GUNN LAW FLAGSHIP CASES

SUPREME COURT OF CANADA CASES

2018 SCC 44 – Disclosure of calibration and maintenance documents for approved breath-testing instruments – court held (with one dissent) – disclosure should be limited to fruits of the investigation. Counsel: S.M. Smith.

2015 SCC 46 – Counsel for the intervener Criminal Trial Lawyers Association in inquiry into constiutionality of impaired driving legislation in British Columbia. Counsel: S.K.C. Prithipaul.

2012 SCC 57 – Counsel for the intervener Criminal Trial Lawyers Association in impaired driving case involving evidence to the contrary. Counsel: S.K.C. Prithipaul.

2007 SCC 39 – Impaired driving causing death and driving with blood-alcohol level over the limit – s. 8 Charter – reasonable and probable grounds to arrest and make breath demand – appeal dismissed – unanimous that trial judge erred in statement of law but majority of 5 to 4 hold that totality of judgment reflected correct test. Counsel: S.K.C. Prithipaul.

(1981), 62 C.C.C. (2d) 97 (S.C.C.) – Accused acquitted on charge of importing heroin – trial judge acquitting on basis of reasonable doubt concerning accuracy of drug analysis – acquittal upheld against Crown appeal. Counsel: P.B. Gunn.

ALBERTA CASES

COURT OF APPEAL

2019 ABCA 317 – Crown appeal of acquittal in French trial at the Court of Queen’s Bench. Issue was whether the warrant authorizing searches of two residences in Quebec in a multi-million dollar fraud case was valid. The appeal, also conducted in French, was allowed and the matter remitted to the Court of Queen’s Bench for a Jordan Hearing. Counsel S.G. Emery.

2015 ABCA 97 – Right to counsel in a case of screening device refusal – leave to appeal to the Court of Appeal granted – cased to be heard on January 6, 2016. Counsel: S.K.C. Prithipaul.

2012 ABCA 189 – Right to counsel, waiver of the right and remedy once a breach of s. 10(b) has been established. Client acquitted on appeal. Counsel: S.K.C. Prithipaul.

2006 ABCA 288 – Break and enter – sentence appeal – sentence reduced by one year upon appeal. Counsel: S.K.C. Prithipaul.

2005 ABCA 105 – Impaired driving, dangerous driving and driving while over the legal limit – s. 9 Charter – arbitrary detention after samples of breath already provided – Court of Appeal’s previous decision in R. v. Cutforth (1987), 40 C.C.C. (3d) 253 (Alta. C.A.) overturned – accused persons who are arbitrarily detained after providing breath samples may be entitled to Charter relief. Counsel: S.K.C. Prithipaul.

2003 ABCA 23 – S. 7 Charter – remedies for late disclosure – trial judge awards costs in three cases where Crown failed to provide timely disclosure – Court of Appeal upholds costs award (our office acted as trial counsel only in this case). Trial counsel: P.B. Gunn.

[1982] A.J. No. 241 (C.A.) (Q.L.) – Driving while over legal limit – facts on which expert bases opinion must be proven. Counsel: P.B. Gunn.

[1981] A.J. No. 698 (C.A.) (Q.L.) – Jurisdiction of court to deal with matter when the information not before the court. Counsel: P.B. Gunn.

COURT OF QUEEN’S BENCH

2019 ABQB 829 – Observation Period in impaired driving investigations and presumption of identity – appeal allowed on the issue of whether a proper observation period was conducted – appeal dismissed on issue of presumption. Counsel S.G. Emery and S.M. Smith.

2017 ABQB 643 – Defence application for exclusion of evidence of a handgun and its seizure from a vehicle allowed. Counsel S.M. Smith.

2015 CarswellAlta 612 (Q.B.) – Trial Judge’s decision to exclude evidence on the basis of an illegal pat-down search is affirmed on appeal. Counsel: S.M. Smith (trial and appellate counsel).

2014 CarswellAlta 2648 (Q.B.) – Calibration and maintencance records for breath-testing instruments such as the Intox EC IR II are relevant and must be disclosed. Counsel: S.M. Smith.

[2014] A.J. No. 405 (Q.B.) (Q.L.) – Stickers on a screening device are relevant and must be disclosed – conviction overturned on appeal. Counsel: S.M. Smith.

2013 A.J. No. 1486 (Q.B.) (Q.L.) – Evidence ought to have been excluded at trial for driving with a blood alcohol level over the legal limit. Conviction overturned on appeal and new trial ordered. Counsel: S.M. Smith.

2013 ABQB 121 – Successful sentence appeal of a joint submission on a case of assault with a weapon. The Learned Trial Judge erred in not considering Gladue factors in the sentencing of an aboriginal offender. Sentence reduced from nine months to 175 days (time served). Counsel: S.K.C. Prithipaul.

