R. v. Barbour (A.)

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: Wakeling, J.A.
• Citation: [2016] A.R. TBEd. MY.072,2016 ABCA 161
• Date: 12 May 2016
• Subject Matter: CRIMINAL LAW

R. v. Barbour (A.), [2016] A.R. TBEd. MY.072

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. MY.072

Her Majesty the Queen (respondent) v. Adina Barbour (applicant)

(1601-0089-A; 2016 ABCA 161)

Indexed As: R. v. Barbour (A.)

Alberta Court of Appeal

Wakeling, J.A.

May 19, 2016.

Summary:

The accused was released on bail in 2010. In December 2015, she was convicted of fraud over $5,000 and one count of uttering a forged document. She feared that her ex-husband might be granted custody of her eight year old daughter should she be imprisoned following the sentencing hearing which was scheduled to take place in three months. She applied to have her entitlement to bail pending appeal resolved in advance so that she would not have to spend any time in custody after she was sentenced pending the determination of her conviction appeal and her potential sentence appeal.

The Alberta Court of Appeal, per Wakeling, J.A., dismissed the application based on a lack of jurisdiction.

Criminal Law - Topic 3309

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - When available - The accused was released on bail in 2010 - In December 2015, she was convicted of fraud over $5,000 and one count of uttering a forged document - The Crown intended to seek a sentence of nine years' imprisonment - The accused feared that her ex-husband might be granted custody of her eight year old daughter should she be imprisoned following the sentencing hearing which was scheduled to take place in three months - The accused applied to have her entitlement to bail pending appeal resolved in advance so that she would not have to spend any time in custody after she was sentenced pending the determination of her conviction appeal and her potential sentence appeal - The Alberta Court of Appeal, per Wakeling, J.A., dismissed the application - A single judge of the court had jurisdiction under s. 679 of the Criminal Code to grant bail pending appeal to an offender who was in custody - Custody meant imprisonment - A judge had no jurisdiction to grant bail under s. 679 to an offender who had not been sentenced unless the offender was in incarcerated - The court therefore had no jurisdiction to grant the accused bail pending appeal.

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 3309 ].

Criminal Law - Topic 3310.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending sentencing appeal - [See Criminal Law - Topic 3309 ].

Criminal Law - Topic 3317

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Jurisdiction of court - [See Criminal Law - Topic 3309 ].

Criminal Law - Topic 3320.3

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Custody - What constitutes - [See Criminal Law - Topic 3309 ].

Words and Phrases

Custody - The Alberta Court of Appeal, per Wakeling, J.A., held that "custody" as used in s. 679 of the Criminal Code, R.S.C. 1985, c. C-46, meant imprisonment - See paragraphs 39 to 46.

Counsel:

A. Barg, for the respondent;

P.J. Milczarek, for the applicant.

This application was heard on May 12, 2016, by Wakeling, J.A., of the Alberta Court of Appeal, who filed the following reasons for decision at Calgary, Alberta, on May 19, 2016.