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Criminal - Appeals - Bail Review [CCC 680]. R. v. Nygard
In R. v. Nygard (Ont CA, 2024) the Ontario Court of Appeal dismissed a CCC 680 bail review of a previously dismissed bail pending appeal application:[5] This is an application brought under the first stage of s. 680 of the Criminal Code, R.S.C. 1985, c. C-46, seeking an order that the bail decision be reviewed by a panel of this court. For the reasons that follow, the application is dismissed.
B. The first stage of a s. 680 hearing
[6] Section 680 operates in two stages. First, the Chief Justice (or acting Chief Justice) decides whether to direct a review either to a panel of the court or, on consent of the parties, to a single judge. If that direction is made, then the panel or single judge will review the matter.
[7] While the two stages are often collapsed, with the consent of the parties, into a single hearing before a single judge, this matter is beginning with the first stage alone. Accordingly, I must decide whether a panel of this court should review the decision of the bail judge.
[8] Determining whether the matter should be sent to a panel for review involves a gatekeeping function. As gatekeeper, the Chief Justice (or acting Chief Justice) must screen the matter and direct a review only where it is “arguable” that the bail judge made material errors in law or fact when arriving at the impugned decision, or that the decision was clearly unwarranted: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 63-64. In this context, the term “arguable” is to be applied in a manner that ensures that those cases with no realistic possibility of success are excluded from review. As Doherty J.A. said in R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 41, this first stage of a s. 680 review is very similar to a motion for leave to appeal, where the question is whether “there is a reasonable chance of success if a review is ordered”.
[9] In determining whether that threshold is met, regard must be had to the highly deferential standard of review that would be applied by a panel at the second stage of a s. 680 hearing. That standard requires the reviewing panel to be guided by three principles, as set out in Oland, at para. 61:First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. [10] To be clear, the review process is not intended to be one where the panel simply substitutes its opinion for the bail judge. Rather, intervention will only be warranted if the decision contains material errors of fact or law, or if the decision is clearly unwarranted: Oland, at para. 58.
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[31] The reviewability consideration requires that an appellate judge look to the apparent strength of the appeal: Oland, at para. 40. In Oland, at paras. 44 and 51, Moldaver J. gave guidance on the reviewability component of the test, noting that the bail judge should consider whether the grounds of appeal “clearly surpass” the minimal standard of “not frivolous”.
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[37] In my view, the bail judge understood how to approach the public interest test, she carefully balanced the reviewability and enforceability criteria, and ultimately concluded that, weighing all of the factors, the public’s confidence in the administration of justice would be undermined by the applicant’s release pending appeal.
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