Mistrials are a remedy of last resort and there is a public interest in ensuring justice is done, judge says
Despite being denied an application his Charter rights were breached, a convicted home invasion robber won’t be getting a mistrial.
Justice Chris Rickards on Friday agreed with defence lawyer Robert Wachowich that previous counsel for Edmonton man Armin Babic had indicated a constitutional challenge would be brought by the accused and one was never permitted.
But Rickards said even if Babic, who represented himself at trial, had presented arguments he was arbitrarily detained when arrested shortly after the robbery and his truck was unlawfully searched by Mounties, his bid to have evidence excluded was doomed to fail.
Rickards said mistrials were a last resort remedy and there is a public interest in ensuring justice is done.
He said the test for a mistrial to be granted is “whether there a ‘real danger’ of prejudice to the accused or danger of a miscarriage of justice.”
But neither of those existed in this instance because when Babic was stopped by police, he fit the description of the robber and he was still in the vicinity of the crime.
Items such as ropes similar to ones he used to tie up his victims a duffel bag and other pieces of evidence could be seen from outside his truck.
The victim, who was home with his visiting sister, noticed a pickup pull into his yard before noon on Feb. 19, 2019, and an individual get out wearing a vest with the word police across the front.
Thinking it was a police officer, McLachlin allowed Babic to enter his residence, but the Edmonton man brandished a handgun and quickly pulled out rope with the intention of tying up his victim.
McLachlin’s sister, Heather Haddad, who was visiting at the time, was also bound while Babic demanded to be shown McLachlin’s safe.
When McLachlin denied having a safe, Babic fired a shot from the .22-calibre handgun into a couch before being taken to the master bedroom where the victim kept a safe.
The intruder removed jewelry, a .357 handgun registered to the victim and more than $23,000 in U.S. cash before fleeing the scene.
At Wachowich’s request, Rickards ordered a presentence report be prepared, meaning Babic’s sentencing hearing will be delayed further.
A date for submissions will be set Oct. 11.