SUPREME
COURT OF CANADA
Citation:
R. v. Oland, 2017 SCC 17
|
Appeal heard:
October 31, 2016
Judgment
rendered: March 23, 2017
Docket:
36986
|
Between:
Dennis
James Oland
Appellant
and
Her
Majesty the Queen
Respondent
-
and -
Attorney
General of Ontario, Attorney General of British Columbia, Attorney General of
Alberta and Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
Reasons for
judgment:
(paras. 1 to 70)
|
Moldaver J. (McLachlin C.J. and Abella, Karakatsanis,
Wagner, Gascon, Côté, Brown and Rowe JJ. concurring)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
r.
v. oland
Dennis James Oland Appellant
v.
Her Majesty the Queen Respondent
and
Attorney General of Ontario,
Attorney General of British Columbia,
Attorney General of Alberta and
Criminal Lawyers’ Association
(Ontario) Interveners
Indexed as: R. v. Oland
2017 SCC 17
File No.: 36986.
2016: October 31; 2017: March 23.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for new brunswick
Criminal
law — Interim release — Appeals — Appeal judge dismissing application for
release pending appeal because applicant failed to establish that detention “not
necessary in the public interest” under s. 679(3) (c) of Criminal Code — Principles
and policy considerations by which appellate courts should be guided in
deciding whether someone convicted of serious crime and sentenced to lengthy
term of imprisonment should be released on bail pending determination of appeal
— Proper interpretation and application of s. 679(3) (c) of Criminal Code —
Criminal Code, R.S.C. 1985, c. C‑46, s. 679(3) (c).
Criminal
law — Interim release — Review hearing — Standard of review — Appeal judge
dismissing application for release pending appeal — Chief Justice of Court of
Appeal directing review of dismissal decision by three‑judge panel under s. 680(1)
of Criminal Code — Test to be applied by Chief Justice in deciding whether to
direct panel review — Standard of review to be applied by reviewing panel —
Criminal Code, R.S.C. 1985, c. C‑46, s. 680(1) .
Appeals
— Mootness — Application for release pending appeal dismissed — Appeal against
conviction subsequently allowed and new trial ordered — Accused released
pending re‑trial — Appeal from decision refusing bail pending
determination of appeal rendered moot — Whether Court should exercise
discretion to hear appeal.
O
applied for release pending the determination of his appeal against conviction
on a charge of second degree murder involving the death of his father. His application
was denied under the third criterion set out in s. 679(3) (c) of the Criminal
Code , which requires the applicant to establish that “his detention is not
necessary in the public interest”. While public safety was not in issue in this
case, the appeal judge was not persuaded that public confidence would be
maintained if O were to be released. Accordingly, he dismissed O’s application.
A review of that decision by a three‑judge panel, as directed by the
Chief Justice of the Court of Appeal under s. 680(1) of the Criminal
Code , was unsuccessful. The Court of Appeal later allowed O’s appeal
from conviction and ordered a new trial. Because he was then released
pending his re‑trial, O’s appeal of the review panel’s decision to this
Court was rendered moot. However, in accordance with Borowski v. Canada
(Attorney General), [1989] 1 S.C.R. 342, the Court determined that it would
proceed to hear the appeal on its merits because of the unanimous position
taken by the parties and interveners that guidance was needed to resolve
conflicting jurisprudence on the issue of bail pending appeal, which is
otherwise evasive of appellate review.
Held: The appeal should be allowed.
Following
R. v. Farinacci (1993), 86 C.C.C. (3d) 32, the public interest criterion
of s. 679(3) (c) of the Criminal Code consists of two components:
public safety and public confidence in the administration of justice. The public
confidence component involves the weighing of two competing interests: enforceability
and reviewability. While the Farinacci framework has withstood the test
of time and remains good law, appellate judges continue to have difficulty
resolving the tension between enforceability and reviewability, especially in
cases like the present one, where they are faced with a serious crime on the
one hand, and a strong candidate for bail pending appeal on the other.
In s. 679(3)(c)
of the Criminal Code , Parliament has not provided appellate judges with
any direction as to how a bail pending appeal order is likely to affect public
confidence in the administration of justice. Fortunately, it has done so in s. 515(10) (c)
for the admittedly different but related context of bail pending trial. With
appropriate modifications, the s. 515(10) (c) factors are also instructive
in the appellate context.
In
assessing public confidence under s. 515(10)(c) in the pre‑trial
context, the seriousness of the crime for which a person has been convicted
plays an important role and is determined by three factors: the gravity of the
offence; the circumstances surrounding the commission of the offence; and the
potential length of imprisonment. In considering the public confidence
component under s. 679(3)(c), the seriousness of the crime should play an
equal role in assessing the enforceability interest. The remaining factor that
Parliament has identified as informing public confidence under s. 515(10)(c)
is the strength of the prosecution’s case. In the appellate context, this
translates into the strength of the grounds of appeal, which informs the
reviewability interest. For this assessment, appellate judges should examine
the grounds of appeal for their general legal plausibility and their foundation
in the record to determine whether they clearly surpass the minimal standard
required to meet the “not frivolous” criterion.
When
conducting the final balancing of the factors that inform public confidence,
including the strength of the grounds of appeal, the seriousness of the
offence, public safety and flight risks, appellate judges should keep in mind
that public confidence is to be measured through the eyes of a reasonable
member of the public. This person is someone who is thoughtful, dispassionate,
informed of the circumstances of the case and respectful of society’s
fundamental values. There is no precise formula that can be applied to resolve
the balance between enforceability and reviewability. A qualitative and
contextual approach is required. Where the applicant has been convicted of
murder or some other very serious crime, the public interest in enforceability
will be high and will often outweigh the reviewability interest, particularly
where there are lingering public safety or flight concerns and/or the grounds
of appeal appear to be weak. On the other hand, where public safety or flight
concerns are negligible, and where the grounds of appeal clearly surpass the
“not frivolous” criterion, the public interest in reviewability may well
overshadow the enforceability interest, even in the case of murder or other
very serious offences.
