Rebecca McConchie and Mark Iyengar won an appeal from a client’s conviction in the Court of Appeal for British Columbia. The Court of Appeal found that there was no evidence to support the charge of counselling a person to utter threats, overturning the conviction and substituting an acquittal. The Court of Appeal’s decision can be found here.
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.
On December 22, 2020, senior partner, Eric V. Gottardi, Q.C., was appointed as Queen’s Counsel, the highest honour for a lawyer in British Columbia, in recognition of his skills as a barrister and for his significant contributions to the justice system.
Eric has practiced at Peck and Company for his entire legal career, after clerking at the Ontario Court of Appeal. His practice encompasses all aspects of criminal and quasi-criminal cases, including trials, appeals, extraditions, and special prosecutions. He has argued cases at all levels of Court in Canada. As an advocate, he has achieved exceptional results for his clients and inspired monumental changes to Canada’s laws, including the cases of R. v. Jordan, R. v. Nur and R. v. Sekhon at the Supreme Court of Canada. As an expert witness before Parliamentary committees, Eric’s insight has led to positive changes to criminal laws across Canada.
Eric’s contributions to the legal profession also extend to legal education. He was the chair of the CBA National Justice Section and acts as a founding co-chair for the National CBA Annual Criminal Law conference. He is a member of the Planning Committee for the Federation of Law Societies Criminal Law Program, in addition to being a member of faculty. As a member of the International Society for the Reform of Criminal Law, he received the Young Justice Award in 2014. Eric is the Editor of the Charter of Rights and Freedoms Newsletter for Thompson Reuters and often appears as a legal analyst for the CBC and other media outlets, as well as presenting at numerous conferences across Canada.
Peck and Company congratulates Eric on this well-deserved honour and for his continued positive influence on the legal profession in B.C. and Canada.