About Damian Rogers

Damian Rogers is the editor of this blog, ABcrimlaw.

R v Barbour (ABCA): Defence must show due diligence in communicating disclosure problems

By |2017-09-22T22:56:30-06:0028/07/2017|Charter of Rights, Disclosure|

The appellant had been convicted of fraud, arising from a number of mortgage transactions. Relatives of the appellant had applied and been granted a number of mortgages, based upon false information.The trial judge had concluded that the appellant knowingly provided this false information relating to her relatives' mortgage applications to a mortgage agent who then submitted the mortgages for approval to the lender. On appeal (2017ABCA 231), the main argument of the appellant related to whether the Crown had complied with its disclosure obligations. The appellant pointed to one particular document—a draft Information to Obtain—which contained a slightly different statement about the reason that the employment of the mortgage specialist involved in these transactions had been terminated by CIBC. The sworn ITO said that the specialist had been fired because he had violated policy and not done enough checks. The draft also said that the specialist had altered documents. The appellant argued that this draft ITO opened lines of questioning that had not been explored at trial and that the draft ITO had not been properly disclosed by [...]

R v Vallentgoed (ABCA): Crown not required to disclose Intoxilyzer maintenance records

By |2017-09-22T22:53:29-06:0016/11/2016|Breath Testing, Disclosure, Impaired Driving|

The Criminal Code contains evidentiary presumptions relating to the accuracy of evidentiary breath tests. The only path to defend against this presumption is for the accused to raise a reasonable doubt on the issues of whether the instrument was malfunctioning or whether it was operated improperly. The materials which an accused person is entitled to receive from the Crown in order to attempt to raise such a doubt has been the subject of debate in Alberta courts (and elsewhere in Canada) for several years. In January 2013, an Alberta Court of Queen's bench decision on a summary conviction appeal held that maintenance logs for evidentiary breath testing instruments (such as the Intoxilyzer 5000C) must be disclosed by the Crown to an accused person on request: R. v. Kilpatrick, 2013 ABQB 5. The Crown sought leave to appeal the decision of the summary conviction appeal court. Leave was denied, with Justice O'Brien concluding that the evidentiary record from the courts below was not sufficient for the Court of Appeal to properly consider the questions on which the Crown sought leave to [...]

R v Hajar (ABCA): Starting point sentence for “major” sexual interference

By |2017-09-28T23:41:22-06:0003/10/2016|Sexual Assault, Sexual Interference|

In 2008, Canada's Parliament increased the age of sexual consent from 14 years of age to 16 years of age (with a close-in-age exception that allows for non-criminal sexual contact between children and by children with adults who are similar to their age). This change resulted in widely varying sentences for adults that engaged in sexual activity with children between 14 and 15 years old - an age at which they had previously been legally capable of consenting to sexual activity, provided it was outside of exploitative relationships. In R v Hajar (2016 ABCA 222), the Alberta Court of Appeal considered the sentencing considerations that should apply when adults commit the offence of sexual interference with children under 16 years of age, in circumstances where the child was an ostensibly willing participant - circumstances that some courts have previously referred to as "de facto consent". The case establishes a starting point sentence for major sexual interference, such as intercourse, fellatio and cunnilingus. The facts in Hajar can be briefly stated. Mr. Hajar, a 20 year old man at the time of [...]

R v Canto (ABCA): Leave to seek retroactive application of Summers decision on pre-trial custody credit denied

By |2017-09-28T23:44:38-06:0015/01/2016|Pre-Trial Custody, Procedure and Practice, Sentencing, Uncategorized|

In 2009, s. 719(3) of the Criminal Code was amended to state that credit for time spent in pre-trial custody would be capped at a presumptive maximum of 1 day, per day of pre-trial custody. However, under s. 719(3.1), a sentencing court could grant 1.5 days for every day in custody “if the circumstances justify it”. What such circumstances would be was not discussed. Prior to April 2014, a number of courts in Canada had held that the circumstances must be "exceptional" and the loss of eligibility for parole and statutory release was not--in itself--an exceptional circumstance. That changed in April 2014 when the Supreme Court of Canada ruled in R v Summers, 2014 SCC 26 (CanLII) that the loss of eligibility for parole and statutory release was a circumstance that could merit the granting of enhanced credit. After the Summers decision, courts in Alberta began granting 1.5 to 1 credit in most sentencing decisions. Mr. Canto was sentenced in 2012. He did not appeal his sentence at the time and his time to appeal that sentence expired. [...]

R v Bulldog (ABCA): Admissibility of video recordings

By |2017-09-28T23:51:43-06:0001/10/2015|Evidence, Video|

CCTV camera In R v Bulldog, 2015 ABCA 251, the Alberta Court of Appeal provided useful guidance on the evidence necessary to introduce video recordings at trial. The court's reasoning can likely be applied to other pieces of demonstrative evidence, such as audio recordings and photographs. The case concerned an inmate-on-inmate assault which had occurred in an Edmonton correctional institution. More than one copy of a video recording of the  from a CCTV system in the institution had been made. The precise path by which the recording tendered by the Crown in court had been made was unclear to any witness who testified. The Crown did, however, call a witness who had seen the footage at an earlier time and testified that the recording was consistent with what they had earlier viewed. Other witnesses described the assault and their evidence provided details which were consistent with the recording that was tendered (though these eyewitness had not been shown the video). On the appeal, defence counsel argued, based upon R v Nikolovski, 1996 CanLII 158 (SCC), that the recording had not been sufficiently "authenticated". They submitted [...]

