Canadian Criminal Appeals - Week of August 31, 2020

Cases:

In R v Roth, 2020 BCCA 240 the BCCA (per DeWitt‑Van Oosten JA) allowed the sexual assault conviction appeal on account of errors in the assessment of credibility, including the uneven scrutiny of testimonial accounts (46-55). In short, the trial judge failed to address several important external inconsistencies in the complainant’s account, in of itself likely a reversible error but further aggravated by not giving the appellant’s account the same pass (99-128, 139-149). The court also found that the trial judge improperly discounted the appellant’s evidence on the basis of a speculative assumption “about his physical stamina arising from his training as a powerlifter” (67-73) and as result of an improper cross-examination wherein the appellant was asked to “explain the evidence provided by others, or that he comment on the veracity of their testimony” (79-89). Importantly, the BCCA observed that a failure to report a sexual assault “may carry the potential for impermissible reasoning [but] it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole…”, endorsing Lisa Dufraimont’s commentary (from the must-read “Myth, Inference and Evidence in Sexual Assault Trials”) that “[r]epudiating myths and stereotypes means rejecting certain discriminatory lines of reasoning, but it does not make whole categories of evidence irrelevant or inadmissible…” (129-138). While “it is prohibitory for judges to assess a complainant’s conduct based on what one would “expect” to see from a sexual assault victim, or to allow that expectation to inform the reasoning process”, it is not improper to objectively assess “a complainant’s conduct in the context of the particular facts of a case…even where that conduct may involve the complainant’s reaction to an alleged sexual assault” (135-136).

In R v Lis, 2020 ONCA 551, the ONCA (per Watt JA) allowed the Crown’s sentence appeal in the very sad case of K.L., a 9-year old girl afflicted by cerebral palsy who died as a result of malnutrition and dehydration “because her mother – the respondent – failed to obtain the medical assistance K.L. so desperately needed” (5). The effective 17-month sentence imposed by the sentence judge was demonstrably unfit; a 3.5 year sentence would have been fit (100). The sentencing judge erred by failing to give “primary consideration” to denunciation and deterrence given that this was an offence which involved the abuse of a child; “s. 718.01 means that it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence” (53). The sentencing judge also “erred in considering the failures of the CAS as a [mitigating] factor in determining a fit sentence”; that the CAS allegedly failed “to live up to its mandate is beside the point”, unrelated to the respondent’s responsibility (indeed duty under s. 215 of the Code) and her moral blameworthiness (72-74). The sentencing judge also failed to consider the recent increase in the maximum punishment under s. 215 “as an indication that higher punishments were required” and had mis-characterized the gravity of the offence as “a momentary lapse under a confluence of unfortunate life event” (83, 86, 99).

In R v McFarlane, 2020 ONCA 548 (per Miller JA) the key Crown witness, TW, testified that the appellants had coordinated her importation of 1.4 kilograms of cocaine. Just prior to her own sentencing in 2013 - in which she received a conditional sentence (ie prior to it being statutorily precluded and then struck down in Sharma) - she “identified [two of the appellants] from photo line-ups as the people who drove her to the airport, following failed identifications several months prior, before her trial had started” (3, 21-22, 57). There was “no police evidence in the record” about how this line-up had been conducted although she testified that the police reportedly told her that “the judge would know…that she helped the police” (23) Yikes, right? The ONCA allowed the appeals on the basis that the trial judge’s inadequate Vetrovec charge “generated confusion about whether [TW’s] motive to cooperate with the authorities was or was not a factor in weighing her credibility” and thereby “distracted the jury from considering one of the main reasons why [TW’s] evidence was subject to special scrutiny” (65). The ONCA also found that the trial judge’s charge on eyewitness identification “was deficient in that it relied on boilerplate from specimen jury instructions, raising a number of irrelevant factors and failing to give due prominence to others that directly affected the reliability of [TW’s] evidence” (80-88).

Ryan Clements