Tony Paisana and Mark Iyengar were counsel for the appellant in a recent, historic decision that will affect the rights of those who have potentially been wrongfully convicted.  In Roberts v. British Columbia (Attorney General), 2021 BCCA 346, the Court of Appeal recognized, for the first time ever at an appellate level in Canada, the constitutional right to disclosure in the post-appeal phase of a criminal case.  The Court of Appeal established a three-stage threshold for obtaining disclosure in these circumstances.

This decision will mean that those who may have been wrongfully convicted will have a constitutional right to access investigative materials in the hands of the authorities where the threshold is met, and enforce this right in court if disclosure is improperly denied.  Further details regarding the judgment and its impact are outlined in this recent Vancouver Sun article.

Earlier this year, Tony Paisana and Chantelle van Wiltenburg challenged the constitutionality of two sentencing provisions which significantly limited the availability of conditional sentences (“house arrest”).  The challenge was successful on the basis that the laws were overbroad in their scope, capturing offenders that were convicted of less serious offences and who should remain eligible for house arrest.  On the basis of counsel’s submissions, ss. 742.1(c) and (e)(ii) were declared of no force and effect.

This decision will have significant ramifications for the criminal justice system in British Columbia.  Many offenders will now be eligible for house arrest in appropriate circumstances where they do not endanger the community.  This form of sentencing is known for its positive rehabilitative effects.  A copy of the decision ruling the sections unconstitutional can be found here.

Peck and Company lawyers, Garen Arnet-Zargarian and Casandra Tam, secured an acquittal for their client on drug importation charges. The client was stopped at the Canada-U.S. Border with 13 kilograms of heroin in a suitcase in the trunk of his vehicle. At trial at the BC Supreme Court in New Westminster, Arnet-Zargarian and Tam argued that their client had no knowledge of the drugs or the fact that the suitcase was in the vehicle.

The trial judge found that the cross-examinations of the Border Service Officers “significantly diminished” the reliability of their testimony that the client’s responses or behaviour were suspicious. The client testified and explained that he did not know about the suitcase in his trunk. The judge found it plausible that another person who he had met in the States had put the suitcase in his trunk without his knowledge. The judge acquitted him on that basis.