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Criminal - Appeals - Bail Pending (3). R. v. Hoggard
In R. v. Hoggard (Ont CA, 2024) the Divisional Court dismisses a bail motion while the defendant sought leave to appeal to the Supreme Court of Canada:[3] The test for release pending an application for leave to appeal to the Supreme Court of Canada is set out in s. 679 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. To obtain release, an applicant must establish on a balance of probabilities that: (a) the appeal is not frivolous; (b) they will surrender into custody in accordance with the terms of the order; and, (c) their detention is not necessary in the public interest: Criminal Code, s. 679(3); R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19. The last factor involves considerations of public safety and public confidence in the administration of justice: Oland, at para. 23.
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[6] The public confidence analysis involves weighing the public interest in enforceability of court orders against the public interest in a person convicted of a criminal offence having access to a fair process to review their conviction for possible errors: Oland, at paras. 37-51; R. v. Drabinsky, 2011 ONCA 647, at paras. 7-10.
[7] The enforceability interest is based in the principle that court orders – here the applicant’s conviction and sentence – should be enforced, and enforced in a timely manner. Where an individual is convicted of a serious offence and sentenced to a significant jail term, public confidence in the criminal justice system may suffer if years go by before the individual serves their sentence.
[8] But the enforceability interest must be weighed against the reviewability interest inherent in the right to appeal a criminal conviction. In the context of bail pending appeal, the reviewability interest is concerned to prevent a person who has a potentially meritorious appeal from the appeal becoming meaningless, if they were to serve a significant portion of their sentence only to have the conviction set aside on appeal.
[9] Although the same test applies when bail is sought pending an application for leave to appeal to the Supreme Court of Canada as when it is sought pending an appeal to this court, the court may assess the balance between the enforceability interest and the reviewability interest differently after an applicant’s conviction has been affirmed by this court. At the stage of an application for leave to appeal to the Supreme Court of Canada, an applicant has already exercised their right to appeal to this court. They have had the opportunity to advance all of their arguments as to why the conviction should be overturned. This court has considered those arguments, and the conviction has been affirmed. At this stage, an applicant is seeking to bring a second appeal: Drabinksky, at paras. 10-11. As I discuss below, this typically diminishes the weight to be given to the reviewability interest and increases the weight to be given to the enforceability interest. However, each case must be assessed on its merits. Of particular relevance will be the assessment of the strength of the proposed application for leave to appeal to the Supreme Court of Canada.
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[12] I begin by considering the strength of the grounds advanced in the applicant’s application for leave to appeal to the Supreme Court of Canada. The issue in considering the merits of the applicant’s leave application is whether the application raises a legal issue of national or public importance, as this is the test the Supreme Court applies in considering applications for leave to appeal.
[13] Although I am prepared to accept that the application for leave to appeal is not frivolous under the first branch of the test for bail pending appeal, in my view it is not a strong leave application. The Supreme Court of Canada will ultimately decide the leave application. However, my role as the judge considering the bail application requires me to engage in a preliminary assessment of the merits.
[14] The applicant argues that disputes in various appellate and Supreme Court of Canada decisions about whether the proviso should be applied to a particular set of facts show inconsistency about the legal test to apply the proviso. The applicant argues that this inconsistency shows there is an issue of national or public importance that would merit granting leave to appeal to allow the Supreme Court of Canada to clarify the legal test for application of the curative proviso.
[15] In my view, there is a difference between the legal test that applies when considering the application of the curative proviso and the fact-specific application of the proviso in individual cases. The legal test that applies when considering the application of the curative proviso is well-established. I am not persuaded there is real dispute in the case law about the legal test to apply the curative proviso. Differences of application of the curative proviso to particular factual situations do not raise an issue of what the legal test is. As a result, I do not see a strong case that there is an issue of national or public importance about the test to apply the curative proviso. In the absence of an issue of national or public importance, the application for leave to appeal is weak. Ultimately, the application for leave to appeal involves the fact-specific application of the curative proviso to the applicant’s appeal.
