC 46 at para. 139 – in which Berger JA notes that judges are “no different than butchers, bakers, and candlestick makers” (para. 72). In para. 74, he notes – quite correctly, I’ll note – that “a disproportionate opportunity” is afforded to “certain judges to shape the jurisprudence of the Court.” Rowbotham JA strongly disagreed – ironically noting the “very high” presumption of judicial impartiality, “not easily displaced” (para. 116).

In R. v. Sitladeen, 2021 ONCA 303, Miller JA criticizes scholarly articles as “legal advocacy” and a “backdoor admission of expert social science evidence” (paras. 101, 99). If this is true, it is concerning, given that the majority of Supreme Court of Canada decisions rely on “legal advocacy” – including recent, extensive reliance on Professor Craig’s book “Putting Trials on Trial” – which I critically review here.

In R v Stephan, 2021 ABCA 82, the ABCA found that the trial judge’s behaviour gave rise to a reasonable apprehension of bias (para. 148). The Crown had delicately suggested not that the judge was “actually biased, only that the cumulative effect of some of his comments give rise to that perception” (para. 111). In that case, the trial judge had commented negatively about the accent and language skills of a proposed Crown expert. Based on my understanding of the facts of that case, I disagree with the Court of Appeal’s finding that the judge’s words would lead to a reasonable apprehension of bias (or actual bias), and the Crown subsequently stayed the proceedings anyway. It also appears that the expert was an absolute fraudster. In any event, would it have been a breach of Crown ethical duties had they alleged that the judge was actually biased? I would hope not – but again, it’s difficult to reconcile with the duty to be respectful of the court.

In R. v. Brown, 2003 CanLII 52142 (ON CA), the Ontario Court of Appeal dismissed a Crown appeal of a summary conviction appeal that had overturned a conviction where allegations of racial profiling against the arresting officer were found to be improper – at the trial level. Morden JA found that “open indication of distaste or, to use a synonym, aversion, during the presentation of a case is utterly inconsistent with the duty of a judge to listen dispassionately with an open mind” (para. 103).

Another judge who was publicly criticized is Judge Camp.[1] He was famously disgraced publicly (perhaps “tarred and feathered” would be a more accurate account) for making statements about a complainant in a sexual assault trial that were said to be demeaning. I think he did nothing wrong, and it’s a shame he was fired. What’s worse is so many judges do far worse than what he was accused of – usually towards presumptively innocent accused persons (for example, disbelieving them without good reason, presuming them to be guilty, etc.). I’ve never heard of anyone being disciplined for that – especially if they’re less overt about their views (“I mean, mistakes happen, right? That’s why we have appeal courts”, etc. etc.). Even in disturbing cases of wrongful convictions rarely being overturned (for example, R. v. Ururyar, 2017 ONSC 4428 – the trial judge’s reasons were simply “incomprehensible” and 4 of 6 grounds of appeal from conviction were valid – paras. 57, 62, 64, 66), I don’t recall a stitch of public outcry for sanctions against the judge – why is that? It’s a good thing that judge didn’t say anything even slightly distasteful to a lying complainant, as Judge Camp may have – otherwise, he’d be unceremoniously dumped, too. See also the R. v. Howe, 2015 NSCA 84 fiasco I discuss (alongside Ururyar) here – note the Ururyar judge’s recent virtue signaling post here – an apology to the public and to the accused would have been far more appropriate. See also here and here.

In R. v. Ibrahim, 2019 ONCA 631 (Star), the ONCA was highly critical of the trial judge’s (ON Superior Court Justice Robert Clark) “injudicious” (para. 95) approach, criticized his criticism of the ethics of counsel (finding them to be “unfair” and unfounded” – at para. 87), and criticized his refusal to allow counsel to rely on their observations at trial (para. 89). The appeal court was also quite concerned about allegations of injudicious judicial “deportment” (yelling, etc.) alleged by the appellant, not deciding whether it gave rise to a reasonable apprehension of bias (para. 109). In the conclusion, the appeal was granted on other grounds (para. 116). See paras. 113-114, emphasis added:

We appreciate that a lengthy murder trial can be very stressful for all involved — the jury, witnesses, counsel, court staff, the judge, spectators and, most especially, the accused person and his or her family, as well as the deceased’s family, friends and supporters. There is so much at stake. Emotions may run high. Things may be said that should not have been, or words spoken in an ill-advised manner. In most cases these moments naturally pass, perhaps after a short break. Sometimes an apology may be warranted. Nevertheless, and notwithstanding where fault lies, it is the trial judge’s responsibility to reduce the stress of conflict, not to exacerbate the situation through harsh words, a raised voice, or distracting and hostile non-verbal communications.

As Lord Denning said in The Family Story (London: Butterworths & Co. (Publishers) Ltd., 1981), at p. 162: “When a judge sits to try a case with a jury, he is himself on trial — before his fellow countrymen. It is on his behaviour that they will form their opinion of our system of justice.”

