Improper Calgary Crown closing submissions apparent here: “And she said the accuser had no motive to make up allegations against his former coach 3 1/2 years after last playing for him.” Jurisprudence is fairly clear that absence of evidence of a motive to fabricate is not evidence of absence – see e.g. R. v. B.T.D.,2022 ONCA 732, at para. 84 (dealt with at #2 here). My tweets. Crown is a 2009 call.
Despite serious mistakes (Crown suggesting accused tailored his evidence to the disclosure, judge suggesting jury should find facts before engaging with the law, and the Crown telling the jury that accused fabricated his evidence to avoid a murder conviction), ONCA somehow upholds a murder conviction: R. v. Hayles-Wilson, 2022 ONCA 790. The flimsy conclusion reached by Nordheimer, Gillese, Sossin J.J.A. is that “In the end result, I am not satisfied that the trial judge’s errors in these three respects, in an otherwise fault-free trial, served to undermine the integrity of the verdict reached” (para. 40). Certainly, this should be appealed further. Note para. 19: “Given the numerous times that this court has made the point about it being improper for Crown counsel to suggest that an accused person has tailored their evidence to fit disclosure or the trial evidence, it is a mystery to me why some Crown counsel persist in doing so.” Sara Little’s summary here.
Section 278 application dealt with here. Not sure whether conclusion that evidence of cheating shouldn’t be relevant in the context of a motive to fabricate, as was found here: R v DK, 2022 ABPC 240, at para. 46.
Defence application to re-call Crown complainant for further cross-examination (mid-trial change of counsel) denied where lines of cross-examination not proffered, and no Browne v Dunn need for it: R v. Raymond, 2022 ABPC 238.
Mistrial ordered on 3rd SA trial (see here for a previous mistrial ruling this year for the same matter with the same Crown on the file – W. Dawson, K.C., a 40-year call) due to poor Crown closing submissions (presented and relied on facts not in evidence – specifically prohibited previously by judge, some 12 examples of where Crown relied on stereotypical reasoning, used defendant’s right to be present at trial against him, improperly insinuated that defence counsel had relied on myths, suggested complainant had no motive to lie – see #1 above, a “grave mischaracterization” of accused’s statement to police – that complainant “just laid there” when he was clear that she had enjoyed herself, and misrepresenting the police statement as if it had been evidence led by the Crown). Fourth time’s the charm, eh? R v Cartwright, 2022 BCSC 1971. H/T Alan Gold’s NetLetter.
Another important SA decision (re: after-fact conduct, para. 87) courtesy of Alan Gold: R. v. Koge, 2022 NSPC 37. Again, improper Crown submission of “no motive to fabricate” (para. 67). It was entirely a “he said she said” trial – she alleged some sexual touching and he denied all of it. Russell J. finds that the evidence of the next morning is essentially collateral and irrelevant (paras. 74, 52-59). Includes a concerning adoption of largely wrong decision of R. v A.R.D., 2017 ABCA 237 at paras. 86-87. A very close (arguably unnecessarily microscopic) review by Russell J. of the accused’s evidence gave no reason to disbelieve it (para. 116), while the complainant’s “evolving” narrative led to some tentative concerns about her “reliability” (paras. 145, 131). A very cautious approach, with the obviously appropriate result. A win’s a win, I suppose? Regarding absence of evidence of a motive to fabricate, the Court states unequivocally: “It is impermissible for this Court to move from an absence of evidence that the complainant had to motive to fabricate to the conclusion that the complainant must be telling the truth” (para. 140).
At paras. 80-81, regarding after-the-fact conduct (complainant participating in SA medical examination, which offered no evidence helpful to the Crown:
The fact that a complainant pursues a complaint does not lockstep equate it to the guilt of an accused. This would effectively shift the onus of proof from the Crown to the accused.
The reality that A.B ultimately agreed to participate in what was described as a physically invasive and emotionally intrusive sexual assault examination may be supportive of credibility. However, it is certainly not determinative.
The concept of “adoptive admission” (e.g. not challenging an accusation received via text message) is considered in R. v. Gordon, 2022 ONCA 799 (e.g. at para. 54, “The jury was told to take a cautious approach to considering the adoptive admission, that a party’s failure to take issue may be ambiguous, and to consider other explanations”).
Crown conviction appeal allowed where trial judge took “piecemeal” approach to assessing the evidence: R. v. Abdelrahman, 2022 ONCA 798.
In a quick follow-up to Sharma (#7 last week), Trudeau’s Liberal government has moved swiftly to allow conditional sentences for most offences and to cancel most mandatory minimum jail sentences.
Following up to #3 last week, the decision has been released on CanLII: R v Cervantes, 2022 ABCA 363. While the ABCA overturns an SA conviction on grounds of insufficient reasons for conviction by the trial judge (Stevenson J.), one wonders if the Court is not engaging in a bit of whitewashing by mentioning only the “successful” ground of appeal and being extremely brief with its vague reasons (less than 1 page needed for these).