A
panel review under s. 680(1) of the Criminal Code should be guided
by the following three principles. First, absent palpable and overriding error,
the panel must show deference to the judge’s findings of fact. Second, the panel
may intervene and substitute its decision for that of the judge where it is
satisfied that the judge erred in law or in principle, and the error was
material to the outcome. Third, in the absence of legal error, the panel may
intervene and substitute its decision for that of the judge where it concludes
that the decision was clearly unwarranted. It follows that the Chief Justice
should consider directing a review under s. 680(1) where it is arguable
that the judge committed material errors of fact or law in arriving at the impugned
decision, or that the decision was clearly unwarranted in the circumstances.
In
this case, the appeal judge was satisfied that there were no appreciable public
safety or flight risk concerns and the grounds of appeal were “clearly
arguable” — meaning that they clearly surpassed the “not frivolous” criterion.
In addition, as found by the trial judge, O’s crime gravitated more toward the
offence of manslaughter than to first degree murder, which attenuated the
seriousness of the crime and hence the enforceability interest. The cumulative effect
of these considerations made O’s detention clearly unwarranted. The appeal
judge erred in law by looking for grounds of appeal that would have virtually
assured a new trial or an acquittal. The review panel erred in failing to
intervene.
Cases Cited
Applied:
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; R. v.
Farinacci (1993), 86 C.C.C. (3d) 32; referred to: R. v. McNeil,
2009 SCC 3, [2009] 1 S.C.R. 66; R. v. Ponak, [1972] 4 W.W.R. 316; R.
v. Iyer, 2016 ABCA 407; R. v. D’Amico, 2016 QCCA 183; R. v. Gill,
2015 SKCA 96, 465 Sask. R. 253; R. v. Xanthoudakis, 2016 QCCA 1809; R.
v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132; R. v. Passey, 1997
ABCA 343, 121 C.C.C. (3d) 444; R. v. Matteo, 2016 QCCA 2046; R. v.
Sidhu, 2015 ABCA 308, 607 A.R. 395; R. v. Porisky, 2012 BCCA 467,
293 C.C.C. (3d) 100; R. v. Parsons (1994), 117 Nfld. & P.E.I.R. 69; R.
v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; R. v. Rhyason, 2006 ABCA
120, 208 C.C.C. (3d) 193; R. v. Roussin, 2011 MBCA 103, 275 Man. R. (2d)
46; R. v. Allen, 2001 NFCA 44, 158 C.C.C. (3d) 225; R. v. Delisle,
2012 QCCA 1250; R. v. Meda (1981), 23 C.R. (3d) 174; R. v. Olsen
(1996), 94 O.A.C. 62; R. v. Roe, 2008 BCCA 253, 256 B.C.A.C. 308; R.
v. Lees, 1999 BCCA 441, 127 B.C.A.C. 280; R. v. St‑Cloud, 2015
SCC 27, [2015] 2 S.C.R. 328; R. v. Baltovich (2000), 47 O.R. (3d) 761; R.
v. Mapara, 2001 BCCA 508, 158 C.C.C. (3d) 312.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
s. 11 (e).
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 469 , 515(1) , (10) (c), 520 , 521 , 679(3) , (4) (a), (10) , 680(1) .
Authors Cited
Trotter, Gary T. The Law of Bail in Canada, 3rd ed. Toronto:
Carswell, 2010 (loose‑leaf updated 2016, release 1).
Trotter, Gary T. “Bail Pending Appeal: The Strength of the
Appeal and the Public Interest Criterion” (2001), 45 C.R. (5th) 267.
APPEAL
from a judgment of the New Brunswick Court of Appeal (Drapeau C.J. and
Larlee and Quigg JJ.A.), 2016 NBCA 15, 446 N.B.R. (2d) 325, 1168 A.P.R.
325, [2016] N.B.J. No. 70 (QL), 2016 CarswellNB 126 (WL Can.), affirming
the decision of Richard J.A. denying bail to the appellant pending the
determination of his appeal against conviction, 2016 CanLII 7428, [2016] N.B.J.
No. 25 (QL), 2016 CarswellNB 42 (WL Can.). Appeal allowed.
Alan D. Gold, Gary A.
Miller, Q.C., and James R. McConnell, for the appellant.
Kathryn A. Gregory and Derek Weaver, for the respondent.
Gavin MacDonald and Leslie Paine, for the intervener the Attorney General of Ontario.
John M. Gordon, Q.C., for the intervener the
Attorney General of British Columbia.
Christine Rideout, for the intervener the Attorney General of Alberta.
Michael W. Lacy, Susan M. Chapman and Andrew Menchynski, for the intervener the Criminal
Lawyers’ Association (Ontario).
The judgment of the Court was delivered by
Moldaver J. —
I.
Overview
[1]
This appeal provides the Court with an
opportunity to consider and clarify the statutory regime in the Criminal
Code, R.S.C. 1985, c. C-46 , which governs bail pending appeal. In
particular, we are concerned with the principles and policy considerations by
which appellate courts should be guided in deciding whether a person, like the
appellant Dennis James Oland, who has been convicted of a serious crime and
sentenced to a lengthy term of imprisonment, should be released on bail pending
the determination of his appeal against conviction.
[2]
The debate in this appeal focuses on the
interpretation and application of two relatively brief provisions of the Code
— s. 679(3) and s. 680(1) . They read as follows:
679 . . .
(3) In the case of an appeal [against conviction], 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 . . . 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.
. . .
680 (1) A decision made by a judge under section . . . 679 may, on the
direction of the chief justice or acting chief justice of the court of appeal,
be reviewed by that court and that court may, if it does not confirm the
decision,
(a) vary the decision; or
(b) substitute such other decision as, in its opinion, should have
been made.