The mistrial application was dismissed (R. v Ibrahim, 2016 ONSC 7665 – a hefty 66-page decision) – subsequently criticized despite its length. Note defence counsel was racialized – same defence counsel as in R. v. Hill, 2011 ONSC 3935. Another racialized defence counsel recently disparaged here. Their crime? Speaking truth to power. I’ll get into this further, below.

Same judge also in R. v. Ruthowsky, 2018 ONCA 552 – appeal bail sadly denied. Also, similar allegations made against this same judge in both R. v. Gager, 2020 ONCA 274 (albeit dismissed – para. 150) and R. v. Mills, 2019 ONCA 940 (dismissed, e.g. para. 238) – hat tip Chris Sewrattan. Note also R. v. Roberts-Stevens, 2018 ONSC 6184, at paras. 62, 92-95 – agreeing with Paciocco JA’s observation in Ruthowsky that allegations of bias should ideally be brought at trial – not on appeal for the first time.

Same judge again in 2010 – mistrial granted. Note very senior defence counsel in that case (Eddie Greenspan) – one shudders to imagine how a junior counsel would have fared (not that I’ve ever been on the receiving end of a judge’s unseemly wrath for bringing an appropriate – and subsequently vindicated – mistrial application). Then again, in 2017, the same judge granted a mistrial for having uttered an obscenity during trial – just about everyone heard it, but he somehow insisted that he did not, in any event. What is that – 6 known requested (2 granted) mistrials from the same judge in less than a decade? Simply obscene. See here and here for more on this.

This judge was appointed in 2003, had been a Crown since 1984. Retired just last year. No publicly available record of discipline that I could find – likely safe to assume he received no discipline and/or complaints despite his clearly egregious misconduct over the course of a decade or longer.

The assertion that judges – who earn upwards of a half million dollars a year – are somehow vulnerable and deserving of extra protection (e.g. Rule 5.6 of the LSA’s Code of Conduct) is simply preposterous and inappropriate. Seriously?

See also Abbe Smith, Judges as Bullies (2017).

Lawyers’ Civility Requirement

Lawyers sometimes bravely and rightly criticize our justice system. For example, “Systemic racism in criminal punishment is not a uniquely American phenomenon”.

Pre-Groia: “Judge Camp’s conduct and reasons in Wagar angered and disgusted me.” – Prof. (now ABQB Justice) Alice Woolley, emphasis added, ABlawg. Further,

The exhortation to fair and temperate criticism needs to be understood in light of these broader concerns. As the Supreme Court said in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, “lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so” (at para 68).

Or “…The findings affirm Woolley’s initial impressions when she first reviewed the transcript of the original trial. “I had a friend at the Crown and he read it with me,” she recalls. “We said, ‘oh, my God, this is jaw-dropping.’” Also temperate and respectful?[2]

The SCC released its decision – 4 years ago – in Groia v. Law Society of Upper Canada, 2018 SCC 27. Finally, some direction! In its decision, the Court recognized that trials are “often hard fought” and are “not tea parties” (Groia, paras 3 and 99). It is clearly virtuous – and arguably obligatory – lawyerly conduct to “raise fearlessly every issue, advance every argument and ask every question, however distasteful” to advance a client’s interests within the boundaries of the law (Groia, para 73). This is especially true in the criminal context, where liberty interests are at stake and the client has a constitutional right to make full answer and defence (Groia, para 62).

“In other words, allegations that are either made in bad faith or without a reasonable basis [may] amount to professional misconduct” – paras. 81-83. In other words, the presence of good faith and a reasonable basis should be absolute bars to a finding of misconduct. It would be nice if this were the standard enunciated and applied by Law Societies – rather than their obtuse, ambiguous, and contradictory ones (more on this below). Perhaps Law Societies can start by updating their “archaic” (p. 30) legislation in this manner – which clearly were updated after the Groia decision (sarcasm). While they’re (hopefully) at it, getting rid of the “confidentiality” requirement around complaints would also make sense, given that it protects no one but itself from criticism.

Apparently, despite the SCC’s very clear direction in Groia (following a decades-long, obscenely expensive, crippling and wrongful Law Society persecution of him), some law societies appear unprepared to accept its conclusions. Clearly, it is not only some appellate courts that choose to ignore Supreme Court decisions when they are not to their liking.

