R. v. Silver (D.R.),

• Jurisdiction: Yukon
• Judge: Gower
• Neutral Citation: 2006 YKCA 4
• Citation: 2006 YKCA 4,(2006), 226 B.C.A.C. 107 (YukCA),226 BCAC 107,(2006), 226 BCAC 107 (YukCA),226 B.C.A.C. 107
• Date: 19 April 2006
• Court: Court of Appeal (Yukon Territory)

R. v. Silver (D.R.) (2006), 226 B.C.A.C. 107 (YukCA);

    373 W.A.C. 107

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. JN.002

Regina (respondent) v. Daniel Silver (appellant)

(05-YU559; 2006 YKCA 4)

Indexed As: R. v. Silver (D.R.)

Yukon Court of Appeal

Gower, J.(ad hoc)

April 19, 2006.

Summary:

The accused was found guilty of possession of cocaine for the purposes of trafficking, possession of a loaded restricted firearm without a licence and possession of a firearm knowing that the serial number had been removed. The accused was sentenced to a total of 27 months' imprisonment, after being credited with having spent approximately two months in custody awaiting bail following his initial arrest. A 10 year firearms' prohibition order was also imposed. The accused appealed the convictions and the sentence and applied to be released from custody pending his appeals.

The Yukon Court of Appeal, per Gower, J.(ad hoc), allowed the application and released the accused upon a recognizance of $2,000, without cash deposit. The court directed that an acquaintance of the accused be named as a surety in the amount of $5,000, without cash deposit.

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 - While waiting trial, an accused twice breached a condition of his recognizance which prohibited him from possessing a communication device - The police also seized $2,250 from him as suspected proceeds of crime - He was subsequently convicted and sentenced for drug and firearms offences - He applied to be released from custody pending his conviction and sentence appeals - He and his common law wife had one child - Employment was available to him if released - First offence - Deposed under oath that he would comply with the terms of release - A friend (Waugh) agreed to act as surety - The Yukon Court of Appeal, per Gower, J.(ad hoc), stated that concerns about the strength of the appeals did not allow it to conclude that the appeal totally lacked merit - The court was satisfied that the accused would comply with the terms of release - The recognizance breaches were not of the most serious nature and the accused had otherwise complied with the substantial conditions - Suspicions about the seized money did not displace the presumption of innocence - A fair minded and fully informed member of the public, knowledgeable about the law of bail pending appeal and an offender's continuing constitutional rights, as well as the accused's circumstances, would not have their confidence in the administration of justice shaken by granting release on appropriately strict conditions (i.e. detention not needed in the public interest) - The court released the accused upon a $2,000 recognizance and directed that Waugh be named as a surety for $5,000, both without cash deposit.

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 Criminal Law - Topic 3304 ].

Criminal Law - Topic 3307

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - Conditions of - [See Criminal Law - Topic 3304 ].

Criminal Law - Topic 3309

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - When available - [See Criminal Law - Topic 3304 ].

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - [See Criminal Law - Topic 3304 ].

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 3304 ].

Cases Noticed:

R. v. Mapara (S.) (2004), 199 B.C.A.C. 280; 326 W.A.C. 280; 2004 BCCA 310, refd to. [para. 2].

R. v. Collinson, 2005 YKCA 001, refd to. [para. 2].

R. v. Burd (W.S.), [2005] B.C.A.C. Uned. 175; 2005 BCCA 620, refd to. [para. 7].

R. v. Barling, [1993] B.C.J. No. 3138 (C.A.), refd to. [para. 8].

R. v. Crockett (D.) (2001), 161 B.C.A.C. 114; 263 W.A.C. 114; 2001 BCCA 707, refd to. [para. 20].

R. v. K.K. (1997), 85 B.C.A.C. 294; 138 W.A.C. 294; 113 C.C.C.(3d) 52 (C.A.), refd to. [para. 21].

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. 21].

Counsel:

Sue Bogle, for Her Majesty the Queen;

David St. Pierre, for Daniel Silver.

This appeal was heard by Gower, J.(ad hoc), of the Yukon Court of Appeal, who delivered the following reasons for judgment on April 19, 2006.