Weekly criminal law update – Nov. 27, 2022

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

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

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

  7. Court of Appeal rejects ‘insufficient’ reasoning of trial judge, overturns sex assault conviction – The Lawyer’s Daily (thelawyersdaily.ca) – refers to R. v. J.N., 2022 ONCA 776, which I dealt with at #5 last week. The only ground of appeal “necessary to address to overturn this wrongful conviction was “insufficient reasons.” The “trial judge seemed to go out of [his] way to immunize the complainants’ evidence from meaningful credibility examination,” according to Michael Spratt – a rather damning indictment of the trial judge, possibly not at all uncommon in this #MeToo era.
  8. The concept of “adoptive admission” (e.g. not challenging an accusation received via text message) is considered in R. v. Gordon, 2022 ONCA 799 (e.g. at para. 54, “The jury was told to take a cautious approach to considering the adoptive admission, that a party’s failure to take issue may be ambiguous, and to consider other explanations”).
  9. Crown conviction appeal allowed where trial judge took “piecemeal” approach to assessing the evidence: R. v. Abdelrahman, 2022 ONCA 798.
  10. Check out my recent blog posts: Part 2 – Manufacturing Guilt: Wrongful Convictions – Moldofsky Law, Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding – Moldofsky Law, Ghomeshi, Guilt and Gullibility – Moldofsky Law, and The train wreck that is Legal Aid Alberta – Moldofsky Law.
  11. Wrongful Conviction Watch™: Michael Politte, Missouri man convicted as a teen of murdering his mother, says the real killer is still out there – CBS News, He Was Wrongly Imprisoned at 16. Eight Years Later, He Walks Free. – The New York Times (nytimes.com), Sask. Sisters jailed for murder meet again after 18 years – SaskToday.ca, Muzzling media does not help right the wrongs of past failures of justice: CAJ (yahoo.com), Why Did the Justice System Target Aaron Swartz? – Rolling Stone, Wrongful imprisonment leads to $45 million lawsuit award for Ohio man (usatoday.com), Jake Tapper: My Father’s Quest to Free C. J. Rice – The Atlantic, The Kevin Johnson story | Guest Columnists | stlamerican.com, Kevin Johnson’s attorneys, special prosecutor ask Missouri Supreme Court to stay execution • Missouri Independent, Missouri 19-year-old can’t watch her father’s execution, judge rules (nbcnews.com), Public defenders say Queens DA’s evidence sharing practices violate spirit of discovery reform — Queens Daily Eagle (queenseagle.com), Brush principal faces prison for investigating student sexting (coloradosun.com), Exclusive: Under oath, Little Rock narcotics officers say they destroyed evidence, routinely violated the Fourth Amendment (substack.com).
  12. Misc.: The Judge and the Case That Came Back to Haunt Him – The New York Times (nytimes.com), ‘No use for inmates:’ Former jail guard gives inquest insight into culture | London Free Press (lfpress.com), Investigative delay hits two years for youth who claims head injury from Edmonton police (msn.com), Alabama Woman Jailed for Using Drugs During Pregnancy Wasn’t Even Pregnant (jezebel.com), Freedom Convoy lawyer booted out of Emergencies Act inquiry | National Post, Katie Meyer’s suicide should be blamed on Michele Dauber, Stanford and the Department of… | by Claire Best | Nov, 2022 | Medium, Why Wasn’t Emma Roberts Canceled After Her Altercation With Evan Peters? (thethings.com), Videos showing jail guards punching inmate played in court after failed bid to hide them | CBC News, Officers at encampment rally | The Star, No guards will face trial in inmate beating caught on video | Miami Herald, Attorney-General Doug Downey’s regrettable habit of enabling Premier Doug Ford’s worst instincts | The Star, Opinion | The Search for Beauty in a Prison Cell – The New York Times (nytimes.com).

