 |
| John L. Hill |
Disguised in clothing marked “POLICE,” he gained entry to a Calgary home. After entering the residence and producing a handgun, Babic terrorized Gavin McLachlan and his visiting sister, Heather Haddad, forcing both McLachlan and Haddad to kneel.
After firing a shot to intimidate them, Babic compelled McLachlan to open a safe, from which he stole US$20,000 in cash, jewellery, a Rolex watch and a .357 registered firearm. He bound both elderly victims and fled. Police quickly identified and stopped Babic, who was driving a truck matching the suspect vehicle. He was arrested 20 minutes after the heist.
Inside the vehicle, officers observed items linked to the robbery, and a subsequent search warrant uncovered the stolen property, firearms (including one tied ballistically to the crime) and other incriminating evidence.
AntonioFrancois: ISTOCKPHOTO.COM
During the trial, confusion arose when the Crown incorrectly stated that no Charter notice had been filed. Babic later sought to raise a new Charter challenge, alleging unreasonable search and seizure, but the judge refused to hear it because of its late filing. The self-represented accused requested a mistrial, but the request was denied. Justice Chris Rickards said that mistrials were a last-resort remedy and that there was a public interest in ensuring justice was done. Babic was found guilty and sentenced to 10 years. After conviction, Babic obtained counsel and applied for a mistrial based on the Crown’s error. The trial judge acknowledged the mistake but dismissed the application, concluding that the Charter challenge would not have succeeded in any event.
Babic appealed his conviction to the Alberta Court of Appeal. He raised two grounds on appeal: (1) the trial was unfair because Babic was denied adjournments when the charges he faced were serious and complex, and (2) the trial was unfair because no Charter notice had been filed after the dismissal of his mistrial application.
The Court of Appeal delivered its judgment on April 8, 2026 (R. v. Babic, 2026 ABCA 111). The court held that Babic’s requests for adjournments to retain counsel were properly denied. While an accused has the right to counsel, that right is not absolute. Courts must balance several factors when considering adjournments, including the complexity of the case, the reasons for the lack of counsel, prior warnings and prejudice to the prosecution. This balancing is a matter of judicial discretion.
Babic argued that two decisions caused a miscarriage of justice: the requirement that he set trial dates despite not having retained counsel, and the trial judge’s refusal to grant a lengthy adjournment on the first day of trial. The court rejected both arguments. The appearance judge relied on Babic’s own assurances that he would retain counsel, and trial dates were set based on a lawyer’s willingness to act. There was no unfairness in proceeding this way.
Similarly, the trial judge’s refusal to adjourn was reasonable. The case had already been delayed for more than four years because of the pandemic, a medical issue and Babic’s decision to discharge prior counsel. Despite repeated warnings, Babic failed to retain counsel. The judge considered all relevant factors, including the seriousness of the charges and the complainants’ ages, and reasonably exercised discretion in proceeding.
The court also found that Babic received a fair trial. He had access to legal advice, was afforded time and resources to prepare, and actively participated in his defence by cross-examining witnesses, challenging forensic evidence and advancing substantive legal arguments.
Regarding the mistrial issue, Babic argued that the Crown’s incorrect statement that no Charter notice was required deprived him of the opportunity to raise a constitutional challenge. The court held that a mistrial is a remedy of last resort, reserved for clear cases of prejudice or unfairness. Here, the trial judge properly assessed whether the lost opportunity affected trial fairness.
The court rejected Babic’s reliance on the “manifestly frivolous” standard from R. v. Haevischer, 2023 SCC 11, noting that it applies to the summary dismissal of motions, not to mistrial determinations. Instead, the trial judge appropriately assessed the likely success of the Charter application and its impact on the verdict.
Based on the evidence, the Charter challenge would likely have failed. The police lawfully stopped Babic’s vehicle because it matched the suspect description and arrested him on an outstanding warrant. The key evidence was obtained through a subsequent search conducted pursuant to a warrant, which was unchallenged and presumptuously lawful.
The trial judge considered all relevant factors, including the Crown’s error, the merits of the Charter claim and the strength of the evidence, and concluded there was no prejudice rising to a miscarriage of justice. The appellate court agreed. Babic’s appeal was dismissed.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.