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] 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), 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"