R. v. Ferwerda, 2018 NLCA 14

Pieter Ferwerda (applicant/appellant) v. Her Majesty the Queen (respondent) (17/103) Indexed As: R. v. Ferwerda 2018 NLCA 14 2 C.A.N.L.R. 592 Court of Appeal of Newfoundland and Labrador O’Brien J.A. March 2, 2018

Summary: The appellant, Mr. Ferwerda, applied for judicial interim release pending his appeal of his conviction for assault causing bodily harm against the complainant, with whom he was in a relationship. Held: Application dismissed. O’Brien J.A.: Section 679(3) of the Criminal Code sets out the three statutory requirements an appellant must satisfy in order to qualify for release pending appeal. They are that: (

a) the appeal or application for leave to appeal is not frivolous; (

b) the appellant will surrender himself into custody in accordance with the terms of the order; and (

c) the appellant’s detention is not necessary in the public interest. Canadian courts have interpreted the “not frivolous” requirement as establishing a low threshold for an appellant to meet. Mr. Ferwerda’s grounds of appeal involve legal questions relating to the admission of evidence and the possible misapprehension of evidence. These issues are appropriate for appellate review, and are not frivolous. Mr. Ferwerda has met the requirement of section 679(3) (b), in that he has established that he would, if released, surrender himself into custody as required.

Although he had a prior criminal record for breaching court orders and had no connection to the province, there was no evidence of a breach of a previously ordered recognizance and he attended the various court appearances relating to this matter, either in person or by counsel. The final criterion, section 679(3)(

c) of the Code , requires an appellant to establish, on a balance of probabilities, that “his detention is not necessary in the public interest.” The public interest criterion in section 679(3) (

c) involves a consideration of two components, namely public safety and public confidence in the administration of justice. Both must be considered in the public interest analysis.

A Court, when assessing the public safety component and the protection of the public, may consider many factors, including the seriousness and nature of the offence, the surrounding circumstances of the offence and offender, risk of harm to the victim, the offender’s criminal record, the offender’s experience in abiding by conditions in prior court orders, as well as other relevant factors; the foregoing is not an exhaustive list of factors. Protection and safety of the public in this context would include the public in general, as well as any specific person or previous victim. Given that Mr.

Ferwenda has a lengthy record of domestic violence offences and breaches of court orders, there are appreciable public safety concerns present in this circumstance which would make it difficult to conclude, when considering the public safety component of section 679(3) (c), that Mr. Ferwerda has established that “his detention is not necessary in the public interest”. The various aspects that should be considered in the public confidence analysis include: (

i) weighing the competing interests involved in the enforceability and reviewability interests; (ii) adopting the criteria in section 515(10) (

c) of the Criminal Code (modified to an appellate review context) to inform the public confidence analysis; (iii) in the enforceability analysis, determining the seriousness of the

crime by considering the gravity of the offence, the circumstances of the offence, the potential length of imprisonment and other factors(including any concerns about flight risk or public safety); (iv) in the reviewability analysis, considering the strength of the appeal; and(

v) assessing final considerations in balancing enforceability and reviewability interests, including timing issues relating to when theappeal will be heard, relative to the length of the sentence. An evaluation of public confidence in the administration of justice involves a consideration of numerous factors in the presentapplication.

In terms of balancing enforceability and reviewability interests, factors to be considered include: the presence of significantpublic safety concerns, noted previously, including the appellant’s criminal record (which includes numerous offences involving violenceand breaching court orders); the circumstances and seriousness of the offence, including the relationship to the victim of the offence andthe context of domestic violence; the flight risk concerns which, while not paramount, are lingering; the grounds of appeal, which do notclearly surpass the not frivolous criterion; and the time required to hear and decide the appeal in relation to the length of the sentence,and the concern about rendering the appeal nugatory.

