Category Archives: Criminal

When Should Judicial Discretion Trump Expert Testimony?

By: Erin Sheley

PDF Version: When Should Judicial Discretion Trump Expert Testimony?

Case Commented On: R v Clark, 2016 ABCA 72 (CanLII)

In Regina v Clark the Alberta Court of Appeal reinforced the principle that trial courts should enjoy broad discretion in making evidentiary decisions. On the other side of the scale in this particular case was the great problem of ensuring the accuracy of witness identifications when they are the primary basis for conviction. In the United States at least, 70% of exonerations obtained through DNA evidence occurred in cases involving eyewitness misidentifications (see data collected by the Innocence Project, available here).

Clark involved a trial by judge of a bank robbery case. During the crime the suspect had partially obscured his face with a hood and a hat pulled down over most of his features (at paras 3-4). At trial, the Crown relied on the testimony of three eyewitnesses, and in particular that of one woman who had stood about 5-6 feet away from him at the bank counter and glanced at him several times during the robbery at para 54). Several other witnesses identified a photograph of the robber taken from the security camera as an individual who went by the street name “Lips,” a name by which the accused had identified himself to a police officer prior to the robbery (at para 51).

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Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform

By: Joshua Sealy-Harrington

PDF Version: Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform

Case Commented On: R v Ghomeshi, 2016 ONCJ 155

On March 24, 2016, Justice Horkins of the Ontario Court of Justice acquitted Jian Ghomeshi of five criminal charges: four counts of sexual assault and one count of overcoming resistance to sexual assault by choking. The judgment, like the original controversy surrounding his CBC dismissal and related sexual assault allegations, has polarized Canadian discourse on sexual assault – with reviews of Justice Horkins’ reasons ranging from a “total masterclass in misogynist, arrogant windbaggery” to a “masterful job of analyzing the evidence, identifying the weaknesses in the prosecution’s case and coming to the right decision.”

It is undeniable that the Canadian administration of sexual assault law must be improved. But, in pursuing that improvement, it is critical to isolate where this administration truly fails, and how best to address those failures in a manner that properly balances the interests of the accused and victims of sexual assault. The Ghomeshi judgment, which contains both strengths and weaknesses, provides a unique opportunity to deconstruct our administration of sexual assault laws, note its flaws (and strengths), and begin developing a constructive strategy moving forward. This balanced approach is most likely to manifest in targeted reforms that will actually enhance the administration of justice and provide greater protection and support to victims of sexual assault.

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What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections

By: Alice Woolley

PDF Version: What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections

Case Commented On: R v Ghomeshi, 2016 ONCJ 155

The Ghomeshi trial made me think about the ethical duties of prosecutors in sexual assault cases. Not because I have any basis for saying that the prosecutors violated their ethical duties. I have no personal knowledge of what the prosecutors did or did not do in their preparation and presentation of the Ghomeshi case. I also do not know either the pressures they faced or the policies that governed their decisions.

Rather, I have thought about the ethical duties of prosecutors because of claims made by people in response to criticisms of the Ghomeshi prosecutors. Specifically, I have heard the following:

  • The prosecutor simply takes the case the police provide: “You do the best you can with the evidence you’re given” (Laura Fraser, “Jian Ghomeshi trial questions answered by criminal lawyers” CBC February 12, 2016, here).
  • The prosecutor should not prepare witnesses. Otherwise, the prosecutor risks becoming a witness due to his disclosure obligations pursuant to R v Stinchcombe, [1991] 3 SCR 326: “Crown interference, even through so-called preparation, can result in a Crown Attorney becoming a witness to the own proceeding or worse still a stay of proceeding for an abuse of process” (Sean Robichaud, “In Defence of the Crown in Ghomeshi”, here).
  • The prosecutor represents the public, not the complainants, and owes the complainants no obligation in his role as prosecutor.

(See also here and here)

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R v LSM and the “Sanctity” of the Joint Submission

By: Lisa Silver

PDF Version: R v LSM and the “Sanctity” of the Joint Submission

Case Commented On: R v LSM, 2016 ABQB 112

In R v LSM, 2016 ABQB 112, Associate Chief Justice Rooke of the Court of Queen’s Bench of Alberta, sitting as a summary conviction appeal court, considers the “sanctity” of the joint submission and the circumstances in which the subsequent sentence will be varied on appeal. In his view “an appeal of a joint submission should rarely succeed” (at para 20). He supports this position by outlining three very narrow exceptions to this rule. After a thorough analysis of the principles, Associate Chief Justice Rooke reluctantly allows the appeal in part. He does so by finding only one ground of appeal, the ground presented on consent, falls within an exception. The decision, on its face, appears to be a straightforward application of the principles at hand. Yet, on further contemplation, this decision may not be about the “sanctity” of a joint submission but rather about ensuring that, in the end, justice is done.

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Reflections on Week One of the Ghomeshi Trial

By: Jennifer Koshan

PDF Version: Reflections on Week One of the Ghomeshi Trial

I posted on ABlawg last Monday on the legal consequences of choking in the sexual assault context, which I suggested would be a likely issue in the Jian Ghomeshi trial. The testimony at the first week of the trial indicates that the question of whether one can legally consent to sexual activity involving choking is less likely to be the focus than whether the sexual assaults actually occurred and / or whether there was consent to the sexual activity in fact. Much ink has been spilled on the scope of the cross-examinations of the two complainants (so far) by defence counsel Marie Henein and the consequences of her tactics for the rights of sexual assault victims and their willingness to come forward. I want to add my two cents worth by focusing on the scope of the rape shield provisions, the relevance of the relationship between the complainants and the accused, and the possibility of expert evidence in this trial.

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