COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Gingras; R. v. Porisky,

 

2012 BCCA 467

Date: 20121120

Docket: CA040191; CA039937

Docket: CA040191

Between:

Regina

Respondent

And

Jean Gaetan Gingras

Appellant

restriction on publication:  pursuant to an order made under sections 486.5(1) and 486.5(9) of the criminal code any information that could identify any undercover police officers including any pseudonyms used by the undercover police officers involved shall not be published, broadcast or transmitted in any way

- and -

Docket: CA039937

Between:

Regina

Respondent

And

Russell Anthony Porisky

Appellant

 

Before:

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Kirkpatrick

 

The Honourable Mr. Justice Tysoe

 

The Honourable Mr. Justice Harris

On review from: British Columbia Court of Appeal (Chambers),
September 5, 2012 (R. v. Gingras, 2012 BCCA 370,
Vancouver Docket CA040191) and July 12, 2012
(R. v. Porisky, 2012 BCCA 309, Vancouver Docket CA039937)

Counsel for the Appellant,
Jean Gaetan Gingras:

G. D. McKinnon, Q.C.

Counsel for the Appellant,
Russell Anthony Porisky:

P. M. McGowan and K. A. McCleery

Counsel for the (Crown) Respondent:

W. P. Riley and M. Ogi-Harris

Place and Date of Hearing:

Vancouver, British Columbia

October 22, 2012

Place and Date of Judgment:

Vancouver, British Columbia

November 20, 2012

 

Written Reasons by:

The Honourable Mr. Justice Donald

Concurred in by:

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Harris

 


 

Reasons for Judgment of the Honourable Mr. Justice Donald:

Introduction

[1]             The appellants applied for appeal bail and were refused, mainly because of the weakness of their grounds of appeal:  R. v. Gingras, 2012 BCCA 370, per Finch C.J.B.C. in chambers; R. v. Porisky, 2012 BCCA 309, per Chiasson J.A. in chambers.  The Chief Justice directed a review of these decisions under s. 680 of the Criminal CodeR. v. Porisky, 2012 BCCA 371.

[2]             The appellants ask the Court to reconsider how we treat the strength of the grounds of appeal in deciding bail applications and to order their release.

[3]             We heard these matters as a five-member division to resolve an inconsistency in our jurisprudence.  The problem is whether the strength of the grounds of appeal should be considered in bail applications and if it is a relevant factor, how it should be used.  Chief Justice Finch described the issue this way in the s. 680 direction:  Porisky, 2012 BCCA 371: 

[4]  The question of whether the apparent weakness of an appeal is a proper consideration in assessing the public interest is said to arise from the decision of a chambers judge in this Court, R. v. B.S.B., 2008 BCCA 483 at para. 25.  That judgment, on this point, has subsequently been referred to in R. v. Chu, 2009 BCCA 377; R. v. Schiel, 2011 BCCA 160, [2011] B.C.J. No. 598; and R. v. Bath, 2012 BCCA 221, [2012] B.C.J. No. 978.

[5]  This question was recently addressed before me in submissions in R. v. Gingras, 2012 BCCA 370, where I held that the weakness of an appeal was a proper consideration to take into account on the enforceability aspect of the public interest criterion.  I said:

[21]  The main concern on the enforceability aspect is public confidence in the administration of justice, which calls in question the strength of the appeal. The strength of the appeal can be an important factor either way. The weaker the grounds of appeal, the more enforceability weighs in the balance. The stronger the grounds of appeal, the less enforceability weighs in the balance.

[6]  Given the views expressed on this matter by other members of the Court, it appears to me that there may be some uncertainty in the law as to whether weakness of an appeal is an appropriate consideration in the balancing of reviewability and enforceability.

[Emphasis added.]

[4]             The uncertainty lies in the various ways justices have expressed the use to which the strength of the grounds should be put.  Some have said that the merits analysis works only one way, that is, while strong grounds may support an application for bail, weak grounds should not count against the applicant. 

[5]             The appellants say we should reconsider bringing the merits into the question at all and to follow the approach of the Newfoundland and Labrador Court of Appeal in such cases as R. v. Allen, 2001 NFCA 44, 158 C.C.C. (3d) 225, per Wells C.J.N. in chambers, following R. v. Parsons (1994), 117 Nfld. & P.E.I.R. 69, 30 C.R. (4th) 169 (C.A.), per Marshall J.A. in chambers, aff’d (1994), 118 Nfld. & P.E.I.R. 353, 30 C.R. (4th) 189 (C.A.), where it is held that examination of the merits is limited to determining whether the grounds are frivolous.  I am not persuaded that we should follow that line of authority.

[6]             The appellants propose alternatives which accept that the grounds are relevant but that either a one-way approach should be adopted or that consideration of the grounds be limited to situations where there are concerns for public safety.  In this regard, the appellants commend to us an approach developed in R. v. Rhyason, 2006 ABCA 120, 384 A.R. 146, per Berger J.A. in chambers, and followed in Manitoba, R. v. Roussin, 2011 MBCA 103, [2012] 5 W.W.R. 440, per Scott C.J.M. in chambers, and in Prince Edward Island, R. v. Lauer, 2009 PECA 25, 291 Nfld. & P.E.I.R. 332, per McQuaid J.A. in chambers.

