R. v. Sehn (M.G.), (2004) 358 A.R. 304 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 15, 2004
• Citations: (2004), 358 A.R. 304 (QB);2004 ABQB 367

R. v. Sehn (M.G.) (2004), 358 A.R. 304 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. MY.105

Her Majesty the Queen (respondent) v. Mathew George Sehn (applicant)

(A05027153K; 2004 ABQB 367)

Indexed As: R. v. Sehn (M.G.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

May 10, 2004.

Summary:

The accused was found guilty of careless driving in absentia in the Provincial Court. The accused sought leave to extend the time to file an appeal and, if the extension was granted, to strike out the conviction.

The Alberta Court of Queen's Bench granted leave to extend the time to file the appeal and allowed the appeal. The court set aside the conviction and remitted the matter to the Provincial Court for trial.

Trials - Topic 1189

Summary convictions - Appeals - Notice of appeal - Extension of time for - The accused was found guilty of careless driving in absentia in the Provincial Court - The accused sought leave to extend the time to file an appeal - The Alberta Court of Queen's Bench held that justice required that an extension of time to appeal be granted - The accused established that he had a bona fide intention to appeal while the right to appeal existed and he had accounted for the delay by reference to his lawyer's office's failure to follow up on his request for representation - The accused had not taken any benefit from what had occurred to date and he established that he had a reasonable chance of success on appeal - See paragraphs 28 to 34.

Trials - Topic 2646

Verdicts and discharges - Verdicts - Conviction in absentia - The accused was found guilty of careless driving in absentia in the Provincial Court - The Alberta Court of Queen's Bench allowed an appeal, set aside the conviction and remitted the matter to the Provincial Court for trial - The court considered that the "conviction in absence" process resulted in a conviction despite the absence of a guilty plea and despite the absence of sworn or affirmed testimony - The court held that that process did not meet the basic standards of the Canadian criminal justice system - In any event, the court held that in the circumstances here, where the court was satisfied that there was a real attempt by the accused to have his lawyer represent him before the Provincial Court, it would not be in the interests of justice to allow the conviction in absence to be maintained - See paragraphs 35 to 44.

Cases Noticed:

R. v. Adgey - see Adgey v. R.

Adgey v. R. (1973), 13 C.C.C.(2d) 177 (S.C.C.), refd to. [para. 6].

R. v. Beauchamp (1953), 106 C.C.C. 6 (Ont. C.A.), refd to. [para. 6].

R. v. Jacobsen (1964), 48 W.W.R.(N.S.) 272 (B.C.C.A.), refd to. [para. 6].

R. v. Brown (1986), 71 A.R. 137 (Q.B.), refd to. [para. 6].

R. v. Guenter, [1990] A.J. No. 1276 (Q.B.), refd to. [para. 6].

R. v. Cumpson, [1994] O.J. No. 4132 (Prov. Ct.), refd to. [para. 6].

Cairns v. Cairns et al., [1931] 4 D.L.R. 819 (Alta. C.A.), refd to. [para. 6].

Royal Bank of Canada v. Morin et al. (1976), 6 A.R. 341 (C.A.), refd to. [para. 6].

R. v. Shewfelt, [1997] A.J. No. 132 (Q.B.), refd to. [para. 6].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 6].

R. v. Coreas (1997), 115 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 6].

Smoky Lake General and Auxiliary Hospital and Nursing Home District No. 73 (Board of Directors) v. Higdon (1983), 50 A.R. 185 (C.A.), refd to. [para. 6].

R. v. Finley (D.E.) (1995), 174 A.R. 118; 102 W.A.C. 118 (C.A.), refd to. [para. 6].

R. v. Slobodan (M.L.) (1993), 135 A.R. 181; 33 W.A.C. 181 (C.A.), refd to. [para. 6].

R. v. Kambeitz (J.M.) (1997), 213 A.R. 78 (Q.B.), refd to. [para. 6].

Bond (A.E.) v. R., [2000] A.R. Uned. 347 (Q.B.), refd to. [para. 6].

R. v. Dewal (E.), [2002] O.T.C. 643 (Sup. Ct.), refd to. [para. 6].

R. v. Wetmore (L.J.) (2003), 338 A.R. 144 (Q.B.), refd to. [para. 6].

R. v. Bhojani (F.), [2001] A.R. Uned. 290 (Q.B.), refd to. [para. 6].

R. v. Yam (C.) (2004), 358 A.R. 288; 2004 ABQB 356, refd to. [para. 6].

Daniels et al. v. Canada (Attorney General) (2003), 232 Sask.R. 64; 294 W.A.C. 64 (C.A.), refd to. [para. 6].

Counsel:

Chady F. Moustarah, Tarrabain O'Byrne and Company, for the applicant;

Robert F. Fata, Crown Prosecutor, for the respondent.

This application and appeal were heard on April 15, 2004, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on May 10, 2004.