Considering the foregoing factors, Mr. Ferwerda has not established that “hisdetention is not necessary in the public interest”. The application was dismissed. Cases cited: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250 R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.) R. v. Vokurka, 2013 NLCA 51, 339 Nfld. & P.E.I.R. 248, aff’d 2014 SCC 22, [2014] 1 S.C.R. 498 R. v. Farinacci (1993), (ON CA), 109 D.L.R. (4th) 97 (Ont. C.A.) R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 Counsel: Derek Hogan, for the applicant/appellant; Sheldon Steeves, the respondent.

This application was heard and decision rendered orally on January 4, 2018 by O’Brien J.A. The following reasons for decision were filed on March 2, 2018 by O’Brien J.A. ______________________________________________________________ O'Brien J.A.: INTRODUCTION [1] This matter concerns an application made on behalf of Mr. Pieter Ferwerda requesting his release from custody pending thedetermination of an appeal of a criminal conviction. The application for release pending appeal was heard on January 4, 2018. [2] At the conclusion of the hearing, in an oral decision, the application was dismissed.

The parties were advised that the request forrelease pending appeal was denied as Mr. Ferwerda had not established that he met the statutory criteria for release. [3] Specifically the parties were advised that, while Mr. Ferwerda satisfied the requirements for release under sections 679(3)(

a) and679(3)(

b) of the Criminal Code, RSC 1985, c. C-46, he did not satisfy the requirement for release set out in section 679(3)(c). [4] It was indicated that a written decision would be filed, setting out the reasons for the determination reached in this matter. Thesereasons are now provided, below. BACKGROUND [5] On June 13, 2017, after a trial in the Supreme Court of Newfoundland and Labrador, Mr. Pieter Ferwerda was convicted ofassault causing bodily harm to Ms. Melissa Colacci, contrary to

section 267(

b) of the Criminal Code. Mr. Ferwerda and Ms. Colacciwere in a domestic relationship at the time of the July 26, 2013 incident which gave rise to the conviction. [6] To provide some context for the application, and the analysis which follows, it might be useful to set out excerpts from the trialjudge’s oral judgment of June 13, 2017. In the portion of the oral judgment reproduced below, the trial judge summarized the evidenceof Ms. Colacci, which evidence was accepted by the Court. The trial judge stated: On or about July 17, 2013, Ms. Colacci and her then boyfriend, Mr. Ferwerda, …left St. Catherines for [an approximate] 4 week tour of

Atlantic Canada. According to Ms. Colacci, the couple had been in [an] on and off relationship since February 2012. He lived with her at her house for periods of time during the relationship. They arrived in Newfoundland a little more than 10 days after leaving St. Catherines. In any event they arrived in St. Anthony on or about July 26, 2013. Upon arrival they both went and used the services of a laundromat after which they went to a camp site at a provincial park outside the town. Upon arrival, Ms. Colacci realized that her purse and her personal effects were missing.

She had placed these items in a garbage bag which she recalled having placed on the roof of the car by Mr. Ferwerda while they were at the laundromat. She immediately became clearly upset as the purse contained all her money, credit cards and personal papers. After searching the car, without success, they drove in the direction of the laundromat. An [intense] argument ensued enroute with each blaming the other. Ms. Colacci kept insisting that Mr. Ferwerda take responsibility for his actions. At one point she angrily asked him what his reaction would be if she lost his wallet. While continuing to drive, Ms.

Colacci lifted the lid of the console, a compartment with a cover between the driver’s seat and the front passenger seat. The console contained Mr. Ferwerda’s… wallet and other items. Although she had made reference to the wallet she denied attempting to access it. At that point, Mr. Ferwerda started to scream louder and while her hand was inside the console, according to her evidence, he slammed the cover several times on her hand, in rapid succession preventing her from removing her hand. In her estimation, her hand was slammed by the cover approximately 15 times.