[7]             This Court has said in several decisions that the strength of the grounds must be weighed in opposition to the seriousness of the offence.  I think it necessarily follows from those decisions that the strength of the grounds must be able to work for and against the applicant.  In other words, it is not a one-way street.  In respect of the Rhyason approach, I am not satisfied that it takes into account all the relevant factors.  See the leading case of R. v. Mapara, 2001 BCCA 508, 158 C.C.C. (3d) 312 [Mapara].  

[8]             It was decided in Mapara, following R. v. Farinacci (1993), 109 D.L.R. (4th) 97, 86 C.C.C. (3d) 32 (Ont. C.A.), that the public interest component in s. 679(3)(c) of the Criminal Code involved a balancing of the principle of enforceability with the opposing principle of reviewability.  On this scheme, the seriousness of the offence and the strength of the grounds are juxtaposed as competing elements in a corresponding relationship.  Serious offences will require strong grounds for reviewability to prevail over enforceability.  Since weak grounds will not overcome the principle favouring detention, it is unavoidable that the strength of the grounds must be considered for and against the appellant.

[9]             Having reviewed the individual applications, I would dismiss Gingras’s application and release Porisky on conditions.

Issues

[10]         I will address the issues as follows:

1.       History of the jurisprudence on appeal bail

2.       Inconsistency

3.       Which path to follow?

4.       Review of Gingras’s application

5.       Review of Porisky’s application

1.  History of the Jurisprudence

[11]         A good place to start in reviewing the modern history of appeal bail is the case of R. v. Morales, [1992] 3 S.C.R. 711, where the Supreme Court of Canada held that the phrase “public interest” in the Code provision for pre-trial bail was unconstitutionally vague.  Chief Justice Lamer, for the majority, wrote at 732:

As currently defined by the courts, the term “public interest” is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way.

            Nor would it be possible in my view to give the term “public interest” a constant or settled meaning.  The term gives the courts unrestricted latitude to define any circumstances as sufficient to justify pre-trial detention.  The term creates no criteria to define these circumstances.  No amount of judicial interpretation of the term “public interest” would be capable of rendering it a provision which gives any guidance for legal debate.

            As a result, the public interest component of s. 515(10)(b) violates the s. 11(e) of the Charter because it authorizes a denial of bail without just cause.

[12]         A year later, the same argument came to the Ontario Court of Appeal in relation to the “public interest” criterion in the provisions for appeal bail:  R. v. Farinacci.

[13]         A five-member division in that case considered the language in s. 679(3) of the Code:

(3)  In the case of an appeal referred to in paragraph (1)(a) or (c), 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 or application for leave to 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.

[Emphasis added.]

[14]         For the court, Madam Justice Arbour defined the boundaries of public interest and created an analytical method which gave sufficient certainty to the phrase “public interest” to overcome the constitutional vagueness argument at 113-114:

            Section 679(3)(c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decision granting or denying bail pending appeal can be reviewed.  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 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.

[15]         This formulation has gained widespread but not universal acceptance in Canada.  It has evolved into this scheme: public interest involves both safety and confidence in the administration of justice.  Public confidence engages two competing elements: enforceability and reviewability.  The most important factor bearing on enforceability is the seriousness of the offence.  Reviewability depends on a number of factors but if the offence in question is very serious, the strength of the grounds may be decisive. 

[16]         This Court followed Farinacci in Mapara.  The Court reviewed an order releasing an appellant convicted of first degree murder.  After quoting the same passage from Farinacci, Madam Justice Ryan, for the Court, wrote:

[33]  In R. v. Baltovich [47 O.R. (3d) 761] (31 March 2000), No. C12090 (Ont. C.A., in Chambers), Rosenberg J.A. quoted the above passage from Farinacci with approval.  Noting the appellant in that case was a mature offender with no previous record, and there was no suggestion he represented a danger to the public or would interfere with the administration of justice, Rosenberg J.A. concluded (para. 25) that “the matter that is most influential on the question of the public interest is the strength of the grounds of appeal.”

[34]  I agree with the analyses in Farinacci and Baltovich.  Public confidence in the administration of justice requires that verdicts, properly rendered, be enforced.  Where an appellant establishes that he or she does not pose a flight risk and is unlikely to re-offend, the public interest also acknowledges that actual punishment for a crime be avoided if strong grounds exist for setting aside the verdict. 

[35]  In Demyen when Culliton C.J.S. speaks of the necessity for the appellant to show “something more” than the requirements of paragraphs (a) and (b) of s. 679(3) to establish that his detention is not necessary in the public interest, he must be referring to the necessity for the appellant to show that the principle of enforceability is outweighed by that of reviewability.  In my view the strength of the interest of reviewability must primarily be measured by examining the likelihood of the success of the appeal.  Very strong grounds will tip the scale in favour of reviewability.

[36]  Depending on the demonstrated strength of the grounds, other factors, such as the circumstances of the offence – for example, premeditated violence – and inordinate delay will be matters to weigh in the balance.  The essential question, however, will be whether the appellant has been able to establish that enforceability is outweighed by reviewability.

[37]  It is, of course, difficult for a Chambers justice to accurately assess grounds of appeal without more than the submissions of counsel.  It may be necessary in certain cases to require a procedure designed to further the accuracy of that determination.  In Baltovich counsel provided the Chambers justice with a transcript of the charge to the jury and the appellant's factum.  Whether this material should be provided in any particular case should be left to counsel and the Chambers justice hearing the application.

