September 20th, 2019 Update

Sex Assault Conviction Appeal Fails – Defence Of Mistaken Belief In Consent Not Made Out – R v Achuil, 2019 Alberta Court Of Appeal

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Appellant convicted of sexual assault after trial appealed, arguing that the trial judge misapplied the test in W(D) and that defence of mistaken belief in consent should have been available. Held: Appeal dismissed. Court found the trial judge did not misapply W(D) and the conviction should stand. The majority reconsidered Ryon [2019 ABCA 36] on … Read More.

Mandatory Minimum Criminal Driving Prohibition Can’t Be Reduced By Crediting Provincial Suspension – R v Sohal, 2019 Alberta Court Of Appeal

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Two appeals (defence appeal from Sohal, 2018 ABQB 845 and Crown appeal from Watson, 2018 ABQB 832) on whether the mandatory minimum 1-year driving prohibition under the CC for impaired driving can be reduced to give credit for pre-trial provincial suspensions. In Sohal, the trial judge imposed a prohibition of 141 days, with credit for … Read More.

Analyst Certificate Not Required By New Impaired Law – R v Goldson, 2019 Ft. McMurray Queen’s Bench

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Crown appeal from acquittal on a charge of ‘over 80’. Issue on appeal was the interpretation of s 320.31(1) (a) CC, which requires Crown to prove that the qualified technician who took the breath samples conducted a system calibration check with results within 10% of the target value of an alcohol standard certified by an … Read More.

July 23rd, 2019 Update

7 Year Robbery Sentence Reduced to 6 Due To Gladue Factors – R v Matchee, 2019 Alberta Court Of Appeal

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Appellant convicted after trial of 10 counts (robbery, break and enter, unlawful confinement, and others). He appealed his 7-year jail sentence on the robbery, saying the trial judge erred by not giving effect to Gladue factors. He argued a 5-year jail sentence would have been appropriate. His Gladue factors included family members in residential schools … Read More.

Sentence Reduced From 3 Years, 5 Months to 2 Years For Fentanyl Trafficking – R v Churchill, 2019 Alberta Court Of Appeal

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Appeal from a global sentence of 3 years and 5 months (including other drug and weapons offences) on the basis that the trial judge erred in categorizing a “holding out” offence in the same sentence range as trafficking fentanyl. Appellant was convicted of trafficking in fentanyl. He sold a substance represented to be fentanyl to … Read More.

Presumption Of Identity Applies To Transitional Impaireds/Presumption Of Accuracy Does Not Require Certificate Of Analyst – R v Taylor, 2019 Vermilion Provincial Court

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Trial on a charge under s. 253(1)(b) CC. Transitional case. Crown sought to rely on the presumption of accuracy through information in the Certificate of Qualified Technician, which stated that the calibration check results were within 10% of the target values “of an alcohol standard which was certified by an analyst”. Further, Crown did not … Read More.

Old Presumption Of Identity Applies To Transitional Impaired Cases/Hearsay Allowed To Prove Analyst Requirement – R v Hanna, 2019 Edmonton Provincial Court

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Trial on a charge of driving ‘over 80’ under s. 253(1)(B) CC. Issues of whether the former presumption of identity under s. 258 CC continues to apply in a transitional case where the offence precedes the Bill C-46 amendments but the trial is held after; and whether the Crown could rely on the s. 320.31 … Read More.

Breathalyzer Results Not Presumed Accurate Under New Law Without Certificate Of Analyst – R v Kettles, Edmonton Provincial Court

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Trial on impaired driving and ‘over 80’ charges. The Crown did not tender a Certificate of Analyst or Qualified Technician; rather, the Crown adduced the machine test sheet and the technician gave viva voce testimony. Issue of whether this met the requirements of s. 320.31 CC so as to trigger the presumption of accuracy. Held: … Read More.

Traffic Stop Combined With General Criminal Law Purpose Is Arbitrary Detention – R v Mohamed, 2019 Edmonton Queen’s Bench

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Appellant convicted after trial of driving while disqualified and breach of probation. Police were conducting proactive patrols with a view to detecting stolen vehicles, specifically targeting Ford trucks. Appellant was driving a Ford F150 registered to a female. At trial, defence alleged a s. 9 Charter breach. The Trial Judge held that the traffic stop … Read More.

June 13th, 2019 Update

Search And Statements By Accused Allowed Into Evidence Despite Charter Violations – R v Downey, 2019 Calgary Queen’s Bench

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Accused arrested for kidnapping and forcible confinement of a child (later found dead), and murder of her mother. He made statements which Crown wanted to use in cross-examination if accused testified. Accused argued statement was not voluntary on the basis of oppression. He also applied for exclusion of items seized, photos, clothing and swabs, arguing … Read More.