Cross Country Noteup - February 2022
R v Natomagan, 2022 ABCA 48
The direction in 718.2(e) of the Criminal Code to pay “particular attention” to circumstances of Aboriginal offenders includes reviewing dangerous offender risk assessments for accuracy, in the context of Indigenous history and experience. The actuarial assessment methodology used in this case “is prone to overestimating the risk posed by Indigenous offenders by failing to consider or to account for past discrimination, thereby potentially contributing to custodial over-representation”. Also, courts can take judicial notice that Indigenous peoples encounter systemic biases in the criminal justice system, such as over-policing, over-charging, and burdening with bail conditions.
R v Biya, 2022 ONCA 99
“While maintaining the credibility of the bail system means the forfeiture must have some teeth, that is a matter of proportionality”. A surety’s financial circumstances & “the general economic conditions”, can justify a smaller forfeiture.
R v BG, 2022 ONCA 92
The Crown misconducted itself by effectively inviting the jury to disbelieve witnesses because of pejorative cultural stereotypes. The trial judge failed to correct the resulting unfairness. New trial ordered.
R v SCC, 2022 YKCA 2
An accused’s statement, which was incorrectly admitted into evidence, was used to undermine his credibility in cross-examination. A new trial is required because it cannot be said that the verdict would have been the same had the error not been made. See also: R v Meeko, 2021 NUCA 8 where the proviso could not be applied to an accused’s inculpatory statement that was improperly admitted for the truth of its content.
R v DM, 2022 ABCA 47
The dissenting justice, a former criminal lawyer, finds the "conviction is unsafe" due to a flawed identification process wherein the complainant was presented with a single photo which "became the image of the offender". The majority, composed of former non-criminal lawyers, holds, to paraphrase: ‘no biggie’. The dissenting judgment provides an excellent review of the jurisprudence about the dangers of stranger identification and flawed identification processes.
R v Dillon, 2022 SKCA 17
The victim impacts statements in this case - from the RCMP no less - were improper because they criticized the accused (“cowards”), advocated for harsher sentences, and added to the agreed facts. Crown and judges have duty edit and disregard.
R v Zakos, 2022 ONCA 121
In the absence of reasonable suspicion, an undercover police officer who asks a target “whether [he] had cocaine to sell” (“U good for powder”) is “not [providing] an opportunity to traffic cocaine”. Thus, no entrapment here. Clearly, the law continues to ‘struggle to articulate’ the distinction "between presenting an individual with an opportunity to commit an offence, and merely taking a step in investigating criminal activity": R v Ghotra, 2020 ONCA 373 affirmed by 2021 SCC 12. In my view, it seems that the "criminal spark" in Zakos came from the undercover officer…
R v Whitehead, 2022 SKCA 19
First degree murder conviction overturned due to the improperly admitted generic propensity (or “similar fact”) evidence - a close-in-time stabbing assault against a different victim- which was not at all probative of whether stabbing of the deceased in the case at bar was planned and deliberated
R v Savory, 2022 ONCA 132
While the trial judge “may not agree” with the jury’s verdict, “would have done something different” and was thus “sympathetic” to convicted accused, the verdict was not therefore unreasonable. Among other things, 2.48 kg of cocaine was unlikely to have been left in his unwitting control.
R v Young, 2022 ONCA 153
Leaves for another day whether a failure to tell a client about the possibility of a preliminary inquiry would necessarily result in a miscarriage of justice. Because “the appellant’s commitment to the truth is undetectable”, his claim fails.
R v Charter, 2022 NSCA 18
The decision to not testify due to incorrect advice - that co-accused’s testimony was inadmissible against him - resulted in unfair trial. In allowing the appeal, the court did not have to also determine if, with sound advice, he would have testified and if, having testified, there was reasonable possibility of acquittal.
R v Hjorleifson, 2022 MBCA 22
The trial lawyer making “self-deprecating comments” on appeal about their performance at trial (eg “my understanding of the criminal law is turning out to be mediocre at best”) does not necessarily establish ineffective assistance: see R v Hjorleifson, 2021 MBCA 69
R v Skye View Farms Ltd. et al., 2022 PECA 1
“Are potato fields to become a Charter-free zone”? Incidentally, I stand by my view that if the PEI Court of Appeel should have a full time court, so should the northern territories, courts that deal with many more, and often quite serious, criminal matters.