[38]  In the end, I agree with counsel for the Crown that bail for first degree murder will be granted in the rarest of cases.  Not because it is a principle that emerges from the cases, but because that will generally be the result when one balances the dictates of enforceability and reviewability found in the public interest aspect of s. 679(3) of the Code.  Nor does the Code favour release as suggested by the appellant.  Release is favoured only after the appellant establishes that he or she meets the criteria set out in s. 679(3).

[17]         Mapara was affirmed in R. v. Crockett, 2001 BCCA 707, 161 B.C.A.C. 114, and more recently applied in R. v. Ruffolo, 2011 BCCA 359, 309 B.C.A.C. 247.  Ruffolo reviewed the grant of bail in a first degree murder case.  The Court reversed the order on the basis that the justice in chambers did not properly consider the strength of the grounds.  In Ruffolo, the Court said:

[25]  In her reasons for judgment, the chambers judge alluded to the principles of enforceability and reviewability as set out in Farinacci and Mapara but failed to give effect to the weakness of the grounds of appeal as an aspect of those principles, instead relying solely on her conclusion that the appellant posed no danger to the public.  In our view, this was insufficient.  The fact that Ms. Ruffolo may not be a danger to the public addresses only part of the public interest.  The strength of the grounds of appeal is a significant part of the analysis.  In this Court, the appellant stands convicted as a person who committed the cold and calculated murder of her husband.  In those circumstances, if her grounds of appeal, though arguable, are weak, then in spite of the fact that she may not pose a danger to other members of the public, the principle of enforceability must prevail, and Ms. Ruffolo should not be admitted to bail pending her appeal.

[18]         From these cases, it could fairly be said that our approach to public interest is settled and consistent.  However, several decisions in chambers are said to be inconsistent with the main body of our jurisprudence.

2.  Inconsistency

[19]         Well before Morales and Farinacci were decided, Mr. Justice Wood (as he then was), in chambers, expressed in R. v. Hanna (1991), 3 B.C.A.C. 57, a view which has been taken up by other justices, perhaps only in a general way, without reconciling that view with our later decisions.  Mr. Justice Wood was concerned about the fair process implications of applying weak grounds of appeal against an applicant at an early stage of the appeal before the arguments could be fully developed and articulated.  He wrote: 

[13]      Before turning to an assessment of that risk in this case, I must deal with the argument raised by Crown counsel that even though I might conclude that the appeal was not frivolous, I could none the less take into account the limited likelihood of it succeeding when considering whether the appellant has established that his detention is not necessary in the public interest.  I was at first attracted to this argument, but on reflection I am of the view that such a consideration can have very limited relevance on the public interest issue.  I accept that an appellant who can demonstrate that his or her appeal is very likely to succeed may thus more easily meet the third test in s. 679(3).  But given the superficial examination which must necessarily be accorded the grounds of appeal advanced on an application such as this, and the fact that other more substantial grounds of appeal may reveal themselves once counsel has had an opportunity to examine the transcript of the trial, I do not think it would be fair to the appellant if I were to draw any inference against him, on this phase of the application, because I am of the view that his grounds of appeal as presently stated are unlikely to succeed.

[Emphasis added.]

[20]         The appellants argue that an echo of Hanna can be heard in this Court’s decision in R. v. O’Connor (1997), 89 B.C.A.C. 152.  In reviewing a refusal of bail in an historical sexual assault case, Mr. Justice Macfarlane said:

[14]  Madam Justice Arbour [in Farinacci] was writing her opinion in the context of a constitutional challenge to the validity of s. 679(3)(c).  The question she was addressing in the foregoing passage was whether the words, “public interest” were so vague as to create a standardless sweep.  She held that s. 679(3)(c) provides a clear, yet flexible standard.  She did not decide that weak grounds of appeal, by themselves, was a basis for refusing release.

[15]  What is in the public interest in a particular case depends upon the circumstances.

[Emphasis added.]

[21]         With respect, I do not agree that O’Connor supports the proposition that the strength of the grounds can work only for and never against an appellant.  I interpret the judgment as holding that all the relevant factors going to public interest must be considered and that it is wrong to isolate weak grounds as the sole basis for refusing bail. 

[22]         I turn now to consider R. v. B.S.B., 2008 BCCA 483, 263 B.C.A.C. 51 (Chambers), the decision said to manifest an inconsistency in our jurisprudence.

[23]         In the course of giving oral reasons for granting bail in an appeal from a conviction of sexual assault, the chambers justice gave a concise summary of the public confidence element:

[24]  The second factor, that is the public confidence in the administration of justice, involves an assessment of the need to maintain a balance between the competing dictates of enforceability and reviewability.  Enforceability refers to the immediate execution of a sentence so that the public may have confidence that convicted persons serve their sentence.  That principle, however, must be weighed against the principle of reviewability.  Reviewability is the need for verdicts to be reviewed, and corrected if necessary, in order to ensure that those who are unlawfully convicted are not deprived of their liberty. 

[25]  The strength of the grounds of appeal is a relevant consideration in regard to the public interest factor:  stronger grounds of appeal weigh in favour of reviewability of conviction and sentence, although an inference against the appellant cannot be fairly drawn on the basis of a finding that the grounds of appeal are weak: R. v. Mapara, [2004] B.C.J. 1126 [sic], 199 B.C.A.C. 280 (C.A.) at paras. 34-41; R. v. Nguyen, [1997] B.C.J. No. 2121, 97 B.C.A.C. 86 (C.A.) and Hanna

[26]  Other relevant considerations include the nature and circumstances of the offence, the likelihood of further offences occurring especially violent ones, the appellant’s prospects of rehabilitation, the appellant’s criminal record and personal circumstances, the appellant’s performance during pre-trial bail, and the potential for a lengthy term of imprisonment.

