Cross Country Noteup - February 2023
R v SS, 2023 ONCA 130: the back of an ambulance is not a "Charter-free zone". A young person, injured in a car accident, had a reasonable expectation of privacy in his conversation with an attending paramedic that was for the purpose of receiving medical attention - and which was, unknown to him, overheard by police.
R v Myles, 2023 ONCA 90: using the pejorative term “self-serving” to describe an accused's evidence is unhelpful (“does no analytical work”) and is “best avoided" as parties "usually testify in their own self-interest" and the testimony could always be described as such.
R v JLK, 2023 BCCA 87: for applications to allow witnesses to testify remotely by video, courts should not "develop a different and stricter test" for sexual assault or credibility cases. Moreover, the evidentiary foundation for such applications - even if contested - can be satisfied by submissions from counsel, particularly given that many of factors to consider will be a matter of record or obvious from observation.
R v Li, 2023 BCCA 47: the judge erred in relying on the complainant's testimony about her bank records because although they confirmed the date of her massage and supported the identification of the accused as suspect-masseuse, they remained inadmissible hearsay, having not been adduced under Canada Evidence Act.
R v Brar, 2023 ABCA 63: just after saying he was “coming out now” from under a deck, the accused was dragged out by a police dog - on his stomach and with his hands above his head - and then “repeatedly" punched in the face, shattering his orbital bone. The judge failed to fully consider if this force was objectively reasonable, and whether there were other reasonable options open to the police; “it was not at all obvious that the force used was reasonable”
R v RO, 2023 BCCA 65: subject to the then-maximum available sentence, historic sexual offenders should be sentenced according to society’s current view of the gravity of the offence. Section 11(e) of the Charter protects against increased punishment from legislation, not case law.
R v Crier, 2023 ABCA 26: in imposing 18-months of jail on a first-time indigenous offender who pleaded guilty to making threats against his former partner and police, and who had made “genuine efforts towards rehabilitation”, the judge failed to recognize his reduced moral culpability from the strong correlation between his offending and Gladue factors: “restraint ought to have weighed heavily in this matter; yet, the sentence imposed was far from the least restrictive”.
R v Hirsch, 2023 ABCA 59: the youthful first-time offender, who pleaded guilty to two "hit and run" incidents (one of which caused severe injuries to pedestrian), received a “demonstrably unfit” sentence of 19 months jail because the judge failed to account for totality and restraint. Reduced to 15 months.
R v AAK, 2023 MBCA 8: due to defence counsel's unexplained failure to adduce existing reports about accused's "significant" delusional disorder - which played an obvious role in his "profoundly troubling" crimes - the 13-year jail sentence was demonstrably unfit and reduced to 9 years.
R v Cerezo-Brennan, 2023 MBCA 17: from 8 months to 4 years jail, Crown sentence appeal allowed for trafficking in significant amounts of hard drugs, including 3 kg of meth, because the judge is said to have wrongly held that his undisputed mental illnesses - including addiction - “contributed” to his crimes, and otherwise overemphasized his "highly mitigating" rehabilitation.
R v Lauzon, 2023 ABCA 40: the accused, who drove "foolishly and dangerously" away from a road-raging motorist, did not succeed in raising the defence of necessity because he exaggerated the threat from the other motorist, could have sought assistance, and the harm he created was greater than harm he avoided.
R v Johnson, 2023 ONCA 120: the accused's DNA was on a marihuana roach at the scene of the robbery where the victim was shot with the same gun that the accused had previously pleaded guilty to using in a prior crime. Yet the judge held that the DNA and gun evidence were not probative enough to be considered. Acquittal set aside. As noted by Chris Sewrattan: “a judge must consider all evidence when determining what inference to draw from a specific evidentiary item”.
R v Hannan, 2023 NSCA 7: the accused’s claim he did not testify in his defence and implicate another person because of the "so-called code of silence" is not proper basis to show involuntariness and otherwise lacked credibility. After all, the other person had already pleaded guilty; how could the accused’s incriminating testimony make him "any more guilty"?