Thursday, August 1, 2013

Public interest considerations for bail pending appeal

R. v. J.P., 2013 ONCA 505 holds:

[6]          I must also consider the public interest, taking into account the fact that the appellant was convicted of a serious crime against the person. I am obliged to weigh the values of reviewability and enforceability. As Arbour J.A. said in R. v. Farinacci (1993), 67 O.A.C. 197, 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 theCode 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]          Epstein J.A. noted in R. v. Love, [2012] O.J. No. 4083, at para. 10:

Several grounds are relevant to the public interest determination. These include the seriousness of the offence, the strength of the appeal, and the delay inherent in perfecting and listing an appeal: R. v. Daniels (1997), 35 O.R. (3d) 737 (C.A.) The more serious the crime, the less likely bail will be granted. Strong grounds of appeal will favour reviewability over enforceability. Concern for public protection will favour enforceability over reviewability: R. v. Porisky, 2012 BCCA 309, [2012] B.C.J. No. 1440, at paras. 10-16.

No comments: