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Criminal - Appeals - Bail Pending (4). R. v. R.B.-M.
In R. v. R.B.-M. (Ont CA, 2024) the Ontario Court of Appeal dismissed an application for bail pending appeal:The Test for Bail Pending Appeal
[9] To obtain bail pending appeal, the applicant must establish that: (1) the 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: Criminal Code, R.S.C. 1985, c. C-46, ss. 679(3)(a)(b) and (c).
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[11] The public interest ground has two branches: public safety and public confidence in the administration of justice. The latter branch (on which the Crown relies) involves balancing the reviewability interest – that a person is entitled to a meaningful review process before having to serve all or a substantial part of their sentence – and the enforceability interest – that judgments should be immediately enforceable. The balancing is to be measured through the eyes of a reasonable member of the public: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-27 and 47; R. v I.W., 2021 ONCA 628, at paras. 16, 24.
The Enforceability Interest
[12] In this case, the enforceability interest is high, due to two factors – the seriousness of the crimes and the applicant’s history of violation of court orders designed to protect the complainant.
[13] The seriousness of the crime, including the gravity of the offence and the circumstances of its commission, plays an important role in the consideration of the enforceability interest, as the more serious the crime the more public confidence in the administration of justice may be undermined if the person is released on bail pending appeal: Oland, at para. 37.
[14] The applicant has been convicted of serious crimes. The length of the sentence imposed underscores their seriousness.
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[18] As noted in Oland, at para. 39, even where public safety concerns “fall short of the substantial risk mark”, they remain relevant in assessing public confidence in the administration of justice and “can, in some cases, tip the scale in favour of detention”.
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[21] In summary, the public’s interest in the immediate enforcement of the custodial sentence imposed by the trial judge is elevated in the case of the applicant, who has been convicted of committing serious, violent offences against the complainant while in violation of a court order designed to protect her, and who has a history of disobeying court orders.
The Reviewability Interest
[22] Where the enforceability interest is thus engaged, weighing the reviewability interest requires a “more pointed consideration” of the strength of the appeal beyond the “very low bar” set by the “not frivolous” standard: Oland, at paras. 20, 40-41.
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The Final Balancing
[34] As indicated above, the enforceability interest in this case is high due to the seriousness of the offences, the circumstances of their commission, and the breach of the prior court orders which leaves residual public safety concerns.
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[37] On the other hand, the reviewability interest in this case is influenced by the absence of strength in the grounds of appeal. At least one of them is not frivolous, but they are not strong – none clearly surpass the not frivolous standard.
[38] Moreover, in balancing the enforceability and reviewability interests, the timing of the appeal is relevant: Oland, at para. 48. The appeal could be heard when the applicant will still have considerable time left to serve on his sentence. Accordingly, the reviewability interest is partially preserved even without release until the appeal is heard.
[39] Viewed from the perspective of a reasonable member of the public, the enforceability interest predominates and outweighs the reviewability interest given the less than strong grounds of appeal, the seriousness of the crimes, and the “lingering public safety … concerns”: Oland, at para. 50. . R. v. Nygard
In R. v. Nygard (Ont CA, 2024) the Ontario Court of Appeal dismisses an application seeking "bail pending determination of the appeal pursuant to s. 679 of the Criminal Code":(b) Applications for Bail Generally
[15] Applications for bail are governed by s. 679(3) of the Criminal Code, which provides that a judge of this court may grant the appellant’s release pending the determination of the appeal where satisfied that: a) the appeal is not frivolous; b) the appellant will surrender into custody in accordance with the terms of the order; and c) the appellant’s detention is not necessary in the public interest. The onus is on the applicant on a balance of probabilities: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.
[16] Having been convicted, the applicant no longer benefits from the presumption of innocence: Oland, at para. 35.
(i) The appeal is not frivolous
[17] An appeal is not frivolous if it presents an arguable issue. The Supreme Court of Canada instructs that this is a very low bar: Oland, at para. 20; R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38.
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(ii) The applicant has not established that he will surrender himself into custody
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[25] .... To be successful at this stage of the analysis, the applicant must be prepared to demonstrate sufficient roots in the community: see eg. R. v. Mah, 2014 SKCA 26, at para. 12; R. v. M. (A.), 2012 NCLA 49, at para. 20.