Weekly criminal law update – Nov. 21, 2022

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

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  1. 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.
  2. 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).
  3. 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.
  4. 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).
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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).
  10. 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.
  11. 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.
  12. 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).
  13. Check out my recent blog posts: Part 2 – Manufacturing Guilt: Wrongful Convictions – Moldofsky Law, Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding – Moldofsky Law, Ghomeshi, Guilt and Gullibility – Moldofsky Law, and The train wreck that is Legal Aid Alberta – Moldofsky Law.
  14. Legal Aid strike: Manslaughter and child custody cases at risk over legal aid job action, say judges | CBC News, Alberta family lawyers to form association amid legal aid job action | CBC News, Opinion: Without legal aid boost, Albertans will fall through cracks  | Calgary Herald, How Ontario can save money by investing in legal aid for at-risk people | The Star.
  15. Wrongful Conviction Watch™: Trial by Fire | The New Yorker (2009 article about blatant Texas wrongful conviction and execution – minimal follow-up here), Saskatchewan Justice department seeks to muzzle media in sisters’ case (aptnnews.ca), 188 Convictions Tied to Discredited N.Y.P.D. Officers Are Tossed Out – The New York Times (nytimes.com), Police Used 911 Call Analysis to Arrest a Mother on Murder Charge — ProPublica, Repeated police misconduct cost taxpayers $1.5 billion in settlements – Washington Post, The Long Fight for Justice (Voices of the Innocent 2022) – YouTube, To avoid Rikers, the innocent might plead guilty – New York Daily News (nydailynews.com), Special Prosecutor Alleges Racial Bias Tainted Kevin Johnson’s Prosecution | St. Louis Metro News | St. Louis | St. Louis Riverfront Times, Prosecutors drop another murder case handled by former Chicago Police detective Reynaldo Guevara – Chicago Sun-Times (suntimes.com), Arizona Executes 76-Year-Old Man after Refusing DNA and Fingerprint Testing | Death Penalty Information Center, No Such Thing as “Progressive Prosecutors” | Beyond Criminal Courts (beyondcourts.org), What Happened to Brendan Dassey – After Making a Murderer 2022 Update – Gazette Review, rabia O’chaudry on Twitter: “@EfrayimMoldofs1 @AlbertaJSG @innocence @InnocenceCanada @itsjasonflom @EvidenceProf It’s been 23 years I still can’t get the full files from the Baltimore county police on Adnan’s case. Yes, it’s completely typical.” / Twitter.
  16. : How working on prison executions harms people and changes their views : NPR, Lawyer fumes over London jail inmate’s death – the 21st since 2009 | London Free Press (lfpress.com), John Hale on Twitter: “My volume of sex assault trials has been creeping up over the years. The time taken up on these trials has increased exponentially, thanks largely to the s. 278.92 regime that requires complex applications to be brought pre-trial. A couple of thoughts from a trial lawyer. /2” / Twitter, Hobby Lobby Leak: Sam Alito Is Exactly Who You Thought He Was (ballsandstrikes.org).

Weekly criminal law update – Nov. 11, 2022

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

To subscribe to the mailing list (link).

