R. v. Travis (C.C.), 2012 ABQB 629

• Judge: Yamauchi, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Friday October 05, 2012
• Citations: 2012 ABQB 629;(2012), 550 A.R. 199 (QB)

R. v. Travis (C.C.) (2012), 550 A.R. 199 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. NO.003

Her Majesty the Queen (respondent/Crown) v. Chad Cameron Travis (appellant/accused)

(120026786S1; 2012 ABQB 629)

Indexed As: R. v. Travis (C.C.)

Alberta Court of Queen's Bench

Judicial District of Peace River

Yamauchi, J.

October 16, 2012.

Summary:

The accused was convicted of assault causing bodily harm, uttering threats and unlawful confinement. He was sentenced to 18 months' imprisonment for each offence, to be served consecutively. He appealed the convictions and the sentences.

The Alberta Court of Queen's Bench dismissed the conviction appeal and allowed the sentence appeal in part. The sentence was varied to allow the accused to serve the sentences for assault causing bodily harm and unlawful confinement concurrently.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - [See Criminal Law - Topic 7654 ].

Criminal Law - Topic 4302.1

Procedure - Trial judge - Duties and functions of - Respecting adjournments - Travis was convicted of assault causing bodily harm, uttering threats and unlawful confinement - At trial, the Crown concluded its case at 5:30 p.m. - Defence counsel requested an adjournment because (a) it was late in the day; (2) Travis was a diabetic who needed to eat; and (3) he wanted an opportunity to subpoena a police officer - The trial judge refused to grant an adjournment - Travis appealed on the grounds that the trial judge erred in not allowing the adjournment - The Alberta Court of Queen's Bench dismissed the appeal - The police officer had played a very limited role in the activities that resulted in the charges against Travis - At best, his evidence would have been given neutral weight - The officer could have been contacted before the trial - The trial judge considered the lateness of the proceedings and exercised his discretion judiciously - He was alive to Travis' medical condition and granted a 30-minute recess to resolve the situation - See paragraphs 54 to 70.

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - [See Criminal Law - Topic 4302.1 ].

Criminal Law - Topic 4683

Procedure - Judgments and reasons for judgment - Reasons for judgment - Whether required - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5868

Sentencing - Sentence - Particular offences - Forcible confinement or seizure - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5883

Sentencing - Sentence - Particular offences - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5895

Sentencing - Sentence - Particular offences - Threats - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - Travis was convicted of assault causing bodily harm, uttering threats and unlawful confinement - The charges arose when a complainant called police because he had allegedly been beaten up by Travis - The Crown did not suggest a sentence for the uttering threats charge, but requested that Travis be given 18 month concurrent sentences for the assault causing bodily harm and unlawful confinement charges - The trial judge sentenced Travis to 18 months' imprisonment for each charge, to be served consecutively - Travis appealed, arguing that the trial judge erred in imposing consecutive sentences because all three offences arose from the same incident and were connected in time, place and location - The Alberta Court of Queen's Bench allowed the appeal in part - The trial judge was alive to the issue of contemporaneity of time and location - Curial deference was owed to his decision - However, the trial judge did not provide reasons for why he departed from the Crown's request - Accordingly, the court ordered Travis to serve his sentences for assault causing bodily harm and unlawful confinement concurrently - See paragraphs 86 to 95.

Criminal Law - Topic 7654

Summary conviction proceedings - Appeals - Grounds - Incompetent representation or erroneous legal advice - Travis was convicted of assault causing bodily harm, uttering threats and unlawful confinement - The charges arose when a complainant called police because he had allegedly been beaten up by Travis - Travis testified that the complainant had been beaten up by some other person - The trial judge did not accept Travis' evidence - Travis appealed on the grounds that he did not have effective assistance of counsel - He asserted that his counsel was incompetent based on the failure to call as witnesses various police officers who might provide evidence that called into question the complainant's credibility, and the failure to request disclosure of police officers' notes and photographs that were taken at the scene - The Alberta Court of Queen's Bench dismissed the appeal - Trial counsel's acts or alleged omissions did not constitute incompetence - There was no evidence that any of the evidence that counsel allegedly failed to present would have contributed to a more favourable portrayal of the events that occurred - See paragraphs 21 to 48.