Proposed Surety
[26] A functional approach to identifying a suitable surety emphasizes that: the proposed surety be a person of good character to whom the duties of surety may be entrusted; the person has meaningful links to the applicant; the proposed surety has the ability and authority to discharge the obligations and exercise the powers of a surety; and the individual has the financial resources sufficient to meet any monetary conditions of the release order: Gary Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2024), at s. 7:10; R. v. Moazami, 2019 BCCA 226, at para. 31, citing R. v. Patko, 2005 BCCA 183, 197 C.C.C. (3d) 192 (B.C. C.A.), at para. 22.
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(iii) The applicant’s detention is necessary in the public interest
[29] Courts have instructed that there are two components to the public interest requirement: public safety and public confidence in the administration of justice: Oland, at para. 23, citing R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont C.A.), at pp. 47-48.
(a) Public Safety
[30] Public safety concerns the protection and safety of the public if the applicant is released pending the hearing of the appeal. To be denied bail based on public safety considerations, an applicant must: (1) pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (2) the “substantial likelihood” must endanger the “protection of the public”; and (3) the individual’s detention must be “necessary” for public safety: R. v. Abdullahi, 2020 ONCA 350, 150 O.R. (3d) 790, at para. 19, citing R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 737.
[31] The Crown does not pursue the public safety argument.
(b) Public Confidence
[32] The second component – public confidence in the administration of justice – is the focus of the Crown’s argument. This component requires a weighing of society’s interest in the immediate enforcement of criminal judgments, known as the “enforceability interest”, against society’s interest in the reviewability of judgments for error, known as the “reviewability interest”. The latter reflects society’s acknowledgment that our justice system is not infallible and those who challenge the legality of their convictions should be entitled to a review process: Oland, at para. 25, citing Farinacci, at pp. 47-49.
[33] In Oland, the Supreme Court of Canada held that the factors set out in s. 515(10) with respect to assessing whether bail pending trial is justified are also instructive in the bail pending appeal context when considering public confidence in the administration of justice: Oland, at paras. 31-33. Per Oland, at paras. 31-32, factors for consideration include: (1) the strength of the prosecution’s case, measured through the grounds of appeal; (2) the gravity of the offences; (3) the circumstances surrounding the commission of the offences; and (4) whether the accused is liable for a lengthy term of incarceration.
[34] The stronger the appeal, the more likely it is that the reviewability interest will overcome the enforcement interest: R. v. J.P., 2024 ONCA 700, at para. 13; Oland, at paras. 43-44. At the same time, the more serious the crime, the greater the risk that the public’s confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: R. v. T.M., 2022 ONCA 46, at para. 28; R. v. T.S.D., 2020 ONCA 773, at para. 52; Oland, at para. 37.
[35] Any consideration of the strength of the grounds of appeal at the bail application stage is preliminary only. At issue is the “legal plausibility” of the grounds of appeal and their foundation in the record: R. v. Ruthowsky, 2018 ONCA 552, at para. 15. This court will assess whether the grounds of appeal clearly surpass the minimal standard required to meet the “not frivolous” standard: Oland, at paras. 44-45.
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[45] As indicated in Oland, in addressing the public interest portion of the test, ultimately appellate judges draw on their legal experience in evaluating the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, and the flight risks: Oland, at para. 47. Public confidence is measured through the eyes of a reasonable member of the public, a person who is thoughtful, dispassionate, informed of the circumstances of the case, and respectful of society’s fundamental values: R. v. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 75-80. . R. v. J.P.
In R. v. J.P. (Ont CA, 2024) an Ontario Court of Appeal three-judge panel dismissed a CCC 680(1) 'request for release order', brought after a prior bail pending appeal order under CCC 679:[1] J.P., convicted of a single count of sexual assault and sentenced to a global sentence of three and a half years incarceration, was denied release pending the determination of his appeal by a single judge of this court, pursuant to s. 679 of the Criminal Code, R.S.C., 1985, c. C-46. After obtaining a s. 680(1) direction authorizing a panel review of that decision, he is asking this panel to substitute a release order.
[2] In order to succeed, J.P. bears the onus of establishing that the motion judge’s decision was “clearly unwarranted” or that she committed an error in principle that was material to the outcome or committed a palpable and overriding error: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 61. Failing that, we must defer to the motion judge’s decision, even if we disagree with any of the specific conclusions the motion judge reached or the outcome.
[3] J.P. does not argue that the decision denying his release was “clearly unwarranted”. He claims that the motion judge made several errors in principle that were material to the outcome, and that she made a palpable and overriding error in finding that “there is a serious issue of compliance by [J.P.]”. As the following reasons explain, we are not satisfied that J.P. has met his burden of establishing any of these errors. Deference is therefore required and the request for review is dismissed. We approach the alleged errors in an analytically convenient order.
