Cross Country Noteup - January 2022
ineffective assistance of counsel
R v DLB, 2022 BCCA 15
A 13 year old consents to NCR verdict for relatively minor but concerning conduct on untested medical opinion and incomplete advice from counsel. The BCCA hangs hat on Crown’s claim that it would have brought and succeeded on NCR anyway. With respect, this seems wrong. See: R v Kankis, 2012 ONSC 378 at paras. 20 and 35-40 per Trotter J. (as he then was); R v Cotterell, 2013 ONCA 446 at para. 17.
R v Wilden, 2022 ABCA 17
Where the decision to not testify was a tactical decision made with the assistance of counsel, an accused will not be permitted to reopen the case post-conviction in order to testify absent establishing ineffective assistance of counsel.
stereotypical reasoning
R v DR, 2022 NLCA 2
Sexual assault acquittal overturned because the trial judge’s credibility findings against complainant was based on the stereotype “that a victim is unable to have any kind of ‘normal’ relationship with her abuser respecting other interactions and activities unrelated to the abuse…”. Dissenting justice, disagreed, finding that the negative credibility finding was based on an inconsistency in her testimony, not stereotypical reasoning.
R v Kruk, 2022 BCCA 18
The unlikelihood of a highly intoxicated woman being mistaken about sense of sexual penetration is not proper subject of judicial notice or "common sense". The issue was never what any complainant would feel but what this complainant did feel. New trial ordered.
Jury issues
R v Chacon-Perez, 2022 ONCA 3
The trial judge provided “no assistance” in response to the jury’s request about reviewing the voluminous evidence surrounding the only contested issue: the identity of murderer. Not only did trial judge fail to clarify request but he “discouraged” any further questions. New trial ordered. This winning issue was raised in a supplementary factum.
R v HW, 2022 ONCA 15
Knowledge of lack of consent is essential element of sexual assault even when the defence of an honest mistaken belief in communicated consent is unavailable (and even though “that unavailability will in most cases be practically conclusive” of knowledge). The trial judge, however, must provide guidance as to what the jury could and could not properly consider on the knowledge element (ie. not the accused’s evidence of a mistaken perception or belief that the complainant had consented, for which there was no air of reality). The instruction “had to ensure that the respondent was not effectively given the benefit of a defence that was not available to him”. As this did not happen, the sexual assault acquittal was overturned.
R v Edwards, 2022 ONCA 78
The judge failed to caution the jury on the eyewitness and voice identification evidence (even though “an eyewitness identification caution may not have benefitted the defence” by drawing attention to unfavourable details). The proviso applied: while “the cumulative impact of the errors in the charge to the jury” were not harmless or minor, the Crown’s case was “so overwhelming that his guilt was inevitable”.
Charter: section 12
R c HV, 2022 QCCA 16
First court of appeal to strike down 6-month summary conviction mandatory minimum sentence for child luring re 172.1(2)(b). Same court had already struck down indictable version (2021 QCCA 1285) and this left a troubling inconsistency.
Charter: section 11(b)
R v Way, 2022 ABCA 1
Mistrial from hung jury does not reset the “Jordan clock” to zero. While it is usually an exceptional circumstance (unless caused by Crown, etc), any resulting further delay that should have been mitigated by Crown will not be subtracted from total. The dissenting justice, Slatter JA, concurred in the result but disagreed that retrials should be governed by Jordan . Moreover, citing a perceived invitation from the Supreme Court of Canada to revisit “settled law”, he held that “a stay should no longer be assumed to be the inevitable remedy for a breach of s. 11(b) of the Charter”.
Charter: section 8 & 9
R v McKenzie, 2022 MBCA 3
The investigative detention in this case, based mainly on second-hand reputation/propensity information, was lawful, as was the protective search of the fanny pack. Leaves for another day the debate about whether reasonable grounds or suspicion is required for such safety searches.
R v Ali, 2022 SCC 1
There was no “hearsay error” in one of the accepted grounds for a strip search being based on another officer’s observations (“reaching towards his nether region”). This was not adduced for its truth and it was not unreasonable to rely on this uncontradicted information in the circumstances of this case.
hearsay
R v Furey, 2021 NLCA 59
With the principled approach to hearsay, if the reliability of an out-of-court statement is sufficiently established, necessity can be relaxed. Is the converse also true? Majority in says “no” and orders a new trial. Dissenting justice held that the trial judge did not actually “relax” reliability assessment in this case.
R v Ali, 2022 SCC 1
There was no “hearsay error” in one of the accepted grounds for a strip search being based on another officer’s observations (“reaching towards his nether region”). This was not adduced for its truth and it was not unreasonable to rely on this uncontradicted information in the circumstances of this case.
R v Wood, 2022 ONCA 87
Watt JA provides a textbook summary of the hearsay rule (at paras. 56-76) and notes that threshold substantive reliability “sets a higher standard” than procedural reliability. Admission of defense-led hearsay is relaxed, but only to a point.
judicial notice
R v Kruk, 2022 BCCA 18
The unlikelihood of a highly intoxicated woman being mistaken about sense of sexual penetration is not proper subject of judicial notice or "common sense". The issue was never what any complainant would feel but what this complainant did feel. New trial ordered.
R v Hogan, 2022 ABCA 5
In absence of “specific” objection, judicial notice can be taken about reliability of certain infomation that smart phones automatically generate, such as location data. Such automatically collected/displayed info is not hearsay but rather circumstantial evidence.
sentencing
R v Salehi, 2022 BCCA 1
Parole ineligibility reduced from 20 to 15 years in double, domestic homicide because offender’s proven ill health is likely to result in “hardship exceeding the normal consequences of a conviction and sentence”. The “ordinary rule” in sentencing that any accommodation of medical conditions in prison is best dealt with directly through administrative channels does not prevent the court from considering the offender’s proven ill health when “determining how long corrections officials are to be precluded from granting parole or temporary unescorted absences, or exercising one of the modes of accommodation: exceptional parole”.
R v Hawryluk, 2022 ONCA 36
When sentencing an offender (in this case a Métis offender) a judge is “not required to consider” sustenance exemption to firearm prohibition. Also, an application for such an exemption can be brought at anytime before judge of same court which ordered prohibition.
R v Turner, 2022 ABCA 11
Majority sets out to effectively narrow the availability of discharges to a vanishing point: to only young, first-time, minor offenders. Minority, concurs in the result, but resists the narrowing. See para. 23 and footnote 28 for discussion around evidentiary burden about potential collateral consequences to employment.
otherwise noteworthy
R v RH, 2022 ONCA 69
While a conviction may be based on an alternative theory of liability not advanced by the Crown, “[i]t is fundamentally unfair to convict an accused person on a theory of which they are entirely unaware, and to which they have not had the opportunity to respond”.
R v Downes, 2022 BCCA 8
Majority attempts to narrow reach of voyeurism offence under 162(1)(a), holding that nudity must be expected in the “place” (eg, arena dressing room) “at the time” of surreptitious recording. Otherwise, the offence would capture conduct that does not breach sexual privacy.
R v Nikirk, 2022 BCCA 23
“This case serves as a very sad cautionary tale that texting while driving can ruin lives.”
Teal Cedar Products Ltd. v Rainforest Flying Squad, 2022 BCCA 26
Logging firms should not be left to rely on the criminal law, “a blunt instrument that moves more slowly and may be less effective [than injunctions] in solving the immediate problems of blockages that interfere with lawful activity”. Concerns about police misconduct in the enforcement of an injunction is not appropriately addressed in the decision about whether to continue an otherwise legitimate injunction; those concerns can be addressed through other forum, including the Charter, civil claims and civilian complaints.