The court and counsel discovered the man had passed away after the court heard arguments in the case
The Alberta Court of Appeal has set aside the robbery and weapons-related convictions of a man who died while he was in custody, finding that a trial court erred when it determined there was no evidence to substantiate potential scenarios in which the man was innocent.
The man, Wynden Bremner, was convicted for a robbery that took place at a service station in Drayton Valley, Alberta in 2023. Video footage of the robbery showed an individual entering the service station with bear spray, forcing the cashier to hand over cash, cigarettes, and car keys, and driving away in the cashier’s car. The video and the cashier provided evidence about the culprit’s clothing, but there was not enough evidence to definitively identify the individual’s face.
Bremner appealed his convictions, challenging the trial judge’s conclusion that he lacked evidence to prove that he wasn’t the culprit.
The appellate court heard the appeal in January. Shortly after, the court discovered that Bremner had died while he was in custody, and that the Crown and his counsel had been unaware of his death.
The appellate court’s March 13 decision did not provide details about the circumstances of Bremner’s death.
In a 2004 decision called R. v. Smith, the Supreme Court of Canada outlined five factors that courts should consider when determining, in the event of a party's death, whether to proceed with an appeal. These include whether the appeal will proceed in the proper adversarial context; the strength of the appeal; whether there are special circumstances – like a legal issue of public importance or collateral consequences to the party’s family – that transcend the individual’s death; whether a court order could justify the use of limited judicial resources; and whether resolving the appeal could lead to “legislative‑type pronouncements more properly left to the legislature itself.”
The appellate court found that Bremner’s case satisfies enough of the Smith factors for the appeal to proceed. While the appeal does not involve novel legal or systemic issues, the appellate court found that a decision in the case “may provide a concise example for counsel or trial judges with respect to the treatment of circumstantial evidence of identity.”
The trial judge had found there was sufficient circumstantial evidence to identify Bremner as the robber at the service station, including the fact that at the time he was arrested, he was dressed entirely in black, was a “slightly built male of Indigenous heritage,” and had two packages of cigarettes. These characteristics were shared by the individual shown in the video footage.
However, Bremner’s counsel had argued that the evidence and absence of evidence gave credence to other possible scenarios. Bremner had been discovered walking with three other individuals; for example, his counsel argued that there was no evidence ruling out the possibility that any of those other individuals was the robber.
The appellate court agreed.
“This is not a case where the proposed alternative scenarios were particularly imaginative, nor did they arise solely from a lack of evidence,” the appellate court said. “The Crown’s evidence revealed that three individuals other than the appellant were found walking near the location of the abandoned Toyota and detained by police. Yet the Crown called no evidence describing any of those persons or what they were wearing.”
The appellate court concluded, “In these circumstances, we are satisfied that the conviction is tainted by the trial judge’s error in rejecting alternative scenarios as speculative based on a lack of evidence.”
Because Bremner had passed away, the appellate court ordered a stay of the proceedings rather than initiating a new trial.
In a statement on Monday, Patrick Edgerton of Northcott Edgerton Barristers, who represented Bremner, said the decision “provides a bit of precedent in a narrow set of facts where the appellant passes away after the appeal has been argued, but before the decision has been released.” He said the case law in this area is “very thin” and primarily involves cases where an appellant has passed away before an appellate court hears arguments.
“In those cases, it is rather extraordinary that the court would allow the appeal to continue unless there was [an] important area of unsettled law that needed to be addressed,” Edgerton added. “It seems that line of thinking is a bit more relaxed when the bulk of the resources [has] already been expended.”
A spokesperson for Alberta’s Ministry of Justice declined to comment on the case since it is before the court.