[Emphasis added.]

[24]         For clarity, it should be noted that the reference to R. v. Mapara above is to the decision of Chief Justice Finch in chambers on Mapara’s application for bail pending his appeal to the Supreme Court of Canada in 2004 and not to the leading case decided by Ryan J.A. in 2001.  I am unable to find anything in the Chief Justice’s reasons in the later Mapara decision that deviates from what he said in R. v. Crockett which, as mentioned, followed the earlier Mapara decision. 

[25]         The other two cases cited in B.S.B., Hanna and Nguyen, were overtaken when we adopted Farinacci

[26]         In Nguyen (1997), 119 C.C.C. (3d) 269, 97 B.C.A.C. 86, per McEachern C.J.B.C. in chambers, the Chief Justice expressed an open-ended view of public confidence:

[15]  In my view, the “public interest” requirement found in both ss. 679(3)(c) and 515(10) means that the court should consider an application for bail with the public in mind.  I do not agree, however, that these provisions create a substantial legal burden in the same sense as do ss. 679(3)(a) and (b).

[16]  Considering bail applications with the public in mind can mean different things in different contexts.  In some cases, it may require concern for further offences.  In other cases, it may refer more particularly to public respect for the administration of justice.  It is clear, however, that the denial of bail is not a means of punishment.  Bail is distinct from the sentence imposed for the offence and it is necessary to recognize its different purpose which, in the context of this case, is largely to ensure that convicted persons will not serve sentences for convictions not properly entered against them.

* * *

[18]  I have examined a representative number of authorities.  These include: R. v. Koehn (1996), 74 B.C.A.C. 77 (C.A.); R. v. K.(K.) (1997), 113 C.C.C. (3d) 52 (B.C.C.A.); R. v. Boos, [1997] B.C.J. No. 289 (QL), File No. CA022696, February 6, 1997 [reported 142 W.A.C. 291]; R. v. O'Grady, [1997] B.C.J. No. 1399 (QL), File No. CA023203, June 13, 1997 [reported 117 C.C.C. (3d) 136]; R. v. Koehn, [1997] B.C.J. No. 1568 (QL), (C.A.) B.C.C.A. V02732, July 2, 1997 [reported 116 C.C.C. (3d) 517]; R. v. O'Connor (1997), 89 B.C.A.C. 152, 145 W.A.C. 152 (C.A.).  In some of these cases the appellant was granted bail and in other cases detention was ordered.  The principle that seems to emerge is that the law favours release unless there is some factor or factors that would cause “ordinary reasonable, fair-minded members of society” (per O’Grady at 4 [p. 139 C.C.C.]), or persons informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case (per R. v. K.(K.) at 54), to believe that detention is necessary to maintain public confidence in the administration of justice.

[27]         This was rejected in Mapara where Ryan J.A. wrote: 

[31]  The Demyen [R. v. Demyen (1975), 26 C.C.C. (2d) 324] and Nguyen cases are helpful but they lack a discussion of the objectives of s. 679(3)(c).  An understanding of its underlying objectives is necessary to formulate the factors, or circumstances, which the court must consider in determining whether the public interest criterion in the section has been met.  It is not enough to say that each case will depend on its circumstances, there must be an articulated principle or principles upon which to rest the decision.

[Emphasis added.]

[28]         Nevertheless, the above-noted passage in B.S.B. has been quoted with approval by a number of justices in chambers as an authoritative statement of the law on public confidence:   R. v. Chu, 2009 BCCA 377, 275 B.C.A.C. 150; R. v. Pierce, 2010 BCCA 491, 292 B.C.A.C. 314; R. v. Schiel, 2011 BCCA 160; R. v. Bath, 2012 BCCA 221; U.S.A. v. Ibrahim, 2012 BCCA 278, 323 B.C.A.C. 234.

[29]         Of those decisions, only one, R. v. Bath, suggests that an inconsistency has developed.  In Bath, the chambers justice wrote:

[24]  The Crown contends that, based upon the reasoning in R. v. Mapara, 2004 BCCA 310, 199 B.C.A.C. 280, the strength of the appeal is a factor to be considered both for and against the appellant on an application such as the one before me.  That contention is not supported by two recent decisions of members of this Court, sitting in Chambers on similar applications: R. v. B.S.B., 2008 BCCA 483, 263 B.C.A.C. 51 and R. v. Schiel, 2011 BCCA 160.

[30]         Since no such comment appears in the other four decisions that cited B.S.B., I am left with the impression that the justices in those four cases did not intend to disturb the Farinacci/Mapara model and that they referred to B.S.B. as a convenient summary.  Except for the “negative inference” comment, the B.S.B. passage correctly sums up the public confidence criterion.  Moreover, the comment may be open to the interpretation that weak grounds standing alone should not prejudice an appellant and if that was the meaning intended, it is not inconsistent with our decided cases. 

[31]         In any event, the controversy, such as it is, can now be laid to rest.  The strength of the grounds of appeal can work both ways.  The merits are in opposition to the seriousness of the offence; the greater the seriousness of the offence, the stronger the grounds required to shift the balance from enforceability to reviewability.  Since the strength of the grounds and seriousness of the offence are two sides of the same coin, it does not make sense to say that weak grounds cannot negatively affect a bail application.

