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Criminal - Appeals - Bail Pending
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. R. v. Hamouth
In R. v. Hamouth (Ont CA, 2023) the Court of Appeal considers the test for bail pending appeal, here the the Supreme Court of Canada:Bail pending leave to appeal to the Supreme Court
[4] The test for bail pending leave to appeal to the Supreme Court is the same as bail pending appeal generally and is well settled. The applicant must establish, under s. 679(3) of the Criminal Code, that: a) the application for leave to appeal is not frivolous; b) the applicant will surrender themselves into custody in accordance with the terms of the release order; and c) the applicant’s detention is not necessary in the public interest: see R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19. . R. v. Charizanis
In R. v. Charizanis (Ont CA, 2023) the Court of Appeal considered a technical jurisdictional issue regarding 'surrender', here for purposes of bail pending appeal. When they sought bail pending appeal, the Court of Appeal did not feel that the defendant had 'surrendered' themselves (ie. they were not in 'custody' so that they could be again released) while a Superior Court release order was still in effect:[1] These reasons relate to an application originally made before me on May 10, 2023, and subsequently returned on May 12, 2023. The application was for an order extending the time to file a notice of appeal to this court, for leave to appeal sentence, and for a release order pending appeal. Although the Crown was consenting to the application, I was unwilling to make the requested release order on May 10, 2023, because, for reasons that I will explain, I was not satisfied that the appellant was in custody as required under s. 679 of the Criminal Code. Accordingly, I was not satisfied I had jurisdiction to make a release order under s. 679.
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Discussion
[5] The Crown acknowledged that the applicant met the threshold tests for obtaining an extension of time to appeal, leave to appeal sentence and a release order. I agreed. However, given that the applicant had been released under a Superior Court release order pending appeal, I concluded that the applicant was not in custody such that this court had jurisdiction to make an order releasing him “from custody” under s. 679 of the Criminal Code.
[6] The applicant relied on the fact that a committal order was made committing him into custody when he was sentenced. Because he was committed into custody under the terms of that order, the applicant submitted that this court has jurisdiction under s. 679 to make a release order effectively releasing him “from custody” as imposed by the committal order without the need for him to physically surrender into custody.
[7] I did not accept that submission. I acknowledge that courts have recognized that the words “release an appellant from custody” as they appear in s. 679 of the Criminal Code do not necessarily mean that a person seeking a release order must be physically incarcerated to found jurisdiction under that section and that the term, “custody”, as it appears in s. 679 of the Criminal Code, should be interpreted contextually. See, for example, R. v. Wood, 1999 NSCA 124, 139 C.C.C. (3d) 468, and R. v. J.R., 2022 ONCA 152.
[8] However, as I have said, on May 10, 2023 when this application first came before me, the applicant had already been released from custody under a Superior Court release order pending the appeal of his sentence filed in the Superior Court. Accordingly, as of May 10, 2023, he was not serving the period of incarceration to which he was sentenced, and I was therefore not persuaded he could be treated as being in “custody” under the committal order. See, Wood, at paras. 19-20.
[9] Further, in my view, the fact that the Superior Court release order was made without jurisdiction did not change the reality of the appellant’s status. Even though arguably a nullity, the release order remained binding on the applicant until “negated by due process of the law”: R. v. Kenny, (2003), 2003 CanLII 5917 (ON CA), 174 CCC (3d) 389 (Ont. C.A.), at para. 23. Accordingly, until the Superior Court release order was revoked, or until the applicant surrendered into custody effectively nullifying its effect, the applicant could not be viewed as being in custody giving this court jurisdiction to release him “from custody” under s. 679 of the Criminal Code. . R. v. W.W.
In R. v. W.W. (Ont CA, 2023) the Court of Appeal walked through a bail pending appeal situation:[2] Under s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, a judge of the court of appeal may order the release of an appellant pending appeal if the appellant satisfies three conditions: 1) the appeal is not frivolous; 2) the appellant will surrender into custody under the order; and 3) detention is not necessary in the public interest.
[3] The “not frivolous” standard has been held to be a low bar: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. The Crown’s position is that the two grounds of appeal raised by the appellant, while not frivolous, are at best very weak grounds.
[4] The first ground is that the trial judge implicitly invited the jury when assessing the evidence of the appellant, to consider his bias as a witness. He did this by explaining with respect to the assessment of the credibility of any witness that the jury could consider whether there was any reason why the witness would not be telling the truth and whether the witnesses’ evidence was tainted by bias. Then later, with respect to assessing the appellant’s evidence, the trial judge told the jury to assess his evidence as they would assess the evidence of any other witness.
[5] The appellant acknowledges that the case law does not create an absolute prohibition against considering an accused’s bias in his own favour, but the Supreme Court of Canada has stated in R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 14 that “in most cases” this factor has no place in decision-making: see also R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 117.
