Cross Country Noteup - December 2022
R v Mitchell, 2022 NSCA 77: "a mere eight seconds" after the accused shut the door of his home, lawfully declining the invitation to submit to a warrantless arrest, the police kicked it open and dragged him out, "shirtless and barefoot". Police were unaware that their own dash cam recorded the incident. Stay of proceedings - of “32 charges related to allegations of domestic violence” - upheld.
R v Lavallee, 2022 MBCA 100: “antithetical to Gladue”, the sentencing judge wrongly “blamed” the Indigenous female offender - sentenced for refusing to initially respond to a subpoena in a murder trial - for her own misfortune, viewing her circumstances, however constrained by addiction and other systemic factors, as a “lifestyle choice”.
R v Clark: 2022 SCC 49: “substantially" adopts dissent in 2022 SKCA 36 that the eyewitness identification evidence was so flawed, and the in-court identification so worthless, that the judge's failure to specifically and strongly warn the jury to this effect rendered the murder conviction unsafe. During oral hearing (at 38:10), Justice Brown was incredulous with Crown counsel: “this is ridiculous”, “why are you even resisting a new trial”, “I can’t imagine a frailer identification case…”
R v Beaver, 2022 SCC 54: hotly divided on whether police had reasonable grounds to arrest for murder, 5:4 majority readily accepted the police evidence, despite lack of contemporaneous notes, while minority found the same to be “embellished, long-winded, abstract and repetitive". Also, majority held that the “fresh start” analysis - where subsequent Charter‑compliant conduct may render early Charter breaches remote or tenuous - is useful in determining whether impugned evidence was “obtained in a manner” under s. 24(2).
R v RM, 2022 ONCA 850: eliciting evidence that the complainant is more credible because she freely chose to testify and expose herself to the “unpleasant rigours of a criminal trial" is a type of impermissible oath-helping evidence, used solely to establish truthfulness of witness.
R v Furey, 2022 SCC 52: with hearsay, while the necessity requirement may be relaxed where reliability is high, the converse is not true: "the necessity of receiving hearsay evidence is never so great that the...requirement of threshold reliability can be sacrificed".
R v Hanse, 2022 ONCA 843: the trial judge was right to exclude as hearsay evidence from an articling student called by the defence to provide alternative definitions - based on her Google searches - of terms ("snub" and "gas") that Crown expert said related to guns and ammo.
R v Edama, 2022 ABCA 394: a review board cannot detain an NCR accused “simply because it believes that hospital confinement is in the best interests of the accused, or most conducive to his health care or treatment plan”. Convenience is not the test.
R v Carver, 2022 PECA 13: Mr. Carver - "a difficult man" with strongly-held opinions that might be described as "pseudo-intellectual drivel" - was reasonably found to have caused a criminal disturbance (by shouting and swearing) after being refused entry into the courthouse without a mask.
R v Caribou, 2022 MBCA 95: harsh pre-trial custody conditions experienced by an offender due to "the restrictions imposed during the COVID-19 pandemic and for contracting COVID-19 himself" can qualify as a collateral consequence to temper the sentence.
R v Osborne, 2022 MBCA 96: sentence appeal allowed because the judge relied on aggravating fact - that accused was “ringleader" of group assault - which, while not inconsistent with the jury's verdict, was not essential to its verdict nor sufficiently proven beyond a reasonable doubt.
John Howard Society of Saskatchewan v Saskatchewan, 2022 SKCA 144: while inmate discipline regime imposes liberty-infringing sanctions, it is administrative, not criminal, in nature. Somewhat akin to professional discipline, the Charter does not require that such matters be proven beyond a reasonable doubt.
R v Stevikova, 2022 BCSC 2094: the sentencing judge, "in an attempt to strongly denounce the conduct” (feeding black bears from Whistler property) erred in rejecting joint submission. She also erred by taking judicial notice - from her own viewing of municipal signage - that “a fed bear is a dead bear".