Past Successes

When defending against charges involving controlled substances, firearms, or other weapons, there are two common approaches: attacking the search or other process by which the police discovered the contraband, and arguing that the contraband may not have been in the accused’s possession. Just because police find contraband does not mean that the contraband will be admitted into evidence, and just because contraband is found in a location somehow associated to you does not mean that you can be proven to be in possession of it.

[2019] A.J. No. 451 (Prov. Ct.)(Q.L.);  2019 CarswellAlta 671 (Prov. Ct.): The accused was found unconscious in the driver’s seat of a vehicle. Members of the RCMP detained him on suspicion of impaired driving, seized a breath sample, and determined that he had no alcohol in his body. They then arrested him for operating a motor vehicle while impaired by drug; the accused asserted that he wished to speak to a lawyer. RCMP members secured the accused in a police cruiser, and searched his vehicle. During the search, they found large quantities of drugs, including fentanyl, heroin, cocaine, crack cocaine, methamphetamine, marijuana, and cannabis resin (hashish).

The court determined that the seizure of the accused’s breath sample was unlawful, breaching his right to be secure against unreasonable seizure; the subsequent arrest for operating a motor vehicle while impaired by drug was made without the necessary grounds, breaching his right to be free from arbitrary arrest; the search of the accused’s vehicle was also made without the necessary grounds, breaching his right to be secure against unreasonable search; the failure of the police to update the accused that he was under arrest for drug-related offences once they located drugs in his vehicle breached his right to be promptly informed of the reasons for arrest; the failure by police to give the accused access to a lawyer for more than an hour while they searched his vehicle breached his right to retain and instruct counsel without delay on arrest; police questioning of the accused after he had asserted his right to counsel but before he was given an opportunity to contact a lawyer further breached his right to retain and instruct counsel without delay; the police decision to lay charges based purely on the accused’s decision not to answer questions breached his pre-trial right to silence; the police allegations that the accused breached the conditions of his release, and the use of those allegations at the accused’s bail hearing, breached the accused’s right not to be denied reasonable bail. All drugs and related evidence were excluded from evidence.

2017 ABQB 643: The accused was a passenger in a vehicle driven by his fiancée. Edmonton Police Service members became suspicious of the vehicle and decided to stop it, supposedly to check the driver’s sobriety. Police asked the accused passenger to identify himself; he did. The police asked him to step out of the vehicle; he did. The police then asked the vehicle’s driver (the accused’s fiancée) whether they could search the vehicle; they told her that if she had nothing to hide, there was no reason for her not to consent. The driver gave her consent to the search of the vehicle, and the police found a loaded handgun under the passenger seat that the accused had been sitting in. The accused was arrested, and asserted that he wanted to contact a lawyer. He was then transported back to the police detachment.

The court found that the Edmonton Police Service sergeant’s explanation for why he stopped the vehicle was untruthful, and that the stop of the vehicle was unlawful, in breach of the accused’s right to be free from arbitrary detention. The police failed to advise the accused of the reasons for his detention, breaching his right to be promptly informed of the reasons for detention, and failed to advise him of his right to counsel when he was first detained, breaching his right to be informed without delay of his right to counsel. The driver did not provide a valid consent for the search of the vehicle, and the search was unlawful; the accused’s right to be secure against unreasonable search was breached. The accused was not provided immediate access to counsel once at he police detachment, breaching his right to retain and instruct counsel without delay. The loaded handgun was excluded from evidence.

[2015] A.J. No. 1454 (Prov. Ct.)(Q.L.); 2015 CarswellAlta 2381 (Prov. Ct.): The accused was charged with trafficking methamphetamine after selling a small quantity of it to an undercover Edmonton Police Service officer. She was arrested, brought back to a police detachment, and strip searched.

The court found that the accused was entrapped, because the police did not reasonably suspect that she was involved in drug trafficking before they provided her with the opportunity to sell them methamphetamine. Additionally, the strip search of the accused was unlawful, breaching her right to be secure against unreasonable search. The charges were judicially stayed (i.e. thrown out).

