R. v. Clarke (R.J.), (2016) 472 Sask.R. 273 (CA)

• Judge: Herauf, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 26, 2016
• Jurisdiction: Saskatchewan
• Citations: (2016), 472 Sask.R. 273 (CA);2016 SKCA 10

R. v. Clarke (R.J.) (2016), 472 Sask.R. 273 (CA);

    658 W.A.C. 273

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. FE.005

Randy Joseph Clarke (appellant) v. Her Majesty the Queen (respondent)

(CACR2557; 2016 SKCA 10)

Indexed As: R. v. Clarke (R.J.)

Saskatchewan Court of Appeal

Herauf, J.A.

February 1, 2016.

Summary:

The accused was convicted of sexual assault (count 1) and invitation to sexual touching (count 2). He was sentenced to three years' imprisonment on count 1 and six months concurrent on count 2. He appealed the conviction and sentence. The accused applied for the appointment of counsel under s. 684(1) of the Criminal Code.

The Saskatchewan Court of Appeal, per Whitmore, J.A., in a judgment reported (2015), 451 Sask.R. 300; 628 W.A.C. 300, allowed the application. The accused sought judicial interim release pending his appeal.

The Saskatchewan Court of Appeal, per Whitmore, J.A., in a judgment reported [2015] Sask.R. Uned. 21, dismissed the application. Although the grounds of appeal were not frivolous, the court was not satisfied that the accused would surrender himself into custody and held that his release would "undermine public confidence in the administration of justice and would be contrary to the public interest". The accused again applied under s. 679 of the Criminal Code for release based on a material change in circumstances.

The Saskatchewan Court of Appeal, per Herauf, J.A., dismissed the application. The accused failed to establish a material change in circumstances warranting his release.

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 invitation to sexual touching respecting a child - He was sentenced to a total of three years' imprisonment - The accused's application for judicial interim release pending appeal was dismissed by Whitmore, J.A. - Although the grounds of appeal were not frivolous, the court was not satisfied that the accused would surrender himself into custody and held that his release would "undermine public confidence in the administration of justice and would be contrary to the public interest" - The accused again applied under s. 679 of the Criminal Code for release based on a material change in circumstances - The accused cited the following alleged material changes since the last application: "(a) His conviction and sentence appeals were heard on November 25, 2015. The decision was reserved and has not yet been rendered. According to Mr. Clarke this suggests 'some compelling merit to my appeal.' (b) His past offending behaviour is non-violent. (c) He has no institutional charges since he was incarcerated for these offences, which indicates his willingness to obey rules and follow orders. (d) He completed his GED while in custody, has been involved in chapel activities and First Nation Elders. He has taken a parenting course to facilitate his relationship with his 13-year-old son. He has re-established his relationship with his mother. (e) He has worked to reduce his risk factors to reoffend. (f) In oral submissions, his counsel stated he has served a great deal of his sentence already and public confidence would not be eroded if he was released from custody pending a determination of his appeal." - The Saskatchewan Court of Appeal, per Herauf, J.A., dismissed the application - The accused failed to establish a material change in circumstances warranting his release.

Cases Noticed:

Cretu v. Canada (Attorney General) (2012), 399 Sask.R. 150; 552 W.A.C. 150; 2012 SKCA 77, refd to. [para. 2].

R. v. Baltovich (R.) (2000), 131 O.A.C. 29; 144 C.C.C.(3d) 233 (C.A.), refd to. [para. 2].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197; 86 C.C.C.(3d) 32 (C.A.), refd to. [para. 16].

Counsel:

Ammy Murray, for the applicant;

Erin Bartsch, for the respondent.

This application was heard on January 26, 2016, in Chambers before Herauf, J.A., of the Saskatchewan Court of Appeal, who delivered the following judgment on February 1, 2016.