January 28th, 2019 Update
Trial fairness prejudiced by Judge’s constant intervention of cross-examination – R. v Quintero-Gelvez, 2019 Alberta Court Of Appeal
Defence appeal from conviction at trial of sexual assault. Issue on appeal of whether the trial judge’s numerous interjections during cross-examination of the complainant impeded the accused’s right to make full answer and defence. Held: Appeal allowed; new trial. Schmaltz, 2015 ABCA 4 followed. “A review of the transcript of the cross-examination of the complainant … Read More.
Adjournment denied for s. 276 application does not affect fairness to trial conviction – R. v Kulasingam, 2019 Alberta Court Of Appeal
Defence appeal from dismissal of summary conviction appeal. Accused was convicted of sexual assault and unlawful confinement. Issue on appeal of whether “the trial judge’s refusal to grant an adjournment to allow the appellant’s trial counsel to correct his procedural error [failure to bring a s. 276 application] resulted in an unfair trial”, or the … Read More.
5 years 18.5 months prison on plea of guilty to criminal negligence causing death of infant – R. v Calahoo, 2019 Edmonton Queen’s Bench
Sentencing of accused who pleaded guilty to criminal negligence causing the death of a two-monthold baby to whom he was a caregiver. One night, woken by the infant’s crying, he shook her, causing severe brain injury. The child was taken to hospital the next day, and eventually died after being taken off life support. Accused … Read More.
Prison knife kept for protection dangerous, not just defensive. Conviction upheld – R. v McCargar, 2019 Alberta Court Of Appeal
Appeal from conviction for possession of a weapon for a purpose dangerous to the public peace. Appellant was a serving prisoner found in possession of a plastic knife with razor blades. At trial, the appellant testified that he kept it for his own protection. Issue on appeal as to whether the trial judge erred in … Read More.
Defence application for a stay based on a s. 11(b) Charter breach. Two accused were charged with multiple trafficking, firearms and criminal organization offences. Held: No s. 11(b) violations. Following Albinowski, 2018 ONCA 1084 and Mullen, 2018 ABQB 831, there is a “nearly bright line rule ascribing any unavailability of defence counsel as defence delay.” … Read More.
Drunkenness rebuts mental element for B/E charge, conviction on lesser offences – R. v. Smid, 2019 Edmonton Queen’s Bench
Trial on charges of obstruction and breaking and entering a dwellinghouse with intent to commit an indictable offence. Issue of whether intoxication rebutted the presumption of intent in s. 348(2)(b) CC, and if so, whether the accused should be convicted of mischief. Held: Acquitted of break & enter; convicted of mischief, obstruction. Court found that … Read More.
January 16th, 2019 Update
Credit For Administrative Licence Suspension Under Old Regime Granted – R. v. Kiyawasew, 2018 Calgary Provincial Court
Impaired driving sentencing. Issue of whether credit towards the s. 259(1) CC prohibition should be given for time under the Alberta Administrative License Suspension (ALS), on the basis that a failure to do so would violate the accused’s rights under s. 11(h) of the Charter. Held: Only the 2012 ALS regime violated s. 11(h); credit … Read More.
Defence application for a stay or sentence reduction on the basis that indefinite administrative segregation (AS) while in remand custody violated his s. 7 and 12 rights. Accused spent 13.5 months in AS after an assault on another inmate. Held: s. 12 breach; enhanced credit (3.75 to 1) for time in AS. “A free and … Read More.
Re-Election As To Mode Of Trial After Direct Indictment Available Without Crown Consent – R. v. Conway-McDowall, 2019 Edmonton Queen’s Bench
Accused was charged with sexual assault and interference. Crown preferred a direct indictment, which resulted in a deemed jury election under s. 565(1) CC. Later, accused served notice of re-election to judge alone. Crown argued re-election was not possible as s. 561(2) CC applied; thus defence could only re-elect as of right at least 14 … Read More.
1 Yr. Minimum Jail For Possession Of Child Pornography Unconstitutional – R. v. Brittain, 2018 Edmonton Queen’s Bench (1513455Q1)
Sentencing of accused convicted after trial of possession of child pornography. Crown proceeded by indictment. Illegal material included 26 images and 4 videos, but all were cartoons (anime) depictions. 25-year old accused assessed at a low risk to reoffend. Issue of whether 1-year minimum violates s. 12. Held: minimum unconstitutional; 1 year CSO imposed. Images … Read More.