R. v. Sept (A.D.), (2008) 264 B.C.A.C. 70 (CA)

• Judge: Frankel, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 22, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 264 B.C.A.C. 70 (CA);2008 BCCA 537

R. v. Sept (A.D.) (2008), 264 B.C.A.C. 70 (CA);

    445 W.A.C. 70

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JA.019

Regina (respondent) v. Andrew Daniel Sept (appellant)

(CA036511; 2008 BCCA 537)

Indexed As: R. v. Sept (A.D.)

British Columbia Court of Appeal

Frankel, J.A.

December 22, 2008.

Summary:

An accused applied, inter alia, for release pending the hearing of his conviction and sentence appeals on a charge of trafficking in cocaine.

The British Columbia Court of Appeal, per Frankel, J.A., dismissed the application. The accused failed to provide any information upon which the merits of the conviction appeal could be evaluated. With respect to the sentence appeal, having regard to the court records, the accused failed to satisfy the court that his appeal was not frivolous. Nor did the accused establish that he would surrender himself into custody if released. Lastly, the accused's release would present a risk to the community. Although the manner in which the different merit thresholds (under ss. 679(3)(a) and 679(4)(a) of the Criminal Code) applied when an offender appealed both conviction and sentence was "not entirely clear", the accused had failed to meet the lower "not frivolous" threshold with respect to both appeals.

Criminal Law - Topic 3301

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary for protection of public (i.e., secondary ground) - [See second Criminal Law - Topic 3310 ].

Criminal Law - Topic 3303

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to ensure attendance (i.e., primary ground) - [See second Criminal Law - Topic 3310 ].

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 second 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 - An accused applied for release pending the hearing of his conviction and sentence appeals on a charge of trafficking in cocaine - The British Columbia Court of Appeal, per Frankel, J.A., began its analysis by noting that bail pending a conviction appeal was governed by s. 679(3) of the Criminal Code, requiring that the applicant establish "(a) the appeal or application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest" - The court further noted that when an appeal was taken "against sentence alone", the requirements were those set out in s. 679(4), namely: "(a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest" - Further, the merit threshold under s. 679(4)(a) ("sufficient merit") was higher than that under s. 679(3)(a) ("not frivolous") - The manner in which the different merit thresholds applied when an offender appealed both conviction and sentence was not entirely clear, but the court did not need to resolve that question, as it was satisfied that the accused had failed to meet the lower "not frivolous" threshold with respect to both appeals - See paragraphs 12 to 14.

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - An accused, who had an adult criminal record, was charged with trafficking in cocaine - He pleaded guilty and was sentenced - He appealed both conviction and sentence, asserting that he was entrapped and that his counsel failed to properly represent him - The accused applied for release pending the hearing of his appeals - He filed a letter, stating that he was arrested on July 22, that he did not attempt to obtain bail, and that he remained in custody until September 12, when he pleaded guilty and was sentenced - However, the court records indicated that the timeline was misleading - The British Columbia Court of Appeal, per Frankel, J.A., dismissed the application - The accused failed to provide any information upon which the merits of the conviction appeal could be evaluated - In essence, he was seeking to withdraw his guilty plea - As the court was not in a position to determine whether the appeal was, or was not, frivolous, the accused failed to meet the burden on him - With respect to the sentence appeal, having regard to the court records, the accused failed to satisfy the court that his appeal was not frivolous - Those records indicated that, although he was in custody prior to being sentenced on the trafficking charge, his detention was in relation to other matters - The court noted the jurisprudence that an offender was only entitled to credit for pre-sentence custody when that custody was a result of the offence for which he was being sentenced - Nor did the accused establish that he would surrender himself into custody if released - His criminal record showed a history of non-compliance with court orders and that he committed the present offence while on probation - Lastly, the accused's release would present a risk to the community - See paragraphs 14 to 17.

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 second Criminal Law - Topic 3310 ].

Criminal Law - Topic 3315

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Evidence and burden of proof - [See both Criminal Law - Topic 3310 ].

Criminal Law - Topic 3318

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Application of Code procedure - [See first Criminal Law - Topic 3310 ].

Cases Noticed:

R. v. Ali (M.S.) (2008), 253 B.C.A.C. 167; 425 W.A.C. 167; 77 B.C.L.R.(4th) 289; 2008 BCCA 147, refd to. [para. 12].

R. v. Dawydiuk (M.N.) (2008), 256 B.C.A.C. 233; 431 W.A.C. 233; 2008 BCCA 243, refd to. [para. 13].

R. v. Rupchand (P.) (2006), 220 B.C.A.C. 285; 362 W.A.C. 285; 2006 BCCA 11, refd to. [para. 15].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 679(3), sect. 679(4) [para. 12].

Counsel:

A.D. Sept, acting on his own behalf;

W.P. Riley, for the respondent.

This application, by way of written submissions, was heard in Chambers at Vancouver, British Columbia, by Frankel, J.A., of the British Columbia Court of Appeal, who delivered the following reasons for judgment on December 22, 2008.