Cross Country Noteup - July 2022

R v Lafrance, 2022 SCC 32: Majority (5:4) recognizes that allowing police to, for example, lie about false evidence should be counterbalanced with ensuring that detainees, through the right to counsel, are equipped with “strategies to resist cooperation”. 10(b) is more than just “keep your mouth shut; press one to repeat this message”. In my view, this decision should be significant for inexperienced accused, often northern and indigenous, who rely on state underfunded “free lawyer” call centres where basic advice is dispensed in a few short minutes but who may be unprepared for sophisticated police strategies - including lying - to get them to talk. 

Majority (5:4) also says that if it looks and feels overwhelmingly like a detention from a reasonable perspective of a young, racialized singled-out suspect, it is likely so, even if police tell him that he is free to go. That is but one factor to consider. See also R v Scopel-Cessel, 2022 ONCA 316: if 8 officers execute a pre-dawn search warrant at home in winter, the elderly PJ-clad residents, who are the subject of focussed investigation and asked incriminating questions, are likely detained even if told otherwise. 

R v Ranhotra, 2022 ONCA 548: falls within the line of cases where the police respond to a medical emergency call from the accused, secure the scene by physically directing him away from the injured person, and ask him what happened. No detention, even if the police didn’t think he was free to go. 

R v Ally, 2022 ONCA 558: ineffective assistance of counsel by inexplicably calling defence witness whose expert report provided “damning” evidence of guilt on the central issue of planning and deliberation to first degree murder yet only slightly probative evidence on minor issue that could have likely been adduced by other means. 

R v Wilde, 2022 SKCA 74: facing serious charges turning on credibility, the judge’s unhelpful and misleading interventions during the self-represented accused’s cross-examination of a key witness had a “chilling effect” on his ability to “draw out inconsistencies”.

R v Chow, 2022 ONCA 555: Airbnb host did not have objectively reasonable expectation of privacy when Airbnb guest, during stay, invited the police into the apartment to investigate a crime that may have been committed against him in the unit; here, voyeurism, with hidden camera facing the bed.

Gibson (Re), 2022 ONCA 527: the review board “did not take seriously” that the “significant threat” standard “is an onerous one”, failed to consider relevant evidence supporting release, and ultimately held the NCR offender on the basis of “rote themes”, including “limited insight”, that “this court has questioned and rejected on several occasions”.

R v Polusmiak, 2022 PECA 8: scathing reproach of police for ignoring “the obvious” - that accused had difficulty understanding English and the right to counsel - and for detaining her with nonsensical “blanket policy” for ASD refusals. “Magnum PEI” must adapt to "changing demographics": it is no longer an “exotic occurrence” on the island to hear a language other than English or French spoken. 

R v Abdullah, 2022 ONSC 4119: upheld on appeal the trial judge’s finding that the ASD demand was made without reasonable suspicion, and the remedy of exclusion. Even if the second and third Grant factors “incline towards inclusion”, their cumulative weight can be outweighed by the first factor. Pro tip: do not make a  “broadside” against the trial judge.

R v McKnight, 2022 ABCA 251: aspects of the cross-examination were inappropriate and “beneath the dignity” of the Crown (eg. sarcasm, editorializing, inviting comment on witness veracity and defence strategy, and suggesting that the accused tailored his evidence to disclosure) but, viewed cumulatively and contextually, this did not compromise trial fairness. NB: the same Crown was later disqualified in R v Boudreau, 2021 ABPC 175 from prosecuting an unrelated matter because he had "conducted himself recklessly or with unacceptable negligence", showing "animus towards the accused" and "inappropriate hostility to the defence counsel". 

R v Josipovic, 2022 ONCA 522: it was “highly improper” for counsel of non-testifying co-accused “to, in effect, give evidence” in jury address without any foundation and which undermined testifying co-accused’s position. The remedial instruction, which “corrected inaccuracies while avoiding unnecessarily singling out counsel”, was sufficient. 

R v Z (MJ), 2022 MBCA 61: highly abusive police interview - including denigrating accused’s sexual orientation (“I would say enjoy jail, but you probably will”), profane name calling (“stereotypical, fucking, liberal bitch…”), and disparaging “slimeball” lawyer - undermined the integrity of the justice system but did not justify a stay of proceedings as the court’s “strong rebuke” was a sufficient remedy. 

R v Graham, 2022 BCCA 252: the sentencing judge erred in imposing 6 months of jail on a first-time, marginalized transgendered offender for trafficking meth by “clothing himself in a judicial straightjacket” and requiring exceptional circumstances as a necessary precondition to depart from range.

R v Major, 2022 SKCA 80: vehicle event data recorder info, otherwise inscrutable without extraction and interpretation by specialized software, is not sufficiently reliable in the absence of  “a properly qualified expert as to how the system accurately records data and creates accurate output”. 

R v JJ, 2022 SCC 28: majority (6:3) upholds records screening law as constitutional while Brown J., in a withering dissent, describes the “ham-fisted” law as “unprecedented and unconstitutional”, resulting in “glaring unfairness” that all but guarantees wrongful convictions.

R v Laprise, 2022 SKCA 77: the judge failed to consider the offender’s testimony on “crucial matters” including his plans to seek out Indigenous-specific programming. Instead, the judge “deferred entirely” to the clinical opinion in imposing an indeterminate sentence.

R v Kirkpatrick, 2022 SCC 33:  Majority (5:4) holds that the “sexual activity” to which the complainant must consent may include the use of condoms. In other words, “conditioning agreement to sexual touching on condom use goes to the heart of the specific physical activity in question and the existence or non-existence of subjective consent, and there is no need to resort to the doctrine of fraud and its stringent legal requirements in this circumstance” (as proposed by the minority, and their reading that R v Hutchinson, 2014 SCC 19 was binding on this point).

R v Sundman, 2022 SCC 31: the victim’s attempt to escape from his unlawful confinement - by jumping from a moving truck and “running for his life when he was executed just moments later” - was “one continuous sequence of events forming a single transaction” and justified a conviction for first degree murder. See R v Ally, 2022 ONCA 558, also decided this month, for a discussion of murder while committing the offence of unlawful confinement.

Law Society of British Columbia v Harding, 2022 BCCA 229: depending on context and delivery,  using humour and sarcasm “to illustrate the weakness of a witness’s evidence or the outrageousness of a position” may be totally unobjectional and, at times, highly effective. Conversely, “mockery and sarcasm will often be poor advocacy because it can come across as insulting and arrogant, turning the listener against the lawyer, and creating sympathy towards the witness being victimized by the lawyer”. In any  event, law societies should be careful not to penalize lawyers “for their in-court statements…where there was a reasonable basis for the statements and they were made in good faith believing them to be within the boundaries of a proper jury address”.