In R v. Edmonton, the Court of Appeal of Alberta granted the Crown leave to appeal the acquittal of Jarrod Scott Edmonton on a drinking and driving offence.
Justice Jean Côté said the appeal will consider whether police should satisfy themselves that an accused person has had a “sufficient conversation” with a lawyer before providing a breath sample. It will also assess with whom the onus of proof rests during a Charter motion, in determining whether an accused person has had the conversation with their lawyer.
The Crown had sought leave from the Court of Appeal following an appeal decision by the Court of Queen’s Bench, stemming from a summary conviction trial at the Provincial Court.
Edmonton argued the Court of Queen’s Bench decision could not be appealed as — even if the court had made an error of law — it was an error of law on a familiar topic where the law is well settled.
But Justice Côté said this was not necessarily so, and set out the circumstances in which leave can be granted.
His written decision on Sept. 23 states: “The repute of the administration of justice falls when courts force counsel to tell their clients that it all depends on whether the particular judge hearing motions that morning is a sympathetic person or not.”
There “is not so much reported Alberta authority on this topic of leave as one would expect,” Côté said.
While appeals should be granted “sparingly,” they should not be confined to cases making new law, but can also help to enforce laws, he wrote.
Drinking and driving law is an area where “certain fallacies and heresies are evergreen,” he said, partly thanks to counsel citing “precedents” that have been over-ruled on appeal.
Setting out the criteria for leave to appeal in summary convictions, Côté said:
• The proposition of law suggested by the applicant seeking leave must be “at least arguable.”
• If the general law applicable to many future cases needs making, settling, enforcing, or broadcasting, and could affect the result of the case at hand, ordinarily leave to appeal should be given.
• Leave could be denied if the respondent did not cause the error and there would be serious prejudice to the respondent not compensable by a money indemnity.
Leave to appeal summary convictions can be granted where there is no need to make or clarify the general law for the public or the profession, Côté confirmed.
For example, where an applicant was convicted wrongly because of a question of law alone, has a strong argument and faces significant consequences from a prosecution.
If the applicant is the Crown, leave would ordinarily be proper if “its argument is strong and the offence alleged is fairly serious, or the offence has serious implications for the public,” Côté said.