January 2014

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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R v Vandyke (ABPC): Mandatory minimum sentence for firearms possession overturned

By |2014-04-23T15:45:18-06:0012/01/2014|Charter of Rights, Firearms, Section 12|

Mr. Vandyke was licensed to possess restricted firearms and owned a lawfully registered handgun. The Court found (2013 ABPC 347) that on the day he was arrested, he had been cleaning the handgun in his garage. He placed it on the seat of his motor vehicle, where he forgot it. Later that day, he noticed the firearm on the seat. At that point, he was on his way to a bar. As he intended to leave his truck parked at the bar overnight, he decided to bring the firearm with him. He put it into his pants and went into the bar. There, he briefly showed the firearm to a patron (not in a threatening manner). Soon after, the police were called. Mr. Vandyke was arrested without incident. Mr. Vandyke was charged, among other things, with an offence under section 95 of the Criminal Code (possession of a restricted firearm in a place not authorized, while loaded or with readily available ammunition). Why the firearm was loaded, given that it had been set down during [...]

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December 2013

Wood v Schaeffer: SCC recognizes duty of police to keep notes

By |2014-04-23T15:45:26-06:0023/12/2013|Police|

The biggest news out of the Supreme Court of Canada last week was the decision on three prostitution related laws in Canada (Attorney General) v. Bedford, 2013 SCC 72. But, a case that could see more citations as time goes by is Wood v. Schaeffer, 2013 SCC 71. Defence counsel may seize upon the obiter comments of the majority (endorsed by the minority as well) regarding the duty of police officers to keep notes. The Wood case concerned the interpretation of regulations under the Police Services Act (Ontario) relating to the duties of police officers involved in investigations by Ontario's Special Investigations Unit (a civilian investigative agency which investigates serious injuries and deaths in which police were involved). Primarily, the Court's focus was on the interpretation of legislative provisions which required officers to complete notes on an incident under investigation. The issue was whether the right to counsel contained in the regulation allowed witness and subject officers involved in the SIU investigation to consult counsel before preparing the notes required. To that, the Court answered in the negative: Ontario's regulatory provisions [...]

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R v Huynh: Decision not to exclude unconstitutionally collected evidence overturned on appeal

By |2016-11-16T20:46:23-07:0017/12/2013|Arrest, Charter of Rights, Remedies, Search and Seizure|

An experienced drug investigator, by chance, observed an afternoon meeting between two men. The meeting occurred in a lightly-travelled parking lot in the afternoon. The accused pulled in driving a truck. A short time later, the second male approached on foot. The pedestrian got into the vehicle into the front passenger seat. There was a conversation that lasted less than a minute. The two faced each other, with arm movements that could have indicated a hand-to-hand transaction, but the investigator's viewpoint didn't allow for confirmation of that. The pedestrian left on foot. A female passenger in the truck moved from the back seat to the front and the vehicle drove off. The drug investigator formed the view there had been a drug transaction. He believed there were reasonable grounds to arrest the accused. After following the vehicle for about 15 minutes, he directed a uniformed officer to stop the vehicle and arrest the two occupants. The uniformed officer did as directed. The drug investigator arrived within a couple of minutes of the stop of the [...]

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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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November 2013

R v Sutton: Intoxilyzer maintenance logs are not first party records

By |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 [...]

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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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R v Croft (ABQB): Warrants authorizing dialed number recorders are not authorizations to intercept

By |2014-09-30T16:41:03-06:0020/11/2013|Charter of Rights, Search and Seizure, Wiretap|

Section 492.2 of the Criminal Code of Canada provides for the issuance by a justice of a warrant to install, maintain and monitor a number recorder, being "any device that can be used to record or identify the telephone number or location of the telephone from which a telephone call originates, or at which it is received or intended to be received": s. 492.2(4). The standard to be used by a justice in assessing an information to obtain a s. 492.2 number recorder warrant are "reasonable grounds to suspect" that an offence has been committed or will be committed. In R. v. Croft, 2013 ABQB 644, the accused filed a notice of constitutional question, alleging that s. 492.2(1) and 492.2(2) of the Criminal Code were contrary to section 8 of the Canadian Charter of Rights and Freedoms. The accused argued that: (1) the "reasonable suspicion" standard was an insufficient standard and that a constitutionally valid standard for the issuance of a warrant such as this would be the higher "reasonable grounds to believe" standard; and (2) the information gathered by a number recorder is [...]

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R v Kunath: 10 year sentence for two aggravated sexual assaults on infant upheld

By |2014-04-23T15:46:00-06:0020/11/2013|Sentencing, Sexual Assault|

In R. v. Kunath, 2013 ABCA 372, the Alberta Court of Appeal upheld a 10 year sentence imposed after a guilty plea to two counts of aggravated sexual assault committed against a six week old infant. The victim was the child of the accused's girlfriend. The assaults were extensive and disturbing, involving injuries to the penis and anus of the child, as well as burns likely inflicted by a lighter to the feet of the child. The Alberta Court of Appeal had signalled, beginning in the case of R. v. Nickel, 2012 ABCA 158 (a case involving serious assaults against an infant which was not sexual in nature), that sentences for assaults on minors required an adjustment towards sentences with a greater emphasis on deterrence and denunciation by way of lengthier jail terms. The Court of Appeal noted that that case had appropriately been considered by the sentencing judge. The sentencing judge found in Kunath that the gravity of the offences was "exceedingly serious" and the harm to the victim and society as a whole was "extreme". [...]

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July 2013

R v Youvarajah (SCC): Admission of an agreed statement of facts under the principled exception to hearsay refused

By |2016-11-16T20:46:26-07:0025/07/2013|Evidence, Hearsay|

The Supreme Court of Canada released a decision today on the admissibility of an agreed statement of facts for the truth of its contents at trial. The accused and a youth, D.S., were charged separately in a homicide investigation. D.S. pleaded guilty to second degree murder. An agreed statement of facts was prepared, which he and his counsel signed in court. In the agreed statement of facts (“ASF”), D.S. implicated Youvarajah (“Y”) in the murder as well. At the trial of Y, D.S. partially recanted. D.S. continued to acknowledge he had been the shooter, but now said Y had not planned the murder and obtained the murder weapon, as was stated in the ASF. Instead, D.S. testified that the gun was his own and he shot the victim because of the way he was talking. At trial, the Crown had been able to cross-examine the accused on his prior inconsistent statement to some extent, although that examination was somewhat curtailed by concerns relating to solicitor-client privilege between D.S. and his counsel at his trial. There [...]

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