R. v. Burgar, 2003 BCCA 198

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Burgar, 2003 BCCA 198 Date: 20030328 Docket: CA030069 Between: Regina Respondent And Kenneth Paul Burgar Appellant Before: The Honourable Madam Justice Ryan (In Chambers) Appellant appearing on his own behalf K. Ker Counsel for the Respondent on February 4, 2003 K.D.

Madsen Counsel for the Respondent on March 21, 2003 Place and Dates of Hearing: Vancouver, British Columbia February 4 and March 21, 2003 Place and Date of Judgment: Vancouver, British Columbia March 28, 2003 Reasons for Judgment of the Honourable Madam Justice Ryan: [ 1 ] This matter came before me in Chambers on February 4, 2002 as a Rule 13(3) of the Criminal Appeal Rules , registrar's reference. I adjourned the application to March 21, 2003 so that the appellant, Mr.

Burgar, could obtain further material. [ 2 ] The appellant filed an appeal on August 26, 2002 from the dismissal, in the Supreme Court at New Westminster, of his application for habeas corpus . The appellant has not filed the required appeal books or factum. [ 3 ] The facts leading to the appeal are the following. The appellant was arrested on May 9, 2002. The next day he was charged with one count of committing an indecent act and one count of trespass at night. On May 13, 2002 he appeared before a Provincial Court judge in Surrey and was released on bail.

The terms of bail included one or more sureties in the amount of $5,000. The appellant says that the person he proposed as surety was not acceptable to the justice of the peace. As a result, the appellant remained in custody. [ 4 ] On July 16, 2002 the appellant filed an application for habeas corpus in the Supreme Court alleging that his continued detention was arbitrary and unlawful. In his written material filed with the application, the appellant asserted that the justice of the peace had improperly rejected his surety and that he had been held too long without a bail review.

The material contained other submissions which are unnecessary to discuss for purposes of this application. [ 5 ] The habeas corpus application came on for hearing on July 22, 2002 in the Supreme Court at New Westminster. The appellant has produced a transcript of those proceedings. The transcript reveals that counsel for the Crown took the position that habeas corpus was unavailable for a person unable to perfect bail and that the proper course would be to review the appellant's bail under s. 520 of the Criminal Code .

The Supreme Court justice acceded to the suggestion and put the matter over for hearing to July 26, 2002. [ 6 ] On July 26, 2002 the Supreme Court justice revised the appellant's terms of bail. He has now been released. [ 7 ] The appellant says that he has an argument that his habeas corpus application was properly taken, and that had it been heard, he would have been entitled not only to release, but to the quashing of the charges against him. He says that the Supreme Court justice

erred in refusing to hear his application. [ 8 ] I have now examined the Supreme Court file in this matter. The application for habeas corpus and material filed in support are in the file. As I mentioned earlier, the appellant has now obtained transcripts of the proceedings that took place in the Supreme Court on July 22 and 26, 2002. [ 9 ] Unless otherwise ordered by a justice of this court, Rule 7 of the Criminal Appeal Rules requires that the appellant file four copies of an appeal book and transcript, and deliver one copy to the respondent.

Rule 2(3) permits a justice to give directions respecting the conduct of the appeal that the justice considers necessary. [ 10 ] The appellant says that while he is not impecunious, the court proceedings he faces have impaired his ability to earn a living. The issues arising out of the habeas corpus application are limited. For these reasons I am of the view that I should make an order which will assist the appellant to carry on with this appeal.

I make no comment about the merits of the appeal. [ 11 ] The appellant should make copies of the material he filed in the Supreme Court in support of his application for habeas corpus . Those materials are in the Supreme Court file. The appellant should file four copies of that material in the Court of Appeal Registry and serve the Crown with another copy. The appellant must file and serve this material by April 14, 2003. [ 12 ] During the hearing in Chambers on March 21, the appellant provided the Crown and the Court with copies of the July 22 and July 26 transcripts.

He should now file three more copies of those transcripts in the Court of Appeal Registry. This must also be done by April 14, 2003. [ 13 ] Once these materials are filed and served, the appellant may obtain a date for hearing from the Registry. Two weeks before the date of the hearing the appellant should file four copies of a memorandum of argument setting out his grounds of appeal and his arguments in support. He must also serve one copy on the Crown.

His memorandum of argument should list the citations of the cases he plans to rely upon in support of his appeal. [ 14 ] The Crown must file its memorandum of argument one week after receiving the appellant's written argument. [ 15 ] In the result, the Rule 13(3) application is dismissed. _________________________________ The Honourable Madam Justice Ryan