Also reported on CanLII 

R. v. S. (P.), 1999 CarswellOnt 1730, , 121 O.A.C. 309

Her Majesty the Queen, Respondent v. P.S. (P.), Applicant/Appellant

Ontario Court of Appeal [In Chambers]

Rosenberg J.A.

Judgment: June 4, 1999
Docket: CA C32078, M24375

Counsel: Graham T. Clark, for Appellant.

Simon N.M. Young, for Respondent.

Rosenberg J.A.:

Endorsement

1        This is an application for release pending appeal following the applicant’s conviction on several sexual offences involving two of his young cousins. The applicant was sentenced to 34- 1/2 months’ imprisonment on April 14, 1998 and thus has been serving this sentence for over one year. The transcript has now been prepared but the appeal has not been perfected. The Crown opposes the applicant’s release on public interest grounds.

2        In R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.) at p. 48, Arbour J.A. explained the application of the public interest criterion as follows:

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. 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. [Emphasis added.]

3        In the emphasized portion, Arbour J.A. has delineated the two extremes on the continuum that a court may face on an application for bail pending appeal. Most applications fall somewhere along this continuum. The stronger the grounds of appeal and the shorter the sentence, the more likely that the release will not be contrary to the public interest because the value of reviewability takes precedence over the interest in immediate enforceability.

4        This application presents a somewhat unusual problem. The applicant has delayed bringing his application until the transcript was available. In the result, the applicant has been incarcerated for fourteen months. He may soon be eligible for parole, if he is not already so eligible. As a result, to grant release at this stage can only marginally advance the interest in reviewability. As well, since the transcript is prepared there is no reason why this appeal cannot be heard within a relatively short time, perhaps during the summer sittings of this court.

5        On the other hand, I have carefully reviewed the portions of the transcript that have been placed before me. It is not my function to finally determine the merits of the appeal, but merely to make a preliminary assessment. The Crown concedes that the appeal is not frivolous. In my view, the grounds of appeal concerning the ruling under s. 715.1 of the Criminal Code and the admission of the note are strong grounds of appeal. While those grounds relate only to one of the complainants, there is much to the argument of applicant’s counsel that an error affecting one complainant would affect the conviction with respect to the other complainant because of the similar fact ruling.

6        Counsel for the Crown has pointed out certain features of this case that he argues suggest that the applicant’s release would undermine public confidence in the administration of justice. He points out that one of the very serious incidents occurred at a time when the applicant knew that he was under investigation. He also points out that the applicant was unresponsive to probation and has done little by way of rehabilitation while serving his sentence.

7        On the other hand, the applicant was released on an undertaking prior to trial and for some two years was in the community without incident. I do not think it right to attribute to the applicant what appears to be misbehaviour by some of the applicant’s family in the course of the trial. I take the Crown’s point that two of the proposed sureties were specifically referred to by the trial judge in her warning but it appears that this conduct stopped once the trial judge warned the family members. I also do not think it is fair to hold the applicant in custody because, of necessity, he will have to return to a small and apparently deeply divided community. To attribute undue weight to that factor would unfairly disadvantage first nations and other persons living in small rural communities.

8        The applicant is 25 years of age. He had no record at the time these offences were committed. He suffers from severe environmental allergies and bronchial asthma. He proposes to live at home with his mother and not leave his residence except in the company of his mother or one of his sureties.

9        On balance, it is my view that the interest in reviewability outweighs the value of enforceability. The application for release pending appeal is granted in terms of the attached draft order. This is an appropriate case to expedite the hearing of the appeal. To that end, the applicant is to perfect the appeal by June 26, 1999.

Application granted.