R. v. Evans, 2013 BCSC 1400

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Evans, 2013 BCSC 1400 Date: 20130702 Docket: 76591-1 Registry: Nanaimo Regina v. Joseph Bartley Evans Before: The Honourable Mr. Justice Johnston On appeal from: Provincial Court of British Columbia, March 25, 2013 ( R. v. Evans , Nanaimo File No. 76591-1) Oral Reasons for Judgment (In Chambers) Counsel for Crown: B. McCormick Counsel for Defence: P. Hertzberg, Agent for D. McKay Place and Date of Hearing: Nanaimo, B.C. July 2, 2013 Place and Date of Judgment: Nanaimo, B.C. July 2, 2013 [ 1 ] THE COURT: This is an application brought by Mr.

Evans for an extension of time within which to bring an appeal from conviction and sentence. Mr. Evans pleaded guilty in the Provincial Court to a charge of unlawfully at large on March 25, 2013. [ 2 ] The circumstances as they have emerged from the transcript of the guilty plea are that Mr. Evans had been convicted of an offence some months earlier for which he was sentenced to a period of incarceration to be served intermittently. His service of that sentence was not uneventful. Apparently, there had been, in February, some difficulty with him attending on time to surrender himself to serve one of his weekends.

Nothing seems to have turned on that. There is no charge arising from it. But on the weekend of March 15, 2013, Mr. Evans was scheduled to turn himself in to the Correctional institution on Friday, I think at 6:00 p.m. He did not do so. On the morning of the 16th, or sometime on the 16th of March, Mr. Evans' fiancé telephoned the RCMP, who then went to their home and found Mr. Evans in, I will infer, an apparently injured state, took him to the hospital for examination - I do not know for how long he was at hospital - and the RCMP then took him to the Correctional institution.

This would be sometime on the 16th of March, the Saturday. Mr. Evans served the remainder of his weekend sentence. [ 3 ] At some point during the following week, I gather, the institution reported to Crown counsel that Mr. Evans had failed to appear when he was supposed to appear on Friday the 15th. Crown counsel reviewed that report and authorized a charge to be laid charging Mr. Evans with being unlawfully at large for failing to appear on the Friday afternoon of the 15th. [ 4 ] Crown counsel had a warrant issued, and this was all unknown to Mr.

Evans, who presented himself to the institution that Friday as usual. I gather that would have been the 22nd of March. [ 5 ] Mr. Evans served that weekend of his weekend sentence, and it was not until he was being processed for release on Sunday, the 24th, that the institution or someone in authority realized that there was this new charge and a warrant for his arrest. Mr. Evans was arrested, held overnight, and brought before the court on the 25th charged with the unlawfully at large offence. [ 6 ] As I think I have indicated earlier, on that first appearance, Mr.

Evans tendered a guilty plea through duty counsel. The transcript indicates that the process of tendering the plea was complete in a few sentences, and it reads, with duty counsel saying: [DUTY COUNSEL]: … If I may just have a word with Mr. Evans? THE COURT: Mm-hmm, sure. [DUTY COUNSEL]: Yes, Your Honour, Mr. Evans will waive the reading of 76591 and enter a guilty plea to the charge of unlawful (sic) at large on the 15th of March. THE COURT: All right, thank you. [ 7 ] One of the intended grounds of appeal is that that procedure by which the guilty plea was tendered and accepted may not have

been in compliance with s. 606(1.1) of the Criminal Code , which reads:

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused (

a) is making the plea voluntarily; and (

b) understands (

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor. [ 8 ] I am not going to say too much about s. 606(1.1) because that is bound to feature in the appeal which I am going to permit extended time to file, but I will say this. There is clearly an arguable appeal raised on the information before me on subsection (1), that is, whether Mr. Evans satisfied the court that the plea was an admission of the essential elements of the offence.

That ties in to another aspect of this, and that is, during the sentencing process that followed, there was some confusion in the mind of Crown counsel, apparently, and perhaps in the mind of the judge and defence counsel, as to just what it was that was before the court, whether it was a conditional sentence breach or an unlawfully at large. As I said during submissions, I do not think that is important to this application.

It may be important on the sentence appeal, but what is more important is that in the sentencing process, duty counsel said to the court, with reference to the March 15 failure to appear at the Correctional institution: This second occasion I have not the precise details of it, but I understand that he was taken out of town by some persons who had some grievance with him. He was severally beaten up and injured and placed in the hospital.