Her hand was immediately really painful showing signs of bruising, swelling and bleeding. Ms. Colacci then moved her car to the side of the road and stopped. She testified that Mr. Ferwerda came over in her space… and started to choke her with both of his hands. She was in a position whereby she could not use her hands. She then engaged the horn by using her feet in an attempt to alert passing motorists. She said that she was afraid that he was going to kill her while he continued to choke her… A short time later they found the lost items on the side of the road on a front lawn.

As previously planned, they subsequently left St. Anthony after approximately two days and went to Labrador… [W]hen they arrived in Labrador she went to the hospital in Blanc Sablon. At the time it appeared her hand was very swollen and bruised. The attending physician there thought that her hand was possibly fractured and advised her to attend at a hospital on arrival to St. Catherines for a further x-ray. A cast was applied to her hand. Mr. Ferwerda disagreed with the physician that a cast was necessary. … After spending some time in Labrador, the couple then drove to St.

John’s where they stayed approximately two days after which they travelled to Port aux Basques to return home. Approximately 5 days after the incident in St. Anthony… when they had arrived back in Nova Scotia, she began to suffer from intense pain to her neck. By that time her neck exhibited redness and bruising with finger or hand marks. According to her… she needed assistance from Mr. Ferwerda with dressing and using the bathroom. By the time she reach[ed] Quebec the pain was so intense she made arrangements to see a chiropractor to obtain some relief although it was just a short distance from St. Catherines.

After she returned to St. Catherines she ended the relationship with Mr. Ferwerda. She also visited the emergency department at the city hospital for x-rays to her hand, and subsequently an MRI of her neck… [ 7 ] Mr. Ferwerda was sentenced on November 17, 2017. The Court ordered that Mr. Ferwerda serve a period of imprisonment for eight months as well as a period of probation for 12 months. The Court also made ancillary orders prohibiting Mr. Ferwerda from possessing firearms for a five year period and authorizing the taking of bodily substance samples for the purpose of a forensic DNA analysis. Mr.

Ferwerda was taken into custody on November 17, 2017, immediately after the sentence was imposed. Appeal and application for release pending appeal [ 8 ] On December 6, 2017, Mr. Ferwerda filed a notice of appeal with this Court, indicating his intention to appeal against both the conviction and sentence. [ 9 ] An interlocutory application, accompanied by an affidavit sworn by Mr. Ferwerda, was filed with this Court on December 21, 2017 requesting that Mr. Ferwerda be released pending the determination of the appeal of the conviction, pursuant to

section 679 of the Code . [ 10 ] The application for release pending appeal was heard on January 4, 2018. [ 11 ] At the hearing, counsel on behalf of the Crown contested Mr. Ferwerda’s release pending appeal on the basis that Mr. Ferwerda did not satisfy the statutory requirements for release, as set out in section 679(3) of the Code . Counsel on behalf of Mr. Ferwerda argued that the requirements of section 679(3) had been satisfied in this instance, and that Mr. Ferwerda should, accordingly, be released pending appeal. [ 12 ] Mr.

Ferwerda participated in the hearing by videoconference, and was cross-examined by counsel for the Crown with respect to the affidavit which had been filed in support of his application. ANALYSIS

Section 679 of the Criminal Code [ 13 ] The Criminal Code addresses release pending appeal in

section 679 . Section 679(1) [ 14 ] Section 679(1) of the Code provides authority to a judge of this Court to release an appellant from custody pending the determination of an appeal. The relevant provision of section 679(1) applicable in this matter is 679(1)(a), which states: 679

(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if,

(

a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required,notice of his application for leave to appeal pursuant to

section 678; … Section 679(3) [15] Section 679(3) of the Code sets out the three statutory requirements an appellant must satisfy in order to qualify for releasepending appeal. [16] Section 679(3) states:

(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 bereleased 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. [17] The requirements of section 679(3) must be considered in the particular context of Mr. Ferwerda’s circumstances. R. v. Oland: Supreme Court of Canada guidance regarding section 679(3) [18] An analysis of section 679(3) is informed by the case law interpreting this section, including, notably, the 2017 decision of theSupreme Court of Canada in R. v.

