R. v. Myers

C99-0533.html Citation: R. v. Myers 1999 BCCA 533 Date: 19990921 Docket: CA024586 Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN:

REGINA

RESPONDENT AND:

SHAUN PETER MYERS

APPELLANT Before: The Honourable Madam Justice Rowles (In Chambers) S. Goldberg Counsel for the Appellant N. Harris Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia September 15, 1999 Place and Date of Judgment: Vancouver, British Columbia September 21, 1999 Reasons for Judgment of the Honourable Madam Justice Rowles: [1] Mr. Shaun Peter Myers was convicted in the Provincial Court of British of attempted murder and on 18 March 1998 he was sentenced to six years imprisonment. He now applies for judicial interim release pending the determination of his conviction appeal. [2] The events which led to the charge of attempted murder against the appellant took place in a crowded nightclub in downtown Vancouver in the early morning hours of 21 September 1997. The appellant went to the club with a co-accused by the name of Nollmeyer. The trial judge found that after a brief scuffle between the complainant and the co-accused, the appellant pulled out a handgun and shot the complainant three times at close range. [3] The main issue at trial was identification. A number of witnesses identified the co-accused as the shooter. One of the grounds of appeal is that the verdict is unreasonable or cannot be supported by the evidence. [4] Section 679(3) of the Criminal Code provides that an appellant may be released pending the determination of his appeal if the

appellant establishes that: (a) the appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and [3] his detention is not necessary in the public interest. [5] The Crown does not take the position that the appeal is frivolous but opposes the release of the appellant based on the two other requirements of s. 679(3). [6] The appellant is 28 years of age and has a criminal record dating back ten years. He was not released on bail pending his trial. [7] The appellant's criminal record provides some evidence of a failure to comply with court orders. In 1992, the appellant was found guilty of failing to comply with a recognizance. In 1992, he was also found guilty of an offence concerning the administration of justice, that is, obstructing a police officer. In January of 1995, he was placed on probation for three years after being convicted of a number of offences. His conviction on the present offence demonstrates a failure to comply with the probation order as well as a failure to comply with a weapons prohibition made previously. [8] The only roots the appellant appears to have in the community are in Toronto, Ontario and the appellant has not provided any evidence as to how any terms of recognizance could be monitored in Ontario. Nor has the appellant given any indication of how a breach of those terms could be enforced in

that jurisdiction. [9] The "public interest" which is referred to in s. 679(3)(c) requires consideration of a number of factors including the nature of the offence of which the appellant has been convicted, the chances of the appellant committing other offences while on release, and the effect the appellant's release would have on the public respect for the administration of justice: R. v. Nguyen (1997), 119 C.C.C. (3d) 269 (B.C.C.A.) at p. 273. [10] Based on the appellant's criminal record, there appears to be a real risk of the appellant committing further offences of a violent nature. The appellant, who is only 28 years of age, has a criminal record going back to 1988. Five of the offences of which he has been convicted involved violence or possession of a weapon, both of which were present in this case. It was only two and one-half years before this offence that the appellant was convicted of robbery and possession of a restricted weapon in a motor vehicle. [11] The circumstances of the offence is another factor which weighs against the appellant's release. As the trial judge noted in his reasons for sentence, this offence was aggravated by the fact that the appellant not only intended to kill the victim but also endangered the lives of others when he fired a number of shots in a very crowded area. The only evidence of motive for the shooting was the brief scuffle between

the complainant and the co-accused. The random nature of the violent activity in this case heightens the risk to the public if the appellant were released from custody. [12] Mr. Goldberg's submissions on behalf of the appellant were directed to the strength of the appeal and the lack of response to his inquiries as to whether the Crown would "consent" to the appeal. Appellant's counsel also expressed concern about the delay in this matter and pointed out that by the time the appeal is heard, the appellant will have served one-third of his sentence. [13] It became amply apparent during submissions that counsel have divergent views as to the strength of the appeal and that nothing is to be gained by Mr. Goldberg pursuing any further his inquiries about the Crown's position on the appeal. [14] It is obvious that the appeal should proceed as soon as possible and I understand that the date has now been fixed in February 2000 for the hearing of the appeal. [15] Given the appellant's past breaches of court orders and the lack of material on how the terms of a recognizance could be enforced, I am not persuaded that the appellant has met the requirement of showing that he would surrender himself into custody in accordance with the terms of the order if he were released. [16] The appellant's record for violence in weapons-related offences, the circumstances in which this offence was

committed, and the appellant's failure to adhere to court orders in the past raise very serious concerns about the appellant engaging in further violent misconduct if he were released on bail. Those factors in particular lead me to conclude that it would not be in the public interest to release the appellant. [17] The application for judicial interim release is dismissed. "THE HONOURABLE MADAM JUSTICE ROWLES"