GROUND FOR REVIEW 1 – RELIANCE ON PUBLIC SAFETY
[4] The motion judge detained J.P. on the basis that he failed to show that his detention was not required in the public interest, as he was required to do as a necessary condition to obtaining his release pending appeal: Criminal Code, s. 679(3)(c). The public interest requirement has two components, the “public safety” component and the “public confidence” component: Oland, at para. 23. To achieve release, an appellant must satisfy the motion judge that neither of these two public interest components requires their detention.
[5] J.P. argues that the motion judge erred in legal principle by detaining him pursuant to the public safety component without applying the correct measure of public safety. He relies on the fact that, as a matter of law, an appellant may be detained on the public safety component alone only if they fail to show that there is no “substantial likelihood” that their release would endanger the protection or safety of the public: R. v. Jacko, 2023 ONCA 38, at para. 19. He argues that the motion judge failed to apply the “substantial likelihood” standard, making no mention of it in her decision. He also argues that reliance on the public safety branch was unfair, given the Crown’s position that it was not seeking detention on this ground. Finally, he argues that the motion judge erred by failing to consider whether bail release conditions were available to ameliorate her public safety concerns.
[6] We are not persuaded by these submissions because we are not satisfied that the motion judge relied on the public safety component of the public interest test in detaining J.P. She relied instead on the public confidence component.
[7] To be sure, the motion judge did address the public safety component of the public interest test, and, under the heading “Public Safety”, she did note that she had “public safety concerns.” But she did not say she was detaining J.P. on this basis. Indeed, after noting her public safety concerns, she said correctly as a matter of law (see Oland, at para. 27; R. v. I.W., 2021 ONCA 628, 412 C.C.C. (3d) 542, at para. 24.), that “[s]uch concerns are also relevant in the public confidence analysis.” She then immediately moved on to engage the public confidence component of the public interest requirement, which requires a balancing between the enforceability interest (“that judgements should be immediately enforceable”) and the reviewability interest (“that a person is entitled to a meaningful review process before having to serve all or a substantial part of their sentence”): R. v. I.W., at para. 16. Then, in expressing her conclusion on the bail application in the ultimate paragraph of her decision she said:In my view, the enforceability interest is a strong one in this case and significantly outweighs the reviewability interest. The applicant has been convicted of sexual assault and there is no presumption of innocence. He has not satisfied his onus in proving that detention is not necessary in the public interest and his application for bail pending appeal is dismissed. [8] When the decision is read as a whole, it therefore becomes apparent that the motion judge detained J.P. on the public confidence component of the public interest requirement, not the public safety component, and that she relied on her public safety concerns as part of her public confidence analysis, as the Crown had requested. It bears consideration, in this regard, that in order to have based her decision on the public safety component, the motion judge would have had to have ignored the Crown’s clear position that it was not relying on this ground of detention and then based her decision on a ground of detention that was not argued. This is improbable, and judges are presumed to know the law.
[9] Given that the motion judge was not relying on “public safety” as a standalone basis for detention we see no error in her failure to apply the “substantial likelihood” standard; that standard does not operate when considering the impact of public safety concerns on the impact that bail release would have on public confidence. Similarly, since we are not persuaded that the motion judge relied on the public safety component to justify J.P.’s detention, we cannot accept J.P.’s submission that the motion judge acted unfairly by using a ground of detention the Crown did not rely upon.
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GROUND FOR REVIEW 2 – ASSESSMENT OF THE STRENGTH OF THE APPEAL
[11] J.P. argues that the motion judge erred in assessing the reviewability element of the public confidence component by again imposing an erroneous standard, this time relating to the strength of the appeal. The reviewability interest requires only that the grounds of appeal “clearly surpass the minimal standard required to meet the ‘not frivolous” criterion” for gaining bail release”: Oland, at para. 44. Instead of referring to this standard in considering the reviewability component, the motion judge spoke of not being “persuaded” by proposed appeal grounds, and of not being “persuaded” that those grounds are “strong”.
[12] We accept that the language used by the motion judge creates an apprehension that she may have imposed too high a standard for reviewability to gain bail release pending appeal, but we are not persuaded on the balance of probabilities that she did so. Once again, the motion judge is presumed to know the law, and given the Crown concession that the appeal was not frivolous, there was no pressing need for her to speak in her reasons about the threshold requirement for the reviewability standard.