In any event, for another wrongful SA conviction (bringing to mind the #MeToo cultural phenomenon), see R. v. Peters, 2022 ONCA 794 in which the Crown conceded a wrongful conviction (Globe). Again, the reasons here are unfortunately very brief (2 short paragraphs). One wonders if the Court is attempting to cover up for a possible laundry list of errors by the trial judge (Justice C.M. Brochu), prosecutor, etc.
Moving right along, in R. v. D.D., 2022 ONCA 786, yet another wrongful SA conviction is overturned (it is with some relief that I learned that esteemed wrongful conviction advocate Laura Nirider presented at a recent Canadian judicial conference). In this case, the trial judge’s (Justice A.C.R. Whitten) disturbing finding was that “[the complainant’s] evidence has the quality of a child bearing witness to a progressive sexual abuse by herself [sic]. There are plenty of childlike details such as taste, the sound of photographs; [sic] the sound of the zipper, the yellow couch, and the concrete floor and the puddles of semen on the floor, which are so compelling, there is no reasonable doubt as to what she attests to” (para. 7). The main problem was found to be that the complainant was an adult at the time of trial (not a child) – rather than the fact that the reasons betray a presumption of guilt on the part of the judge (paras. 8-9). Again, in what appears to be a whitewash, it is “unnecessary to address the remaining grounds of appeal that were argued” (para. 10).
In a fourth consecutive wrongful SA conviction (a record, to date – I hope), the conviction is overturned on the ground of insufficiency of reasons given by the trial judge (Justice G. Wakefield). Thankfully, the other 4 grounds of appeal are enumerated (para. 8), although they are also “unnecessary” to address given the finding on the first ground: R. v. J.N., 2022 ONCA 776, at para. 9. Does anyone still think a SA trial should be held before a judge without a jury? SCC – take note.
Shaigec J. refuses to impose jail time in default of payment of a traffic fine, due to accused’s impecuniosity: R v Fisher, 2022 ABPC 232.
Conviction for contempt of court a “miscarriage of justice”: R v Burles, 2022 NWTCA 3, at para. 12 (Lawyer’s Daily). Judge D.F. Molloy dealing with judicial discipline in unrelated matter.
Ogle J. rules that sexual exploitation and sexual assault are separate offences for “Kienapple” purposes (noting conflicting caselaw), but that the sentences should be concurrent – R v MG, 2022 ABPC 222, at paras. 6, 15.
Following up to #12 last week, in the Harnett case, it appears Justice Loparco made the correct decision: R v AM, 2022 ABKB 754. See para. 209, “Regardless, the plan to flee or the reason behind it does nothing to help answer the question of his subjective intent for murder during the third segment of the flight – namely the 21 seconds after the Vehicle leaves the berm.” Also, para. 250. Note that the defence previously tried unsuccessfully to move the trial out of Calgary due to the intensity of the media coverage and public outrage (para. 12).
A conviction is overturned on Charter grounds: a driver is detained for driving an unregistered vehicle. The passenger’s bag is then search for “inventory purposes” resulting in finding drugs: R. v. Myers, 2022 NSCA 69.
Accused is acquitted of human trafficking, due to insufficient evidence of exploitation; “the Crown has not proved beyond a reasonable doubt that the Complainant had a reasonable concern for her safety”: R v Harris, 2022 ABKB 759, at para. 9, 55.
Following up to #13 last week, apparent racial undertones seem apparent: R v Al Aazawi, 2022 ABCA 361 (initial sentence nearly quadrupled). See, for example, “Through no fault of her own and in circumstances no child can control, a distressed and homesick little girl began to mirror her father’s dissatisfaction with, and extreme attitude toward, her mother. Mr. Al Aazawi did not act in ZA’s best interests. He exploited his position of trust and authority with ZA and placed his notions of honour and his misogynistic view of Ms. Mahdi first. That view has no place in Canadian society” (para. 77). This would appear to reflect the Court speculating, assuming and putting its “spin” on events – correct or otherwise. I am hopeful that this is appealed further, as it appears to be inconsistent with Friesen – of course, Friesen also cited in support of the decision (para. 92). Wakeling J.’s concurring opinion states that the “starting point” for this offence should be 10 years (para. 165).
In a terrific case, the ONCA overturns a conviction on grounds of uneven scrutiny: R. v. B.T.D.,2022 ONCA 732. There were misapprehensions of evidence, as well as “clear” judicial uneven scrutiny found – “the trial judge [Kelly Byrne, J. ONSC] showed a tolerant and relaxed degree of scrutiny of the complainant’s evidence, as compared to the harsh lens that she trained on the appellant’s evidence” (paras. 53, 61). Lack of proven motive to fabricate had somehow helped the Crown – another common and inexcusable error (para. 84). Stunningly, quantity of details was a makeweight for the complainant’s credibility, but had the opposite effect on the accused’s (paras. 34, 61). The complainant’s suppression of certain text messages were problematic, too (para. 50 – no mention of absence of evidence concerns or state misconduct in not obtaining a proper copy of the texts). The trial judge reversed the burden of proof and engaged in “unexplained selective excerpting” of text messages (paras. 67, 73 – note that accusing a trial judge of “cherry picking” was adjudged to be “well beyond the pale” at paras. 8, 10 of R v Saddleback, 2022 ABCA 27). Another must-read for the judiciary and Crown. A nice sequel to #8 (R. v. S.G. 2022 ONCA 727). My tweets here. Judge properly criticized here.