[6] The second ground of appeal is that the trial judge erred by failing to charge the jury on the potential effect of inadvertent collusion or tainting in respect of the complainants. In particular, ER spoke to another complainant, her sister, AR, before AR gave her first statement to the police. In her first statement to the police, AR alleged tickling that she described in cross-examination as “weird”. In fact all the girls, including ER, gave evidence of the tickling, which the appellant acknowledged occurred. Three weeks after she gave the first statement, AR gave a second statement to the police where she claimed that the appellant had sexually assaulted her repeatedly over a number of years. The appellant submits that these conversations and others among the girls, created the reasonable possibility of collusion, whether advertent or inadvertent.
[7] The trial judge did not charge on the possibility of collusion, nor was he asked to do so. He did tell the jury not to use the evidence regarding each count in respect of the other counts but to treat them separately. He also told them to take into account “parental and other influences” on the girls in assessing their evidence. Again there was no request for a charge on collusion and no objection.
[8] Both counsel agree that the grounds meet the “not frivolous” test. I accept the submission of the Crown that the two grounds raised are weak grounds in law. The trial judge did not directly tell the jury that they should consider bias of the accused, and the case law does not preclude it in any event. On the potential for indirect collusion or tainting, again the trial judge mentioned the effect of other influences, and that the jury must be mindful that younger people may perceive the world differently and may not be accurate as to details but that their evidence must be carefully assessed. The errors raised while not frivolous, do not, at this stage, appear strong.
[9] The second condition has been met. Both counsel agree that the appellant will surrender himself into custody in accordance with the terms of the order.
[10] The third condition is the public interest ground consisting of public safety concerns as well as public confidence in the administration of justice. The Crown relies on the fact that the offences are extremely serious being sexual interference with young girls with whom the appellant was in a position of trust, including intercourse in one case, resulting in a significant sentence of 6 years and 3 months.
[11] The Crown submits that when balancing the interests of reviewability and enforceability, given that the appeal grounds are relatively weak, and the offences are very serious, the balance weighs in favour of enforceability: Oland, at paras. 49-50.
[12] On the other side is the fact that the appellant has been on release on an undertaking for approximately 3 years without incident. In addition, the parties have worked out a strict release plan where he will live with his elderly parents who will pledge security for him, and he will be prohibited from any contact with children except his son’s children with supervision. The appellant submits that these factors suggest that the balance weighs in favour of reviewability.
[13] I agree with the observation of Trotter J.A. in the case of R. v. M.S., 2022 ONCA 348, at para. 22 that in circumstances where the grounds of appeal appear to be weak, and where there has been a conviction for serious sexual abuse of a number of young people, “[c]onfidence in the administration of justice would be undermined, not maintained, by releasing the appellant.” I add that, given the length of the sentence, this is not a case where a significant part of the sentence will be served before the appeal is heard. . R. v. J.B.
In R. v. J.B. (Ont CA, 2023) the Court of Appeal (Lauwers JA) repeats his summary of bail pending appeal law from R. v. Allen (Ont CA, 2023) [below]. Some have criticized me (and others) for 'self-plagiarism' when I repeat the same text for the same purpose. I cite this as authority for the proposition that the concept of 'self-plagiarism' is an ill-founded one:B. THE GOVERNING PRINCIPLES for Bail pending appeal
[4] For bail pending conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.
[5] The Crown submits that the applicant should remain incarcerated on the third ground: that his detention is necessary in the public interest on the basis of public confidence in the administration of justice.
[6] As the Supreme Court observed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element must be tested under the framework set out by this court in R. v. Farinacci (1993), 86 C.C.C. (3d) 32, [1993] O.J. No. 2627, 1993 CanLII 3385 (C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability. As Arbour J.A. said in Farinacci, at paras. 41-43:The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. The "public interest" criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.
Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.
On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes. [7] In Oland, Moldaver J. reflected on Farinacci and added analytical details. He noted, at paras. 31-32, that an appeal judge considering an application for bail pending appeal should consider the factors stipulated for bail pending trial by s. 515(10)(c) of the Criminal Code, with necessary modifications to account for the fact that the presumption of innocence has been displaced by the conviction. The factors to be considered are: the apparent strength of the prosecution's case; the gravity of the offence; the circumstances surrounding the commission of the offence; and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment. The onus of establishing that the applicant should not be detained in custody is reversed and placed on the applicant: Oland, at para. 35.
[8] Moldaver J. also considered the enforceability and reviewability interests and explained how, with appropriate modifications, the public confidence factors listed in s. 515(10)(c) are to be taken into account by the appeal judge in identifying the factors that make up the public confidence component in s. 679(3)(c).
[9] First, Moldaver J. noted at para. 37 of Oland, “[i]n considering the public confidence component under s. 679(3)(c), I see no reason why the seriousness of the crime for which a person has been convicted should not play an equal role in assessing the enforceability interest.” He added, at para. 38, that the appeal judge should have regard to the sentencing judge's reasons, and not repeat that evaluation afresh.
