R. v. Gill (J.S.), 2015 SKCA 96

• Judge: Jackson, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: August 25, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 96;(2015), 465 Sask.R. 253 (CA)

R. v. Gill (J.S.) (2015), 465 Sask.R. 253 (CA);

    649 W.A.C. 253

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. SE.029

Jagdeep Singh Gill (applicant/appellant) v. Her Majesty the Queen (respondent/respondent)

(CACR2658; 2015 SKCA 96)

Indexed As: R. v. Gill (J.S.)

Saskatchewan Court of Appeal

Jackson, J.A.

September 1, 2015.

Summary:

The accused was charged with aggravated sexual assault, choking to render incapable of resistance and breach of release conditions. Asserting breaches of his rights under ss. 7 and 14 of the Charter due to late disclosure by the Crown and translation issues at trial, the accused sought either a stay of proceedings or a mistrial under s. 24 of the Charter.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 448 Sask.R. 182, agreed that the translation regarding one witness on one day had not met the constitutionally guaranteed standard of continuous, contemporaneous, precise and competent translation. The appropriate remedy was to "turn the clock back, to exclude from the record and consideration by the Court all of the evidence [from the day in question] and other proceedings" from that day and for the defence to call the witness again. While there had been technical breaches of s. 7 due to certain late disclosures, those breaches had been remedied by the adjournment of the trial that had been granted at the Crown's request. The accused was convicted on all three charges. A judicial stay was entered on the choking conviction. The accused was sentenced to five years' imprisonment for aggravated sexual assault and three months consecutive for the breach of recognizance. The accused appealed from both the convictions and the sentence. He applied for judicial interim release, pending the appeal.

The Saskatchewan Court of Appeal, per Jackson, J.A., dismissed the application.

Criminal Law - Topic 3303

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to ensure attendance (i.e., primary ground) - [See Criminal Law - Topic 3315 ].

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 - [See Criminal Law - Topic 3315 ].

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 3315 ].

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 3315 ].

Criminal Law - Topic 3315

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Evidence and burden of proof - The accused was convicted of aggravated sexual assault, choking to render incapable of resistance and breach of release conditions - The complainant was the accused's sister-in-law - A judicial stay was entered on the choking conviction - The accused was sentenced to five years' imprisonment for aggravated sexual assault and three months consecutive for the breach of recognizance - The accused appealed from both the convictions and the sentence - He applied for judicial interim release, pending the appeal - The Saskatchewan Court of Appeal, per Jackson, J.A., dismissed the application - The accused met the low threshold of an appeal that was not frivolous - However, the court was not persuaded that the accused would surrender himself into custody - He had not sworn an affidavit in support of the application - The affidavit filed in support by the accused's new wife raised more questions than it answered - The court was unable to rely on it - The strength of the grounds of appeal did not overcome the factors that militated against release, including the nature and seriousness of the offences and the absence of reliable evidence as to the accused's current circumstances and plans - The accused's release was not in the public's interest.

Cases Noticed:

R. v. Tran (Q.D.), [1994] 2 S.C.R. 951; 170 N.R. 81; 133 N.S.R.(2d) 81; 380 A.P.R. 81, refd to. [para. 10].

R. v. Agecoutay (L.H.) et al. (2008), 310 Sask.R. 224; 423 W.A.C. 224; 2008 SKCA 68, refd to. [para. 15].

R. v. Archie (R.D.), [2015] Sask.R. Uned. 45; 2015 SKCA 78, refd to. [para. 21].

R. v. Clarke (R.J.), [2015] Sask.R. Uned. 21; 2015 SKCA 41, red to. [para. 21].

R. v. Leroux (P.M.) (2014), 438 Sask.R. 162; 608 W.A.C. 162; 2014 SKCA 60, refd to. [para. 21].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 23].

R. v. Demyen (1975), 26 C.C.C.(2d) 324 (Sask. C.A.), refd to. [para. 25].

Counsel:

Alexander Millman, for the appellant;

Erin Bartsch, for the respondent.

This application was heard in Chambers on August 25, 2015, by Jackson, J.A., of the Saskatchewan Court of Appeal, who delivered the following reasons for decision on September 1, 2015.