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Edmonton Criminal Lawyer Ziv > ziv
07 May
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Guilty because I believe you are — A Case of Confirmation Bias

Posted by Rory
in ziv

In R. v. Aslami 2021 ONCA 249 the Ontario Court of Appeal overturned a very serious case: the firebombing of an occupied residence.

The case is important for a number of reasons, including the Court’s affirmation that text messaging evidence must be scrutinized carefully before it is utilized.

For me, the case is important for another key reason; it is a case that typifies confirmation bias.

In short, confirmation bias is the tendency to accept or ignore evidence in order to conform with one’s theories or beliefs.

In this particular case, the decision maker erred when he put weight on certain evidence, specifically, text messages and weak video identification evidence.

It is likely that by the time the judge was required do an overall assessment of the case, he had already made up his mind about the guilt of the accused. You can tell this by the fact that he ignored three key pieces of evidence which were as follows:

  • that the Appellant stole the vehicle involved in the firebombing before he actually had a motive to commit the offence (the Crown’s explanation was maybe it was stolen twice in a 24-hour period) (para 45);
  • that the clothing of the Appellant and the perpetrator did not match (para 38) but this fact was ignored by the judge;
  • that the Appellant’s es-wife identified the Appellant by how he moved in the CCTV footage she observed. The problem with this evidence was that this is not what the ex-wife said (para 41).

This case, for me, is a classic confirmation bias case. There were key pieces of evidence that needed to be explained, analyzed and seriously considered. They were not because, at least by me estimation, the judge fell into confirmation bias reasoning.

Perfection is not the purview of human judges.

20 April
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Rory Ziv: Top 3 DUI Lawyers in Edmonton, AB

Posted by pantelis
in dui, Impaired Driving, lawyer, ziv
Rory Ziv Top Dui Lawyer

This year, Rory Ziv has been selected as one of the top 3 DUI lawyers in Edmonton Alberta by Three Best Rated® (CANADA). He is proud and extremely honoured to have been selected as one the top 3 local DUI lawyers in Edmonton because, for decades, Rory Ziv has been diligently representing individuals from all walks of life who have been facing DUI charges. 

An Impartial Evaluation

This ward is a true honour because Three Best Rated® (CANADA) aims to find the top 3 local DUI lawyers by conducting thorough checks and reviews of prospective candidates. They conduct a 50-Point Inspection which includes business’s reviews, history, complaints, ratings, nearness, satisfaction, trust, cost, general excellence, and reputation. Most importantly those awarded do not pay Three Best Rated® to list them. The award-winners are listed for free because as they say “…if you can pay to list, then is it really the best business? No Pay to Play!”

Best Dui lawyers in Edmonton

Rory Ziv is excited to be among the Top 3 local DUI lawyers in Edmonton since the years of hard work he has spent defending individuals charged with impaired driving offences have been recognized not only by his clients but also but an impartial third party. 

What Makes Rory Ziv The Right Choice For You

As the founding and managing partner of Ziv Law Group, Rory Ziv is a highly sought-after DUI and criminal trial attorney. He is well-known for his extensive preparation, attention to detail and considerable knowledge of the provincial and federal criminal code. However, what characterizes Rory Ziv as a top DUI and criminal lawyer is his relentless, unshakeable and passionate advocacy on behalf of his clients.

Rory Ziv has always known that being charged with DUI can be intimidating, that is why he carefully assesses the case against his clients and works with them to obtain the best possible result available, whether that is a withdrawal of the charge, a reduction at sentencing or even a full acquittal at trial.

If you are ever charged with DUI or any other criminal offence, it is important to call our office as soon as possible at 780-686-7948 because you deserve the best defence possible!

30 July
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Hearsay Evidence and Inadmissibility

Posted by Rory
in admissability, criminal lawyer edmonton, expert evidence, hearsay, lawyer edmonton, Uncategorized, ziv

R v Threefingers, 2016 ABCA 225 is a good case on the inadmissibility of Hearsay evidence. This case illustrates the difficulty courts have in admitting hearsay evidence if it does not meet the requirements under the Modern Principled Regime. Live questions of reliability will always give the accused a fighting chance in criminal proceedings.

Background

This is a sexual assault involving a complainant with the mental age of 14 years. After the alleged sexual assault, the complainant made a video-taped statement recounting the details of the sexual assault. The trial judge admitted the video-taped statement for the truth of its contents even though there were serious question marks about the reliability of the statement. The trial judge also admitted expert evidence where there were serious question marks over the credentials of the expert.

