R v Sandhu, 2015 ABQB 827

Court of Queen ’ s Bench of Alberta Citation: R v Sandhu, 2015 ABQB 827 Date: 20151223 Docket: 1508 3660951 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - Barinder Sandhu Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Introduction [ 1 ] The Appellant appeals a decision of Traffic Commissioner Yaverbaum (the “Commissioner”), acquitting Mr. Sandhu of two City of Edmonton (“City”) bylaw offences. Facts

[ 2 ] On January 7, 2015, Mr. Sandhu was charged with violating two municipal bylaws: operating a business without a licence, contrary to s 4 of City Bylaw 13138; and operating a vehicle for hire without a taxi plate, contrary to s 4(1) of City Bylaw 14700. [ 3 ] The charges arose in connection with a City investigation into suspected “Uber” drivers. Mr. Hykawy, a municipal enforcement officer with the City in the “Vehicle for Hire” section, was in charge of the investigation of unlicensed taxis. [ 4 ] At trial, Mr.

Hykawy testified that he downloaded the Uber application on his phone and signed up for an account. He recruited a City clerk, Ms. Lenz, to assist in the investigation. [ 5 ] Ms. Lenz and Mr. Hykawy testified that they used the Uber application to observe a vehicle, identified by the application as an Uber driver, at 101 st Street and Jasper Avenue. It was undisputed that this vehicle was a Nissan Rogue, driven by Mr. Sandhu. [ 6 ] Mr. Hykawy explained that the Uber application displayed potential Uber drivers on a map of Edmonton indicated by a “dot” in specific locations.

He drove by this particular “dot” at 101 Street and Jasper Avenue twice to confirm that it was the available driver referenced on the Uber map. Mr. Hykawy then parked his un-marked City vehicle a block away from the identified vehicle. Ms. Lenz exited the City vehicle and approached Mr. Sandhu. [ 7 ] Ms. Lenz testified that she got Mr. Sandhu’s attention, and asked if he was “Uber”, to which he replied “yes”. She then told him that her Uber application was not working, and offered to pay $25 cash in exchange for a ride to Northgate Mall. Ms. Lenz testified that Mr.

Sandhu then asked her how she knew that he was Uber, but then confirmed that he would accept the $25 and take her to Northgate. Ms. Lenz then signalled Mr. Hykawy, according to their pre-agreed procedure. [ 8 ] Mr. Hykawy approached the vehicle, identified himself, obtained identification from Mr. Sandhu, and issued the two bylaw tickets. [ 9 ] Mr. Sandhu testified at trial. He stated that he was an Uber driver at the time in question and was “waiting for a call”. He confirmed that Ms. Lenz approached him and that he answered affirmatively when she asked if he was an Uber driver. Mr.

Sandhu also reiterated that Ms. Lenz then told him that her Uber application was not working, and asked to be taken to Northgate for $25.00 cash. Mr. Sandhu, however, denied accepting the cash for a ride. He stated that he let Ms. Lenz into his car so that she could warm up, as it was quite cold outside. [ 10 ] Once Ms. Lenz opened the door, Mr. Sandhu attempted to show Ms. Lenz the Uber application on his phone to demonstrate that he would have to “go offline” in order to take her for cash, and that he was not willing to do that. [ 11 ] On cross-examination, Mr.

Sandhu indicated he had been an Uber driver for approximately 20-25 days at that time. He confirmed that he had the Uber application open at that time, that he was “available for hire”, and that in the normal course a customer would request his services through the application. Mr. Sandhu explained that Ms. Lenz would have to do so through the Uber application if she wanted to get a ride from him. [ 12 ] A number of issues arose during the cross-examination of Mr. Sandhu, surrounding both the characterization of the charge, and the relevance of the evidence concerning Mr. Sandhu’s relationship with Uber.

Ultimately counsel for the Appellant was restricted to asking Mr. Sandhu questions related solely to the transaction between himself and Ms. Lenz. Reasons for Decision [ 13 ] The Commissioner framed the question he was to answer as whether, on the day in question, Mr. Sandhu was operating a business without a license or operating a vehicle for hire without a license. [ 14 ] He then canvassed the evidence in light of the discrepancy between the accounts of Ms. Lenz and Mr. Sandhu.

