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BAIL ON APPEAL

R. v. Janes, 2011 NSCA 10 (CanLII)


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LEGAL PRINCIPLES

[2]              The application is brought pursuant to s. 679(1)(a) of the Criminal Code and Nova Scotia Civil Procedure Rule 91.24.  The relevant statutory provisions are:

679.    (1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if,

(a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to section 678;

. . .

(c) in the case of an appeal or an application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, where leave is required, his application for leave to appeal.

 

. . .

(3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for leave to appeal is not frivolous;

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

(c) his detention is not necessary in the public interest.

[3]              The onus is on Mr. Janes to satisfy each of these criteria on the balance of probabilities.  Before turning to a consideration of these criteria, I will briefly outline the circumstances that lead to this application.


[4]              Mr. James is 34 years of age.  He grew up in Halifax and graduated from St. Patrick's High School.  Over the past 12 years he has worked, off and on, in Alberta.  His presentence report prepared for the sentencing hearing indicates that he received training in radiography, which Janes explains is also known as NDT or nondestructive testing.  In addition, he completed a course at NSCC towards becoming a fully accredited electrician.  His employers in Alberta and in Halifax speak well of him as a reliable and hard-working individual.  Unfortunately, over the past 16 years, he has accumulated an unenviable record of over 30 convictions for a variety of offences.  Some are driving offences, most are for common assaults, damage to property, uttering threats, breaches of terms of judicial release and probation orders.  Including the offences presently before this court, Janes has been sentenced a total of 13 times.  However, the types and range of sentence imposed are telling.  He has been given suspended sentences, fines, periods of probation and short periods of incarceration, usually ordered to be served intermittently.  Prior to the present offences, the longest period of incarceration was four months.

[5]              In April 2009, Janes was charged with four offences:  assault on Maureen Grant, damage to her property, breach of probation by having contact with her without her prior consent, and breach of probation by failing to keep the peace and be of good behaviour.  The Crown proceeded by indictment.  He was released on a $5,000 recognizance with the usual conditions of no contact with the complainant and to remain away from her place of residence.  Janes’ father, Andrew Janes Sr., acted as a surety with deposit of $1,000 cash.

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a) appeal is not frivolous

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b) he will surrender himself into custody

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[24]         The Crown’s real argument is that Mr. Janes cannot be trusted to turn himself into custody as may be required by the terms of bail pending appeal because he has breached so many court orders in the past.  The Crown's concerns are well founded.  Without sureties the appellant's motion to obtain bail pending appeal would be doomed to failure.  With only one, it would be doubtful.  But with the two sureties it is not.  I am satisfied that Mr. Janes will surrender as required by s. 679(3)(b) of the Criminal Code.

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c) Detention is not necessary in the public interest

[26]         Mr. Janes is no longer presumed to be innocent of the charge of common assault against the complainant.  The jury found it to be proved beyond a reasonable doubt.  But if Mr. Janes is not granted bail pending appeal, he will have served the remainder of his sentence before this Court can even hear his appeal from conviction and sentence, let alone release reasons.  Since the Crown has conceded his appeal has arguable merit, its outcome is in doubt – either party could be successful.  It can hardly be considered to be in the public interest if an appellant who will likely comply with terms of release protecting against the commission of further offences and show up in court, is nonetheless kept in custody thereby rendering his statutory right of appeal nugatory.

[27]         The competing interests at play in assessing public interest has been the subject of considerable judicial comment.  In Nova Scotia, it has been accepted that the Court must be concerned about a number of factors, both from the perspective of public safety in the sense of what is the likelihood of the appellant committing further offences or posing a danger to himself or others if released, and also, what would be the potential impact on the public image of the administration of justice if the appellant was required to remain in custody or is released.

 

[28]         This approach was described by Cromwell J.A., as he then was in R. v. Ryan, 2004 NSCA 105 (CanLII), 2004 NSCA 105:

[21]      I agree with former Chief Justice McEachern when he wrote in R. v. Nugyen 1997 CanLII 10835 (BC C.A.), (1997), 119 C.C.C. (3d) 269 (B.C.C.A. Chambers) at paras. 15 - 16 that the public interest requirement in s. 679(3)(c) means that the court should consider an application for bail with the public in mind. He went on to add that doing so may mean different things in difference contexts:

In some cases, it may require concern for further offences. In other cases, it may refer more particularly to public respect for the administration of justice. It is clear, however, that the denial of bail is not a means of punishment. Bail is distinct from the sentence imposed for the offence and it is necessary to recognize its different purpose which, in the context of this case is largely to ensure that convicted persons will not serve sentences for convictions not properly entered against them. (Emphasis added)

[22]      I also think it important to remember in applying the public interest criterion that it must not become a means by which public hostility or clammer is used to deny release to otherwise deserving applicants: see Gary Trotter, The Law of Bail in Canada, 2nd ed. (Carswell, 1999) at p. 390.

[23]      Underlying the law relating to release pending appeal are the twin principles of reviewability of convictions and the enforceability of a judgment until it has been reversed or set aside. These principles tend to conflict and must be balanced in the public interest. As Arbour, J.A. (as she then was) pointed out in R. v. Farinacci 1993 CanLII 3385 (ON C.A.), (1993), 86 C.C.C. (3d) 32 at 48:

Public confidence in the administration of justice requires that judgments be enforced. ... On the other hand, public confidence in the administration of justice requires that judgments be reviewed and errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake.

