Cross Country Noteup - April 2022

R v JW, 2022 ONCA 306: tries to bring “an orderly methodology” to the “vast morass” of irreconcilable caselaw on admissibility of discreditable conduct evidence. Judges can only “steel themselves” against moral/reasoning prejudice “if they actively advert to the very point in the moment of decision”. Important reminder that prejudice from this evidence may not be reduced in judge-alone trial: “the dynamic of this trial revolved around the discreditable conduct evidence and, in particular, around the appellant’s inability to explain in terms that the trial judge would accept why he engaged [it]”. See also: R v Houle, 2022 ONCA 325

R v Tim, 2022 SCC 12: it is unlawful to arrest based on what police honestly believe the law is when they are, in fact, mistaken about that. The police wrongly thought possessing gabapentin was crime. Despite blunder, other evidence obtained was admitted under s 24(2) of the Charter. 

R v Leonard, 2022 NLCA 22: accused acquitted for selling Percocet, which he knew was a “forbidden and dangerous” act, b/c judge believed him, that he did not know chemical (oxycoton) was a schedule I drug. Conviction entered on appeal on b/c fact “lead inexorably” to wilful blindness.

R v Scopel-Cessel, 2022 ONCA 316: if eight officers execute pre-dawn warrant at home in winter, the PJ-clad residents, who are the subject of focussed investigation and asked incriminating questions, are likely detained even if told otherwise. Systemic issue further supported exclusion.

R v Santos, 2022 SKCA 50: Judge reasoned as though officer’s experience alone was enough for objective basis for arrest. Experience cannot sew “a patchwork of exclusively innocuous circumstances into a quilt of reasonable grounds”. On appeal, the 1kg of cocaine seized from a rental car during a traffic stop on the Trans-Canada highway was excluded.

R v Stairs, 2022 SCC 11: the police have power to search homes incident to arrest (and beyond the immediate area of arrest) if: the area is sufficiently proximate to location of arrest; there are “reasons to suspect that there is a safety risk” to police or others which the search would address; and if the search is conducted reasonably.

R v Dussault, 2022 SCC 16: Where police conduct has effect of undermining legal advice, and where it is objectively observable that this occurred, the right to a second consultation arises. No need to prove conduct was intentional or belittling of counsel or advice. Adopts “lifeline” language for Doherty JA in R v Rover, 2018 ONCA 745.

R v SS, 2022 ONCA 305: Given dissent, this important hearsay case is likely heading to the SCC. Perhaps the most compelling basis to not admit statement is, unlike Khan, cross-examination may have uncovered an explanation, other than guilt, as to how complainant could describe sex acts that, given her age, are otherwise expected to be beyond her knowledge.

R v Gerrard, 2022 SCC 13: Absence of evidence of motive to lie, or evidence disproving a particular motive to lie, is a factor that suggests a witness may be more truthful because they do not have a reason to lie. The latter provides a stronger indication of credibility.

R v JD, 2022 SCC 15: In general, a judge is not required to conduct an inquiry to ensure that certain tactical decision-making by an represented accused is voluntary and informed, including whether to cross‑examine a witness, consent to certain admissions or waive a voir dire.

R v Matthews, 2022 ABCA 115: Gong Show: much “thinking out loud” by all participants; trial Crown withdrew; jury excused; disclosure obligation observed in breach; Crown mistakenly revealed informer-privilege to judge; and innocent-at-stake ruling and judicial stay upheld on appeal.

R v Zaworski, 2022 BCCA 144: provides the important reminder that “there will be cases in which the seriousness of the charge, the history of the proceedings, or the conduct of an accused calls out for the [plea comprehension] inquiry, notwithstanding a statement by counsel that they have canvassed s. 606(1.1) with their client”.

R v KN, 2022 ABCA 135: implicitly accepts that “the de minimis defence” exists and upholds the 2021 ABPC 179 which convicted the appellant of assaulting his daughter. While “anger and correction can co-exist under s 43” (“correction of child by force”) judge found no corrective purpose in this case.

R v Mulumba, 2022 ABCA 104: to win an appeal for ineffective examination of witnesses, including cross, recognition evidence claimant must show that effective questioning “would have produced a different result” or that overall conduct impugned appearance of fair trial. 

R v Olufeko, 2022 ONCA 308: The suggestion that the failure to object at trial was because counsel ‘just got tired’ after a long, complex trial, did not sit well with George JA: “If anything, the nature of the proceeding would have elevated counsel’s level of awareness and the need to preserve the record…”

Ozer v R, 2022 NBCA 9: new trial ordered as judge disbelieved the accused's b/c there was an “almost complete lack of testimony about the actual intercourse”. This was "palpably wrong": the accused "gave many details" of incident. Credibility should be assessed on what accused stated, not on "whatever additional details the judge had in mind". 

R v Dixon, 2022 BCCA 137: The court declines to decide whether a probationary condition which grants the police “unfettered access to any digital device” in the offender’s possession violates s. 8 of the Charter as the Crown conceded that it was unreasonably imposed on the facts of the case.

R v Lewis, 2022 ONCA 282: Recognition evidence - as opposed to stranger identification - can be based on a “casual acquaintance”, in this case having seen and spoken to someone “enough times” to be comfortable making “small talk”.  The important thing is that judge approaches all identification with caution.

R v DEA, 2022 ABCA 143: Uneven scrutiny as ground of appeal may be having “unwarranted renaissance”. Even if it exists, it isn’t a stand-alone ground & suffers from “dubious underlying presumption” that testimony of different witnesses deserves symmetrical analysis.

R v JL, 2022 ONCA 271: While the judge may have given more “than optimal” attention to the complainant’s demeanour in accessing her credibility, he did not err: he cautioned himself against overreliance on demeanour and his acceptance of her evidence was based on “a number of factors”. 

R v Friesen, 2022 ABCA 147: upholds CSO for possession of child pornography. When a lengthy and restrictive CSO “is coupled with the ruin and humiliation that the respondent brought down on himself by his crime, it provides sufficient denunciation and general deterrence.

R v Murphy, 2022 NSCA 26: Just for the quotes from Justice Beveridge: “It is not a misapprehension of evidence when a trial judge rejects an appellant’s evidence and draws inferences the appellant disagrees with” and “counsel need not blindly follow any and all lines of questioning suggested by a client”.