Public Interest is Not Dead

Kim Madsen was convicted of aggravated assault. He was sentenced to 40 months in jail. He appealed. He sought bail pending appeal. That request was denied: 2017 SKCA 73.

The Court of Appeal first considered whether the appeal was “frivolous” pursuant to s679(3)(a). It noted that the test represents a “very low bar”: see R v Oland, 2017 SCC 17; and R v Gill, 2015 SKCA 96 @para 15. Noting the grounds of appeal, the court concluded that the appeal was not frivolous – but, notably the court held that the merits of the appeal could also be considered under public interest:

While there may be some merit to the Crown’s position with respect to this criterion, I note the trial judge gave very serious consideration to Mr. Madsen’s defence. His oral decision encompasses some 150 transcript pages where he extensively reviews the evidence in support of Mr. Madsen’s claim to self-defence and his claim that he was not the cause of Mr. Peepeetch’s paralysis. Having regard for the seriousness with which the trial judge gave to Mr. Madsen’s defence, I am not prepared to say that the grounds of appeal from conviction are baseless, as the Crown suggests. I am, however, entitled to consider the strength of the grounds of appeal as presently put to me as part of my assessment of the public interest criterion. [Para 8].

Turning to the public interest ground pursuant to s679(3)(c), the court reflected on Oland and noted the following [see para 10 and 12]:

• Not every application for bail engages public confidence: Oland @para 29
• The more serious the crime the more public confidence will be undermined if the accused is released pending appeal: Oland @para 37
• There must be a balancing of the relevant factors including the strength of the appeal and the seriousness of the offence: Oland.

Taking into account these factors the court denied Madsen’s release pending appeal concluding that it would be contrary to the public interest. In part, this was so due to grounds of appeal which were not particularly compelling and the seriousness of the offence – as described by the court:

As a result of what happened on the night in question, Mr. Peepeetch suffered a number of fractures to his spinal area, losing all function in his lower limbs and a certain loss of strength in his arms and hands. He now needs almost constant care. The medical expert at trial testified that “it is the force of impact … which cause[d] the injury to the spinal cord” (T699). Mr. Peeepeetch will remain “essentially a paraplegic” (T691). That same expert testified that Mr. Peepeetch’s injuries were caused as “a result of [the] patient’s neck being forced up and down” (T691). [Para 11].

Madsen offers a helpful example of circumstances, albeit they seem rare, where bail pending appeal may be properly denied.

DM

Public Interest Post-Conviction

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RB was charged with two separate sets of charges related to sexual assaults. One set of charges (the first charges) related to allegations made by a three-year old complainant who was the daughter of a friend of RB's then girlfriend. The other set of charges (the second charges) related to a complainant who was four to six years old at the time of the alleged offences and was the daughter of the person he was living with.

The second set of charges came to trial first. RB was convicted. He was sentenced to 28 months. He obtained bail pending appeal.

RB was then convicted in relation to the first set of charges. in relation to those charges RB was sentenced to four years.

RB once again sought bail pending appeal: 2014 ONCA 722. 

In considering the request for bail pending appeal, the court noted the test:

1. his appeal is not frivolous;
2. he will surrender in accordance with the terms of the release order; and
3. his detention is not necessary in the public interest.

The court then cited the governing principles from R v Manasseri, 2013 ONCA 647:

The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48. 

Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal:  Farinacci, at p. 48.

But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at stake:  Farinacci, at p. 48.

The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326.  As a result, release of an applicant pending appeal of a murder conviction is rare:  Baltovich, at para. 20.  But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release:  Baltovich, at para. 20; R. v. Parsons (1994), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187.

The court reviewed the merits of the appeal and concluded that while it was not frivolous, it was a weak appeal. In considering the public interest the court offered the following:

In my view, as expressed above, the applicant has a weak appeal. I balance this view against the fact that the accused was convicted of serious crimes against vulnerable young children and that the applicant has received a fairly lengthy sentence.

I find that the combination of convictions for serious offences, a fairly lengthy sentence, and a weak appeal, demonstrate that the immediate enforcement of the judgement below should be of paramount concern. Therefore, the public interest balance required by Farinacci favours immediate enforcement of the sentence rather than judicial interim release. [@22-23].

The court denied the application for bail pending appeal.

DGM

Bail Pending Appeal: The Application of the Public Interest Ground in Domestic Violence Cases

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Evans Bedzra was convicted of 36 counts in relation to two complainants. In brief, he was convicted of assaulting and abusing two women with whom he had been in a relationship. The charges included assault, assault with a weapon, assault causing bodily harm, criminal harassment, mischief and breach of probation. His unsuccessful defence was a blanket denial. Bedzra was sentenced to a global sentence of three years less pre-sentence credit of one year for 133 days of pre-sentence custody—for a balance of two years less a day.

Bedzra launched an appeal against conviction and sentence and sought bail pending appeal: 2014 ONCA 408.

The Test for Bail Pending Appeal in Manasseri

In Chambers, Lauwers, J.A. commenced his consideration of the application by reviewing the relevant test recently summarized by Watt J.A. in R. v. Manasseri, 2013ONCA647:

Under section 679(3) of the Criminal Code, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of the chambers judge:

i. that the appeal is not frivolous;

ii. that the applicant will surrender into custody in accordance with the terms of the release order; and

iii. that the applicant’s detention is not necessary in the public interest.