He explained that “the evidence of the defence is a refused transaction” and that “the evidence of the Crown is a partially completed transaction.” [ 15 ] The Commissioner then stated that, if Mr. Sandhu had accepted the $25.00, there would be no doubt as to the two charges. He then explained: ...I have to decide whether or not there was a sale or not so to speak here. Was there an actual acceptance either by taking the actual cash with the understanding at the end of the service being provided the cash would be given, was there an actual transaction such that a business? [ 16 ] He then undertook a W(

D) analysis with respect to the credibility of the witnesses’ accounts of whether the transaction took place. Ultimately, he found: ...on this particular occasion was there any transaction and the answer is I can’t beyond a reasonable doubt find there was. I have a hesitation in W(D) ... So I’m left with a W(

D) analysis. One, do I believe the evidence of the defendant? I’m not – I can’t accept it that fine. Does it raise a reasonable doubt in my mind? Yes, it does. As to whether or not the transaction was accepted or not and therefore was he carrying on or engaging in a business or was he operating a vehicle for hire in this particular occasion, and once again I do indicate I’m dealing solely with the events of the 7 th of January, 2015, the events described by the interaction of Allison Lenz and Officer Hykawy with Mr. Sandhu on that occasion. ...

I have a reasonable doubt. I have listened to Mr. Sandhu’s evidence. It seems very clear to me that at the very least it raises a reasonable doubt that he was ever going to accept any transaction with respect to this matter. I can’t find that I have any positive evidence of a transaction taking place such as to indicate that there was a business, he was engaged in the operation of a business – I do accept the wider term given to me by the Crown – or that he was in that particular transaction operating a vehicle for hire.

He may very well, I suspect, previously and subsequently been operating as a vehicle for hire but that’s not what I have to decide in the case before me. I have to decide on the discrete moments when he’s dealing with the officer, is he in fact engaged in or operating a business in the city of Edmonton and is he operating a vehicle for hire without the proper licensing. Issues [ 17 ] The Appellant alleges that the Commissioner erred when he: 1. limited his analysis to the evidence relating to the “undercover sting”; 2. unduly restricted the Crown’s cross-examination of Mr.

Sandhu; and 3. failed to consider whether there had been advertisement of services. Standard of Review [ 18 ] The parties agree that the right to appeal an acquittal is limited to questions of law alone: s 676(1)(

a) of the Criminal Code , RSC 1985 c C-46. [ 19 ] In R v JMH , 2011 SCC 45 , [2011] 3 SCR 197, Cromwell J outlined possible situations in which a trial judge’s erroneous assessment of evidence can amount to a reviewable error of law for a Crown appeal. Two of the four are relevant here:

a) The trial judge’s assessment of the evidence was based on a wrong legal principle;

b) The trial judge failed to consider all of the evidence in relation to the ultimate issue of guilt or innocence. [ 20 ] The Crown must establish, to a reasonable degree of certainty, that the errors of the trial judge might reasonably have had a “material bearing on the acquittal”, but not necessarily that the verdict would have been different: R v Graveline , 2006 SCC 16 , [2006] 1 SCR 609 at para 14 . The Parties’ Positions The Appellant’s Position [ 21 ] The Appellant argues that the Commissioner based his ultimate decision of guilt or innocence on whether or not there had been a successful transaction.

It submits that this was an error, as the correct legal issues to be decided by the Court were whether, at the time in question, Mr. Sandhu was either operating a vehicle for hire or a business without the requisite licenses. [ 22 ] The Appellant contends that proof of a transaction is sufficient to prove the operation of a business, but is not necessary . This is set out in s 105 of Bylaw 1318 and s 125 of Bylaw 14700, which mandate that proof of one transaction is prima facie proof of the operation of a business or vehicle for hire. [ 23 ] However, the Appellant submits that it was open to it to prove that Mr.

Sandhu was operating a vehicle for hire, or a business, by other means. It argues that it need not have proven that a sting or transaction was successful, but rather that there was an operating business. Therefore, the Commissioner’s decision to limit the evidence to the sting or transaction itself was in error.

Specifically, the Commissioner’s analogy to a careless driving charge was “fundamentally flawed”, because careless driving arises from a singular act of carelessness as opposed to: ...[the] licensing offence which involves a question of whether a regulated activity was being undertaken at a time that coincided with the absence of the necessary license.