2004 ABQB 18 – Conviction for operation of a motor vehicle with a blood alcohol level exceeding the legal limit overturned on appeal. Learned trial judge erred in evaluation of evidence to the contrary. Counsel: S.K.C. Prithipaul.

[2004] A.J. No. 622 (Q.B.) (Q.L.) – S. 8 Charter – calibration and maintenance of screening devices – conviction overturned and acquittal entered – failure to ensure proper calibration and maintenance may result in finding of Charter violation and exclusion of evidence. Counsel: S.K.C. Prithipaul.

[2004] A.J. No. 319 (Q.B.) – Cyanide spill on part of nickel plating company – provincial regulatory offences – appropriate sentence – successful defence of Crown appeal of sentence. Counsel: S.K.C. Prithipaul.

2003 ABQB 242 – Screening device was not calibrated and maintained properly. Conviction for driving with a blood alcohol level over the legal limit was overturned on appeal and a new trial was ordered. Counsel: S.K.C. Prithipaul.

[2002] A.J. No. 1285 (Q.B.) (Q.L.) – Driving while over legal limit – s. 8 Charter – reasonable and probable grounds – conviction overturned and acquittal entered. Counsel: P.B. Gunn.

2015 CarswellAlta 1030 (Prov. Ct.) – Illegal pat down search results in exclusion of evidence of a blood alcohol level over the legal limit. Counsel: S.M. Smith.

2015 CarswellAlta 1939 (Prov. Ct.) – Illegal pat down search results in exclusion of evidence of a blood alcohol level over the legal limit. Counsel: S.M. Smith.

2015 CarswellAlta 1784 (Prov. Ct.) – Accused stopped on suspicion he was in possession of stolen iPad. Subsequent search revealed methamphetamines. The search was illegal and evidence of the drugs found was excluded at trial. Counsel: S.M. Smith.

2015 CarswellAlta 1461 (Prov. Ct.) – Accused arrested on outstanding warrants. Subsequent search of pockets and backpack revealed methamphetamine, break-in tools and bear spray. The searches of the pockets and backpack were illegal and evidence of the items found was excluded at trial. Counsel: S.M. Smith.

2014 CarswellAlta 2649 (Prov. Ct.) – Breath samples not taken as soon as practicable and right to counsel breach results in exclusion of evidence. Counsel: S.M. Smith.

2013 ABPC 179 – Samples were taken outside two hours – acquittal on over .08 charge. Counsel: V. Eichhorn.

2011 ABPC 53 and 2011 ABPC 54 – Charges of public mischief and mischief – acquittal on public mischief as no evidence of nature of complaint made to police, successful strip search argument resulted in reduced sentence on mischief. Counsel: V. Eichhorn.

2015 ABPC 39, Client was acquitted of exposing himself in a women’s washroom at McDonald’s. Counsel: S.M. Smith.

***First reported decision of the firm in Alberta: [1975] A.J. No. 412 (Sup. Ct.) – Acquittal on appeal for theft of gloves. Counsel: P.B. Gunn.

CASES IN FRENCH

2013 ABPC 156 – Trial within a reasonable time and no reasonable grounds as officer did not know the time of driving – acquitted. Counsel: S.K.C. Prithipaul.

2012 ABPC 225 – Disclosure of police disciplinary records – charges were ultimately stayed against the accused (that means proceedings went no further and there was no conviction). Counsel: S.K.C. Prithipaul.

CASES IN OTHER JURISDICTIONS

2013 NWTTC 2, 2012 NWTTC 11, and 2012 NWTTC 9 – Various rulings on procedural and substantive issues leading to acquittals on all charges including: dangerous driving, theft of motor vehicle and other offences. Counsel: S.K.C. Prithipaul.

2011 NWTTC 4 – Drive while disqualified – acquittal as there was no operation of a motor vehicle on public property. Counsel: S.K.C. Prithipaul.

2007 S.K.C.A. 32 – Care or control while impaired and with excessive blood-alcohol – acquittals reversed and conviction entered – meaning of care or control – trial judge can properly consider evidence of accused’s purpose or intention in deciding whether offence proven. Counsel: S.K.C. Prithipaul.

2009 SKCA 65 – Impaired causing death – conviction overturned on appeal. Counsel: S.K.C. Prithipaul.

2007 BCPC 170 – Contamination of screening device test result – acquittal at trial and appeal dismissed for want of prosecution. Counsel: S.K.C. Prithipaul and other.

[2003] N.W.T.J. No. 1 (S.C.) (Q.L.) – Driving while impaired – conviction at trial – appeal allowed and acquittal entered – unreasonable verdicts. Counsel: P.B. Gunn.

[1997] CarswellSask 257 (Q.B.) – Driving while over legal limit – acquittal at trial – Crown appeal – costs awarded to defense on frivolous appeal by Crown. Counsel: P.B. Gunn.