[24]      Justice Arbour then went on to discuss how these two competing principles may be balanced in the public interest:

Ideally judgments should be reviewed before they have been enforced. When this is not possible, an interim regime may need to be put in place which must be sensitive to a multitude of factors including the anticipated time required for the appeal to be decided and the possibility of irreparable and unjustifiable harm being done in the interval. This is largely what the public interest requires to be considered in the determination of entitlement to bail pending appeal.

[25]      This statement was cited with approval by my colleague Chipman, J.A. in R. v. Innocente, supra.

[29]         This approach has been relied upon in numerous cases.  See R. v. Barry, 2004 NSCA 126 (CanLII), 2004 NSCA 126, para. 10; R. v. Cox, 2009 NSCA 15 (CanLII), 2009 NSCA 15, para. 11; and most recently by Fichaud J.A. in R. v. MacIntosh, 2010 NSCA 77 (CanLII), 2010 NSCA 77.

[30]         Chief Justice MacEachern in R. v. Nugyen 1997 CanLII 10835 (BC C.A.), (1997) 119 C.C.C. (3d) 269 reviewed a number of authorities and concluded:


[18]      ...The principle that seems to emerge is that the law favours release unless there is some factor or factors that would cause “ordinary reasonable, fair-minded members of society” (per O’Grady at 4 [p. 139 C.C.C.]), or persons informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case (per R. v. K.(K.) at 54), to believe that detention is necessary to maintain public confidence in the administration of justice.

[31]         Factors that should be considered are the circumstances of the offence, as far as they are known, the circumstances of the offender, the seriousness of the offence, and the degree to which the public can feel protected by appropriate terms of release.

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[34]         I find this to be a close case.  The offence in issue is one of common assault.  However, it arises out of a domestic relationship which heightens the seriousness of the offence.  Although there are significant gaps in the criminal record of the appellant, he has certainly demonstrated an unwillingness in the past to comply with terms of release and probation orders.  The domestic relationship at issue in the offence under appeal before me is over.  Hence, if Janes is released, he has no need to be involved or have any contact with the complainant.  I note that at the end of his sentence which he estimates to be less than two months hence, he will be subject to a term of probation that he have no contact with the complainant and her children and not to be within 100 metres of any place of employment or residence known to him.  I note also that Mr. Janes has already served the equivalent of an approximate 15 month sentence.

[35]         The proposed terms of release by the appellant envisage a virtual house arrest.  He is prepared to live at home with his father in Harrietsfield, and has confirmed employment for what is likely to be six days a week, 7:00 a.m. to 7:00 p.m.  To guarantee his compliance with strict terms of release, he is willing to enter into his own recognizance and have two sureties, his father and his employer and long-time friend, in amounts that are significant.

[36]         As observed by Fichaud J.A. in R. v. MacIntosh, supra, at para 21:

...An interim release, pending a conviction appeal, is not a moral judgment that absolves, condones or mitigates the judicial reaction to the reprehensible conduct for which the individual was convicted.  Neither is an interim release a reduction of the sentence.  If, after a conviction appeal is heard and determined, the Court of Appeal overturns the conviction, then the individual is freed, as any innocent person should be freed, and his imprisonment thankfully will have been reduced by his earlier interim release.  If, on the other hand, the Court of Appeal dismisses Mr. MacIntosh's appeal, then the conviction and sentence will stand, and he will serve that full sentence without any reduction for the additional seven months house arrest that I will order here.  Should his appeal fail, the house arrest under this ruling will add to his total period of lost freedom from the incarceration ordered by the sentencing judge.

[37]         The authorities are clear that I am also entitled to consider the apparent strength of the appeal.  See R. v. Pabani reflex, (1991), 10 C.R. (4th) 381.

 

11        ...There will no doubt be cases where the hearing of an appeal will be so long delayed and the probability of success on the appeal so strong that it would be contrary to the public interest to refuse a release and a fortiori an applicant's detention would not be necessary in the public interest. ...


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[39]         I recognize that there a number of cases where bail pending appeal has been denied where the appellant has possessed a criminal record demonstrating a history of non compliance with terms of release. (See for example:  R. v. Sweet, 2006 NSCA 141 (CanLII), 2006 NSCA 141; R. v. Tattrie, 2007 NSCA 41 (CanLII), 2007 NSCA 41; R. v. Cox, 2009 NSCA 15 (CanLII), 2009 NSCA 15.)  The facts and circumstances in those respective cases are distinguishable for a variety of reasons.  In Sweet, the appeal would be heard before his sentence would be served, there was no surety, release plan other than to return home to the same situation that sparked the assault conviction under appeal.  In Tattrie, the offence was far more serious, there was no release plan with any supervision whatsoever.  In Cox, the offences were more serious with two separate victims of assault causing bodily harm, he had no firm employment plans on release and no sureties to guarantee his compliance with release conditions.

[40]         Were it not for the two sureties present and available here willing to guarantee the appellant's compliance with strict terms of release, it would not be in the public interest to release the appellant.  I also take into account the apparent strength of the appellant’s complaint that late disclosure during his trial hampered his ability to effectively respond to a very much changed case.  The appellant will be required to remain in his residence except for specified exceptions, the principal one being employment, which will be full time and in the presence of Mr. Paquin.  I grant the application by the appellant for release pending his appeal upon the following terms:


Jim O'Neil, LL.B.

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