R. v. Gingras (J.G.), (2012) 333 B.C.A.C. 69 (CA)

• Judge: Garson, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 17, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 333 B.C.A.C. 69 (CA);2012 BCCA 522

R. v. Gingras (J.G.) (2012), 333 B.C.A.C. 69 (CA);

    571 W.A.C. 69

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. JA.031

Regina (respondent) v. Jean Gaetan Gingras (appellant)

(CA040191; 2012 BCCA 522)

Indexed As: R. v. Gingras (J.G.)

British Columbia Court of Appeal

Garson, J.A.

December 17, 2012.

Summary:

Gingras appealed his convictions and sentence for conspiracy to traffic in cocaine and laundering the proceeds of crime. Porisky appealed his convictions and sentence for tax evasion, GST evasion and counselling to commit fraud. Each applied for and were denied release from custody pending the appeals mainly because of the weakness of their grounds of appeal (see 327 B.C.A.C. 136; 556 W.A.C. 136 and 325 B.C.A.C. 161; 553 W.A.C. 161). Porisky applied under s. 680 of the Criminal Code for a direction that the court review the order denying him interim release.

The British Columbia Court of Appeal, per Finch, C.J.B.C., directed a review of the orders denying release to both Porisky and Gingras.

The British Columbia Court of Appeal, in a decision reported at 330 B.C.A.C. 102; 562 W.A.C. 102, dismissed Gingras' application for release and ordered that Porisky be released on conditions. Gingras reapplied for release pending appeal, asserting that there had been a material change in circumstances since his initial application and the review of that decision. That change was an affidavit of his trial counsel in which, according to Gingras, counsel acknowledged that Gingras did not comprehend or hear significant portions of the trial proceedings.

The British Columbia Court of Appeal, per Garson, J.A., allowed the application and ordered that Gingras be released on conditions.

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 - Gingras was convicted of conspiracy to traffic in cocaine and laundering the proceeds of crime - He appealed his convictions and resulting sentence and applied to be released from custody pending the appeals - The Crown accepted that Gingras would surrender himself into custody, but asserted that he had not established that the grounds of appeals were not frivolous and, even if the grounds were not frivolous, they were so weak that they formed an important consideration in assessing the public interest - Gingras had strong family connections - He was 69 years old, in frail health and in a precarious situation in prison - For four years while waiting to go to trial, he complied with his bail conditions - The Court of Appeal affirmed the denial of interim release - This was a serious drug case involving a high volume of cocaine, large cash transactions and a substantial sentence - Enforceability demanded strong grounds of appeal - While the grounds of appeal were arguable, they were not strong enough to tip the balance in favour of reviewability - Gingras reapplied for release pending appeal, asserting that there had been a material change in circumstances - That change was an affidavit of his trial counsel in which, according to Gingras, counsel acknowledged that Gingras did not comprehend or hear significant portions of the trial proceedings - The British Columbia Court of Appeal, per Garson, J.A., held that the affidavit constituted a material change in circumstances meriting a fresh bail application - The affidavit, when examined in the context of the accused's own affidavit and the transcript excerpts, raised a serious question as to whether the accused could hear and comprehend the proceedings - The appeal's strength was now something approaching a strong appeal - It appeared that Gingras might have been denied his right to a fair trial - That conclusion engaged the reviewability principle and given Gingras' personal circumstances, favoured reviewabilty over enforceability - It was in the public interest to release Gingras pending the appeal.

Criminal Law - Topic 3309

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - When available - [See Criminal Law - Topic 3304 ].

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 ].

Cases Noticed:

R. v. Mapara (S.) (2001), 156 B.C.A.C. 138; 255 W.A.C. 138; 158 C.C.C.(3d) 312; 2001 BCCA 508, refd to. [para. 5].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197; 109 D.L.R.(4th) 97; 86 C.C.C.(3d) 32 (C.A.), refd to. [para. 5].

R. v. Wilder (D.M.) (2006), 227 B.C.A.C. 310; 374 W.A.C. 310; 2006 BCCA 290, refd to. [para. 11].

R. v. Daniels (H.) (1997), 103 O.A.C. 369; 35 O.R.(3d) 737; 19 C.C.C.(3d) 413 (C.A.), refd to. [para. 11].

Italy v. Seifert (2008), 250 B.C.A.C. 66; 416 W.A.C. 66; 2008 BCCA 25, refd to. [para. 11].

R. v. Arbour (1990), 4 C.R.R.(2d) 369 (Ont. C.A.), refd to. [para. 27].

R. v. A.W.C. (2005), 367 A.R. 50; 346 W.A.C. 50; 2005 ABCA 96, refd to. [para. 27].

Counsel:

G. McKinnon, Q.C., for the appellant;

W.P. Riley, for the respondent.

This application was heard in chambers at Vancouver, British Columbia, on December 17, 2012, by Garson, J.A., of the British Columbia Court of Appeal, who delivered the following judgment orally on the same date.