R. v. Kuzyk (C.), (2015) 323 Man.R.(2d) 42 (CA)

• Judge: Mainella, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: August 06, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 323 Man.R.(2d) 42 (CA);2015 MBCA 85

R. v. Kuzyk (C.) (2015), 323 Man.R.(2d) 42 (CA);

      657 W.A.C. 42

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. SE.026

Her Majesty The Queen (respondent) v. Christopher Kuzyk (accused/appellant)

(AR 15-30-08440; 2015 MBCA 85)

Indexed As: R. v. Kuzyk (C.)

Manitoba Court of Appeal

Mainella, J.A.

August 6, 2015.

Summary:

An officer made handwritten notes regarding information from a confidential informant. After checking the information, the officer prepared an information to obtain a search warrant for the accused's residence. The handwritten notes were destroyed. The search warrant was executed by forcing entry. The accused was charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. Alleging a breach of his right under s. 7 of the Charter to make full answer and defence arising from the destruction of the handwritten notes, the accused applied under s. 24(1) of the Charter for a stay of the proceedings. Alternatively, alleging a breach of s. 8 arising from the search, the accused sought exclusion of the evidence obtained under s. 24(2).

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 308 Man.R.(2d) 128, dismissed the application. The accused was convicted of possession of cocaine for the purposes of trafficking and possession of the proceeds of crime. He was sentenced to a conditional sentence of two years less a day. The accused appealed from the conviction and sought relief from the conditional sentence order (CSO), pending the determination of his appeal. The Crown appealed from the sentence.

The Manitoba Court of Appeal, per Mainella, J.A., granted an order suspending the CSO under s. 683(5)(f) of the Criminal Code until the conviction appeal was determined. The accused was ordered to enter into an undertaking with conditions.

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - [See first Criminal Law - Topic 5720.8 ].

Criminal Law - Topic 5720.8

Punishments (sentence) - Conditional sentence - Suspension of pending appeal - The accused was convicted of possession of cocaine for the purposes of trafficking and possession of the proceeds of crime - He was sentenced to a conditional sentence of two years less a day - The accused appealed from the conviction and sought relief from the conditional sentence order (CSO) by way of an order of judicial interim release under s. 679(1) of the Criminal Code, pending the determination of his appeal - The Manitoba Court of Appeal, per Mainella, J.A., indicated that the correct procedure was an application for a suspension of the CSO under s. 683(5)(f) of the Code - Parliament's amendment to s. 683 to add the CSO to the list of sentences that could be suspended raised doubt about the need to resort to s. 679(1) at all - By enacting ss. 683(5.1) and 683(7), Parliament had provided a mechanism to balance the interests of the accused and the community where the court was inclined to suspend a CSO pending an appeal - Finally, s. 685(3) gave jurisdiction to a single judge of the Court of Appeal to suspend a CSO pending an appeal - This prevented an appeal being rendered nugatory by the CSO expiring prior to the appeal's determination - The mere fact that the accused's application was filed under the wrong section was not a bar to the application being heard - See paragraphs 7 to 22.

Criminal Law - Topic 5720.8

Punishments (sentence) - Conditional sentence - Suspension of pending appeal - The accused was convicted of possession of cocaine for the purposes of trafficking and possession of the proceeds of crime - He was sentenced to a conditional sentence of two years less a day - The accused appealed from the conviction and sought relief from the conditional sentence order (CSO), pending the determination of his appeal - The Manitoba Court of Appeal, per Mainella, J.A., granted an order suspending the CSO under s. 683(5)(f) of the Criminal Code until the conviction appeal was determined - The accused was ordered to enter into an undertaking with conditions - The test was whether the court considered the suspension to be in the interests of justice - There were a number of factors to be weighed - Here, other than for the accused's positive background and the suspension's favourable impact on maintaining public confidence in the administration of justice, the application would have failed - The appeal's relative merits did not justify suspension - The accused was 28 years old, employed and in a long-term common law relationship - He had no previous criminal record and had a supportive family of good character - He had been at large for four years on a promise to appear without incident - As some police misconduct in obtaining a search warrant had occurred, there was a strong public interest in the reviewability of the resulting conviction - Public confidence in the administration of justice was fostered by allowing the appeal process to take its course with the CSO suspended - See paragraphs 23 to 45.

Cases Noticed:

R. v. Vallance, [1998] O.J. No. 1615 (C.A.), refd to. [para. 9].

R. v. Cantin, [1999] Q.J. No. 2610 (C.A.), refd to. [para. 9].

R. v. Hornby (P.A.) (2003), 189 B.C.A.C. 242; 309 W.A.C. 242; 2003 BCCA 649, refd to. [para. 9].

R. v. Walsh (L.) (2005), 195 O.A.C. 311 (C.A.), refd to. [para. 9].

R. v. Metro News Ltd. (1985), 11 O.A.C. 58 (C.A.), refd to. [para. 13].

R. v. Church of Scientology and Zaharia (1987), 13 O.A.C. 17 (C.A.), refd to. [para. 18].

R. v. Gould (E.) (2012), 325 B.C.A.C. 167; 553 W.A.C. 167; 2012 BCCA 308, agreed with [para. 19].

R. v. Steward (A.E.) (2014), 569 A.R. 331; 606 W.A.C. 331; 2014 ABCA 79, agreed with [para. 19].

R. v. Bernardo (P.K.) (1997), 105 O.A.C. 244 (C.A.), refd to. [para. 23].

R. v. Chek TV Ltd. (1986), 27 C.C.C.(3d) 380 (B.C.C.A.), refd to. [para. 24].

R. v. Sunoco Inc. (1986), 11 C.P.R.(3d) 572 (Ont. C.A.), refd to. [para. 24].

R. v. Weinkauf (G.) (2008), 311 Sask.R. 177; 428 W.A.C. 177; 2008 SKCA 99, refd to. [para. 24].

R. v. Roshanimeydan (A.) (2013), 338 N.S.R.(2d) 221; 1071 A.P.R. 221; 2013 NSCA 146, refd to. [para. 24].

R. v. Naimer, 2015 QCCA 882, refd to. [para. 24].

R. v. Forster (H.R.) et al. (2005), 269 Sask.R. 275; 357 W.A.C. 275; 2005 SKCA 107, refd to. [para. 32].

R. v. Roussin (B.) (2011), 275 Man.R.(2d) 46; 538 W.A.C. 46; 2011 MBCA 103, refd to. [para. 35].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 36].

R. v. F.A.U. (2014), 306 Man.R.(2d) 273; 604 W.A.C. 273; 2014 MBCA 71, refd to. [para. 37].

R. v. Le (T.D.) (2009), 236 Man.R.(2d) 225; 448 W.A.C. 225; 2009 MBCA 35, refd to. [para. 38].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 39].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 683(5), sect. 683(5.1), sect. 683(6), sect. 683(7) [para. 11].

Counsel:

S.E. Pinx, Q.C., and J.C. Pinx, for the appellant;

J.A. Hyman, for the respondent.

This application was heard in Chambers on August 6, 2015, by Mainella, J.A., of the Manitoba Court of Appeal, whose decision was pronounced orally on August 6, 2015, with the following written reasons on September 18, 2015.