Weekly criminal law update – May 15, 2022

I am looking for contract work, given that Legal Aid Alberta unreasonably refuses to work with me. My strengths are in written and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.

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  1. Check out my latest blog post on the fiasco that is Legal Aid Alberta: The train wreck that is Legal Aid Alberta – Moldofsky Law (my first blog post other than weekly updates in 6 months). I’m hoping to post a bunch more over the next few months – have already drafted several.
  2. In what I consider to be the most significant decision in a generation (at least), in R. v. Brown, 2022 SCC 18 (104 pages long), after some 28 years, the ABCA upholding s. 33(1) is struck down by a unanimous 9-0 SCC panel. Constitutionality of s. 33(1) of the Criminal Code (allowing for criminal liability of extremely intoxicated individuals, akin to automatism, for general intent offences) is struck on the basis that “To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions” (emphasis added, para. 9).
    It is a huge moral victory for defence and civil liberties in Canada, generally, despite the fact that it deals with an extremely rare defence. While the SCC “hastened” to add that Parliament can certainly cook up new ways to ensure criminal liability for someone in this category, given the importance of “protecting victims” (para. 10 – grrr), the cat is out of the bag. Let’s not forget that the SCC has unanimously struck down idiotic legislation that has been active for the last 28 years. Besides, all 3 justices at the ABCA got it totally wrong (note that even the dissenting justice, Khullar JA, found it to be unconstitutional but saved it under s. 1). Sure, Parliament can choose to try again, but will they and should they? We’ll see. Perhaps my favourite paragraph (para. 127):

    To be clear, this conclusion rests on the specific concerns Parliament had when enacting s. 33.1. This case engages unusual issues and should not be seen as allowing governments to justify attempts to expand criminal liability as a routine matter. The accountability objective must, as here, be defined with precision, distinct from the means and, importantly, be sufficiently compelling from a societal perspective to warrant the overriding of rights.

    Mega congrats to all of the counsel, courts and parties involved in this game-changing decision.
    I say it’s time to similarly review other bad legislation (e.g. s. 276 – possibly 273.2, etc.).

  3. R. v. Sullivan, 2022 SCC 19 (66 pages) is a “companion case” to Brown. While some are concerned about its implications in the context of horizontal stare decisis, I’m not. Keep in mind that it was dealing with declarations of constitutional invalidity, and doesn’t substantially change the law on stare decisis.
  4. A major decision by the ABCA unanimously allowing a defence appeal of a trial judge’s refusal to put the defence of honest but mistaken belief to the jury in an SA case where the accused’s evidence suggested the possibility that there was an “air of reality” to the defence, and that he had taken reasonable steps to ascertain consent: R v Wong, 2022 ABCA 171. Significantly, the experienced trial judge’s conclusion that the accused needed to “ask” permission, in the context of this case, was incorrect (para. 7).
  5. Trial judge dismissing 2 male jurors for the sole purpose of a more balanced jury in terms of gender representation was reversible error, necessitating a new trial: R. v. Azzi, 2022 ONCA 366 (the trial was pre-Chouhan).
  6. Search warrant excised on basis that accused’s phone number was obtained from a hotel for the express purpose of tracking it. There was privacy interest, and s. 8 was breached (para. 165). Argument on section 24 was reserved (para. 6): R v Neumann, 2022 ABQB 314 – not yet available on CanLII (QuickLaw/Google) – H/T Alan Gold’s NetLetter.
  7. Accused’s statement to authorities “compelled” under traffic laws (reporting collision to police), and as such, were inadmissible against him at trial for impaired driving, resulting in acquittal: R. v. Thorne, 2022 ONCJ 193 – H/T Alan Gold’s NetLetter.
  8. Joint submission of 90 days jail “jumped” to 8 months, on guilty pleas to uttering a death threat and a breach of probation in the domestic context, with Gladue factors: R v Pecinka, 2022 ABPC 81. Not sure if it makes a lot of sense (pragmatically speaking), as Crown is likely to consent appeal, I’d think.
  9. ABCA trashed by most of the country for its latest decision favouring Alberta’s government regarding oilsands (Reference re Impact Assessment Act, 2022 ABCA 165 – 219 pages). Strongly criticized by academics (here and here too). In case you didn’t already think law = politics (see also #17 last week).
  10. Opinion: The legal defence of extreme intoxication is not inherently anti-feminist – The Globe and Mail
  11. Black GTA man cleared of murder in shooting of ‘racist’ Kingston man | The Star
  12. Our politicians must better respect the judicial independence of tribunals | The Star
  13. The trauma of proving my good character | Canadian Lawyer (canadianlawyermag.com) – not recent.
  14. Alison Saunders’ critics attack ‘disastrous’ five-year reign of the CPS | Daily Mail Online – not recent.

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 40% 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 40% 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 $42 (40%) in a single year. So the total “pot” available for the roster was cut by nearly half 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.

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.

 

Charts

Weekly criminal law update – May 9, 2022

I am looking for contract work, given that Legal Aid Alberta unreasonably refuses to work with me. My strengths are in written and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.