Oland, 2017 SCC 17, [2017] 1 S.C.R. 250. [19] In Oland, the Supreme Court of Canada indicated it had been provided with “an opportunity to consider and clarify the statutoryregime…which governs bail pending appeal” (paragraph 1). The Court took the opportunity in Oland to provide guidance intended to“resolve inconsistent approaches to bail taken by appellate courts across the country” and “resolve the conflicting jurisprudence”(paragraph 17). [20] Reference will be made, throughout the analysis below, to the comments and guidance provided by the Supreme Court ofCanada in Oland. Is the appeal frivolous?

Section 679(3)(a) [21] The first statutory requirement, set out in section 679(3)(

a) of the Code, is that an appellant must establish that the appeal is notfrivolous. [22] Canadian courts have interpreted this “not frivolous” requirement as establishing a low threshold for an appellant to meet. Thiswas confirmed by the Supreme Court of Canada in Oland, at paragraph 20, where the Court stated: [20] The first criterion requires the appeal judge to examine the grounds of appeal with a view to ensuring that they are not “notfrivolous” (s. 679(3)(a)). Courts have used different language to describe this standard.

While not in issue on this appeal, the “notfrivolous” test is widely recognized as being a very low bar: see R. v. Xanthoudakis, 2016 QCCA 1809, at paras. 4-7 ; 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. T.Trotter, The Law of Bail in Canada (3rd ed. (loose-leaf)), at pp. 10-13 to 10-15. [23] In the present case, Mr. Ferwerda has advanced two grounds of appeal. The first relates to the admission into evidence, by thetrial judge, of a one page hospital report relating to the treatment of Ms.

Colacci’s hand at a hospital, three days after the incident inquestion. The second relates to the fact that the trial judge, in the reasons for judgment, made no reference to photographs of Ms.Colacci taken after the incident on July 26, 2013, which photographs had been entered into evidence at the trial. [24] These grounds of appeal will be considered, next, in respect of the statutory requirement set out in section 679(3)(a). First ground of appeal: The hospital report [25] The trial judge found that Ms. Colacci sought treatment for her hand injuries at a hospital on July 29, 2013, three days after theassault.

Ms. Colacci was examined at the hospital and there was a one page hospital report, dated July 29, 2013, which referenced atrauma to Ms. Colacci’s right hand on July 26, 2013. The hospital report also notes a possible fracture. Ms. Colacci’s right hand wasplaced in a cast during the hospital visit on July 29, 2013, and the hospital report makes reference to the suggestion that Ms. Colaccishould, in two weeks from that date, get an x-ray of the right wrist. [26] Counsel on behalf of Mr.

Ferwerda argues that this hospital report was improperly admitted by the trial judge as a businessrecord pursuant to section 30(2) of the Canada Evidence Act, RSC 1985, c. C-5. Counsel submits that the admission of the report was anerror in law, as the report contained opinion evidence which should not have been admitted in this circumstance. Mr. Ferwerda’sargument is that evidence of this kind would need to be presented through the testimony of an expert, and that the hospital report wouldneed to meet the requirements established for tendering an expert report, pursuant to

section 657.3 of the Code. [27] Counsel on behalf of the Crown argues that the hospital report was properly admitted into evidence under

section 30 of theCanada Evidence Act. The Crown further submits that, in any event, the report simply confirmed evidence, given by both Mr. Ferwerdaand Ms. Colacci at trial, that Ms. Colacci had attended at the hospital on July 29, 2013, and that her hand was treated and placed in acast. In the Crown’s submission the fact there was a hospital visit and treatment is not contentious, and was established by the evidenceof Mr. Ferwerda and Ms. Colacci, without the trial judge needing to rely on the hospital report. Therefore, it is argued, even if the reportis not admissible, this would not be significant to the outcome.

