Decision opens curtain on how Appeal Court responds to motions for release pending appeal

By John L. Hill

Law360 Canada (October 18, 2023, 10:55 AM EDT) --
John L. Hill
John L. Hill
The adequacy of our laws allowing an accused person to be released on bail pending trial has recently been berated as “catch and release.”

The criticisms concern releasing what the public perceives as dangerous people back onto the street after police have expended considerable resources investigating and detaining a likely lawbreaker. The recent decision of Justice Bradley Miller of the Ontario Court of Appeal in R. v. A.S. 2023 ONCA 649 gives us a rare insight into how Ontario’s top court responds to motions for release pending appeal.

The applicant had been convicted of 33 counts of voyeurism and sentenced to two years’ imprisonment. He appealed on the basis that recordings on his computer were illegally obtained. He brought a motion for interim release. The Crown opposed the application, arguing that granting appeal bail would undermine public safety and public confidence in the administration of justice.

A.S. was a former RCMP officer stationed in Richmond, B.C. He had been apprehended for performing lewd acts in front of girls walking home from school. Once arrested in British Columbia, a lawful search of his premises resulted in the police finding a USB storage device with images of his Ontario offences. This resulted in his conviction. His two-year sentence was the longest term yet recorded for voyeurism offences. While on bail in British Columbia, A.S. was again charged with impersonating a police officer when he encouraged a passerby to stop a girl on her bicycle by pushing her. He posed as a police officer using his former badge and causing the person who pushed the girl to believe he was assisting police. The girl suffered a broken arm from the fall. Although charged, the matter had not been before the B.C. court. He remained on bail in B.C.

Defence counsel argued before the motion judge in Ontario that A.S. remained technically innocent. Since no prosecution had been commenced in the past year in British Columbia, the argument of laches was advanced.

These arguments were not accepted. Unlike in R. v. Mare 2023 ONCA 640, this was not a case where charges were withdrawn and could not be considered without proof of the allegations. A.S.’s charges are pending despite the delay of the British Columbia authorities.

The important considerations under section 679(3)(c) of the Criminal Code are public safety and public confidence (R. v. Oland 2017 SCC 17). The Crown urged denial of appeal bail under both branches.

To establish a breach of public safety, the individual charged with a crime must pose a “substantial likelihood” of committing an offence; there must be substantial likelihood of endangerment of public safety; and detention must be in order to protect the public (R. v. Morales [1992] 3 S.C.R. 711). When looking at public confidence, it is necessary to consider enforceability. Will the public be satisfied that the police and the courts are ensuring dangerous people are not freed to exploit others?

On the public safety consideration, defence counsel suggested the court look to the behaviour of A.S. while on bail in British Columbia. However, the court considered that the applicant’s pre-bail conduct from 2011 until his arrest in 2019 was a relevant consideration. The applicant had a lengthy history of premeditated acts of domination of women and girls for his own sexual gratification. He kept a USB manifesting his anti-social behaviour all the while his primary surety, his wife, was unaware of his misconduct and unable to manage it.

Public confidence in the administration of justice can also be damaged by granting appeal bail. If not released, his two-year sentence could well be substantially served before an appeal is heard making the appeal unimportant if not moot. Yet, since the appeal, based on the constitutionality of the seizure of the USB device, is not a complex argument, an appeal can be argued relatively quickly. Furthermore, the strength of the argument that the USB seizure was illegal was argued and rejected at trial with no apparent error in principle established. It is not likely to be a precedent-setting decision. Public confidence can be maintained by having the appeal held quickly with the appellant in custody.

What appears more telling in the judgment is not the legal analysis of the weighing of the factors set out in the Code but rather the attitude of the offender. That seemed to carry significant weight. Justice Miller concluded: “The applicant does not appear to have taken any responsibility or demonstrated any appreciation of the gravity of his conduct or its impact on other people. The enforceability considerations outweigh the reviewability interest, and I conclude that releasing the applicant would undermine confidence in the administration of justice.”

Our lawmakers are currently being asked to amend bail procedures to curtail “catch and release.” Maybe how applicants for bail present themselves is far more important than procedural guidelines set out in the Code.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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