Cross Country Noteup - September 2022
R v JG, 2022 ONCA 622: in 2005 a 16-year-old with “significant intellectual disabilities” and represented by duty counsel, consented to being found not criminally responsible for "relatively minor" assaults and breaches that occurred in a group home setting and had been under the jurisdiction of the review board ever since. This was a miscarriage of justice because he did not understand what it meant to be found NCR.
R v King, 2022 ONCA 665: an indigenous accused's criminal record may say more about systemic disadvantage than truthfulness or contempt for the law. Moreover, given the pervasive racism in Canadian society there is an "elevated risk of prejudice" when they are cross-examined on record.
R v DEA, 2022 ABCA 308: the judge imposed 5-years jail, concurrent. The next week, the judge recalled the case and imposed 8-years jail, consecutive, stating that the first sentence was not intended. Appeal allowed: "while judges should be taken at their word" the "dramatic adjustment" raises integrity concerns.
R v Sium, 2022 SKCA 102: judges, sitting alone, have no obligation to self-instruct on limited use of an accused’s criminal record. The trial judge’s conclusion - that the accused’s experience with the criminal justice system “made certain aspects of his testimony less believable” - is not propensity reasoning.
R v Wesaquate, 2022 SKCA 101: trial management powers should be used to reduce delay and separate “the wheat from the chaff” but are not a licence to sacrifice fairness for efficiency. Here the judge erred in summarily dismissing the self-represented accused’s Charter application after only the “barest” of inquiry. NB: as a prairie court, the SKCA is uniquely qualified to separate the wheat from the chaff.
R v Mengesha, 2022 ONCA 654: lawfully detained for smoking pot (then a crime) but not told reason for detention or given his rights to counsel. Moreover, the wrongly demanded that he submit to search on threat of arrest (an arrest which they could have lawfully made anyway). The ONCA held, however, that the loaded handgun and fentanyl - a “public enemy" - weighed "heavily" for inclusion.
R v CL, 2022 NLCA 53: sexual assault law in Canada is undoubtedly - and increasingly - complex. Here the trial judge was found to have made a comedy of errors (my words, not the Court’s), including relying on several prohibited stereotypes & admitting prior sexual activity evidence without a hearing.
R v TWW, 2022 BCCA 312: with conflicting accounts on the timing and the extent of marital collapse raising serious inconsistencies, Justice Frankel, dissenting, holds that the trial judge’s prior sexual activity ruling “improperly shut the door” on the accused’s ability to challenge complainant’s credibility and version. This is one to watch.
R v Gargan, 2022 NWTSC 21: in upholding 2021 NWTTC 9 and the 1 day of jail and 12 months of probation for the youthful, first-time indigenous offender who pleaded guilty to sexual interference at “low end of the spectrum”, the appeal court concludes that there is “no question” that the 90-day mandatory minimum sentence under s 151(b) is unconstitutional.
R v Jahangiri, 2022 ONCA 644: the probative value of evidence that the accused had a pile of cash in his bedroom at the time of his arrest does not depend on propensity reasoning. Rather it is circumstantial evidence consistent with being a drug trafficker at the time.
R v Demirovic, 2022 NSCA 56: given the “real concerns" about the sufficiency of grounds to justify the warrantless arrest, the trial judge's reasons, which failed to show "the required analysis" or how she assessed and weighed the relevant factors, precluded meaningful appellate review.
R v McCrimmmon, 2022 ABCA 289: where the trial judge and counsel do a line-by-line review of the jury charge without any objections, absent a "pure error of law" it will be incumbent on appeal counsel to show why it is "so deficient as to create the risk of a miscarriage of justice".
R v Ahmed, 2022 ONCA 640: during a valid detention investigating recent gun shots, it was “modest" extension of pat-down search power for the officer to stick his head into the open car door and visually inspect an area still accessible to the occupants, and which resulted in plain view seizure of a gun.
R v Droog, 2022 ONSC 5033: where the police inform an impaired driving suspect of the right to counsel at a time when they were not required to - i.e. during an ASD demand - this will not give rise to an implementational breach. The conduct of police cannot create a right that does not otherwise exist.
R v Handlen, 2022 BCCA 304: in a high profile case involving the murder of two girls, prosecuted 40 years later following a Mr. Big confession, the court holds that pre-hypnosis witness statements can be admitted under the principled exception to hearsay even if their post-hypnosis testimony is inadmissible.
R v Ledesma, 2022 ABCA 285: despite "catastrophic" life experiences "which likely damaged his entire outlook on life", objective of protecting the public - given high risk of violent recidivism - and "magnitude of the crime" overcame any "potential effect of Gladue”
R v Cliffe, 2022 BCCA 305: is banishment from one’s indigenous community under its "Community Protection Law" a "true penal consequence" protecting against double jeopardy in a parallel criminal matter? How does indigenous law intersect with the Criminal Code? These questions are worth considering.
R v Dichrow, 2022 ABCA 282: that an offender was estranged from his indigenous heritage is no reason to ignore Gladue. Here the offender's circumstances bear the “hallmarks of intergenerational harm", including the “whitewashing" of Indigeneity, and these circumstances should have been more fully considered by the sentencing judge.
R v Black, 2022 ONCA 628: exigent circumstances may justify a departure from strip search guidelines. While this does not mean that any resistance is exigent, here it created "emergency conditions" justifying a female officer's involvement in a male arrestee's search.