Cross Country Noteup - April 2023
R v Haevischer, 2023 SCC 11: a Charter motion can only be summarily dismissed without a hearing where it is “manifestly frivolous” - a "very low bar" - and judges must assume facts alleged are true so long as the applicant can “point towards” evidence that could support those facts.
R v Breault, 2023 SCC 9: the validity of a roadside approved screening device (ASD) demand depends on the police having “immediate access” to the device at time of the demand, unless there are “unusual circumstances” to account for its absence (which does not include “budgetary considerations”).
R v DC, 2023 NSCA 20: credibility assessments based on an accused’s "out-of-box" courtroom demeanour - here, how he listened to the complainant's testimony - are highly problematic: not evidence; "not usually relevant"; and deprived him of opportunity to know and respond to case.
R v Blake, 2023 ONCA 220: wide-ranging ineffective assistance, including "extremely prejudicial", “on the fly" cross-examination of the complainant which elicited that she was aware that the accused was, in effect, known to be a "serial rapist", having alleged to have committed similar assaults on other sex workers. Also, trial counsel’s decision to not bring a race-based challenge for cause where the circumstances warranted it - because he did not want to “play a race card” - showed “a basic misunderstanding of criminal procedure in jury trials” and deprived the accused of “meaningful advice about whether to exercise the right to challenge prospective jurors for cause”
R v Davis, 2023 ONCA 227: the frequency of a certain type of Charter breach in the reported cases across the province can provide a reliable basis for a finding of a systemic problem, particularly when coupled with “an experienced trial judge’s own observations”
R v RW, 2023 ONCA 250: the right to elect or re-elect the mode of trial is of “critical importance”. Here, due to counsel’s “critical misstep” in missing the deadline allowing re-election as of right, and Crown’s “curious”’ intransigence to deny consent, he did not get the trial he wanted.
R v Currado, 2023 ONCA 274: that police force was involved in initial investigation with respect to one of its own officers - here, convicted of unlawfully disseminating confidential informant information and attempting to surreptitiously secure release of inmate - does not, without more, constitute an abuse of process.
R v Androsoff, 2023 SKCA 42: "while the pleading of a “wound” narrowed the scope of the aggravated assault charge itself, it did not affect the legal fact that the infliction of bodily harm is included in a description of an offence of aggravated assault by wounding
R v Yates, 2023 SKCA 47” the lawyer who assisted her client in pleading guilty to the lesser included charge of manslaughter contingent on an agreement with respect to a joint submission on sentence did not commit an ethical violation by later following the client's instructions to repudiate agreement and was wrongly disqualified to act at trial.
R v Biever, 2023 ABCA 138: clearly adopts R v Duncan, 2016 ONCA 754 et al which hold that “particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1)”, noting that evidence, “not bare allegation”, is required.
R v PRJ, 2023 BCCA 169: overturns conditional sentence order in child sex abuse case as “demonstrably unfit” but, unlike R v BM, 2023 ONCA 224 from this month, seems to accept that "exceptional circumstances are not required to justify it". In R v TJH, 2023 YKCA 2, the Court declines to intervene where conditional sentence order has been imposed, and upheld by in summary conviction appeal court, in child sex abuse case.