His advocacy and the high quality of his work has often been commented upon by the courts in which he appears. As an example, recently, after completing a very complex preliminary inquiry in Vancouver, Mr. O'Brien Q.C. was singularly pointed out amongst attending counsel by the presiding judge, the Honorable Judge A.E. Rounthwaite with these words:

          "Mr. O'Brien, I want to say what a pleasure it's been to have a counsel of your calibre appearing before me over the last year. You've left us with a very good impression of the quality of counsel work in Alberta"

The following case profiles are but a few examples of the vast array of issues Mr. O'Brien has argued on behalf of his clients.

The Supreme Court of Canada finally answers the long standing question regarding the ability of a trial judge to grant a constitutional exemption from a statutory mandatory minimum sentence. The Court ruled that where a mandatory minimum sentence amounts to "cruel and unusual punishment" and thus a violation under s. 12 of the Charter Of Rights, the only option open to a trial judge is to strike down the legislation itself, even if the mandatory punishment would be constitutional in the vast majority of cases. The ruling means that if a law creating a mandatory minimum sentence is unconstitutional for "any" individual, it will be unconstitutional for "all" individuals.

counsel: Noel C. O'Brien Q.C.

An application for release pending trial is granted in a double homicide. The case is unusual in that the accused is charged with two counts of murder, and the issue was whether granting bail would undermine the confidence in the administration of justice. Where, as here, it is recognized that a "self-defence" issue could lead to an outright acquittal, the court ordered the release of the accused. The trial will be held later this year.

counsel: Noel C. O'Brien Q.C.

R. v Durocher  [2006] Nov 10 (Alta Q.B.)

An application for "Probation" in a homicide case granted for the first time by an Alberta Court of Queen's Bench judge. The accused had strangled the victim with a piece of wire while repelling a homosexual advance.

counsel: Noel C. O'Brien Q.C.

             SOME HIGH PROFILE CASES

R. v. Joudrie  [ Alberta Court of Queens Bench]

The high profile case of Dorothy Joudrie  has been made the subject of several books an documentaries which chronicle the background to the trial of the well known socialite who shot her husband five times in the garage of her luxurious home. [ see: Be Good Sweet Maid by Audrey Andrews; Love and Money by Licia Corbella and Kevin Martin; and Counsel for the Defence a collection of case commentaries by Edward Greenspan Q.C.] The jury acquitted Mrs. Joudrie based upon the controversial defence of "Automatism".

counsel: Noel C. O'Brien Q.C.

R. v. Wanner  [Alberta Court of Queens Bench]

This case has also been the subject of a publication entitled "Deadly Encounters: Two Missing Bodies" by Barbara Smith, which covers the details of the trial of an accused husband who was alleged to have killed his wife. Her body was never found, nor was that of another man which the police alleged was linked to the death of Mrs. Wanner. In this case the wiretapped conversations were successfully excluded by the defence. The jury found the accused not guilty of the murder.

counsel: Noel C. O'Brien Q.C.

R. v. Evans

[British Columbia Supreme Court Jury]  [BCCA] [Supreme Court of Canada]

The British Columbia jury rendered a verdict of "not guilty" in this murder trial which focused on an alleged love triangle between a young university professor, his wife and the accused. The "acquittal" was achieved despite the statement by the British Columbia Court of Appeal that "the Crown's case was almost an unanswerable one". Considerable public interest in this trial generated extensive media coverage. The acquittal of the accused by the jury prompted a fair degree of controversy. The Crown appealed the verdict to the British Columbia Court of Appeal, which ordered a "new trial". However, we filed a further appeal to the Supreme Court of Canada which restored the "acquittal" . The case has been reported at the various levels of the courts and can be read in their entirety. see R. v Evans (1992) 51 C.C.C. (3d) 489 (BCCA): and R. v. Evans (1993) 82 C.C.C. (3d)338 (S.C.C.)

counsel: Noel C. O'Brien Q.C.

The well known MLA was charged with criminal offences related to passport applications. The investigation was unusually long. Charter applications were filed on behalf of Mr. Amery alleging delay of proceedings and political interference. An independent counsel was hired to act on behalf of the Crown and negotiations resulted in a stay of proceedings.

counsel: Noel C. O'Brien Q.C.

