R. v. Effert (K.A.), (2008) 443 A.R. 196 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 27, 2008
• Citations: (2008), 443 A.R. 196 (QB);2008 ABQB 200

R. v. Effert (K.A.) (2008), 443 A.R. 196 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AP.089

Her Majesty the Queen (Crown/respondent) v. Katrina Ann Effert (accused/applicant)

(050485499Q1; 2008 ABQB 200)

Indexed As: R. v. Effert (K.A.)

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Veit, J.

March 31, 2008.

Summary:

In a decision not reported in this series of reports, Effert was convicted by a court composed of judge and jury of second degree murder of her infant child and a related count of concealing the child's body. She appealed.

The Alberta Court of Appeal, in a decision reported at [2007] A.R. Uned. 338, allowed the appeal. A new trial was ordered. Effert applied for a change of venue and sought to re-elect to trial by judge alone. The Crown refused to consent to the re-election. Effert asked the court to dispense with the Crown's right to consent under s. 561(1)(c) of the Criminal Code.

The Alberta Court of Queen's Bench dismissed the application to dispense with the Crown's right to consent to re-election and allowed the application for a change of venue.

Editor's note: for the decision regarding where the retrial was to be held in this matter, see [2008] A.R. Uned. 388. For a related decision regarding this accused, see [2006] A.R. Uned. 539.

Criminal Law - Topic 2854

Jurisdiction - Consent jurisdiction - Elections and re-elections - Re-election by accused - Crown consent - Effert was convicted by a court composed of judge and jury of second degree murder of her infant child and a related count of concealing the child's body - She was granted a retrial on the basis that the jury was given an erroneous instruction regarding infanticide - She sought to re-elect to trial by judge alone - The Crown refused to consent and gave no reasons for the refusal - Effert asked the court to dispense with the Crown's right to consent under s. 561(1)(c) of the Criminal Code - The Alberta Court of Queen's Bench dismissed the application - Neither the existence of statutory discretion to withhold consent to re-election nor the prosecutor's refusal to give reasons for withholding consent offended the principles of natural justice - The fact that Effert was not judge-shopping was immaterial - There was no evidence of prosecutorial misconduct - The prosecutor was not required to give reasons - The decision could not be reviewed - See paragraphs 14 to 24.

Criminal Law - Topic 4308

Procedure - Jury - General - Jury trial - Venue or place of - [See Criminal Law - Topic 4491 ].

Criminal Law - Topic 4491

Procedure - Trial - Place or venue of - Effert was convicted by a court composed of judge and jury of second degree murder of her infant child and a related count of concealing the child's body - She was granted a retrial on the basis that the jury was given an erroneous instruction regarding infanticide - Effert applied for a change of venue based on the publicity surrounding her previous trial - The Alberta Court of Queen's Bench allowed the application - There had been extensive publicity surrounding the original trial - The community was a small one - There was a greater potential for saturation of opinion than in a larger community - The alleged crime was one that might excite the emotional atmosphere of the community - While publicity, itself, was not a ground for a change of venue, here the concern arose from post-trial publicity announcing that Effert was a murderer - The breadth of the questions that would have to be asked of prospective jurors made it clear that there seemed to be no effective way of ensuring that an impartial jury could be obtained - However, the retrial was to be held in one of the adjoining judicial districts, if possible, to allow the greatest opportunity for interested members of the community to attend - See paragraphs 25 to 45.

Cases Noticed:

R. v. Ng (K.-F.) (2003), 327 A.R. 215; 296 A.P.R. 215; 2003 ABCA 1, leave to appeal dismissed (2004), 330 N.R. 396; 363 A.R. 399; 343 W.A.C. 399 (S.C.C.), appld. [para. 5].

Lemay v. R. (1951), 102 C.C.C. 1 (S.C.C.), refd to. [para. 5].

Boucher v. R. (1954), 110 C.C.C. 263 (S.C.C.), dist. [para. 5].

R. v. Ruston (1991), 71 Man.R.(2d) 49; 63 C.C.C.(3d) 419 (C.A.), dist. [para. 5].

R. v. McGregor (C.) (1999), 118 O.A.C. 385; 134 C.C.C.(3d) 570 (C.A.), dist. [para. 5].

R. v. K.P.H. (2007), 431 A.R. 249; 2007 ABQB 699, dist. [para. 5].

R. v. M.F., [2007] O.T.C. Uned. I62 (Sup. Ct.), refd to. [para. 5].

R. v. S.M., [2006] O.J. No. 5486 (C.J.), refd to. [para. 5].

R. v. Thibert (N.E.) (1996), 192 N.R. 1; 178 A.R. 321; 110 W.A.C. 321; 104 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 5].

R. v. Turpin, Siddiqui and Clauzel (1989), 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C.(3d) 8 (S.C.C.), dist. [para. 6].

R. v. Power (E.) (1994), 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 6].

R. v. Smith, 2007 CarswellOnt 6811 (Sup. Ct.), refd to. [para. 6].

R. v. L.E. (1994), 75 O.A.C. 244; 1994 CarswellOnt 215 (C.A.), refd to. [para. 6].

R. v. Pappas (C.S.), [2004] A.R. Uned. 591; 2004 ABQB 668, refd to. [para. 6].

R. v. Find (K.) (2001), 269 N.R. 149; 146 O.A.C. 236; 154 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 6].

R. v. Munson (K.) et al. (2003), 232 Sask.R. 44; 294 W.A.C. 44; 172 C.C.C.(3d) 515 (C.A.), refd to. [para. 6].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), refd to. [para. 6].

R. v. Collins (1989), 32 O.A.C. 296; 48 C.C.C.(3d) 343 (C.A.), refd to. [para. 6].

R. v. Steinke, 2008 ABQB 201, folld. [para. 7].

R. v. Martineau (1990), 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 7].

R. v. Beare; R. v. Higgins (1988), 88 N.R. 205; 71 Sask.R. 1 (S.C.C.), refd to. [para. 17].

Counsel:

Peter J. Royal, Q.C, for the accused/applicant;

Robert H. Robbenhaar and John Laluk (Crown Prosecutor's Office, Wetaskiwin), for the Crown/respondent.

These applications were heard on March 27, 2008, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Wetaskiwin, who delivered the following memorandum of decision on March 31, 2008.