



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Wattley,









2005 BCCA
            6




Date: 20050107




Docket: CA31998

Between:

Regina

Respondent

And

James Edward
      Wattley

Appellant











Before:



The Honourable
            Chief Justice Finch





(In Chambers)









D.M. Turko



Counsel for the Appellant





F.G. Tischler



Counsel for the Respondent





Written
            Submissions of the

Appellant
            Dated:



Written
            Submissions of the

Respondent
            Dated:





December 17, 2004





December 24, 2004







Place and
            Date of Judgment:



Vancouver, British Columbia





January 7, 2005







Reasons for Judgment of the Honourable Chief Justice
        Finch:

[1]

The
      appellant applies under Section 680(1) of the
Criminal Code
for
      a direction that the order of Mr. Justice Smith in chambers, pronounced
      20 September 2004 refusing the appellant bail pending appeal, be reviewed
      by a division of this Court.

[2]

The
      learned chambers judge refused bail on the basis that the appellant failed
      to show that his detention was not necessary in the public interest (s.679(3)(c)).  He
      considered that the risk to society if the appellant were to be released
      outweighed the possibility that the appellants appeal against conviction
      might succeed.  That judgment was based essentially on the appellants
      criminal record which includes a number of convictions for assault.

[3]

On
      this application, the appellant has filed an affidavit deposing that one
      of the convictions recorded in the material before the learned chambers
      judge was in error.  The Crown does not dispute this contention, but says
      that the deletion of the conviction erroneously noted in the record could
      have had no effect on the disposition of the application for bail.  I agree.

[4]

As
      noted by Crown counsel in his submission, apart from the erroneous handwritten
      entry, there are 18 convictions including one for the offence under appeal.  Ten
      of those convictions are for offences of violence, including four convictions
      for assault causing bodily harm and four convictions for robbery.  Apart
      from the handwritten entry, the most recent convictions for offences of
      violence from 1999 to the present time, all involve significant jail sentences
      ranging from 6 months to 32 months.  As the chambers judge noted in his
      reasons, two-thirds of the offences recorded were committed by the appellant
      while serving a community based sentence for a previous offence.

[5]

In
      my view, consideration of the appellants record, leaving aside the erroneous
      handwritten entry, would lead inevitably to the conclusion arrived at by
      the chambers judge.

[6]

The
      appellant advances a second point.  Counsel argues that the appellants
      factum is now filed.  It was not before the chambers judge.  Counsel says
      it shows stronger grounds of appeal than those set out in the notice of
      appeal, thus tipping the scales in favour of reviewability.

[7]

In
      my view, this submission is untenable.  The application under s.680(1)
      is a review of the chamber judges decision, not an application
de novo
.  Moreover,
      a comparison of the grounds of appeal set out in the notice of appeal,
      with the issues described in the factum, show that they are virtually identical.

[8]

In
      my view, applying the low threshold test set out in
R. v. Gill
,
      [2001] B.C.J. No. 1993 (Q.L.) (B.C.C.A.) and
R. v. Kim
, [2002]
      B.C.J. No. 327 (Q.L.), 2002 BCCA 120, there is no reasonable prospect that
      a division of this Court would reverse the decision of the chambers judge
      refusing bail.

[9]

The
      application under s.680(1) is dismissed.







The Honourable
Chief
      Justice Finch







Corrigendum: Finch,
          C.J.B.C.
7
          January, 2005



In paragraph 8,
      lines 4 and 5 have been changed to read:



-  reasonable prospect that a division of this Court
      would reverse the decision of the chambers judge refusing bail.