Similarly, in Cervantes, the ABCA overturns an SA conviction: New trial ordered for two Calgary men in gang-rape case | Calgary Herald. The successful ground of scrutiny was insufficient reasons – the Court likely avoiding the uneven scrutiny angle. Interestingly (and likely properly), ineffective assistance of counsel was not argued, despite the trial judge claiming there was such an issue (claiming Browne v Dunn concerns at para. 73, R v Cervantes, 2021 ABPC 169). Also, the same trial judge that I impugn below (under Wrongful Conviction Watch™ and previously). As the appeal decision is not yet on CanLII, I am hopeful of an update next week, presuming the decision is published by then. My tweets. Excellent work Prof. Sankoff and Andrea Serink.
In another shocker for the ABCA, a first-degree murder conviction is overturned: R v Kebede, 2022 ABCA 353 (media). Evidence led by the Crown to prove first-degree murder may have been “equivocal and speculative” (para. 23).
In R v Tsang, 2022 BCCA 345, another SA conviction is overturned due to stereotypes and mistakes against the accused. The trial judge’s “assessment of the evidence in this regard is affected by implicit, unsupported assumptions about “normal behaviour”” (para. 53). The “assumption that he would not have abstained from unprotected sex because he was a “controlling” person, in my view, is unsubstantiated, untethered to the evidence and a prejudicial stereotype” (para. 65). Further, the trial judge mistakenly characterized the expert opinion as injuries that were “inconsistent” with consensual sex (para. 101). Given the laundry list of errors found, uneven scrutiny can be avoided altogether (para. 115). Relies heavily on Kiss, Cepic, MacIsaac and other excellent ONCA jurisprudence.
Evidence of prior flirting was not relevant in this case, and was properly dismissed at the s. 276 application, although “flirting and forms of physical contact could have significant probative value” (para. 50, R. v. O.F.,2022 ONCA 679 – H/T P. Sankoff’s latest Beacon). Not entirely sure I agree with ONCA’s conclusion at para. 54 that this was improper and its invocation of “twin-myth reasoning” (at paras. 57, 60). Similar to R. v. T.W.W.,2022 BCCA 312 (briefly mentioned at #13).
In a disappointing follow-up to Ndhlovu (#3), the SCC narrowly upheld the constitutionality of the Harper-era removal of conditional sentence for serious offences in R. v. Sharma, 2022 SCC 39 (141 pages). Widely criticized by defence bar and academics – primarily on s. 15 (equality) Charter grounds. It appears the Trudeau government is going to (hopefully soon) bypass this decision with Bill C-5. With the recent retirement of Moldaver J., it is very likely the decision would have gone the other way were it heard now.
In a concerning ABCA decision, Justices Slatter, Strekaf, and Feehan dismiss an SA conviction appeal. “Although the closing statement of Crown counsel was problematic and improper in some ways” plus an absence of Crown evidence, the conviction appeal is dismissed: para. 35, R v EF, 2022 ABCA 366. My tweets. Note that “folksy” Crown arguments were also a problem, downplayed by ABCA majority in R v BEM, 2022 ABCA 207 (blog).
An absence of evidence is an important factor to consider by the trier of fact – R. v. Harris, 2022 ONCA 739, at para. 131. H/T P. Milczarek. Seems contrary to EF, above.
In even more disturbing ABCA jurisprudence, Wakeling JA claims that “An applicant convicted of a serious crime who applies for bail pending appeal must demonstrate that his or her appeal is more likely to succeed than fail” (emphasis added, at paras. 3, 23 – R v SDH, 2022 ABCA 367). This is a blatant error, where the test is properly that the applicant merely needs to show the appeal is “not frivolous” – 679(3). Wakeling J. was previously specifically chastised (gently, unfortunately) on this very point in R. v Sidhu, 2015 ABCA 308 by a panel of the ABCA (at para. 13). I have been complaining about this sort of thing for years, as have others. The decision is simply unconscionable. May be a worthwhile case for the Canadian Judicial Council to intervene. My tweets.
In R. v. McLenachan, 2022 ONSC 6202, Schreck J. overturns a conviction on grounds of ineffective assistance of [very senior] trial counsel, primarily finding that counsel had engaged in “sexually inappropriate behaviour” with the accused (para. 132). See media (non-paywalled). Well done appellate counsel Sherif Foda and Emily Dixon.
Looking forward to reviewing the reasons (when published) acquitting a young accused of murder (convicting on manslaughter) of Cst. Harnett, a Calgary police officer who was tragically killed when the driver tried to escape. Lots of uncivil (and likely unjustified criticism) of the judge’s decision by police, and surprisingly, featured prominently in local media See tweets.