3.  Which Path to Follow?

Reconsideration of the Orthodox Approach

[32]         The appellants urge us to reconsider the orthodox approach to the public interest criterion and to adopt the position taken by the Newfoundland and Labrador Court of Appeal.  Barring the exceptional case, that court does not consider the strength of the grounds one way or another.  In Allen, Chief Justice Wells articulates three reasons for not evaluating the merits: statutory interpretation, jurisdiction, and judicial policy.  The first reason holds that since Parliament expressly mentioned merits in the “not frivolous” test in s. 679(3)(a) and did not repeat them in subsection (c), there was no intention to include the merits in the public interest criterion.  The second reason is that courts of appeal derive their jurisdiction from statute and Parliament did not give them the power to assess the merits in s. 679(3)(c).  The third reason is the practical problem created by making an early evaluation of the merits before the appellant can put his best case forward and by expressing an opinion that may embarrass the division that finally hears the appeal.  In Allen at para. 32, Chief Justice Wells adopted the following analysis of Marshall J.A. at paras. 57-59 in Parsons

            While not absolutely foreclosing the possibility of a weighing of the strength of the grounds of appeal for the purpose of resolving the competing imperatives of enforceability and reviewability in these bail applications, it would appear that as a general rule the foregoing opinion voiced in Morin [R. v. Morin (G.P.) (1993), 60 O.A.C. 397, 19 C.R. (4th) 398 (C.A.)] is the preferable one.  As Catzman, J.A. has stressed, it certainly seems preferable to avoid expressing any assessment of the strength of the appeal beyond finding it not frivolous and to resolve the issue of the applicant’s continued detention without so doing if at all possible.

            The reasons for this are threefold.  Firstly, the Code itself in setting the arguability and lack of frivolity of the appeal as one of the criteria is signalling that concern need only be had to the possibility of the appeal’s eventual overturn.  If it had intended the probability of success to be taken into account as a prerequisite in determining whether bail pending appeal is to be granted, it would have so directedSecondly, inasmuch as the entire transcript is rarely available for bail applications, it would not be advisable for the presiding judge to express any view as to the strength of the grounds on the basis of the partial record before him or her, beyond finding that they establish an arguable case.  In the present instance, while sufficient material was available to address the threshold test whether the appeal bears some merit, a great deal of the record from this protracted trial was not before the Court.  Finally, whether or not the judge presiding over the bail application is a member of the panel which eventually hears the appeal, it is inadvisable for either counsels’ briefs to be endorsed with that judge’s assessment of the relevant strength of the grounds.

            In this application the invitation of both counsel to assess the relative strength of the grounds is, therefore, declined.  It is unnecessary to do so here as other bases are present enabling a determination whether the cases for enforcing or reviewing the conviction should have paramountcy.

[Italicized emphasis of Wells C.J.N.; underlined emphasis added.]

[33]         Later in Allen, Chief Justice Wells elaborates on the statutory interpretation point and says that considering the merits twice would make the frivolous test redundant.  In the following passage, he goes on to discuss lack of jurisdiction to evaluate the merits under s. 679(3):

[49]  Interpreting paragraph (c) of s. 679(3) to mean that a judge or a panel dealing with a question of judicial interim release pending appeal, must make a determination of the relative merit of the grounds of appeal creates another problem.  Such a determination has the effect of rendering paragraph (a) of s. 679(3) virtually redundant, if not certainly soIf the relative merit of the grounds of appeal is always a factor in determining whether detention is necessary in the public interest, then surely it is not necessary to make a determination as to whether or not the appeal or application for leave to appeal is frivolous.  An appeal that would be found, under paragraph (c), to have “overwhelming merit” as I am asked to find in this case, or even a high, reasonable or simple possibility of success cannot possibly be found to be frivolous.  If the appeal were found to have no possibility of success then, clearly, it could be said to be frivolous.  In no one of those circumstances would it be necessary to make a separate finding, under paragraph (a), as to whether or not the appeal was frivolous.

[50]  While I am reluctant to make a determination on the argument, because it was not argued before me, nevertheless, I should at least identify an argument that could be significant.  An argument could be made that, in making a determination as to the relative merits of the appeal itself, a judge or a panel dealing with judicial interim release issues would be acting in excess of jurisdiction.  No specific jurisdiction to do so is given in s. 679(3).  The only specific jurisdiction to consider the merits of the appeal granted by s. 679(3) is to determine whether or not the grounds are frivolous.  That cannot be extended to include determination of the relative merits.  While jurisdiction to decide the merits of the appeal is conferred on “the court of appeal”, that must be construed to mean those members of the court assigned the responsibility by the normal procedures and practices of the court.  It cannot be directly assumed by other members of the court, even ones dealing with ancillary matters in the same case, such as judicial interim release, in the absence of some statutory provision conferring that jurisdiction.  Nor should it be assumed, indirectly, by a declaration that it is appropriate to determine the relative merits of the appeal in the process of deciding necessity of detention in the public interest, when exercising judicial interim release jurisdiction, whether originally or on review.  Although I am not deciding it, I would have to agree that such a position is certainly arguable.

[Emphasis added.]

[34]         The appellants at bar reinforce this interpretation by referring to the “sufficient merit” requirement for bail on a sentence appeal: s. 679(4)(a), on the contention that where Parliament wanted to employ a merits test different from “not frivolous”, it clearly spelled it out.

