Wednesday, October 24, 2012

Public interest and bail pending appeal

R v Wilcox 2012 BCCA 413 deals with bail pending appeal. 

Section 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, sets out the factors to be considered on an application for bail on an appeal from conviction.  It provides:

679.(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.

The Court, focussing on the final factor, writes:

[9]               The only issue which I must resolve on this application, therefore, is whether Mr. Wilcox has satisfied me that his detention is not necessary to maintain public confidence in the administration of justice, a consideration relevant to the public interest within the meaning of s. 679(3)(c).  A leading authority in that regard is the decision of this Court in R. v. Mapara2001 BCCA 508 (CanLII), 2001 BCCA 508, where Madam Justice Ryan, speaking for the Court, spoke of the need to weigh the reviewability of a judgment, against its enforceability in assessing the public interest.  The nature of this analysis is referred to at paras. 32-36 of Mapara, as follows[1]:

[32]      An analysis of the section's objectives was undertaken by Arbour J.A. (as she then was) in R. v. Farinacci 1993 CanLII 3385 (ON CA), (1993), 86 C.C.C. (3d) 32 (Ont. C.A.).  She said at pp. 47-8:

Section 679(3)(c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decision granting or denying bail pending appeal can be reviewed.  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 ofs. 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.  This same principle animates the civil law dealing with stays of judgments and orders pending appeal.  It is a principle which vindicates the value of reviewability.

[33]      In R. v. Baltovich (31 March 2000), No. C12090 (Ont. C.A., in Chambers), Rosenberg J.A. quoted the above passage from Farinacci with approval.  Noting the appellant in that case was a mature offender with no previous record, and there was no suggestion he represented a danger to the public or would interfere with the administration of justice, Rosenberg J.A. concluded (para. 25) that "the matter that is most influential on the question of the public interest is the strength of the grounds of appeal".

[34]      I agree with the analyses in Farinacci and Baltovich.  Public confidence in the administration of justice requires that verdicts, properly rendered, be enforced.  Where an appellant establishes that he or she does not pose a flight risk and is unlikely to re-offend, the public interest also acknowledges that actual punishment for a crime be avoided if strong grounds exist for setting aside the verdict. 

[35]      In Demyen when Culliton C.J.S. speaks of the necessity for the appellant to show "something more" than the requirements of paragraphs (a) and (b) of s. 679(3)to establish that his detention is not necessary in the public interest, he must be referring to the necessity for the appellant to show that the principle of enforceability is outweighed by that of reviewability.  In my view the strength of the interest of reviewability must primarily be measured by examining the likelihood of the success of the appeal.  Very strong grounds will tip the scale in favour of reviewability.

[36]      Depending on the demonstrated strength of the grounds, other factors, such as the circumstances of the offence - for example, pre-meditated violence – andinordinate delay will be matters to weigh in the balance.  The essential question, however, will be whether the appellant has been able to establish that enforceability is outweighed by reviewability.  [Emphasis added.]

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