[3]
In the present case, Mr. Oland applied for bail
pending appeal following his conviction on a charge of second degree murder
involving the death of his father. His application was denied under the public
interest criterion set out in s. 679(3) (c). While public safety was not in
issue, the appeal judge was not persuaded that public confidence in the
administration of justice would be maintained if Mr. Oland were to be released.
A review of that order directed by the Chief Justice of New Brunswick under s.
680(1) proved unsuccessful. In the opinion of the three-judge review panel, the
decision of the appeal judge to detain Mr. Oland was “neither unreasonable nor
the product of any material error of fact, law or mixed law and fact” (2016
NBCA 15, 446 N.B.R. (2d) 325, at para. 15).
[4]
For the reasons that follow, I am respectfully
of the view that detaining Mr. Oland on the public interest criterion was
clearly unwarranted in the circumstances. Moreover, in his reasons, the learned
appeal judge made a material legal error that affected the outcome. It follows,
in my respectful view, that the review panel erred in failing to intervene.
[5]
As it turns out, prior to Mr. Oland’s appeal
being argued in this Court, the Court of Appeal of New Brunswick heard and
allowed his appeal from conviction and ordered a new trial. In consequence, Mr.
Oland was released on bail pending his re-trial. Accordingly, his appeal to
this Court from the order of the review panel upholding his detention order was
rendered moot. However, for reasons which I will explain, we chose to hear the
appeal on its merits — and having done so, we would allow the appeal but make
no further order.
II.
Factual Background
[6]
On July 7, 2011, Mr. Oland’s father, Richard
Oland, was found bludgeoned to death at his office in Saint John, New
Brunswick. During the ensuing police investigation, Mr. Oland became the
primary suspect. He was eventually arrested and charged with second degree
murder on November 12, 2013.
[7]
On November 18, 2013, following a contested
hearing, Mr. Oland was released on bail pending trial upon entering into a
surety recognizance in the amount of $50,000, with conditions. On December 19,
2015, after a three-month trial by judge and jury, he was convicted of second
degree murder. On February 11, 2016, the trial judge sentenced him to life
imprisonment with no chance of parole for 10 years.
[8]
In his sentencing reasons, the trial judge found
that apart from the offence for which he now stood convicted, Mr. Oland was a
“well-educated 47 year old husband and devoted father without a criminal past”,
and “a loving/caring man; a man at the heart of his family and a contributing
member of his community” (2016 NBQB 43, 447 N.B.R. (2d) 7, at paras. 14 and
18). In the opinion of the trial judge, Mr. Oland posed no realistic risk of
future dangerousness and his prospect of successfully reintegrating into
society after serving his sentence was excellent. As for the offence, the trial
judge characterized it as “brutal”, noting approximately 40 blunt and sharp
force injuries inflicted to the deceased’s head. On the other hand, the crime
involved a spontaneous outburst that was the product of a longstanding
dysfunctional family dynamic and immense stress. For this reason, the trial
judge found that it fell at the “lower end” on the continuum of moral
culpability for second degree murder, closer to manslaughter than to first
degree murder.
[9]
On January 20, 2016, Mr. Oland filed a notice of
appeal from conviction with the Court of Appeal of New Brunswick. He advanced
numerous grounds of appeal relating to three principal areas: errors in the
jury charge; errors in admitting certain evidence; and the reasonableness of
the verdict. At the same time, he applied under s. 679(3) of the Code for
bail pending the determination of his appeal. The outcome of that application
is the focus of this appeal.
III.
Decisions Below
A.
Decision of the Appeal Judge, 2016 CanLII 7428
(Richard J.A.)
[10]
Mr. Oland’s application for release pending
appeal proceeded before a single judge of the Court of Appeal. In support of
his application, Mr. Oland filed numerous affidavits attesting to his good
character, past compliance with release conditions, and his roots in the community.
In addition, he filed affidavits from two family members who were prepared to
act as sureties and risk substantial sums of money should he breach the terms
of his release order. Finally, he submitted excerpts from the trial transcripts
pertinent to his grounds of appeal.
[11]
In ruling on the application, the appeal judge
found that Mr. Oland had discharged his onus on the first two criteria for
release under s. 679(3)(a) and (b) of the Code, namely: his appeal was
not frivolous and he would surrender into custody as required. The appeal judge
then considered the public interest criterion under s. 679(3) (c), dividing it into
two parts — public safety and public confidence in the administration of
justice.
[12]
Commencing with public safety, the appeal judge
was satisfied that Mr. Oland posed “no danger to the public at large” (para.
15). In this regard, he adopted the findings of the sentencing judge that Mr.
Oland was a man of prior good behaviour, without criminal record, and that the
offence was largely the product of unique relational and situation-specific
difficulties existing between him and his father.
[13]
Turning to public confidence, the appeal judge
found that the gravity and brutality of the offence weighed in favour of Mr.
Oland’s detention. And while the grounds of appeal put forward by him were
“clearly arguable”, they were not of such unique strength as to “virtually assure
a new trial or an acquittal” (paras. 30 and 32). On balance, the appeal judge
was not persuaded that public confidence in the administration of justice would
be maintained if Mr. Oland were to be released. Accordingly, he dismissed the
application for release pending appeal.
B.
Decision of the Review Panel, 2016 NBCA 15, 446
N.B.R. (2d) 325 (Drapeau C.J. and Larlee and Quigg JJ.A.)
[14]
On application by Mr. Oland under s. 680(1) of
the Code, the Chief Justice of New Brunswick directed a review of his
detention order before a three-judge panel of the court.
[15]
In arriving at its decision, the panel adopted a
deferential approach to the review, characterizing the appeal judge’s decision
to detain Mr. Oland as a “judgment call”. While the panel recognized that the
grounds of appeal put forward by Mr. Oland were “serious”, he nonetheless stood
convicted of a brutal murder for which he had received a mandatory life
sentence. In the circumstances, denying him bail would not render his appeal
pointless. Of primary significance, Mr. Oland had failed to show any error in the
reasons of the appeal judge that would warrant interference; nor had he
persuaded the panel that his detention in the circumstances was clearly
unreasonable. Accordingly, the application for review was dismissed.
