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. [...]

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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 [...]

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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 [...]

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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 [...]

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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, [...]

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R v Omeasoo: Sentences for alcoholics who breach abstention conditions should reflect their level of responsibility

By |2016-11-16T20:46:23-07:0013/12/2013|Failure to Comply or Breach, Judicial Interim Release, Procedure and Practice, Sentencing|

Courts, counsel and police officers often struggle with the question of whether to grant release to accused persons on conditions that they abstain from the consumption of alcohol or drugs. Some accused are addicted to the substances they are abusing and compliance is difficult or nearly impossible for them. A recent decision by Judge Rosborough from the Provincial Court of Alberta, R. v. Omeasoo, 2013 ABPC 328, provides some guidance on this, and also discusses the sentencing of offenders who have breached abstinence conditions. Judge Rosborough's comments came in written reasons for sentences his Honour had previously imposed on two individuals. One of the offenders had been sentenced to one day in gaol (having served 6 days in custody since her arrest). The second had been sentenced to a $100 fine, with waiver of the victim fine surcharge. At the time of the second offender's sentencing, he was already serving a 30 day sentence for several other breaches, which were all related to alcohol. Both of the offenders, Omeasoo and Okeynan, were aboriginal persons with long histories of alcoholism and [...]

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R v Cox: Court of Appeal panel cautions against “over-charging”

By |2016-11-16T20:46:24-07:0027/11/2013|Procedure and Practice|

An Alberta Court of Appeal panel cautioned in R. v. Cox, 2013 ABCA 394 about the practice of laying complicated multi-count indictments. The case was primarily a sentence appeal of a 10 year sentence for robbery with a firearm and firearms offences. After upholding the trial judge's sentence, the panel continued to discuss the indictment in the proceeding. By way of illustration, the court noted that the robbery of a drugstore using a firearm had resulted in five charges: using a firearm in committing a robbery, being masked during the commission of an indictable offence, pointing a firearm without lawful excuse, using a firearm in a careless manner, and possessing a weapon (a firearm) for a purpose dangerous to the public peace. In discussing the five charges resulting from the robbery, the panel noted that it was difficult to see how the offence of careless use of a firearm could arise from an intentional use of a firearm in the commission of a robbery. As well, the court noted that the dangerous use of the firearm was encompassed [...]

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