Second ground of appeal: The photographs [28] Mr. Ferwerda argues that the failure of the trial judge to refer, in the reasons for judgment, to certain photographs of Ms. Colacciwhich were taken after the incident of July 26, 2013, was a material omission which amounted to a misapprehension of the evidence. [29] Mr. Ferwerda refers to the Ontario Court of Appeal’s decision in R. v.

Morrissey (1995), (ON CA), 22 O.R.(3d) 514 (C.A.) on this issue of misapprehension of the evidence, where the Court states at paragraph 83: … A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to thesubstance of the evidence, or a failure to give effect to evidence. … [30] Before continuing with this issue, it should be noted that the photographs in question were not included with the materials filedby the parties in this Court on the application for release, and as a result they have not been viewed by this Court. [31] The photographs in question were admitted into evidence at the trial, and one photograph in particular was considered by Mr.Ferwerda as being especially relevant.

That photograph, it was submitted by Mr. Ferwerda, was taken in a bar “the night following theincident”. [32] It is not clear what the reference to “the night following the incident” means in this context. That is, the words “night following”may possibly refer to the night of July 26, 2013, the day the incident occurred, or they may alternatively refer to the subsequent night(i.e. July 27, 2013). [33] In any event, regardless of when exactly the photograph in question was taken, it was apparently taken subsequent to the incidentwhich gave rise to the conviction.

It is submitted that one photograph in particular shows Ms. Colacci “with her arm around Mr.Ferwerda while holding a beer in her right hand”. Mr. Ferwerda submits that there is no indication, in that photograph, of swelling,bruising or cuts to Ms. Colacci’s hand and no visible marks on her neck. [34] It is submitted by Mr. Ferwerda that this photographic evidence contradicts Ms. Colacci’s evidence with respect to the severityand onset of symptoms relating to her injuries, and that this is significant as Ms. Colacci’s evidence on this point was accepted by thetrial judge, without referring to the photographs.

For example, Mr. Ferwerda notes, the trial judge’s oral judgment sets out Ms. Colacci’sdescription of her hand after the incident as being “immediately really painful showing signs of bruising, swelling and bleeding.” [35] The Crown argues that there is no error in this respect and no misapprehension of, or failure to give effect to, the evidence.

TheCrown submits that there is no requirement that the judge refer specifically to every piece of evidence when rendering a decision, andthe failure to mention a particular piece of evidence in the judgment does not mean the judge did not properly consider it. [36] Further the Crown notes that, as stated by this Court in R. v. Vokurka, 2013 NLCA 51, 339 Nfld. & P.E.I.R. 248, aff’d 2014 SCC22, [2014] 1 S.C.R. 498, at paras. 20-21, to constitute a misapprehension of evidence, the alleged error “must be one that is ‘readilyobvious’ and was actually committed”.

The Crown’s position is that the photographs were admitted into evidence, the trial judge wouldhave been aware of them, and they do not constitute a “smoking gun” which was somehow improperly overlooked by the trial judge. [37] The Crown argues that, when considered in the context of the totality of the evidence, the photographs likely had little impact,especially given that the trial judge’s decision was primarily based on a consideration of the testimony of the two people present whenthe incident occurred, namely Mr. Ferwerda and Ms. Colacci. The Crown asserts that the trial judge accepted Ms.

Colacci as a truthfuland sincere witness while essentially rejecting Mr. Ferwerda’s evidence, stating: “I did not believe his account of the incident on July 26,2013…”. Conclusion on section 679(3)(a) [38] Returning to the statutory requirement set out in section 679(3)(

a) of the Code, an appellant must establish that the appeal is notfrivolous. This must be proved by an appellant on a balance of probabilities. Having considered the grounds of appeal, outlined anddiscussed above, I conclude that Mr. Ferwerda has established that the appeal is not frivolous and he has met the requirement of section679(3)(a). The grounds of appeal involve legal questions relating to the admission of evidence and the possible misapprehension ofevidence.

