R. v. D.T.M., (2012) 275 Man.R.(2d) 309 (CA)

• Judge: Monnin, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: July 28, 2011
• Jurisdiction: Manitoba
• Citations: (2012), 275 Man.R.(2d) 309 (CA);2012 MBCA 26

R. v. D.T.M. (2012), 275 Man.R.(2d) 309 (CA);

      538 W.A.C. 309

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. MR.044

Her Majesty The Queen (respondent) v. D.T.M. (accused/applicant)

(AR 11-30-07590; 2012 MBCA 26)

Indexed As: R. v. D.T.M.

Manitoba Court of Appeal

Monnin, J.A.

March 14, 2012.

Summary:

The accused was charged with second degree murder. He applied for judicial interim release before a Queen's Bench judge and was denied. He applied under s. 680 of the Criminal Code for review of the decision.

The Manitoba Court of Appeal, per Monnin, J.A., granted leave to have the matter proceed to a review under s. 680, but denied the application for judicial interim release.

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 3320

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Review - The accused was charged with second degree murder - He applied for judicial interim release before a Queen's Bench judge and was denied (Criminal Code, s. 522) - He applied under s. 680 of the Code for review of the decision - The Manitoba Court of Appeal, per Monnin, J.A., reviewed the jurisprudence, particularly cases arising in Manitoba - The court "...  concluded that the approach requiring that there be issues of arguable merit advanced in order to grant a request for a review is the preferred one. I agree that the arguable merit test allows the Chief Justice or delegate to perform the gatekeeper role while not imposing such a high standard that it would place too great an impediment to have meritorious cases brought forward as required. The latter has importance particularly for applications arising under s. 522 as s. 680 is the only manner by which such a decision can be reviewed." - See paragraphs 12 to 20.

Criminal Law - Topic 3320

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Review - The accused was charged with second degree murder - He applied for judicial interim release before a Queen's Bench judge and was denied (Criminal Code, s. 522) - He applied under s. 680 of the Code for review of the decision - The Manitoba Court of Appeal, per Monnin, J.A., stated that "...  my review of the jurisprudence leads me to the conclusion that, while s. 680 confirms an ordinary appellate jurisdiction, nonetheless it is a broad jurisdiction to be exercised not necessarily with the same amount of deference applied in the usual appellate forum. Therefore, while some courts have adopted correctness as the appropriate standard of review under s. 680, that has not been the case in Manitoba." - See paragraph 28.

Criminal Law - Topic 3320

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Review - The accused was charged with second degree murder - He applied for judicial interim release before a Queen's Bench judge and was denied (Criminal Code, s. 522) - He applied under s. 680 of the Code for review of the decision - At issue, inter alia, was whether the review was only of the decision of the s. 522 judge or could the reviewing judge or panel consider a material change of circumstances, and, if so, to what extent - The Manitoba Court of Appeal, per Monnin, J.A., reviewed case law on the issue - The court concluded that "a) There is jurisdiction for an appellate court under s. 680 to review an order under s. 522 where one or even the only ground of appeal is a material change of circumstances and the correctness of the original order is not being challenged. b) However, where the sole ground for the review is changed circumstances, while the court does have jurisdiction, the practice has developed, supported by the concept of judicial efficiency, to have the matter dealt with by a judge of the court that granted or refused the original bail, preferably the same judge ... . There is opportunity for the judge conducting the assessment of whether the matter should proceed for review to refer the matter back at that stage ... . c) Any request for the appellate court to exercise its discretion to review the order of the bail court based upon a change in circumstances must be supported by evidence presented before the appellate court according to the usual rules." - See paragraphs 29 to 37.

Criminal Law - Topic 3320

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Review - The accused was charged with second degree murder - He applied for judicial interim release before a Queen's Bench judge and was denied (Criminal Code, s. 522) - He applied under s. 680 of the Code for review of the decision - The Manitoba Court of Appeal, per Monnin, J.A., granted leave for a review under s. 680, but denied the application for judicial interim release - The nature of the offence and its violence led the court to conclude that the accused was not a candidate for release - Therefore, after exercising a fresh discretion based upon the evidence, including that tendered before the court as to the availability of a residential program, he had not met the onus required of him - See paragraphs 38 to 46.

Cases Noticed:

R. v. Moore (1979), 33 N.S.R.(2d) 631; 57 A.P.R. 631; 49 C.C.C.(2d) 78 (C.A.), refd to. [para. 13].

United States of America v. Andrews (1991), 76 Man.R.(2d) 41; 10 W.A.C. 41 (C.A.), refd to. [para. 13].

R. v. Gonzales (R.C.) (2005), 192 Man.R.(2d) 167; 340 W.A.C. 167; 2005 MBCA 45, refd to. [para. 13].

R. v. L.I.H. (2001), 156 Man.R.(2d) 212; 246 W.A.C. 212; 2001 MBCA 92, appld. [para. 13].

R. v. Cooper (A.R.) (1999), 237 A.R. 355; 197 W.A.C. 355; 1999 ABCA 249, refd to. [para. 14].

R. v. Oliver (J.) (2008), 287 Nfld. & P.E.I.R. 118; 885 A.P.R. 118; 2008 NLCA 18, refd to. [para. 16].

R. v. Lewis (C.S.) (2010), 350 Sask.R. 241; 487 W.A.C. 241; 2010 SKCA 54, refd to. [para. 17].

R. v. Khan (M.A.) (1998), 131 Man.R.(2d) 101; 187 W.A.C. 101 (C.A.), refd to. [para. 19].

R. v. Trout (S.S.), [2006] Man.R.(2d) Uned. 44; 2006 MBCA 70, refd to. [para. 19].

R. v. Kennedy (J.M.), [2008] Man.R.(2d) Uned. 13; 2008 MBCA 25, refd to. [para. 19].

R. v. Daniels (H.) (1997), 103 O.A.C. 369; 35 O.R.(3d) 737 (C.A.), refd to. [para. 22].

R. v. Wu (B.Q.) (1998), 117 B.C.A.C. 305; 191 W.A.C. 305 (C.A.), refd to. [para. 23].

R. v. Salim (M.R.), [2007] B.C.A.C. Uned. 198; 2007 BCCA 44, refd to. [para. 24].

R. v. Le (T.D.) (2006), 205 Man.R.(2d) 41; 375 W.A.C. 41; 2006 MBCA 68, refd to. [para. 26].

R. v. Carrier (1979), 2 Man.R.(2d) 168 (C.A.), refd to. [para. 27].

R. v. Turner (G.J.) (1999), 171 Nfld. & P.E.I.R. 333; 525 A.P.R. 333 (Nfld. C.A.), refd to. [para. 30].

R. v. Dempsey (P.), 151 B.C.A.C. 272; 249 W.A.C. 272; 2001 BCCA 122, refd to. [para. 31].

R. v. Hardiman (C.L.) (2003), 211 N.S.R.(2d) 358; 662 A.P.R. 358; 2003 NSCA 17, refd to. [para. 32].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 680 [para. 10].

Authors and Works Noticed:

Trotter, Gary T., The Law of Bail in Canada (3rd Ed. 2010), p. 8-20 [para. 12].

Counsel:

G.F. Wiebe, for the applicant;

A.Y. Kotler, for the respondent.

This application for review of a bail decision was heard on July 28, 2011, by Monnin, J.A., of the Manitoba Court of Appeal, who delivered the following decision on March 14, 2012.