The regulated activity in question...not limited to a singular prohibited act, but rather a series of any number of otherwise lawful and related actions that constitute the operation of a “business” or a “vehicle for hire” service on the alleged offence date. [ 24 ] The Appellant submits that Mr. Sandhu’s uncontroverted admissions that he was “Uber” and “waiting for a call” from the application are sufficient to establish that he was operating both a business and a vehicle for hire at the time in question. Whether the Commissioner had a reasonable doubt concerning Mr.

Sandhu’s actual acceptance of the money in exchange for a ride was therefore not relevant to the charge. [ 25 ] The Appellant’s second ground of appeal is that the Commissioner improperly limited the cross-examination of Mr. Sandhu to questions surrounding the particular transaction, rather than other indicia of operating a business. In doing so, the Appellant contends that it was prevented from cross-examining Mr.

Sandhu on relevant and material facts essential to the charges at issue. [ 26 ] The Appellant further submits that cross-examination is a fundamental tenet of trial fairness, and thus should be given a wide berth: R v Lyttle , 2004 SCC 5 , [2004] 1 SCR 193. Moreover, the Crown is entitled to use evidence elicited from an accused in cross- examination to support its own case, so long as the essential elements of the charge have already been led in the Crown’s case.

[27] Given Mr. Sandhu decided to testify, and admitted in examination in chief that on the day in question he was an Uber driver,the Appellant submits that it was improper for the Court to limit the Crown’s cross-examination of Mr. Sandhu to issues solelysurrounding “the transaction.” [28] The Appellant’s final ground of appeal is that the Commissioner failed to consider whether Mr. Sandhu’s presence on theUber application constituted an “advertisement” for the purposes of s 564 of the Municipal Government Act.

Pursuant to that section,proof that a business or vehicle for hire has been advertised is prima facie proof of the existence of that business. The City argues thatthe Commissioner summarily dismissed any consideration of this

section in error. This was evidenced by the Commissioner’s statementthat “I’m not satisfied that the simple possession of an app is necessarily, without any expert evidence to show me that apps in fact arethe equivalent of advertisements.” Mr. Sandhu’s position [29] Mr. Sandhu argues that the Commissioner correctly framed the issues surrounding the charges, and thus correctly limitedcross-examination. He argues that the Appellant’s cross-examination with respect to Uber changed the scope of the Appellant’s case,thus infringing Mr. Sandhu’s right to make full answer and defence to the Appellant’s case.

Further, the Commissioner retaineddiscretion to limit the scope of the Appellant’s cross-examination once he determined that the line of questioning was irrelevant. [30] Mr. Sandhu submits that the Appellant had an obligation to prove its case as framed in the charging documents; that is, theparticular place, date and time listed on the violation tickets. The Appellant’s evidence proving those particulars is what allows anaccused to make an informed decision on the conduct of his defence. In support of this argument, Mr.

Sandhu cites Lamer CJC’sreasoning in R v Underwood, (SCC), [1998] 1 SCR 77 at para 5, where he states that “the accused must have anopportunity to make an informed decision whether to testify and, accordingly, should know as much as possible about the consequencesof that decision in advance of having to make it.” [31] According to Mr. Sandhu, the Appellant’s case centered wholly on the alleged transaction between Ms. Lenz and Mr. Sandhu.Thus, Mr. Sandhu made his decision to testify on the basis of the case to meet. When the Crown then cross-examined Mr.

Sandhu ondetails of his relationship with Uber, the scope of the case was widened, and therefore the case Mr. Sandhu was to meet was no longerclear. [32] Mr. Sandhu therefore argues that the Commissioner made no error when he limited the evidence and cross-examination to theparticular transaction at issue. [33] Mr. Sandhu further argues that the Commissioner retained residual discretion to confine cross-examination to relevant andmaterial information: R v Moghaddam 2006 BCCA 136 at para 43.

