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Getaway driver in violent pawn shop robbery sentenced to 4 years, reduced for harsh pre-trial custody.
The accused, a youthful first-time offender, pled guilty to robbery and failing to stop for police after acting as the getaway driver in a violent pawn shop robbery.
Although the accused did not personally use a firearm or inflict the severe injuries sustained by the victims, he was a party to the robbery.
The court determined a fit sentence was 4 years in custody, but applied a 1.5-year Duncan/Marshall reduction due to harsh pre-trial custody conditions involving frequent lock-downs and triple bunking.
After applying Summers credit, the accused was sentenced to a further 9 months and 18 days in custody, followed by 18 months of probation.
No interpreter justified an adjournment, not a Charter stay.
On a summary conviction appeal, the Crown challenged a trial judge’s refusal to adjourn a domestic-assault trial when an accredited Punjabi interpreter was unavailable and an unaccredited interpreter was rejected after a voir dire.
The appeal court held there was no breach of the accused’s interpreter rights because no trial had proceeded without competent interpretation, and an adjournment was the proper mechanism to prevent any Charter infringement.
The court found legal error in both finding a Charter breach and imposing a s. 24(1) stay without applying the governing stay test.
The reasons also found procedural unfairness to the Crown, including lack of proper notice and failure to receive submissions on the stay remedy.
The stay was set aside and a new trial ordered before a different judge.
Directed verdict wrongly granted after applying incorrect legal test.
The Crown appealed a summary conviction decision dismissing a charge of assault with a weapon after the trial judge granted a directed verdict at the close of the Crown’s case.
The trial judge applied the standard of proof beyond a reasonable doubt rather than the proper test for a directed verdict.
Applying the test from U.S.A. v. Shephard, the appeal court held that the correct inquiry was whether there was any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.
The record contained substantial circumstantial evidence identifying the respondent as the assailant, including possession of a knife with the victim’s blood and injuries consistent with the fight.
The appeal was allowed and a new trial ordered before a different justice.