[10] Second, Moldaver J. considered the “reviewability interest,” which he identified, at para. 40, as being informed by “the strength of the prosecution's case (s. 515(10)(c)(i)).” On appeal, this “translates into the strength of the grounds of appeal ... [and] in assessing the reviewability interest, the strength of an appeal plays a central role.” Specifically, Moldaver J. endorsed the view expressed by my colleague Trotter J.A. in his article entitled, “Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion” (2001), 45 C.R. (5th) 267 at p. 270, where he explained:Realistically, most cases do not raise strong claims regarding the public interest, at least not beyond the general concern that all criminal judgments ought to be enforced. ... However, when an offence is serious, as with murder cases, such that public concern about enforceability is ignited, there should be a more probing inquiry into the chances of success on appeal. It is in this context that the balancing required by Farinacci requires some assessment of the merits, separate from the question of whether the appeal is frivolous or not. [Footnotes omitted.]
[11] Moldaver J. added, at para. 44 of Oland, that:In conducting a more pointed assessment of the strength of an appeal, appellate judges will examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record. For purposes of this assessment, they will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the “not frivolous” criterion. [12] Having assessed the enforceability and reviewability factors, the appeal judge is required to balance them, keeping “in mind that public confidence is to be measured through the eyes of a reasonable member of the public”: Oland, at para. 47. Moldaver J. went on to add: “This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values.” There is no precise formula, but a “qualitative and contextual assessment is required”: Oland, at para. 49. However, he observed, at para. 50: “where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak” (citations omitted). . R. v. Allen
In R. v. Allen (Ont CA, 2023) the Court of Appeal considers the test for bail pending appeal, here the element of 'detention not being in the public interest':C. THE GOVERNING PRINCIPLES for Bail pending appeal
[7] For bail pending conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.
[8] The Crown submits that the applicant should remain incarcerated on the ground that his detention is necessary in the public interest on the basis of public confidence in the administration of justice.
[9] As the Supreme Court observed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element must be tested under the framework set by this court in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32, [1993] O.J. No. 2627, per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability. As Arbour J.A. said in Farinacci, at paras. 41-43:The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. The "public interest" criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.
Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.
On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes. [10] In Oland, Moldaver J. reflected on Farinacci and added analytical details. He noted, at para. 31, that an appeal judge considering an application for bail pending appeal should consider the factors stipulated for bail pending trial by s. 515(10)(c) of the Criminal Code, with necessary modifications to account for the fact that the presumption of innocence has been displaced by the conviction. The onus of establishing that the applicant should not be detained in custody is reversed and placed on the applicant: Oland, at para. 35. The factors to be considered are: the apparent strength of the prosecution's case; the gravity of the offence; the circumstances surrounding the commission of the offence; and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.
[11] Moldaver J. also considered the enforceability and reviewability interests and explained how, with appropriate modifications, the public confidence factors listed in s. 515(10)(c) are to be taken into account by the appeal judge in identifying the factors that make up the public confidence component in s. 679(3)(c).
[12] First, Moldaver J. noted, at para. 37 of Oland: "In considering the public confidence component under s. 679(3)(c), I see no reason why the seriousness of the crime for which a person has been convicted should not play an equal role in assessing the enforceability interest." He added, at para. 38, that the appeal judge should have regard to the sentencing judge's reasons, and not repeat that evaluation afresh.
[13] Second, Moldaver J. considered the "reviewability interest," which he identified, at para. 40, as "the strength of the prosecution's case (s. 515(10)(c)(i))." This "translates into the strength of the grounds of appeal ... [and] in assessing the reviewability interest, the strength of an appeal plays a central role." Specifically, Moldaver J. endorsed the view expressed by my colleague Trotter J.A. in his article entitled, "Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion" (2001), 45 C.R. (5th) 267 at p. 270, where he explained:[R]ealistically, most cases do not raise strong claims regarding the public interest, at least not beyond the general concern that all criminal judgments ought to be enforced.... However, when an offence is serious, as with murder cases, such that public concern about enforceability is ignited, there should be a more probing inquiry into the chances of success on appeal. It is in this context that the balancing required by Farinacci requires some assessment of the merits, separate from the question of whether the appeal is frivolous or not. [Footnotes omitted.] [14] Moldaver J. added, at para. 44 of Oland, that:In conducting a more pointed assessment of the strength of an appeal, appellate judges will examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record. For purposes of this assessment, they will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the "not frivolous" criterion. [15] Having assessed the enforceability and reviewability factors, the appeal judge is required to balance them, keeping "in mind that public confidence is to be measured through the eyes of a reasonable member of the public": Oland, at para. 47. Moldaver J. went on to add: "This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values." There is no precise formula, but a "qualitative and contextual assessment is required": at para. 49. However, he observed, at para. 50: "[w]here the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak" (citations omitted).
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