In another ABCA decision, I look forward to reviewing the successful Crown sentence appeal in R. v. Al Aazawi, [2022] A.J. No. 1333 when it’s released on CanLII (initial sentence tripled) – particularly Wakeling JA’s concurrence. My tweets. Note disturbing local media coverage, per usual.
Evidence excluded due to Charter breaches: R. v. Robertson, 2022 ONSC 5795. A traffic stop which was really an impromptu investigation into drug trafficking was not Charter-compliant. McCarthy J. finds that “I conclude that what was really happening on the morning of February 7, 2020, was an investigation, perhaps impromptu, but nonetheless real, into potential drug trafficking. Perhaps, it was an investigation which lacked sufficient evidence to support a warranted stop, seizure, and search of the vehicle. It nonetheless raised the tantalizing prospect of finding drugs if an HTA basis could be relied upon to stop a vehicle in which a known drug dealer had just been spotted” (at para. 26). This led to a “cascading effect” (para. 29), resulting in further breaches of s. 10 (right to counsel) and s. 8 (unreasonable search).
An excellent acquittal by Fradsham J. on tickets for a pastor’s failure to enforce distancing rules in a church during COVID, due to a lack of evidence and baseless assumption that the pastor was required to enforce the order for other people (R v Stephens, 2022 ABPC 220, at paras. 54-55).
In R v Rai, 2022 ONCA 703: “misadvised by counsel, accused pleaded guilty to driving offences without being aware of automatic, indefinite licence suspension under provincial law. Illustrative of how hard it is to set aside pleas, Court finds no reasonable possibility he would have done differently had he known.” Lifted directly from Ryan Clements. See also Sara Little.
Guilty pleas quashed where accused not present at important parts of in-chambers discussions: R. v. S.M., 2022 ONCA 765. Self-represented appeal – Dan Stein volunteering as amicus. Sara Little’s summary.
In R v Solivio, 2022 SKCA 117, an SA conviction appeal is dismissed. Significantly, it states, “There is also case law that supports the idea that a trial judge may take into account the length of time a youth spends on the stand as an aspect of the required common-sense approach” (para. 48) and “mental or physical exhaustion may play a role in assessing both demeanor and credibility” (para. 50). Worth using for defence and adult witnesses, too.
Conviction overturned for “obstructionist” self-represented accused, who was excused from the courtroom, and subsequently convicted without the opportunity to present a defence: R. v. Viau, 2022 ONSC 5825.
In R v Braima, 2022 ABKB 708, Woolley J. finds that the accused is not guilty as a party to manslaughter, despite “middling” a drug transaction gone wrong (another individual in the car – identified by a pseudonym only likely for the safety of the accused) appeared to shoot the deceased to rob him of $1,000 – para. 51).
After the recent drama in Schneider (discussed at #1 here), roundly criticized by the defence bar for its reduced emphasis on context – contrary to its recent position in JJ, the SCC came out with R. v. Tessier, 2022 SCC 35. Appallingly, the ABCA’s ordering of a new trial was overturned on the basis that the accused’s confession to police – absent a caution and when not a suspect – was admissible. See Canadian Lawyer.
In perhaps the most exciting SCC decision of the year so far (in a pretty good year for the SCC), the Court decided (a narrow 5-4 majority) that the mandatory SOIRA (sex offender) registration for anyone committed of any sexual offence is unconstitutional: R. v. Ndhlovu, 2022 SCC 38 (Lawyer’s Daily). Unfortunately, Parliament is likely to immediately “salvage” it with slightly-tweaked legislation to quell the anticipated uninformed public outcry (e.g. see this idiocy from a lawyer) – as encouraged to do so by the Court. In better news, the long-awaited Sharma decision is being release this Friday!
Stay of proceedings granted where police videotaped accused using washroom without notice, and Crown subsequently played the video in court, “an affront to human decency and dignity” – para. 5, R. v. Simpson, 2022 ONCJ 262.
In an interesting Garofoli application, Champion J. concluded that “The ITO is thus neither sufficient nor adequate evidence that would have justified the issuance of the warrant” (R v Daigle, 2022 ABPC 202 at para. 85). Weaknesses included “bootstrapping” opinion evidence from landlord, poor-quality images, lack of precision, a “vague and undetailed” tip, identification without explanation, etc. (paras. 36-75).
Whitling J. finds that a conceded right to counsel breach was blatant, yet insufficiently egregious to justify a stay of proceedings (R v Campbell, 2022 ABKB 663, at paras. 18, 115).
In R v Hoggard2022 ONCA 728, appeal bail is granted fortunately. However, the charges are called “extremely serious” – a questionable finding given Oland, and the appellant is improperly compelled to hurry the conviction appeal (paras. 10, 13). The Crown concedes the appeal is arguable and “not frivolous,” (but just “barely” so – para. 8).
