Cross Country Noteup - August 2022

R v Ellis, 2022 BCCA 278: observes that crime which has a specific impact on Indigenous communities should inform sentencing, including through probationary terms restricting community access. Receiving such community impact statements supports reconciliation by encouraging a mutually respectful relationship between the criminal justice system and Indigenous peoples. Provides yet another reminder that sentencing judges do not need to find “exceptional circumstances” to depart downward from the “sentencing range of 18–36 months’ imprisonment for first-time offenders who sell fentanyl at the street-level”. Relying on R v Morris, 2021 ONCA 680 and R v Anderson, 2021 NSCA 62, adopts a generous approach to receiving objective and balanced “social context evidence” to assist sentencing judges in understanding the specific circumstances that may have impacted “behavioural choices”.

R v Doak, 2022 NBCA 48: the 11(b) clock starts from when Information is sworn, here 23 Dec/20, not from when it "ought to have been". This is so even if the accused had been arrested on 23 Apr/19 and, initially, subject to court process. Rejects the nuanced approach from R v Luoma, 2016 ONCJ 670 per Schreck J. (as he then was), an expert criminal law jurist.  

R v Badu, 2022 ABCA 267: where, pending execution of a search warrant, a detainee is unreasonably denied access to counsel for a long time - in this case 7 hours - “without any explanation or communication”, the impact on Charter-protected interest is significant and the application judge erred in holding otherwise.

R v Mazhari-Ravesh, 2022 MBCA 63: counsel may provide a recommendation about whether an accused should testify, but this is not generally required. Counsel, however, is required to give advice about the dis/advantages of testifying so that the accused can make a reasoned decision.

R v Love, 2022 ABCA 269: the court, in obiter, questions the "automatic excision rule" - requiring the removal of improperly obtained information from search warrants - as “out of step with the flexible and contextual approach” under s 24(1) and (2) of the Charter. The court, not in obiter, holds that the "automatic excision rule" does not apply to warrantless arrests.

R v McNeil, 2022 NSCA 55: in judge alone trials there is no need to make a preliminary ruling on whether there is an air of reality for a potential defence. While perhaps helpful to parties - because it might reduce the number of issues to be addressed in closing arguments - it is generally not required.

R v Bhadresa, 2022 ONSC 4691: the trial judge erred in using after-the-fact emotional state of complainant (upset because of assault) as decisively corroborative of her incriminating account when evidence was “equally consistent” with her non-incriminating account (upset because of heated argument).

R v McDonald, 2022 ONCA 574: where a victim of ongoing domestic abuse has been effectively tethered to the perpetrator of the abuse by virtue of a joint indictment, the failure of counsel to explore severance is a fundamental deficiency undermining trial fairness. 

R v Sagos, 2022 ONCA 603: where ineffective assistance claim is predicated on disputed facts and the appellant could reasonably be expected to have information relevant to those facts, the failure to adduce evidence invites an adverse inference against the validity of the claim. 

R v CB, 2022 ONCA 572: declines to resolve uncertainty with respect to third party records under 278.5, namely, whether the judge can consider the availability of other evidence under "likely relevant" precondition. In dismissing the application, the judge had held that evidence of animus could come from sources other than the third party record, a diary in this case. 

R v RO, 2022 BCCA 270: while a judge's reasons should grapple with  “crucial evidence" bearing on credibility, sometimes, as here, the failure to do so will not undermine the judge’s credibility assessment because the record - in this case “colloquy with counsel” - shows that the judge was engaged with the issues.

R v Burgess, 2022 ONCA 577: finding co-conspirator exception inapplicable, the judge nevertheless seemed to use that inadmissible hearsay in negatively assessing the accused’s credibility.  The failure to self-instruct on this complex issue raises concerns he was not “alive" to it, and the correct application of the law cannot be presumed.

R v Wise, 2022 ONCA 586: during the inquiry into a juror, who created a “toxic environment" by threatening other jurors, the judge inadvertently elicited that the bully-juror wanted to convict, violating jury secrecy. But the judge did not err in dismissing the Crown’s mistrial app and discharging the bully-juror. 

R v Kelly, 2022 NBCA 46: the Crown made reasonable efforts to mitigate against the delay caused by an investigator's ongoing illness - an exceptional circumstance - including by eventually commencing the trial without his assistance and tendering documents without him.

R v Boily, 2022 ONCA 611: Parliament made a "drafting error" by not including a driving prohibition as an available punishment for criminal negligence causing death even when it involves a motor vehicle. And Parliament, not the Courts, must correct this oversight.

R v Walton, 2022 ABCA 276: unruly private investigators did not have subjective expectation of privacy (ie. standing) in text messages sent to subcontractors (current and former cops), one of whom gave them to the police. Without evidence that they considered texts private, this could not be assumed.

R v Murphy, 2022 ONCA 615: due to scientific advances in treatment and our understanding of transmission, there will be circumstances, as here, where there is no realistic possibility of HIV transmission even in the absence of condom use. Decade-old conviction overturned.

R v Sparks-MacKinnon, 2022 ONCA 617: the judge “considered all the relevant considerations, including the [accused’s] responsibility for having put himself in the situation that required him to defend himself” (by shooting and killing an individual in downtown Toronto whom he testified had first pointed a gun at him and used threatening words). Under the new self-defence regime “aggressive, unlawful, or provocative conduct remains highly probative and can support a finding of unreasonableness” but it is open to a trier of fact to find otherwise, as here.