R v Paris (ABCA): Lengthy warrant execution window to maximize chance of drug seizure did not make the warrant “anticipatory”

By |2017-09-28T23:52:38-06:0004/02/2015|Charter of Rights, Drugs, Search and Seizure|

A search warrant for a residence was granted under the Controlled Drugs and Substances Act ("CDSA"), section 11. The warrant was to search for cocaine, money, weigh scales and other drug trafficking paraphernalia. The warrant permitted execution over a 48-hour period. In the information to obtain ("ITO") sworn in support of the warrant, the affiant police officer indicated that she believed that the extended period for execution was necessary because drug traffickers' supply of narcotics is variable. The officer stated that she planned to execute the warrant when the information available, including surveillance, suggested the highest probability of a drug seizure (when certain persons and a vehicle were present at the location to be searched). Section 11 of the CDSA requires reasonable grounds to believe that a controlled substance is currently in the place to be searched. Defence counsel argued that the ITO indicated that the officer did not believe that there were controlled substances in the residence when the warrant was authorized and, accordingly, the search warrant ought not to have been issued. Defence counsel characterized the [...]

R v Gibson (ABCA): Two year sentence for impaired driving causing death was inadequate

By |2017-09-28T23:53:27-06:0003/02/2015|Impaired Driving, Sentencing|

In this case, the Court of Appeal upheld the decision of a sentencing judge to reject a joint submission for a two year sentence for an accused convicted of impaired driving causing death and upheld the sentence imposed of two years and eight months; noting, however, that a sentence of no less than four years ought to have been imposed: R v Gibson, 2015 ABCA 41 (CanLII). Gibson had pleaded guilty to impaired driving causing death and impaired driving causing bodily harm. Gibson was driving a large pick-up truck on a highway after visiting friends and consuming alcohol. The highway had one lane of travel in each direction. After he passed two semi tractor-trailers by pulling around them using the oncoming traffic lane, he did not return to his own lane of travel, but continued on the wrong side of the road for some distance. An oncoming vehicle took to the shoulder to avoid a serious collision, but was struck on the side by Gibson's vehicle. A second oncoming vehicle was struck more severely and [...]

R v Fedossenko (ABCA): Production orders can be granted on reasonable suspicion of an offence

By |2017-09-28T23:54:57-06:0005/11/2014|Charter of Rights, Procedure and Practice, Search and Seizure|

NOTE (added Feb. 3, 2015): Amendments to the Criminal Code which take effect on March 9, 2015 contain provisions relating to the issuance of production orders which differ from the provisions of the Code discussed in this case: See Bill C-13: Protecting Canadians from Online Crime Act (2013-2014) Passed October 20, 2014, 41st Parliament, 2nd Session, s. 20. The newly-created "general production order" will not be available on a reasonable suspicion standard, but on the basis of reasonable grounds to believe. The decision discussed below will be of limited use in respect of any production order granted after the amendments take effect. ORIGINAL POST (Nov. 5, 2014): The accused was injured in a single-vehicle collision, then taken to the hospital in an ambulance. A police officer was with him in the ambulance. On the way to the hospital, the police officer was told by the accused that he had consumed "a few beers earlier". No signs of impairment had been noted by an emergency medical technician or other civilian witnesses. There was no smell of alcohol in the ambulance, but the police officer said [...]

R v Redford (ABCA): Service of certificate of analyses is to be proven on a balance of probabilities

By |2017-09-28T23:56:41-06:0029/10/2014|Evidence, Impaired Driving, Procedure and Practice, Standard of Proof|

The Criminal Code requires the Crown, where it seeks to enter a certificate of analyses of breath samples as evidence at trial, to prove that a copy of the certificate was given to the accused along with notice of the Crown's intention to rely upon the analyses: Criminal Code, s. 258(7). Until this decision, R v Redford, 2014 ABCA 336, there were conflicting lines of authority in Alberta as to whether proof of service of the certificate of analyses and the notice of intention to tender that certificate at trial was required to be proven on a balance of probabilities or beyond a reasonable doubt. The three member panel divided on this issue in Redford, delivering majority and minority reasons for judgment reserved. The majority decision was written by Justice Paperny, who held that the Crown's obligation is to prove service of the certificate and notice beyond a balance of probabilities, and not on the more onerous standard of beyond a reasonable doubt. Justice Paperny reasoned as follows: In general, though the ultimate burden of the Crown is to prove [...]

R v Melnyk (ABCA): Application to reconsider starting point sentence for cocaine trafficking denied

By |2017-09-28T23:57:16-06:0026/09/2014|Drugs, Sentencing|

The Crown appealed a 90 day intermittent sentence imposed on Mr. Melnyk for trafficking in cocaine. In response, the defence made an application to re-argue the long-standing starting point set in  R v Maskell, 1981 ABCA 50 (CanLII). That case provides that a penitentiary term is the starting point sentence for commercial trafficking in cocaine on more than a minimal scale. The application for reconsideration was denied: R v Melnyk, 2014 ABCA 313 (CanLII). After reviewing the criteria set out in R v Arcand, 2010 ABCA 363 (CanLII) for reconsideration of a precedent decision, the panel concluded that it was not necessary to reconsider Maskell. Maskell, while an older decision, had been applied in more recent appeal decisions. While the defence had argued that the Maskell decision contained an obvious flaw, in that it did not clearly define what constituted commercial trafficking beyond a minimal scale, the panel concluded that this can be addressed by decisions developing "the indicia of commercial trafficking on more than a minimal scale". It was not necessary to reconsider the starting point decision. Image Credit: UK Home Office. Link. Licence.

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