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  1. NCR finding overturned, due to insufficient reasons, etc. Also, the charges were relatively minor (possession of weapon) and NCR was likely inappropriate for that reason alone (paraphrasing). A good reminder that NCR should only be used in extreme situations: R. v. Laming, 2022 ONCA 370.
  2. SCC finds that Jordan delay starts over upon ordering of a new trial: R. v. J.F., 2022 SCC 17.
  3. In R. v. Lai, 2022 ONCA 344, a new trial is ordered where the trial judge’s route to liability came late and as a surprise to both counsel (finding that the removal of a towel was itself sufficient for the SA conviction).
  4. In R. v. Panzo, 2022 ONCA 359, convictions were overturned and acquittals entered after a jury conviction on party liability – for co-accused Bailey only. A drug transaction occurred, and Bailey had been in the residence, later leaving (and running from police). There was an absence of proper jury instructions on party liability, and the judge should not have given an instruction on co-conspirators’ exception to the hearsay rule. Further, there were inconsistent verdicts relating to Bailey (para. 51), suggesting the jury was confused about the law and various routes to liability.
  5. Past sexual conduct improperly used against accused in a “historic” SA judge-alone trial required a new trial – GG c. R., 2021 QCCA 1835, at para. 41.
  6. In R. v. Mbuyamba and Anderson, 2022 ONSC 2491, an acquittal was appropriate in a circumstantial case of firearms charges where the accused did not testify. While the circumstantial evidence was highly suggestive of knowledge (and hence possession), it was insufficient for a finding of guilt beyond a reasonable doubt. Roger J. points out that “it is also important not to jump to conclusions too quickly by “filling in the blanks”” – para. 53.
  7. Trial judge exceeded Crown’s recommended sentence (not a joint submission) without giving sufficient reasons nor providing an opportunity for counsel to address appropriateness of sentence, and was hence overturned: R. v. Bagheri, 2022 ONCA 357.
  8. Murder appeal allowed where improper jury instruction on identification evidence: R. v. Grant, 2022 ONCA 337.
  9. Somewhat disturbing conclusion – denial of appeal bail on 3rd ground (public interest) for 8-year sentence by Trotter JA: R. v. M.S., 2022 ONCA 348. Same on 7 years in R v RYM, 2022 ABCA 148 (Legal Aid Alberta unreasonably refusing coverage), 3 years in R v DRS, 2021 ABCA 171, and 14 months in R. v Price, 2022 NLCA 25. Contested on 14 months in R v Mitchell, 2022 ABCA 151 (last week, #3). HT Ryan Clements (his April post here).
  10. In R. v. Rafuse, 2021 NSPC 63, charges of CP were stayed as a result of Charter breaches (s. 8). The accused’s computers were seized pursuant to a search warrant, but the Report to Justice was filed over a year late, and the items were not returned to the accused, despite multiple requests. H/T Alan Gold’s NetLetter last week (QuickLaw).
  11. In R v Ejetsiak, 2022 NUCA 2, a conviction for assault is overturned due to trial judge’s misapprehension of evidence (incorrectly stating that the officer testified that the complainant showed bruising, paras. 34-35). H/T Ryan Clements.
  12. In R v Bunn, 2022 MBCA 34 – low sentence of 28 months prison upheld (para. 129) on Crown appeal for SA – despite error of sentencing judge in relation to non-disclosure of HIV status (para. 56). Considers Gladue, Friesen, – noting repeatedly that Parliament has not raised the maximum prison sentence in 40 years (e.g. paras. 74, 80), despite the rhetoric in Friesen.
  13. In another well-reasoned acquittal, see Semenuk J’s reasons in R v H.H., 2022 ABPC 98 (similar to #7 last week). Significant concerns with the complainant’s credibility and inconsistencies (e.g. para. 128) led to a reasonable doubt – despite Browne v Dunn issues with the accused’s evidence (para. 126).
  14. Failure to instruct the jury on the defence of provocation when it would have been better to do so (“to err on the side of caution” – paras. 67, 80) justified overturning a murder conviction. However, Crown’s “troubling” and inflammatory comments were insufficient on their own, in the “context” of this case, to justify a new trial (para. 45): R. v. Barrett, 2022 ONCA 355.
  15. CJO Strathy released an excellent paper on the importance of mental health in the legal profession (Lawyer’s Daily).
  16. Recent Crown pay bump in Alberta, as well as 12 new provincial court judges Unfortunately, not a single one of the judges has a criminal defence background. It is also extremely unlikely that defence lawyers in Alberta will ever be paid (through Legal Aid) anything close to the relative fortune that Legal Aid in BC or Ontario pays. Note significant pushback from some defence lawyers here.
  17. The US Supreme Court’s intention to “cancel” abortion after 50 years has shocked the world. It perhaps lays bare the obvious truth that law and politics are essentially the same thing. See this and this: “But if a half-century of progress toward a more equal society, painstakingly achieved across many fronts by many actors, can be so easily jettisoned with the wave of a few judicial hands, the problem to worry about isn’t the court’s. It’s democracy’s. It’s ours.”
  18. Regarding judicial education, see Kyla Lee’s excellent attack on Keira’s Law – Lawyer’s Daily.
  19. The Unsolved Murder of Beverly Smith is an excellent new series on Amazon Prime about Mr. Big operations and wrongful accusations (Toronto Life).

Weekly criminal law update – May 1, 2022

I am looking for contract work, given that Legal Aid Alberta unreasonably refuses to work with me. My strengths are in written and appellate advocacy. If you can use my services, please email me at efrayim@moldofskylaw.ca.

