Canadian Criminal Appeals - Week of August 24, 2020

Cases:

In R v Nerysoo, 2020 NWTCA 8, the NWTCA (per curiam) dismissed the Crown’s manslaughter sentence appeal, aptly describing this “very sad case” as a “pointless altercation between two highly intoxicated cousins who were friends” (27 & 50). In the context of, inter alia, an early guilty plea, genuine remorse, the potential for rehabilitation, Gladue factors and the initial consensual nature of the otherwise spontaneous and brief fist fight in which the respondent “got the advantage and then pummeled his cousin in the head”, the trial judge imposed a 3-year sentence (followed by three years of probation, available given the deduction for pre-sentence custody)(22 & 50). Even assuming that the trial judge erred as the Crown claimed - by misapprehending the gravity of the assault - “this case would not be in the middle or higher levels of gravity for manslaughter” and the sentence imposed, involving “6 years of social control”, was not unfit (51). Indeed, the NWTCA’s lucid and thoughtful judgment reminds us that even if an appellate court finds material error, it “could still find the sentence outcome to be fit” (45). As trial counsel in this matter (2019 NWTSC 51) and having listened with interest to the oral argument on appeal, I would like to give a shout-out to my colleagues (not voted among the “best lawyers” in the #lawtwitter echo chamber but are some of the best in the business): the capable and measured submissions of Crown counsel and the skillful and thorough response of the inestimable Charles Davison.

In R v Wingert, 2020 ABCA 304 the ABCA (per curiam) upheld the trial judge’s decision to admit and critically rely on the appellant’s Mr. Big confession to prove the necessary intent for a conviction of second-degree murder. The Mr. Big operation ultimately yielded a confession during a six-hour road trip; “as a couple of guys sharing hours of windshield time are wont to do, the appellant and the police officer had conversations about many topics” including “about bad things they had done” (5). Noting that the “[t]ongues of miscreants have loosened for different reasons over the generations and often for self-impelled rationales”, the ABCA observed that “this particular Mr. Big operation was comprised of little more than an undercover police officer befriending a suspect and the suspect, freely and voluntarily, describing to that officer what he had done (22-24). While the ABCA acknowledged that the operation involved helping the appellant, who was homeless, with modest “remunerative piece-work from time to time” and with “dealing with his homelessness”, he was not, in their view, “particularly vulnerable” (4, 22, 31). Moreover, there were “no threats made or inducements offered” and “[t]o describe the police investigation as a Mr. Big operation suggests that the investigation was more oppressive and exploitive than it actually was” (4 & 22). As with the trial judge, the ABCA was not convinced that uncorroborated aspects of the confession rendered it inadmissible, concluding (perhaps somewhat problematically) that “[t]he unconfirmed assertions were not markers of unreliability…[t]hey were simply not markers of reliability” (33-37). Undoubtedly important to the ABCA’s overall assessment was that the appellant’s narrative of the act of killing itself “was corroborated by the crime scene evidence” (16 & 32). The ABCA also endorsed the trial judge’s use of after the fact conduct - burning the body - as “probative of intention [for murder] when considered with the evidence about the violent means used to cause death” (49-50).

In R v Liu, 2020 BCCA 235 the BCCA (per Bennett JA) ordered a new trial because the trial judge improperly based his conviction on inadmissible expert testimony. Following the execution of a search warrant, Mr. Liu was found (“among a number of plants”) in the basement of a residence being used as a marihuana grow operation (4-10). A police officer, called as an expert on marihuana production, “initially testified that anyone in the grow operation would be there for a purpose connected to the cultivation of marihuana” (41). Somewhat shockingly, this evidence was apparently called (rather than incidentally elicited or offered) “to prove that anyone found in the grow operation, such as Mr. Liu, had to be there to engage in criminal activity” (41). The trial judge, in turn, relied on this “mistaken anecdotal evidence” to convict the appellant (42). Such ‘found-ins are guilty’ testimony is similar to the ‘blind couriers don’t exist’ testimony in Sekhon; it had no probative value to Mr. Liu’s knowledge and was otherwise highly prejudicial because, among other things, it triggers “a defence need call evidence to refute such opinions” (39-41). See also: R v Sarjoghian, 2020 ONCA 550.

In a post from June I mused about creating a court of appeal for the northern territories composed of a full-time resident justice from each territory. This sparked some interest in the north and you can listen to my recent interview on CBC’s Trailbreaker.

Ryan Clements