Disclosure

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

Charter of Rights, Disclosure

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

By Damian Rogers|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 Damian Rogers|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 Sutton: Intoxilyzer maintenance logs are not first party records

By Damian Rogers|2016-11-16T20:46:24-07:0029/11/2013|Breath Testing, Disclosure, Impaired Driving|

A battle is underway in Alberta over whether maintenance logs for evidentiary breath testing instruments must be disclosed by the Crown to defendants as first party records, or whether they are third party records that must be sought from the police on an O'Connor application. Back in January 2013, an Alberta Court of Queen's Bench decision on a summary conviction appeal held that maintenance logs for these instruments must be disclosed 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 appeal: 2013 ABCA 168. In R. v. Sutton, 2013 ABPC 308, Judge Henderson of the Provincial Court of Alberta had the more comprehensive evidentiary record that the Court of Appeal felt was lacking on the Kilpatrick leave application. Testimony was given by two experts called by the Crown with respect to evidentiary [...]