These issues are appropriate for appellate review, and are not frivolous. [39] Before leaving this requirement, I would note that the strength of the grounds of appeal is obviously directly relevant in section679(3)(a), where it must be found that the appeal is “not frivolous”.

In addition, the Supreme Court of Canada in Oland determined thatthe strength of the appeal is also a relevant factor to be considered when engaged in the enforceability and reviewability analysis undersection 679(3)(c), where a Court may consider whether the grounds of appeal “clearly surpass” the “not frivolous” criterion. [40] As such, there will be some further consideration of the strength of the grounds of appeal, below, in the context of the section679(3)(

c) analysis. [41] However, before turning to section 679(3)(c), it is first necessary to consider the statutory requirement in section 679(3)(b). Will the appellant surrender himself into custody? Section 679(3)(b) [42] Section 679(3)(

b) of the Code requires an appellant to establish that, if released, “he will surrender himself into custody inaccordance with the terms of the order”. This must be established by an appellant on a balance of probabilities. The term “order”, in thiscontext, refers to such order, if any, which may be made by a Court at the time of release. [43] The Supreme Court of Canada commented on this requirement in Oland, at paragraph 21, stating: “The appeal judge must be

satisfied that the applicant will not flee the jurisdiction and will surrender into custody as required.” [44] In respect of Mr. Ferwerda, he is a resident of Ontario, with no real connection to this province, having committed the offence forwhich he was convicted while visiting this province in 2013. [45] The Crown notes that Mr. Ferwerda has a criminal record, (which will be discussed in greater detail below in relation to section679(3)(c)), and that his record includes numerous convictions for breaching court orders, which is a relevant consideration. [46] The Crown further argues that, as Mr.

Ferwerda has now been convicted and is presently facing a period of incarceration, thiswould decrease Mr. Ferwerda’s incentive to return to this province to serve the remainder of his sentence should he be released pendingappeal and ultimately be unsuccessful on the appeal. [47] Mr. Ferwerda submits that there has been no evidence of any breach of the release conditions contained in a 2014 recognizancewith respect to the present matter, and that he has attended at the various court appearances relating to this matter, either in person or bycounsel. [48] Notably, when the trial judge convicted Mr.

Ferwerda on June 13, 2017, the trial judge requested that Mr. Ferwerda be present incourt for sentencing. Mr. Ferwerda complied with this request by travelling to this province to be present at the sentencing hearing,which was ultimately held on November 17, 2017. When the conviction was entered on June 13, 2017 the Crown clearly articulated, onthe record, that a custodial sentence would be sought for Mr. Ferwerda. Mr.

Ferwerda’s attendance then, five months later at thesentencing hearing, would presumably have been made with knowledge of the Crown’s position and the possibility of the Courtimposing a custodial sentence. This is a relevant consideration. Conclusion on section 679(3)(b) [49] Considering the circumstances reviewed above, I conclude that Mr. Ferwerda has met the requirement of section 679(3)(b), inthat he has established that he would, if released, surrender himself into custody as required. [50] While Mr.

Ferwerda has met this statutory requirement, the Court also notes that some degree of flight risk can certainly be saidto exist in this context of an appellant, who has been convicted at trial, who has no connection to the province and who has a significanthistory of breaching court orders. These concerns, while germane, would not preclude Mr.

Ferwerda’s release when considered in light ofall the circumstances. [51] However, as noted in Oland at paragraph 39, “lingering flight risks that do not rise to the substantial risk level under s. 679(3)(b),” can remain relevant under the public confidence component of section 679(3)(c), (which will be discussed next) and such risks “can,in some cases, tip the scale in favour of detention.” [52] As such, the “lingering flight risks” in this circumstance will be further considered in the section 679(3)(

c) analysis, below. Is the appellant’s detention necessary in the public interest? Section 679(3)(c) [53] The final criterion, section 679(3)(

