R. v. Le (T.D.), 2009 MBCA 35

• Judge: Freedman, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 19, 2009
• Jurisdiction: Manitoba
• Citations: 2009 MBCA 35;(2009), 236 Man.R.(2d) 225 (CA)

R. v. Le (T.D.) (2009), 236 Man.R.(2d) 225 (CA);

      448 W.A.C. 225

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. AP.002

Her Majesty The Queen (respondent) v. Tam Dong Le (accused/applicant)

(AR 09-30-07118; 2009 MBCA 35)

Indexed As: R. v. Le (T.D.)

Manitoba Court of Appeal

Freedman, J.A.

April 3, 2009.

Summary:

Le was convicted of first degree murder and sentenced to life imprisonment without parole for 25 years. He filed a notice of appeal against the conviction and applied for judicial interim release pending the determination of his appeal.

The Manitoba Court of Appeal, per Freedman, J.A., dismissed the application.

Editor's Note: There are numerous reported decisions regarding this accused.

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) - Le was convicted of first degree murder and sentenced to life imprisonment without parole for 25 years - He filed a notice of appeal against the conviction and applied for judicial interim release pending the determination of his appeal - The Manitoba Court of Appeal, per Freedman, J.A., held that Le had met the burden under s. 679(3)(b) of the Criminal Code of establishing that he would surrender himself into custody when required if released - With one exception, Le had been compliant with the conditions imposed on him since his arrest on the day of the murder - The exception had been found to be a trivial one - He could offer sureties of a fairly substantial magnitude - He had attended bail supervision and court as and when required - While the sanction that Le faced, if his appeal failed, was very severe, he had persuaded the court that the burden of s. 679(3)(b) was met - See paragraph 17.

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 - Le was convicted of first degree murder and sentenced to life imprisonment without parole for 25 years - He filed a notice of appeal against the conviction and applied for judicial interim release pending the determination of his appeal - At issue was whether Le had established that his continued detention was not necessary in the public interest, as required by s. 679(3)(c) of the Criminal Code - The Manitoba Court of Appeal, per Freedman, J.A., dismissed the application - The court noted that in weighing the balance between the competing dictates of enforceability and reviewability, a number of factors encompassed within the "public interest" were important - These included the seriousness of the offence, the circumstances of the particular offence and of the offender, the strength of the appeal and the potential for undue delay before the appeal was heard - The context here included the fact that Le had lost the presumption of innocence - Moreover, he had been convicted of first degree murder - Absent "exceptional circumstances", courts were generally reluctant to grant bail pending appeal in murder cases - See paragraphs 18 to 37.

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 - Le was convicted of first degree murder and sentenced to life imprisonment without parole for 25 years - He filed a notice of appeal against the conviction and applied for judicial interim release pending the determination of his appeal - At issue was whether Le had established that his continued detention was not necessary in the public interest, as required by s. 679(3)(c) of the Criminal Code - The Manitoba Court of Appeal, per Freedman, J.A., dismissed the application - The court noted that the jury found that the murder was planned and deliberate - Such an offence was extremely serious - Nothing in the circumstances of the offence or in relation to the offender favoured release - The grounds of appeal were variable in strength, but none appeared so strong as to shift the public interest from enforceability, where it presumptively rested, to reviewability - Nor was there any basis on which to conclude that the hearing of the appeal would be inordinately delayed - No factor had been advanced to establish that Le's detention was not necessary in the public interest - Nor were there any exceptional circumstances that warranted release - See paragraphs 38 to 62.

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - Le was convicted of first degree murder and sentenced to life imprisonment without parole for 25 years - He filed a notice of appeal against the conviction and applied for judicial interim release pending the determination of his appeal - The Crown opposed the application, asserting, inter alia, that the appeal had no reasonable chance of success - The Manitoba Court of Appeal, per Freedman, J.A., held that Le only had to establish, under s. 679(3)(a) of the Criminal Code, that the appeal was not frivolous - The grounds of appeal fell broadly into the following categories: alleged errors (a) in pretrial rulings including allegedly denying Le his choice of counsel, (b) during trial in rulings or process and (c) in the charge to the jury and, finally, an unreasonable verdict - On the grounds advanced, the appeal was not frivolous - Regarding s. 679(3)(a), there was no need to go further - See paragraphs 12 to 16.

