Cross Country Noteup - March 2022
R v Samaniego, 2022 SCC 9
While trial management powers are to ensure “that trials proceed fairly, effectively, and efficiently” and properly involve “restricting cross-examination that is unduly repetitive, rambling, argumentative, misleading, or irrelevant”, the “power is not a license to exclude otherwise relevant and material evidence in the name of efficiency”. This case, and Paciocco JA’s dissent in the ONCA , is worth reading. Moldaver J. admonishes “the learned dissenting judge” for assuming “the role of trial counsel, formulating questions that counsel could have asked, identifying the legal basis for them, and making arguments that counsel could have made to show that they were permissible”. I summarized the ONCA decision some time ago.
R v White, 2022 SCC 7
The mere failure to get informed instructions on election of mode of trial is not enough for a new trial on ineffective assistance grounds. “In most cases" the accused must show that he would have "chosen differently" had he been properly informed.
R v Ghraizi, 2022 ABCA 96
The Crown must mitigate delay from exceptional circumstances, including from the COVID-19 pandemic. A “sense of defeatism” - that nothing needs to be done to mitigate delay if first trial date was within presumptive ceiling - is incongruous with Jordan.
R v M-M, 2022 ABQB 197
Summary conviction appeal is outlier in Canada in upholding 90-day mandatory minimum sentence under s. 151(b) largely on basis of Friesen and the “possibility” of serving sentence intermittently. What about remote communities? For my more detailed commentary about this case, see: Wrongly Decided: the “possibility" of weekend jail is not a valid basis to uphold a mandatory minimum sentence.
R v JB, 2022 ONCA 214
In assessing credibility there is nothing wrong with the judge “merely noting” that exaggeration - a factor tending to diminish credibility - was absent from the witness’ testimony. Its absence, however, cannot be used to enhance credibility.
R v Aragon, 2022 ONCA 244
At paras 37-40, Paciocco JA lists examples of the type of evidence that may be appropriate in pre-trial hearings, noting that it is “not only common, but preferable in the interests of efficiency, to conduct admissibility voir dires based on information that would not be admissible during the trial proper”. However, when seeking to establish that extrinsic discreditable conduct even occurred, “[t]he formal presentation of admissible evidence is optimal” because its probative value will depend on whether it is “reasonably capable of belief”.
R v Thalheimer, 2022 SKCA 25
Dangerous driving conviction appeal allowed due to misapprehension of evidence. Stating that she had to speculate about where the accused’s “belief” about his rate of speed “came from”, the judge effectively discounted his evidence. Yet, the accused’s “belief” about his rate of speed was grounded in his testimony - it came from his memory and general habit of driving that road (“It is not unusual to draw an inference that a person has acted in a certain way based on evidence of their regular or invariable practice”.) Tragic case.
R v Niederhumer, 2022 BCCA 88
If available, a conditional sentence is not appropriate for a street-level fentanyl dealer with a related record, history of non-compliance with court orders, and a demonstrated lack of insight into offending (ie. expressing the opinion that selling drugs is non-criminal). There was a “real risk” of re-offending and no “substantial likelihood” of rehabilitation
R v Henry, 2022 ONCA 191
Frequently interrupting counsel during submissions is to be avoided and may “rise to the very high level required” for bias, but in this case the judge was just “having some difficulty accepting the points that counsel was trying to make”. Been there…
R v Whiskeyjack, 2022 ABCA 76
First degree murder conviction overturned in twenty-one paragraphs. While a jury should be told that an accused’s testimony incriminating a co-accused should be treated with caution in considering the case against the co-accused (because the accused may be falsely implicating his co-accused to escape liability himself), the jury should also be told that this caution does not apply when considering the case against the accused who gave that testimony.
R v Davies, 2022 BCCA 103
Fresh evidence issues on appeal involving s. 276 evidence must be capable of admission under s. 278.93, will be adjudicated in camera, and will require proper notice and detailed particulars. The complainant, however, will not have standing to appear and make submissions.