An excellent case on SA myths is R. v. S.G. 2022 ONCA 727. In this appeal, Doherty, Benotto and Copeland JJ.A. bravely overturn an SA acquittal (for now, anyway) on a misapprehension of evidence by the trial judge (Dellandrea J.). essentially, the judge found there were no material inconsistencies between the complainant’s prior affidavit and trial testimony. The other mistake was misunderstanding the timing of the complaints. Importantly, and contrary to R. v A.R.D.,2017 ABCA 237 (affirmed by the SCC), it states what should not be controversial: “D.D. does not stand for the proposition that timing of disclosure is irrelevant to credibility. Rather, any issues of timing of disclosure must be assessed in the context of the trial evidence as a whole” (para. 43). Are you listening, ABCA and SCC?
In an interesting SA conviction, Jeffrey J. finds that numerous inconsistencies in the accused’s versions of events is fatal to his credibility and reliability (interestingly enough, inconsistencies in complainants’ versions generally are often chalked up to “trauma”). Also, the complainant was incapable of consent due to her degree of intoxication – a finding that may be vulnerable on appeal: R v Hofley, 2022 ABKB 679.
Concerning conviction by Sihra J. on non-major SA in R v Del Rosario, 2022 ABPC 183 despite numerous inconsistencies in complainant’s testimony.
A courageous acquittal by Pharo J. in child SA allegation where there were significant problems and inconsistencies with the evidence of each of the complainants as well as the accused: R v DWC,2022 ABPC 216.
A hate crime against Muslim women netted a total of a 16-month jail sentence. While I don’t quibble with the reasoning or result (generally, although language like, “The Muslim community is looking to this Court for justice” is somewhat concerning – para. 114), the Crown recommended 8-10 months for the hate crime, and the judge “jumped” it by going with 12 months: R v Stevens, 2022 ABPC 213 (para. 148) – without notice and contrary to the law, as recently re-affirmed in R. v. Nahanee, 2022 SCC 37.
Conviction overturned in impaired case where officer handcuffed accused unnecessarily: R. v. Vine, 2022 ONSC 3297.
Brand new SCC decision in R. v. Schneider, 2022 SCC 34, overturning a murder acquittal on the basis of hearsay (overheard “confession” devoid of context), appearing to distinguish (or overrule) its previous decision in R. v. Ferris, 1994 CanLII 31 (SCC). See Lawyer’s Daily.
Appeal bail granted by Veldhuis J. on serious convictions of child SA, where the trial judge appeared to have rejected the appellant’s description of an unrelated incident and hence rejected the appellant’s denial of the substantive allegations: R v JDC, 2022 ABCA 304 (para. 11).
In another concerning Crown sentence appeal, a sentence of 90 days jail for domestic assault causing bodily harm is overturned and replaced with 9 months. Among the issues is disagreement as to the facts – the accused appeared to claim it was a mutual fight, for the most part, while the Agreed Statement of Facts was less clear about this: R v Drews, 2022 ABKB 658.
Conditional discharge not granted (probation instead) for non-major SA charge, despite immigration consequences (non-PR): R v Hadni, 2022 ABPC 195.
A nice acquittal in R v Kajita, 2022 ABPC 201 – Stevenson J. with E. Ryland as defence counsel. For another nice acquittal by the same judge and defence counsel, see R v L.A.,2022 ABPC 199 – dealt with at #4 last week.
Another acquittal in R. v. Ackerman, 2022 ONSC 5381. Massage therapist accused of SA against 4 different clients – inconsistencies in narrative and the “totality of the evidence” (para. 126) were fatal to the Crown’s case.
Conviction appeals allowed on gun charges, where “the trial judge’s finding that Ahmed was aware that there was a gun in the car because it was involved in an exchange of gunfire [involving the car’s passenger, Yusuf] rests on a fundamental misapprehension of evidence” (para. 7, 86, R. v. Ahmed, 2022 ONCA 640). Despite the searches of the car being allowable (para. 75), multiple convictions on Yusuf were also overturned, primarily due to the judge’s error on relying on photos from accused’s cell phone that may not have matched the weapon seized (paras. 92-110).
In a well-reasoned SA acquittal, Funk J. finds inconsistencies in the child witness’s testimony to be fatal to the Crown’s case, despite a near-admission by the accused (paras. 103-118, 94): R v CER, 2022 ABKB 636. Justice Funk properly cautions herself on reading too much into the accused’s testimony appearing evasive or long-winded (paras. 87-93). A slight quibble with language used: “My task here is determine whether these alleged events in fact occurred. I am to do so based on my assessment of the complainant’s allegations and the accused’s denials, along with other available evidence. As difficult as that task may be […]” (para. 59, emphasis added).
In another – R v L.A., 2022 ABPC 199, Stevenson J. found that numerous inconsistencies (para. 44 – largely not specified) in the complainant’s evidence required an acquittal.