R. v. Shamray     [Manitoba Court of Queens Bench]

The CEO and President of the TSG Group of companies faced numerous charges alleging a massive fraud on the banks and other venture capital companies which operated as financial lenders. When the lenders called in the almost $60 Million Dollars loaned out, the TSG Group, the darling of the financial community in Manitoba, collapsed. Many hundreds of people lost their jobs. At issue was the accounting practices of the TSG Group. Charter issues, forensic accounting reviews and conflicts of interest all formed part of the defence package in this case which was ultimately resolved with a short sentence.

counsel: Noel C. O'Brien Q.C.

In this trial the accused was charged with "murder". He had responded to a police publicity campaign about the killing and came forward and confessed to the crime. We called a psychologist to raise doubt as to the reliability of this confession. We attacked the "junk science" of "hair analysis" as a means to forensically identify the accused. Verdict: Not Guilty

counsel: Noel C. O'Brien Q.C.

R. v. Clark   [Alberta Court of Queens Bench Jury]

Here the accused faced a trial before a jury on a charge of "murder". The accused had beaten the deceased with a pool cue during an altercation. It was argued that the victim was the true aggressor and that the accused had acted out in self defence. The jury agreed. Verdict: Not Guilty

counsel: Noel C. O'Brien Q.C.

R. v. Patterson    [Alberta Court of Queens Bench Jury]

The accused was charged with "murder". The defence advanced here that the accused had stabbed the victim in self defence after a violent confrontation in the home of Mr. Patterson. It was our position that the accused faced a life threatening situation and used reasonable force. The jury agreed. Verdict: Not Guilty

counsel: Noel C. O'Brien Q.C.

R. v. Crazybull     [Alberta Court of Queens Bench Jury]

The accused here elected to have his "murder" charge decided by a jury. The jury heard evidence that the accused stabbed two men; both in the heart. One of them died. There was a drinking party and the accused claimed that the two men had threatened him with serious bodily harm and that he only acted out of self preservation. The jury agreed with the defence we advanced. Verdict: Not Guilty

counsel: Noel C. O'Brien Q.C.

R. v. Brinkman           [Alberta Court of Queens Bench]

This murder trial involved a case of identification. The issue arose as to the frailties of eye witness identification and the need for caution before reliance can be placed on a single witness who purports to identify a person previously unknown to them as the offender.  Verdict: Not Guilty

counsel: Noel C. O'Brien Q.C.

R. v. Alkadri       [Alberta Court of Queens Bench]

The accused here was originally charged with murder when he shot a man who had displayed aggression towards him. A jury acquitted him of murder but found him guilty of "manslaughter" We appealed that verdict to the Alberta Court of Appeal (see R. v. Alkadri 29 C.C.C. (3d) 467 (Alta CA) and won a new trial. We successfully defended that ruling in the Supreme Court of Canada. On the new trial we were successful in the argument that the accused had shot the deceased in self defence. Verdict: Not Guilty

counsel: Noel C. O'Brien Q.C.

This case settled the law on the controversial issue as to the existence of a qualified defence known as "excessive force in self defence". The S.C.C. had to consider whether to adopt a principle followed by many Australian courts which could result in a manslaughter verdict, even where a person intended to kill his victim, where his actions in defending himself were judged to amount to "excessive force". For an article on the issue see: Excessive Self Defence; A Need for Legislation by Noel C. O'Brien Q.C. in the publication, Criminal Law Quarterly

counsel: Noel C. O'Brien Q.C.

R. v. Nygaard and Schimmens (1989) 51 C.C.C. (3d) 257 (Supreme Court of Canada)

The issue that the Supreme Court of Canada had to settle in this case included the question as to what were the essential elements required before a person could be convicted of first degree murder and whether the secondary intent for murder which imports an element of "recklessness" could support such a conviction. Also at issue was the requirement of the Crown to prove a lawful wiretap Order was obtained prior to being able to cross examine an accused on intercepted communications. We were successful in having the S.C.C. order a new trial.

counsel: Noel C. O'Brien Q.C.

R. v. Hansford (1987) 33 C.C.C. (3d) 74 (Alta C.A.) (1987) 79 A.R. 239 (Supreme Court of Canada)

The Supreme Court of Canada upheld the Alberta Court of Appeal ruling which dealt with the applicability of the legal concept of "mistake of fact" to the legal definition of "Provocation" in the Criminal Code. The concept was adopted by the S.C.C. broadening the defence to protect those who acted honestly, although mistakenly, in the face of perceived provocation.

counsel:  Noel C. O'Brien Q.C.

