R. v. Roussin (B.),

• Jurisdiction: Manitoba
• Judge: Scott
• Neutral Citation: 2011 MBCA 103
• Citation: 2011 MBCA 103,(2011), 275 Man.R.(2d) 46 (CA),275 ManR(2d) 46,(2011), 275 ManR(2d) 46 (CA),275 Man.R.(2d) 46
• Date: 18 August 2011
• Court: Court of Appeal (Manitoba)

R. v. Roussin (B.) (2011), 275 Man.R.(2d) 46 (CA);

      538 W.A.C. 46

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JA.001

Her Majesty The Queen (respondent) v. Bjarne Roussin (accused/applicant)

(AR 10-30-07352; AR 10-30-07353; 2011 MBCA 103)

Indexed As: R. v. Roussin (B.)

Manitoba Court of Appeal

Scott, C.J.M.

December 20, 2011.

Summary:

The accused was convicted of numerous offences. In total, he was sentenced to 13 years' incarceration, with five years to be served post-sentencing. The accused appealed the convictions and sentences and applied for judicial interim release.

The Manitoba Court of Appeal, per Scott, C.J.M., dismissed the application.

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 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - The accused was convicted on December 12, 2009, of 16 offences, including one count of armed robbery, one count of robbery with an imitation firearm, one count of attempted robbery, two counts of possession of a prohibited weapon, one count of flight from police in a motor vehicle, one count of dangerous driving and three counts of uttering threats - On March 11, 2010, he was convicted of one count of dangerous driving and two counts of uttering threats - In total, he was sentenced to 13 years' incarceration, with five years to be served post-sentencing - The accused appealed the convictions and sentences and applied for judicial interim release (JIR) - He had a lengthy criminal record - The Crown conceded that the first two criteria in s. 679(3) of the Criminal Code were met, but not the third (that detention was not necessary in the public interest) - The accused's counsel argued that there were special circumstances that militated in favour of JIR, namely, the delay since the sentences were imposed, the fact that the accused had served a substantial portion of his sentence (and would have been eligible for day parole but for his appeal) and strong arguments on the merits - The Manitoba Court of Appeal, per Scott, C.J.M., dismissed the application - It was appropriate to take into account the strength of the potential appeal in determining whether detention was necessary in the public interest - However, in this case, the reasons for reviewability were not so compelling as to warrant JIR - The public interest in enforcing the convictions was paramount.

Criminal Law - Topic 3315

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Evidence and burden of proof - The accused appealed from his convictions and sentences for various offences and applied for judicial interim release (JIR) - The accused applied to admit fresh evidence on the issue of alleged juror misconduct - The Manitoba Court of Appeal, per Scott, C.J.M., stated that "I am not aware of any authority where fresh evidence dealing solely with the appeal's potential merit has been received in a JIR application. In my opinion, the proper time and place to argue the admissibility of sensitive evidence, touching upon potential juror misconduct of such significance as to warrant a mistrial, is before a panel of the court, when full argument on all issues can be made. I therefore reject the application to introduce new evidence" - See paragraphs 17 to 24.

Cases Noticed:

Wilson v. R. (1993), 85 Man.R.(2d) 250; 41 W.A.C. 250; 78 C.C.C.(3d) 568 (C.A.), refd to. [para. 18].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 81, refd to. [para. 18].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 18].

R. v. Gumbly (D.) (1996), 155 N.S.R.(2d) 117; 457 A.P.R. 117 (C.A.), refd to. [para. 18].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197; 86 C.C.C.(3d) 32 (C.A.), refd to. [para. 25].

R. v. Pabani (1991), 10 C.R.(4th) 381 (Ont. C.A.), refd to. [para. 27].

R. v. Rhyason (B.P.) (2006), 384 A.R. 146; 367 W.A.C. 146; 2006 ABCA 120, refd to. [para. 28].

R. v. Mapara (S.) (2001), 156 B.C.A.C. 138; 255 W.A.C. 138; 45 C.R.(5th) 230; 2001 BCCA 508, refd to. [para. 29].

R. v . P.S.P. (1999), 121 O.A.C. 309 (C.A.), refd to. [para. 29].

R. v. Wucherer (P.J.) (2004), 205 B.C.A.C. 164; 337 W.A.C. 164; 2004 BCCA 602, refd to. [para. 30].

R. v. C.D.B. (2006), 233 B.C.A.C. 1; 36 W.A.C. 1; 2006 YKCA 8, refd to. [para. 30].

R. v. Hayre (H.S.) (2009), 271 B.C.A.C. 177; 458 W.A.C. 177; 2009 BCCA 247, refd to. [para. 30].

R. v. Baltovich (R.) (2000), 131 O.A.C. 29; 47 O.R.(3d) 761; 144 C.C.C.(3d) 233 (C.A.), refd to. [para. 31].

R. v. Le (T.D.) (2009), 236 Man.R.(2d) 225; 448 W.A.C. 225; 2009 MBCA 35, refd to. [para. 32].

R. v. Olenick (D.J.), [2010] Man.R.(2d) Uned. 48; 2010 MBCA 48, refd to. [para. 32].

R. v. Allen (2001), 45 C.R.(5th) 242; 2001 NFCA 44, refd to. [para. 33].

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. 36].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 679(3) [para. 2].

Authors and Works Noticed:

Trotter, Gary T., The Law of Bail in Canada (3rd Ed. 2010) (Looseleaf), p. 10-29, note 123 [para. 28].

Trotter, Gary T., Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion (2001), 45 C.R.(5th) 267, p. 269 [para. 33].

Counsel:

D.M. Sawchuk, for the applicant;

C.A. Vanderhooft, for the respondent.

This application was heard in Chambers on August 18, 2011, before Scott, C.J.M., of the Manitoba Court of Appeal, who delivered the following decision on December 20, 2011.