Brian A. Beresh

In a Crown sentence appeal arising from historical child sexual offences, the Court clarified that appellate intervention requires a legal error affecting sentence or demonstrable unfitness, and that sufficiency of reasons must be assessed functionally and contextually.

The Court held the sentencing judge’s factual findings and reasons were sufficient in light of the jury verdict, record, and submissions.

It further held that contemporary sentencing principles, including Friesen, apply to historical offences, subject to the maximum penalty in force when the offences were committed.

The appellate reduction was set aside, the original six-year concurrent sentence restored, and reincarceration ordered in the interests of denunciation and deterrence.

The appellant was convicted by jury of second degree murder, indecently interfering with human remains, and arson.

On appeal, the Alberta Court of Appeal upheld the convictions.

At trial, the Crown sought to lead rebuttal expert evidence but failed to disclose the expert report prior to the completion of the defence expert's testimony, and also failed to cross-examine the defence expert on the contents of that report.

The trial judge allowed the Crown's expert to testify but restricted the scope of the evidence as a remedial measure.

The Supreme Court held that the Crown's late disclosure and failure to cross-examine interfered with the accused's ability to know the case to meet and make full answer and defence.

The trial judge's remedial ruling was not capable of undoing the prejudice caused, and precluding the Crown's expert from testifying entirely was the only way to preserve the accused's right to a fair trial.

A new trial was ordered on all counts.