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Criminal - Appeals - Bail Pending (2)

. R. v. B.B.

In R. v. B.B. (Ont CA, 2023) the Court of Appeal considered elements of a bail pending appeal application:
ANALYSIS OF THE CRIMINAL CODE s. 679(3) CRITERIA

[22] An applicant who seeks release pending determination of his appeal from conviction must demonstrate that the appeal is not frivolous, he will surrender into custody in accordance with the terms of the order, and his detention is not necessary in the public interest: Criminal Code, s. 679(3).

....

B. Public interest: s. 679(3)(c)

[24] The public interest criterion in s. 679(3)(c) of the Criminal Code consists of two components: public safety and public confidence in the administration of justice: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 23. As Arbour J.A. put the matter in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47‑48, the concerns reflecting the public interest in s. 679(3)(c) of the Criminal Code “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.”
. R. v. J.B.

In R. v. J.B. (Ont CA, 2023) the Court of Appeal considered (and dismissed) a CCC 680 'review' of a bail pending appeal application:
[3] The applicant now seeks to have the bail judge’s decision reviewed before a panel of this court pursuant to s. 680 of the Criminal Code. He maintains that it is “arguable” that the bail judge committed material errors of fact or law: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 61, 64. The test for directing a panel review under s. 680(1) of the Criminal Code is set out in Oland, at para. 64:
The test, as I see it, should be relatively straightforward in its application. It flows from the principles the panel is required to apply when conducting a review. In short, the chief justice should consider directing a review where it is arguable that the judge committed material errors of fact or law in arriving at the impugned decision, or that the impugned decision was clearly unwarranted in the circumstances. [Emphasis added.]
....

The Alleged Misapprehension of Evidence

[5] First, the applicant maintains that the bail judge erred by failing to conduct a pointed assessment of the alleged misapprehensions of evidence made by the trial judge. The applicant clarified during oral submissions that his allegation that the bail judge failed to conduct a pointed assessment of the alleged misapprehensions of evidence is really a complaint about the sufficiency of reasons. He also claims that the bail judge erred by saying that this ground of appeal would represent an “uphill battle”, thereby assuming that all misapprehensions of evidence are the same.

[6] Respectfully, it is not arguable that the bail judge made this error. The task of the bail judge was not to conduct an appeal, but to examine the strength of the grounds of appeal with “an eye to their general legal plausibility and their foundation in the record”: Oland, at para. 44. In my view, that is exactly what the bail judge did.

....

[9] My preliminary view of these alleged misapprehensions by the trial judge is that they are not so much misapprehensions as they are complaints about the factual conclusions the trial judge reached and the inferences she drew based upon the evidence before her. This is not to say that this ground of appeal could not succeed. This will be for the panel hearing the appeal to determine. The point is that, at this stage, it is not arguable that the bail judge erred in his assessment of the strength of this ground of appeal or in failing to provide more detailed reasons.

[10] Nor do I see anything controversial about the fact that this ground of appeal was described by the bail judge as an “uphill battle”. This descriptor is apt in light of the fact that, even where a trial judge is mistaken as to the substance of material parts of the evidence, the appellant must still also establish that the misapprehension constitutes an essential part of the reasoning process that results in conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.). This is in fact a “stringent” standard, or, more colloquially put, an uphill battle: Lohrer, at para. 2.
. R. v. D.R.

In R. v. D.R. (Ont CA, 2023) the Court of Appeal considered an application for bail pending appeal:
[2] Pursuant to s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, the applicant must establish that (a) his appeal is not frivolous; (b) he will surrender into custody as required; and (c) his detention is not necessary in the public interest. The Crown opposes the applicant’s release primarily on the third ground.

[3] I am satisfied that the appeal is not frivolous, which is a very low bar to meet. I also accept that, if released, the applicant would surrender into custody when required to do so.

[4] The issue on this application is whether the applicant’s detention is not necessary in the public interest.