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  1. Confession to police upheld on appeal (4-3) in New York, despite blatant breaches of right to counsel. Holy ****. Showing that Canada is not yet this bad on Charter issues, see R. v. Dussault, 2022 SCC 16. A unanimous Supreme Court found that police undermining of right to counsel (by, for example, lying to the accused that they would be allowed to meet counsel in person) requires police to provide a new opportunity to consult with counsel. Can’t think of how many times I see police on video – when trying to coerce a confession – belittling defence counsel (who typically advise against making any statement). Such belittling could probably render the subsequent confession inadmissible.
  2. Surprising result in R. v. Alas, 2022 SCC 14: ONCA majority overturned on defence of provocation, where the appellant was defending his domestic partner from an attacker at a bar. Conviction restored.
  3. Appeal bail granted by ABCA, where ground of appeal was not uneven scrutiny: R v Mitchell, 2022 ABCA 151 – third ground (public interest) surprisingly contested despite a prison sentence of a mere 14 months.
  4. In R v Geick, 2022 ABCA 150 (my own file so I should be careful), an application for funding of transcripts only is denied on this appeal (pro bono, so far – para. 3) of a wrongful conviction. Concerningly, the appellant is capable of running the appeal himself (despite having a Grade 8 education – para. 14), and somehow, the appeal does not engage broader societal issues (para. 13). The result is incompatible with the results in R v McKechnie, 2020 ABCA 247 and R v Mavros, 2021 ABCA 421 – both ABCA cases cited by the Crown. Needless to say, I am bringing a further, similar application in a few weeks.
  5. Last week I mentioned (#3), in which a new trial on a child SA was required because similar fact evidence was improperly allowed. This week in R. v. Houle, 2022 ONCA 325, the opposite occurs – a new trial is ordered on a Crown appeal of acquittal, because the trial judge improperly refused to allow the evidence (of prior incidents of a dog injuring others, demonstrating criminal negligence on the part of the owner).
  6. In R v Bowers, 2022 ABCA 149, the ABCA again trashes the argument of uneven scrutiny on yet another strong conviction appeal – surprisingly got bail pending appeal back in 2020. A full 16 pages. Significant concerns arise from the reasons. First, the appellant’s credibility is discounted because of “I don’t remember” responses and his intoxication (para. 19) – the former is rarely used against complainants (given their presumed trauma – the record for “I don’t knows” not counting against complainant I think is 111 – R v SAS, 2021 ABPC 258, para. 50). Criticizes courts that have found uneven scrutiny for “reweighing evidence” (para. 36). Acknowledges that these appeals are typical in SA cases where almost no real evidence other than stories told by witnesses is made available. Paperny JA states for the unanimous panel: “the unstated premise that if both the complainant and accused have defects in their evidence, it is necessarilyunfair for the trial judge to accept the complainant’s evidence and reject that of the accused. I agree that “this is tantamount to contending that a complainant’s evidence in sexual assault cases must be corroborated in order to be accepted.”” At least it’s not accused of being a rape myth, so there’s a net positive, I suppose. A blatant error, in my view, is the conclusion that the trial judge’s speculation that the complainant would not have invited the appellant, whom she had just met at house party, to lie down with her (para. 56) was acceptable – likely inconsistent with jurisprudence from Ontario such as R. v. Cepic, 2019 ONCA 541 and R. v. J.L., 2018 ONCA 756, etc. – see the marvelous new text Modern Criminal Evidence by Gourlay et al., 2022, Emond (10% off with P. Milczarek’s link), pp. 61-63.
  7. Have a gander at this excellent acquittal by Judge Semenuk of Calgary: R v PMB, 2022 ABPC 93. In that case, a father is accused of multiple historic child SA charges against his daughters. There are a ton of “I don’t remembers” provided by the complainants and other inconsistencies (e.g. paras. 82, 106). The accused did not testify. There were acrimonious divorce proceedings as a backdrop to the (likely false) allegations.
  8. A powerful piece by a popular U.S. public defender: America’s Hypocrisy on Violence: The Case of Police Brutality (substack.com)
  9. For yet another example of why uninformed, knee-jerk, idiotic criminal justice reform is always a bad idea, see Racially divided Toronto murder verdict highlights problems with Ontario juries, lawyers say | The Star.
  10. For some more wrongful conviction stories from the U.S., see Prosecutors drop conviction in 1991 murder case tainted by CPD detective – Chicago Sun-Times (suntimes.com)

