R. v. Lees Date:, 1999 BCCA 441

Citation: R. v. Lees Date: 19990610 1999 BCCA 441 Docket: VI03476 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT : BEFORE THE HONOURABLE June 10, 1999 MR. JUSTICE ESSON IN CHAMBERS Vancouver, B.C. BETWEEN: R E G I N A RESPONDENT AND: PATRICK DAVID LEES APPELLANT D.T.R. Murray, Q.C. appearing for the Appellant K. Ker appearing for the (Crown) Respondent

(Application for Interim Release Pending Appeal) [ 1 ] ESSON, J.A.: Mr. Lees has appealed against his conviction on a count of second degree murder. He now applies for interim release pending appeal. The decision was that of a judge alone who delivered lengthy and fully considered reasons for finding Mr. Lees guilty. [ 2 ] The Crown concedes that the grounds of appeal are sufficient to overcome the first condition in s. 679(3), that of being beyond frivolous; and that there is no realistic ground for concern on the second ground, whether he would surrender himself as required.

Nor does the Crown suggest that there is any reason to apprehend danger to others. The matter falls to be decided on the question raised by the third subsection of 679(3) which is whether his detention is necessary in the public interest. In particular, the issue is whether the detention is necessary in order to maintain confidence in the administration of justice having regard to all the circumstances, including the apparent strength of the prosecution's case. [ 3 ] The only defences raised were provocation and automatism. There is no doubt that Mr.

Lees killed his wife and that he did so in a brutal fashion by strangling her with a belt. Mr. Murray has not made any submission with respect to the automatism issue, and I think the appellant's position with respect to that must be viewed as quite weak, particularly having regard to the recent decision of the Supreme Court of Canada in R. v. Stone 1999 CanLII 688 (SCC) , [1999] S.C.J. No. 27 (Q.L.) which appears to have raised the height of the hurdle that must be met to achieve that rarely achieved defence. [ 4 ] The emphasis has been on provocation.

Were that defence to succeed, it would result only in reducing the verdict to one of manslaughter, and undoubtedly the Crown would be taking the position that a lengthy jail term is necessary in the circumstances of this case. There has been considerable discussion as to the strength of the appeal on provocation. I advised counsel during submissions that I am prepared to accept that there is an arguable issue which, as matters appear to me at present, is not as strong as Mr. Murray has sought to establish. [ 5 ] The appellant relies particularly on the decision of the Chief Justice of this Court in R. v.

Nguyen (1997), 1997 CanLII 10835 (BC CA) , 119 C.C.C. (3d) 269 (B.C.C.A.) in which interim release was granted after a conviction on a charge of second degree murder. In my view, there are clear distinctions between that case and this. The fact that the only seemingly arguable defence could only result in a reduced verdict is an important one. [ 6 ] Having regard to the wording of subsection (c), it is also of some significance that the grounds of appeal are not as strong as they appear to have been regarded in R. v.

Nguyen where, as the Chief Justice observed at page 272, there was a strong ground of appeal particularly in relation to the identification evidence. Where there is such an issue of course, it comes to a question of whether the appellant was the person who killed the victim. In R. v.

Nguyen , the Chief Justice said in paragraph 26: Given the circumstances of this case, and considering the perceptions of an informed public, I do not believe that public confidence in the administration of justice will suffer by permitting this particular accused to be released pending the hearing of his appeal. [ 7 ] Notwithstanding the eloquent submissions of Mr. Murray, I am by no means persuaded that public confidence in the administration of justice would not suffer by permitting this particular accused to be released pending the hearing of his appeal. I respectfully adopt the language of Mr.

Justice Finch in a very recent decision, R. v. Braich and Braich , (March 16, 1999) Vancouver Registry CA025478 and CA025479 (B.C.C.A.). In concluding his Reasons, Mr. Justice Finch said: [9]In my view, the nature of the offence is important in this case on the question of whether release is in the public interest. Although the learned trial judge found that the Crown had failed to prove the necessary intent for murder, this drive-by shooting with a semi- automatic weapon can only be characterized as extremely dangerous conduct with a very high risk of causing serious injury or death to others.

In sentencing, the judge said it was "an offence which has shocked the community", and I think all would agree. [10]In these circumstances, where there appears to be evidence to support the convictions and the grounds of appeal are not strong, I think it would damage public confidence in the administration of justice to grant release pending appeal. I am therefore of the view that the appellants have failed to show that their continued detention is not necessary in the public interest.

[ 8 ] In this case too, I am of the view that the appellant has failed to show that his continued detention is not necessary in the public interest. Therefore, I dismiss the application. "The Honourable Mr. Justice Esson"