R. v. Curran (S.F.), 2013 ABQB 541

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 05, 2013
• Citations: 2013 ABQB 541;(2013), 571 A.R. 49 (QB)

R. v. Curran (S.F.) (2013), 571 A.R. 49 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. SE.107

Her Majesty the Queen (Crown) v. Sean Francis Curran (accused)

(121339113S1; 2013 ABQB 541)

Indexed As: R. v. Curran (S.F.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

September 19, 2013.

Summary:

The accused was charged with speeding. His disclosure application requested technical data of the laser radar.

The Alberta Provincial Court dismissed the disclosure application. The accused appealed.

The Alberta Court of Queen's Bench, in a decision reported at (2013), 565 A.R. 201, allowed the appeal, and ordered disclosure subject to several conditions. Within a few weeks of receiving the certified Report of Criminal Appeal, the Crown concluded that the accused did not have jurisdiction to appeal the original order on an interlocutory basis, and applied for leave to reargue the appeal.

The Alberta Court of Queen's Bench granted leave. In the interest of fairness and impartiality, the appeal would be heard again on all issues by another judge.

Courts - Topic 2183

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Appeal court - [See Practice - Topic 9136 ].

Courts - Topic 2186

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Prosecutions or criminal trials or matters - [See Practice - Topic 9136 ].

Criminal Law - Topic 7473.2

Summary conviction proceedings - Appeals - General - Appeal from interlocutory decision - [See Practice - Topic 9136 ].

Practice - Topic 3089

Applications and motions - Applications - Rehearing - [See Practice - Topic 9136 ].

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - [See Practice - Topic 9136 ].

Practice - Topic 5786

Judgments and orders - Interlocutory or interim orders or judgments - Rehearing - [See Practice - Topic 9136 ].

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - The accused was charged with speeding - His disclosure application for technical data of the laser radar was denied - The accused appealed the ruling prior to the conclusion of the trial - The trial judge allowed the appeal - Within a few weeks of receiving the certified Report of Criminal Appeal, the Crown concluded that the accused did not have jurisdiction to appeal, and applied for leave to reargue the appeal - The Crown submitted that its new argument (that the accused lacked jurisdiction to appeal the disclosure decision prior to the end of the trial) could inevitably result in a different outcome; namely, the appeal would be quashed due to a lack of jurisdiction for the court to grant the order sought - The Alberta Court of Queen's Bench granted leave - The court was not functus officio because a formal judgment had not yet been entered - In any event, the proceedings were not yet final because the decision was an interlocutory ruling and the accused had yet to be found guilty or acquitted on the substantive charges - The circumstances were sufficiently unusual to warrant a rehearing, and the interests of justice compelled a decision - In the interest of fairness and impartiality, the appeal would be heard again on all issues by another judge - See paragraphs 18 to 25.

Cases Noticed:

R. v. Villeda (G.M.) (2010), 502 A.R. 78; 517 W.A.C. 78; 2010 ABCA 410, refd to. [para. 6].

W.W. Construction (Lethbridge) Ltd. et al. v. Red Deer College (1990), 104 A.R. 164 (C.A.), refd to. [para. 6].

R. v. Adams (D.C.) (2001), 290 A.R. 316; 2001 ABQB 366, refd to. [para. 7].

R. v. Grabowski (P.), [2010] A.R. Uned. 305; 2010 ABCA 265, refd to. [para. 7].

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321, refd to. [para. 8].

R. v. Simpson (J.) (1998), 172 N.S.R.(2d) 182; 524 A.P.R. 182; 1998 CanLII 4256 (C.A.), refd to. [para. 9].

R. v. Blaker, 1983 CanLII 308 (B.C.C.A.), refd to. [para. 11].

R. v. C. (T.L.) - see R. v. T.L.C.

R. v. T.L.C. (2012), 318 B.C.A.C. 293; 541 W.A.C. 293; 285 C.C.C.(3d) 486; 2012 BCCA 131, refd to. [para. 17].

R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161; 44 C.R.(4th) 195, refd to. [para. 19].

R. v. Boyne (B.) (2012), 405 Sask.R. 163; 563 W.A.C. 163; 2012 SKCA 124, refd to. [para. 19].

R. v. Pinchak (A.J.) (2010), 504 A.R. 373; 2010 ABQB 747, refd to. [para. 20].

R. v. Khela (S.S.) and Dhillon (K.S.) (1995), 188 N.R. 355; 43 C.R.(4th) 368 (S.C.C.), refd to. [para. 21].

R. v. Woodley (M.D.) (1993), 21 B.C.A.C. 275; 37 W.A.C. 275 (C.A.), refd to. [para. 22].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(8) [para. 12].

Counsel:

Megan Rosborough (Crown Prosecutor's Office), for the Crown;

Kenneth W. Kolthammer (Kolthammer Batchelor & Laidlaw LLP), for the accused.

This application was heard on September 5, 2013, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton. The Court delivered the following judgment and reasons for judgment, dated September 19, 2013.