R. v. Sargent (J.A.),

• Judge: O'Brien,Paperny,Wittmann
• Neutral Citation: 2006 ABCA 411
• Citation: 2006 ABCA 411,(2006), 401 A.R. 146 (CA),401 AR 146,(2006), 401 AR 146 (CA),401 A.R. 146
• Date: 06 December 2006
• Court: Court of Appeal (Alberta)

R. v. Sargent (J.A.) (2006), 401 A.R. 146 (CA);

      391 W.A.C. 146

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JA.002

Her Majesty the Queen (respondent) v. Jeffery Arthur Sargent (appellant)

(0501-0354-A; 2006 ABCA 411)

Indexed As: R. v. Sargent (J.A.)

Alberta Court of Appeal

Paperny and O'Brien, JJ.A., and Wittmann, A.C.J.(ad hoc)

December 6, 2006.

Summary:

The accused appealed from his convictions for mischief and possession of an instrument suitable for the purpose of breaking into a motor vehicle. The Crown conceded that the conviction for mischief had to be set aside as the identification evidence was tainted.

The Alberta Court of Appeal entered an acquittal on the mischief charge, but dismissed the appeal from the conviction for possession of a break-in instrument.

Criminal Law - Topic 1789

Offences against property - Possession of breaking instruments - Evidence and proof - The accused appealed from his conviction for possession of an instrument suitable for the purpose of breaking into a motor vehicle - The accused argued that the trial judge erred in admitting the opinion of a police officer (Cst. Rowe) that the device found in the accused's possession (a V-shaped metal rod) was an instrument suitable for breaking into a motor vehicle - The accused further argued that there was no compliance with s. 657.3 of the Criminal Code, which required notice by the party intending to call an expert witness - The Alberta Court of Appeal dismissed the appeal - The trial judge did not regard Cst. Rowe's evidence as expert evidence, but allowed his opinion on the suitability of the device for break-ins as an observation based upon the officer's experience - Even if the evidence had been tendered as expert evidence, there was a basis for accepting the evidence based upon Cst. Rowe's experience - Section 657.3(3) of the Code did not bar the evidence, but entitled the other party to an adjournment, which was not requested in this case - See paragraphs 4 to 11.

Evidence - Topic 7003

Opinion evidence - Expert evidence - General - Procedural prerequisites to admission of - [See Criminal Law - Topic 1789 ].

Evidence - Topic 7003.2

Opinion evidence - Expert evidence - General - When expert evidence required - [See Criminal Law - Topic 1789 ].

Evidence - Topic 7112

Opinion evidence - Nonexpert evidence - Admissibility - [See Criminal Law - Topic 1789 ].

Cases Noticed:

R. v. McArthur (R.L.) (1999), 232 A.R. 349; 195 W.A.C. 349 (C.A.), refd to. [para. 3].

R. v. Ilina (L.) (2003), 170 Man.R.(2d) 207; 285 W.A.C. 207; 172 C.C.C.(3d) 240; 2003 MBCA 20, refd to. [para. 7].

R. v. Gagnon (R.J.) (1993), 85 Man.R.(2d) 194; 41 W.A.C. 194 (C.A.), refd to. [para. 8].

Counsel:

J.J. Kelly, for the appellant;

J.B. Hawkes, for the respondent.

This appeal was heard on December 6, 2006, before Paperny and O'Brien, JJ.A., and Wittmann, A.C.J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment was delivered orally by O'Brien, J.A., on December 6, 2006, and was filed on December 22, 2006.