IV.
Analysis
A.
Mootness
[16]
On October 24, 2016, the Court of Appeal of New
Brunswick allowed Mr. Oland’s appeal from conviction and ordered a new trial.
On October 25, 2016, he was granted bail pending his re-trial. In view of these
events, the parties were alerted that they should be prepared to address the
issue of mootness.
[17]
At the commencement of the hearing, the Court
raised the issue of mootness and we were urged by the parties and interveners
to hear the appeal on its merits. Mr. Oland and the respondent Crown submitted
that this Court’s decision was potentially of significance to them, as Mr.
Oland might find himself in the same situation following his re-trial. In
addition, all concerned submitted that guidance was needed from this Court to
resolve inconsistent approaches to bail taken by appellate courts across the
country. And as bail pending appeal was, by its temporary nature, evasive of
appellate review, this was an appropriate case to resolve the conflicting
jurisprudence: see Borowski v. Canada (Attorney General), [1989]
1 S.C.R. 342; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 2.
[18]
In view of the unanimous position taken by the
parties and interveners, and considering that the appeal meets the criteria
established in Borowski, the Court determined that it would proceed to
hear the appeal on its merits.
B.
Bail Pending Appeal Under Section 679(3) of the
Criminal Code
(1)
The Three Statutory Criteria
[19]
The three statutory criteria for bail pending
appeal are found in s. 679(3) of the Code:
(3) In the case of an appeal [against conviction], 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 . . . 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 applicant seeking bail bears
the burden of establishing that each criterion is met on a balance of probabilities:
R. v. Ponak, [1972] 4 W.W.R. 316 (B.C.C.A.), at pp. 317-18; R. v.
Iyer, 2016 ABCA 407, at para. 7 (CanLII); R. v. D’Amico, 2016 QCCA
183, at para. 10 (CanLII); R. v. Gill, 2015 SKCA 96, 465 Sask. R. 253,
at para. 14.
[20]
The first criterion requires the appeal judge to
examine the grounds of appeal with a view to ensuring that they are not “not
frivolous” (s. 679(3)(a)). Courts have used different language to describe this
standard. While not in issue on this appeal, the “not frivolous” test is widely
recognized as being a very low bar: see R. v. Xanthoudakis, 2016 QCCA
1809, at paras. 4-7 (CanLII); R. v. Manasseri, 2013 ONCA 647, 312 C.C.C.
(3d) 132, at para. 38; R. v. Passey, 1997 ABCA 343, 121 C.C.C. (3d) 444,
at paras. 6-8; G. Trotter, The Law of Bail in Canada (3rd ed. (loose-leaf)),
at pp. 10-13 to 10-15.
[21]
The second criterion requires the applicant to
show that “he will surrender himself into custody in accordance with the terms
of the [release] order” (s. 679(3)(b)). The appeal judge must be satisfied that
the applicant will not flee the jurisdiction and will surrender into custody as
required.
[22]
The third criterion requires the applicant to
establish that “his detention is not necessary in the public interest” (s.
679(3)(c)). It is upon this criterion that Mr. Oland’s bid for bail pending
appeal failed — and it is on this criterion that guidance from the Court is
sought. In particular, the parties ask this Court for guidance on how the
strength of the grounds of appeal from a conviction should be considered in
determining whether detention is necessary in the public interest.
(2)
The Farinacci Approach to the Public
Interest Criterion
[23]
In R. v. Farinacci (1993), 86 C.C.C. (3d)
32 (Ont. C.A.), Arbour J.A. (as she then was) considered the meaning of the
words “public interest” in the context of s. 679(3)(c). In the course of her
careful analysis, she determined that the public interest criterion consisted
of two components: public safety and public confidence in the administration of
justice (pp. 47-48).
[24]
Justice Arbour did not delve into the public
safety component. She found that it related to the protection and safety of the
public and essentially tracked the familiar requirements of the so-called
“secondary ground” governing an accused’s release pending trial (pp. 45 and
47-48). The public confidence component, on the other hand, was more nuanced
and required elaboration. It involved the weighing of two competing interests:
enforceability and reviewability.
[25]
According to Arbour J.A., the enforceability
interest reflected the need to respect the general rule of the immediate
enforceability of judgments. Reviewability, on the other hand, reflected
society’s acknowledgement that our justice system is not infallible and that
persons who challenge the legality of their convictions should be entitled to a
meaningful review process — one which did not require them to serve all or a
significant part of a custodial sentence only to find out on appeal that the
conviction upon which it was based was unlawful (pp. 47-49).
[26]
Almost a quarter of a century has passed since Farinacci
was decided. The public interest framework which it established has withstood
the test of time. It has been universally endorsed by appellate courts across
the country: see, e.g., R. v. Matteo, 2016 QCCA 2046, at para. 20
(CanLII); R. v. Sidhu, 2015 ABCA 308, 607 A.R. 395, at paras. 5-6; R.
v. Porisky, 2012 BCCA 467, 293 C.C.C. (3d) 100, at paras. 8 and 14-15; R.
v. Parsons (1994), 117 Nfld. & P.E.I.R. 69, at paras. 30-34 (C.A.).
Moreover, all of the parties and interveners in this appeal are content with
the Farinacci framework. None has spoken against it; none has asked us
to revisit it — and I see no reason to do so. Farinacci remains good law
in my view.
[27]
In so concluding, I should not be taken to mean —
nor do I understand Farinacci to have said — that the public safety
component and the public confidence component are to be treated as silos. To be
sure, there will be cases where public safety considerations alone are
sufficient to warrant a detention order in the public interest. However, as I
will explain, where the public safety threshold has been met by an applicant
seeking bail pending appeal, residual public safety concerns or the absence of
any public safety concerns remain relevant and should be considered in the
public confidence analysis.
