Cross Country Noteup - October 2022

R v Campbell, 2022 ONCA 666: where police impersonate a drug dealer by using his seized phone to intrude upon and continue a pre-existing private text exchange with another drug dealer, that duped person has an objectively reasonable expectation of privacy in the exchange.

R v Tessier, 2022 SCC 35: rejecting a bright-line approach, the 7:2 majority holds that while the absence of a caution is not determinative of voluntariness, its significance will be assessed contextually, including whether the person is a suspect, a factor which signals the need to attenuate any informational deficits as result of heightened risk and vulnerability. 

R v Nahanee, 2022 SCC 37: while the public interest test does not apply to non-joint submissions, a judge's failure to notify parties that she will exceed the upper sentencing limit suggested by Crown, and give the parties an opportunity to respond, may result in material error. Troublingly, joint submissions now exist only where “every aspect” of the proposed sentence” is jointly proposed. For example, in the context of a joint submission for jail, if the parties differ about a single term of a probation order - for instance, between an absolute or qualified no contact condition - this might mean it is afforded less deference notwithstanding a comparable quid pro quo to “full” joint submissions. Does Nahanee throw the Anthony-Cook baby out with the bathwater?

R v Schneider, 2022 SCC 34: there is a three-part test for the admission of all evidence: (1) relevance; (2) exclusionary rule; and (3) residual discretion. Further, party admissions are a well-established exception to hearsay rule, and are generally admissible without reference to principled approach.

R v Ndhlovu, 2022 SCC 38: by subjecting all sex offenders, including those who do not have increased risk of reoffending, to mandatory or lifetime reporting, 5:4 majority holds that Parliament overshot the mark. Minority warns of "rampant misuse of judicial discretion". 

R v Francis, 2022 ONCA 729: although the judge was not required "to expressly identify the principle of restraint" when sentencing this youthful, 1st-time offender, his reasons, when read as a whole, show that he did not consider it “at all", allowing ONCA to intervene. There were two other cases this month from the ONCA where sentences were reduced because the judge failed to properly consider the principle of restraint: R v Ali, 2022 ONCA 736; R v Shaheen, 2022 ONCA 734. In Ali, for instance, the 15 months of jail imposed by the sentencing judge for aggravated assault was replaced on appeal with a conditional sentence order. 

R v Caissie, 2022 ABCA 316: it would be speculation to conclude that the three 1-ounce vacuum-sealed bags of cocaine could be for personal use without any evidence that the accused was a user. The only reasonable inference from evidence accepted by the judge - ie the Crown expert - is that cocaine was for trafficking.

R v Aalbers, 2022 SKCA 105: provocation can be a mitigating factor in sentencing - as an offender's motivation or whether the offence was impulsive may be relevant to assessing moral blameworthiness - but it should not be conflated with the legal defence in murder cases.

R v Sharifi-Jamali, 2022 ABCA 322: in an apparent effort to work-around the unavailability of a conditional sentence, the judge erred in imposing a conditional sentence for the “more minor” weapons-related offences while imposing only probation for the more serious drug-related charge. 

R v Royal, 2022 ABCA 330: criminal lawyer found in contempt for refusing to a wear mask in court during the COVID-19 pandemic succeeds on narrow jurisdictional basis, that provincial judge who decided case should have been same provincial judge who directed hearing (but was not). 

R v Botticelli, 2022 BCCA 344: a medical disorder, such as a mental illness, can be a mitigating factor warranting a reduction in sentence where the court finds, on a balance of probabilities, that the disorder “caused or contributed to the commission of an offence”.

R v MacDonald, 2022 YKCA 7: the  Crown can rely on the Certificate of Qualified Technician as evidence that the alcohol standard used was certified by an analyst. Contrary to R v Goldson, 2021 ABCA 193, leave to appeal to SCC refused, 39809 (17 February 2022), there is no need to adduce that evidence directly from analyst, whether by certificate or testimony. 

R v Tsang, 2022 BCCA 345: where a judge seems to have relied on generalizations in assessing credibility, the task on appeal is to determine if it was based upon stereotypical reasoning rather than evidence that the behaviour of the party may, in fact, conform to a stereotype.

R v Rai, 2022 ONCA 703: misadvised by counsel, accused pleaded guilty to driving offences without being aware of automatic, indefinite licence suspension under provincial law. Illustrative of how hard it is to set aside pleas, Court finds no reasonable possibility he would have done differently had he known. 

R v Solivio, 2022 SKCA 117: a lengthy cross-examination may take a toll on a child witness and play a role in assessing credibility. Indeed, a witness may be so exhausted that it is easier to "just agree” with defence counsel rather than take issue with what was suggested.

R v Krywonizka, 2022 MBCA 85: upholds a conditional sentence for a first-time offender who pleaded guilty to possessing “an arsenal” of 77 guns, devices and ammo, including 2 loaded handguns, where his autism spectrum disorder was shown to have led to compulsive collecting behaviours.