In contrast, in R v C.L, 2022 NLCA 53, a Crown appeal of an SA acquittal is granted. Multiple trial errors were found, including an assumption that the accused would have “noticed” objection to the activity by the complainant – then somehow jumping to the conclusion that it triggered the myth that silence was consent (para. 19 – as opposed to merely the discrepancy in the evidence as to whether an objection was made), the “myth” that the complainant’s failure to leave when she had the opportunity to was relevant (para. 20 – likely an oversimplification and/or mischaracterization of the law), reference to the complainant’s upset as indicative of anything other than the guilt of the accused as a further myth (para. 21 – it likely would not be if used to support the accused’s guilt – enough said) and very brief reference to previous, relevant sexual conversations (para . 47 – a technical violation of s. 276, perhaps – despite the Crown’s failure to object at the time). Hopefully, the accused appeals further – this is a very good example of problems with the law in Canada with regard to SA. See Twitter thread here and Lawyer’s Daily.
In a major decision, the ONCA dismissed a Crown appeal of murder acquittals relying in part on accused’s “background” to support his defence of self-defence, given that it is a “modified objective” test. Grounds of appeal related to refusing to allow the Crown’s Corbett application to adduce evidence of prior disreputable conduct also dismissed. Interestingly, some of the previous instances of bad character were refused on the basis of Gladue-like principles – upheld at the ONCA, ruling that “Indigeneity is a relevant, although not dispositive, factor to take into account in a Corbett application” (para. 136): R. v. King, 2022 ONCA 665.
Private Facebook messages from the accused to the complainant – where there was an expectation of privacy on the part of the accused – inadmissible without warrant despite complainant’s waiver of her privacy interest: further, the accused’s statement to police – where there was ambiguity as to whether he was properly cautioned and no audio recording was made – is also inadmissible: R. v. C.M., 2022 ONCJ 372. Interestingly, the officer’s notes of their lengthy conversation were clearly an “inadequate record (paras. 64-56), and thus inadmissible for that reason, too.
In a complex hearsay and “Mr. Big” case, the trial judge’s decisions were upheld, including allowing dated pre-hypnosis statements from witnesses in a murder case: R. v. Handlen, 2022 BCCA 304.
Crown application for remote witness attendance at an SA trial dismissed, in part because of a lack of information provided to ensure safeguards to protect integrity of trial process (para. 7): R. v. Sprungmann,2022 BCPC 164. Where witness out of country, onus is on “the party objecting to the virtual testimony to satisfy the court on a balance of probabilities that proceeding in the manner sought by the application would be contrary to the principles of fundamental justice” (para. 9). Consequences included possibly jeopardizing the witness’s U.S. immigration status. Similar to #3 here.
Appeal bail denied by Veldhuis J. in R v Mole, 2022 ABCA 298. While the decision may have been warranted on the first ground, I have concerns about it also being denied on the 3rd ground (para. 29) and its characterization as a “very serious” offence (para. 20 – an SA conviction with a 3.5-year sentence) in the parlance of Oland. See #7 here, for example.
Appeal bail granted pending leave application to SCC in R. v. Scott, 2022 ONCA 659, where, among other grounds of appeal, the ONCA appeared to miss a primary ground of appeal.
A sentence appeal is allowed, where the sentencing judge recalled the matter one week post-sentence to correct a major error – a 3-year sentence was intended to be consecutive, but instead had been made concurrent. ABCA had little patience for attempt to avoid functus doctrine: R v DEA, 2022 ABCA 308. H/T Ryan Clements.
Dissent would have allowed s. 276 application in R. v. T.W.W., 2022 BCCA 312.
Improper costs award against the CRA reversed in R v Van Dijk,2022 ABCA 292.
A concerning conviction appeal is dismissed in R v McCrimmon, 2022 ABCA 289. Bad character evidence is not enough of an issue, essentially (para. 35), and the Crown’s summation of the law of sexual assault is good enough – if not correct (note that the panel refuses to address the question of whether the address was actually correct – paras. 26-27). The panel even manages an unwarranted dig at appellate counsel (“Appeal counsel has reviewed the jury charge in detail checking for errors” – para. 7).
Crown application for multiple witnesses to testify remotely at a major fraud trial dismissed: R v Barry, 2022 ABQB 600.
Edmonton Remand Centre trashed by Henderson J. in R v Starrett, 2022 ABKB 613. A gruesome manslaughter sentence was reduced by a mere 3 months (para. 114, citing “a gross violation of their duty to protect all prisoners at the ERC”) as a result of this state misconduct (rarely called out), and a further 4 months for vigilantism that may not have constituted state misconduct (para. 126). Surprisingly, Friesen-esque “bonus” sentences are not yet common for this offence.
I continue to look for work, given that Legal Aid Alberta continues to unreasonably refuse to work with me (and I’d boycott them, either way). My strengths are in written, oral and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.
In a concerning case, a youth who had been detained almost 20 years due to a finding of “not criminally responsible” was finally let go: R. v. J.G., 2022 ONCA 622. The overuse of NCR findings continues to be a major problem – see also #1 here.
In a bizarre case, the ONCA grants a Crown appeal of an acquittal and grants a new trial. The trial consisted of video evidence only – what appeared to be a sexual assault due to extreme intoxication: R. v. Tubongbanua, 2022 ONCA 601.