Criminal Law - Topic 7655

Summary conviction proceedings - Appeals - Grounds - Misapprehension of evidence - Travis was charged with assault causing bodily harm, uttering threats and unlawful confinement - The charges arose when a complainant called police because he had allegedly been beaten up by Travis - Travis testified that the complainant had been beaten up by some other person - The trial judge did not accept Travis' evidence and convicted him - Travis appealed on the grounds that the trial judge erred by misconstruing the evidence - He asserted that there were serious contradictions within the complainant's evidence and between the evidence of the complainant and a police officer - The Alberta Court of Queen's Bench dismissed the appeal - The trial judge articulated his findings of fact and his thought processes in arriving at the conclusions he reached - Based on the record, those findings of fact were the clear foundation for his reasoning in finding Travis guilty - See paragraphs 71 to 85.

Cases Noticed:

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 243 C.C.C.(3d) 289; 2000 CarswellAlta 348; 2000 SCC 22, refd to. [para. 39].

R. v. L.S.C. (2003), 327 A.R. 262; 296 W.A.C. 262; 2003 CarswellAlta 434; 2003 ABCA 105, refd to. [para. 43].

R. v. Lavoie (E.K.) (2000), 271 A.R. 321; 234 W.A.C. 321; 2000 CarswellAlta 1402; 2000 ABCA 318, refd to. [para. 47].

Strickland v. Washington (1984), 466 U.S. 668; 80 L.Ed.2d 674; 104 S.Ct. 2052, refd to. [para. 47].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 49].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 51].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 51].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 51].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 52].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 53].

R. v. Janzen (M.W.) (1998), 228 A.R. 12; 188 W.A.C. 12; 1998 ABCA 371, refd to. [para. 53].

R. v. Toor (J.S.) (2001), 277 A.R. 350; 242 W.A.C. 350; 2001 CarswellAlta 408; 2001 ABCA 88, refd to. [para. 61].

Darville v. R. (1956), 116 C.C.C. 113; 1956 CarswellOnt 28 (S.C.C.), refd to. [para. 61].

R. v. Dang (X.V.) et al. (2005), 380 A.R. 367; 363 W.A.C. 367; 2005 CarswellAlta 1877; 2005 ABCA 441, refd to. [para. 63].

R. v. Grant (R.), [2012] O.T.C. Uned. 1684; 2012 CarswellOnt 2843; 2012 ONSC 1684, refd to. [para. 66].

R. v. Aburto (1998), 219 A.R. 132; 179 W.A.C. 132; 1998 CarswellAlta 752; 1998 ABCA 243, refd to. [para. 67].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255; 1982 CarswellBC 683, refd to. [para. 79].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 80].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 80].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 CarswellMan 380; 2011 SCC 40, refd to. [para. 81].

R. v. Carr (J.J.) (2010), 493 A.R. 223; 502 W.A.C. 223; 2010 CarswellAlta 2429; 2010 ABCA 386, refd to. [para. 82].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 1996 CarswellBC 1000, refd to. [para. 88].

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 88].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 89].

R. v. Walters (N.W.) (2012), 529 A.R. 126; 2012 CarswellAlta 116; 2012 ABQB 83, refd to. [para. 91].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 CarswellNfld 74; 2002 SCC 26, refd to. [para. 94].

Counsel:

Barry W. McMullan, for the appellant/accused;

Nicholas Cake (Alberta Justice, Crown Prosecutor), for the respondent/Crown.

These appeals were heard on October 5, 2012, before Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Peace River, who delivered the following decision on October 16, 2012.