That is why on the 15th of February he was not attending. [ 9 ] I think I indicated during submissions, one of the functions a sentencing judge should satisfy, particularly when there has been a guilty plea, is to attend to the facts and circumstances that are recited as part of the sentencing to ensure that there is nothing there that contraindicates the validity of the guilty plea that has been tendered and accepted. Again, I do not want to go too far into it, but when the court was informed that the reason, arguably, Mr.

Evans did not appear at the institution on the 15th of March was that he was injured in a beating and in hospital, the judge hearing the matter might well have and perhaps was required to consider whether or not Mr. Evans might have had a lawful excuse for not attending on the 15th. [ 10 ] It did not end there, because toward the end of the sentencing process, there is a reasonably lengthy dialogue in the transcript between the sentencing judge and Mr.

Evans, where the sentencing judge reasonably completely explored this beating, the hospitalization, and the timing of it all in relation to the offence, and so I am satisfied that on that basis alone, there is an arguable case to be made on appeal. [ 11 ] I must be satisfied as well that Mr. Evans made a reasonable effort to perfect his appeal within the time allowed, and it has been some time since his appeal period expired. That is of some concern.

He has, however, during the period in which his appeal was still alive, I am satisfied, formed bona fide intent to appeal, made reasonable efforts to seek assistance to perfect his appeal. There is some argument that his explanation that he did not have a lawyer and that led to some delay should be viewed with some skepticism because his affidavit material indicates that he is a businessman able to raise a surety. I note that. I note that apparent discrepancy. I also note that in the days of grave difficulties in obtaining criminal legal aid, Mr.

Evans has managed to qualify for legal aid, which might say something about his financial capabilities. In any event, I am satisfied that there is an arguable case on appeal, that Mr. Evans had a bona fide intention to appeal, and that the extension of time to appeal should be granted. [ 12 ] I gather what he needs is perhaps until this Friday to perfect the notice of appeal and have it filed? [ 13 ] MR. HERTZBERG: Thank you, My Lord. I believe that can be done by my principal. [ 14 ] THE COURT: All right.

Then extended to the 5th of July at 4:00 p.m. to file a notice of appeal. [ 15 ] We will take the afternoon break and come back on the release matter -- [ 16 ] MR. HERTZBERG: My Lord -- [ 17 ] THE COURT: -- if needed. [ 18 ] MR. HERTZBERG: -- I'm sorry to interject. There is the issue of bail pending appeal. [ 19 ] THE COURT: That is what I am saying. We will come back on bail -- [ 20 ] MR. HERTZBERG: Oh, yes, the release. Yes, I -- [ 21 ] THE COURT: -- if we need to. [ 22 ] MR. McCORMICK: Crown's not going to take any position given what the court has already granted. Thank you. [ 23 ] THE COURT: All right.

Then we can deal with it right now. I gather that he has completed serving the original intermittent sentence? [ 24 ] MR. McCORMICK: If I can assist the court, I spoke with the institution this morning, and they were able to send me a log that indicated that he has only eight days left remaining on the 60-day sentence, so the original one that was 45 days has been satisfied in full.

There are eight days, which would be equivalent to three weekends commencing this Friday. [ 25 ] THE COURT: So the question is, should he be bailed now to avoid the last eight days? [ 26 ] MR. McCORMICK: That's essentially the effect of my friend's application. Given the court's ruling, I'm not taking any position. [ 27 ] THE COURT: On his own recognizance? [ 28 ] MR.

McCORMICK: It should be on a recognizance that he, I would suggest, given the fact what's still up in the air, that he report to a bail supervisor in Nanaimo today, and thereafter as directed, and appear in court whenever required. [ 29 ] THE COURT: Any difficulty with that? [ 30 ] MR. HERTZBERG: No, My Lord. [ 31 ] THE COURT: All right. So ordered. [ 32 ] MR. HERTZBERG: Thank you, My Lord. [ 33 ] THE COURT: He will be released on his own recognizance, to report immediately to the bail supervisor, and thereafter as directed by the bail supervisor, and to appear in court when ordered. [ 34 ] MR.

HERTZBERG: In an amount of perhaps $500, My Lord, no deposit, no surety? [ 35 ] THE COURT: Yes. [ 36 ] MR. HERTZBERG: Thank you. [ 37 ] MR. McCORMICK: Thank you. [ 38 ] THE CLERK: My Lord, when is he to report by? [ 39 ] THE COURT: Oh, 4:00 o'clock tomorrow afternoon. [ 40 ] MR. HERTZBERG: Thank you, My Lord. July 3rd, thank you, My Lord. “R.T.C. Johnston, J.” The Honourable Mr. Justice Johnston