[16] My assessment that the application for leave to appeal, although not frivolous, is weak, diminishes the strength of the reviewability interest. Leave to appeal is granted sparingly by the Supreme Court of Canada. Because the reviewability interest at this stage is contingent on leave to appeal being granted by the Supreme Court, which I assess is unlikely, the reviewability interest is diminished.
[17] The reviewability interest is also diminished by the fact that the applicant has had the opportunity to exercise the right of appeal to this court, and his conviction has been affirmed. At the stage of a first appeal to this court, the reviewability interest may be given primacy and an individual released pending appeal to allow them to exercise their right to appeal and not serve a significant portion of their sentence while doing so. However, the applicant has now exercised his right to appeal. A unanimous panel of this court has considered all of the arguments advanced by the applicant and upheld his conviction.
[18] The flip side of these considerations is that the enforceability interest is higher at this stage of the process than before the applicant’s appeal to this court was decided. The offence that the applicant has been convicted of is very serious. That factor standing alone does not lead me to find a high enforceability interest. Individuals who have been convicted of serious offences are regularly granted bail pending appeals to this court. Indeed, the applicant was released on bail pending his appeal to this court. What distinguishes this application is that the applicant has already exercised his right of appeal to this court and lost. This fact changes the balance between the reviewability and enforceability interest. The interest in enforcing the conviction and sentence imposed on the appellant is increased now because his arguments to challenge the conviction have been considered by this court, and the conviction was unanimously affirmed.
[19] The fact that leave to appeal is required as a condition of the applicant having access to a further appeal also increases the weight to be given to the enforceability interest at this stage of the proceedings. The applicant seeks a second appeal. Unlike the first appeal, the second appeal is not an automatic right. It requires the granting of leave to appeal by the Supreme Court of Canada on an issue of public or national importance. The public interest in enforcing the sentence imposed on the applicant is stronger where his ability to move forward with a second appeal is contingent on the currently uncertain question of whether he will obtain leave to appeal.
[20] Finally, given the relatively short time frame for the Supreme Court to decide an application for leave to appeal, denying bail at least until the leave application is decided will not render the applicant’s attempt to seek further review of his conviction meaningless by requiring him to serve most or all of his sentence before the leave application is decided. Applications for leave to appeal to the Supreme Court of Canada are typically decided within three to six months. The appellant is facing a five-year jail sentence. He has served approximately one month of that sentence since this court’s decision was rendered on August 16, 2024. He will still have years to serve when the Supreme Court decides the leave application.
[21] At this stage of the proceedings, where the applicant’s conviction has been unanimously affirmed by this court and it appears unlikely that he will be granted leave to appeal, I am satisfied that the public interest in enforcing the sentence imposed on the applicant outweighs his interest in a second review of his conviction. If the Supreme Court of Canada grants leave to appeal, the balance may change and a reassessment of the applicant’s bail status may be warranted.
[22] Before closing, I briefly address the applicant’s argument that hardship caused by his being held in protective custody at the Toronto South Detention Centre (the “TSDC”) is a factor that should weigh in favour of granting release pending the determination of the leave application to the Supreme Court of Canada. In my view, that factor is too uncertain to bear significant weight in the public interest analysis. It does not appear likely that the applicant will remain housed at the TSDC much longer. His sentence is a penitentiary sentence. In the normal course, he will be transferred to a federal institution to serve his sentence. There is no information before me about whether protective custody will be required in a federal institution or the conditions of such confinement. Although it appears that the applicant’s transfer to a federal institution will not occur until after another trial he is facing, it does not appear that he will remain at the TSDC. The applicant is scheduled to face trial in northern Ontario beginning on September 23, 2024 – in less than two weeks. Crown counsel advised that the Crown intends to obtain a judge’s order to have the applicant transferred to the North Bay Jail for the duration of that trial. . R. v. R.B.
