Canadian Criminal Appeals - Week of July, 6 2020

Cases:

In R v Samaniego, 2020 ONCA 439 the ONCA divided over whether the trial judge (TJ) improperly excluded defence evidence in a cut-throat, co-accused jury trial. The gist is that the only evidence that the appellant had joint possession of the firearm came from a nightclub security guard who was an old, close friend of the co-accused and who had, among other things, clearly lied about this fact at the preliminary inquiry in an apparent effort to protect his friend. The majority (Benotto, Thorburn JJA) upheld the TJ’s ruling excluding various pieces of evidence that could have further undermined the security guard’s credibility (and that would have been elicited through cross-examination) as “a proper exercise of trial management by an experienced trial judge” (18). In dissent Paciocco JA - you know, the one who co-wrote the Law of Evidence - would have allowed the appeal, holding that “[t]he trial management power does not give judges the discretion to misapply the rules of admissibility, nor does this discretion replace evidentiary standards for the discretion to exclude technically admissible evidence” (60). In his view, the TJ’s rulings improperly “denied access to cogent information that [the appellant] could have relied upon to assist him in casting doubt on the security guard’s credibility”, the pivotal issue in the case (61). This fascinating case is now heading to the SCC and, as noted by Chris Sewrattan, we may well get one of those “minimal effort” judgments from the bench (which, incidentally, have been the source of some valid criticism). NB: While the majority’s focus on trial management discretion was undoubtedly influenced by their dim view of the trial lawyer’s cross examination (“unfocused, unstructured, rambling and repetitive”), Paciocco JA’s focus was on the trial lawyer’s valid and persistent (even if, at times, flawed) efforts to elicit probative evidence in the face of cascading - and often legally incorrect - opposition from the Crown, the co-accused’s counsel and the TJ (evoking, in my mind, Reid Rusonik's recent tweet about defence lawyers being like woodpeckers).

The SCC denied leave to the appellant to appeal his sexual inference conviction in R v Hernandez-Lopez, 2020 BCCA 12. The appellant had argued, among other things, that the TJ improperly relied on a law review article (“Judicial Assessment of the Credibility of Child Witnesses”) in assessing the credibility and reliability of the child complainant (who provided the “only direct evidence of the touching”) (3 & 9). Because the article, which the TJ “came across on his own”, was not restricted to legal analysis but contained commentary on empirical studies about memory and suggestibility in child witnesses, the appellant complained that the TJ had essentially relied on untested “outside expertise” in his credibility assessment (7-12). The BCCA (per Groberman JA) disagreed, noting that the portions of the article that the TJ excerpted contained only “generally accepted propositions” which are already “part of the basic toolbox that any judge hearing a case involving child witnesses must employ”(17-20). And while the BCCA was also satisfied that the TJ did not improperly use this information “as an instruction manual for assessing the evidence of children”, it did nevertheless express some caution that the use of self-generated extraneous sources could, in some cases, compromise trial fairness and/or amount to reliance on expert evidence that is not properly before the court (12 & 23). NB: This reminded me of R v Ururyar, 2017 ONSC 4428 where the summary conviction appeal court overturned a “baffling” and “angry" trial decision that relied on an “incomprehensible mixture of references to literature about rape and the trial judge’s own opinions on the subject” (57). Beyond using social science literature to simply support principles that may be found in the case law (as essentially held in Hernandez-Lopez) the TJ “reason[ed] backwards from literature about rape and how rapists behave to the identification of the accused as a rapist” (58-62). Christie Blatchford had covered this matter at the time, including here (“Why would a veteran judge tee off on a man he was convicting of sexual assault and rail against him…?”), here and here.

You know that it is a slow week in Canadian criminal appeals when the PEI Court of Appeal is cited: R v Stead, 2020 PECA 6. Kidding aside, the most noteworthy feature of this decision - I mean, other than its wonky formatting and apparent misunderstanding of the test for leave under s. 839 of the Code - is that PEI prosecutors have “enthusiasm for jail” and say things like “a short crack of custody” when seeking short corrective jail sentences for a youthful first offender guilty of a low-level property crime involving $127.45 (85-86). Admittedly, it is not much different than the “short, sharp” (period, jolt, shock, taste) expressions used elsewhere in Canada. They all have a corporeal, Foucauldian ring. NB: Citing, among other things, the TJ’s failure to give effect to the principle of restraint and the suggestion that it was aggravating for the appellant to maintain his innocence at the sentencing hearing, the PECA allowed the sentence appeal and substituted a conditional discharge with 6 months of probation for the 15-day intermittent jail sentence and 1 year of probation imposed at trial.

Criminalizing compulsory genetic testing and the non‑voluntary use or disclosure of genetic test results in the context of a wide range of activities is a valid exercise of Parliament’s criminal law power under s. 91(27)  of the Constitution Act, 1867: Reference re Genetic Non-Discrimination Act, 2020 SCC 17. Four justices (Kasirer J., with Wagner C.J. and Brown and Rowe JJ. concurring), however, disagreed and held that the “pith and substance” of this legislation falls within the provinces’ constitutional authority over property and civil rights. Is this Kasirer J.’s first opinion - a dissent - on the high court? NB: Turns out that the full five-member panel of the QCCA (2018 QCCA 2193) also thought that the legislation was “clearly” not a valid exercise of the federal jurisdiction over criminal law.

Ryan Clements