Cross Country Noteup - December 2021
Excision
R v Rizzuto, 2021 QCCA 1789
The Crown’s argument - that reviewing courts should have a discretionary power, akin to the analysis under s. 24(2) of the Charter, to not excise unconstitutionally-obtained information when assessing sufficiency of warrant - was rejected.
Destroyed disclosure
R v Stonne, 2021 CanLII 126367
SCC denies leave in 2021 SKCA 84 where the SKCA upheld trial judge’s pre-trial stay of proceedings in infant homicide case due to the negligent destruction of relevant police station video evidence (automatically overwritten after 400 days despite defence request)
Unlawful arrest
R v St. Clair, 2021 ONCA 895
Objectively unreasonable for police to use mistaken belief as to what medical marihuana license should look like as grounds for arrest. Despite police failing, institutionally and individually, evidence admitted. Similar case now before SCC: R v Tim, 2020 ABCA 469.
Delay
R v Lai, 2021 SCC 52
Re-election by right on eve of provincial court trial which caused the loss of those trial dates and further delay in setting new trial dates in the superior court (BC Supreme Court) should be counted as defence delay in the circumstances of this case: the defence had been warned by Crown counsel 7 months prior to the eventual re-election that a timely re-election could preserve early trial dates in the superior court; and the trial judge found that the re-election was not done legitimately to respond to the charges.
R v Shlyk, 2021 BCCA 472
The delay caused by an adjournment on the eve of the first trial, occasioned by late third party disclosure from insurance company who initially incompletely responded to Crown production order, found to be an exceptional circumstance to be deducted from the overall delay.
R v Stone, 2021 NLCA 55
Dispute between crown and the defence about whether disclosure was first or third party led to loss of first trial date. Second trial date, 15 months later, was determined to be defence delay because the disclosure was actually third party and the defence failed to make timely application.
Sentencing
R v Mansaray, 2021 ONCA 894
Two-year conditional sentence substituted for two-years of jail because sentencing judge treated manner in which accused testified (finding that he lied) as aggravating. Sentence also flawed because the trial lawyer/sentencing judge failed to fully consider adverse immigration consequences.
R v Alcorn, 2021 MBCA 101
Raising 15 months of jail to 60 months for child prostitution with 16-year old Indigenous girl (who later died by suicide), the MBCA notes that “it is typically a racialized and gender-inequality crime” and is "a paradigm of serious wrongdoing".
Entrapment
R v Griffin, 2021 ABCA 405
ABCA is skeptical of "derivative entrapment": Person A given opportunity to commit drug deal w/o grounds and provides Person B's contact info to police who use it as reasonable suspicion for giving opportunity to Person B (now accused) to commit offence.
Credibility
R v E.B., 2021 ONCA 875
Where a key/sole witness lies under oath, judge can still accept his or her evidence where the falsehoods were persuasively explained and did not impact his or her credibility on the central issues. Note: not a good strategy to invite stereotypical reasoning on appeal.