In R. v. R.B. (Ont CA, 2024) the Ontario Court of Appeal dismissed a bail pending appeal application:A. The Governing Principles
[5] For bail pending a conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, that: (1) the appeal or application for leave to appeal is not frivolous; (2) 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.
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[7] I set out the governing principles at length in R. v. J.B., 2023 ONCA 264. 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), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32, (Ont. C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability.
B. The Principles Applied
The applicant’s detention is necessary in the public interest.
[8] Under s. 679(3)(c), there are two components to consider: public safety and public confidence in the administration of justice: Farinacci, at para. 41. Only the second component, public confidence, is engaged in this application. Consideration of the public confidence component involves assessing the balance between enforceability and reviewability.
(a) Enforceability
[9] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at para. 42.
[10] As noted in Oland, the seriousness of the crime figures in the assessment of the enforceability interest. This court has identified sexual offences relating to children as being on the higher end of the gravity spectrum in the context of bail pending appeal applications: R. v. J.B., 2023 ONCA 264, at para. 17, citing R. v. M.S., 2022 ONCA 348, at para. 15; see also R. v. P.R., 2024 ONCA 345; R. v. Bowman, 2024 ONCA 313; R. v. C.M., 2023 ONCA 700, at para. 5; R. v. G.B., 2023 ONCA 621, at para. 10; R. v. J.C., 2023 ONCA 617, at para. 6; R. v. W.W., 2023 ONCA 328; R. v. M.S., 2022 ONCA 348; and R. v. R.B., 2014 ONCA 722. The inherent seriousness of the sexual offences against children in this case supports the enforceability interest.
(b) Reviewability
[11] As the court noted in Oland, “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. . R. v. Ameyaw
In R. v. Ameyaw (Ont CA, 2024) the Ontario Court of Appeal grants a Crown application for an order revoking bail pending appeal [under CCC 679(6)]:[15] By virtue of s. 679(6) of the Criminal Code, s. 524(3) of the Criminal Code is incorporated into the bail pending appeal regime. By virtue of s. 524(3)(b), I am required to cancel the appellant’s release if I find “there are reasonable grounds to believe that the [appellant] has committed an indictable offence while being subject to the … release order.”
[16] I need not determine whether the appellant is guilty. Section 524 sets out a standard of “reasonable grounds to believe.” . R. v. Bowman
In R. v. Bowman (Ont CA, 2024) the Ontario Court of Appeal denies a bail pending appeal motion:A. The Governing Principles
[4] For bail pending a conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46: (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.
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[6] I set out the governing principles at length in R. v. J.B., 2023 ONCA 264. 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), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32, (Ont. C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability.
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(1) The appeal or application for leave to appeal is not frivolous
[8] The not frivolous test “is widely recognized as being a very low bar”: Oland, at para. 20. The Crown concedes, and I am satisfied, that the appeal is not frivolous.
(2) The applicant will surrender into custody in accordance with the terms of the order
[9] I am satisfied that the applicant will surrender into custody in accordance with the terms of his release, as he did before sentencing.
(3) The applicant’s detention is necessary in the public interest
[10] Under s. 679(3)(c), there are two components to consider: public safety and public confidence in the administration of justice: Farinacci, at para. 41. Only the second component, public confidence, is engaged in this application. Consideration of the public confidence component involves striking the balance between enforceability and reviewability.
(a) Enforceability
[11] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at para. 42. In this case, there are several factors that weigh in favour of enforceability and against the release of the applicant.
[12] As noted in Oland, the seriousness of the crime figures in the assessment of the enforceability interest. This court has identified sexual offences relating to children as being on the higher end of the gravity spectrum in the context of bail pending appeal applications: R. v. J.B., 2023 ONCA 264 at para. 17, citing R. v. M.S., 2022 ONCA 348, at para. 15; see also R. v. C.M., 2023 ONCA 700, at para. 5; R. v. G.B., 2023 ONCA 621, at para. 10; and R. v. J.C., 2023 ONCA 617, at para. 6.