R. v. Evans (1993) 82 C.C.C. (3d) 338 (Supreme Court of Canada)

Here we argued before the Supreme Court of Canada that a jury verdict of "not guilty" must not be interfered with by the appeal courts except in the rarest of cases. An error by the trial judge in failing to allow the Crown to re-examine its own witness should not operate to vitiate an acquittal by a jury. The S.C.C. endorsed the sanctity of a jury verdict in this case and restored the acquittal that we had won at trial of murder.

counsel: Noel C. O'Brien Q.C.

R. v. Richer (1994) 90 C.C.C. (3d) 95 (Supreme Court of Canada)

The Supreme Court of Canada here deals with the difficulty in analyzing the right of an appeal based upon an argument of an "unreasonable verdict". The re-weighing of evidence in the appeal courts is a limited jurisdiction which is to be exercised with restraint. The Court had to consider the legal requirements of "reasonable notice" to an accused person against whom the Crown wishes to introduce wiretap evidence.

counsel: Noel C. O'Brien Q.C.

This case attempted to answer the ongoing debate among the various courts across the country as to the availability of a "constitutional exemption" from mandatory minimum sentences prescribed by law where the imprisonment would amount to "cruel and unusual punishment". In a 2:1 split decision the Court held that such exemptions are not available in law and sought further guidance form the Supreme Court of Canada on teh controversial issue. The S.C.C. has since granted leave to appeal this decision and it will be argued before that Court in the fall of 2007.

counsel: Noel C. O'Brien Q.C.

This was the leading authority in Canada on the right of an accused to seek his financial costs against the Crown under the Charter of Rights in the face of a flagrant breach of one of the protected rights. Here the Court accepted our argument that the law should enable costs to be imposed against the Crown and granted the accused compensation for a costly delay caused by the infringement of his right to disclosure in a timely fashion.

counsel: Noel C. O'Brien Q.C.

Here we successfully argued for a "new trial" on the ground that the Crown prosecutor is not permitted in law to cross-examine his own witness. Certain procedures are in place to permit a Crown to have a witness declared "hostile", which would enable him to cross-examine that witness. However, in the absence of relying on the proper procedure in this case, the convictions was quashed.

counsel: Noel C. O'Brien Q.C.

R. v. Wood 39 C.C.C. (3d) 212  ( Alberta Court of Appeal) (Supreme Court o Canada)

Here the Court of Appeal ordered a new trial on a charge of murder because the trial judge allowed evidence of another murder the accused had allegedly committed to be heard by the jury. Although such evidence may be admissible as "similar fact evidence", the conditions precedent to its use must be strictly adhered to because of the obvious prejudicial effect such evidence has. We were able to successfully defend the ruling in the Supreme Court of Canada.

counsel: Noel C. O'Brien Q.C.

R. v. Antinello 97 C.C.C. (3d) 126 (Alberta Court of Appeal)

Here the Court of Appeal agreed that a new trial must be ordered on a charge of murder because the right of an accused to proper and timely disclosure was infringed contrary to the Charter of Rights. It was not proper for the Crown to call a witness in the middle of the trial without advance disclosure to the defence as to his anticipated evidence.

counsel: Noel C. O'Brien Q.C.

R. v. Bowen and Kay (1990) 59 C.C.C. (3d) 515 (Alberta Court of Appeal) [1991] 1 S.C.R. (x) (Supreme Court of Canada)

This case dealt with the question as to whether a person should face a conviction of "first degree" murder by virtue of the fact that his victim was a "police officer" even when the killing was not planned and deliberate. The Court upheld the constitutionality of the provision of the Criminal Code authorizing such a conviction, but left it open for an accused to argue that in his specific case an exemption from the mandatory penalty could be possible if it was deemed to be cruel and unusual punishment contrary to the Charter of Rights.

counsel: Noel C. O'Brien Q.C.

R. v. Colville #1 (2003) 327 A.R. 143 (Alberta Court of Appeal) [2004] S.C.C.A. 500 (Supreme Court of Canada]

Here the Court of Appeal had to grapple with the difficult concept of "inconsistent verdicts". At issue was whether an accused could be convicted of manslaughter by criminal negligence even where the jury acquitted him of "careless use of a firearm". The test to support a successful appeal on such an argument is whether the verdicts can be rationally reconciled.

counsel : Noel C. O'Brien Q.C.

