R. v. Sagoo (I.S.), 2009 ABCA 357

• Judge: Ritter, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 27, 2009
• Citations: 2009 ABCA 357;(2009), 464 A.R. 258 (CA)

R. v. Sagoo (I.S.) (2009), 464 A.R. 258 (CA);

      467 W.A.C. 258

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. NO.006

Her Majesty the Queen (respondent/respondent) v. Inderjeet Singh Sagoo (applicant/appellant)

(0903-0273-A; 2009 ABCA 357)

Indexed As: R. v. Sagoo (I.S.)

Alberta Court of Appeal

Ritter, J.A.

October 30, 2009.

Summary:

The accused applied for bail pending his sentence appeal pursuant to s. 679 of the Criminal Code.

The Alberta Court of Appeal, per Ritter, J.A., allowed the application.

Criminal Law - Topic 3303

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to ensure attendance - The accused pleaded guilty to 23 property based offences - He was sentenced to two years' imprisonment - He applied for bail pending his sentence appeal pursuant to s. 679 of the Criminal Code - The Alberta Court of Appeal, per Ritter, J.A., found, inter alia, that the accused would surrender himself into custody in accordance with the terms of an appropriate bail order - The court considered that the accused had been apprehended by police, released on bail and remained released until his sentencing - During that time, he continued his education program, worked when available to do so, and did volunteer work - He had complied with all his bail conditions and attended court as required - See paragraph 14.

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 - The accused pleaded guilty to 23 property based offences - He was sentenced to two years' imprisonment - He applied for bail pending his sentence appeal pursuant to s. 679 of the Criminal Code - The Alberta Court of Appeal, per Ritter, J.A., allowed the application, holding, inter alia, that the accused's continued detention was not necessary in the public interest - This was the first time that the accused had ever faced criminal charges and his appeal was arguable - Holding a relatively youthful first-time offender in custody, convicted of property offences only, when he might succeed on his sentence appeal, would not generally be in the public interest - See paragraph 15.

Criminal Law - Topic 3310.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending sentence appeal - The appellant applied for leave to appeal sentence - Under s. 679(1)(b) of the Criminal Code, a judge of the court of appeal could release an appellant from custody pending an appeal to the court of appeal against sentence only, if the appellant had been granted leave to appeal - Under s. 679(4) the judge could order that the appellant be released pending the determination of his sentence appeal or until otherwise ordered by a judge of the court of appeal if the appellant established that, inter alia, "(a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody ..." - The Alberta Court of Appeal, per Ritter, J.A., stated that "In her reasons, the sentencing judge acknowledged that a conditional sentence was an available sentencing option. However, she sentenced the applicant to incarceration in a Federal institution because she was of the view that denunciation and deterrence were the most important sentencing objectives with respect to the crimes committed. Given her acknowledgement that a conditional sentence was a valid sentencing option, the argument that the sentence imposed was either unfit or overemphasized denunciation and deterrence is not devoid of merit. Therefore the sufficient merit requirement under s. 679(4)(a) is met, as is the test for leave to appeal sentence." - See paragraph 12.

Criminal Law - Topic 3310.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending sentence appeal - The appellant applied for leave to appeal sentence - Under s. 679(1)(b) of the Criminal Code, a judge of the court of appeal could release an appellant from custody pending an appeal to the court of appeal against sentence only, if the appellant had been granted leave to appeal - Under s. 679(4) the judge could order that the appellant be released pending the determination of his sentence appeal or until otherwise ordered by a judge of the court of appeal if the appellant established that, inter alia, "(a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody ..." - The Alberta Court of Appeal, per Ritter, J.A., stated that "With respect to unnecessary hardship, the applicant is a serving prisoner in a Federal institution. It is acknowledged that defence counsel at sentencing sought 'Federal time' because the applicant would be considered for parole after serving only four months given that the offences did not involve violence. The applicant has already served more than one month of the likely total institutional time of four months. By the time this appeal is heard ..., the applicant will have served most of the four months of likely incarceration, thereby reducing the effectiveness of any success on appeal. This potential qualifies as unnecessary hardship for the purposes of s. 679(4)(a) of the Criminal Code." - See paragraph 12.

Criminal Law - Topic 3310.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending sentence appeal - [See Criminal Law - Topic 3315 ].

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 appellant applied for leave to appeal sentence - Under s. 679(1)(b) of the Criminal Code, a judge of the court of appeal could release an appellant from custody pending an appeal to the court of appeal against sentence only, if the appellant had been granted leave to appeal - Under s. 679(4) the judge could order that the appellant be released pending the determination of his sentence appeal or until otherwise ordered by a judge of the court of appeal if the appellant established that, inter alia, "(a) the appeal had sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody ..." - The Alberta Court of Appeal, per Ritter, J.A., stated that "The first step required by s. 679(1)(b) is to determine whether leave to appeal the sentence should be granted on the basis that the applicant has demonstrated that his appeal has some prospect of success and is not frivolous ... Since the standard is not as arduous as the sufficient merit requirement for bail itself, I will consider merit for bail purposes first. If the applicant meets the merit requirement for bail, he will also meet the requirement for leave to appeal his sentence." - See paragraph 7.

Criminal Law - Topic 6210

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - Burden on party seeking leave - [See Criminal Law - Topic 3315 ].

Criminal Law - Topic 6211

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

Cases Noticed:

R. v. Adamson (S.L.), [2007] B.C.A.C. Uned. 197; 2007 BCCA 644, refd to. [para. 7].

R. v. C.D.B. (2006), 233 B.C.A.C. 1; 36 W.A.C. 1; 2006 YKCA 8, refd to. [para. 7].

R. v. Fox (J.L.) (2000), 266 A.R. 396; 228 W.A.C. 396; 2000 ABCA 257, refd to. [para. 8].

R. v. Ewanchuk (S.B.) (2000), 271 A.R. 118; 234 W.A.C. 118; 2000 ABCA 303, refd to. [para. 9].

R. v. Cooper (A.R.) (1999), 237 A.R. 355; 197 W.A.C. 355; 138 C.C.C.(3d) 292; 1999 ABCA 249, refd to. [para. 9].

R. v. Colville (D.) (2004), 357 A.R. 34; 334 W.A.C. 34; 2004 ABCA 342, refd to. [para. 9].

R. v. McGarry (M.K.) (2007), 271 Nfld. & P.E.I.R. 132; 826 A.P.R. 132; 2007 PESCAD 20, refd to. [para. 9].

Counsel:

M.R. Bloos, Q.C., on behalf of B.A. Beresh, Q.C., for the respondent;

S.D. Hughson, Q.C., for the applicant.

This application was heard on October 27, 2009, by Ritter, J.A., of the Alberta Court of Appeal, who delivered the following decision for the court on October 30, 2009.