In R v Iwanciw, 2022 ABPC 170, the Crown’s sentencing position of 3 months’ jail “demonstrates a complete lack of understanding of the gravity of the offence” in a criminal harassment case. Applying R v Sidhu, 2022 ABCA 66 (which I dealt with in my first weekly update – #2), Cochard J. applies an 18-month conditional sentence order, with 24-hour house arrest (with exceptions) for the first 12 months.
While a “drafting error” explains why a driving prohibition cannot be imposed for the offence of criminal negligence causing death, a driving prohibition is not available: R. v. Boily, 2022 ONCA 611, para. 43.
A courier for 220 grams of fentanyl and 1 kilogram of cocaine had his sentence reduced from 12 years to 9 years in British Columbia: R v McLean, 2022 MBCA 60 – H/T CanLII Connects. Conviction appeal dismissed.
The More Things Change, the More They Stay the Same: Bail Pending Appeal After R v Oland by Kenneth Grad :: SSRN (briefly noted at #10 last week), “Despite Oland’s clear instruction that the public confidence inquiry should be reserved for exceptional cases, following Oland consideration of public confidence is far from exceptional” – p. 3, and refers to a glaring “widespread misapplication of Oland” – p. 36. I’ve pointed out systemic problems in the area of bail pending appeal countless times now (e.g. 1-3 here, #4 here, #8 here).
Prof. Tanovich’s latest article: A Principled Approach to Assessing the Absence of Motive to Lie in Sexual Assault Cases | CanLII. He appears to suggest that an absence of evidence of motive to fabricate should be conflated with evidence of no motive to fabricate, which is extremely concerning. He states “the reasonable inference that people do not lie under oath about being sexually violated often times by those close to them without a compelling and obvious motive to lie” which is dangerous and irresponsible (and obliterates the presumption of innocence) on its face. He further claims, “the issue is whether a reasonable inference of no motive to lie can be drawn from all of the circumstances of the case” – a troubling finding, particularly when most peripheral details are deemed “irrelevant” and hence inadmissible at trial. I have concerns that he is competing with Prof. Craig to be the most irresponsible academic in the country when it comes to sexual assault – particularly troubling in Tanovich’s case, as he is otherwise considered an authority on the law of evidence and has argued leading cases at the Supreme Court, including R. v. Golden, 2001 SCC 83.
I continue to look for work, given that Legal Aid Alberta continues to unreasonably refuse to work with me (and I’d boycott them, either way). My strengths are in written, oral and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.
In a ground-breaking decision, a 2013 conviction is reversed in R. v. Murphy, 2022 ONCA 615. The female accused had not disclosed her HIV-positive status, resulting in an SA conviction – based on the science and law at the time (despite no transmission of the illness; now known to be “zero risk” – para. 5). I’m still trying to wrap my head around Kirkpatrick – not entirely certain this decision is consistent with it. Congrats to Colleen McKeown of Daniel Brown Law in Toronto for her excellent advocacy.
Conviction appeal allowed in R. v. N.P., 2022 ONCA 597. It is a likely “he-said she-said” wrongful conviction (legally and/or factually) overturned on technical W.D. grounds. Bizarrely, the appellant testified that 2 incidents occurred, while the complainant insisted that just 1 occurred. While both suffered from inconsistencies and credibility issues, the judge accepted the accused’s testimony with regard to the number of incidents only.
An apparently ill-advised conviction appeal on tenuous grounds of ineffective assistance of counsel dismissed in R. v. Sagos, 2022 ONCA 603. Includes the following nugget (para. 30):
Trial lawyers are required to act with reasonable skill, knowledge and ability in the representation of their clients. Lawyers must often make difficult judgments in the course of litigation. The exercise of that judgment is not measured with the benefit of hindsight, or by speculation about what reasonably might have been done differently. For example, cross-examination does not fall below the competence standard because other questions could reasonably have been asked of the witness. There are many ways to cross-examine a witness. Some are better than others. None necessarily demonstrate professional incompetence.
In a courageous and proper acquittal, Mandziuk J. acquits the accused of the charge of sexual assault where there are significant inconsistencies with the evidence of both the complainant and the accused – particularly the complainant’s perjury testimony that she was not intoxicated or on drugs during the incident: R v Howe, 2022 ABQB 580.
Crown self-defence acquittal appeal dismissed – that victim hid gun in pocket after being shot is not an unreasonable inference: R. v. Sparks-MacKinnon, 2022 ONCA 617.
In a thorough sentencing decision (citing some 75 cases), Mandziuk J. sentences an offender to 10.5 years of jail total for extortion, confinement, sexual assault, harassment, etc. : R v HPM, 2022 ABQB 584.
In R v J.M., 2022 ABPC 173, numerous inconsistencies and post-incident conduct (hiding in closet from police) establish the accused’s guilt, per Cummings J.
