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The Court of Appeal upheld the aggravated assault conviction but reduced the sentence by five months due to unreasonable post-verdict delay.
The appellant, Gordon Hartling, appealed his conviction for aggravated assault, assault, resisting arrest, and two counts of breach of probation, and his sentence.
The Court of Appeal dismissed the conviction appeal, finding no misapprehension of forensic evidence, proper admission of spontaneous utterances, and no ineffective assistance of counsel.
However, the court stayed one breach of probation charge due to the Kienapple principle (same conduct grounding both charges) and allowed the sentence appeal in part, reducing the total sentence by five months.
This reduction was a remedy for an unreasonable 14-month post-verdict delay in sentencing, primarily caused by institutional resource issues in obtaining a Gladue report, which the court found not to be an exceptional circumstance.
The Crown was denied calling an expert in reply but permitted to call him in its case-in-chief despite late disclosure.
During a criminal trial for manslaughter and aggravated assault, the Crown sought to call an expert witness in reply to the defence's expert on bloodstain analysis.
The defence opposed this, arguing it was not proper reply evidence and would cause trial unfairness if allowed as part of the Crown's case due to late disclosure.
The court ruled that the Crown could not call the expert in reply, as the evidence was foreseeable and based on existing facts.
However, the court permitted the Crown to call the expert as part of its case, provided the defence was given a brief adjournment to prepare for cross-examination and consult with their own expert, and with the option to recall previous witnesses.
