R. v. Sidhu (J.J.S.), (2015) 607 A.R. 395

• Judge: Costigan, Slatter and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 29, 2015
• Citations: (2015), 607 A.R. 395;2015 ABCA 308

R. v. Sidhu (J.J.S.) (2015), 607 A.R. 395; 653 W.A.C. 395 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. OC.002

Her Majesty the Queen (respondent/respondent) v. Jagjot Justin Singh Sidhu (applicant/appellant)

(1503-0231-A; 2015 ABCA 308)

Indexed As: R. v. Sidhu (J.J.S.)

Alberta Court of Appeal

Costigan, Slatter and Veldhuis, JJ.A.

October 1, 2015.

Summary:

The accused, a practising lawyer, was convicted of trafficking in a controlled substance. He sought judicial interim release pending appeal, but his application was denied on public interest grounds. The accused applied for a review under s. 620 of the Criminal Code.

The Alberta Court of Appeal allowed the application and ordered the accused released on conditions pending appeal.

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 first Criminal Law - Topic 3310 ].

Criminal Law - Topic 3304.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to maintain confidence in the administration of justice - [See first 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, a practising lawyer, was convicted of trafficking in a controlled substance - He was denied judicial interim release pending appeal for public interest concerns, because the prospects of success on appeal did not meet the "more probable than not" standard - He applied for a review - The Alberta Court of Appeal allowed the application because the chambers judge applied an inappropriate standard - The court noted that the accused was undergoing cancer treatment, and while the correction system could provide access to medical care, ease of access to that care was a legitimate consideration - The accused had no adult record - Given the concessions of the Crown, and all the other circumstances of the appeal, a reasonable, right-minded and properly informed person would not lose confidence in the administration of justice if the accused was released - That was so even if the merits of the appeal might present some challenges for the accused - See paragraphs 11 to 13.

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - A chambers judge denied an accused's application for judicial interim release pending appeal on the ground that his release could cause a loss of confidence in the administration of justice (i.e., the detention was necessary in the public interest) - The chambers judge stated that an accused could be released on bail pending appeal if the likelihood that his or her appeal would succeed was greater than the likelihood it would fail - "In mathematical terms, the likelihood of success must be greater than fifty percent" - The accused sought a review - The Alberta Court of Appeal held that the suggestion that the success of an appeal had to be "greater than 50 percent" to justify judicial interim release was an error of law justifying intervention - While the perceived merits of the appeal were relevant, a detailed analysis of the merits followed by an opinion on the statistical chances of success was not helpful on an application for judicial interim release - See paragraphs 7 to 10.

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - Section 679(3) of the Criminal Code allowed for release pending appeal if: (a) the appeal was not frivolous; (b) the accused would surrender himself into custody; and (c) the accused's detention was not necessary in the public interest - The Alberta Court of Appeal stated that determining the public interest involved the balancing of a great many factors and referred to a list of the factors - The court stated that while the merits of an appeal were addressed in 679(3)(a), the case law demonstrated that s. 679(3) did not exhaust the consideration of the merits of the appeal, and that the merits could also be considered in determining the public interest - See paragraph 5 to 8.

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - Section 679(3) of the Criminal Code allowed for release pending appeal if, inter alia, (c) the accused's detention was not necessary in the public interest - The Alberta Court of Appeal stated that in determining the public interest the perceived strength of the appeal was relevant but not determinative - It was therefore an error for the chambers judge, in this case, to posit a rule that success on the appeal had to be "more likely than not", or "over 50%" before the public interest would justify judicial interim release pending appeal - The court stated that "Where the public interest is engaged on an application for judicial interim release, the relative merits of the appeal are but one factor that can be brought into the analysis. Generally speaking, the more compelling the grounds for appeal, the more the merits of the appeal are likely to balance off other aspects of the public interest favouring immediate enforcement of the conviction ..." - See paragraph 8.

Cases Noticed:

R. v. Sidhu (J.J.S.) (2015), 607 A.R. 165; 653 W.A.C. 165; 2015 ABCA 293, refd to. [para. 1].

R. v. Jensen (C.K.) (2014), 588 A.R. 234; 626 W.A.C. 234; 2014 ABCA 435, refd to. [para. 4].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197 (C.A.), refd to. [para. 5].

R. v. McNaughton (S.D.) (2010), 487 A.R. 130; 495 W.A.C. 130; 26 Alta. L.R.(5th) 126; 2010 ABCA 97, refd to. [para. 6].

R. v. Gingras (J.G.) (2012), 330 B.C.A.C. 102; 562 W.A.C. 102; 293 C.C.C.(3d) 100; 2012 BCCA 467, refd to. [para. 6].

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. 7].

R. v. Alcantara (J.R.) (2014), 577 A.R. 381; 613 W.A.C. 381; 13 Alta. L.R.(6th) 111; 2014 ABCA 255, refd to. [para. 7].

R. v. Knapczyk - see R. v. Alcantara (J.R.).

R. v. Malley (B.A.) (2015), 602 A.R. 158; 647 W.A.C. 158; 2015 ABCA 213, refd to. [para. 7].

R. v. Rhyason (B.P.) (2006), 384 A.R. 146; 367 W.A.C. 146; 208 C.C.C.(3d) 193; 57 Alta. L.R.(4th) 31; 2006 ABCA 120, refd to. [para. 8].

R. v. Govenlock (G.W.) (2015), 607 A.R. 172; 653 W.A.C. 172; 2015 ABCA 296, refd to. [para. 9].

R. v. St-Cloud (J.) (2015), 471 N.R. 256; 2015 SCC 27, refd to. [para. 11].

Statutes Noticed:

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

Authors and Works Noticed:

Trotter, Gary T., Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion (2001), 45 C.R.(5th) 267, pp. 268, 269 [para. 7].

Counsel:

W.E. McBride, for the respondent;

P.J. Royal, Q.C., for the applicant.

This review was heard in Edmonton, Alberta, on September 29, 2015, before Costigan, Slatter and Veldhuis, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the court on October 1, 2015.