R. v. Gould (E.),

• Jurisdiction: British Columbia
• Judge: Chiasson, J.A.
• Court: Court of Appeal (British Columbia)
• Citation: 2012 BCCA 308,(2012), 325 B.C.A.C. 167 (CA)
• Date: 04 July 2012

R. v. Gould (E.) (2012), 325 B.C.A.C. 167 (CA);

    553 W.A.C. 167

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JL.036

Regina (respondent) v. Elaine Gould (appellant/applicant)

(CA039936; 2012 BCCA 308)

Indexed As: R. v. Gould (E.)

British Columbia Court of Appeal

Chiasson, J.A.

July 12, 2012.

Summary:

Gould was convicted of tax evasion. She received a conditional sentence of six months and a fine of $27,434.56. Gould appealed her conviction and sentence. She applied to suspend her conditional sentence and to suspend payment of the fine pending the appeal.

The British Columbia Court of Appeal, per Chiasson, J.A., dismissed the application to suspend the conditional sentence, but granted the application to suspend payment of the fine pending determination of the appeal.

Editor's Note: For a related case see (2012), 325 B.C.A.C. 161; 553 W.A.C. 161.

Criminal Law - Topic 4979

Appeals - Indictable offences - Powers of court of appeal - Power to stay payment of fine pending appeal - [See Criminal Law - Topic 5720.8].

Criminal Law - Topic 5720.8

Punishments (sentence) - Conditional sentence - Suspension of pending appeal - Gould was convicted of tax evasion - She received a conditional sentence of six months and a fine of $27,434.56 - Gould appealed her conviction and sentence - She applied to suspend her conditional sentence and to suspend payment of the fine pending the appeal - In 2008, Parliament amended the Criminal Code to provide in s. 683(5)(f) that "If an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, when the court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has been determined: ... (f) a conditional sentence order under section 742.1" - The Crown contended that one would expect the substantive considerations in relation to a request under s. 683(5)(f) to be largely the same as those governing an application for judicial interim release under s. 679 of the Code - The British Columbia Court of Appeal, per Chiasson, J.A., held that the application should be determined on the basis of whether suspension of the conditional sentence was in the interests of justice, rather than on the basis of the criteria set out in s. 679(3) of the Code - The court discussed the meaning of "interests of justice" as the phrase was used in s. 683(5) - The court dismissed Gould's application to suspend her conditional sentence - The court considered, inter alia, that the conviction appeal was without merit and the sentence appeal was weak - However, taking into account Gould's circumstances, the court concluded that it was in the interests of justice to suspend payment of the fine pending the determination of the appeal.

Cases Noticed:

R. v. Chek TV Ltd. (1986), 27 C.C.C.(3d) 380; 16 W.C.B. 188 (B.C.C.A.), refd to. [para. 10].

R. v. Weinkauf (G.) (2008), 311 Sask.R. 177; 428 W.A.C. 177; 236 C.C.C.(3d) 121; 2008 SKCA 99, refd to. [para. 11].

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. 12].

R. v. Bernardo (P.K.) (1997), 105 O.A.C. 244; 121 C.C.C.(3d) 123 (C.A.), refd to. [para. 13].

R. v. Ali (M.S.) (2008), 253 B.C.A.C. 167; 425 W.A.C. 167; 77 B.C.L.R.(4th) 289; 2008 BCCA 147, refd to. [para. 14].

R. v. Dawydiuk (M.N.) (2008), 256 B.C.A.C. 233; 431 W.A.C. 233; 2008 BCCA 243, refd to. [para. 14].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 679(3) [para. 5]; sect. 683(5)(f) [para. 6].

Counsel:

Appellant appeared in person;

W.P. Riley, for the respondent.

This application was heard in Chambers on July 4, 2012, at Vancouver, B.C., before Chiasson, J.A., of the British Columbia Court of Appeal, who delivered the following judgment on July 12, 2012.