Weekly criminal law update – April 25, 2022

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  1. Excellent and surprising sentencing case from the ABCA: R v Friesen, 2022 ABCA 147. The Crown – clearly unhappy with the conditional sentence imposed by Stirling J. in a CP case – appealed. Hopefully a good omen for #5 hereLlewellyn, a similar sentencing decision by the same judge.
  2. In this case, the trial judge’s allowance of reliance on a video statement by a child SA complainant who later claimed to not remember the events was problematic, due to hearsay concerns. There were also indications that the claims may have been fabricated – R. v. S.S., 2022 ONCA 305. The trial judge “improperly downplayed the importance of cross-examination” (para. 50), plus a problematic finding that the child had “no motive to fabricate” (para. 67 – here I thought absence of evidence is not evidence of absence). The majority overturns the conviction. Dissent by MacPherson JA, with unnerving contention that “the inherent trustworthiness of [complainant’s] statement is the only likely explanation for her vivid descriptions” – as circular as reasoning can possibly get (not to mention naïve), in my view (para. 99). Crown almost certainly appealing this further, with a good chance of success. H/T C. Sewrattan. Ultimately, sentenced to 10 years for this offence, with a long-term offender designation granted (para. 131). The reasons for conviction suggest that it perhaps was not a wrongful conviction (factually, at least) – yet, convicting on the basis of a child’s video statement (later recanted) without the ability to cross-examine is problematic nonetheless. It should be difficult to ground a conviction beyond a reasonable doubt on the basis of a weak Crown case such as this.
  3. Nice case on bad character evidence. A new trial on a child SA required because similar fact evidence improperly allowed by trial judge upon an application (after-the-fact conduct peripherally related), noting the “vast morass of authority that was hopeless to reconcile” in this area (para. 14): R. v. J.W., 2022 ONCA 306. H/T Ryan Clements.
  4. Back in Alberta, meanwhile, another extremely tenuous sexual assault conviction appeal is dismissed: R v DEA, 2022 ABCA 143. Arguments of uneven scrutiny are having an “unwarranted renaissance” (para. 34), it seems. Despite the complainant likely sending a very questionable text (as it relates to her credibility, motive to fabricate etc. in the context of a custody battle, as well as a “central” inconsistency – e.g. paras. 35, 27), the trial judge believed her, so who are we to question it? The trial judge did make findings that “were hers to make,” (para. 36), and the Court simply “cannot interfere” (para. 37)! As icing on the cake, the Court quotes a known wrongful conviction in support of its decision: R v Yebes1987 CanLII 17 (SCC)(para. 38). Since there is perhaps a chance that the SCC will grant leave to appeal, it should be appealed. I will not get into bail chances.
  5. Another nice Ontario Charter case: R. v. Scopel-Cessel, 2022 ONCA 316. In this case, officers neglected to provide right to counsel while executing a search warrant for CP in a home. While the trial judge largely found no Charter violations, the ONCA disagreed, finding significant breaches, subsequently quashing the convictions and entering acquittals. Notes Durham Regional Police’s regular disregard for Charter rights (para. 51) – clearly a “Charter-free zone” when compared to, say, the utopia of Calgary, in which I am privileged to reside. It’s a good thing findings of law are entitled to far less deference than findings of fact.
  6. Prof. Sankoff’s great new podcast episode on the “quagmire” that sexual assault trials have become. Mentions his upcoming bail pending appeal seminar – excited about that too (I’ve mentioned concerns with ABCA jurisprudence in this area; for example, #1-3 here). When is the one about quagmires on SA appeals?
  7. Melissa Lucio’s execution in Texas for a crime she quite likely did not commit has been delayed for now – a mere 2 days before the scheduled execution. She was convicted of murdering her toddler daughter 15 years ago – on the basis of a coerced “confession” and likely shoddy forensic “evidence.” Note that “Prosecutors say Lucio had a history of drug abuse and at times had lost custody of some of her 14 children” – as if that has anything to do with anything (a classic red herring – or bad character insinuations). The prosecutor also said “I don’t disagree with all the scrutiny this case is getting. I welcome that” – LOL!
  8. On a related note to #2,4,7 above and generally to “deference” to findings of fact at trial (as I also critique at #1-3 here and #4 here), I note “The central challenge in criminal defense is persuading fact-finders to do what they are loath to: free someone who might in fact be guilty simply because it hasn’t been proven” (Abbe Smith, Guilty People, 2020, Rutgers Univ. Press, p. 41, emphasis added). Also, see p. 186 of P. Gall, Judicial Deference to Administrative Tribunals in Canada: Its History and Future, edited by J. Robertson et al., 2014, Lexis Nexis (in the context of deference to administrative tribunals, emphasis added):

    I appreciate the concern that this could take us back to the bad old days when courts too freely interfered in administrative areas about which they knew nothing, negatively affecting the resolution of issues in accordance with the wishes of legislatures. But the Court’s antidote to this – a broad application of a reasonableness standard based on the blind faith that all administrative decision-makers know what they are doing and that they are capable of doing justice in most, if not all, cases – has, in my respectful view, led to an abdication of the essential role of our courts in ensuring that justice is served in accordance with the rule of law.

    As Paul Weiler understood when he was the Chair of the Labour Relations Board, deference should be earned and not automatically granted. Reviewing courts can and should be trusted to accord the proper degree of deference based on their express consideration of the relevant contextual circumstances in each case. As Chief Justice McEachern said in his response to my paper, that is the proper role of the superior courts in our legal system.

The ends justify the means – weekly criminal law update – April 18, 2022

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  1. Wow! A stop of a vehicle leading to a driving while prohibited charge is dismissed on the basis of racial profiling in pulling over the car. Primarily on the grounds that the car was later searched “incident to arrest” and nothing was found, and this problematic search “can also colour and taint what had gone before, including the stop” (para. 34), and the search betrayed “probable racially stereotypical thinking” (para. 38): R. v. Ffrench, 2022 ONCJ 134, courtesy of Slaw.
  2. The SCC released its latest in R. v. Tim, 2022 SCC 12. Similar to Stairs – dealt with last week. The officer made an initial arrest on the basis of a mistaken belief that the pill he saw in the car was a controlled substance. Subsequent searches “incident to arrest” revealed a concealed, loaded firearm, among other things. Interestingly, the ABCA majority had found no Charter breach – the SCC unanimously agreed that it was a Charter breach, but allowed the evidence anyway under s. 24 – disagreeing with the dissenting ABCA justice (Veldhuis) on remedy. While the SCC ruled 6-1, it likely would have been 6-3 had Martin and Karakatsanis JJ. participated – as they dissented in Stairs. See thread by Nader Hasan and Canadian Lawyer. Will be interesting to see where Moldaver J.’s replacement falls on the Charter spectrum.
  3. Stay of proceedings for late Crown disclosure upheld – R v Jobb, 2022 SKQB 47 – HT P. Milczarek.
  4. Yet another problematic SA conviction: R. v. R.R., 2022 ONCJ 158. It was a “he said she said,” where the complainant was extremely drunk, and waited about a year to make a complaint. See para. 81, emphasis added:

    Of potentially more significance is that she told the investigating officers she was not sure if R.R. attempted to put his finger into her vagina, whereas in court she testified she remembered that occurring. She also testified that R.R. pulled her pants down to her knees, but in her police statement she said it was near her ankles. Those are important details. However, I may accept some, none or all of her evidence: see R. v. C.P., 2021 SCC 19 at para. 35. Furthermore, as she was both intoxicated and experienced a traumatic event, it is understandable that she might have difficulty recalling some of these details with precision: see G.M.C., supra at para. 38. She explained she “froze” due to her fear, just wanted it to stop, and acted still or lifeless as a survival instinct.

    In other words, despite some significant inconsistences, the trial judge is entitled to believe, some, all or none of the evidence so “too bad so sad,” essentially. Good luck on appeal. The “trauma” angle comes up a lot, and is probably bad science. How can courts continue to play armchair psychologist with this stuff, with no expert evidence? Hindsight is usually 20/20, but I wonder if a trial with a jury would not have been a better plan here.

