R. v. Ali (M.S.), (2008) 253 B.C.A.C. 167 (CA)

• Judge: Chiasson, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 29, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 253 B.C.A.C. 167 (CA);2008 BCCA 147

R. v. Ali (M.S.) (2008), 253 B.C.A.C. 167 (CA);

    425 W.A.C. 167

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. AP.027

Regina (respondent) v. Mohammed Sayid Ali (appellant/applicant)

(CA035817; 2008 BCCA 147)

Indexed As: R. v. Ali (M.S.)

British Columbia Court of Appeal

Chiasson, J.A.

February 29, 2008.

Summary:

The accused was convicted of trafficking and possession for the purpose of trafficking. He was sentenced to six months' incarceration. A Notice of Appeal from conviction and Notice for Leave to Appeal from both conviction and sentence were filed. The accused applied for judicial interim release.

The British Columbia Court of Appeal, per Chiasson, J.A., ordered that the accused be released on terms.

Criminal Law - Topic 3304

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary in the public interest - The accused was convicted of trafficking and possession for the purpose of trafficking - He was sentenced to six months' incarceration - A Notice of Appeal from conviction and Notice for Leave to Appeal from both conviction and sentence were filed - The accused applied for judicial interim release - The British Columbia Court of Appeal, per Chiasson, J.A., ordered that the accused be released on terms - The court concluded that "[the accused] has a sentence appeal that is not frivolous. He is at risk that, absent release, he will serve his sentence before his appeal can be determined. He poses no risk and his incarceration will work a hardship on others. Taking all factors into account, I do not think his detention is necessary in the public interest".

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - [See Criminal Law - Topic 3318 ].

Criminal Law - Topic 3310.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending sentence appeal - [See Criminal Law - Topic 3318 ].

Criminal Law - Topic 3318

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Application of Code procedure - The accused was convicted of trafficking and possession for the purpose of trafficking - He was sentenced to six months' incarceration - A Notice of Appeal from conviction and Notice for Leave to Appeal from both conviction and sentence were filed - The accused applied for judicial interim release - The British Columbia Court of Appeal, per Chiasson, J.A., found that the sentence appeal was not frivolous - However, the court was unable to conclude on the materials before it whether the conviction appeal was frivolous or not (there was no transcript of the proceedings before the trial judge or of her reasons for judgment) - The court stated that "I shall deal with the application as presented, that is, under s. 679(3) [of the Criminal Code], but [R. v.] G.H.W. does support the idea that where it is not possible to conclude a conviction appeal is frivolous or not frivolous, if there were a finding a sentence appeal is not frivolous, an offender should be subjected to a somewhat more rigorous standard than otherwise would apply under s. 679(3). In my view, in this case, this includes considering the offence on which [the accused] was convicted" - See paragraph 25.

Cases Noticed:

R. v. Tran (L.V.) (2008), 250 B.C.A.C. 38; 416 W.A.C. 38; 2007 BCCA 613, refd to. [para. 15].

R. v. Charlie (M.P.) (2008), 251 B.C.A.C. 134; 420 W.A.C. 134; 2008 BCCA 44, refd to. [para. 15].

R. v. Wilder (D.M.), [2007] B.C.A.C. Uned. 78; 36 M.P.L.R.(4th) 179; 2007 BCCA 344, refd to. [para. 19].

R. v. Al-Maliki (A.) (2003), 190 B.C.A.C. 304; 311 W.A.C. 304; 2003 BCCA 698, refd to. [para. 20].

R. v. Alexander (W.J.), [2002] B.C.A.C. Uned. 33; 2002 BCCA 203, refd to. [para. 20].

R. v. Hawthorne (E.) (1992), 21 B.C.A.C. 173; 37 W.A.C. 173 (C.A.), refd to. [para. 22].

R. v. G.H.W. (1997), 95 B.C.A.C. 140; 154 W.A.C. 140 (C.A.), dist. [para. 23].

R. v. Dhaliwal (J.S.) (2006), 225 B.C.A.C. 1; 371 W.A.C. 1; 2006 BCCA 43, refd to. [para. 28].

R. v. J.W.R. (1999), 129 B.C.A.C. 232; 210 W.A.C. 232; 1999 BCCA 574, refd to. [para. 29].

R. v. Burd (W.S.), [2005] B.C.A.C. Uned. 175; 2005 BCCA 620, refd to. [para. 30].

R. v. Silver (D.R.) (2006), 226 B.C.A.C. 107; 373 W.A.C. 107; 2006 YKCA 4, refd to. [para. 30].

R. v. Crockett (D.) (2001), 161 B.C.A.C. 114; 263 W.A.C. 114; 2001 BCCA 707, refd to. [para. 35].

United States of America v. Cheema (2007), 255 B.C.A.C. 35; 430 W.A.C. 35; 2007 BCCA 624, refd to. [para. 35].

R. v. Mapara (S.) (2001), 156 B.C.A.C. 138; 255 W.A.C. 138; 158 C.C.C.(3d) 312 (C.A.), refd to. [para. 35].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 679(3) [para. 4].

Counsel:

R. Peck, Q.C., and E. Gottardi, for the appellant;

W.P. Riley, for the respondent.

This application was heard in Chambers on February 29, 2008, at Vancouver, British Columbia, before Chiasson, J.A., of the British Columbia Court of Appeal, who delivered the following oral judgment on the same date.