As the Appellant’s case was centered on the transaction, factssurrounding the “legality of Uber itself” were irrelevant and collateral issues. Analysis Law [34] The following statutory provisions are relevant to this appeal. City of Edmonton, bylaw No 13138, Business Licence Bylaw 2 In this bylaw: (a) “Business” means: (

i) a commercial, merchandising or industrial activity or undertaking, (ii) a profession, trade, occupation, calling or employment, or (iii) an activity providing goods or services, as described in

Schedule “A”, and whether or not for profit and however organized or formed, including a co-operative or association ofPersons; ... 4 No Person shall engage in or operate a Business in the City unless the Person holds a Licence authorizing the Person to engage inor operate that Business. ... 105 In a prosecution for a contravention of this bylaw against engaging in or operating a Business without a Licence, proof of onetransaction in the Business or that the Business has been advertised is sufficient to establish that a Person is engaged in or operates theBusiness. City of Edmonton, bylaw No 14700, Vehicle for Hire Bylaw 2 In this bylaw, unless the context otherwise requires:

... (t) “operate or operating” when used in relation to a motor vehicle, means to drive or to have care or control of the motor vehicle; ... (hh) “Vehicle for Hire” means a motor vehicle with a driver used or offered for the transportation of at least one passenger inreturn for a fee from any place within the City to a destination either within or inside the City. ... 4

(1) A person shall not operate, cause or permit the operation of a Vehicle for Hire unless it is a Taxi, Limited Taxi, AccessibleTaxi, Limousine or Shuttle. Municipal Government Act, RSA 2000, c M-26 Operating a business without a licence 564 In a prosecution for contravention of a bylaw against engaging in or operating a business without a licence, proof of onetransaction in the business or that the business has been advertised is sufficient to establish that a person is engaged in or operates thebusiness.

Provincial Offences Procedure Act, RSA 2000, c P-34 Application of Criminal Code 3 Except to the extent that they are inconsistent with this Act and subject to the regulations, all provisions of the Criminal Code(Canada), including the provisions in

Part XV respecting search warrants, that are applicable in any manner to

summary convictions andrelated proceedings apply in respect of every matter to which this Act applies. Issue 1: Characterization of the Charge [35] As stated by Cromwell J in R v JMH at paragraph 31, “it is an error of law to subject individual pieces of evidence to thestandard of proof beyond a reasonable doubt; the evidence must be looked at as a whole”: citing R v Morin, (SCC),[1988] 2 SCR 345. In this case, the Commissioner had to consider the evidence as a whole to determine whether the Appellant hadproven that Mr.

Sandhu had contravened either or both of Bylaws 13138 and 14700, beyond a reasonable doubt. [36] As defined in Bylaw 13138, a Business is a commercial activity or undertaking, or an activity providing goods and services:Bylaw 13138, s 2(a)(

i) and (iii). Therefore, for this charge, the Commissioner was obliged to consider all of the evidence and determinewhether Mr. Sandhu was engaged in or operating

a) a commercial activity or undertaking, or

b) an activity providing goods and services. [37] In Bylaw 14700, the

definitions of “operate” and “Vehicle for Hire” (at ss 2(

t) and (hh), respectively), dictate that the questionfor the Court was whether Mr. Sandhu was either driving, or in care and control, of a vehicle offered for the transportation of at least onepassenger in return for a fee in the City. [38] I agree with the Appellant’s argument that proof of a transaction is sufficient, but not necessary, to prove that a person isoperating a business or a Vehicle for Hire. [39] As stated by Veit J in Edmonton (City) v Peter, 2015 ABQB 635 at paragraph 43: ...evidence of a transaction actually being concluded is not a necessary component of a "business".

A business that never concludedany transaction would be an unsuccessful business, but it would be a business all the same [Emphasis added]. [40] The Commissioner correctly framed the issue at the start of his reasons: ...on this particular occasion, on the 7th of January, 2015, was [Mr. Sandhu] either engaged or operating a business in the city ofEdmonton without holding a license...or was he operating, including the operation of a vehicle for hire. [41] In my view, however, the Commissioner later incorrectly focussed his decision on the success of the particular transaction.

This is evident from the following comments: “[i]t all hinges on the

interpretation of Allison Lenz’s impression that there was a transaction that was happening and the defendantindicating no, there was never any transaction at all.” ... “I have to decide whether or not there was a sale or not so to speak here. Was there an actual acceptance either by taking the actual cashwith the understanding at the end of the service being provided the cash would be given, was there an actual transaction such that abusiness?” [42] The Commissioner was entitled to consider whether or not the transaction was successful. However, the transaction itself was

only one piece of evidence, and not necessarily determinative of guilt. Proof of the transaction was not a necessary component of thecharge before the Court. [43] The Commissioner’s reasons disclose that the acquittal was based only on a reasonable doubt with respect to the transactionitself, and not the essential elements of the charge. Did this error have a sufficient bearing on the acquittal? [44] Acquittals are not lightly overturned.