(b) Reviewability
[13] As the court in Oland notes, “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. While the grounds of appeal are arguable, in my view they do not “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, at para. 44. The grounds of appeal are very weak.
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C. Disposition
[31] The applicant’s appeal is weak and does not “clearly surpass” the minimal standard required to meet the ‘not frivolous' criterion, as required by Oland. By contrast, the Crown’s side in this appeal is strong.
[32] Given the seriousness of the crime, as reflected in the sentence, the interest in enforceability is strong. The interest in reviewability is weak.
[33] The balance of the competing interests of enforceability and reviewability in this case come down in favour of enforceability. A reasonable member of the public, informed of the seriousness of the conviction and the weakness of the grounds for appeal would lose confidence in the administration of justice if the applicant were released pending appeal.
[34] I find that the detention of the applicant is necessary in the public interest and dismiss the application for bail pending appeal. . R. v. Ortis
In R. v. Ortis (Ont CA, 2024) the Ontario Court of Appeal considered a bail pending appeal motion, here in rare convictions under the federal Security of Information Act ('SOIA') [s.14(1)]:[3] The test for bail pending appeal is governed by s. 679(3) of the Criminal Code. To obtain bail, the applicant must establish on a balance of probabilities that: (a) the appeal is not frivolous, (b) the applicant will surrender into custody in accordance with the terms of the order, and (c) detention is not necessary in the public interest, which involves a review of public safety and public confidence in the administration of justice: Criminal Code, s. 679(3); R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.
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[13] Parliament has not restricted the availability of bail pending appeal for persons convicted of serious crimes: Oland, at para. 66. As such, as stated in Oland, at para. 66:[E]ven in the case of very serious offences, where there are no public safety or flight concerns and the grounds of appeal clearly surpass the “not frivolous” criterion, a court may well conclude that the reviewability interest overshadows the enforceability interest such that detention will not be necessary in the public interest. ....
(1) Does the appeal meet the “not frivolous” test?
[44] As the Supreme Court observed in Oland, at para. 20, the “not frivolous” criterion sets “a very low bar”. The applicant must demonstrate that the appeal has some merit such that the appellate process is not abused by those attempting to forestall the execution of a custodial sentence: see R. v. T.S.D., 2020 ONCA 773, at para. 24.
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(3) Is detention necessary in the public interest?
[54] The central issue on this application is whether detention is necessary in the public interest. Section 679(3)(c) of the Criminal Code provides that an applicant may be released on bail pending appeal if “his detention is not necessary in the public interest.”
[55] The meaning of “public interest” in the context of bail pending appeal applications was described by Arbour J.A., for a five-judge panel, in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 109 D.L.R. (4th) 97 (Ont. C.A.), at p. 113: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. [56] Therefore, the public interest criterion consists of two components: (i) public safety and (ii) public confidence in the administration of justice: Oland, at paras. 23 and 26; Farinacci, at p. 113.
[57] These two components are not silos and, where the public safety threshold has been met by an applicant, residual public safety concerns or the absence of public safety concerns should be considered in the public confidence analysis: Oland, at para. 27.
[58] In terms of the public safety component, as previously mentioned, the applicant was on bail pending conviction for nearly a year without incident. He was subject to constant electronic monitoring, other monitoring, and supervision by his sureties, just as he would be if he is released on bail pending appeal.
[59] As noted by the Crown, in the context of judicial interim release, a court can look to past behaviour for assistance in assessing predictors of future behaviour. Since there was no instance of non-compliance during the extended period on bail, I see no significant public safety concern given the stringent conditions of the applicant’s proposed bail pending appeal.
[60] I turn now to a consideration of the public confidence component.