[13] Moreover, a finding that grounds of appeal clearly surpass the “not frivolous” threshold does not, in every case, end all further consideration of the strength of an appeal. In Oland, at paras. 43–44, Moldaver J. called for a more pointed assessment of the strength of the appeal when assessing the reviewability component. He cited with approval a passage from Gary T. Trotter, “Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion”, (2001), 45 C.R. (5th) 267, where Professor Trotter (as he then was) commented that where the public concern about enforceability “is ignited, there should be a more probing inquiry into the chances of success on appeal” (and see R. v. I.W., at para. 25). This more probing inquiry is sensible where public confidence is at issue because the task at hand in such cases is to weigh the relative importance of the reviewability consideration against the competing enforcement consideration. The stronger the appeal, the more likely it is that reviewability will overcome the enforcement consideration. A fair reading of the motion judge’s decision is that when she described the persuasiveness and the strength of the appeal, she was doing no more than engaging in this weighing exercise.
[14] We recognize that motion judges conducting bail pending appeal hearings have been encouraged to confine their comments on the strength of grounds of appeal to the “general legal plausibility and their foundation in the record” without employing the kind of language used by the motion judge: see Oland, at para. 44. But it is not an error in principle to do so, no doubt because it is difficult to avoid more precise evaluative language when closely assessing the impact that the strength of the grounds of appeal has in the weighing process. We deny this ground of review, as well.
GROUND OF REVIEW 3 – THE SERIOUSNESS OF THE OFFENCE
[15] J.P. alleged an additional error of principle, namely, that the motion judge erred in considering the public confidence component of the public interest requirement because the sexual assault he was found to have committed was not a serious enough offence to justify detention as a matter of public confidence. In making this submission, he relies on Moldaver J.’s admonition in Oland that “only a fraction [of cases] are likely to involve the public confidence component. Rarely does this component play a role, much less a central role”: at para. 29. In Oland, Moldaver J. went on to quote an observation by Donald J.A. in Porisky, 2012 BCCA 467, 293 C.C.C. (3d) 100, at para. 47, that public confidence should be raised “only in those cases where the offence is at the serious end of the scale”: at para 29. Although J.P. recognizes all sexual assaults to be “serious”, it is his submission that, on the continuum of offences, sexual assaults such as the one he was found to have committed are not uncommon or aggravated enough to engage public confidence issues if he was released.
[16] We see no basis for interfering with the motion judge’s decision on this basis. She understood the need to examine the seriousness of the offence as part of the public confidence inquiry, and she did so. There is therefore no error in principle. In substance, J.P.’s complaint is with her decision that the particular sexual assault J.P. was convicted of committing was serious enough to raise public confidence issues. That determination was for the motion judge to make, and we must defer to it.
[17] We would make a related observation. The ultimate issue under the public confidence component is the impact of bail release on perceptions about the administration of justice. Although an offence must be at the serious end of the spectrum before release is likely to raise significant public concern about the administration of justice, it stands to reason that the degree of seriousness needed to warrant detention on this basis may be reduced where there are additional public confidence considerations at play, such as residual public safety concerns, or compliance concerns. That was the case here.
GROUND OF REVIEW 4 – THE FINDING OF COMPLIANCE CONCERNS
[18] The motion judge found that “there is a serious issue with compliance by the appellant”, which J.P. submits is a palpable error on the record, and an overriding one given the role it played in the motion judge’s decision. He points out that at the time the sexual assault was allegedly committed, J.P. had no criminal record. He was not only a youthful 21 years of age at the time of the offence, but he was a first offender, who has not been found to have breached any of the terms of his bail release.
[19] All of this is true, but while on bail release for this offence, J.P. was charged and convicted of committing the offence of battery in Illinois. Although the commission of this offence was not technically a breach of his bail conditions, the commission of another offence while on bail release is a serious matter, raising concerns about how governable the individual is. In addition, J.P. faces a newly acquired criminal harassment charge involving another woman, again, a relevant consideration in assessing the prospect of compliance. Although he is presumed innocent of this newly acquired but pending charge, “outstanding criminal charges are important for bail purposes”: R. v. C.L., 2018 ONCA 470, at para. 15.
[20] In these circumstances, we cannot find that the motion judge made a palpable error in finding there to be serious compliance concerns. Even though this conclusion was not inevitable on the evidence, that, too, was the motion judge’s determination to make and it warrants deference.
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