R. v. Frisch (K.P.), 2013 YKCA 3

• Judge: Frankel, D. Smith and Hinkson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: February 08, 2013
• Jurisdiction: Yukon
• Citations: 2013 YKCA 3;(2013), 334 B.C.A.C. 166 (YukCA)

R. v. Frisch (K.P.) (2013), 334 B.C.A.C. 166 (YukCA);

    572 W.A.C. 166

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. MR.001

Regina (appellant) v. Kevin Peter Frisch (respondent)

(YU700)

Regina (appellant) v. Corey Curtis Pope (respondent)

(YU701; 2013 YKCA 3)

Indexed As: R. v. Frisch (K.P.)

Yukon Court of Appeal

Frankel, D. Smith and Hinkson, JJ.A.

February 27, 2013.

Summary:

Pope pleaded guilty to aggravated assault. On May 14, 2012, the sentencing judge imposed a sentence of three months' imprisonment to be followed by two years' probation.

Frisch was convicted of aggravated assault. On May 17, 2012, the sentencing judge imposed a sentence of three months' imprisonment to be followed by 18 months' probation.

The Crown applied for leave to appeal Frisch's and Pope's respective sentence. Prior to the February 8, 2013 hearing date, the Court advised the Crown that it wished to have an explanation for why it had taken nearly nine months for the appeals to come on for hearing. In response, the Crown filed an affidavit.

The Yukon Court of Appeal refused leave to appeal.

Criminal Law - Topic 6211.1

Sentencing - Appeals - Variation of sentence - Application for leave to appeal (incl. extensions) - Bars - The Yukon Court of Appeal stated that "[T]his Court has indicated more than once that when the Crown appeals a non-custodial sentence or one which involves a short term of imprisonment, it has an obligation to obtain an early hearing date. If reasonably possible, an appeal from a sentence which involves a short term of imprisonment should be heard before that term has been served. To that end, the Court's practice is to make early dates available for such appeals. It is clear that with respect to the present matters, the Crown failed to meet that obligation. Indeed, as Crown counsel candidly admitted, he does not have a good explanation for why nearly nine months passed between when the three-month sentences were imposed and the appeals came on for hearing." - In the end result, the court refused leave to appeal - See paragraph 12.

Criminal Law - Topic 6211.1

Sentencing - Appeals - Variation of sentence - Application for leave to appeal (incl. extensions) - Bars - These two Yukon appeals by the Crown from three-month custodial sentences followed by probation, came on for hearing in February of 2013, nearly nine months later - The Crown did not have an explanation for why arrangements were not made to have the appeals heard in Vancouver during the summer of 2012 - The Yukon Court of Appeal refused leave to appeal - "Given that, (a) the Crown made no effort to have these appeals heard in a timely way; (b) [each of the accused] completed the custodial portions of their respective sentences approximately six months before these appeals came on for hearing; and (c) the Crown has not suggested that either of them has failed to abide by the terms of their respective probation orders; we considered it inappropriate to entertain appeals seeking to have them reincarcerated." - See paragraphs 20 and 21.

Cases Noticed:

R. v. Nelson, [1992] Y.J. No. 171 (C.A.), refd to. [para. 14].

R. v. Koe (P.J.) (1994), 47 B.C.A.C. 315; 76 W.A.C. 315 (Yuk. C.A.), refd to. [para. 15].

R. v. McQuade, [1994] B.C.J. No. 1999 (C.A.), refd to. [para. 16].

R. v. Peterson, [1985] B.C.J. No. 1960 (C.A.), refd to. [para. 17].

R. v. Nguyen (T.M.) (2008), 257 B.C.A.C. 38; 432 W.A.C. 38; 234 C.C.C.(3d) 67; 2008 BCCA 252, refd to. [para. 18].

Counsel:

K.D. Parkkari, for the appellant;

G.R. Coffin, for the respondent, K.P. Frisch;

C.C. Pope, on his own behalf.

These applications for leave to appeal were heard and decided at Vancouver, British Columbia, on February 8, 2013, by Frankel, D. Smith and Hinkson, JJ.A., of the Yukon Court of Appeal, followed by reasons written by Frankel, J.A., on February 27, 2013.