c) of the Code, requires an appellant to establish, on a balance of probabilities, that “hisdetention is not necessary in the public interest.” [54] The public interest criterion in section 679(3)(

c) involves a consideration of two components, namely public safety and publicconfidence in the administration of justice. Both must be considered in the public interest analysis. The Farinacci approach, as confirmed by Oland [55] The two component analysis of public interest was articulated by Justice Arbour in R. v. Farinacci (1993), (ON CA), 109 D.L.R. (4th) 97 (Ont. C.A.), and has been accepted and followed by Canadian courts, including by the Supreme Court ofCanada. [56] The Supreme Court of Canada in Oland stated on this point: [23] In R. v. Farinacci (1993), (ON CA), 86 C.C.C. (3d) 32 (Ont.

C.A.), Arbour J.A. (as she then was) consideredthe meaning of the words “public interest” in the context of s. 679(3)(c). In the course of her careful analysis, she determined that thepublic interest criterion consisted of two components: public safety and public confidence in the administration of justice (pp. 47-48). … [26] Almost a quarter of a century has passed since Farinacci was decided. The public interest framework which it established haswithstood the test of time. It has been universally endorsed by appellate courts across the country: see, e.g., R. v. Matteo, 2016 QCCA2046, at para. 20 ; 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), (NL CA), 117 Nfld. & P.E.I.R. 69 (C.A.), at paras. 30-34. Moreover,all of the parties and interveners in this appeal are content with the Farinacci framework. None has spoken against it; none has asked usto revisit it — and I see no reason to do so.

Farinacci remains good law in my view. [57] While confirming the Farinacci approach, the Supreme Court of Canada also cautioned against considering the two componentsof public interest (public safety and public confidence in the administration of justice) in isolation, stating:

[ 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.

Application to the present case: Public safety and public confidence [ 58 ] Flowing from the reasons for judgment in Oland and Farinacci , an analysis of whether Mr. Ferwerda has established that “his detention is not necessary in the public interest” requires consideration of issues regarding both public safety and public confidence in the administration of justice. These two issues will be considered next, mindful of the direction in Oland that they do not exist in isolation and that public safety concerns may inform conclusions on public confidence. Public safety [ 59 ] The Crown asserts that, given Mr.

Ferwerda’s criminal record, the circumstances of this offence and those of his prior convictions, and the domestic relationship which existed between Mr. Ferwerda and Ms. Colacci when the offence occurred, significant public safety concerns exist regarding Mr. Ferwerda’s release. [ 60 ] Mr. Ferwerda’s criminal record was filed for consideration on this application.

The record includes convictions related to the following: theft under $5000; robbery; failure to comply with a probation order; seven (7) convictions for assault; two (2) convictions for assault with intent to resist arrest; two (2) convictions for sexual assault; two (2) convictions for possession of a controlled substance; and seven (7) convictions for failure to comply with a recognizance. These convictions were entered between 2002 and 2017 and Mr. Ferwerda received custodial sentences in respect of some of the convictions. [ 61 ] There was some confusion on this application relating to Mr.

Ferwerda’s criminal record, as initially an incomplete record was inadvertently filed which indicated that Mr. Ferwerda’s last conviction was in 2007. Indeed, on this basis it was initially submitted that Mr. Ferwerda’s record was dated and that it should not play a significant role in the public safety analysis. However, an updated record subsequently presented to the Court shows additional convictions in 2015 and 2017. [ 62 ] Moreover, the Crown submits, the nature of the recent convictions are particularly relevant to public safety. For example, in December 2015 Mr.