[35]         I am not persuaded that we should follow this line of reasoning.  First of all, strength of the grounds is significantly relevant to reviewability.  To leave it out of the analysis would distort the balancing process. 

[36]         The difficulties in making a preliminary assessment of the merits – incomplete record, less than full argument, venturing an opinion on the very thing a division must decide – are all acknowledged.  But the time pressures of bail demand that the matter be addressed early so as not to defeat the purpose of the exercise.  Justices have to do the best they can lest the deserving applicant languish in jail while the arguments are perfected.  As to the embarrassment factor, I have not found that the opinions in bail decisions get in the way of our consideration of the appeal itself.  Finally, I do not find the statutory interpretation argument compelling.

[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.  The power comes from the framework developed to give effect to the public interest component.  Furthermore, the merits are routinely considered in other interlocutory motions without express statutory authority, such as extensions of time, abridgement of rules, stays of execution of fines and licence suspensions and so on.

[38]         In arriving at this opinion, I am indebted to the critique of Allen written by Professor Gary T. Trotter (now of the Ontario Superior Court): “Bail Pending Appeal: The Strength of the Appeal and Public Interest Criterion” (2001), 45 C.R. (5th) 267.

Alternative Position: A Sliding Scale

[39]         The appellants take an alternative position: if the merits are legitimately part of the public confidence analysis then the weight to be given to the merits should relate on a sliding scale to the public safety element of the case.

[40]         This was the refinement developed by Berger J.A. in Rhyason, which he expressed in this way:

[15]  In articulating the level of strength required to overcome a compelling public interest in enforceability, it is helpful to examine the full spectrum.  Where the circumstances of the offence indicate little threat to public safety, an arguable appeal is enough to grant interim release: Colville, [R. v. Colville, 2003 ABCA 133, 327 A.R. 143].  It follows that where there is a moderate public interest to enforce a conviction, the strength of the appeal must be stronger than “not frivolous”, and where there is a compelling public interest the strength of the appeal should be considerably stronger.  It follows that finding that an appeal has a “good prospect of success” may be enough to overcome a moderate concern for the protection of the public, but not enough to overcome a compelling concern for public safety.

[41]         The appellants say that Rhyason was applied in Manitoba in Roussin and in Prince Edward Island in Lauer.  Chief Justice Scott used the sliding scale metaphor in Roussin:

[34]  In my opinion, the case law is quite clear that it is entirely appropriate to take into account the strength of the potential appeal in determining whether detention is necessary in the public interest.  The authorities reviewed in this decision confirm that the balancing act between reviewability and enforceability takes place on a sliding scale and that especially strong grounds of appeal are required where there are serious concerns about either public safety or confidence in the administration of justice.  As we have seen, there are instances where applicants who were not otherwise good candidates for [judicial interim release] were successful in their application because there were compelling reasons in favour of reviewability....

[Emphasis added.]

[42]         I note, however, that Scott C.J.M. broadened the scope of the inquiry to include not only public safety but also “confidence in the administration of justice” and in that respect he did not differ from our approach.

[43]         An unqualified endorsement of Rhyason appears in Lauer where at paras. 34 and 35 McQuaid J.A. cites Rhyason and analyses the case before him in relation to public safety.

[44]         In my opinion, the sliding scale metaphor works satisfactorily but only if it embraces all that goes into the public confidence component.  In Farinacci and Mapara, public safety and public confidence are separate considerations.  The formulation by Rhyason either conflates the two or leaves out public confidence entirely by considering the seriousness of the offence only to the extent that it related to public safety.  That ignores the effect on public confidence should an appellant convicted of a very serious offence be released because he poses no immediate safety risk; see, for example, Ruffolo at para. 25, quoted above and repeated here for convenience:

The fact that Ms. Ruffolo may not be a danger to the public addresses only part of the public interest.  The strength of the grounds of appeal is a significant part of the analysis.  In this Court, the appellant stands convicted as a person who committed the cold and calculated murder of her husband.  In those circumstances, if her grounds of appeal, though arguable, are weak, then in spite of the fact that she may not pose a danger to other members of the public, the principle of enforceability must prevail, and Ms. Ruffolo should not be admitted to bail pending her appeal.

[45]         In summary, I prefer to retain all the features of the public interest criterion developed in the Farinacci and Mapara decisions, and not to follow the modifications discussed above.

[46]         I wish to make one last comment on the jurisprudential aspect of this case.  Counsel for the appellants complained that increasingly the grounds are being examined in bail hearings almost as a matter of routine.

[47]         I would discourage this trend.  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.  Creating categories of seriousness for this analysis might introduce rigidity and lead to unintended consequences.  Instead, we 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.  I do not suggest Crown counsel in this case has failed to exercise good judgment.

4.  Gingras’s Review

The Review Standard

[48]         For guidance on the standard of review under s. 680, I turn again to Mapara

[12]  In British Columbia the nature of the review under s. 680 has been stated in R. v. Wu (B.Q.) (1998), 117 B.C.A.C. 305, at para. 6, to be:

            A review under s. 680(1) of the Criminal Code is in the nature of an appeal on the record and not a hearing de novo.  While the reviewing court exercises an independent discretion and may substitute its own opinion for that of the single judge under review, it must base its review on the facts found by the single judge’s evaluation of the evidence.  It is not necessary that a reviewing court, before intervening, come to a conclusion that the decision of the single judge under review was unreasonable or that an error in principle was committed.

