R. v. Schwartz (V.J.M.), 2015 BCCA 56

• Judge: Kirkpatrick, Frankel and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 18, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 56;(2015), 368 B.C.A.C. 103 (CA)

R. v. Schwartz (V.J.M.) (2015), 368 B.C.A.C. 103 (CA);

    633 W.A.C. 103

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. FE.024

Regina (appellant) v. Vincent Jean Marie Schwartz (respondent)

(CA041661; 2015 BCCA 56)

Indexed As: R. v. Schwartz (V.J.M.)

British Columbia Court of Appeal

Kirkpatrick, Frankel and Neilson, JJ.A.

February 18, 2015.

Summary:

The accused pleaded guilty to production of marijuana in relation to a commercial marijuana grow operation. He was sentenced to a conditional sentence of six months less a day. Since the accused was a permanent resident of Canada, but a citizen of France, he was subject to a removal order. Sentencing him to less than six months preserved his right of appeal to the Immigration Appeal Division. Just short of one month after sentencing, the Crown applied for leave to appeal the sentence. Two months after that, the Crown unilaterally set the appeal for hearing six months later. That hearing date was adjourned, at the accused's request, for a further three months as the accused had just retained counsel.

The British Columbia Court of Appeal denied the Crown leave to appeal, not on the merits, but because of the unilateral Crown conduct in setting the appeal down for hearing six months later. This was contrary to the Crown's obligation to bring appeals of this nature on for hearing expeditiously.

Criminal Law - Topic 6211.1

Sentencing - Appeals - Variation of sentence - Application for leave to appeal (incl. extensions) - Bars - See paragraphs 19 to 34.

Cases Noticed:

R. v. Ly (T.Q.), [2013] 1 S.C.R. 739; 441 N.R. 375; 544 A.R. 40; 567 W.A.C. 40; 2013 SCC 15, refd to. [para. 3].

R. v. Pham - see R. v. Ly (T.Q.).

R. v. Frisch (K.P.) (2013), 334 B.C.A.C. 166; 572 W.A.C. 166; 2013 YKCA 3, refd to. [para. 20].

R. v. Nguyen (T.M.) (2008), 257 B.C.A.C. 38; 432 W.A.C. 38; 234 C.C.C.(3d) 67; 2008 BCCA 252, refd to. [para. 21].

R. v. Andrew (M.C.) (2008), 252 B.C.A.C. 253; 422 W.A.C. 253; 2008 BCCA 141, refd to. [para. 26].

Sadowski v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] I.A.D.D. No. 1113, refd to. [para. 35].

Mosely v. Canada (Minister of Citizenship and Immigration), [2007] I.A.D.D. No. 1259, refd to. [para. 35].

Tran v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 466 F.T.R. 262; 2014 FC 1040, refd to. [para. 35].

Counsel:

W.P. Riley, Q.C., for the appellant;

J.L. Currie, for the respondent.

This application for leave to appeal was heard on January 6, 2015, at Vancouver, B.C., before Kirkpatrick, Frankel and Neilson, JJ.A., of the British Columbia Court of Appeal.

On February 18, 2015, Frankel, J.A., delivered the following judgment for the Court of Appeal.