Criminal Law - Topic 3310

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

Cases Noticed:

R. v. Klymchuk (K.) (2008), 244 O.A.C. 208; 2008 ONCA 854, refd to. [para. 7].

R. v. Ilina (L.) (2003), 170 Man.R.(2d) 292; 285 W.A.C. 292; 2003 MBCA 27, refd to. [para. 13].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197; 86 C.C.C.(3d) 32 (C.A.), refd to. [para. 18].

R. v. Jack (B.G.) (1990), 69 Man.R.(2d) 5 (C.A.), refd to. [para. 21].

R. v. Demyen (1975), 26 C.C.C.(2d) 324 (Sask. C.A.), refd to. [para. 21].

R. v. Jack (B.G.) (1990), 73 Man.R.(2d) 301; 3 W.A.C. 301 (C.A.), refd to. [para. 23].

R. v. Morin (G.P.) (1993), 60 O.A.C. 397; 19 C.R.(4th) 398 (C.A.), refd to. [para. 26].

R. v. Latimer (R.W.) (1994), 128 Sask.R. 63; 85 W.A.C. 63 (C.A.), refd to. [para. 27].

R. v. Mapara (S.) (2001), 156 B.C.A.C. 138; 255 W.A.C. 138; 45 C.R.(5th) 230; 158 C.C.C.(3d) 312; 2001 BCCA 508, refd to. [para. 29].

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. 31].

R. v. Phillion, [2003] O.J. No. 3422 (Sup. Ct.), refd to. [para. 32].

Driskell v. Canada (Minister of Justice) (2004), 179 Man.R.(2d) 276; 2004 MBQB 3, refd to. [para. 32].

Unger v. Canada (Minister of Justice) et al. (2005), 196 Man.R.(2d) 280; 2005 MBQB 238, refd to. [para. 32].

R. v. Khan (M.A.) (1998), 131 Man.R.(2d) 70; 187 W.A.C. 70 (C.A.), refd to. [para. 35].

R. v. Baltovich (R.) (2000), 131 O.A.C. 29; 144 C.C.C.(3d) 233 (C.A.), refd to. [para. 42].

Von Starck v. R., [2000] 1 W.L.R. 1270 (P.C.), refd to. [para. 46].

R. v. Parnell (1983), 1 O.A.C. 161; 9 C.C.C.(3d) 353 (C.A.), refd to. [para. 46].

R. v. Roche (1949), 95 C.C.C. 270 (N.S.S.C.), refd to. [para. 46].

R. v. Dhillon, [1996] EWCA Crim. 1553, refd to. [para. 46].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 47].

Wu v. R., [1934] S.C.R. 609, refd to. [para. 47].

R. v. Wobbes (Z.) (2008), 242 O.A.C. 7; 235 C.C.C.(3d) 561; 2008 ONCA 567, refd to. [para. 49].

R. v. Reitsma (S.J.), [1998] 1 S.C.R. 769; 226 N.R. 367; 107 B.C.A.C. 161; 174 W.A.C. 161, refd to. [para. 51].

R. v. McCallen (J.B.) (1999), 116 O.A.C. 308; 131 C.C.C.(3d) 518 (C.A.), refd to. [para. 53].

R. v. Hayes, [1989] 1 S.C.R. 44; 89 N.R. 138; 89 N.S.R.(2d) 286; 227 A.P.R. 286, refd to. [para. 59].

R. v. Herman, [1986] 1 W.W.R. 725 (Sask. C.A.), refd to. [para. 59].

R. v. Lirette (1985), 65 N.B.R.(2d) 227; 167 A.P.R. 227 (C.A.), refd to. [para. 59].

Authors and Works Noticed:

Trotter, Gary T., The Law of Bail in Canada (2nd Ed. 1999), pp. 377, 378 [para. 14]; 379, 380 [para. 9].

Counsel:

M.D. Glazer, for the applicant;

A.G. Bowering and C.D. Ritchot, for the respondent.

This application was heard on March 19, 2009, by Freedman, J.A., of the Manitoba Court of Appeal, who delivered the following decision on April 3, 2009.