[28]
The challenge with Farinacci arises not
from its framework, but from its application in cases where the public
confidence component is raised. Appellate judges continue to have difficulty resolving
the tension between enforceability and reviewability, especially in cases like
the present one, where they are faced with a serious crime on the one hand, and
a strong candidate for bail pending appeal on the other.
[29]
Fortunately, cases like this tend to be more the
exception than the rule. Appellate judges across the country deal with
applications for bail pending appeal on a regular basis. Of those, only a
fraction are likely to involve the public confidence component. Rarely does
this component play a role, much less a central role, in the decision to grant
or deny bail pending appeal. As Donald J.A. observed in Porisky, at
para. 47:
Not every offence is serious enough to
engage an assessment of the merits. There is no need to go beyond the frivolous
threshold in cases unlikely to arouse a concern about public confidence. . . .
[W]e should expect Crown counsel to recognize that the continuum runs from
petty theft to first degree murder and to exercise good judgment in raising
public confidence only in those cases where the offence is at the serious end
of the scale.
[30]
That said, difficult cases do occasionally arise
in which the public confidence component is raised. In the hope of assisting
appellate judges, I propose to elaborate somewhat on the competing interests of
enforceability and reviewability identified in Farinacci. In particular,
I will point out some of the key factors that inform these interests and
provide appellate judges with guidance as to how to weigh them in any given
case.
(3)
Section 515(10) (c) of the Criminal Code
Identifies Factors That Inform the Public Confidence Analysis
(a)
The Rationales for Considering Section
515(10)(c)
[31]
In s. 679(3)(c) of the Code, Parliament
has not provided appellate judges with any direction as to how a release
pending appeal order is likely to affect public confidence in the
administration of justice. Fortunately, it has done so in the admittedly
different but related context of bail pending trial. Under s. 515(10)(c),
Parliament has identified four factors that judges may consider in assessing
whether a detention order is necessary to maintain public confidence in the
administration of justice:
515 . . .
(10) For the purposes of this section, the detention of an accused in
custody is justified only on one or more of the following grounds:
. . .
(c) if the detention is necessary to
maintain confidence in the administration of justice, having regard to all the
circumstances, including
(i) the apparent strength of the
prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the
commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a
potentially lengthy term of imprisonment or, in the case of an offence that
involves, or whose subject-matter is, a firearm, a minimum punishment of
imprisonment for a term of three years or more.
[32]
While these factors are tailored to the
pre-trial context, a corollary form of the interest underlying each exists in
the appellate context. In my view, these same factors — with appropriate
modifications to reflect the post-conviction context — should be accounted for
in considering how, if at all, a release pending appeal order is likely to
affect public confidence in the administration of justice.
[33]
Approaching the matter this way advances an
important policy consideration. It has the virtue of
promoting consistency and harmony between the trial and appellate contexts so
that, together, they may be seen as providing a cohesive and comprehensive
statement of the law governing bail in Canada. Importantly, it accords with the
basic principle that, in general, bail should not be more readily accessible
for someone who has been convicted of a crime than for someone who is awaiting
trial and is presumed innocent. Approaching the two contexts in that fashion
can only serve to foster the goals of fairness and coherence and enhance
society’s confidence in the administration of justice.
[34]
Greater accessibility to bail pending trial is
rooted in the presumption of innocence. Accused persons charged with an offence
in Canada are presumed to be innocent, and they remain so unless and until
their guilt is proved beyond a reasonable doubt. With this in mind, the framers
of the Canadian Charter of Rights and Freedoms saw fit to include in s.
11 (e) the right of every person charged with an offence “not to be
denied reasonable bail without just cause”: R. v. Hall, 2002 SCC 64,
[2002] 3 S.C.R. 309, at para. 13.
[35]
By contrast, once a conviction is entered, the
presumption of innocence is displaced and s. 11 (e) of the Charter no
longer applies. This is reflected in the shift in onus which occurs when a
person who has been convicted and sentenced applies for bail pending appeal.
Unlike the pre-trial context, where by and large the onus rests on the Crown to
establish that an accused should be detained in custody, for appeal purposes,
Parliament has seen fit to reverse the onus onto the applicant in all cases.[1]
[36]
With these thoughts in mind, I turn to the
enforceability and reviewability interests to explain how, with appropriate
modifications, the public confidence factors listed in s. 515(10)(c) are
instructive in identifying the factors that make up the public confidence
component in s. 679(3)(c).
(b)
The Enforceability Interest
[37]
In assessing whether public confidence concerns
support a pre-trial detention order under s. 515(10)(c), the seriousness of the
crime plays an important role. The more serious the crime, the greater the risk
that public confidence in the administration of justice will be undermined if
the accused is released on bail pending trial. So too for bail pending appeal.
In considering the public confidence component under s. 679(3)(c), I see no
reason why the seriousness of the crime for which a person has been convicted
should not play an equal role in assessing the enforceability interest.
[38]
With that in mind, I return to s. 515(10)(c),
where Parliament has set out three factors by which the seriousness of a crime
may be determined: the gravity of the offence, the circumstances surrounding
the commission of the offence, and the potential length of imprisonment (s.
515(10)(c)(ii), (iii) and (iv)). In my view, these factors are readily
transferable to s. 679(3)(c) — the only difference being that, unlike the
pre-trial context, an appeal judge will generally have the trial judge’s
reasons for sentence in which the three factors going to the seriousness of the
crime will have been addressed. As a rule, the appeal judge need not repeat
this exercise.