  1. Excellent Ontario case, with Matthew Gourlay as counsel: R. v. TG, 2022 ONSC 2063. The summary conviction appeal justice overturned some counts of historical sexual assault convictions of a teacher. The main error was the trial judge’s refusal to allow defence cross-examination of complainants on both collusion and delayed disclosure (paras. 22-24, 43-46) – despite a 16-day trial with 159 pages of reasons given at the trial level (para. 6). Crowns and judges take note – sexual assault convictions can (and should be) overturned due to overzealous, misguided objections and constraint of the defence.
  2. Prosecutorial misconduct in this US wrongful conviction (this, this, this, this and this too). Simply shocking!
  3. Following up on my point last week of Legal Aid’s atrocious behaviour (#2): R v Kelly, 2022 ABPC 82 a 6-month delay for Legal Aid Alberta to appoint counsel was considered. As the Court did not have details of the reasons for the delay in this case, it was unprepared to consider the delay as “institutional delay” (paras. 32-37). It also quotes R. v. Pastuch, 2017 SKQB 211, a Saskatchewan case that properly called Legal Aid’s conduct in the delay as treating the accused’s case “shabbily and unprofessionally.”
  4. Interesting case of criminal harassment. The accused called a real estate lawyer who he thought was acting for him, describing himself as a “dangerous guy” who gets “what [he] wants” (para. 4). He was charged with harassment – not uttering threats. The trial judge ultimately finds that there is a reasonable doubt as to whether the complainant was harassed (paras. 22-23). It will be interesting to see what the ABCA thinks, if the Crown chooses to appeal: R v Woodman, 2022 ABPC 80.
  5. Fascinating acquittal in R. v. N.G., 2022 ONSC 1875. Both the accused and complainant lied dreadfully throughout the trial, in a case where a drunken fight led to the loss of the complainant’s nose in a domestic context. Alan Gold sets the standard; hopefully the interest groups don’t make a huge fuss. Conlan J. concludes (paras. 34-35):

    This Court feels terrible about what happened. I know that A.D. will be hurt by some of my comments about her evidence, and I take no pleasure in that. A.D. suffered an awful injury to her face. Whatever happened that morning, she did nothing to deserve that. This is not an exercise in sympathy, however. It is a criminal trial, with a relatively high standard of proof that is commensurate with the presumption of innocence.
    The presumption of innocence is not eroded simply because a judge or jury feels badly for a terribly injured person. It is not eroded simply because the accused’s evidence is rejected. It remains throughout the trial, and throughout the decision-making process, and in this case throughout all three stages of the “W.(D.) test”.

Weekly criminal law update – April 11, 2022

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  1. Problematic deference to trial judge’s findings of fact in tenuous case – yet again (R. v. J.L., 2022 ONCA 271, at para. 3.)

    Although J.L. raises concerns about the trial judge’s credibility evaluation that are not entirely without merit, when examined in the context of the reasons for judgment as a whole, those concerns do not overcome the significant deference that must be given to the trial judge’s credibility determinations, recently reinforced by Karakatsanis J. in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81‑82. As explained below, we therefore deny the conviction appeal:

  1. R. v. G.F., 2021 SCC 20 strikes again in R v Vaca, 2022 ABCA 127. In that case, a unanimous ABCA panel dismiss a conviction appeal. There were significant concerns with insufficient reasons given for conviction as well as with the treatment of the appellant at the summary conviction appeal, as noted concerningly by Veldhuis JA in the leave application (e.g. paras. 20-24). This case is also demonstrative of major problems with Legal Aid and access to justice in Alberta – the appellant was self-represented on his initial appeal, and only had s. 486 duty counsel at trial. Perhaps his (possible) wrongful conviction would have been less likely had he been represented.
  2. Another “problematic” conviction in R v Kownirk, 2022 NUCJ 11. “He-said she-said;” accused evidence rejected without any reason given at all. Disturbing, inaccurate and uncorrected Crown position altogether (para. 31, emphasis added): “The Crown’s position is that his asking about sex was insufficient in all the circumstances. No words were asked about vaginal or anal intercourse. He was aware of her intoxication. Therefore, the Crown submits it has met its burden of proof in this case.”
  3. The SCC’S latest in R. v. Stairs, 2022 SCC 11 has been widely and rightly criticized by the defence bar (I’m hopeful that, in future, said bar will be equally critical of other bad decisions, such as GF and RV). Reporting to a 911 call of domestic violence, police enter the home (justifiably) without warrant. Officer sees 3 ounces of meth in “plain view” after the arrest, during a “safety search” – found to be a reasonable and allowed search. The drugs were found after the arrest, and found in “least intrusive” manner – paras. 3, 10. Appears to be a major “watering down” of Charter rights, and it includes significant “deference” both to the police and to the trial judge’s findings of fact. As the dissent correctly point out (para. 147), “as a rationale, “you never really know” could apply any time the police make an arrest in a home.” Exploits vulnerability of domestic violence victims (paras. 91-97) to justify reduced privacy interests for all concerned, which is problematic, to say the least. Note that this concerning language is also used by the dissent, who claim that the extra searches may “revictimize victims” or discourage them from reporting violence (para. 123). The ends appear to justify the means.On a related note, I’m reading excellent critiques of the SCC’s decisions in TWU, Doré, Multani, etc. about results-oriented decision-making.
  1. Nice sentencing decision by newly appointed Judge G. Hatch, going slightly over the Crown’s recommended sentence for serious firearms offences for a young, Indigenous offender, but reducing the total sentence slightly to allow for probation: R v Moonias, 2022 ABPC 83
  2. A great 2017 article: “the assertions of the “neurobiology of trauma” that infuse these materials make it almost impossible for the accused to mount a defense. When such assumptions are held by those sitting in judgment, he says, “how do you prove your innocence?”” Similarly, Judge Brenda K. Sannes: The university trained its investigators that “inconsistency in the alleged female victim’s account [is] evidence that her testimony is truthful, because of alleged trauma….Plaintiff alleges that the investigation relied on ‘trauma informed techniques’ that ‘turn unreliable evidence into its opposite,’ such that inconsistency in the alleged female victim’s account. . .becomes evidence that her testimony is truthful.” — Doe v. Syracuse University
  3. Reggie Jackson’s excellent take defending Will Smith’s slap and calling out racist attacks of it
  4. Yet another egregious wrongful conviction – the elderly Justice Delisle of the Quebec Court of Appeal, wrongly convicted of murder of his late wife and now exonerated a decade later. The pathologist was – surprise – grossly negligent. The Court tossed the charges, refusing to allow the Crown to pursue a retrial. Justice Émond’s 99-page French-language decision here: R v. Delisle, 2022 QCCS 1160. Gosh – I just discussed another egregious wrongful conviction last week (David Klassen, #9). I wonder what we’ll discuss next week – I guess it will depend on which conviction CBC’s Fifth Estate next chooses to investigate. Again, I really hope (but don’t expect) that the inquiry will look very closely at potential Crown misconduct (such as occurred here).