[61] The court in Oland, at para. 28, noted that “[a]ppellate judges continue to have difficulty resolving the tension between enforceability and reviewability, especially in cases like the present one, where they are faced with a serious crime on the one hand, and a strong candidate for bail pending appeal on the other.” Moldaver J. continued, saying, at para. 29, that “[r]arely does [the public confidence] component play a role, much less a central role, in the decision to grant or deny bail pending appeal.”
[62] This is one of those rare cases where the public confidence component plays a central role in an application to grant or deny bail pending appeal.
[63] As outlined in the quote above, at para. 55 of these reasons, from Farinacci, the public confidence component of the public interest criterion balances two interests: enforceability and reviewability. Enforceability is the need to respect the general rule of immediate enforceability of judgments, and reviewability reflects society’s acknowledgment that persons who challenge their convictions should be entitled to a meaningful review process: Oland, para. 25.
[64] The seriousness of the offence and the strength of the grounds of appeal are among the most important factors in assessing enforceability and reviewability: Oland, at paras. 37 and 40.
[65] Seriousness is measured by the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential length of imprisonment: Oland, at para. 38. The absence of flight or public safety risks will attenuate the enforceability interest: Oland, at para. 39.
[66] The assessment of the strength of the appeal extends beyond finding that the grounds of appeal are not frivolous to a more comprehensive assessment of the merits of the appeal, keeping in mind that a meaningful review is essential to maintain public confidence in the administration of justice. The remedy sought on appeal may also inform the reviewability analysis. If, for example, a successful appeal would only result in reducing a charge but not an acquittal, that would lessen the interest in reviewability: Oland, at paras. 40-46.
[67] In balancing the relevant factors, public confidence is to be measured through the eyes of a reasonable member of the public who is thoughtful, dispassionate, informed of the circumstances of the case, and respectful of society’s fundamental values: Oland, at para. 47. As Moldaver J. said in Oland, at para. 47, “[P]ublic confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not.”
[68] In Oland, at paras. 65-67, the court decided that Mr. Oland’s detention pending appeal of his murder conviction had been unwarranted, holding that:By all accounts, aside from the seriousness of the offence for which Mr. Oland was convicted, he presented as an ideal candidate for bail. The notoriety of this case, which stemmed largely from his prominence in the community, and any uninformed public opinion about it, were rightly ignored by the appeal judge. Mr. Oland, I emphasize, was entitled to the same treatment as someone less prominent.
In the circumstances, there is considerable merit to Mr. Oland’s submission that if he did not qualify for release, no one convicted of a similarly serious offence would ever be released, absent a showing of unique or exceptionally strong grounds of appeal. That cannot be right. Parliament did not restrict the availability of bail pending appeal for persons convicted of murder or any other serious crime and courts should respect this. Thus, for the purposes of s. 679(3)(c), even in the case of very serious offences, where there are no public safety or flight concerns and the grounds of appeal clearly surpass the “not frivolous” criterion, a court may well conclude that the reviewability interest overshadows the enforceability interest such that detention will not be necessary in the public interest.
Every case is different and there may be operative factors in other cases, such as a prior criminal record, public safety and flight risk concerns, or a weaker release plan, which could raise concerns warranting detention. Emphatically, a contextual analysis that can account for these differences is required. [Italics in original; underlining added.] [69] In applying the law to this case, there is no doubt that these are very serious offences that affect our national and international security and the security of all Canadians. The severity of the offences is reflected in the 14-year global sentence imposed, which the Crown seeks leave to appeal on the basis that the sentence is demonstrably unfit given the gravity of the offences and the moral blameworthiness of the offender.
[70] However, as noted above, Parliament did not restrict the availability of bail pending appeal for persons convicted of serious crimes and courts should respect this. Moreover, as I have explained, there is an absence of public safety risks which attenuates the enforceability interest as the applicant has no prior criminal record, is not a flight risk, and there is a very strong release plan.
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