About Damian Rogers

Damian Rogers is the editor of this blog, ABcrimlaw.

R v Wauer (ABCA): Reasons must be given for s. 110 weapons prohibition orders

By |2017-09-28T23:59:48-06:0004/09/2014|Firearms, Procedure and Practice, Sentencing, Weapons|

The accused pleaded guilty to possession of a prohibited weapon (brass knuckles) and to the possession of other weapons (a machete and bear spray) for a purpose dangerous to the public peace. He had no prior criminal record and the Crown and defence both recommended a conditional discharge. The Crown also requested that the sentencing judge impose a weapons prohibition under section 110 of the Criminal Code. There was very little discussion as to the length of the weapons prohibition. The judge asked the Crown "Ten years?" and the Crown responded "Ten years." That was the length of ban imposed. No submissions were made by the defence on the length of the prohibition. Later, as other ancillary orders and issues were being discussed, defence counsel said that his client opposed the proposed prohibition order because his client was a hunter.  No reasons as to why the sentencing judge rejected the defence submission and accepted the Crown submission were given. The accused appealed his sentence, focusing specifically on the weapons prohibition order: R v Wauer, 2014 ABCA 270 [...]

R v Saeed (ABCA): Seizure of bodily samples post-arrest should be by warrant

By |2017-09-29T00:09:46-06:0026/07/2014|Arrest, Charter of Rights, Search and Seizure|

The complainant, a 15 year old female, attended a party at an apartment. There, she became intoxicated and went to sleep in a bedroom. After waking, she left the apartment to look for a friend. The complainant was then sexually assaulted by a male who had followed her from the apartment. The sexual assault included forced intercourse. The complainant made her way home with the help of friends before police were contacted. The appellant was arrested at the apartment where the party had occurred when police attended later in the day. The appellant was briefly released (apparently due to an investigative mistake), then re-arrested about an hour later. Upon this second arrest, the appellant was lodged in a "dry cell"—a cell without a toilet or water—and handcuffed to a wall of the cell. About two hours later, a police officer demanded that the appellant provide a swab of the surface of his penis. The officer watched the appellant completing this task. The swab was seized and later analysis found DNA of the complainant on the swab. Aside from the DNA evidence, [...]

R v Legge (ABCA): Common law spouses not compellable to testify against each other

By |2017-09-29T00:17:15-06:0008/07/2014|Evidence, Procedure and Practice, Spousal Testimony|

At a trial on several charges, the Crown had sought to call the common law spouse of the accused. The accused's spouse was intended to be the Crown's main witness. The spouse did not wish to testify. The trial judge ruled that the traditional common law rule that provided that married spouses were not compellable to testify against each other was discriminatory against those who lived in common law relationships comparable to that of married couples, and ought to be modified to provide protection to common law spouses as well. Given that the intended key witness could not be called, the Crown called no evidence and an acquittal was entered. The Crown appealed the acquittal, arguing that the trial judge's ruling on the non-compellability of common law spouses was in error. Madam Justice Paperny, writing for a unanimous panel of the Alberta Court of Appeal in a reserved judgment (2014 ABCA 213), concluded that the common law rule against compellability of spouses to testify against each other should be extended to common law spousal relationships, [...]

R v Flight (ABCA): Admission of consumption equals reasonable suspicion “in most cases”

By |2017-09-29T00:16:33-06:0001/06/2014|Breath Testing, Impaired Driving, Reasonable Suspicion|

Section 254(2) of the Criminal Code permits a peace officer to demand that a person supply a sample of their breath into an approved screening device (also known as a roadside screening device) if the officer has a reasonable suspicion that the person: (a) has alcohol in his or her body; and (b) has operated a motor vehicle in the past three hours (typically, of course, such demands are made in the context of a motor vehicle stop where the second part of the test is abundantly clear). R v Flight, 2014 ABCA 185 (CanLII), is a reserved judgment  of the Court of Appeal that addresses a question which has been a subject of considerable debate in the lower courts: Is an admission of consumption of alcohol by a driver sufficient to ground a reasonable suspicion? The bulk of recent authority in lower-level courts in Alberta has held that an admission of consumption of alcohol by a driver is sufficient to ground a reasonable suspicion: See, e.g. R v Thomas, 2008 ABQB 610 (CanLII). It has also [...]

R v KZ (ABQB): Second “search” of a seized computer requires a search warrant, not a general warrant

By |2017-09-29T00:18:56-06:0028/04/2014|Charter of Rights, Computers, Search and Seizure|

Police had seized a computer pursuant to a search warrant during an investigation of an alleged attempted murder. During a forensic examination of that computer, an officer viewed an image believed to be child pornography. The examination of the computer was suspended and, ultimately, after consultations with other officers, a general warrant under the Criminal Code, s. 487.01 was sought. The information to obtain sought judicial authorization to examine the computer (and other electronic devices) using software permitting the extraction and analysis of data, relating to the offence of possession of child pornography. The reviewing judge, Assistant Chief Judge Anderson, refused to grant a general warrant upon the initial application by police. The rejection notice indicated that the Court was concerned that a pre-requisite for the granting of a general warrant was not met. Specifically, the Court was concerned about Criminal Code s. 487.01(1)(c) which requires for the issuance of a general warrant that "there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the [...]

