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COMPELLING APPEARANCE, DETENTION AND RELEASE - Judicial interim release or bail - Conditions of release - Release or detention after trial or pending appeal

Monday, February 27, 2017 @ 8:57 AM  


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Application by the appellant, Joe, for bail pending appeal. In April 2016, the appellant was sentenced for impaired care and control of a motor vehicle, refusal to provide a breath sample, and a breach of undertaking. He received a global sentence of 43 months plus five days imprisonment. The appellant appealed the conviction for impaired care and control and his sentence. He applied for bail pending appeal. In October 2016, the appellant was released on a recognizance with conditions. Approximately five weeks later, the Crown filed for revocation of bail after the appellant's wife sought release from her surety responsibilities. Days later, she called police to have the appellant removed from her apartment due to a disturbance he had caused while intoxicated. The appellant became belligerent and was arrested and charged with breach of recognizance. He sought release on bail pending his appeal, adducing evidence of additional counseling, support and treatment options. His wife intended to act as a surety, on the understanding the appellant would access treatment and counseling for alcohol addiction. The Crown opposed the appellant's release based on his past record of domestic abuse, and his extensive record for drinking and driving offences.

HELD: Application allowed. Many of the prevailing factors existed at the time the appellant was initially granted bail. The relative strength of the appellant's appeal, the Gladue factors, his criminal record, and his hostile attitude toward police were before the judge at the initial hearing. Despite the appellant's negative antecedents, the judge concluded it was appropriate to release the appellant on a recognizance with his wife as a surety. It was apparent the initial grant of bail flowed from a concern that the appellant might spend more time in custody than a sentence varied on appeal. The concerns regarding reviewability outweighed those regarding enforceability. The subsequent intervening events did not justify a different conclusion. Although the appellant's breach of the October recognizance raised concerns, it did not render his further release contrary to the public interest. There was no commission of additional offences, and no evidence of violence or a threat to public safety. The sooner the appellant was able to access residential treatment, the better. The appellant was granted bail, subject to terms.

R. v. Joe, [2017] Y.J. No. 7, Yukon Territory Court of Appeal, L.A.M. Charbonneau J.A. (In Chambers), January 23, 2017. Digest No. 3640-003