R. v. Janes (D.S.), (2011) 298 N.S.R.(2d) 178 (CA)

• Judge: Beveridge, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 17, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 298 N.S.R.(2d) 178 (CA);2011 NSCA 10

R. v. Janes (D.S.) (2011), 298 N.S.R.(2d) 178 (CA);

    945 A.P.R. 178

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JA.051

Derek Scott Janes (applicant) v. Her Majesty The Queen (respondent)

(CAC 338620; 2011 NSCA 10)

Indexed As: R. v. Janes (D.S.)

Nova Scotia Court of Appeal

Beveridge, J.A.

January 17, 2011.

Summary:

The accused applied under s. 679(1)(a) of the Criminal Code for bail pending the hearing of his appeal from conviction and sentence for assault.

The Nova Scotia Court of Appeal, per Beveridge, J.A., granted bail subject to a $20,000 recognizance, $11,500 posted by two sureties, and strict conditions effectively amounting to house arrest.

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 3310 ].

Criminal Law - Topic 3307

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - Conditions of - [See Criminal Law - Topic 3310 ].

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - The 34 year old accused was convicted of assault and was sentenced to 18 months' imprisonment, less 11 months' credit for five months' pre-trial custody, followed by three years' probation and a prohibition order respecting contact with the female complainant - The accused appealed his conviction and sentence and applied under s. 679(1)(a) of the Criminal Code for bail pending his appeal - The accused had 30 convictions in the past 16 years, most for assaults, property damage, uttering threats, and breaching release conditions and probation - He was currently in the middle of a trial for wilfully obstructing justice by threatening the complainant (continued to April 28, 2011) - The Nova Scotia Court of Appeal granted bail subject to a $20,000 recognizance, $11,500 posted by two sureties, and strict conditions amounting to house arrest - The Crown conceded that the appeal was not frivolous, but argued that the accused would not surrender himself into custody and that his detention was necessary in the public interest, given his lengthy criminal record and history of breaching court orders - The accused had family, property and prospective employment in the area - Both his father and his prospective employer were prepared to act as sureties - Absent the two sureties, the court stated that it would not grant bail, as the Crown's fear of the accused failing to appear was well-founded - It was noted that if bail was denied, the accused's right of appeal would be rendered nugatory because his sentence would be served before the appeal could be heard - It was an act of domestic violence and that relationship was over - The terms of the recognizance subjected the accused to far more stringent conditions for a much longer period of time than if he simply finished serving his sentence.

Cases Noticed:

R. v. Ryan (J.D.P.) (2004), 226 N.S.R.(2d) 247; 714 A.P.R. 247; 2004 NSCA 105 (C.A.), refd to. [para. 28].

R. v. Barry (S.D.) (2004), 227 N.S.R.(2d) 227; 720 A.P.R. 227; 2004 NSCA 126, refd to. [para. 29].

R. v. Cox (K.H.) (2009), 274 N.S.R.(2d) 364; 874 A.P.R. 364; 2009 NSCA 15, refd to. [para. 29].

R. v. MacIntosh (E.F.) (2010), 295 N.S.R.(2d) 179; 935 A.P.R. 179; 2010 NSCA 77, refd to. [para. 29].

R. v. Nguyen (Y.V.) (1997), 97 B.C.A.C. 86; 157 W.A.C. 86; 119 C.C.C.(3d) 269 (C.A.), refd to. [para. 30].

R. v. Pabani (1991), 10 C.R.(4th) 381 (Ont. C.A.), refd to. [para. 37].

R. v. Sweet (P.A.) (2006), 250 N.S.R.(2d) 68; 796 A.P.R. 68; 2006 NSCA 141, dist. [para. 39].

R. v. Tattrie (T.M.) (2007), 253 N.S.R.(2d) 184; 807 A.P.R. 184; 2007 NSCA 41, dist. [para. 39].

R. v. Cox (K.H.) (2009), 274 N.S.R.(2d) 364; 874 A.P.R. 364; 2009 NSCA 15, dist. [para. 39].

Counsel:

Derek Scott Janes, on his own behalf;

Mark Scott, for the respondent.

This application was heard on January 13 and 17, 2011, at Halifax, N.S., before Beveridge, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment orally on January 17, 2011, with written reasons filed on January 20, 2011.