Cross Country Noteup - November 2022

R v Sharma, 2022 SCC 39: a 5:4 majority (including all 4 of former PM Harper's appointments) holds that excluding conditional sentences for certain offences does not disproportionately impact Indigenous, as compared non-Indigenous, offenders. In swift “dialogue", the Minister of Justice, David Lametti⁩, disagrees, with Bill C-5 receiving Royal Assent on November 17, 2022, two weeks later.

R v Garie, 2022 BCCA 382: noting that Sharma invited sentencing judges to consider suspended sentences “with openness and flexibility" when conditional sentences are unavailable, this court seems to insist on exceptional circumstances to "go outside" range, despite R v Graham, 2022 BCCA 252 and R v Choi, 2022 BCCA 90.

R v Preston, 2022 NSCA 66: when a complainant unambiguously confronts an accused by text message that she did not consent to the sexual activity and the accused unambiguously responds with an apology, it’s probative value is as an admission, not a prior consistent statement.

R v Gordon, 2022 ONCA 799: silence or equivocal denial in reaction to statement made by another (eg “there’s rumours that you killed Andrew”) may be an “adoptive admission” (that this is true) but the jury must consider circumstances, including any ambiguity or other explanations for the reaction.

R v Haque, 2022 SKCA 124: it is generally prohibited to suggest - in cross examination, argument or judicial reasoning - that an accused’s "mere access" to disclosure makes his testimony suspect, but an exception exists where the accused has himself relied on disclosure to give evidence. Also from this month, see R v Hayles-Wilson, 2022 ONCA 790 where the Crown had improperly argued, in her closing, that the accused had tailored his testimony to fit with the trial evidence (and the trial judge had failed to provide a corrective instruction to the jury). Given all of the judicial condemnation of this, it was “a mystery” to Nordheimer JA “why some Crown counsel persist in doing so”.

R v EF, 2022 ABCA 366: yes, there were "problems" with the "folksy" and uncorrected Crown jury closing - offering anecdotes about his own children, his personal views about the child complainant's credibility and the “science” of child memory that was not in evidence - but it did not create unfairness.

Agbakoba v British Columbia (Adult Forensic Psychiatric Services), 2022 BCCA 394: review boards have no authority to impose a conditional discharge term purporting to preclude an outside agency - such as the CBSA - from deporting an NCR accused. If there is a real risk of deportation which implicates public safety outside Canada, then the board may have to detain instead. 

R v Myers, 2022 NSCA 69: the court excluded drugs obtained from the passenger's backpack, located in an uninsured vehicle that had been impounded and subjected to inventory search. There was no basis on these facts to search the backpack of this "by-stander", who ought to have been invited to remove it from the vehicle.

R v Wolfe, 2022 SKCA 132: Rejects the holding in R v Boily, 2022 ONCA 611 that driving prohibitions are not available for driving-related criminal negligence because of a legislative drafting error. Rather, they remain available because such accused will necessarily be guilty of the included offence of dangerous operation.

R v Ramelson, 2022 SCC 44: the police, who posted undercover ads in an online classified, had reasonable suspicion that certain criminal activity - communicating to obtain sexual services from a minor -  was occurring within that "sufficiently precise" virtual space.

R v Burles, 2022 NWTCA 3: Justice Molloy, a judge facing misconduct proceedings in unrelated matters, wrongly convicted a witness of contempt following “a number of concerning elements" in the process, including that his inquisitorial inquiry denied witness right to choose whether to speak.

R v SM, 2022 ONCA 765: judges should not hold private and unrecorded mid-trial meetings with the lawyers - in this case amicus and the Crown - to comment on the trial evidence in an apparent effort to encourage plea bargaining, particularly where, as here, the self-represented accused was not present. Left in the dark about the meeting, he later pleaded guilty and was designated a dangerous offender.

R v Viau, 2022 ONSC 5825: while the judge properly excluded the accused from his trial - due to "insistent rudeness" and "continuous advancement of pseudo-legal irrelevancies" - the judge erred by convicting him without first giving him a last chance to call evidence or make submissions.

R v Kebede, 2022 ABCA 353: presenting the jury with animations depicting a theorized path of travel based on cell tower data was permissible because the jury would have known these were "a collation of other evidence", and that route could not be inferred from cell tower data alone.

R v Veen, 2022 ABCA 350: the failure to consider the limits of their warrantless arrest power under 495(2) - the non-compliance of which is "covered" by 495(3) - is not sufficient to turn a lawful arrest into arbitrary detention. Here, there was no Charter claim against 495(3) itself.