[2015] A.J. No. 1035 (Prov. Ct.)(Q.L.); 2015 CarswellAlta 1784 (Prov. Ct.): A person whose iPad was stolen reported to the Edmonton Police Service that the thief had contacted him to try to sell it back to him. The police arranged a meeting with the thief.  A vehicle arrived at the location of the arranged meeting.  Police suspected that the iPad may be in the vehicle, and arrested the driver as well as the accused, who was in the front passenger seat. After searching the accused following the arrest, they located methamphetamine.

The court found that the arrest of the accused was unlawful for two reasons: first, the police only suspected that the iPad was in the vehicle, which fell short of believing on reasonable grounds that it was in the vehicle, which is the standard required for arrest. Second, even if police believed that the iPad was in the vehicle, that did not give them grounds to arrest the accused, who, as passenger, could not be presumed to be in possession of everything in the vehicle. The arrest therefore breached the accused’s right to be free from arbitrary arrest, and the subsequent search breached his right to be secure against unreasonable search. The methamphetamine was excluded from evidence.

[2015] A.J. No. 872 (Prov. Ct.)(Q.L.); 2015 CarswellAlta 1461 (Prov. Ct.): Members of the Edmonton Police Service recognized the accused as somebody who had outstanding warrants for his arrest. They arrested him for those warrants, and searched his pockets as well as the backpack that the accused had been carrying. They found methamphetamine in the accused’s pocket, and bear spray and break-in tools in the backpack.

The court found that, while police were entitled to arrest the accused for his outstanding warrants, an arrest for outstanding warrants does not permit them to reach into the accused’s pockets in search of drugs, or to search the accused’s backpack for evidence. Both searches breached the accused’s right to be secure against unreasonable search, and the methamphetamine, bear spray, and break-in tools were excluded from evidence.

When a person is charged with offences of sex or violence, it is usually because a complainant claims to have been assaulted by them. But the complainant may be lying, or they may be sincerely mistaken about the identity of their assailant. Skillful cross-examination can expose deficiencies in the complainant’s evidence and lead to acquittals, especially when combined with problems with the police investigation.

2024 ABCJ 5: The accused, having caught another woman in flagrante delicto with her husband, took pictures of the woman as she was getting dressed.  She sent a photo or photos to her husband and a third party.  The accused was charged with unlawful distribution of intimate images.  The court held that the images distributed did not qualify as "intimate images", because the subject, who was holding clothing in front of herself in them, was not "nude" within the meaning of the relevant section of the Criminal Code.  The accused was acquitted.

2021 ABPC 241: The complainant alleged that the accused, her boyfriend, had assaulted her and sexually assaulted her while they were hanging out together at the accused’s home. During Steve’s cross-examination, she admitted that the sexual assault may not have happened. Several other contradictions were also exposed. The court found the complainant to be unreliable. While the accused admitted to applying some force to the complainant, the Crown did not prove that that force was not for the legitimate purpose of forcing the complainant, who was at that point an unwelcome guest, to leave his home. The accused was acquitted of all charges.

[2019] A.J. No. 1733 (Q.B.)(Q.L.): The accused was charged with sexually assaulting the complainant while she was asleep at the home of a mutual friend. By the time the complainant reported the offence to the Edmonton Police Service, the accused had returned to his home community outside of Edmonton. The police requested, and were granted, a warrant for his arrest. They then proceeded to make no efforts to locate the accused until he happened to be arrested on unrelated matters more than three years later. The court found that the lack of any effort by police to arrest the accused once they had a warrant for his arrest, and the delay that resulted, breached the accused’s right to be tried within a reasonable time. The charges against him were judicially stayed (i.e. thrown out).

2017 ABQB 282: The accused was charged with attempted murder, aggravated assault, and uttering threats against his estranged wife. He elected to be tried by judge and jury. Prior to the jury hearing evidence, the judge found that members of the Edmonton Police Service breached the accused’s right to counsel in some of their questioning of him. His responses to those questions were excluded from evidence. Following a jury trial, the accused was found not guilty of attempted murder and aggravated assault, and guilty of the far less serious offences of attempting to unlawfully case bodily harm and common assault (he was also found guilty of uttering threats). He was sentenced to house arrest, rather than to the lengthy penitentiary sentence he would have received if found guilty of the offences as charged.

