R. v. To (L.Q.), (2007) 424 A.R. 124 (PC)

• Judge: Cummings, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 19, 2007
• Citations: (2007), 424 A.R. 124 (PC);2007 ABPC 192

R. v. To (L.Q.) (2007), 424 A.R. 124 (PC)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JL.157

Her Majesty the Queen v. Linh Quy To (070142153P10201-0204; 2007 ABPC 192)

Indexed As: R. v. To (L.Q.)

Alberta Provincial Court

Cummings, P.C.J.

July 13, 2007.

Summary:

The accused and another were jointly charged with possession of marijuana and production of marijuana. The accused was then separately charged with the same offences. She applied for severance of counts under s. 591(3) of the Criminal Code.

The Alberta Provincial Court dismissed the application.

Criminal Law - Topic 4737.1

Procedure - Information or indictment, charge or count, indictable offences - Severing counts in an indictment - The accused and another were jointly charged with possession of marijuana and production of marijuana - The accused was then separately charged with the same offences - She applied for severance of counts under s. 591(3) of the Criminal Code - The Alberta Provincial Court dismissed the application - The application was brought at a pre-preliminary trial stage - The Information, the exchange of counsel statements and verbal representations of counsel on the application comprised the entirety of what was before the court - No evidence in the preliminary hearing had been heard nor was there agreement of counsel as to salient facts - The Information alleged production of a controlled substance against both accused, but tied a Calgary address solely to this accused without mention of a specific address in relation to the other accused - This was suggestive of only one identified grow operation location, not two potential locations - It might be that the Crown had evidence which would bring more than one location into issue but the material before the court at this point was otherwise silent on the issue - Any attempt to sever counts at this stage would be arbitrary based only upon speculation - The absence of salient facts which might support the proper exercise of judicial discretion to sever were absent.

Cases Noticed:

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 11].

R. v. M.W.M. and M.R. (1998), 206 A.R. 367; 156 W.A.C. 367; 120 C.C.C.(3d) 46 (C.A.), refd to. [para. 11].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, affing. (1994), 42 B.C.A.C. 105; 67 W.A.C. 105; 89 C.C.C.(3d) 109 (C.A.), refd to. [para. 11].

R. v. Egoroff (P.F.) (1999), 237 A.R. 181; 197 W.A.C. 181 (C.A.), refd to. [para. 11].

R. v. G.G., [2005] A.R. Uned. 743 (Q.B.), refd to. [para. 11].

R. v. Spanevello (P.) et al. (1998), 108 B.C.A.C. 67; 176 W.A.C. 67; 125 C.C.C.(3d) 97 (C.A.), refd to. [para. 11].

R. v. Cormier (R.A.) (2005), 392 A.R. 246 (Q.B.), refd to. [para. 11].

R. v. Legg (G.E.) (1993), 122 N.S.R.(2d) 72; 338 A.P.R. 72; 80 C.C.C.(3d) 315 (S.C.), refd to. [para. 11].

Counsel:

T. Lord, for the Crown;

M. Gottlieb, for the accused.

This application was heard on June 19, 2007, at Calgary, Alberta, by Cummings, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on July 13, 2007.