Briefly weighing in on The Hon. Justice Michele O’Bonsawin’s recent appointment to the Supreme Court of Canada: I am excited generally, although there may have been a “political” element to the appointment. While her PhD thesis has been withheld, I don’t see her as having anything to lose by making it available now that she’s been appointed.
I continue to look for work, given that Legal Aid Alberta continues to unreasonably refuse to work with me (and I’d boycott them, either way). My strengths are in written, oral and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.
Confession made to a therapist confidential and should not have been used in criminal proceedings. Child SA conviction overturned as a result by a 2-1 majority of the Quebec Court of Appeal – expect the Crown to appeal further, unfortunately: Chatillon c. R., 2022 QCCA 1072 (Lawyer’s Daily). Trial voir direhere.
In R. v. Bhadresa, 2022 ONSC 4691, a conviction appeal is granted by Harris J. on the ground that the trial judge improperly relied on complainant’s “after-the-fact emotional state” as corroborative of her testimony (para. 4). The police officer found her “frantic and crying” in the park after a domestic incident. While “after-the-fact conduct” can be used, “Like any circumstantial evidence, the relationship between a proved fact (the emotional state) and the fact in issue (the assault) must be scrutinized” (para. 21). As both sides testified that they had a major disagreement, her emotional upset was as consistent with the accused’s innocence as his guilt. Trial judges (and Crowns) need to be much more careful when trying to make this type of argument (particularly in Ontario). See also R. v. Lakhan, 2022 ONCJ 362, at paras. 51-57. Also, I note that the accused’s lack of concern for her safety was used against him (problematic generally due to impermissible bad character evidence, although commonly used in this context; although in this case he claimed to be concerned about her, so less problematic here than usual) – para. 15.
First degree murder conviction overturned where trial judge erred by leaving the conviction open to the jury since s. 231(5) of the Criminal Code was improperly relied upon – the forcible confinement occurred before the murder – not concurrently, as required. Further, evidence of provocation which was culturally specific was allowed, although found to not meet the test on the facts (para. 84): R. v. Singh, 2022 ONCA 584 (Lawyer’s Daily, also).
In an interesting acquittal, the accused is acquitted of the offence of obtaining sexual services for consideration from person under 18 years, given that he claimed to not see the message clarifying the age of the undercover officer posing online as the youth. His further claim to have told the undercover officer that he would only see an adult – contradicted by the officer – appears to have been accepted (following a change of counsel rectifying what otherwise would have been a Browne v. Dunn issue). Entrapment was not an issue, as the accused initiated the conversation. The accused was acquitted of 286.1(2), but convicted of the lesser, included offence – it is an offence as against an adult, too s. 286.1(1): R V A.N., 2022 ABPC 175. Also, note that the accused’s initials were used – likely a kind gesture by trial judge (Lamoureux J.).
A fact-based SA acquittal in R. v. Valiquette, 2022 ONSC 4530. At paras. 58-59, Ellies J. concludes (see also R. v. Khan, 2022 NSSC 223 and R.v. Boujaoude, 2022 QCCQ 5383):
For the reasons expressed above, I do not fully accept the evidence of either the complainant or the accused about the events of the night in question. Nonetheless, when considered in the context of the evidence as a whole, the evidence of the accused leaves me with a reasonable doubt about whether he struck the blow alleged by the complainant and whether she consented to the sexual acts in which they engaged thereafter.
Because the Crown must prove beyond a reasonable doubt that the complainant did not consent, the accused must be found not guilty.
Argument of ineffective assistance of trial counsel on multiple grounds (accused’s decision not to testify, reliance on myths, etc.) properly denied in R v Mazhari-Ravesh, 2022 MBCA 63. H/T Ryan Clements.
In R. v. Ellis, 2022 BCCA 278 (Lawyer’s Daily), an 18-36 months’ jail sentencing range in BC (5-year “starting point” in Alberta, which is supposedly the same thing as a range – R. v. Parranto, 2021 SCC 46, para. 18) is entirely ignored and probation appropriate instead because accused an addict (and female) who pled guilty. Original sentence largely upheld on appeal, although probation term extended. Will be interesting to see if Crown appeals and forces SCC to reconcile conflicting sentencing jurisprudence – cases like this and Sharma (which is forthcoming at the SCC) with its hardline approach in Friesen (child sexual assault) and to a lesser degree, Parranto (high-level trafficking). The SCC – decidedly non-“woke” when it comes to sentencing sexual offenders (unless locking ‘em up and throwing away the key counts as “woke” these days, which it probably does) – will need to determine how “woke” to be when sentencing vulnerable addicts. Mental gymnastics – my favourite.
A conflict of interest is found given that previous defence counsel on the matter recently joined the Hamilton Crown office. This despite the fact that it was clear that said “reputable” counsel had not discussed the file inappropriately with anyone, as justice needs to “be seen to be done” (para. 12). The Crown office’s “reactionary” approach of not having systems in place to deal with said conflicts until the issue was raised by current defence counsel unacceptable (para. 14). Consequently, the Hamilton Crown was required to pass the matter to a different office: R. v. Skye-Davis, 2022 ONCJ 378.
