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Criminal - Appeals - Bail Pending (3). 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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