Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Reasons - 'Self-Plagiarism'

. 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). 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).