R. v. Byers (D.J.), (2015) 600 A.R. 288

• Judge: Fraser, C.J.A., Martin and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 04, 2015
• Citations: (2015), 600 A.R. 288;2015 ABCA 174

R. v. Byers (D.J.) (2015), 600 A.R. 288; 645 W.A.C. 288 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MY.086

Her Majesty the Queen (respondent) v. Derek John Byers (appellant)

(1301-0372-A; 2015 ABCA 174)

Indexed As: R. v. Byers (D.J.)

Alberta Court of Appeal

Fraser, C.J.A., Martin and Watson, JJ.A.

May 20, 2015.

Summary:

Following trial by judge and jury, the accused was convicted of possession of marijuana and cocaine for the purpose of trafficking, possession of methamphetamine and proceeds of crime. He appealed on numerous grounds.

The Alberta Court of Appeal allowed the appeal on the basis of an inadequate jury charge. The court substituted acquittals where: it also disagreed with the trial judge's finding that the accused's arrest was lawful and the force used to handcuff him appropriate; it had concerns about the trial judge's assessment of the violation of the accused's s. 8 right; and the accused was sentenced to 5.5 years' imprisonment, given credit for 810 days he had already served in predisposition custody without any enhanced credit, and had since served almost all of the remainder of this sentence.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - Following trial by judge and jury, the accused was convicted of possession of marijuana and cocaine for the purpose of trafficking, possession of methamphetamine and proceeds of crime - He appealed - The Alberta Court of Appeal allowed the appeal on the basis of an inadequate jury charge - The adequacy of a jury charge was to be assessed with reference to the whole charge - However, identifying the position of the Crown and defence remained a basic requirement - The charge was confusing and the court could not find a reference to the position of the defence or the Crown in any part of it - Nor had defence counsel already put the defence position adequately in its closing address - Thus, the court could not consider whether a trial judge's complete failure to refer to the theory of the defence in his or her charge to the jury could be saved by defence counsel's closing address - In these circumstances, the trial judge's omission was fatal and accordingly, the convictions could not stand - See paragraph 8.

Criminal Law - Topic 4357.1

Procedure - Charge or directions - Jury or judge alone - Directions re Crown theory - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4381

Procedure - Charge or directions - Jury or judge alone - Misdirection - Effect of - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4381

Procedure - Charge or directions - Jury or judge alone - Misdirection - Effect of - Following trial by judge and jury, the accused was convicted of possession of marijuana and cocaine for the purpose of trafficking, possession of methamphetamine and proceeds of crime - He appealed - The Alberta Court of Appeal allowed the appeal on the basis that there had been a fatal omission in the jury charge - Normally this would result in a new trial, but here there were other considerations at play - The court substituted acquittals where: it also disagreed with the trial judge's finding that the accused's arrest was lawful and the force used to handcuff him appropriate; it had concerns about the trial judge's assessment of the violation of the accused's s. 8 right; and the accused was sentenced to 5.5 years' imprisonment, given credit for 810 days he had already served in predisposition custody without any enhanced credit, and had since served almost all of the remainder of this sentence - See paragraphs 9 to 11.

Criminal Law - Topic 4965.2

Appeals - Indictable offences - New trials - Where sentence served or partially served - [See second Criminal Law - Topic 4381 ].

Criminal Law - Topic 5058

Appeals - Indictable offences - Substitution of verdict - Substitution of verdict of acquittal - [See second Criminal Law - Topic 4381 ].

Cases Noticed:

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 8].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 8].

R. v. Gray (B.F.) (2012), 522 A.R. 374; 544 W.A.C. 374; 285 C.C.C.(3d) 539; 2012 ABCA 51, refd to. [para. 8].

R. v. Smith (T.G.) (2007), 412 A.R. 61; 404 W.A.C. 61; 225 C.C.C.(3d) 278; 2007 ABCA 237, refd to. [para. 8].

R. v. Catton (A.) et al. (2015), 329 O.A.C. 354; 319 C.C.C.(3d) 99; 2015 ONCA 13, refd to. [para. 11].

R. v. Duguay - see R. v. Taillefer (B.).

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 11].

R. v. McArthur (R.L.) (1999), 232 A.R. 349; 195 W.A.C. 349; 1999 ABCA 117, refd to. [para. 11].

Counsel:

S.L. Tkatch, for the respondent;

A.L. Serink, for the appellant.

This appeal was heard on May 4, 2015, by Fraser, C.J.A., Martin and Watson, JJ.A., of the Alberta Court of Appeal. Martin, J.A., delivered the following memorandum of judgment from the bench for the court, which was filed on May 20, 2015.