[39]
I pause here to note that while the seriousness
of the crime for which the offender has been convicted will play an important
role in assessing the enforceability interest, other factors should also be
taken into account where appropriate. For example, public safety concerns that
fall short of the substantial risk mark — which would preclude a release order —
will remain relevant under the public confidence component and can, in some
cases, tip the scale in favour of detention: R. v. Rhyason, 2006 ABCA
120, 208 C.C.C. (3d) 193, at para. 15; R. v. Roussin, 2011 MBCA
103, 275 Man. R. (2d) 46, at para. 34. The same holds true for lingering flight
risks that do not rise to the substantial risk level under s. 679(3)(b). By the
same token, the absence of flight or public safety risks will attenuate the
enforceability interest.
(c)
The Reviewability Interest
[40]
The remaining factor that Parliament has
identified as informing public confidence under s. 515(10)(c) is the strength
of the prosecution’s case (s. 515(10)(c)(i)). In the appellate context, this
translates into the strength of the grounds of appeal — and, as I will explain,
in assessing the reviewability interest, the strength of an appeal plays a
central role. I say this mindful of the fact that some authorities have
expressed concerns about assessing the merits of an appeal beyond the s.
679(3)(a) “not frivolous” criterion: see R. v. Allen, 2001 NFCA 44, 158
C.C.C. (3d) 225, at paras. 31-52; Parsons, at paras. 55-59. With
respect, I do not see this as a problem.
[41]
In my view, allowing a more pointed
consideration of the strength of an appeal for purposes of assessing the
reviewability interest does not render the “not frivolous” criterion in s.
679(3)(a) meaningless. On the contrary, the “not frivolous” criterion operates
as an initial hurdle that produces a categorical “yes” or “no” answer, allowing
for the immediate rejection of a release order in the face of a baseless
appeal.[2]
[42]
Justice Donald put the matter succinctly, and in
my view correctly, in Porisky, at para. 37:
The express mention of “not
frivolous” in s. 679(3)(a) and “sufficient merit” in s. 679(4) (a) does not, in
my view, foreclose consideration of the merits for a purpose other than a
threshold test. Once over the threshold, the applicant faces the question of
the public interest, a phrase not defined in the legislation but which had to
be given some limits if it was to survive constitutional scrutiny. That is what
Farinacci did. In setting boundaries for the public interest criterion,
in particular the public confidence element, Farinacci employed the
merits assessment for a purpose different from the threshold test. So I see no
redundancy; nor do I doubt our authority to consider the merits as part of the
public confidence question.
See also: R. v. Delisle,
2012 QCCA 1250, at paras. 4 and 52 (CanLII).
[43]
Gary Trotter, now a Justice of the Court of
Appeal for Ontario, reached a similar conclusion in his article “Bail Pending
Appeal: The Strength of the Appeal and the Public Interest Criterion” (2001),
45 C.R. (5th) 267, where he explained:
. . . realistically, most cases do not
raise strong claims regarding the public interest, at least not beyond the
general concern that all criminal judgments ought to be enforced. . . .
However, when an offence is serious, as with murder cases, such that public
concern about enforceability is ignited, there should be a more probing inquiry
into the chances of success on appeal. It is in this context that the balancing
required by Farinacci requires some assessment of the merits, separate
from the question of whether the appeal is frivolous or not. [Footnotes
omitted; p. 270.]
[44]
In conducting a more pointed assessment of the
strength of an appeal, appellate judges will examine the grounds identified in
the notice of appeal with an eye to their general legal plausibility and their
foundation in the record. For purposes of this assessment, they will look to
see if the grounds of appeal clearly surpass the minimal standard required to
meet the “not frivolous” criterion. In my view, categories and grading schemes
should be avoided. Phrases such as “a prospect of success”, “a moderate
prospect of success”, or “a realistic prospect of success” are generally not
helpful. Often, they amount to little more than wordsmithing. Worse yet, they
are liable to devolve into a set of complex rules that appellate judges will be
obliged to apply in assessing the category into which a particular appeal
falls.
[45]
In the end, appellate judges can be counted on
to form their own “preliminary assessment” of the strength of an appeal based
upon their knowledge and experience. This assessment, it should be emphasized,
is not a matter of guesswork. It will generally be based on material that
counsel have provided, including aspects of the record that are pertinent to
the grounds of appeal raised, along with relevant authorities. In undertaking
this exercise, appellate judges will of course remain mindful that our justice
system is not infallible and that a meaningful review process is essential to
maintain public confidence in the administration of justice. Thus, there is a
broader public interest in reviewability that transcends an individual’s
interest in any given case.
[46]
As a final matter, I note that the remedy sought
on appeal may also inform the reviewability interest. For example, if a
successful appeal can result only in a murder conviction being reduced to
manslaughter, this will lessen the interest in reviewability, even if the
grounds of appeal appear to be strong: R. v. Meda (1981), 23 C.R. (3d)
174 (B.C.C.A.); R. v. Olsen (1996), 94 O.A.C. 62, at para. 5; R. v.
Roe, 2008 BCCA 253, 256 B.C.A.C. 308, at para. 14; R. v. Lees, 1999
BCCA 441, 127 B.C.A.C. 280, at paras. 4-5.
(d)
The Final Balancing
[47]
Appellate judges are undoubtedly required to
draw on their legal expertise and experience in evaluating the factors that
inform public confidence, including the strength of the grounds of appeal, the
seriousness of the offence, public safety and flight risks. However, when
conducting the final balancing of these factors, appellate judges should keep
in mind that public confidence is to be measured through the eyes of a
reasonable member of the public. This person is someone who is thoughtful,
dispassionate, informed of the circumstances of the case and respectful of
society’s fundamental values: R. v. St-Cloud, 2015 SCC 27, [2015] 2
S.C.R. 328, at paras. 74-80. In that sense, public confidence in the
administration of justice must be distinguished from uninformed public opinion
about the case, which has no role to play in the decision to grant bail or not.
[48]
In balancing the tension between enforceability
and reviewability, appellate judges should also be mindful of the anticipated
delay in deciding an appeal, relative to the length of the sentence: R. v.