As explained by Sopinka J for the majority in Morin: An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial wassuch that there is a reasonable degree of certainty that the outcome may well have been affected by it: at p 374. [45] In my view, the error committed by the Commissioner in this case had a sufficient bearing on the acquittal, such that a newtrial is warranted. [46] The Appellant points to a number of Mr. Sandhu’s admissions which would be sufficient to establish the facts upon which tobase a conviction.

These admissions included: 1. admitting that he was an “Uber driver”, logged into the Uber application, and “waiting for a call;” 2. admitting he was “available for hire;” and 3. suggesting that Ms. Lenz would get a ride if she went through the Uber application. [47] Moreover, the Commissioner explicitly found that Mr. Sandhu was an Uber driver on the day in question. [48] Had the Commissioner focussed on the evidence as a whole to determine whether Mr.

Sandhu was operating a vehicle for hirebusiness, and not on the particular transaction, it is reasonably certain that this evidence would have had a bearing on the outcome of thiscase. Was the Crown bound by its theory of the case as presented in its case in chief? [49] Mr. Sandhu argues that the Commissioner’s basis for liability was justified as it would have been unfair to convict him on abasis other than what was introduced in the City’s case in chief. Because the Appellant led evidence primarily with respect to the specifictransaction, the Commissioner would have violated Mr.

Sandhu’s right to make full answer and defence by changing the scope of thecase. Mr. Sandhu essentially argues that the Appellant was bound to prove its theory of the case as set out in its case in chief. I am notpersuaded by this argument. [50] First, the general rule is that the Crown is not bound to prove its theory of the case, but only the essential elements of theoffence as charged, including particulars: R v Groot, (ON CA), [1998] OJ No 3674 (ONCA), aff’d (SCC), [1999] 3 SCR 664.

The Crown’s theory of liability is distinguished from the actual furnishing of particulars. [51] As explained by Paciocco J in R v Piotroski, 2011 OJ No 5095 (ONSC) at paragraph 29: The case R v Groot...holds that where particulars have not been given, and the count charged is capable of capturing alternative bases forconviction, a court will err in law by acquitting a person who is shown to be guilty on the evidence simply because the pathway toconviction differs from the one offered by the Crown. [52] This case is analogous to the case of R v Galliani, 2004 OJ No 2978 (SC).

In that case, the trial judge acquitted the accusedof assault simpliciter. The appellate court overturned the acquittal and held that the trial judge’s reasons disclosed that he had enteredthe acquittal on the basis that the Crown was required to establish beyond a reasonable doubt that the respondent punched thecomplainant, rather than that he merely touched him without his consent.

The appellate court held that it was an error of law to hold theCrown to a specific theory of the case, rather than the charge and its particulars. [53] This rule, however, is limited if the shifting of the Crown’s case has prejudiced the accused’s right to a fair trial: see R vRanger (2003), (ON CA), 178 CCC (3d) 375 (ONCA) and R v Piotrowski, at para 29.

This can occur when theCrown explicitly seeks to obtain a conviction on a different basis than the one presented in its case in chief: R v Khawaja, 2010 ONCA862 at para 150. [54] What occurs in these cases is a violation of an accused’s right to make full answer and defence. An accused has a right toknow the case he must meet before answering the Crown’s case, and making the decision to testify: R v Latimer, 2001 SCC 1 at para 47,citing R v Underwood, (SCC), [1998] 1 SCR 77 at para 6 and R v Rose, (SCC), [1998] 3 SCR 262,per Cory, Iacobucci and Bastarache JJ at para 102.

Cases that find prejudice in this scenario are generally those where the Crownexplicitly states and commits to its theory of the case, and the basis for conviction is significantly different than the stated theory. [55] In my view, however, it is not clear in this case that the Appellant committed itself to a particular theory of liability. If it did,convicting Mr. Sandhu on the basis of his status as an “Uber driver” was part of its original theory. [56] This is clear from the evidence elicited in the Appellant’s case. Ms.

Lenz testified to a number of facts concerning theoperation of Uber itself in relation to Mr. Sandhu: 1. She and Mr. Hykawy used the Uber app to see where working Uber vehicles were parked;

2. She specifically asked the driver to confirm that he was “an Uber vehicle”; 3. On cross-examination, she was asked who downloaded the Uber app onto Mr. Hykawy’s phone and whose account was used; 4. She was asked about her involvement with the Uber application prior to January 7, to which she replied that she was “quite aware” with how the app worked and that she had downloaded it on her phone once; 5. She testified that the Uber app gave her information about the vehicle, including pinpointing its location; 6. Defence counsel questioned Ms.