Court of Appeal overturns CSOs in two breach-of-trust thefts

By |2017-09-29T00:24:04-06:0008/04/2014|Fraud, Sentencing, Theft|

The Alberta Court of Appeal has stressed in numerous cases in recent years that substantial thefts committed in breach of a position of trust, usually employment, should be met with sentences of incarceration, even for first offenders: see, e.g. R v Fulcher, 2007 ABCA 381, R v McKinnon, 2005 ABCA 8, R v Bracegirdle, 2004 ABCA 252. Many of the reported cases from our Court of Appeal in which these statements of principle have been stated most firmly deal with thefts in the hundreds of thousands of dollars. Fulcher involved thefts totalling almost $300,000; R v Zenari, 2012 ABCA 279 was a fraud resulting in losses of over $225,000. Bracegirdle was a theft of over $150,000. McKinnon involved a fraud of a smaller sum of about $61,000, but McKinnon was also a fourth-time offender. As a result, arguments in favour of conditional sentence orders for accused persons committing frauds in the tens of thousands are still frequently advanced by counsel before our courts. Two cases released recently by the Court of Appeal address breach-of-trust thefts that exceed $5,000, but don't reach into [...]

R v Schmitt (ABCA): Impact of sentence on family can’t override all other factors

By |2014-04-23T15:45:01-06:0028/03/2014|Disqualified Driving, Sentencing|

Mr. Schmitt is a repeat driving offender. When sentenced on the matter that later brought him to the Court of Appeal, he had two convictions for driving with an excess blood alcohol level, eight convictions for driving while disqualified and one for flight from police. He was, as of December 2012, subject to a lifetime prohibition from operating a motor vehicle in Canada. In December 2012, he was stopped while driving a vehicle with several passengers and charged with driving while disqualified. There was no emergency or mitigating circumstance. Mr. Schmitt simply feels, it was revealed in a pre-sentence report, that he needs to drive because he lives in rural Alberta. The Crown sought a sentence of nine months in gaol, plus a further lifetime driving prohibition. This would have been a step up from Mr. Schmitt's recent sentence for the same offence of six months in gaol. The sentencing judge  agreed that nine months in custody was an appropriate sentence, but continued: But you know why I’m not going to put you in gaol? [...]

R v Trapasso (ABCA): Robberies two days apart were not a “spree”

By |2016-11-16T20:46:23-07:0003/03/2014|Sentencing|

Mr. Trapasso committed two robberies two days apart. He first robbed a convenience store, stealing $500. Two days later, he robbed a bank while his face was covered with a bandanna. In total, he robbed from three bank tellers, netting about $12,000. "Starting point" sentencing decisions in Alberta suggest a guideline of three years of gaol for convenience store robberies (R. v. Johnas, 1982 ABCA 331) and four years gaol for bank robberies (R. v. Brennan, 2003 ABCA 300). The accused had a lengthy criminal record and some factors of the bank robbery, in particular, suggested that a sentence higher than the starting point would be appropriate. The sentencing judge had imposed two five year sentences on the robberies, making them concurrent to each other. A shorter concurrent sentence had also been ordered for committing an offence while disguised.  The Crown appealed the sentence, arguing that the sentence ought not to have treated these criminal acts as a "spree", resulting in the imposition of a global sentence which was below the appropriate range. The Court of Appeal [...]

R v VBS (ABCA): Bail pending appeal refused

By |2014-04-23T15:44:46-06:0008/02/2014|Judicial Interim Release|

VBS was found guilty of assault and sexual interference on the daughter of a family friend. The victim was 10 to 12 years old at the time of the assaults. 15 to 20 assaults were found to have occurred by the trial judge. He was sentenced to three years imprisonment. VBS filed an appeal which challenged the findings of credibility of the trial judge and her interpretation of the evidence. Section 679(3) of the Criminal Code provides that release pending appeal may be granted where the appellant shows that: (a) the appeal or application for leave to appeal is not frivolous; (b) the applicant would surrender themselves into custody when required according to the terms of release; and (c) the detention is not necessary in the public interest. There is a residual discretion in the court to refuse to grant judicial interim release pending the appeal even where the statutory criteria are met. Mr. Justice McDonald, hearing the application for judicial interim release pending appeal from VBS in this case found that, though the grounds [...]

R v Severight (ABCA): Court cannot impose unwarranted determinate sentence to avoid dangerous offender designation

By |2014-04-23T15:45:10-06:0028/01/2014|Dangerous Offender, Pre-Trial Custody, Sentencing|

In 2007, Jason Kyle Severeight ("Severight") committed a serious assault on an ex-partner, resulting in convictions after a trial for aggravated assault and possession of a weapon for a dangerous purpose. The aggravated assault included an attempt to slash the complainant to her throat, which was fended off. The complainant received slash marks on her hands and legs during the assault. The sentencing judge accepted that three earlier and similar assaults had been committed by the accused against the complainant. Those earlier assaults had resulted in criminal charges, but not convictions. On each of those earlier assaults, the complainant had recanted. The circumstances of the 2007 assault, and the earlier offences considered in the dangerous offender hearing, are set out in the decision of Provincial Court Judge E.A. Johnson: 2010 ABPC 329. The Crown sought to have Severight designated as a dangerous offender. In the course of accepting the Crown's position, the sentencing judge found that the appropriate determinate sentence for the aggravated assault was 10 years in gaol, which would be reduced by between [...]

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