Noted in passing …

Three recent decisions:

Of narrow interest is R v Quesnelle, 2014 SCC 46 (9 July 2014) on when a defendant can have copies of reports, recorded by the police, of a complainant’s allegation of other offending. At issue was the construction of the Criminal Code, ss 278.1 to 278.91.

Slightly more interesting is R v Sipos, 2014 SCC 47 (10 July 2014) on when an appellate court should receive fresh evidence if it finds error of law, or unreasonableness, in the decision of the court below. Further, recognising that there can be a greater role for fresh evidence when the issue is unreasonableness, the appellate court may nevertheless conclude that even if the errors were corrected, or the fresh evidence were to be taken into account, the decision of the court below should be upheld. The context of this appeal was a sentencing determination of the defendant’s dangerousness, Criminal Code ss 753, 759.

And also of interest – at least for its quirky facts – is the ‘apparent bias’ case of the Judicial Committee, Yiacoub v R [2014] UKPC 22 (10 July 2014), holding that a judge whose decision is to be appealed may not take part in the selection of the appellate bench:

“[15] The difference in the present case is that the Presiding Judge found himself not simply appointing a judge to deal with a matter of general concern, but nominating a judge to hear an appeal from himself. The Board is satisfied that that carries an appearance of lack of independence and impartiality in relation to the process, viewed as a whole, which would impact on an objective informed observer. It is not difficult to imagine circumstances, under other regimes, in which such a process could be open to abuse of the kind not suggested here to have occurred in fact. The objective observer would, as it seems to the Board, say of such a process ‘That surely cannot be right’.”

Here, those gender pronouns are appropriate because the reference is specifically to a male judge, but it is an interesting – or moderately interesting – and not a particularly easy exercise to rework that first sentence into gender-neutral English. You may need to resort to more than one sentence, for example (and I’m not suggesting this is the best way of doing it):

“The difference in the present case is that the Presiding Judge was not simply appointing a judge to deal with a matter of general concern. Rather, the appointed judge was to hear an appeal from the Presiding Judge’s own decision.”

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