I have engaged in a bit of research while preparing this blog post, and it is my position that the “line” of civility is extremely ambiguous – pre-Groia, anyway. I have specifically reviewed, among other sources, The Advocates’ Society (rule 78); Groia v. Law Society of Upper Canada, 2018 SCC 27 – reviewed here, and the Law Society of Alberta’s Code of Conduct, e.g. 5.1-1. I note the commentary on 5.6 (emphasis added):

A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements. Yet, for the same reason, a lawyer should not hesitate to speak out against an injustice. […]

Criticizing Tribunals – Proceedings and decisions of courts and tribunals are properly subject to scrutiny and criticism by all members of the public, including lawyers, but judges and members of tribunals are often prohibited by law or custom from defending themselves. Their inability to do so imposes special responsibilities upon lawyers. First, a lawyer should avoid criticism that is petty, intemperate or unsupported by a bona fide belief in its real merit, since, in the eyes of the public, professional knowledge lends weight to the lawyer’s judgments or criticism. Second, if a lawyer has been involved in the proceedings, there is the risk that any criticism may be, or may appear to be, partisan rather than objective. Third, when a tribunal is the object of unjust criticism, a lawyer, as a participant in the administration of justice, is uniquely able to, and should, support the tribunal, both because its members cannot defend themselves and because, in doing so, the lawyer contributes to greater public understanding of, and therefore respect for, the legal system. [4] A lawyer, by training, opportunity and experience, is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions and public authorities. A lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and proposals should be bona fide and reasoned.

For example, Rule 22: “Advocates should use tactics that are legal, honest, and respectful of courts and tribunals” (Advocates’ Society). Rules 79-87 include what counsel are entitled to expect from the judiciary, including 82: “Advocates are entitled to expect that judges will not unfairly or unjustifiably reprimand, criticize, disparage, or impugn counsel, litigants, and witnesses, or demonstrate or engage in intemperate and impatient behaviour.”

See also A. Woolley, Does Civility Matter?, (2008), at 188: and “Uncivil by too much civility”?: Critiquing Five More Years of Civility Regulation in Canada, 2013 CanLIIDocs 759, at 266.

Civility in the Courtroom | CanLII: Nicole Lewis, 2019 (stumbled upon excellent freely-available Carleton County Law Association’s criminal law conference materials, 2014-2019). Notes “contradictory” and “ambiguous” (I’d prefer “obtuse”) Law Society rules regarding civility (pp. 3-4), and mentions Groia.

Speaking of Groia, the prominent lawyer Frank Addario trashes the Law Society of Ontario in this 2015 article for the Star. It is so good I will need to quote the majority of it:

In an age when wrongful convictions are unearthed regularly and newspapers abound with stories of government misconduct, one might expect the role of defence lawyers to have earned a modicum of respect.

Guess again. The unsettling case of lawyer Joseph Groia is a shining example of how poorly the role of defence counsel is understood.

Groia is accused of defending his client too enthusiastically. […]

The scorecard is grim for Groia. After a slew of hearings, he faces a one-month suspension of his right to practise law and an order that he pay $200,000 in legal costs. Further appeals will likely focus on two central questions: Is there a need to rein in the defence bar? And if so, is there a means to do so that will not endanger the trial process?

The answer to each question is an emphatic no.

Groia’s sin during the lengthy Bre-X trial was to allege, noisily, that Felderhof had been abused and railroaded. Depending on one’s perspective, his manner was gratuitously rude and bombastic or tough, fearless and effective.

That a lawyer vigorously defending his client could be seen as deserving of professional censure reinforces the popular urban myth that defence counsel are more disruptive than helpful when it comes to achieving justice.

The courtroom is not a trousseau tea, where genteel bewigged lawyers agree to disagree. For the defendant it is a fight for his life; one in which the odds are stacked against him by a better-resourced opponent wearing the white hat. A certain amount of toughness is necessary.

If certain defences are off the table because they are too rude to advance, it is not the defence lawyer who suffers; it is the credibility of the legal system as a vehicle for getting to a just result. If a defence lawyer runs the risk of suffering reprisal, how can she be expected to take an unpopular or even irritating position? […]

Recently, the Ontario Court of Appeal overturned an attempted murder conviction on the basis that the trial prosecutor behaved with unacceptable zeal. The defendant — an intensely religious man entangled in a vitriolic separation — was accused of inciting the couple’s three children to drown their mother. In his closing address to the jury, the Crown referred to the defendant as a dangerous “Jesus nut.”

The chance of this prosecutor being disciplined or fined is close to zero. He might be counselled to temper his enthusiasm, an appropriate solution. Groia, on the other hand, saw his reputation and his pocketbook trashed for his transgressions. […]

If it is too much to expect the general public to understand the importance of what we do, it cannot be too much to ask of those who regulate our profession.

See also this great article on Groia, prior to the SCC decision (emphasis added):

The Ontario legal regulator has done absurd things over the years, but the most egregious is to attack Joe Groia and make him the poster child of a civility campaign.

When the justice system is splitting at the seams, students can’t find jobs, unrepresented litigants are clogging courts and new competitors are emerging to eat lawyers’ lunches, the law society focuses on civility. Rome burns and Nero fiddles. […]

His biggest transgressions were a sharp tongue, piercing words and pushing back hard for his client, despite a threatening letter from Big Brother hanging over his head.