…

An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.

…

The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.

But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at state [sic]: Farinacci, at p. 48.

The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187. [Emphasis added] [Para. 4]

The Merits of the Appeal and Mootness

In the case, the Crown conceded that the appellant, Evans Bedzra, would surrender in accordance with his conditions of release, if granted. The court accepted this concession leaving the remaining two grounds to be considered.

Lauwers, J.A. then addressed whether the appeal was frivolous or, in other words, whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship to the applicant if he were to be detained in custody.

While Lauwers J.A. largely rejects in seriatim the proposed grounds of appeal against both conviction and sentence, he does note that the practical issue with this appeal is that by the time the proposed appeal is heard, Bedzra will have served a substantial portion of his sentence if not granted bail pending appeal. The refusal to grant bail pending appeal would essentially render the appeal moot thereby causing him unnecessary hardship.

The Public Interest Ground Applied

In relation to public interest ground, the applicant argued that the Farinacci factors [cited above in Manasseri] favoured the immediate enforcement of judgments should only be applied when the sentence imposed is lengthy. The Crown in Chambers responded that “domestic violence is a very serious matter. Domestic violence is the kind of crime that is hard to detect, quite often because the victims hide the effects of the crimes, downplay them, and recant when they do complain. All of these dynamics are present in this case.” [Para. 21]

Lauwers J.A. agreed with the Crown’s submission:

…The applicant committed these acts of domestic violence while he was on probation for a conviction on the same ground. He committed a number of acts of violence against two women over a lengthy period of time. He appears to constitute a continued risk, since, according to the pre-sentence report, he has no insight into his personal deficiencies. His tendency, as the trial judge noted, is to minimize the seriousness of his actions and to blame others. This is exactly the same “blame the victim” attitude that is shared by one of his proposed sureties, so it is highly doubtful that his sureties will adequately supervise him. The victim impact statements demonstrate the trauma that the applicant has caused and record plainly the fear that the complainants continue to experience.  [Para. 22] [Emphasis added]

After citing the Crown’s concern regarding the unrealistic nature of the plan for release, Lauwers J.A. gave effect to the public interest ground in this case of domestic violence in denying Evans Bedzra bail pending appeal:

In my view, the convictions constitute serious crimes against the person. Home invasions accompanied by violence are especially unnerving for communities and traumatic for victims. The grounds for the conviction appeal are barely arguable. I find that the public interest balance required by Farinacci favours continued enforcement of the sentence rather than judicial interim release. The appeal can be scheduled quickly on an expedited basis once perfected. [Para. 24] [Emphasis added]

Interestingly, Lauwers J.A.’s application of the Farinacci factors favours continued enforcement of the sentence in the context of this case of domestic violence where the grounds to be argued are “barely arguable” even where denial of bail will likely render the appeal moot.

BCH

New & Notable: Anesthesiologist Abusing Sedated Patients

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Until the Ontario Superior Court’s decision in R v Doodnaught, 2014 ONSC 1196, there have been no reported cases in Canada on sentencing of an anesthesiologist who sexually assaulted his sedated patients during various medical proceedings [para 26].

Doodnaught was convicted of sexually assaulting 21 female patients. The victims were between the ages of 25 to 75. The sexual acts perpetrated on them included kissing, fondling, and forced fellatio. Although three formal complainants were made during the time period in the indictment, Doodnaught had faced no repercussions; the effects of the anesthesia were blamed and Doodnaught denied the allegations. McCombs J found that the dismissal of these complaints emboldened Doodnaught and escalated the frequency of his crimes. In fact, in the ten days prior to his arrest, no less than four women were sexually assaulted; three of them by forced fellatio. 

McCombs J found held that “the power imbalance between” Doonaught “and his victims was absolute” [para 8]. Sedated but aware of what was happening to them, the impact on the victims has been devastating.   The victim impact statements described profound psychological effect, sexual dysfunction and a distrust of the medical profession [para 13].  

At the time of sentencing Doodnaught was 65 years old with no prior criminal record.  McCombs J held that the “court has a duty to send a clear message that reflects society’s abhorrence for the conduct, and serves as a deterrent to others in a position of trust who might be inclined to prey upon vulnerable, sedated patients” [para 29].

Doodnaught was sentenced to 10years.

In March of 2014 Doodnaught sought release pending the hearing of his appeal. The notice of appeal alleges some 100 errors by the trial judge - all of which challenge the correctness of the findings of fact [2014 ONCA 172 @paras 7-8].

The Crown argued that Doodnaught’s ongoing detention was necessary and in the public interest. LaForme JA agreed and noted the following:

(…) on the record before me, his grounds of appeal are weak and not likely to succeed, although some may be arguable.  In cases like this, the need for immediate enforcement of the judgment outweighs the need to review the decision. Release, therefore, would not be in the public interest [ONCA para 24].

Doodnaught submitted the same 49 letters of support that were filed on sentencing. The point was to illustrate that some small segment of the public believed in his innocence.  LaForme JA held that:

These opinions should be accorded little weight given that a contrary opinion is no doubt held by the 21 victims and their families and associates.  The letters thus do not assist very much in gauging the public interest in this case [ONCA para 19].

 LT