LANE J.A. 2000 SKCA 99 Docket: C.A. 7335 THE COURT OF APPEAL FOR SASKATCHEWAN Cameron J.A. in Chambers. and HER MAJESTY THE QUEEN COUNSEL: Mr. B. Hrycan for the applicant Mr. W.D. Sinclair for the respondent DISPOSITION: Application for Release Heard: September 13, 2000 Application Dismissed: September 13, 2000 (oral) Application Dismissed By: The Honourable Mr. Justice Cameron CAMERON J.A. The applicant was convicted in July of 1997 of several offences, consisting in the main of sexual offences involving members of his family and others close to him. In consequence he was sentenced to five years in prison. He then appealed against his convictions, and the Crown appealed against his sentence. On September 16, 1998, this Court dismissed his appeal against conviction. At the same time it allowed the Crown's appeal, in effect increasing the sentence from five to ten years. Throughout, the applicant was represented by senior counsel, Mr. S. Halyk Q.C. The applicant decided not to seek leave to appeal to the Supreme of Canada on the advice of Mr. Halyk and then on the further advice of Dean MacKinnon. Some two years later he changed his mind and applied to the Supreme Court for an extension of time to apply for leave and for leave to appeal, raising some grounds of appeal for the first time. That application is now pending before the Supreme Court and is likely to be determined in the next three or four months. In the meantime the applicant wants to be released from custody. In the circumstances, and as a purely practical matter, I think the application for release is premature. say that because it is fraught with difficulty as it stands at the moment, because its complexion would change appreciably should the Supreme court extend the time and grant leave to appeal on one or two of the comparatively stronger grounds, and because the application pending before the Supreme Court will be determined shortly. Moreover, and more importantly, particularly as a matter of principle having regard for the requirements of section 679(3) (a) and (c), I am not satisfied that the prospective appeal as a whole is not frivolous and that the applicant\'s continued detention for the time being is not necessary in the public interest. The less say the better about the merit of the many grounds of appeal upon which the proceedings rest. Suffice it to say that in my judgment some are clearly destined for failure, as for example, is the ground the Court of Appeal erred in failing to give reasons for its judgment. Others are less so, perhaps—and here have in mind the two or three grounds upon which counsel for the applicant relied most heavily, including the issue concerning corroboration-but, even then, they do not cut to all of the convictions, but only some, nor to the entirety of the sentence. Furthermore, and to a significant extent, the new grounds of appeal are difficult to assess in their entirety, given the material before me. On the basis of that material, which is incomplete, I am not convinced the grounds relied upon have sufficient merit to satisfy the requirements of clause (a) of the section. Turning to the public interest, I think the present release of the applicant would be inimical to the public interest, having regard for the whole of the circumstances. To do so, in my judgment, would tend to undermine public confidence in the administration of justice, given the history of the past proceedings, the current state of the present proceedings, and unlikelihood, as Isee it, of the applicant succeeding either in having all of the convictions set aside or in having the sentence reduced to the time already served. For essentially these reasons—though I expanded upon them in argument, and in my oral disposition of the application—I decided to dismiss the application for release, without prejudice to further application should leave be granted to appeal to the Supreme Court of Canada on one or more of the grounds raised in the proceedings.
See also 150 SaskR 185.In 1998 the Court of Appeal dismissed the applicant's sentence appeal and appeal of his 1997 convictions which consisted primarily of sexual offences involving family members and others. The sentence of imprisonment was increased from 5 to 10 years. The applicant, on advice of two counsel, did not initially seek leave to appeal to the Supreme Court of Canada. He changed his mind 2 years later and sought an extension of time to apply for leave and for leave to appeal. The applicant brought an application for release from custody pending the SCC's decision. HELD: The application was dismissed without prejudice to reapply should leave to appeal be granted. 1)The application was premature. The application pending before the SCC was likely to be determined within 3 to 4 months. The Court of Appeal was not satisfied the appeal as a whole was not frivolous having regard for the requirements of s.679(3)(a) and (c). Some grounds for appeal would clearly fail such as the ground the Court of Appeal erred in failing to give reasons for its judgment. The new grounds of appeal were difficult to assess on the basis of the incomplete material before the court. 2)His continued detention was necessary in the public interest having regard for the whole of the circumstances. His release would undermine public confidence in the administration of justice.