  1. Check out my recent blog posts: Part 2 – Manufacturing Guilt: Wrongful Convictions – Moldofsky Law, Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding – Moldofsky Law, Ghomeshi, Guilt and Gullibility – Moldofsky Law, and The train wreck that is Legal Aid Alberta – Moldofsky Law.
  2. 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.G2022 ONCA 727). My tweets here. Judge properly criticized here.
  3. 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.
  4. 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).
  5. 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.
  6. 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).
  7. 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.
  8. 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).
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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).
  15. 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).
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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).
  21. Ryan Clements – October roundup (September’s) – I wish he’d continue posting on his website.
  22. Wrongful Conviction Watch™: Bone Valley: Chapter 9 | Coming Clean on Apple Podcasts, Not on Record Podcast (Neuberger/Davison) EP#41 | Double Standards in Court | Lawyers RANT – YouTube, Appeals court denies death row inmate Richard Glossip’s request for hearing on new evidence (msn.com), Pulitzer-winning author says podcast clears Leo Schofield in wife’s 1987 murder (tampabay.com), Title IX: Biden Changes Mean Return to ‘Dark Ages’ for Falsely Accused Students | National Review, America’s Sexual Red Scare – TK News by Matt Taibbi (substack.com), Academe Is a Hotbed of Craven Snitches (chronicle.com), Laura Kipnis’s Endless Trial by Title IX | The New Yorker, Peter Ellis, the Creche Case & Me | Newsroom, SCC denied leave to appeal in a case that I had previously strongly criticized, and have significant concerns that it is a wrongful conviction: Calgary doctor won’t get to appeal rape conviction to nation’s top court (msn.com).
  23. Misc.: Closely divided court scrutinizes various provisions of Indian Child Welfare Act – SCOTUSblog, Legal group raises concerns about prisoner review system – The Globe and Mail, ‘Middle-finger stunt’ and a judge’s hug raise ethics issues in Parkland, Florida, school shooter’s trial (abajournal.com) – my tweets here (see also), Peel police Tasering autistic teen ‘big failure,’ says father | The Star, ‘You did it to yourself,’ officer tells 9-year-old girl pepper-sprayed by police in newly released video (nbcnews.com), Revealed: Four Supreme Court justices attended right-wing gala — risking the credibility of the court (msn.com).

Part 2 – Manufacturing Guilt: Wrongful Convictions

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

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

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

(Part 1

Duped

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

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

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

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

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

Another terrible example is Billy Wayne Cope.

Another great quote (p. ix):

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

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

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

Convicting the Innocent

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

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

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

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

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

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

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

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

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

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

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

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

Radley Balko

See also Radley Balko very recently here:

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

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

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

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

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

Manufacturing Convictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Later Kaufman Commission (1996) – available here.

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

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

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

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

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

Weekly criminal law update – Oct. 31, 2022

I’ve missed a few weeks. My apologies.

To subscribe to the mailing list (link).

