R. v. Perrier (P.C.),

• Jurisdiction: Newfoundland and Labrador
• Judge: Green
• Neutral Citation: 2009 NLCA 61
• Subject Matter: CRIMINAL LAW
• Citation: (2009), 293 Nfld. & P.E.I.R. 92 (NLCA),2009 NLCA 61,293 Nfld & PEIR 92,(2009), 293 Nfld & PEIR 92 (NLCA),293 Nfld. & P.E.I.R. 92
• Date: 02 June 2009
• Court: Court of Appeal (Newfoundland)

R. v. Perrier (P.C.) (2009), 293 Nfld. & P.E.I.R. 92 (NLCA);

    906 A.P.R. 92

MLB headnote and full text

Temp. Cite: [2009] Nfld. & P.E.I.R. TBEd. NO.005

Paul Charles Perrier (applicant) v. Her Majesty the Queen (respondent)

(08/86; 2009 NLCA 61)

Indexed As: R. v. Perrier (P.C.)

Newfoundland and Labrador Supreme Court

Court of Appeal

Green, C.J.N.L.

June 2, 2009.

Summary:

The accused pleaded guilty to cultivation of marijuana and was sentenced to a 12 month conditional sentence and 18 months' probation. The accused applied for leave to appeal his sentence and, if granted, for judicial interim release pending the appeal (Criminal Code, s. 679).

The Newfoundland and Labrador Court of Appeal, per Welsh, J.A., in a decision reported at 282 Nfld. & P.E.I.R. 171; 868 A.P.R. 171, denied leave to appeal. The accused applied to set an appeal against sentence down for hearing. The Crown objected on the ground that leave to appeal had already been denied and the accused had no continuing right to have the appeal heard. The accused asserted that it remained open to him to set the case down for hearing, with the issue of leave to be argued at the time of the appeal hearing in accordance with rule 6(1) of the Court of Appeal Criminal Appeal Rules (Criminal Code, s. 675). Alternatively, if the issue of leave had been decided for all purposes, the accused requested that the previous decision of a single judge denying leave be reviewed by a panel of three judges pursuant to s. 680 of the Code.

The Newfoundland and Labrador Court of Appeal, per Green, C.J.N.L., dismissed the application, concluding that: (1) once the issue of leave to appeal was decided, no matter in what context, it could not be raised and re-argued again; (2) the test for determining leave to appeal was the same no matter how the issue arose; and (3) s. 680 was not available to a person who had been denied leave to appeal in the context of a judicial interim release application to have the matter of leave (as opposed to the matter of release) reheard by a panel of the court.

Criminal Law - Topic 3310.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending sentence appeal - On an application to have an appeal against sentence set down for hearing, the Newfoundland and Labrador Court of Appeal, per Green, C.J.N.L., stated that "As a general proposition, Rule 6 [of the Court of Appeal Criminal Appeal Rules] permits an application for leave to appeal to be set down and heard at the same time as the hearing of the appeal itself. But this is not the invariable rule. One situation where that cannot occur is where the appellant wishes to apply for judicial interim release pending the disposition of the appeal. In that situation s. 697(1)(b) of the [Criminal] Code mandates as a precondition to hearing the application for release that the appellant be first granted leave to appeal. Although in practice the applications for leave and release are heard together they are in fact separate applications. Effectively, therefore, an application for release conceptually involves a two-step process: a determination of whether leave should be granted and, if so, then a determination whether release should be ordered. They involve distinct analyses and apply different tests." - See paragraph 17.

Criminal Law - Topic 6208.1

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - General principles - [See Criminal Law - Topic 3310.1 ].

