R. v. Van Straten (S.D.), (1994) 157 A.R. 190 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: September 21, 1994
• Citations: (1994), 157 A.R. 190 (CA)

R. v. Van Straten (S.D.) (1994), 157 A.R. 190 (CA);

    77 W.A.C. 190

MLB headnote and full text

Her Majesty The Queen (appellant) v. Sean Darrel Van Straten (respondent)

(Appeal No. 9203-0861-A0)

Indexed As: R. v. Van Straten (S.D.)

Alberta Court of Appeal

Fraser, C.J.A., McDonald and

Rawlins, JJ.(ad hoc)

September 21, 1994.

Summary:

The accused was convicted, in absentia, for various traffic violations. He applied under s. 38 of the Provincial Offences Procedure Act to open up the default conviction. An oral hearing was directed. The accused was convicted of perjury respecting the oral evidence given at the hearing. The accused was sentenced to 90 days' imprisonment and a $700 fine. He appealed against conviction. The Crown appealed sentence.

The Alberta Court of Appeal, in a judg­ment reported 149 A.R. 259, dismissed the conviction appeal. The sentence appeal was subsequently heard.

The Alberta Court of Appeal allowed the appeal and substituted a sentence of 12 months' imprisonment, less the 90 days already served, plus the $700 fine.

Criminal Law - Topic 5900

Sentence - Perjury - The accused was convicted, in absentia, for various traffic violations - He applied under s. 38 of the Provincial Offences Procedure Act to open up the default conviction - An oral hear­ing was directed - The accused was con­victed of perjury respecting the oral evi­dence given at the hearing - The accused was sentenced to 90 days' imprisonment and a $700 fine - The Crown appealed - The accused had a previous conviction for obstruction of justice and a history of traf­fic violations - The perjury was planned and deliberate and caused incon­venience and embarrassment to an inno­cent person - The Alberta Court of Appeal held that an appro­priate sentence was 12 months' imprisonment plus the $700 fine.

Criminal Law - Topic 5900

Sentence - Perjury - The Alberta Court of Appeal stated that factors to be considered in sentencing for perjury were (1) the relative seriousness of the offence with respect to which the perjured testimony was given; (2) the effect, if any, on the outcome of the trial by reason of the per­jured evidence; (3) whether the testimony dealt with a vital part of the evidence; (4) whether the perjured evidence led to the implication of an innocent person in a crime, which would ordinarily be a most aggravating factor; and (5) whether the perjury was planned and deliberate or the result of a sudden temptation in the course of giving evidence - To that list the court added "even if the perjured evidence did not in the result have an effect on the outcome of the trial ... an important factor to be considered is the effect which the perjuring witness intended to have upon the outcome" and "whether the perjured evidence led, if not to the implication of an innocent person in a crime, at least to serious inconvenience and even embar­rassment on the part of an innocent per­son".

Cases Noticed:

R. v. Jordan and Sager (1986), 72 A.R. 167 (C.A.), appld. [para. 6].

R. v. Turner (1981), 14 Sask.R. 321; 65 C.C.C.(2d) 335 (C.A.), refd to. [para. 13].

Counsel:

G. Tomljanovic, for the appellant;

M.T. Duckett, for the respondent.

This appeal was heard on September 21, 1994, before Fraser, C.J.A., McDonald and Rawlins, JJ.(ad hoc), of the Alberta Court of Appeal.

On September 21, 1994, McDonald, J.(ad hoc), delivered the following memorandum of judgment orally for the Court of Appeal.