R. v. Forsyth, 2003 BCCA 237

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Forsyth, 2003 BCCA 237 Date: 20030325 Docket: CA029480 Between: Regina Respondent And Brit Allen Forsyth Appellant Before: The Honourable Madam Justice Levine (In Chambers) Oral Reasons for Judgment G. Barriere Counsel for the Appellant S. Hulko Counsel for the (Crown) Respondent Place and Date: Vancouver, British Columbia March 25, 2003 [ 1 ] LEVINE, J.A. : This is an application by the appellant to be personally present at the hearing of his conviction appeal. The appeal is scheduled for September 4, 2003, in this Court in Vancouver.

Pursuant to an order made earlier this morning, the appellant’s bail has been extended to the date of the appeal, at which time he is ordered to surrender himself into custody at the Sheriff’s office at these Law Courts at 9:00 a.m. He will therefore be physically within the building in which the hearing of his appeal is to take place on the morning that the appeal commences. [ 2 ] The application is made pursuant to ss. 688(1) and (2) of the Criminal Code , which provide: 688(1) Subject to subsection (2), an appellant who is in custody is entitled, if he desires, to be present at the hearing of the appeal.

(2) An appellant who is in custody and who is represented by counsel is not entitled to be present (

a) at the hearing of the appeal, where the appeal is on a ground involving a question of law alone, (

b) on an application for leave to appeal, or (

c) on any proceedings that are preliminary or incidental to an appeal, unless rules of court provide that he is entitled to be present or the court of appeal or a judge thereof gives him leave to be present. [ 3 ] The appellant was convicted on October 20, 2001 and sentenced on February 1, 2002 of fraud over $1,000. He filed a notice of appeal February 25, 2002.

[ 4 ] Among his grounds of appeal are issues that raise a question of trial fairness. He claims that during the trial, which was before a jury, concerns were raised by a juror about possible intimidation. The appellant says that a proceeding took place before the trial judge at which counsel were present but from which he and other members of the public, including his mother, were excluded.

He claims that as a result of being excluded from those parts of the proceedings, some trial unfairness resulted and he suffered some prejudice. [ 5 ] The question that arises on this application is whether the appellant’s right to be present at the hearing of his appeal, provided for in s. 688(1), is reduced by the provisions of s. 688(2), and whether the appellant therefore requires leave of this Court to be present at the hearing of the appeal. [ 6 ] Counsel for the appellant argues that the question of trial fairness raised by the appellant in his grounds of appeal may not be a question of law alone, and in determining that question, a purposive analysis of s. 688(2) (

a) should be undertaken. In my view, it is not necessary for me to decide, on this application, whether the grounds of appeal raised by the appellant are questions of law alone. It seems more likely that they are issues of mixed law and fact and, as a result, the appellant, who will be represented by counsel at the hearing, has the right to be present. [ 7 ] I prefer, however, to base my decision on the reasoning of Mr. Justice Lambert in R. v. Spence , [1985] B.C.J. No. 2035 (CA.) (QL) . In that case, Mr. Justice Lambert provided an

interpretation of (what was then) s. 615 of the Criminal Code , stating at paras. 7-8: In my opinion, the intention of Parliament is clearly revealed in s-s. (1) of s. 615: An appellant who is in custody is entitled to be present at the hearing of his appeal if he wishes to be present. That is so whether he is represented by counsel or not.

But s-s. (2) indicates that where the appellant is represented by counsel he is not entitled to be present when a ground involving a question of law alone is being argued, or on an application for leave to appeal, or on any preliminary or incidental proceedings, unless the Rules of Court give the entitlement, or a court or a judge gives him leave to be present. I consider that the intention of Parliament in enacting s-s. (2) was to ensure that the appellant was not going to be coming backward and forward from prison to court on preliminary matters.

His entitlement is to be present when the real issue underlying his appeal is determined. The entitlement does not extend to preliminary matters. [ 8 ] In Spence , Lambert J.A. was considering an appeal from sentence. An application for leave had to be made preliminary to the hearing of the substance of the appeal.

He pointed out that in those cases, the practice of the Court is to hear the leave application and the appeal together and noted that the practice raises the question of whether the appellant has an absolute right to be present at the hearing of the appeal when the appeal is mixed up with the leave application. He did not decide that question because he granted leave, concluding at para. 10: In my opinion, the intention of Parliament is that when the substance of the appellant’s sentence appeal is before the court, he is entitled to be present if he wishes to be present.

I think that the intention of Parliament would be frustrated if the hearing of the application for leave with the appeal itself were used to prevent applicants who are serving substantial sentences, like this one, from being present. [ 9 ] Crown counsel takes no position on this application, but says that it is the practice of the Court generally not to grant leave where counsel will be present. She cites three cases, R. v. Elworthy (1983), 1983 CanLII 681 (BC CA) , 49 B.C.L.R. 188 (C.A.), R. v. Mitchell , [1993] B.C.J. No. 539 (C.A.)(QL) , and R. v. Ignace , [1996] B.C.J. No. 281 (C.A.)(QL) .

In Elworthy and Mitchell , the appellant applied to be present on appeals concerning sentence. In Elworthy , Hutcheon J.A. (in chambers) pointed out that where a sentence appeal is preceded by a leave application: ...the practice in this Court has been that if the applicant is in custody and is represented by counsel then unless special circumstances are shown no order would be made permitting him out of custody to attend to hear his sentence appeal. [ 10 ] Mr.

Justice Hutcheon decided that the appellant had a right of appeal and as it was a question of mixed law and fact, he did not need the leave of the Court to attend. [ 11 ] In Mitchell , Toy J.A., for the Court, cited Hutcheon J.A.’s statement in Elworthy concerning the practice of the Court with respect to sentence appeals and concluded that leave would not be granted to the appellant to attend his application for leave to appeal sentence. [ 12 ] This case involves a conviction appeal.

The issues concerned are trial fairness and possible prejudice to the accused from being excluded from a portion of the proceedings. There is no issue concerning leave to appeal in this case. As I said earlier in my reasons, I prefer to follow the reasoning of Lambert J.A. who decided that the intention of Parliament is that the appellant has the right to be present to hear the substance of his appeal. [ 13 ] In this case, as I pointed out, the appellant will present in the building on the morning that the appeal is heard. He has filed an

affidavit on this application stating that he has taken a keen interest in the proceedings. His counsel confirms his evidence that he has participated actively in the preparation of the factum.

The appellant deposes that it was difficult for him to understand the trial process, which was made worse when he was excluded from part of the trial, and that he believes it is important for parties in legal proceedings to be able to see and hear the proceedings which involve their interests. [ 14 ] In my view, as was the view of Lambert J.A., the intention of Parliament is to allow the appellant to be present at the hearing of his appeal if he wishes to be present. In these circumstances, I am prepared to grant leave for that purpose. ”The Honourable Madam Justice Levine”