  1. Check out my recent blog posts: Manufacturing Guilt: Wrongful Convictions – Moldofsky Law, Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding – Moldofsky Law, Ghomeshi, Guilt and Gullibility – Moldofsky Law, and The train wreck that is Legal Aid Alberta – Moldofsky Law.
  2. 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.
  3. 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!
  4. 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.
  5. 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).
  6. 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).
  7. In R v Hoggard 2022 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).
  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?
  9. 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.
  10. Concerning conviction by Sihra J. on non-major SA in R v Del Rosario, 2022 ABPC 183 despite numerous inconsistencies in complainant’s testimony.
  11. 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.
  12. 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.
  13. Conviction overturned in impaired case where officer handcuffed accused unnecessarily: R. v. Vine, 2022 ONSC 3297.
  14. Criminal charges for defacing a Nazi statue in Alberta: Edmonton journalist accused of vandalizing statue vows ‘vigorous defence’ (msn.com).
  15. R v Royal, 2022 ABCA 330 – Court of Appeal quashes contempt conviction for Edmonton lawyer who refused judge’s mask order | Edmonton Journal. Also, Former Alberta justice minister’s contempt conviction tossed on appeal | Edmonton Journal.
  16. Legal Aid strike(s): Calgary Remand Centre inmates say defence lawyer job action leaving them stuck in custody | CBC News, Criminal Lawyers’ Association calling on Ontario for more funding for legal aid | CP24.com.
  17. Wrongful Conviction Watch: Abuse, Chaos and Cruelty in Louisiana Juvenile Detention – The New York Times (nytimes.com), Andre Thomas: Civil Rights Always Yield to the American Legal System’s Bloodlust (ballsandstrikes.org), ‘They ruined my life’: Ontario mother to sue OPP over 1st-degree murder charge | Globalnews.ca, Maurice Hastings, California man imprisoned for 38 years, is freed after DNA evidence points to different person – CBS News, Feminist Witch-Hunts in Academic Philosophy (empowerinnocent.wixsite.com), 3 men imprisoned for 28 years freed after judge vacates murder convictions – ABC News (go.com), Child sex trial based on ‘oath vs. oath’ – The Lawyer’s Daily (thelawyersdaily.ca), Not on Record Podcast (Neuberger/Davison) EP #37 | The Dirty Words of Sex Assault Trials – YouTube, Baltimore prosecutors drop charges against Adnan Syed, as last-ditch DNA tests exclude him – Baltimore Sun, Adnan Syed is finally home with his family. Let’s reunite others unjustly incarcerated with theirs. | by The Council on American-Islamic Relations (CAIR) | Sep, 2022 | Medium, Woman jailed after domestic abuse lies put ex in prison – BBC News, A Prosecutor’s Change of Heart in a Capital Case at the Supreme Court – The New York Times (nytimes.com), Citing ‘overwhelming and outrageous’ errors by prosecutors, East Bay judge throws out child sex abuse case (mercurynews.com) (“The judge blasted the “overwhelming and outrageous” failures by prosecutors and chided Oakland police investigators for “careless handling” of reports that still couldn’t be located at the time of dismissal”), Jay Willis on Twitter: “The prosecutor asked members of the all-white jury if they were willing to “take the risk” that a Black defendant, if found not guilty, would “ask your daughter out, or your granddaughter out.” Again, his lawyers did not object. Again, totally fine, says the Supreme Court. https://t.co/7KzusKcv61” / Twitter.
  18. : Appeal filed against Alberta Review Board ruling that Matthew de Grood still a risk | Globalnews.ca, Racial profiling: Quebec judge orders end to random traffic stops | CTV News, Gulley v. Kansas: The Supreme Court Is Breaking Its Promises to Children In the Criminal Legal System (ballsandstrikes.org).

Manufacturing Guilt: Wrongful Convictions

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

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

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

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

Donald Marshall Jr.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arthur Lucas and Ronald Turpin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sophonow, Morin, Milgaard, etc.

Let’s keep going – shall we?

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

Weekly criminal law update – Oct. 9, 2022

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  1. 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.
  2. 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).
  3. Unsurprising result: Alberta Crown appeal allowed where sentencing judge undercut joint submission of 2 years jail and imposed non-custodial sentence for drug trafficking, where CSO not yet available as I note here: R v Sharifi-Jamali, 2022 ABCA 322. Surprising that ABCA did not wait until SCC releases its imminent decision in Sharma. Wondering if there will be “pre-Sharma” drug sentencing cases, as we now refer to “pre-Friesen” child SA cases. A good contrast with v. Ellis, 2022 BCCA 278 (I deal with at #8 here; see Suspended sentence for drug dealer ‘demonstrably unfit’: appeal court | Calgary Herald and Fentanyl jail terms a Dickensian error walked back by B.C. court | Vancouver Sun).
  4. 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.
  5. Conditional discharge not granted (probation instead) for non-major SA charge, despite immigration consequences (non-PR): R v Hadni, 2022 ABPC 195.
  6. 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.
  7. 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.
  8. September 2022 Summaries — LITTLE LEGAL, Cross Country Noteup – Criminal Appeals from September 2022 | CanLII Connects, The Defence Toolkit – October 8, 2022 – Sitar & Milczarek (sitarmilczarek.com).
  9. Defence lawyers indict province’s legal aid funding hike | Calgary Herald, The maddening irrelevance of Charlie Vaughn’s innocence (substack.com), -Supreme Court Term Preview: Just Call the Justices “Republicans” and “Democrats” (ballsandstrikes.org), Mother forced to give birth in filthy Maryland jail cell as nurses laughed at her, lawsuit claims (msn.com), Vancouver Police Board settles over handcuffing of Indigenous man, granddaughter (msn.com), Size of Alberta class action on bail hearing delay ‘well in excess’ of 17,000 people, lawyer says – The Lawyer’s Daily (thelawyersdaily.ca), Supreme Court May Make Acquitted Conduct Sentencing Illegal (reason.com), The Law Garage: Rebecca McConchie and Lindsay Board: “In terms of JJ, I felt disappointed but also invigorated in the sense that I was thinking ‘okay, well what next?'” (fireside.fm), What would retired justice Moldaver say? – The Lawyer’s Daily (thelawyersdaily.ca), Sex offender post-incarceration program imperilled | Eileen Henderson and Cliff Yumansky – The Lawyer’s Daily (thelawyersdaily.ca),
  10. Check out my recent blog posts: Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding – Moldofsky Law, Ghomeshi, Guilt and Gullibility – Moldofsky Law, Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207 – Moldofsky Law, and The train wreck that is Legal Aid Alberta – Moldofsky Law.

