Cross Country Noteup - May 2022
R v Badger, 2022 SCC 20: a 3-2 majority upheld an aggravated assault conviction where victim, in a spontaneous utterance that was not adopted at trial, identified the fully masked assailant. In the court below (2021 SKCA 118), Kalmakoff JA strongly dissented on basis that the fraught identification evidence had not been carefully scrutinized by the trial judge. In my view, the SCC should have sat a larger panel and given their own reasons.
R v Bissonnette, 2022 SCC 23: for even “the vilest of criminals”, those convicted of multiple first-degree murders, should not be “doomed” to “die behind bars” without a realistic possibility of at least applying for parole. The law “must leave a door open for rehabilitation”. This courageous decision is, in Lisa Kerr’s words, about “our own moral code” as Canadians.
R v Kalonji, 2022 ONCA 415: where there are reasonable grounds that the suspect possesses firearms and that the suspect resides at a specific residence, it is reasonable for the Justice issuing the search warrant to infer that the firearms would be at that residence. In the words of George JA, for the Court, “[t]his gives rise to a common sense inference that one or more firearms would be found at his home.”
R v Wood, 2022 MBCA 46: Parliament has signalled that jail sentences for intimate partner violence against indigenous women should increase. Moreover, the gravity of the offence may be increased where the victim is “from an isolated community with few resources that could assist her in escaping the situation”. The Court upheld Justice Martin’s 18-year jail sentence for manslaughter (2021 MBQB 4)
R v Tayo Tompouba, 2022 BCCA 177: a police officer’s notes can be admitted under the principled exception to hearsay. Just because another officer witnessed and memorialized the same incident does not mean that "necessity" is not met for the (more detailed) notes of the unavailable officer (who, in this case, had died).
R v Boland, 2022 NLCA 30: although unaided by expert evidence, the trial judge did not err in drawing incriminating inferences of “consistency” from his comparison of photographs depicting the size and tread of a crime scene boot print with the accused’s boot (with the standard measure of scale in each photograph).
R v Lai, 2022 ONCA 344: the second time this year (see 2022 ONCA 69) the Court allows an appeal because the conviction was based on a theory of liability that was advanced by judge only, and “too suddenly, and too late in the proceedings”.
There were a few decisions this month where new trials were ordered because the trial judges failed to properly apply the “air of reality” test and thereby failed to leave available defences with jury: R v Barrett, 2022 ONCA 355 (provocation); R v Wong, 2022 ABCA 171 (honest but mistaken belief in communicated consent); and R v LaFrance, 2022 ABCA 182 (artistic legitimate purpose).
Persuasiveness and clarify on display in Kasirer J’s decisions for the Court in R v Brown, 2022 SCC 18 (that the s 33.1 prohibition on the defence of extreme self-induced intoxication causing involuntariness is unconstitutional) and R v Sullivan, 2022 SCC 19 (that the ordinary principles of stare decisis apply to s. 52(1) declarations).
R v Satkunananthan, 2022 ONCA 393: allowing the police officer, who was qualified to give expert evidence on aspect of the illicit drug trade, to give his summary opinion that the accused’s possession of narcotics was for purpose of trafficking created a “real risk” that jury would not fully consider the absence of evidence on this issue (dosages and consumption rates).
R v Azzi, 2022 ONCA 366: a trial judge has no authority to stand aside jurors to promote petit jury diversity, including for a “better gender balance”. The trial judge in this case created an appearance of unfairness by replacing two males with females because the sex assault allegations “engages issues of interactions between the genders”.
R v Bunn, 2022 MBCA 34: The Court accepts that many of the principles in Friesen apply to adult sexual assault sentencing but declines to provide quantitative guidance or increase the range/starting point. Like R v Wood, 2022 MBCA 46, discusses the competing sentencing principles when the offender and victim are both Indigenous.
R v Ejetsiak, 2022 NUCA 2: the trial judge’s material misapprehension of the complainant’s testimony – “as to what he actually said, and to whom” about his alleged injuries – played an essential part in judge’s reasoning process. The conviction and 10-year long-term supervision order was overturned.
R v AKB, 2022 ABCA 170: strong dissent by Justice Schutz on the significance of the trial judge’s reliance on racialized in-dock identification (which trial Crown said “should be given little to no weight”) in convicting a youth of a multi-party robbery where the only other evidence came from cross-corroborating unsavoury and inconsistent witnesses. In her words: “[a]s there is a real chance that the appellant was mistakenly identified by [the complainant] merely for “looking black”, appellate intervention is warranted”.
R v Bagheri, 2022 ONCA 357: confirms that, in Ontario at least, it is a material error for a sentencing judge to exceed the Crown position without giving notice and an opportunity for the parties to respond, and without providing clear and cogent reasons. Awaiting SCC in R v Nahanee, 2021 BCCA 13.
R v Desmond-Robinson, 2022 ONCA 369: provides a reminder (like 2022 ABCA 147) that there are no judicially-created presumptions that conditional sentence orders are inappropriate for specific offences, including urban gun crime (or child pornography). The Court substituted a conditional sentence for the young, first-time racialized offender who had taken “very positive rehabilitative steps”.
R v Laming, 2022 ONCA 370: Trotter JA discusses the “dramatic consequences” about being found NCR, the “perpetually documented” lives of such persons, and “why procedural safeguards must be jealously guarded in this context”. Here, the uncontested proceedings were “plagued by deficiencies”.
R v JF, 2022 SCC 17: the defence cannot wait and bring an initial 11(b) motion on a retrial based on delay in the first trial. The 11(b) “clock” restarts at zero, and the presumptive ceiling apply. A court may only consider first‑trial delay in assessing the reasonableness of retrial delay in exceptional circumstances.
R v Achilles, 2022 ONCA 382: the trial judge erred by presuming that a shuriken (or “ninja star”) that was mounted on plaque was a prohibited weapon (ie with “one or more sharp edges”) and by placing an onus on defence to rebut that presumption. “The onus is always on the Crown to prove the essential elements of an offence”.
R v Kinnavanthong, 2022 MBCA 49: in the context of increasing COVID restrictions, the trial judge “properly exercised his discretion” under s 715.23(1) in ordering, against the wishes of the offender, remote video appearances for his dangerous offender proceeding.
R v Moolla, 2022 ONCA 433: despite an “unsatisfactory” and “far from ideal” three-day Zoom trial on serious charges (the accused participated in his trial from a “small stool” in the noisy laundry room where Correctional employees “moved about” and the judge has difficultly hearing and seeing him) the Court was of the view that a “hypothetical reasonable, well-informed observer” would not conclude that “the appearance of the fairness of the trial was so compromised as to result in a miscarriage of justice”. This result seems to be explained by the lack of objection or expressed concern from trial counsel and the efforts of the experienced trial judge (Code J.) to mitigate the difficulties.