2015 ABPC 39: The complainant claimed that the accused, a stranger to her, exposed himself to her in the women’s washroom of a McDonald’s. Following Steve’s cross-examination of the complainant, the court found that her evidence was unreliable, and the accused was acquitted.

The defences available to so-called "property crimes" (theft, fraud, possession of stolen property, etc.) are many and varied: do police have the wrong person?  Did the accused come into possession of stolen property innocently, not knowing that it was stolen?  Was the accused even in possession of the property?  Did the police breach the Charter rights of the accused during their investigation?  A deft legal strategy can easily make the difference between conviction and acquittal.

[2022] A.J. No. 1366 (Prov. Ct.)(Q.L.): Steve's client was charged with breaking and entering a fenced yard from which a large amount of machinery was stolen.  He was found on the property by its owner sometime in the aftermath of the theft.  The Criminal Code says that if it is proven that a person broke and entered a particular place, it is presumed, absent evidence to the contrary, that they did so with the intent to commit an offence once in.  The court found that Steve's client's non-avoidant behaviour--including speaking to the property owner and actually returning to the property proactively once police were on scene--constituted evidence to the contrary, and Steve's client was acquitted.

Steve's client was also charged with breaching a condition not to be behind the steering wheel of any motor vehicle, on the basis that he was observed operating a motorcycle.  The court found that, while the court imposing the condition may have intended that the order apply to motorcycles, the wording of the condition on its face did not include motorcycles (which have no steering wheel), and Steve's client could not have been expected to know that he was prohibited from driving motorcycles; he was found not guilty of that charge as well.

2022 ABPC 202: Steve's client was charged with possession of various stolen property after police obtained a search warrant for his home.  The judge agreed with Steve's submissions that the information put before the justice of the peace by the police was not sufficient to issue a search warrant, and the warrant was held to be invalid.

2022 ABQB 457: Steve's client was accused of being one of three individuals who robbed a restaurant at gunpoint.  Evidence tying him to the robbery included a glove bearing his DNA found just outside a stolen vehicle believed to have been one of the getaway vehicles, a firearms license bearing his photo and the name of the individual under whose identity a second suspected getaway vehicle had been rented, and his presence in the house believed to contain proceeds of the robbery soon after the robbery.  The trial judge agreed with Steve's position that this evidence was "not even close" to enough to prove his client's guilt, and his client was found not guilty of all charges.

Much of Steve’s early career was spent defending persons accused of impaired driving. Impaired driving charges are much less common than they used to be in Alberta, but Steve's experience with them taught him to review police investigations with a fine-toothed comb, and to aggressively challenge police conduct on the stand – lessons that have served him well when defending against other charges.

2020 ABPC 44: The Edmonton Police Service received a complaint of a possible impaired driver, who had been followed to a particular residence. They attended at that residence and knocked on the door; the accused answered. The police questioned the accused about whether there was anybody else in the house; the accused said that there was not. The police wound up entering the house; they claimed that the accused invited them in. The court found that the police witnesses were not believable, and that their entry into the accused’s home was illegal. Statements made by the accused and observations made by the police once in his home were excluded from evidence, and the accused was acquitted.  This case was featured in a Toronto Star exposé about the lack of accountability when police officers are found by judges to have engaged in misconduct.

[2019] A.J. No. 1978 (Prov. Ct.)(Q.L.): The accused was charged with impaired driving and refusal to provide a breath sample. She was arrested by the Edmonton Police Service, and brought to a police detachment. There, surveillance cameras whose footage was fed to television monitors visible to numerous police officers and civilian police employees, captured video of the accused using the toilet, including of her buttocks and genitals. The court held that this filming was unlawful and breached the accused’s right to be secure against unreasonable search. The charges against her were judicially stayed (i.e. thrown out).

