Cross Country Noteup - June 2022

R v JJ, 2022 SCC 38: the majority (6:3) upholds, with rather blithe reasons in my view, the records screening regime as constitutional while Brown J., in a withering dissent, describes the (“ham-fisted…legislative overkill”) law as “an unprecedented and unconstitutional erosion by Parliament of the fair trial rights of the presumptively innocent” which produces “glaring unfairness” and “all but guarantee[s]” wrongful convictions. 

R v Cowan, 2022 ONCA 432: “it is difficult to imagine how the “reasonable and right minded person” would dispel the spectre of bias where the trial judge shares drinks and a meal with the prosecution team minutes after the jury entered a conviction” for murder.

R v Guillemette, 2022 ONCA 436: the Crown “improperly and repeatedly” suggested to accused in cross-examination that she would have told police about her account if it were true, placing her in an “intolerable situation” of having her right to silence “transformed into evidence against her”.

R v WDM, 2022 SKCA 64: new trial ordered in child sex assault case because the trial judge erred by failing to address the “central pillar” of defence: that the complainant’s admitted animus towards him, which “existed for reasons completely unrelated to the alleged crimes”, provided direct evidence of a motive to fabricate.

R v Bidlock-Hawkins, 2022 ABCA 201: the police used “clearly” excessive force (“kicks and hammer-strikes” to head, causing bodily harm) while arresting indigenous man who was actively resisting. The remedy - a sentence reduction rather than a stay of proceedings - was “meaningful” and was owed appellate deference.

R v MM, 2022 ONCA 441: sentences for sexual offences against children “have been too low for too long”.  Conditional sentences “will only rarely be appropriate” and “must be limited to exceptional circumstances that render incarceration inappropriate” (eg “medical hardship that could not adequately be addressed within the correctional facility”).

R v Siwicki, 2022 MBCA 53: courts, not parties, have “final word” where sentencing will occur and there is presumption that it should occur where offence was committed. Trial judges now have province-wide jurisdiction  and s. 479, purporting to allow parties to dictate venue, is an irrelevant “vestige of the past”.

R v Bykovets, 2022 ABCA 208: the majority holds that a reasonable expectation of privacy does not arises when a defrauded company’s 3rd party payment processor gives a impugned IP address to police, who later determine, with production order, that the accused is linked to that IP address. Veldhuis JA in dissent.

R v McMahon, 2022 ONCA 459: the trial lawyer's advice that conditional sentence order (CSO) was unavailable for trafficking methamphetamine (138 grams), although correct at time of guilty plea, was overtaken by R v Sharma, 2020 ONCA 478 by the time of sentencing hearing. Had the offender known, she would have requested one. Consent appeal, CSO imposed.

R v MM, 2022 NSCA 46: in sentencing youth to jail, "mere recital of relevant provisions" is insufficient; the sentencing judge must give "attention to alternatives to custody". Friesen's call for more jail "does not resonate" in youth context and “in no way" attenuates YCJA principles.

R v  Smith, 2022 ONCA 439: prying open a locked metal container (referred to as a “safe” at trial) that was located in the accused’s vehicle at the time of his arrest for possessing illicit drugs was within the scope of the search incident to arrest power.

R v F(JM), 2022 MBCA 52: 1st degree murder overturned because youth court judge relied on police-elicited statement of ownership of cell phone, and its incriminating content, yet the statement violated 146(2) of YCJA and 10(b) of Charter, and the phone should have been excluded under 24(2).

R v Schirmer, 2022 BCCA 214: deep dive into first and third party records, the court orders review of disciplinary records of a police officer, whose contested evidence at trial played a “central role” in findings of guilt, but who later resigned after serious allegations of criminality. One to read and watch.

R v Hussein, 2022 ABCA 219:  Cannot fill-in evidentiary gaps in Crown’s case with speculation. Judge erred in concluding “it is not possible to remove a plastic garbage bag from a box without taking a glove off”. Personal anecdote perhaps, but not proper judicial notice. The misapprehension means that the accused “did not receive a fair trial even if the evidence was capable of supporting a conviction”. New trial. 

R v Baksh, 2022 ONCA 481: where relevant, it is permissible to cross-examine police officers about the underlying “facts and circumstances” of prior, judicially-determined, misconduct.  Acknowledging Harris J.’s judgment in R v Holloway, 2021 ONSC 6136, the court notes that it is not necessary in this case “to decide the precise scope and limits…permitted and precluded by Ghorvei”.

R v Thomas, 2022 ONCA 492: unsuccessful dangerous offender appeal, imposed for crimes (attempt murder, etc.) committed while on a long-term supervision order. The offender had actually self-published a “deeply troubling” book entitled “Unstoppable”, recounting, in “lurid detail”, his many crimes (“[i]n one part of the book the appellant describes how he would sometimes draw a human figure on his cell wall and practice stabbing in the vital areas with makeshift weapons”).

Elizée c R, 2022 QCCA 852: on application to reduce a long-term supervision order, the “material change in circumstances” concept unhelpfully constrains the court’s reassessment of risk. Making progress to point where the offender no longer meets the definition of a long-term offender is enough.