Weekly criminal law update – September 28, 2022

I missed last week. My apologies. To subscribe to the mailing list (link).

  1. Check out my recent blog posts: Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding – Moldofsky Law, Ghomeshi, Guilt and Gullibility – Moldofsky Law, Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207 – Moldofsky Law, and The train wreck that is Legal Aid Alberta – Moldofsky Law.
  2. 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).
  3. 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).
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. Dissent would have allowed s. 276 application in R. v. T.W.W., 2022 BCCA 312.
  14. Improper costs award against the CRA reversed in R v Van Dijk, 2022 ABCA 292.
  15. Legal Aid strike: Petition · Demand Equal Access to Justice for All Albertans · Change.org, Sankoff – TheFightforChangestoLegalAid210280mm by Gesa – Flipsnack, Backlog expected as job action continues at Alberta courts | CTV News, Alberta defence lawyers to refuse all legal aid cases starting Monday (CBC – msn.com), Criminal defence lawyers escalate job action in fight over Legal Aid funding – LiveWire Calgary, Defence lawyers will refuse new legal aid cases starting Monday | Calgary Herald, Defence lawyers to stop taking new legal aid files as dispute with Alberta continues (Global – msn.com), ‘Short-term pain’: Group of Alberta lawyers escalate job action over legal aid cases (yahoo.com), Alberta’s defence lawyers protest unfair wages | CTV News, Olayemi Olurin: Underfunding Public Defense Fuels Mass Incarceration (substack.com), Murder suspects set to be released from jail over barrister strike court delays (telegraph.co.uk).
  16. What Happens to #MeToo When a Feminist Is the Accused? – The New York Times (nytimes.com), How many more Adnan Syeds are in the justice system with no journalists to advocate for them? | GUEST COMMENTARY – Baltimore Sun, Oklahoma Lawmaker Calls for Investigation of Prosecutors Who Convicted Richard Glossip (theintercept.com), Alabama Fails to Execute Alan Miller, Could’t Find Vein (vice.com), Not on Record podcast EP#34 | Social Justice in the Courts – YouTube, EP#35 | The TRUTH About Overturned Convictions | Lawyers Examine the Adnan Syed Case – YouTube.

 

Weekly criminal law update – September 16, 2022

To subscribe to the mailing list (link).

