R. v. Dawydiuk (M.N.), 2008 BCCA 243

• Judge: Chiasson, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 30, 2008
• Jurisdiction: British Columbia
• Citations: 2008 BCCA 243;(2008), 256 B.C.A.C. 233 (CA)

R. v. Dawydiuk (M.N.) (2008), 256 B.C.A.C. 233 (CA);

    431 W.A.C. 233

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JN.029

Regina (respondent) v. Michael Neil Dawydiuk (appellant)

(CA036132; 2008 BCCA 243)

Indexed As: R. v. Dawydiuk (M.N.)

British Columbia Court of Appeal

Chiasson, J.A.

June 9, 2008.

Summary:

After an altercation in a bar, Dawydiuk drove onto a crowded sidewalk. He was charged with eight offences and was convicted of criminal negligence in the operation of a motor vehicle causing bodily harm (count one), assault with a weapon (motor vehicle) (count five) and leaving the scene (count eight). Dawydiuk was sentenced to 12 months' incarceration on counts one and five, concurrent, and six months' incarceration on count eight, consecutive. He appealed his conviction on count five, asserting that the judge's reasons were unclear regarding why his conduct was assault, rather than criminal negligence, and his sentence on all three counts. Dawydiuk applied for judicial interim release.

The British Columbia Court of Appeal, per Chiasson, J.A., allowed the application.

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 - After an altercation in a bar, Dawydiuk drove onto a crowded sidewalk - He was charged with eight offences and was convicted of criminal negligence in the operation of a motor vehicle causing bodily harm (count one), assault with a weapon (motor vehicle) (count five) and leaving the scene (count eight) - Dawydiuk was sentenced to 12 months' incarceration on counts one and five, concurrent, and six months' incarceration on count eight, consecutive - He appealed his conviction on count five, asserting that the judge's reasons were unclear regarding why his conduct was assault, rather than criminal negligence, and his sentence on all three counts - Dawydiuk applied for judicial interim release - The Crown asserted that each count should be treated as a discrete appeal and that because Dawydiuk was appealing his sentence alone on counts one and eight, the higher merits threshold of s. 679(4), as opposed to s. 679(3), of the Criminal Code applied to his application - The British Columbia Court of Appeal, per Chiasson, J.A., allowed the application - There was one appeal including conviction and sentences - The plain wording of s. 679 required consideration of release under s. 679(3) - Dawydiuk's appeal from his conviction was not frivolous - He was fully employed, owned a home and had a minor criminal record - His detention was not 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 3304 ].

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 3304 ].

Criminal Law - Topic 3318

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Application of Code procedure - [See Criminal Law - Topic 3304 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524, refd to. [para. 3].

R. v. Ali (M.S.) (2008), 253 B.C.A.C. 167; 425 W.A.C. 167; 2008 BCCA 147, dist. [para. 8].

R. v. L.D.M., 2000 NSCA 79, refd to. [para. 17].

R. v. G.H.W. (1997), 95 B.C.A.C. 140; 154 W.A.C. 140 (C.A.), refd to. [para. 19].

R. v. Alexander (W.J.), [2002] B.C.A.C. Uned. 33; 2002 BCCA 203, refd to. [para. 23].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 146, refd to. [para. 35].

R. v. C.W.H. (1991), 3 B.C.A.C. 205; 7 W.A.C. 205; 68 C.C.C.(3d) 146 (C.A.), refd to. [para. 35].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 679(1), sect. 679(3), sect. 679(4) [para. 7].

Counsel:

J. Duncan, for the appellant;

F. Tischler, for the respondent.

This application was heard at Vancouver, British Columbia, on May 30, 2008, in Chambers by Chiasson, J.A., of the British Columbia Court of Appeal, who delivered the following reasons for judgment on June 9, 2008.