[13]  Although there is dicta in R. v. Dempsey, [2001] B.C.J. No. 561 (QL) (C.A.) [reported 153 C.C.C. (3d) 311], that the standard of review as set out in Wu may not be clearly settled, the clear expression of the test, as set out above, was accepted in R. v. J.W.R. (1999), 129 B.C.A.C. 232, at para. 27.  No argument was made before us that this Court should reconsider its decision in WuThus, we are bound by the facts as found by the Chambers justice, but free to substitute our own conclusions for hers if we disagree that the appellant has met the statutory criteria.

[Emphasis added.]

[49]         Mr. Riley, counsel for the respondent in both cases before us, accepts that we can disagree with the chambers justice’s opinion of the ingredients of the statutory criteria such as the seriousness of the offence and the strength of the grounds.  Many of Gingras’s arguments are framed as errors of the justice in chambers.  While this may be a convenient way to organize submissions, I observe that the review process is not a search for error unless what is argued is a misapprehension of the evidence or other patent error of fact.

The Nature of the Offences

[50]         Gingras was convicted of one count of conspiracy to traffic in cocaine and two counts of money laundering.  He was caught in a reverse sting operation with an undercover R.C.M.P. officer posing as a South American businessman.  The conspiracy was to acquire and distribute 50 kilograms of cocaine at a price of $22,000 per kilogram.  The money laundering involved cash amounts of $25,000 US and $100,000 US.  Gingras arranged for a down payment of $375,000 for the cocaine.  He indicated to the undercover officer that he wanted to set up a regular supply of 100-200 kilograms of cocaine a week.  He was sentenced to ten years’ imprisonment. 

Personal Circumstances

[51]         Gingras’s relevant personal circumstances are set out in his factum in this way:

10.  The Applicant is a 69 year old francophone from Quebec.  He has strong family ties and community support in Montreal.  He has no prior criminal record.  For over four years he was on bail awaiting trial.  He complied with all of his bail conditions while living in Montreal.  He is in frail health and in a precarious situation in prison.  He has ordered and paid for the transcripts and appeal books for his conviction appeal. 

The Grounds of Appeal

[52]         The focus of the argument on review was the strength of the grounds relating to Gingras’s position as a francophone in an English language trial. 

[53]         Chief Justice Finch summarized the grounds in the decision under review: 2012 BCCA 370:

[7]        The grounds of appeal raised are:

1.         the appellant received ineffective assistance of counsel because he was not advised of his rights under s. 530(1) of the Criminal Code to have his proceedings conducted in the French language. Counsel contends that this resulted in substantive and procedural unfairness, and a miscarriage of justice under s. 686(1)(a)(iii);

2.         the appellant was denied his right to the effective assistance of an interpreter during the trial, contrary to his rights under s. 14 of the Charter.  Coupled with this ground is an assertion that the appellant is hard of hearing, that he had difficulty understanding the interpreter who was provided, and that as a result he did not understand a large part of the trial proceedings.  Counsel asserts that as a result there was non-compliance with s. 650 of the Code which mandates that an accused be present throughout his trial proceedings;

3.         the trial judge erred in her ruling of 16 March 2012 in refusing the appellant leave to cross-examine Crown witnesses concerning many matters surrounding the police undercover operation that produced the incriminating evidence against the appellant;

4.         the learned trial judge erred in refusing to enter a stay of proceedings on the basis of entrapment and abuse of process, as a result of an error or errors of law;

5.         the learned trial judge erred in law in admitting and in relying on evidence of a guilty plea by [a co-accused] to the charge of conspiracy, in support of the Crown’s case against the appellant on the conspiracy count.

[54]         The facts asserted in Gingras’s factum relating to the language issues are:

23.  Facts

•     the Appellant’s mother tongue is French, an official language,

•     he has a much better understanding of everything in French, than in English,

•     he was never advised on his first appearance in Provincial Court of his right under s. 530 (1) of the Code to have his proceedings conducted in the French language: s. 530 (3) (this provision was not in the Code when the Appellant made his first appearance in Provincial Court in June, 2008; it came into effect in October, 2008: A.B.II, Tab 14) 

•     the preliminary inquiry was waived;

•     long before his trial started in Supreme Court the Appellant told his lawyer he wanted a French trial,

•     his lawyer gave him misleading advice about having a French trial and imposed her views on him to have a trial in English,

•     his trial lawyer never told the Appellant he had a basic right to a French speaking trial judge and prosecutor, and that it was his decision to make.

Appellant’s Affidavit, A.B. II, Tab 4, paras.10-12

[55]         In an affidavit sworn in support of the bail application, Gingras says amongst other things that he understood only 30% of the trial. 

[56]         The respondent responds by making these points:  80% of the dealings between Gingras and the undercover officer were in English; there was no application pursuant to s. 530 for a trial in French; he had the assistance of an interpreter except when he said that the interpreter was not required; he did not voice any complaint on the record about a lack of comprehension during the trial; and his affidavit in support of his bail application is in English. 

[57]         It is difficult to evaluate the claim of ineffective assistance of counsel without seeing his trial counsel’s response to the accusations.  At this stage, Gingras has not offered any evidence that trial counsel acknowledges any deficiency in handling the language issue.

The Strength of the Grounds

[58]         On the grounds relating to comprehension, I think Gingras has some difficult hurdles to overcome.  His prospects for success are far from certain.