Lenz extensively on how the Uber application pinpoints the location of both the user and the vehicle using “dots” on a map. [ 57 ] It was also suggested to Ms. Lenz in cross-examination that Mr. Sandhu held up his own phone to her in order to explain why he could not take her cash fare. Defence counsel suggested to Ms. Lenz that Mr. Sandhu offered to help Ms. Lenz with the Uber app. [ 58 ] Mr. Hykawy’s evidence also contained evidence concerning Uber: 1. He testified that he created an account with Uber, and downloaded the application to his phone; 2.

He stated that the Uber app allowed him to request or see vehicles that were operating in Edmonton and who were available to be hired to transport him from one location to another; 3. His instructions to Ms. Lenz that day were that she should specifically ask the driver if he was with Uber, and that she should only initiate a transaction with the driver after he responded positively to that question; 4. Mr. Hykawy provided an explanation of how drivers were located with the Uber application, and in particular how he identified Mr. Sandhu’s vehicle; 5. Mr.

Hykawy conducted a search of the City licensing database for Mr. Sandhu and Uber Canada Inc., Uber BV and Raiser BV; 6. On cross-examination, Mr. Hykawy was asked about his registration for the Uber application. [ 59 ] Therefore, the Appellant’s case contained evidence with respect to a number of issues related to the Uber application, Mr. Hykawy’s involvement with Uber, how it was used in the sting, and Mr. Sandhu’s involvement with Uber.

This evidence was elicited both in chief and on cross-examination. [ 60 ] These references to Uber were scattered throughout the Appellant’s evidence concerning the cash transaction. Moreover, the Defence’s own theory of the case was that Mr. Sandhu did not accept the cash transaction “ because he was logged on with the Uber app ”[Emphasis added], and that Mr. Sandhu invited Ms. Lenz inside so he could explain to her the Uber process.

Therefore, it cannot be said that the Defence was taken by surprise by the Appellant’s use of that evidence. [ 61 ] In this regard, the case is similar to R v Pickton , 2010 SCC 32 . At the Pickton trial, Crown counsel strongly relied on the “sole perpetrator” theory of liability, and consistently led evidence tending to prove that only the accused committed the offences. The Defence, on the other hand, attempted to discredit the Crown theory by suggesting the potential involvement of others.

The trial judge’s instructions were not limited to either theory, but explained the potential liability of the accused, should the jury have found that anyone else assisted in the offences. The Defence argued that this resulted in an unfair trial for the accused, citing Ranger . [ 62 ] The Supreme Court rejected this argument and upheld the British Columbia Court of Appeal’s reasoning that the trial was not unfair.

This was principally because “ the defence theory itself put the participation of others at issue” [Emphasis original], and therefore it could not then argue that it did not receive notice of this basis of liability. The Court cited with approval Low JA’s comments from the court below: The defence team was composed of experienced criminal defence counsel who could not have failed to be aware throughout of a co-party route to liability, as much as they might have wished to avoid it by confining the Crown to its sole-perpetrator theory.

Nor could they not have known of the legal duty of the trial judge to instruct the jury on any party route to liability that emerged from the evidence. They could not have confined the court in the manner they hoped to confine the Crown. An examination of the record makes this very apparent: at para 21. [ 63 ] In my view, the Crown led sufficient evidence in its case in chief to put Mr. Sandhu on notice that he might be convicted on the basis that he was operating as an Uber driver.

This was so, despite Defence counsel’s attempt to confine the Appellant to the “transaction” theory. [ 64 ] Therefore the Commissioner’s error in acquitting Mr. Sandhu based on the success of the transaction, rather than the elements of the offence, cannot be “saved”. Conclusion [ 65 ] Given this finding, it is unnecessary to consider the Appellant’s second and third grounds of appeal. [ 66 ] For the above reasons, I allow the appeal and order a new trial.

Heard on the 27 th day of October, 2015. Dated at the City of Edmonton, Alberta this 23 rd day of December, 2015. D.L. Shelley J.C.Q.B.A. Appearances: Michael S Gunther for the Appellant Paul Moreau for the Respondent