R. v. Colville #2 (2005) 201 C.C.C. (3d) 353 (Alberta Court of Appeal)

In the same case cited above, the Court of Appeal now had to deal with the very controversial issue of the availability of a constitutional exemption from the mandatory four years imprisonment for convictions of manslaughter where a "firearm" has been used. The Court found that although the six years sentence of the trial judge was excessive and it should be reduced to the "minimum" of four years provided by the Criminal Code, the minimum penalty prescribed by law here did not offend the right to be protected against cruel and unusual punishment. Therefore, the answer to the question as to whether an accused can ever avoid the mandatory minimum sentence was left to be decided on another day. (see R. Ferguson on this list)

counsel: Noel C. O'Brien Q.C.

R. v. Ferguson (2006) 207 C.C.C. (3d) 157 (Alberta Court of Appeal) [2006] SCR (Supreme Court of Canada)

The issue of law argued here related to what the proper procedure should be for a trial judge who receives a communication from the jury during its deliberation. Here a "question" from the jury was not put in writing, but rather carried verbally through a court official to the trial judge. The trial judge considered the question as merely "administrative" in nature and did not advise counsel until after a verdict had been reached. The argument advanced on appeal was that without a "written record" of the question, it could not be determined if the question was actually one which affected the rights of the accused or whether it was merely "administrative".

counsel: Noel C. O'Brien Q.C.

R. v. Lecaine (1990) 104 A.R. 175 (Alta Q.B.); 105 A.R. 261 (Alberta Court of Appeal)

At issue here was the question as to whether a trial judge is entitled to give considerable weight to provocation when sentencing a offender for manslaughter. Here the accused was given only one year imprisonment for the "shooting" death of the victim who had provoked the deceased. The Court of Appeal upheld the sentence imposed stating that factors such as "provocation" are highly relevant to the appropriate sentence to be imposed.

counsel: Noel C. O'Brien Q.C.

R. v. Howe and Charlesworth (2002) 317 A.R. 225 (Alberta Court of Appeal)

This was a Crown appeal from a sentence imposed at trial. The Court of Appeal upheld a "conditional sentence" imposed upon the accused for a complicated tax fraud involving scientific research and development tax credits. The Court set out guidelines for future cases of this sort but refused to interfere with the sentence imposed.

counsel : Noel O'Brien Q.C.

R. v. Rennie (1984) 56 A.R. 321 (Alta QB.)

Here we successfully defended against the attempt by the state of New York to extradite a Canadian soldier to the United States on the allegation he was involved with a massive drug smuggling ring which operated from the Mid East, through the Netherlands and into the United States. Our argument was based on the failure of the foreign jurisdiction to establish "double criminality", a condition precedent to a legal extradition.

counsel: Noel C. O'Brien Q.C.

R. v. Liu (1989) 95 A.R. 201 (Alberta Court of Appeal)

The Alberta Court of Appeal had to deal with an interesting point of law arising out of circumstances where the Attorney General filed a direct indictment against an accused person on a charge of extortion notwithstanding that a committal for trial had been quashed for lack of evidence. The full court agreed with the argument that the evidence could not substantiate a finding of guilt and entered an acquittal for the accused. One of the appeal judges went further and held that there was no jurisdiction to lay the charge at all after the committal was quashed.

counsel: Noel C. O'Brien Q.C.

R. v. Ly (2002) 317 A.R. 158 (Alberta Court of Appeal)

At issue here was the legal components necessary for the Crown to establish in order to prove the existence of a "conspiracy". In addition the Court of Appeal was called upon to resolve the outstanding issue as to what the Crown must prove in order to comply with the proper notice required under the Criminal Code before it can rely on wiretap evidence.

counsel: Noel C. O'Brien Q.C.

R. v. Souter (1998) 216 A.R. 292; 228 A.R. 54 (Alberta Court of Appeal)

These are two separate reported judgments arising from the same case involving a large auto theft ring originating out of Montreal Quebec. At issue were the legal requirements of "willful blindness", a concept allowing for a conviction without the need to prove actual knowledge that one is a party to an offence. In the second judgment, th Court of Appeal applied the concept of "willful blindness"  (as opposed to actual knowledge) as a reason to substantially reduce a participants sentence.

counsel: Noel C. O'Brien Q.C.

counsel: Noel C. O'Brien Q.C.