[5] There are two public interests engaged by the third criterion – the first is public safety and the second is the public confidence in the administration of justice.

....

[7] The main issue on this application however is in relation to the second arm of the third criterion. I am satisfied that public confidence in the administration of justice is engaged in this case, given the applicant’s convictions for child sexual abuse and the imposition of a lengthy penitentiary sentence: R. v. M.S., 2022 ONCA 348, at paras. 12, 15.

[8] The public confidence analysis requires the court to assess and to weigh the competing interests in the reviewability of the conviction and the enforceability of the sentence. The Crown submits that the grounds of appeal, although not frivolous, are weak, and that the interest in reviewability accordingly does not outweigh society’s interest in enforcement.

[9] On the enforceability side, the applicant was convicted of sexual offences against a child victim, which are objectively serious. The circumstances of the offences were also very serious, involving the repeated sexual abuse of the complainant over a number of years, while the applicant lived with her and her mother, and he had assumed the role of her stepfather, and the applicant taking photographs of the complainant while he was assaulting her.

[10] With respect to reviewability, there is no real potential for the applicant to have served a substantial part of his sentence before the appeal is determined. The focus here is on the strength of the grounds of appeal. The applicant does not have to prove that his appeal is likely to succeed; rather, the grounds identified in the notice of appeal are examined with an eye to their general legal plausibility and their foundation on the record, with the court determining if the grounds of appeal “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 44.
. R. v. A.S.

In R. v. A.S. (Ont CA, 2023) the Court of Appeal considered a bail pending appeal application:
Analysis

[11] There are two components to the public interest branch under s. 679(3)(c) of the Criminal Code: public safety and public confidence in the administration of justice: R. v. Oland, 2017 SCC 17, 1 S.C.R. 250, at para. 23. The Crown urges that bail be denied on both branches.

[12] To be denied bail on public safety grounds: (i) an individual must pose a “substantial likelihood” of committing an offence, (ii) the substantial likelihood must endanger the safety of the public, and (iii) the individual’s detention must be necessary for public safety: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 737.

[13] With respect to public confidence, the court is required to balance the applicant’s interest in the reviewability of the conviction against the public interest in having the offender immediately begin serving his sentence. Assessing reviewability requires an assessment of the strength of the grounds of appeal. Enforceability is assessed through consideration of the gravity of the offences, the circumstances surrounding the commission of the offence, and the potential length of the term of imprisonment: Oland, at paras. 37-38. Even where the applicant meets the public safety threshold, residual public safety concerns may be considered as part of the public confidence analysis: Oland, para. 27.
. R. v. Mare

In R. v. Mare (Ont CA, 2023) the Court of Appeal considered a bail pending appeal application:
[4] I also note that the September 21, 2021 charges have not been tried and the applicant is presumptively innocent of those charges. However, it is permissible for me to have regard to pending charges in determining whether the applicant should be granted bail pending appeal: see e.g., R. v. C.L., 2018 ONCA 470.

Public Interest

[5] There are two components to the public interest branch under s. 679(3)(c) of the Criminal Code – public safety and public confidence in the administration of justice. To be denied bail for public safety considerations: (i) an individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 737; R. v. Stojanovski, 2020 ONCA 285, at para. 18.

[6] The public confidence component of the public interest criterion balances two competing interests: reviewability and enforceability. Achieving this balance mandates a judicial assessment of, on the one hand, the need to review the conviction leading to imprisonment, and on the other, the need to respect the general rule of immediate enforceability of judgments: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 25-26 and 28.

[7] The reviewability consideration under s. 679(3)(c) focuses on the apparent strength of the prosecution’s case. In the appellate context, the measure is the strength of the grounds of appeal (beyond the not frivolous threshold): R. v. M.S., 2022 ONCA 348, at para. 16; Oland, at para. 40. In assessing the strength of an appeal, appellate judges “will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland, at para. 44.