2019 YKTC 50: In Steve’s only ever trial in the Yukon, the accused was found in the driver’s seat of a vehicle in the ditch. Passersby dealt with her and thought she may be intoxicated; they called police. Members of the RCMP arrived on scene and located her in the vehicle.  They placed her under arrest for impaired driving, advised her of her right to counsel, and demanded samples of breath.  On the way to the detachment, the arresting officer asked the accused whether she had a particular lawyer in mind; she said she did not, and the officer told her that he would call Legal Aid for her.  The accused provided the breath samples demanded.  The officer then lodged her in cells, with a note that she should be released when sober.  She was not actually released for another nine and a half hours.

The court excluded the breath samples from evidence, holding that the police lacked grounds to arrest the accused or demand samples of her breath, breached her right to counsel by deciding to call Legal Aid for her rather than giving her the opportunity to look through a phone book or otherwise exercise her own judgment, and held her in custody impermissibly long.  The accused was acquitted.

2014 CarswellAlta 2709 (Prov. Ct.): The accused was pulled over by members of the Edmonton Police Service. Police came to believe that the accused had been drinking, but did not believe on reasonable grounds that he had drunk so much that he was impaired. They took him back to their police vehicle to seize a sample of his breath into a roadside breath-testing instrument. Prior to placing him in their vehicle, they patted him down. This pat-down search was part of the officers’ standard practice when putting a person in their police vehicles, and not because they believed that the accused – who was cooperative and polite – posed any threat to them or to the public. The court held that, while routine pat-down searches of persons who under arrest are lawful, where police do not have grounds to arrest, they can only conduct such searches where they have a well-founded belief that the search is necessary to protect officer or public safety. The search of the accused was unlawful and a breach of the accused’s right to be secure against unreasonable search; the accused’s breath samples were excluded from evidence as a result, and he was acquitted.

This case was, to our knowledge, the first successful use of this defence.  Following Steve securing this acquittal, he used the same argument to win trials for other clients, in the following cases:

[2017] A.J. No. 1044 (Prov. Ct.)(Q.L.); 2017 CarswellAlta 1807 (Prov. Ct.);

[2017] A.J. No. 477 (Prov. Ct.)(Q.L.);  2017 CarswellAlta 803 (Prov. Ct.);

[2015] A.J. No. 1122 (Prov. Ct.)(Q.L.); 2015 CarswellAlta 1939 (Prov. Ct.);

[2015] A.J. No. 640 (Prov. Ct.)(Q.L.); 2015 CarswellAlta 1030 (Prov. Ct.).

Many other defence lawyers across the province subsequently used the same argument to get their clients acquitted.

[2014] A.J. No. 1503 (Prov. Ct.)(Q.L.); 2014 CarswellAlta 2649 (Prov. Ct.): Members of the RCMP received a complaint that the accused, following a domestic dispute, had driven away while impaired. They located the vehicle in a ditch, and the accused standing outside of it, unsteady on his feet. The police placed him under arrest, but did not demand samples of the accused’s breath for half an hour or more. Because the Criminal Code requires that, if police are going to demand samples of a driver’s breath, they do so as soon as practicable, the court found that the seizure of the accused’s breath was unreasonable, in breach of the accused’s right to be secure against unreasonable seizure. Once back at the detachment, the accused was placed in a “phone room” to contact a lawyer; on cross-examination, police agreed that they may have removed him from the phone room before he was finished, and that he may have told them that he had been unable to reach a lawyer. The court found a breach of the accused’s right to counsel, and the breath samples were excluded and the accused acquitted.

The best advice Steve ever got about sentencing was from a senior Edmonton defence lawyer: “Try to avoid it.” Unfortunately, this is not always possible. But vigorous advocacy shouldn’t stop at the time of conviction; Steve has used breaches of his clients’ rights as a basis to reduce their sentences on several occasions.

[2019] A.J. No. 313 (Prov. Ct.)(Q.L.); 2019 CarswellAlta 480 (Prov. Ct.): Steve’s client pled guilty to a number of charges, most notably possession of a loaded handgun. Steve successfully sought a reduction of his client’s sentence on the basis that the police strip search of his client following his arrest breached his right to be secure against unreasonable search and seizure.