  1. Check out my recent blog posts: Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding – Moldofsky Law, Ghomeshi, Guilt and Gullibility – Moldofsky Law, Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207 – Moldofsky Law, and The train wreck that is Legal Aid Alberta – Moldofsky Law.
  2. 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).
  3. Crown application for multiple witnesses to testify remotely at a major fraud trial dismissed: R v Barry, 2022 ABQB 600.
  4. 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.
  5. Wrongful Conviction Watch™: a horrendous U.S. wrongful conviction recently recognized in ‘Serial’ podcast case: Prosecutors move to vacate Adnan Syed’s conviction : NPR. Will be binge-listening to the 8-year-old podcast series on it – Serial. Seems to have included significant prosecutor/police misconduct – shocker, I know. Also, Police apologise for wrongful conviction of man executed 70 years ago | Cardiff | The Guardian, Illinois Innocence Project helps win release of wrongfully convicted Lake County man | NPR Illinois, Claiming Innocence, Alabama Death Row Inmate Seeks New Trial (usnews.com), Jury awards New York man with 13 alibi witnesses $5 million for wrongful conviction (nbcnews.com).
  6. Legal Aid: Opinion: Alberta’s legal aid system is being starved of funding – The Globe and Mail (free version), Starving legal aid is threatening Ontario’s justice system | The Star (free version), Barrister strike: Criminal law is not dying, it’s dead, says barrister – BBC News, Guest Post: Criminal barristers need the patience of monks but we have not taken vows of poverty – BarristerBlogger.
  7. Misc.: Green-lighting torture in Israel: A tragic, unifying court decision – The Jerusalem Post (jpost.com), The Credibility and Reliability of Memory at Trial (thelighthouseproject.ca), Cancel Culture – by Amna Khalid and Jeffrey Aaron Snyder (substack.com), Manitoba lawyers react to call for reverse onus bail changes for knife crimes – The Lawyer’s Daily (thelawyersdaily.ca), Uju Anya on Her Tweet About Queen Elizabeth II (thecut.com), Johnson v Hutchinson: Federal Judges Make Very Bad Amateur Scientists (ballsandstrikes.org), Domestic violence gravy train – Bettina Arndt (substack.com), Benjamin Mendy found not guilty of one count of rape – BBC News, Chief Justice John Roberts defends Supreme Court’s legitimacy | CNN Politics, The Victim Who Became the Accused | The New Yorker, Brooklyn Prosecutors Seek to Throw Out Scores of Convictions – The New York Times (nytimes.com).

Weekly criminal law update – September 6, 2022

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.

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  1. Check out my recent blog posts: Open Letter to Justice Minister Shandro RE: Legal Aid Alberta Funding – Moldofsky Law, Ghomeshi, Guilt and Gullibility – Moldofsky Law, Innocence is not a myth – Shakespeare, wrongful convictions and R v BEM, 2022 ABCA 207 – Moldofsky Law, and The train wreck that is Legal Aid Alberta – Moldofsky Law.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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).
  8. A terrific article by Daniel Del Gobbo: “Lighting a Spark, Playing with Fire: Feminism, Emotions, and the Legal” by Daniel Del Gobbo (dal.ca). Deals with carceral state, crime logic, a “neoliberal publicity stunt,” etc. Also on CanLII. See also Ryan Clements’ monthly roundup for August.
  9. 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.
  10. Legal Aid AB CEO should quit over op-ed, say striking defence lawyers | Edmonton Journal, Legal aid lawyers walk picket line at Calgary courthouse | CTV News, Editorial by legal aid president called ‘vile,’ prompts calls for resignation | CBC News, Alberta defence lawyers walk out of Edmonton, Calgary courts as part of latest job action | Globalnews.ca, Criminal defence lawyers walk out of courts to protest of lack of funding for Legal Aid – LiveWire Calgary, Joanna Hardy-Susskind’s Diary: Wigs on the picket line – New Statesman
  11. The Burden of Proof in Sexual Assault | The New Republic, Robed in secrecy: How judges accused of misconduct can dodge public scrutiny (nbcnews.com), Heck v Humphrey: The Supreme Court Keeps Discovering Exciting New Ways to Ignore Police Misconduct (ballsandstrikes.org), Brisbane cabbie bashed after false rape claim, court told (brisbanetimes.com.au), Why does Canada still allow torture here at home? | The Star, Texas 7 death row inmate Randy Halprin may get new trial | wfaa.com, Cultural war moves to libraries as some groups demand removal of books. : NPR.
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