Weekly criminal law update – April 4, 2022

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  1. In a Charter case, Khullar JA’s dissent (majority is Wakeling and Crighton JJA) is interesting. She allows consideration of s. 8 and 9 Charter breaches not raised at trial (e.g. search of vehicle incident to arrest). Will be watching for at SCC. I’m leaning towards the majority myself – despite the trial judge’s finding that there was a Charter breach, it was found to be justified under s. 1. I don’t see how adding “quantity” of Charter breaches (e.g. search of vehicle) changes that, especially where the search was justified (the arrest was for the same offence – unlike cases where arrest for unrelated offence, then becoming a “fishing expedition”). Interestingly, the appeal bail application had previously been denied – Veldhuis JA finding the merits of his appeal to be “not strong” (para. 18) on the 3rd branch of the test. Now, he has a dissent at the ABCA on his “weak” appeal, and has an automatic right to appeal to the SCC: R v Zacharias, 2022 ABCA 112 (I’ve also heard of conviction appeals being granted by consent, despite two prior findings at appeal bail that the appeal was frivolous).
  2. Lawyer’s Daily deals with R v Wollach, 2022 ABCA 95 – an unsuccessful appeal of a possible wrongful SA conviction, which I covered two weeks ago (you’re welcome, Lawyer’s Daily!). The case is illustrative of how difficult it is to win, or even run, an SA conviction appeal. Senior appellate counsel accused of using myths by the Crown during the hearing, which I observed – thankfully, not adopted by the Court in its reasoning. At least, Court found the appeal wasn’t frivolous at the bail stage despite Crown arguing otherwise, where Veldhuis JA ultimately released him on conditions akin to house arrest. I guess accusing most respected defence counsel in the country of misconduct by bringing a frivolous appeal is par for the course on a SA conviction appeal these days (e.g. Law Society of Alberta’s Code of Conduct expressly states: “5.1-2 When acting as an advocate, a lawyer must not: (b) take any step in the representation of a client that is clearly without merit”). I sometimes think appeal bail would be much simpler if the test were changed to “I don’t want you walking around my neighborhood” as was done here. There would certainly be less of a need to prematurely speculate that the appeal is frivolous if that were the test.
  3. Despite not granting appeal bail on a SCC leave application, Crighton JA correctly finds that the appeal to the SCC is “not frivolous” (para. 5) – R v Way, 2022 ABCA 109.
  4. R v. Banks, 2022 NSSC 77 – HT Alan Gold in his excellent weekly NetLetter through QuickLaw last week – defence contested request for Crown list of anticipated trial witnesses/schedule granted. Thankfully, “trial by ambush” is not condoned. Surprising that application required altogether, and that it was contested.
  5. Excellent sentencing case (conditional sentence) in case of serious domestic violence (including choking and pointing a loaded firearm). Stirling PCJ notes (at paras. 71-72):

    The primary investigating officer, who has extensive experience in domestic violence, has stated she has never witnessed an individual who has put in the amount of work as Mr. Llewellyn. It is exceedingly difficult to change the direction of one’s life, particularly where there is addiction to alcohol and drugs. Over the past 14 months or so, Mr. Llewellyn has done the difficult and ongoing work required to address alcohol and drug addiction.  It is apparent from all of the material before me that Mr. Llewellyn is committed to rehabilitation, committed to his children and committed to living a law abiding and productive life.

    We’ll see what the ABCA thinks – Crown doubtless appealing, as it is for R v Sharifi-Jamali, 2022 ABQB 52: R v Llewellyn, 2022 ABPC 67.

  6. A fairly disturbing ONCA conviction appeal dismissed: R. v. I.W., 2022 ONCA 251. Appellant should absolutely seek leave to appeal to the SCC. The complainant “mixed up” the location of the alleged encounters (para. 11), her outburst in front of the jury (“You’re defending a creep. You’re defending a [expletive] creep” At other points, again with the jury present, she referred to the appellant as a “loser”, a “creep” and a “rapist” – para. 16), and significant fresh evidence showing the appellant did not live at the Brooklin apartment at the time alleged (paras. 61-66) -all dismissed. This one definitely sets off my wrongful conviction radar. Her response when confronted with an inconsistency “I guess I didn’t really remember it” sounds more than a little fishy to me – para. 9. My favourite is para. 30, regarding the outbursts (emphasis added):

    I think it important to, first, place these outbursts in their proper context. M.B. was a youthful witness, 18 years old at time of trial, testifying about events that occurred when she was 15 and 16. Upon my review of the record, it is fair to say that hers was a lengthy and vigorous cross-examination. She was, understandably, upset and emotional.

