Cross Country Noteup - November 21 - Criminal and Regulatory Appeals
Gladue
R v Mero, 2021 BCCA 399
Marchand JA, BCCA’s 1st Indigenous jurist, observing “worsening crisis of overrepresentation of Indigenous people in jails”, varies 40-month jail term to 24-month conditional sentence order for possession of a loaded handgun, and imposes suspended sentence and probation for possessing heroin for the purpose of trafficking.
Admissions of fact
R v Robertson, 2021 SKCA 125
Admission that officer did not have subjective belief in grounds for arrest was admission of fact, not concession of law (even if it inexorably led to legal conclusion of breach) and therefore it could not be unilaterally withdrawn by Crown when officer testified to contrary. For more about admissions, including the distinction between formal and informal, see: R v Scott, 2021 ONCA 625.
Intermittent sentences
R v Toews, 2021 BCCA 405
Crown applied to vary intermittent sentence because, due to COVID-19 precautions at the local jail, the offender had not actually spent any time in jail. Court had no jurisdiction, inherent or otherwise, to vary an offender's 'weekend' jail sentence into "straight" time at the behest of the Crown.
Lay opinion evidence
R v Kotio, 2021 NSCA 76
Lay opinion evidence about how trauma affects memory was improperly relied upon by the judge to dismiss inconsistencies in complainant’s testimony, resulting in new trial.
Search powers
A Lawyer v The Law Society of British Columbia, 2021 BCCA 437
Where the Law Society (of BC) has reasonable grounds that a lawyer committed specified misconduct, its powers to investigate the lawyer (and to search records, etc) is unlimited in scope to entirety of legal practice (ie not just specified misconduct).
Judicial discretion
R v Fabian et al, 2021 NWTCA 9
A judge should not dismiss an entire docket - consisting of 12 accused & 50 charges, including some serious ones - merely because a prosecutor failed to physically appear in court, even if this was not the first time. See related case, R v Norn, 2021 NWTSC 35, recognizing that the power to dismiss a charge for want of prosecution is necessarily implied in statutory courts. The language of these two judgments is much more temperate than the language employed in R v Siciliano, 2012 ONCA 168, a similar case which resulted in a subsequent finding of judicial misconduct.
Civil contempt
Law Society of Alberta v Beaver, 2021 ABCA 163 & College of Physicians and Surgeons of British Columbia v Ezzati, 2021 BCCA 422
Disbarred and unlicensed folk who breach court orders enjoining unauthorized practice will likely go to jail - Mr. Beaver, a disbarred criminal lawyer and Ms. Ezzati, a Botox injector without a medical licence.
Conduct unbecoming
The Law Society of Manitoba v Brian A Langford, 2021 MBCA 87
Inflammatory 'freeman on the land' arguments (income tax is unconstitutional and government is acting ‘like Hitler’) from "incorrigible" lawyer in response to tax evasion charges may be "conduct unbecoming". In any event, disbarment is justified for tax evasion.
Judicial notice
R v C.K., 2021 ONCA 826
Courts can take judicial notice that Indigenous persons plead guilty at a materially higher rate due to a variety of systemic factors, including the “belief they will not receive a fair trial owing to racist attitudes prevalent in the justice system”. As such, an Indigenous person’s experiences may have an adverse effect on the integrity of the guilty plea and where this may be so, a judge has a duty to inquiry.
Declarations of invalidity
R v Albashir, 2021 SCC 48
In rare cases, unconstitutional criminal offences may remain in force during the period in which the declaration of invalidity is suspended. Those charged during this time may have a remedy against prosecution under s. 24(1) of the Charter.
Cross-examination of accused
R v Fraser, 2021 BCCA 432
An accused can be cross-examined on concocting his testimony to fit disclosure - and the Crown can say so to the jury - where an accused’s testimony is starkly inconsistent with a (pre-disclosure) statement given to police.
Pre-trial credit
R v Basque, 2021 NBCA 50
Divided NBCA (and courts generally) on whether time spent on bail driving prohibition can be subtracted from mandatory minimum 1-year driving prohibition. Majority, lamenting “regrettable” result, said “no”, not absent successful constitutional challenge.
Starting point sentencing
R v Parranto, 2021 SCC 46
The majority judgment, disappointing to some for confirming that the "starting point" approach to sentencing is valid, is otherwise remarkable for going on to say that judges are at liberty to completely ignore them.
Air of reality and self-defence
R v Effert, 2021 ABCA 388
An accused’s inconsistent testimony - both denying and not recalling having committed “the act which constitutes the offence” (a stabbing) - does not defeat a self defence claim at the air of reality stage. A new trial was ordered as there was “enough” of an evidentiary foundation to leave self-defence with the trier of fact.
Resisting arrest by running?
Martin v. R, 2021 NBCA 53
Accused ran when police tried to arrest him - shouting “stop, you’re under arrest”. When police caught up, he peacefully submitted. On appeal, acquitted of resist arrest: running away, even to avoid arrest, does not amount to active physical resistance. I do not think this is correct. Otherwise, the conviction for the break and enter, upheld on appeal, depended solely on fingerprint evidence. See also: R v Bornyk, 2017 BCSC 849 and Emma Cunliffe and Gary Edmond, Justice without Science? Judging the Reliability of Forensic Science in Canada, 2021 99-1 Canadian Bar Review 66, 2021 CanLIIDocs 1021.
Policing in the North
R v Gibbons, 2021 NUCA 17
An unsettling - and from my experience, not uncommon - account of policing in the North. Paragraph 27 sums it up:
More importantly however, neither one of the arrests was justified on the trial evidence. While these type of nuisance complaints are undoubtedly burdensome for the police, their response must nevertheless remain lawful. Should an arrest be made, it must be on reasonable and probable grounds that an offence has been or is being committed, and not because they do not know what else to do with an intoxicated individual who is the subject of a nuisance complaint. Further, once the police assert physical control over that intoxicated individual, that control must be lawful and reasonable in all of the circumstances. That is not what happened in either of these two incidents; the arrests were unlawful. The appellant was also not told why she was being arrested, why she was being stripped of her clothing, or why she was being manhandled by police. In such circumstances, she was not required to simply stop, submit and passively acquiesce to their unlawful actions while hoping for a better outcome sometime down the road. The trial judge erred in law in so finding.