Criminal Law - Topic 6208.1

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - General principles - The accused applied for leave to appeal his sentence and, if granted, for judicial interim release pending the appeal (Criminal Code, s. 679) - The application was dismissed by a single judge - The accused applied to set an appeal against sentence down for hearing with the issue of leave to be argued at the time of the appeal hearing in accordance with rule 6(1) of the Court of Appeal Criminal Appeal Rules (Criminal Code, s. 675) - The accused asserted that the test for leave under s. 675 was not as onerous as that under s. 679 and, accordingly, the denial of leave under s. 679 did not preclude an application under s. 675 - Alternatively, if the issue of leave had been decided for all purposes, the accused requested that the decision denying him leave to appeal be reviewed by a panel of three judges pursuant to s. 680 of the Code - The Newfoundland and Labrador Court of Appeal dismissed the application - There was only one leave application mechanism and that was provided for and regulated by s. 675 - Section 679 merely stipulated that before judicial interim release could be granted the accused had to already have been "granted leave to appeal" - This was a reference back to the general requirement for leave in s. 675 - Further, the test for determining leave to appeal was the same no matter how the issue arose - No substantive difference existed between the use of the terms "frivolous", "arguable basis" and "sufficient merit" relative to the standard to be applied - Once leave was dealt with and denied, it was decided for all purposes and could not be raised again - Also, the accused was not entitled to a s. 680 review - Section 680 only allowed a decision made under s. 679 to be reviewed by a panel of the court - The reference to a "decision made by a judge under section ... 679" in s. 680 was a reference to a decision respecting release, not a decision respecting leave - See paragraphs 17 to 33.

Cases Noticed:

R. v. Bailey (R.P.), [2008] Nfld. & P.E.I.R. Uned. 2; 2008 NLCA 5, refd to. [para. 5].

R. v. McGarry (M.K.) (2007), 271 Nfld. & P.E.I.R. 132; 826 A.P.R. 132 (P.E.I.C.A.), refd to. [para. 19].

R. v. Wilder (D.M.), [2007] B.C.A.C. Uned. 78; 2007 BCCA 344, refd to. [para. 19].

R. v. J.D. (1996), 150 N.S.R.(2d) 384; 436 A.P.R. 384 (C.A.), refd to. [para. 19].

R. v. Jesso (H.) (2008), 276 Nfld. & P.E.I.R. 147; 846 A.P.R. 147 (N.L.C.A.), refd to. [para. 23].

R. v. Laliberte (M.R.) (2000), 189 Sask.R. 190; 216 W.A.C. 190; 2000 SKCA 27, refd to. [para. 25].

R. v. Hawthorne (E.) (1992), 21 B.C.A.C. 173; 37 W.A.C. 173 (C.A.), refd to. [para. 25].

R. v. Shacklock (G.) et al. (2000), 185 N.S.R.(2d) 119; 575 A.P.R. 119 (C.A.), refd to. [para. 25].

R. v. Smith (K.D.) (2005), 231 N.S.R.(2d) 139; 733 A.P.R. 139; 2005 NSCA 45, refd to. [para. 25].

R. v. Mahamud (M.S.), [2001] B.C.A.C. Uned. 148; 2001 BCCA 558, refd to. [para. 25].

R. v. Bodnarchuk (M.M.) (2007), 246 B.C.A.C. 91; 406 W.A.C. 91 (C.A.), refd to. [para. 25].

Statutes Noticed:

Criminal Appeal Rules (Nfld. & Lab.) - see Criminal Code Regulations (Can.).

Criminal Code, R.S.C. 1985, c. C-46, sect. 675(1)(b), sect. 675(4) [para. 12]; sect. 679(1)(b) [para. 13]; sect. 679(3), sect. 679(4) [para. 14]; sect. 680(1) [para. 15].

Criminal Code Regulations (Can.), Newfoundland and Labrador Supreme Court-Court of Appeal Criminal Appeal Rules, SI/2002-96, rule 6 [para. 16].

Newfoundland and Labrador Supreme Court-Court of Appeal Criminal Appeal Rules - see Criminal Code Regulations (Can.).

Counsel:

Derek Hogan, for the appellant;

Andrew Brown, for the respondent.

This application was heard on June 2, 2009, by Green, C.J.N.L., of the Newfoundland and Labrador Court of Appeal, who delivered judgment orally on June 2, 2009, and filed the following written reasons on November 5, 2009.