Baltovich (2000), 47 O.R. (3d) 761 (C.A.), at paras. 41-42. Where it
appears that all, or a significant portion, of a sentence will be served before
the appeal can be heard and decided, bail takes on greater significance if the
reviewability interest is to remain meaningful. In such circumstances, however,
where a bail order is out of the question, appellate judges should consider
ordering the appeal expedited under s. 679(10) of the Code. While this
may not be a perfect solution, it provides a means of preserving the reviewability
interest at least to some extent.
[49]
In the final analysis, there is no precise
formula that can be applied to resolve the balance between enforceability and
reviewability. A qualitative and contextual assessment is required. In this
regard, I would reject a categorical approach to murder or other serious
offences, as proposed by certain interveners. Instead, the principles that I
have discussed should be applied uniformly.
[50]
That said, where the applicant has been
convicted of murder or some other very serious crime, the public interest in
enforceability will be high and will often outweigh the reviewability interest,
particularly where there are lingering public safety or flight concerns and/or
the grounds of appeal appear to be weak: R. v. Mapara, 2001 BCCA 508,
158 C.C.C. (3d) 312, at para. 38; Baltovich, at para. 20; Parsons,
at para. 44.
[51]
On the other hand, where public safety or flight
concerns are negligible, and where the grounds of appeal clearly surpass the
“not frivolous” criterion, the public interest in reviewability may well
overshadow the enforceability interest, even in the case of murder or other
very serious offences.
[52]
Before applying these principles to the case at
hand, I propose to address the principles that govern a review hearing under s.
680(1) of the Code.
C.
The Review Hearing Under Section 680(1) of the
Criminal Code
[53]
In this case, s. 680(1) of the Code
operates as a review mechanism for an order of a single judge of the Court of
Appeal made under s. 679(3). I note, however, that the provision applies as
well to certain pre-trial bail orders made by superior court judges for various
offences, including murder. For convenience, s. 680(1) is reproduced below:
680 (1) A decision made by a judge under section 522 or subsection
524(4) or (5) or a decision made by a judge of the court of appeal under
section 261 or 679 may, on the direction of the chief justice or acting chief
justice of the court of appeal, be reviewed by that court and that court may,
if it does not confirm the decision,
(a) vary the decision; or
(b) substitute such other decision as, in its opinion, should have
been made.
[54]
As the provision makes clear, the review process
consists of two stages: first, an initial vetting by the chief justice; and
second, a review by the court, if directed by the chief justice. In practice,
the review will generally be conducted by a panel of three judges, as it was in
this case.
[55]
The nature of the review and the standard to be
applied by the panel in deciding whether to interfere with the impugned order
are factors that the chief justice is likely to take into account in carrying
out his or her initial screening function. Accordingly, I find it useful to
address the review panel’s mandate before addressing the chief justice’s
screening function.
(1)
Panel Review
[56]
The parties disagree on the principles governing
a s. 680(1) panel review. Mr. Oland and the intervener Criminal Lawyers’
Association (Ontario) (“CLA”) submit that a standard of correctness should
apply, meaning that the panel should engage in a robust review of the record
and come to its own independent determination, irrespective of whether
the single judge’s decision was tainted by legal error. The respondent Crown and
the Attorneys General of Ontario and Alberta submit that a more deferential
standard is appropriate — one in which an error of law or principle must be
found before intervention will be warranted.
[57]
In support of their position, Mr. Oland and the
CLA make two main submissions. First, they point to ss. 520 and 521 of the Code
— the bail review provisions that apply at the trial stage. Unlike s. 680(1),
those provisions require the applicant to “show cause” to succeed on a bail
review. In St-Cloud, this Court observed that the words “show cause”
signal a less interventionist, more deferential approach to bail reviews at the
trial stage. In doing so, the Court noted the absence of similar language in s.
680(1) (paras. 97-104). Hence, it is argued that s. 680(1) should be
interpreted as invoking a less deferential standard than the standard
applicable at trial.
[58]
I would not give effect to this argument. While
the words “show cause” are not found in s. 680(1), I am not convinced that
their absence is as significant as Mr. Oland and the CLA suggest. In the
context of a review provision, I would have expected more explicit language
than the language used in s. 680(1), if Parliament intended the review to be a
process in which the panel could, without more, simply substitute its opinion
for that of the judge. In so concluding, I note that in St-Cloud, at
para. 104, Wagner J. for the Court stated that his comments were not
determinative of the type of review contemplated by s. 680(1).
[59]
Second, Mr. Oland and the CLA submit that the
constitutionality of s. 679(3)(c) hinges on the existence of a robust
correctness review. They base this submission on an excerpt from Farinacci,
where Arbour J.A. stated, at p. 47:
Although its application is often not
free from difficulty, and although judges may differ in its application, it is
a standard against which the correctness of individual decisions can be
assessed. In contrast, a standardless sweep would preclude any debate regarding
the correctness of a decision made under its authority as it would
authorize judges to pursue their own personal predilections. [Emphasis added.]
[60]
I do not find this reference to be persuasive.
In Farinacci, the Court of Appeal was focused on the constitutionality
of s. 679(3)(c), a matter that does not concern us in this appeal. Moreover,
the argument assumes that correctness is the only form of meaningful review
which can protect against vagueness. While the availability of review may have
been important to the Court of Appeal in considering the constitutionality of
s. 679(3)(c), it does not follow that the nature of that review must invoke a
correctness standard along the lines suggested by Mr. Oland and the CLA. In any
event, in the absence of a constitutional challenge, I do not consider it
necessary to decide this issue beyond concluding that the comments of the Court
of Appeal are not dispositive in settling the nature of review contemplated
under s. 680(1).
[61]
Ultimately, in my view, a panel reviewing a
decision of a single judge under s. 680(1) should be guided by the following
three principles. First, absent palpable and overriding error, the review panel
must show deference to the judge’s findings of fact. Second, the review panel
may intervene and substitute its decision for that of the judge where it is
satisfied that the judge erred in law or in principle, and the error was
material to the outcome. Third, in the absence of legal error, the review panel
may intervene and substitute its decision for that of the judge where it
concludes that the decision was clearly unwarranted.