2018 ABPC 172: Steve’s client pled guilty to robbery and theft of a motor vehicle. At the time, provisions of the Criminal Code (since repealed) stipulated that if an accused person was on bail, and then had their bail revoked because they were believed to have committed new offences, then the maximum credit they could receive for their time in custody was one day credit for each day spent in custody, rather than the usual rate of one and a half days of credit for each day spent in custody. Steve was successful in applying for a declaration from the sentencing court that this provision was unconstitutional, because it was overbroad, in breach of his client’s right not to be deprived of liberty except in accordance with the principles of fundamental justice.

[2016] A.J. No. 1109 (Prov. Ct.)(Q.L.); 2016 CarswellAlta 2039 (Prov. Ct.): Steve’s client pled guilty to driving while disqualified. Because he had an extensive prior record of driving while disqualified, the Crown sought a sentence of between nine and twelve months custody. While the sentencing judge agreed that nine months custody would have been appropriate, he reduced the sentence to six months because he agreed with Steve’s submission that his client’s right not to be deprived of security of the person except in accordance with the principles of fundamental justice was breached by the long-term failure of the Edmonton Remand Centre to provide adequate treatment of a severe toothache.

Some of Steve’s most recognized work has come on appeal. Sometimes these appeals are the result of Steve suffering defeat at trial (Steve refers to these as his “fit-of-pique appeals”, because of his emotional state when filing them), and sometimes they are the result of other lawyers referring their clients to him after they were unsuccessful at trial. His record of success in appellate courts shows that defeat at trial need not be the end of the fight.

2021 ABCA 372: While represented by other counsel, Steve's client pled guilty to offences arising from two incidents, one in which he was driving while disqualified from doing so, and the other in which he was driving while impaired by alcohol, while also disqualified from driving and being out after curfew.  Despite the Crown seeking only twelve months incarceration and a ten-year driving prohibition, the sentencing judge imposed thirty-two months incarceration and a thirteen-year driving prohibition.  The appeal was only a partial victory; while the Court of Appeal agreed with Steve's arguments that the sentencing judge had made several errors, it declined to change the thirty-two month jail sentence.  It did, however, accept Steve's argument that the driving prohibition imposed was unlawful, and reduced it to five years.

2021 ABQB 449: Steve’s client was convicted at trial (while represented by other counsel) of impaired care or control of a motor vehicle. On appeal, the conviction was overturned on the basis that the trial judge reversed the burden of proof on the question of whether Steve’s client was actually in care or control of a motor vehicle, and also erred in applying the law governing whether the results of breath testing could be presumed to be accurate.

2020 ABCA 234: Steve’s client was convicted at trial (while represented by other counsel) of domestic assault and firearms offences; his ex-partner testified that Steve’s client had assaulted her, and also testified that a sawed-off shotgun located by police belonged to Steve’s client. After reviewing Steve’s submissions, the Crown agreed that the trial judge’s analysis of the witnesses’ credibility was flawed, and that a new trial was required on all charges. However, the Court of Appeal accepted Steve’s submissions that the new trial should be limited to only the assault charge, with acquittals being entered on the firearms charges, because, in addition to the problems with the trial judge’s credibility analysis, there was no evidence at trial that the item seized met the legal definition of a firearm.

2019 ABCA 251: Steve’s client was convicted at trial (while represented by other counsel) of breaking and entering a residence and stabbing the homeowner when he arrived home. He was sentenced to seven years incarceration. The Court of Appeal accepted Steve’s argument that the sentencing judge had failed to properly consider his client’s Indigenous heritage and the effects on him of Canada’s history of colonialism, as required by the Criminal Code, and reduced the sentence to six years.

2019 ABQB 829: Steve’s client’s conviction at trial (while represented by other counsel) for operating a motor vehicle with a proscribed concentration of alcohol in the blood was overturned on the basis that the trial judge had not considered the failure of the police to conduct the required observation period prior to taking samples of Steve’s client’s breath. On this appeal, Steve was co-counsel with another lawyer from his former firm; the Crown subsequently appealed this decision, and the Alberta Court of Appeal restored the conviction. Steve's old firm then unsuccessfully sought leave to appeal the decision to the Supreme Court of Canada. Steve’s involvement in the case ended following this first appeal.