[8] The enforceability considerations engage a review of the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential for a lengthy term of imprisonment: see Oland, at paras. 37-38. Where an applicant meets the public safety threshold, residual public safety concerns or the lack of any public safety concerns should still be considered as part of the public confidence analysis: Oland, at para. 27.

....

[13] In my view, this case engages the public confidence criteria as these are serious drug charges, in terms of both the quantity and types of drugs involved. The sentence imposed is also substantial. Given these facts, it is appropriate for me to consider the public confidence criteria: see R. v. Allen, 2023 ONCA 185, at para. 22.

....

[16] Having assessed the enforceability and reviewability factors, I must now 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. In my view, the proposed grounds of appeal do not clearly surpass the not frivolous standard, and they are clearly outweighed by the strong enforceability considerations referenced above. Confidence in the administration of justice would be undermined, not maintained, by releasing the applicant. I am fortified in that conclusion given my residual public safety concerns.
. R. v. D.W.

In R. v. D.W. (Ont CA, 2023) the Court of Appeal considered a bail pending appeal application:
[5] A judge may order that an applicant be released pending the determination of a sentence appeal or until otherwise ordered by a judge of the Court of Appeal if the applicant establishes the three elements set out in s. 679(4) of the Criminal Code, R.S.C. 1985, c. C-46: (a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant were detained in custody; (b) the applicant will surrender into custody in accordance with the terms of the order; and (c) the applicant’s detention is not necessary in the public interest.

[6] As noted, the Crown opposes bail in this case on the basis that the applicant has not met his onus on s. 679(4)(a). Under that subsection, the applicant must demonstrate that the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant were detained in custody. The link between sufficient merit and unnecessary hardship in s. 679(4)(a) is inextricable. The applicant must demonstrate that the appeal is sufficiently meritorious such that, if not released from custody, the applicant will have already served the sentence as imposed, or what would have been a fit sentence, prior to the hearing of the appeal: R. v. Hewitt, 2018 ONCA 293, at para. 10, citing Justice Gary T. Trotter, The Law of Bail in Canada, 3rd ed (Toronto: Thomson Reuters, 2010) (loose-leaf updated 2017, release 2), at pp. 10-39 to 10-40.
. R. v. G.B.

In R. v. G.B. (Ont CA, 2023) the Court of Appeal considers a bail pending appeal application:
[4] To succeed in obtaining 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 release order; and, (3) his detention is not necessary in the public interest: Criminal Code, s. 679(3)(a-c).

....

[7] Whether detention is necessary in the public interest requires consideration of two matters: public safety and public confidence in the administration of justice. The public confidence component involves balancing the reviewability interest (that a person who challenges the legality of their conviction is entitled to a meaningful review process before having to serve all or a significant part of their sentence) and the enforceability interest (that judgments should be immediately enforceable). The balancing of these interests 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.

[8] 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. Public confidence in the administration of justice is at greater risk of being undermined if the person convicted of a serious crime is released on bail pending appeal: Oland, at para. 37.

[9] The enforceability interest in this case is high.

[10] The appellant occupied a position of trust and authority in relation to H.B. He was convicted of committing serious sexual offences against her over a number of years. Sexual offences relating to children are “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; R. v. M.S., 2022 ONCA 348, at para. 15.

[11] 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 and 40-41.
. R. v. J.C.

In R. v. J.C. (Ont CA, 2023) the Court of Appeal considered a bail pending appeal application:
[4] To be granted bail pending a conviction appeal, the applicant must establish that the following three elements enumerated in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, are met: (a) the appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the release order; and (c) his detention is not necessary in the public interest.

....

[6] The crux of this application is the issue of whether the applicant’s detention is not necessary in the public interest. I am persuaded that the public confidence ground is engaged in the circumstances, given the convictions for child sexual abuse and the imposition of a lengthy penitentiary sentence: R. v. M.S., 2022 ONCA 348, at paras. 12 and 15. A public confidence analysis requires a resolution of the tension between enforceability and reviewability considerations: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 28; M.S., at para. 13.