He’s paid the ultimate price. His legal bill is nearing $2 million […]

There’s the rub. In an adversarial system, it takes two to tango, yet Groia was the only one charged. No prosecutors were called on the carpet for their tactics in that trial.

Groia’s case has become one of historical revisionism, with every level of court and tribunal doing what lawyers are so good at — second-guessing, navel gazing and using hindsight. Facts are cherry-picked or ignored to support viewpoints. […]

Rather, the legal regulator circled the wagons around lawyers at the securities regulator, including Naster [Crown], who later worked for the law society on the prosecution of former Torys LLP lawyers Beth DeMerchant and Darren Sukonick.

The profession should be concerned about the Groia case because, in civility prosecutions, defence counsel wear the target on their back.

A 2013 paper by lawyer Don Bayne examined law society statistics from 2010 to 2012 and found that 88 per cent of the incivility complaints involving criminal lawyers were against defence counsel; only 12 per cent involved Crown counsel. Also, judges complain more about criminal lawyers than any other type of lawyer. Bayne identifies a number of instances where the prosecution crossed the line in the Felderhof case, but he notes that Crown counsel “bore no discipline measure of responsibility for its role in the Felderhof incivility.” […]

Let’s hope the SCC sees it as broadly as Brown. Otherwise, litigators, get out your muzzle; the law society is watching you.

All excellent points. Defence counsel absolutely have a target on their back – particularly junior and racialized ones. Crowns are almost never the subject of serious scrutiny by Law Societies – bizarre, given its clear mandate to “protect the public” and the incredible power wielded by that particular office. Would Groia have been able to survive the onslaught had he been less senior and respected? Unlikely. He was called to the bar in 1981 – over 20 years before the brouhaha began.


The following SCC decision is said to be a racist decision: R. v. S. (R.D.), 1997 CanLII 324 (SCC) – a case I comment on here. See Richard Devlin’s 1995 article pre-dating it and Constance Backhouse’s recent (and quite troubling) article. See criticism from Prof. David Tanovich of our criminal justice system, based on this case. Another good example of a critique of our justice system by a prominent and excellent defence lawyer: “The problem is that it’s so rare to see the presumption of innocence actually play out in the courtroom – especially when the accused is racialized.” I haven’t heard of anyone (yet) getting into trouble for this type of criticism of our highest court. Are allegations of racism condoned while allegations of butchering the law of sexual assault or ignoring the presumption of innocence so obviously beyond the pale and/or scandalous?

I’ve reviewed a recent, “successful” Law Society of Alberta persecution of a senior, racialized defence lawyer on grounds of incivility. Noting Groia, the appeal panel upheld the prior finding of misconduct. The lawyer had sent around a letter complaining about the ethics of a judge whom he had dealt with extensively as a Crown in her prior career (LSA obviously refusing to publish the judge’s name). Given its acknowledgment that Groia suggests good faith and a reasonable basis can be absolute bar to a finding of misconduct, the panel (surprisingly?) found that it was not in good faith. A determination premised on what, you ask? Well, he hadn’t complained to the Law Society (para. 111), so clearly it was a frivolous complaint! I’d be tempted to call this reasoning “asinine” but I’m not sure if that’s permitted. Who do I ask?

A complaint about a former Crown who is now a judge is not an isolated event – nor by definition unjustified, as the LSA appears to think. See R. v. Strybosch, 2021 ONSC 6109.

Why the Law Society was not concerned about the substance of the complaint about the judge (or other Crowns in that office), choosing instead to shoot the messenger, is unclear. Are they protecting the public? It sure doesn’t seem that way. Instead, they seem eager to sanction (and muzzle) racialized, primarily junior, defence lawyers. For shame.[3]


[1] Not the first or last time a judge was ambushed in the court of public opinion (see 1990 case of Judge Bourassa).

[2] Speaking of temperate criticism, see Prof. Dufraimont’s new article on rape myths – my Twitter critique of it here and here. Noting my review of Prof. Sankoff’s seminar and this.

[3] Note the LSA’s lip service to “diversity” – e.g. “My Experience” Project – Law Society of Alberta, claiming to give voice to those who have experienced racial discrimination in Alberta.

25 “I have had my fair share of experiences that I can’t term as anything other than discriminatory and stereotyping, specifically by judges”, 2,

4 – “While for the most part, I have been treated with a basic level respect by colleagues in practise, I continue to experience “microaggressions” every day from lawyers and judges a like, that remind me that I am still an outsider” and “We are in a unique position to actively challenge, test, and thereby shape the legal system, and I would argue – it is our duty to do so.”

See also 8, 11, 13, 17, 18, 20, 23, 24, 26, 30.