R. v. B.S.B., 2008 BCCA 483

• Judge: D. Smith, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 21, 2008
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 483;(2008), 263 B.C.A.C. 51 (CA)

R. v. B.S.B. (2008), 263 B.C.A.C. 51 (CA);

  443 W.A.C. 51

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JA.045

Regina (respondent) v. B.S.B. (appellant)

(CA036573; 2008 BCCA 483)

Indexed As: R. v. B.S.B.

British Columbia Court of Appeal

D. Smith, J.A.

November 21, 2008.

Summary:

The accused was convicted of sexual assault and sentenced to imprisonment for two years less a day followed by three years' probation. The accused applied for release pending his conviction and sentence appeal.

The British Columbia Court of Appeal, per D. Smith, J.A., allowed the application and ordered that the accused be released on a $10,000 recognizance, without deposit, together with one surety.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

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 - [See Criminal Law - Topic 3310 ].

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - The accused was convicted of sexual assault and sentenced to imprisonment for two years less a day followed by three years' probation - The accused had sexual intercourse with a 21 year old woman - Although there was no evidence that he drugged her, there was suspicion - The woman was not intoxicated (five drinks), had no memory of the event and was physically ill several times - The trial judge found that she lacked the capacity to consent to sexual intercourse -The accused applied for release pending the hearing of his conviction and sentence appeal - The accused's employment as a corrections officer was suspended and he obtained employment working for a motorcycle dealer - The accused attended court as required, abided by all previous release conditions and agreed to live with his sister who would be a surety - The accused had no prior criminal record and was assessed as a low risk to re-offend and not a risk to the public (in particular women) - The British Columbia Court of Appeal, per D. Smith, J.A., allowed the application and granted the accused's release on a $10,000 recognizance, without deposit, together with one surety - The court was satisfied that the grounds of appeal were not frivolous, the accused would surrender himself into custody if his appeal was dismissed and his detention was not necessary in the public interest.

Cases Noticed:

R. v. Koehn (D.C.) (1996), 74 B.C.A.C. 77; 121 W.A.C. 77 (C.A.), refd to. [para. 17].

R. v. Barling (1993), 24 M.V.R.(4th) 122 (B.C.C.A.), refd to. [para. 19].

R. v. Tyhurst (1991), 3 B.C.A.C. 45; 7 W.A.C. 45 (C.A.), refd to. [para. 21].

R. v. Rose (1991), 3 B.C.A.C. 235; 7 W.A.C. 235 (C.A.), refd to. [para. 21].

R. v. Hanna (1991), 3 B.C.A.C. 57; 7 W.A.C. 57 (C.A.), refd to. [para. 21].

R. v. Dhanda (S.S.) (2003), 188 B.C.A.C. 51; 308 W.A.C. 51; 2003 BCCA 550, refd to. [para. 21].

R. v. Mapara (S.) (2004), 199 B.C.A.C. 280; 326 W.A.C. 280 (C.A.), refd to. [para. 25].

R. v. Nguyen (Y.V.) (1997), 97 B.C.A.C. 86; 157 W.A.C. 86 (C.A.), refd to. [para. 25].

Counsel:

M. Sanders, for the appellant;

E. Campbell, for the Crown, respondent.

This application was heard in Chambers on November 21, 2008, at Vancouver, B.C., before D. Smith, J.A., of the British Columbia Court of Appeal, who delivered the following judgment orally on November 21, 2008.