[2018] A.J. No. 1573 (Q.B.)(Q.L.); 2018 CarswellAlta 3243 (Q.B.): Steve’s client was convicted at trial (with him as counsel) of possession of controlled substances and breaching conditions of her release. The conviction was overturned on appeal on the basis that the police search of Steve’s client’s purse and shoe, in which the controlled substances were located, was illegal.

2017 ABCA 222: Steve’s client pled guilty (with him as counsel) to possession of methamphetamine for the purpose of trafficking and weapons offences, and was sentenced to thirty-three months incarceration. The Court of Appeal agreed with Steve’s submissions that the sentencing judge had failed to comply with procedural fairness by not advising the parties that she was considering imposing a higher sentence than the one sought by the Crown, and that she had wrongly imported evidence heard in other cases to this one. The sentence was reduced to time-served.

2016 ABCA 146: Steve’s client was convicted at trial (while represented by other counsel) of involvement in a “Nigerian lottery scam”, in which victims were falsely told that they had won a cash prize, but needed to pay certain administration fees prior to the prize being released. Though the Court of Appeal rejected several of Steve’s arguments and upheld several of the convictions entered at trial, it did agree that the conviction for money laundering was unreasonable, because, despite the evidence that the proceeds of the fraud were sent to the United Kingdom, there was no evidence that this was done for the purpose of disguising their origin.  An acquittal was entered on that charge.

[2015] A.J. No. 430 (Q.B.)(Q.L.); 2015 CarswellAlta 612 (Q.B.): Steve’s client was found not guilty of impaired driving at trial after the trial judge excluded evidence of breath samples because of the police practice of conducting a pat-down search of everybody from whom they took a roadside breath sample (see 2014 CarswellAlta 2709 (Prov. Ct.) under “Impaired driving”, above). The Crown appealed, arguing that, while the police practice may have been unlawful, it should not have resulted in Steve’s client’s breath samples being excluded from evidence. The court on appeal agreed with Steve and with the trial judge, and Steve’s client’s acquittal stood.

[2014] A.J. No. 1504 (Q.L.)(Q.B.); 2014 CarswellAlta 2648 (Q.B.): Steve’s client was acquitted at trial of impaired driving. At trial, his lawyer (not Steve) demanded that the Crown provide calibration and maintenance records of the instrument used to test samples of his client’s breath; at the time, the law in Alberta was that the Crown was required to do so (this law was subsequently reversed by the Supreme Court of Canada in a case on which Steve was counsel). The Crown refused. Trial counsel applied to have the charges judicially stayed (thrown out) because of this refusal. The trial judge instead excluded evidence of Steve’s client’s breath samples, and found him not guilty. The Crown appealed, arguing that the court rulings requiring the Crown to provide calibration and maintenance documents were wrong. On appeal, the court agreed with Steve and the trial judge, and upheld the acquittal.

[2014] A.J. No. 405 (Q.B.)(Q.L.); 2014 CarswellAlta 605 (Q.B.): Steve’s client was convicted at trial of driving with a proscribed concentration of alcohol in his blood. At trial, Steve had argued that his client’s breath samples should have been excluded from evidence, because the police had destroyed a sticker on the roadside breath-testing instrument that showed when the instrument was next due to be calibrated, without having first disclosed a copy of this sticker to Steve. The trial judge agreed with the Crown’s position that this sticker was irrelevant and need not have been disclosed. The appeal court agreed with Steve that the sticker was relevant, and overturned his client’s conviction.

[2013] A.J. No. 1486 (Q.B.)(Q.L.); 2013 CarswellAlta 2854 (Q.B.): Steve’s client was convicted at trial (while represented by other counsel) of operating a motor vehicle with a proscribed concentration of alcohol in his blood. The appeal court agreed with Steve’s argument that the trial judge had wrongly concluded that the police officer who seized samples of his client’s breath had reasonable grounds to demand breath samples, overturned the conviction, and acquitted him.