[62]
This approach allows for meaningful review while
extending a measure of deference to the judge’s decision. It also achieves
symmetry with the review process at the trial stage, save for those offences
identified in s. 469 of the Code, for which the review process is
governed by s. 680(1). This symmetry is important because, as Gary Trotter
explains in The Law of Bail in Canada, it avoids an anomaly that would
otherwise result:
Focusing on the review of
pre-trial bail orders, endorsing a correctness standard in the application of
s. 680 creates differential standards of review for s. 469 vs. non-469
offences. It will allow a more generous scope of review in respect of the most
serious offences in the Criminal Code . . . . There is no principled
reason that supports a situation where someone detained on a murder charge
enjoys a broader scope of review under s. 680 when compared to a person charged
with manslaughter or attempted murder (both non-s. 469 offences) who is dealt
with under the narrower s. 520 . [p. 8-31]
(2)
The Chief Justice’s Discretion to Direct a
Review
[63]
There is no formal procedure in the Code governing
the chief justice’s decision to direct a panel review. We are told that courts
of appeal have adopted different approaches and levels of formality. The
procedural aspects of the gatekeeping function are not before us and I do not
propose to address them. Some guidance can, however, be given as to the test a chief
justice should apply in deciding whether to direct a panel review.
[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.
V.
Application to This Case
[65]
By all accounts, aside from the seriousness of
the offence for which Mr. Oland was convicted, he presented as an ideal
candidate for bail. The notoriety of this case, which stemmed largely from his
prominence in the community, and any uninformed public opinion about it, were
rightly ignored by the appeal judge. Mr. Oland, I emphasize, was entitled to
the same treatment as someone less prominent.
[66]
In the circumstances, there is considerable
merit to Mr. Oland’s submission that if he did not qualify for release,
no one convicted of a similarly serious offence would ever be released, absent
a showing of unique or exceptionally strong grounds of appeal. That cannot be
right. Parliament did not restrict the availability of bail pending appeal for
persons convicted of murder or any other serious crime and courts should
respect this. Thus, for the purposes of s. 679(3)(c), even in the case of very
serious offences, where there are no public safety or flight concerns and the
grounds of appeal clearly surpass the “not frivolous” criterion, a court may
well conclude that the reviewability interest overshadows the enforceability
interest such that detention will not be necessary in the public interest.
[67]
Every case is different and there may be
operative factors in other cases, such as a prior criminal record, public
safety and flight risk concerns, or a weaker release plan, which could raise
concerns warranting detention. Emphatically, a contextual analysis that can
account for these differences is required.
[68]
In this case, the appeal judge was satisfied
that there were no appreciable public safety or flight risk concerns and the
grounds of appeal were “clearly arguable” — which I take to mean that they
clearly surpassed the “not frivolous” criterion. Those findings are not
challenged on appeal. In addition, the appeal judge overlooked what I consider
to be an important finding made by the trial judge, namely, that in the circumstances,
Mr. Oland’s crime gravitated more toward the offence of manslaughter than to
first degree murder. This finding was important because it served to lessen Mr.
Oland’s degree of moral blameworthiness, thereby attenuating the seriousness of
the crime and hence the enforceability interest. In my view, the cumulative
effect of these considerations ought to have tipped the scale in favour of
release. In other words, Mr. Oland’s detention was clearly unwarranted and the
Court of Appeal erred in failing to intervene.
[69]
While that is sufficient to dispose of this
appeal, I feel obliged to identify a legal error that the appeal judge made in
his analysis. In particular, his reasons indicate that he did not apply the
correct test in assessing the strength of Mr. Oland’s appeal and the
implications flowing from it. Much as he was satisfied that Mr. Oland had
raised “clearly arguable” grounds of appeal, this was not enough. As the
following excerpt from his reasons shows, he required more, something in the
nature of unique circumstances that would have virtually assured a new trial or
an acquittal:
In the end, the reasonable member of
the public, looking at this dispassionately, would balance the fact that the
offence for which Mr. Oland was convicted ranks among the most serious in the Criminal
Code , as well as the brutality with which the offence was committed and the
trial judge’s imposition of a life sentence, against the other factors that
weigh in favour of Mr. Oland’s release. In my respectful view, that reasonable
member of the public would find that, although the grounds of appeal may be
clearly arguable, none fall in the category of the unique circumstances that
would virtually assure a new trial or an acquittal. In the end, I am forced
to conclude that knowing all this, should Mr. Oland be released in these
circumstances, the confidence of the reasonable member of the public in the
administration of criminal justice would be undermined. [Emphasis added; para.
32.]
Respectfully, he erred in
this regard. That Mr. Oland’s grounds were “clearly arguable” was enough to
establish that they clearly surpassed the “not frivolous” criterion.
[70]
In the result, had intervening events not
rendered the appeal moot, I would have set aside Mr. Oland’s detention order
and ordered his release pending appeal. However, because the appeal is moot, I
would simply allow the appeal and make no further order.
Appeal
allowed.
Solicitors for the
appellant: Alan D. Gold Professional Corporation, Toronto;
Gary A. Miller Professional Corporation, Upper Kingsclear, New Brunswick;
Cox & Palmer, Saint John.
Solicitor for the
respondent: Attorney General of New Brunswick, Fredericton.
Solicitor for the
intervener the Attorney General of Ontario: Attorney General of Ontario,
Toronto.
Solicitor for the
intervener the Attorney General of British Columbia: Attorney General of
British Columbia, Vancouver.
Solicitor for the
intervener the Attorney General of Alberta: Attorney General of Alberta,
Calgary.
Solicitors for the
intervener the Criminal Lawyers’ Association (Ontario): Brauti Thorning
Zibarras, Toronto; Ursel Phillips Fellows Hopkinson, Toronto; Presser
Barristers, Toronto.