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Date: 20020625 |
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Docket: CA029734 |
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COURT OF APPEAL
FOR BRITISH COLUMBIA |
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BETWEEN: |
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REGINA |
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RESPONDENT |
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AND: |
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GREGORY RONALD RODE |
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APPELLANT |
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Before: |
The Honourable Mr. Justice Smith |
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(In Chambers) |
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C. A. Campbell |
Counsel for the Appellant |
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B. Johnstone |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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19 June, 2002 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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25 June, 2002 |
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[1] Mr. Rode applies pursuant to s. 679(3) of the Criminal Code for release pending determination of his conviction appeal. He was charged with second degree murder but was convicted of manslaughter following a sixteen-day jury trial in the Supreme Court. He was sentenced on April 19th, 2002 to two years’ and eight months’ imprisonment, after receiving credit for approximately fourteen months of pre-sentencing custody.
[2] The burden on Mr. Rode on this application is to show that his appeal is not frivolous, that he will surrender himself into custody in accordance with the terms of the release order, and that his detention is not necessary in the public interest.
[3] The circumstances of the offence are as follows.
[4] Mr. Rode was asleep on a chair in his apartment on the evening of the offence, having consumed a quantity of alcoholic beverages. He awakened to find his former room-mate, Mr. Prygiel; the deceased, Mr. Martin; and two other male persons, who were neighbours from the adjoining apartment, standing near him in his living room. There was a history of animosity between Mr. Rode and both Mr. Prygiel and Mr. Martin. Very shortly after Mr. Rode was awakened, he argued with Mr. Martin about interfering with his view of the television set. Mr. Rode got up from his chair with a knife in his hand and Mr. Martin attacked him, knocking him back into the chair. Mr. Martin hit Mr. Rode on the head with a beer bottle and with a coffee grinder and punched him in the head several times while they struggled on the chair. Mr. Martin got off Mr. Rode and went out the apartment door to the hallway. Mr. Rode followed him and, shortly thereafter, returned to the apartment. When the police attended a few minutes later they found Mr. Martin's body in the hallway. He had been stabbed to death.
[5] Mr. Rode testified at the trial that he killed Mr. Martin in self-defence.
[6] Mr. Rode set out several grounds of appeal in his notice of appeal but, on this application, he relies primarily on two. First, he says that the trial judge failed to instruct the jury that his failure to retreat from his own home was not fatal to his defence of self-defence. He referred in this regard to Regina v. Jack (1994), 91 C.C.C. (3d) 446 (B.C.C.A.) and Regina v. Proulx (1998), 127 C.C.C. (3d) 511 (B.C.C.A.). Further, he submitted, the trial judge failed to put the question of "reasonable apprehension" in context by reviewing the evidence of his previous altercations and arguments with Mr. Prygiel and the evidence that he awakened to find four men in his room.
[7] The Crown says that there is little merit in the grounds of appeal addressed but would not go so far as to say that the appeal is frivolous.
[8] Further, the Crown does not take serious issue with Mr. Rode on the question of whether he will surrender himself into custody in accordance with the terms of any order that I might make. In this regard I note that Mr. Rode was on cash bail of $20,000 for the year preceding his trial. The bail was posted by his parents and it is proposed that they will stand surety for his release pending appeal, as well. During the year preceding his trial, Mr. Rode complied with the conditions of his bail and surrendered himself into custody for the trial.
[9] The Crown opposes Mr. Rode's release pending appeal on the public interest ground. It is the Crown's position that Mr. Rode has demonstrated an inability to refrain from assaultive behaviour. As I understand it, the Crown says that the protection and safety of the public require Mr. Rode's continuing incarceration.
[10] Mr. Rode has a serious criminal record. Among other things, his record includes an assault in Burnaby in 1990, an assault in New Westminster in 1994, an assault and uttering threats in Courtney in 1998, and uttering threats in Delta in 1998.
[11] However, in a pre-sentence report prepared for his sentencing on this matter, the probation officer reported as follows:
Mr. Rode has been conscientious in respecting his complex limits under supervision on bail during the past year in Parksville. His bail supervisor describes him as "cordial, cooperative, and pleasant to deal with", and attributes this in part to his abstinence from alcohol.
[12] The public interest does not always require the detention of an offender pending an appeal. The risk to society if the offender is released must be balanced against the possibility that the appeal will succeed. As McEachern, C.J.B.C. observed in R. v. K.K. (1997), 113 C.C.C. (3d) 52 at 55, the real public interest, if public safety is not at risk, is in ensuring that those who commit offences will ultimately be appropriately punished.
[13] Mr. Rode's performance during his pre-trial bail period suggests that, despite his previous record, he can be released without endangering the safety of the public.
[14] I am satisfied that Mr. Rode has met the prerequisites for his release. Accordingly, I order that he be released from custody pending the determination of his appeal upon entering into a recognizance with one or more sureties in the amount of $20,000, without depositing any money or other valuable security, on the following conditions:
1. He shall keep the peace and be of good behaviour;
2. He shall report, in person, to a bail supervisor at the Vancouver Court Probation Office, 275 East Cordova Street, Vancouver, British Columbia, forthwith upon his release and thereafter, in person, as and when directed by the bail supervisor, but not less than once per week;
3. He shall abstain from communicating, directly or indirectly, and shall have no contact, with Edward Prygiel, Julian Chartrand, Gordon Spencer, Heather Wagner, Warren Keeler, Florence Chartrand and Dianne Purser;
4. He shall reside with his parents, Ana Viola Rode and Kenneth John Rode, at their residence at 150 Acacia Street, Parksville, British Columbia, or at such other place of residence as may be approved in advance in writing by his bail supervisor;
5. He shall present himself at the front door of his place of residence upon demand by a peace officer or a bail supervisor;
6. He shall abstain from the consumption of alcohol and shall submit to a breathalyser, urinalysis, or blood test upon reasonable request of his bail supervisor or of a peace officer in order to monitor compliance with this condition;
7. He shall obey a curfew between the hours of 7:00 p.m. and 7:00 a.m. daily, seven days per week, during which hours he is to be continually at his place of residence, save and except for the purpose of attending for employment and travelling directly to and from his address of employment and his residence;
8. He shall not possess any weapons, including any firearm, crossbow, prohibited or restricted device, ammunition or explosive substance;
9. He shall proceed promptly with his appeal;
10. He shall surrender himself into custody at the Sheriff’s Office, The Law Courts, 800 Smithe Street, Vancouver, British Columbia, or at such other place as may be agreed upon between counsel, at 9:00 a.m. on Wednesday, the January 15, 2003, or on the date set for the hearing of his appeal, whichever date first occurs.
[15] I further direct that Mr. Rode may perfect his bail in Parksville or in Nanaimo, British Columbia.
[16] Accordingly, the appellant’s application for release pending determination of his appeal is granted on the foregoing conditions.
“The Honourable Mr. Justice Smith”