    If we presume that she was lying (which is a perfectly fair assumption), why is her being upset “understandable?” Of course, if we assume guilt, her emotion is perfectly understandable.

  1. Very serious convictions (home invasion robbery at gunpoint) overturned for confusion created by over-charging:

    In our view, there is no safe way of separating out the confusion that was created by the erroneous jury instructions as between the various counts or as between the two appellants. If the jury was left in a state of confusion regarding what the Crown needed to establish for a conviction beyond a reasonable doubt, it cannot be said with any level of comfort that the confusion would only have permeated their consideration of some charges and not others.” – Para. 12, R. v. Akhi, 2022 ONCA 264

  1. Entrapment – illustrative of the difficulty in applying the test for entrapment. Apparently, had they said “sell me cocaine” it would have been entrapment, but not “u good for powder?” Dealt with by Ryan Clements in his Feb. 2022 roundup (March one here). A bit of a “distinction without a difference” it would seem to me. – R. v. Zakos, 2022 ONCA 121
  2. A very disturbing wrongful conviction overturned by Minister of Justice last week (David Klassen of BC – press release, Lawyer’s Daily, thanks to UBC Innocence Project. The Crown pathologist had testified that the death was not an accident, which was false. Not the only time this “expert” lied for the Crown. A quick Google search turns up this. See paras. 11-12 of the 2020 bail decision:

    In terms of the head trauma suffered by Ms. McLeod, attributing them unequivocally to intentional force, as did Dr. McNaughton in the first instance, is certainly questionable. […] Further, it is concerning that Dr. McNaughton has recently softened his view as to causation.  As concerning as the criticisms of Dr. McNaughton’s opinion by these experts, is the manner in which his opinion was expressed in his evidence at trial.  That opinion was not the same as the one to which he testified at the preliminary inquiry, nor was it completely aligned with his written report.  At trial, Dr. McNaughton came up with a theory that differed from both, and was essentially conclusive of the theory of intentional force as the cause of Ms. McLeod’s head trauma.

    I really don’t want to see a government cover-up on this one. We’re entitled to – at minimum – a thorough inquiry, focusing on likely Crown misconduct by using a lying “expert.” Heads should roll. The Law Society of BC has to look at it very closely. The victim should be paid a minimum of $25 million to demonstrate that the public and “system” will learn from its mistake. News coverage here. See an interesting article on tunnel vision here and Center for Prosecutor Integrity.

Weekly criminal law update – March 28, 2022

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  1. On a defence appeal, Crown asks ONCA to depart from binding precedent in Jordan, and to find that a stay of proceedings is not the only remedy available for a Jordan (excessive delay) breach. This was not dealt with at trial, and is thus a new argument that the Crown was prohibited from bringing. The Crown’s reference to stays under Jordan as “automatic judicial guillotines” (para. 58) is called “needlessly incendiary” (para. 61): R. v. Charity, 2022 ONCA 226 – one of the 2 Crowns already called out in recent Lawyer’s Daily post regarding R. v. Ste-Marie, 2022 SCC 3 – to be fair to the Crown, this appeal was heard in September 2021 – well before both judgments were released. Will be interesting to see how aggressively this will be prosecuted by provincial regulators (I’d be surprised if they even open a file; frankly, they shouldn’t). Would it be the same if it was defence counsel accused of same? Apparently, getting a little carried away with rhetoric is not necessarily a “career-ender” for government lawyers.
  2. Speaking of Jordan, see R v Ghraizi, 2022 ABCA 96. Excellent decision in which a delay 2 months above the ceiling – despite illness of the Crown and the pandemic’s circumstances, a stay of proceedings was warranted.
  3. Pre-sentence reports again called out for inappropriately voicing “the author’s personal views of the offender’s behaviour and attitude” – R. v. Neville, 2022 ONCJ 110, para. 26. See paras. 26-30. HT Pawel Milczarek.
  4. I greatly enjoyed Palma Paciocco’s strong critique of the problematic, recent SCC decision of R. v. G.F., 2021 SCC 20 in her recent article (entitled Presumptions, Assumptions, and Reasons for Reasons: The Sufficiency of Trial Judgments After R. v. G.F., available on WestLaw/Google). She writes (pp. 1-4):

    The majority reasons in R. v. G.F. have curtailed and confused the law governing appellate review for sufficiency of reasons … While the G.F. majority did not expressly overturn Sheppard and related cases, it has effectively resiled from them” […]In other words, if the trial judge might have gotten it right, then the appellate court should rest on the presumption that they did get it right. With respect, this analysis all but eviscerates the ground of appeal it is meant to frame up. […]Put bluntly, telling the losing party in a criminal case to just trust that the judge got it right is, if anything, likely to decrease that party’s trust in the trial judge and in the system as a whole. (p. 4)

  5. Some other interesting stuff below, starting with Abbe Smith (US): Can You Be a Good Person and a Good Prosecutor? (2001), Are Prosecutors Born or Made? 2012, and Judges as Bullies (2017).
  6. Politics – judiciary. Brave journalists like Sean Fine from the Globe and Mail getting lots of flak for saying the obvious truth: that our Supreme Court is political. See this 2011 National Post article:

    But if criminal justice experience was the deciding criteria, Queen’s University law professor Don Stuart said there were undoubtedly “better judges to choose from.”
    He agrees Moldaver is a “very experienced jurist” with a wealth of criminal justice experience, but believes Ontario appeals court judge Marc Rosenberg and David Doherty would have made wiser choices.
    He suspects Moldaver’s comments on the charter likely won over the Tories.
    “He doesn’t write too many pro-accused judgments,” Stuart argued. “That might have been a deliberate choice by the Harper government which obviously is not in favour of too many activist court judgments.”