[59]         I do not think it necessary to analyse closely the other grounds.  I agree with Chief Justice Finch’s assessment:

[19]  I take a similar view of the other grounds of appeal.  They present, in my view, an arguable case, or at least one that is not bound to fail.  I do not regard those grounds as frivolous.  However, none of those grounds has obvious merit.

Disposition

[60]         This is a serious drug case involving a high volume of cocaine, large cash transactions and a substantial sentence.  Enforceability in this case demands strong grounds of appeal.

[61]         On the reviewability side are Gingras’s personal circumstances consisting of no prior convictions, strong family connections, age, health concerns, safety concerns in prison and his grounds of appeal.  In my opinion, the grounds are arguable but not strong enough, even when taken with his personal circumstances, to tip the balance in favour of reviewability.  I would dismiss his review application for judicial interim release.

5.  Porisky’s Review

[62]         Porisky appeals both conviction and sentence.  He represented himself at the bail hearing, as he did at trial, advancing grounds of appeal from conviction that the chambers justice found to be frivolous.  The justice found the grounds for appealing sentence arguable but not strong enough to outweigh enforceability:  2012 BCCA 309.

The Nature of the Offences

[63]         Porisky was convicted of tax evasion, failure to remit GST and counselling fraud.  He was sentenced on 12 May 2012 to serve a four-and-one-half year prison term and to pay fines totalling $274,814. 

[64]         Much of the income Porisky failed to declare on his income tax returns came from a business known as “The Paradigm Education Group”.  Paradigm promoted the spurious notion that “natural persons” did not have to pay income tax.  Paradigm presented seminars and distributed materials on how “natural persons” could structure their affairs to become tax exempt.  Paradigm engaged students, acting as “educators”, to teach this program to others for fees related to the tax saved.  Paradigm’s revenue came from seminar fees, sales of books and DVDs and part of the students’ fees.  The trial judge found that Porisky counselled fraud by encouraging others not to declare income on their tax returns.

Personal Circumstances

[65]         Porisky is 51 years of age with no prior record of convictions.  He is the father of four children, two of whom are still dependent on him, and he has lived in the Chilliwack area for almost 30 years.  He was compliant with the terms of bail before trial. 

[66]         He intends to represent himself on the appeal although he wisely engaged counsel on this review.  If he persists in his choice to act on his own, he will have difficulty perfecting the appeal from jail and conducting the necessary research to prepare a factum. 

[67]         The most significant feature of his personal circumstances is that as a non-violent offender, he is likely to serve only one-third of his sentence and thus be eligible for parole before his appeal is decided.  The risk that his appeal would be rendered nugatory if bail is refused was an important reason for granting bail on review in O’Connor:

[7]  The appellant has been in custody since September 13, 1996.  Thus, he has already served over six months.  It is a probability, amounting virtually to a certainty, that he will be eligible for parole before his appeal can be prepared, heard and determined.

The Strength of the Grounds

[68]         The grounds against conviction in the notice of appeal run to 11 pages.  They are prolix, unfocussed and tainted by the nonsense of the “natural person” theory.  It is no wonder that the chambers justice found them frivolous. 

[69]         However, his counsel on the review application has identified several points of real substance which, if incorporated into an amended notice of appeal, could alter the nature of the case considerably.  They are new grounds but because our review process is de novo in many respects, no objection was taken to our consideration of them.

[70]         The new grounds include:

1.       On the counselling count, it is alleged the trial judge erred in holding that tax evasion is equivalent to fraud.  The point to be argued is that the Paradigm message did not encourage falsifying returns, it was to declare no income at all.

2.       The fairness of the trial is questioned in several respects:

(a)      the principal Crown witness gave expert opinion without being qualified as an expert;

(b)      the witness’s very large report with attachments was admitted in bulk form without Porisky’s consent, and the admission in that form made it difficult for him to deal with the contents;

(c)      the trial judge failed in various ways in his duty to assist Porisky as a self-represented accused;

(d)      particulars relating to two counts in the indictment ordered by the trial judge contained an error leading to confusion.

3.       An issue arises with respect to the mens rea on the counselling fraud offence.  The point to be argued is that the mens rea of the offence includes knowledge that the transaction in question involved falsehood and Porisky genuinely believed that his theory was legitimate.  It is alleged that the trial judge erred in considering fraud as part of the actus reus of the offence and did not consider any relation to mens rea.

[71]         The respondent’s replies to these points are cogent and may prevail on the hearing of the appeal but at this stage they are just part of a debate.

Disposition

[72]         As with Gingras’s application, only the public confidence component of s. 679(3)(c) is in issue.  On balance, I think the reviewability principle must prevail.  Tax evasion on the scale of this case is serious and there are social and economic consequences to consider, as the sentence reflects, but the gravity of the offence is not the same as that associated with violence or organized crime.  The new grounds articulated by Porisky’s counsel rise to the level demanded by the seriousness of the offences.  The time factor mentioned earlier, the need to preserve a viable appeal, weighs heavily in favour of release. 

[73]         In the result, I would allow the review application and release Porisky on terms to be settled before a justice in chambers.

[74]         One final comment, Porisky has the right to represent himself on this appeal.  Nevertheless, he may well ask himself whether he can competently argue the points discovered by counsel and which led to his success on this review.

“The Honourable Mr. Justice Donald”

I agree:

“The Honourable Mr. Justice Lowry”

I agree:

“The Honourable Madam Justice Kirkpatrick”

I agree:

“The Honourable Mr. Justice Tysoe”

I agree:

“The Honourable Mr. Justice Harris”