Analysis

The Court of Appeal notes that hearsay admissibility is a question of law reviewable on a standard of correctness. For the video-taped statement, the Court finds that while necessity was not an issue, the statement failed to meet threshold reliability, noting that

A)    Procedural reliability was absent because the Complainant did not remember the videotaped statement or the alleged incident

B)    Substantive reliability was absent because of a number of factors

i.                 There was no oath or caution given to the Complainant

ii.               The Complainant did not wish to be at the police station, there was an indication that her mother was directing her statement including giving evidence at some points, the Complainant was high both at the time of the incident and during the statement;

iii.              The Complainant suffered from a mental disorder and a problematic perception of reality, and many things described by the complainant were not backed by the evidence

The Court of Appeal also finds that the Expert Evidence was admitted in error, because of the inappropriate credentials of the expert.

The Court quashes the conviction and orders a new trial.

 

 

16 July
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Hearsay and Reliability in Sexual Assault Cases

Posted by Rory
in admissability, best lawyer in edmonton, burden of proof, criminal lawyer edmonton, hearsay, lawyer edmonton, reliability, ziv

R. v. B.P.  [2016] O.J. No. 3550 2016 ONSC 4244: Reliability

This is a case which addresses addresses issues of hearsay and reliability  in a sexual assault scenario.

Background

In this case the 9 year victim suffered from a “number of disabilities, including autism, anxiety disorder, seizure disorder and a syndrome known as Prader-Willi, which affects his hypothalamus.” The victim did not recall the incident in question, and his mother lead hearsay evidence against the accused, testifying that her son had told him of the alleged incident.

Analysis

The Ontario Superior Court of Justice found that the Trial Judge improperly admitted hearsay evidence in this case. There were problems with both procedural reliability and substantive reliability. The victim was not available for cross-examination, and the statement was not recorded in any way. As well, the surrounding circumstances indicated that there was a degree of unreliability about the statement.

The victim was suggestible and unreliable. As well, the victim’s mother was unreliable and her lack of credibility affected the reliability of the hearsay statement. The trial judge did not consider these important aspects regarding the hearsay statement, and improperly admitted it.

The Court also finds that the trial judge improperly accepted the evidence of the complainant and rejected that of the accused, shifting the burden of proof, and committing a basic error.

16 July
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Eyewitness Identification

Posted by Rory
in best lawyer in edmonton, criminal lawyer edmonton, Eyewitness Identification, Jury instruction, lawyer, lawyer edmonton, Murder, ziv

R. v. Bailey, 2016 ONCA 516, is an interesting case from the Ontario Court of Appeal on the perils of Eyewitness Identification.

Background

Bailey was charged with first degree murder during an attempted robbery. The mother of his victim identified him in court 2 ½ years after the alleged incident. Moreover, there was suggestion that the identification was improper because at other points in the criminal proceedings, most notably in the preliminary inquiry, the mother had testified that she was unable to identify the offender. The case involves an appeal of a conviction from the jury at trial, on the primary ground that the trial judge’s instruction on Eyewitness Identification was misdirection resulting in reversible error.

Analysis

The Ontario Court of Appeal finds in favour of the Appellant. The Court finds that it is not enough that a trial judge give model instructions regarding Eyewitness Identification. Instead, the instructions must be tailor made to reflect the particular situation before the jury. In this case, the Court found that it was not enough that the Judge urged the jury to give the Eyewitness Identification little weight and warned that it would be dangerous to rely on the Eyewitness Identification.

Instead, the Court ruled that in this case, the trial judge should have warned of specific dangers of the Eyewitness Identification evidence. These included the temporal gap in the original incident and the in court identification, earlier testimony by the victim’s mother that she was unable to identify the assailants, as well as the questionable nature of her claim that she was able to identify the appellant because she recognized his forehead.

There were other grounds of appeal in this case that the Court did not significantly address. On the question of whether the jury instruction regarding the “Jailhouse Informant” or the Vetrovec Instruction was proper, the Court reserves its verdict, finding it unnecessary to decide the appeal on this ground. Rather bizarrely, the Court goes on to suggest that the instruction was proper, and if anything if the instruction had been more “proper”, i.e. if the specific circumstances of the witness had been mentioned in this particular case it would have become clear that the dangers typically associated with jailhouse informants were less at play here, the jury would have been more likely to find against the Appellant.

This raises the question of whether the Court is suggesting that in situations unfavourable to the accused, instructions given to the jury regarding witness testimony may not need to be as context driven as in situations unfavourable to the accused.

On the Appellant’s suggestion that Crown Counsel’s closing comment, whereby it was pointed out that the Appellant did not introduce testimony from his friends or family for the purposes of alibi, had the effect of shifting the burden of proof and was improper, the Court notes that it does not think the comment was improper, and if it was it was significantly tempered by the Trial judge’s suggestion that the burden of proof rested at all times with the Crown.