R. v. Villeda (G.M.), 2010 ABCA 410

• Judge: O'Brien, Rowbotham and Sulatycky, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 08, 2010
• Citations: 2010 ABCA 410;(2010), 502 A.R. 78 (CA)

R. v. Villeda (G.M.) (2010), 502 A.R. 78 (CA);

      517 W.A.C. 78

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JA.006

Her Majesty the Queen (respondent) v. Geani Merari Villeda (appellant)

(0901-0304-A; 2010 ABCA 410)

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

Alberta Court of Appeal

O'Brien, Rowbotham and Sulatycky, JJ.A.

December 21, 2010.

Summary:

The accused was being tried on charges of assault with a weapon and aggravated assault. A voir dire was held respecting the admission of certain evidence.

The Alberta Court of Queen's Bench, in a decision reported at 481 A.R. 384, held that the evidence was admissible. The accused was convicted. He appealed.

The Alberta Court of Appeal, in a decision reported at 493 A.R. 279; 502 W.A.C. 279, allowed the appeal and directed a new trial. The trial judge's reasons for decision had not been part of the record before the Court of Appeal. Counsel who argued the appeal, both for the accused and the Crown, were not trial counsel. Counsel subsequently informed the Court of Appeal that neither they, nor the trial counsel, were aware of the reasons until the Court of Appeal inquired of them after its Memorandum of Judgment had been filed. The Crown sought "to reopen the appeal".

The Alberta Court of Appeal granted leave to reargue the appeal. The court ordered that it be heard by a new panel.

Courts - Topic 2183

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Appeal court - [See Practice - Topic 9136 ].

Courts - Topic 2186

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Prosecutions or criminal trials or matters - [See Practice - Topic 9136 ].

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - The accused was being tried on charges of assault with a weapon and aggravated assault - A voir dire was held respecting the admission of certain evidence - The trial judge held that the evidence was admissible - The accused was convicted - He appealed - The Court of Appeal allowed the appeal and directed a new trial - The trial judge's reasons for decision had not been part of the record before the Court of Appeal - Counsel who argued the appeal, both for the accused and the Crown, were not trial counsel - They subsequently informed the Court of Appeal that neither they, nor the trial counsel, were aware of the reasons until the Court of Appeal inquired of them after its Memorandum of Judgment had been filed - The Crown sought "to reopen the appeal" - The Alberta Court of Appeal granted "leave to reargue the appeal" - The court was not functus - No formal judgment roll had been entered - The reasons for decision were material, their supposed absence forming part of the grounds of appeal and a significant part of the arguments of both parties - As they were missing, the panel could not, and did not, consider them - The court ordered that the appeal be reargued before a new panel.

Cases Noticed:

W.W. Construction (Lethbridge) Ltd. et al. v. Red Deer College (1990), 104 A.R. 164; 1990 ABCA 20, refd to. [para. 4].

R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161, refd to. [para. 7].

R. v. Hummel (D.) (2003), 182 B.C.A.C. 93; 300 W.A.C. 93; 175 C.C.C.(3d) 1; 2003 YKCA 4, refd to. [para. 8].

R. v. Teskey (L.M.), [2007] 2 S.C.R. 267; 364 N.R. 164; 412 A.R. 361; 404 W.A.C. 361; 2007 SCC 25, dist. [para. 9].

Strichen et al. v. Stewart (2005), 367 A.R. 188; 346 W.A.C. 188; 2005 ABCA 201, refd to. [para. 11].

Smoky River Coal Ltd. et al., Re (1999), 244 A.R. 196; 209 W.A.C. 196; 1999 ABCA 252, refd to. [para. 11].

Société des Acadiens du Nouveau-Brunswick Inc. and Association de conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549; 66 N.R. 173; 69 N.B.R.(2d) 271; 177 A.P.R. 271, refd to. [para. 17].

Counsel:

C.E. Rideout, for the respondent;

M.G. Bates, for the appellant.

This matter was heard on November 8, 2010, by O'Brien, Rowbotham and Sulatycky, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment on December 21, 2010.