  7. Civility – A. Woolley – (2008), Does Civility Matter?, at 188:

    Hard-hitting and unvarnished critiques are essential to working towards the justice system we should have, and to ensuring that lawyers play the role they need to play within that system. Pursuing the impossible dream of a positive public image, or seeking to soften the discomfort of hearing unpalatable and uncivil truths, is not required. What is required is strong and cogent debate about how lawyers can be ethical-how they can balance the competing values inherent in the difficult but fundamental role they play in a democratic society. The civility movement should be abandoned in favour of this more difficult but ultimately more fruitful and important task.

  8. See also Woolley’s conclusion in “Uncivil by too much civility”?: Critiquing Five More Years of Civility Regulation in Canada, 2013 CanLIIDocs 759 (266):

    What sort of lawyers do we want? Do we want lawyers who call out other lawyers for misconduct? Or do we want lawyers who fail to do so for fear that their criticisms will be sanctionable? Law societies may prefer the latter; they may believe that the reputation of the profession will be best preserved if lawyers act with decorum or silence in the face of other lawyers’ misbehaviour. But the argument here is that the only hope for retaining public respect is if the public believes that lawyers and the legal profession will protect them from wrongdoing by other lawyers through formal regulation and through informal social sanctions like shaming and shunning. The law societies should be rewarding the lawyers who have the courage and determination to take on that task rather than sanctioning them for their choice of words.

Weekly criminal law update – March 22, 2022

  1. Wow! An acquittal on a SA trial in R v Harnett, 2022 ABQB 213 following a 6-day trial. The 42-page decision outlines the allegations in detail and notes significant inconsistencies and discrepancies with the complainant’s narrative, as well as text and other post-incident contact casting doubt on her narrative. The trial followed a 37-page decision allowing the use of necessary texts in R v Harnett, 2022 ABQB 122, followed by a second such application (a mere 18 pages – R v Harnett, 2022 ABQB 150). Here’s to hoping that the SCC gets rid of this s. 278.92-94 nonsense in its pending decision in R v JJ.
  2. Very concerning decision by ABCA in R v Wollach, 2022 ABCA 95. Absolutely a “he-said she-said” SA case, conviction upheld. By definition, the odds of wrongful conviction are very high. Concerning language, at para. 24: “An appellate court must show great deference to the trier of fact’s assessment of witness credibility and cannot interfere with credibility.” Note that the distinction between, say a “major” or “minor” discrepancy is entirely subjective, in the “eye of the beholder” and almost entirely impervious to appeal. Nothing to see here. Note that the most respected defence lawyer in the country (Brian Greenspan) expertly argued the appeal. Also, accused’s Google searches used against him at trial – problematic in itself (the Crown spent “considerable time” cross-examining about his Google searches of “consent” prior to his meeting police (trial decision, paras. 113, 178-9, and noted approvingly on appeal, at para. 12). Senior trial counsel had been accused of “propensity reasoning” (para. 150, 169) – likely imprecise if not incorrect. The accused was accused of “evasive, self-serving, and internally inconsistent” (para. 157) evidence at trial – problematic too. Bizarrely, there were insinuations at trial that he drugged the complainant, using his medical knowledge (he was a doctor), yet the Crown abandoned that argument both at opening and at closing (unclear why such innuendo was required at all, in that case – para. 159) – bizarrely mentioned twice in the appeal decision (paras. 8, 10). At the mistrial (denied here), Judge Stevenson points out there’s blame “to go around on both sides” (para. 57) regarding inadvertently “missing” the complainant’s statement and not properly disclosing it. Despite a major inconsistency (complainant appears to talk about feeling a condom in her statement – paras. 72-4, but at trial said she hadn’t felt or seen one – para. 28 – difficult to assess without a transcript; eight other inconsistencies were alleged, per appeal at para. 32, surprisingly not specified in any of the decisions and related language concerningly vague), the mistrial was denied. If it looks like a duck… Thankfully, defence counsel was not accused of using propensity reasoning on appeal – at least not by the Court.
  3. Conviction at SA trial, with Judge Bascom presiding. Despite acknowledging inconsistencies and evasion with complainant’s testimony, her narrative sufficiently reliable and corroborated by other evidence to support the conviction (paras. 52-61, R v D’Souza, 2022 ABPC 56)
  4. SA conviction – defence witness called “contemptible hypocrite” (para. 24). “It is unfortunate that neither the prosecution nor the investigator thought to obtain them [important text messages], or ask him to bring them to court” (para. 39). Despite multiple inconsistencies and credibility issues with the child witness in a sexual assault (he-said, she-said), a conviction followed (para. 82). Accused’s memory was essentially “too precise” (para. 63) 3 years later – without expert evidence, likely a finding vulnerable on appeal. His testimony is “unbelievable” and “tailored” to answer the allegations (para. 65) – also a highly problematic findings, perhaps (R v Bendick, 2022 ABPC 19)
  5. A disturbing news story from Manitoba, where an Indigenous young mother (accused) was openly insulted in court. Surely, if she was a complainant, it would have been remarkably different. The article notes “The insults were neither addressed nor denounced” by the Judge. It appears neither the Crown or defence counsel objected, either. My favourite quote, and one I may have to start quoting at trials:

    The Crown must be very cautious to avoid the perception it is interfering or interrupting during cross-examination of a witness by defence lawyers, a spokesperson from the provincial government said in a written statement.
    “Not only could it impact a trial strategy and intrude on the accused’s right to make full answer and defence, but it could also appear to be trying to protect or rehabilitate a witness inappropriately,” said the spokesperson, who did not give their name or identify the government department for whom they were speaking.