[7] This analysis draws on the statutory framework for pre-trial release in s. 515(10)(c) of the Criminal Code. Enforceability considerations under s. 679(3)(c) align with the following enumerated factors in s. 515(10)(c): the gravity of the offence (s. 515(10)(c)(ii)); the circumstances surrounding the commission of the offence (s. 515(10)(c)(iii)); and the potential for a lengthy term of imprisonment (s. 515(10)(c)(iv)): see Oland, at paras. 37-38; M.S., at para. 14.

[8] There is no doubt that the offences are objectively serious. As the Supreme Court observed in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 1, sexual offences against children involve “profound wrongfulness and harmfulness.” The circumstances of these offences are also clearly serious as they involve gross breaches of trust against the appellant’s infant daughter and niece. Further, the potential for a lengthy term of imprisonment is demonstrated by the sentence imposed at trial. Therefore, all three enforceability factors weigh strongly against the applicant’s position.

[9] Reviewability considerations under s. 679(3)(c) correspond with s. 515(10)(c)(i) – the apparent strength of the prosecution’s case. In the appellate context, the measure is the strength of the grounds of appeal (beyond the not frivolous threshold): M.S., at para. 16; Oland, at para. 40. In assessing the strength of an appeal, appellate judges “will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland, at para. 44. It is necessary, therefore, to consider the strength of the grounds of appeal raised by the applicant.

....

[16] Having assessed the enforceability and reviewability factors, I must now 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. In my view, the proposed grounds of appeal are weak and do not clearly surpass the not frivolous standard, and they are clearly outweighed by the strong enforceability considerations referenced above. Confidence in the administration of justice would be undermined, not maintained, by releasing the applicant. Given this conclusion, I need not address the Crown’s submission concerning residual public safety considerations.
. R. v. Ansari

In R. v. Ansari (Ont CA, 2023) the Court of Appeal considers various factors in a bail pending appeal application:
[3] The seriousness of the convictions and the sentence imposed are important considerations on this application. However, these considerations alone do not foreclose the appellant’s ability to obtain bail pending appeal: R. v. Papasotiriou, 2018 ONCA 719, 366 C.C.C. (3d) 298, at para. 44.

....

ANALYSIS

[14] To obtain bail pending appeal under s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, the appellant must establish that:
a. the appeal is “not frivolous” (s. 679(3)(a));

b. he will surrender himself into custody in accordance with the terms of the order (s. 679(3)(b)); and

c. his detention is not necessary in the public interest (s. 679(3)(c)).
a. The appeal is “not frivolous”

[15] The Crown concedes that the appellant has met his onus under the first ground in s. 679(3). I agree with that concession. There is a “very low bar” for the appellant to meet under this ground: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20.

....

[22] The appellant argues that his detention is not necessary in the public interest. The “public interest” criterion under s. 679(3)(c) has two elements: public safety and public confidence in the administration of justice: Oland, at para. 23.

....

Public Confidence

[25] The public confidence element involves weighing two competing interests: enforceability and reviewability. There is no question that the appellant was convicted of grave crimes that lead to a significant enforceability interest. But that interest is attenuated somewhat by the lack of flight risk and the absence of any concerns to public safety, given the appellant’s proposed plan of release and the absence of serious compliance issues during his pre-trial bail.

[26] As noted above, it is important for our justice system to have a meaningful review process, one that does not require persons convicted of offences to serve all or a significant part of their sentence only to have their conviction overturned on appeal: Oland, at paras. 24-26. The real dispute in this case is where the scales should tip after balancing the reviewability and enforcement interests. That exercise involves a “pointed consideration” of the strength of the appeal: Oland, at paras. 40-41. ...

....

Balancing

[35] Public confidence in the administration of justice is measured through the eyes of a reasonable member of the public, someone who is “thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, at para. 47.


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Last modified: 23-12-23
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