R. v. Van Boeyen (N.), (1996) 75 B.C.A.C. 272 (CA)

• Judge: Hinds, Finch and Williams, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 06, 1996
• Jurisdiction: British Columbia
• Citations: (1996), 75 B.C.A.C. 272 (CA)

R. v. Van Boeyen (N.) (1996), 75 B.C.A.C. 272 (CA);

    123 W.A.C. 272

MLB headnote and full text

Regina (respondent) v. Neil Van Boeyen (appellant)

(CA012555)

Indexed As: R. v. Van Boeyen (N.)

British Columbia Court of Appeal

Hinds, Finch and Williams, JJ.A.

May 9, 1996.

Summary:

The accused was convicted of eight of­fences against four females in four separate incidents. The offences were three counts of kidnapping, one of attempted kidnapping, two counts of sexual assault with a weapon, one count of sexual assault and one of attempted sexual assault. The accused was found to be a dangerous offender under s. 753 of the Criminal Code and sentenced to imprisonment for an indeterminate period of time. The accused's conviction appeal was dismissed. See 32 B.C.A.C. 92; 53 W.A.C. 92. So was an application for leave to appeal to the Supreme Court of Canada. See 181 N.R. 400; 56 B.C.A.C. 160; 92 W.A.C. 160. The accused now appealed against sentence.

The British Columbia Court of Appeal dismissed the sentence appeal.

Criminal Law - Topic 6504

Dangerous offenders - Detention - Pro­cedure - The British Columbia Court of Appeal set out the four procedural steps to be taken under s. 754 of the Criminal Code upon an application to have an accused declared a dangerous offender - The court held that the seven days in s. 754(1)(b) referred to the time between the date upon which the notice of application was given to the offender and the date upon which the hearing of the application was commenced - See paragraphs 15 to 16.

Criminal Law - Topic 6505

Dangerous offenders - Detention - Appli­cation - General - The British Columbia Court of Appeal held that an application to have an accused declared a dangerous offender was not invalid because it stated that the application would be heard in court on 27 Nov. 1989, yet was not signed until 20 Dec. 1989 - The court held that the written application stated "... or so soon thereafter as counsel may be heard ..." - Moreover, the court noted that there was no requirement that the application be in writing - See paragraph 11.

Criminal Law - Topic 6505

Dangerous offenders - Detention - Appli­cation - General - The consent signed by the Attorney General, accompanying an application to have an accused declared a dangerous offender, used the word "offence", whereas the accused was con­victed of eight offences - The British Columbia Court of Appeal held that in view of the fact that each of the eight offences was set out with precision, the failure to use the plural did not invalidate the consent - See paragraphs 12 to 14.

Criminal Law - Topic 6506

Dangerous offenders - Detention - Appli­cation - Notice - [See Criminal Law - Topic 6504 ].

Criminal Law - Topic 6506

Dangerous offenders - Detention - Appli­cation - Notice - The British Columbia Court of Appeal held that personal service of the notice of application to have an accused declared a dangerous offender, which was served on defence counsel in the accused's presence at least seven days prior to the hearing of the application, constituted compliance with s. 754(1)(b) of the Criminal Code - The court held that personal service on the accused, while desirable, was not mandatory - See para­graphs 18 to 34.

Criminal Law - Topic 6509

Dangerous offenders - Detention - Remands - Following conviction on eight counts, the accused was remanded for observation and presentence assessment under s. 756 of the Criminal Code - The remand was with defence counsel's consent - On the date set for sentencing, neither a presentence report nor a psychiatric report was available - Over defence counsel's objection, the matter was adjourned - The Crown filed the required documents and psychiatrists were appointed - The accused was remanded again - The proceedings were adjourned twice - At no time did defence counsel revoke the consent - The British Columbia Court of Appeal held that the remands were not contrary to the 30 day provision in s. 756 - The sentenc­ing judge did not lose jurisdiction due to the manner of the remands - See para­graphs 39 to 50.

Cases Noticed:

R. v. Currie (1984), 2 O.A.C. 78; 12 C.C.C.(3d) 28 (C.A.), refd to. [para. 11].

R. v. Finlay (1991), 65 C.C.C.(3d) 225 (B.C.C.A.), consd. [para 22].

R. v. Flett (1970), 73 W.W.R.(N.S.) 669 (B.C.C.A.), refd to. [para. 23].

R. v. Myer (1976), 29 C.C.C.(2d) 165 (B.C.C.A.), consd. [para. 23].

R. v. Zinek (1971), 4 C.C.C. 129 (Alta. C.A.), refd to. [para. 23].

R. v. Vollman (1989), 79 Sask.R. 270; 52 C.C.C.(3d) 379 (C.A.), consd. [para. 29].

R. v. Fowler (1982), 60 N.S.R.(2d) 31; 128 A.P.R. 31; 2 C.C.C.(3d) 227 (C.A.), refd to. [para. 31].

R. v. Simms (R.G.) (1986), 64 Nfld. & P.E.I.R. 360; 197 A.P.R. 360; 31 C.C.C.(3d) 350 (Nfld. C.A.), refd to. [para. 31].

R. v. Godon (1984), 33 Sask.R. 180; 12 C.C.C.(3d) 446 (C.A.), refd to. [para. 31].

R. v. Hume, [1965] 3 C.C.C. 118 (B.C.S.C.), consd. [para. 32].

Murphy v. Welsh, [1993] 2 S.C.R. 1069; 157 N.R. 263; 65 O.A.C. 103, refd to. [para. 33].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [para. 49].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 753 [paras. 9, 51]; sect. 754(1) [para. 12]; sect. 756 [para. 39].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Leg­islation in Canada (2nd Ed. 1991), p. 231-2 [para. 33].

Counsel:

Peter D. Ryan, for the appellant;

G.D. McKinnon, Q.C., for the respondent.

This appeal was heard in Vancouver, British Columbia, on February 1 and March 6, 1996, before Hinds, Finch and Williams, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Hinds, J.A., on May 9, 1996.