Ferwerda was convicted in Ontario for three assaults which occurred in 2013, and for failing to comply with a recognizance. The victim in each of these three assaults, the Crown notes, was Ms. Colacci. [ 63 ] Mr. Ferwerda received a custodial sentence of 15 months for the three assault convictions in 2015 (he was credited with 10 months pre-sentence custody), in addition to probation for 3 years. As well an order was made in 2015, as a result of these convictions, requiring Mr. Ferwerda to provide a DNA sample as well as an order for a weapons prohibition for life pursuant to

section 109 of the Code . It appears that, again possibly due to inadvertence, the updated record of convictions and sentences (which included the convictions entered in 2015 and 2017), while provided to and considered by this Court on this application, would not have been available to or considered by the trial judge. [ 64 ] As well, the Crown notes that the December 2015 conviction for failing to comply with a recognizance is also relevant to the public safety analysis, as that offence related to a failure by Mr. Ferwerda to comply with a condition that he abstain from communicating with Ms.

Colacci, as well as another woman who was named in that recognizance. [ 65 ] Court records filed in Ontario further indicate that on November 10, 2017, approximately one week before he was sentenced in the present case, Mr. Ferwerda was convicted of a further breach of recognizance by failing to comply with a condition of that recognizance, namely that he not enter the Regional Municipality of Niagara except in accordance with the precise circumstances set out in that recognizance. [ 66 ] Counsel for Mr.

Ferwerda acknowledged the three assault convictions in 2015 and the two convictions for breaches of the recognizances in 2015 and 2017. However, it was submitted that the activities giving rise to these convictions would have occurred in 2013, and that Mr. Ferwerda did not breach any of the conditions of a 2014 recognizance entered into with respect to the present case. As such, the submission on behalf of Mr.

Ferwerda was that there would be no present public safety concern which should preclude release at this time. [ 67 ] With respect to the approach taken by Justice Arbour in Farinacci regarding the public safety component of section 679(3)(c), the Supreme Court of Canada in Oland stated: [ 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). … [ 68 ] A Court, then, when assessing the public safety component and the protection of the public, may consider many factors, including the seriousness and nature of the offence, the surrounding circumstances of the offence and offender, risk of harm to the victim, the offender’s criminal record, the offender’s experience in abiding by conditions in prior court orders, as well as other relevant factors; the foregoing is certainly not meant to be an exhaustive list of factors in this context.

Protection and safety of the public in this context would include the public in general, as well as any specific person or previous victim. [ 69 ] In the present case, Mr. Ferwerda has a lengthy criminal record, and many of the convictions deal with crimes involving violence. Among these are four convictions since 2015, including the conviction presently under appeal, which relate to assaults against Ms. Colacci. These are serious offences, and especially so given that Mr. Ferwerda and Ms. Colacci were in a domestic relationship when the assaults occurred.

The domestic relationship context surrounding these assaults is certainly a significant factor and a cause for substantial concern in the circumstances of this case, and in the assessment of public safety and protection, especially when considered in

relation to the convictions for other violent crimes, as set out in Mr. Ferwerda’s criminal record. [ 70 ] As well, Mr. Ferwerda has numerous convictions for failing to comply with conditions of release, including the conviction for communicating with Ms. Colacci when prohibited. This again raises public safety concerns. Mr.

Ferwerda’s criminal history and the circumstances of the offences for which he has been convicted also raise concern about his likelihood to reoffend and to constitute a risk to public safety. [ 71 ] Taking into consideration all of the above, there are appreciable public safety concerns present in this circumstance which would make it difficult to conclude, when considering the public safety component of section 679(3)(c), that Mr.

Ferwerda has established that “his detention is not necessary in the public interest”. [ 72 ] In light of the discussion and conclusion below, however, which relates to considerations of public confidence in the administration of justice, it is unnecessary to decide this matter solely on the basis of the public safety component. Rather, the public safety concerns noted above will be further considered in the public confidence analysis, below.

Public confidence in the administration of justice [ 73 ] The Supreme Court of Canada in Oland focused on the public confidence component of the public interest requirement, and provided guidance on the proper analysis to be followed when considering the interaction between release pending appeal and public confidence in the administration of justice. [ 74 ] The Court provided guidance on various aspects that should be considered in the public confidence analysis. [ 75 ] These include: (

i) weighing the competing interests involved in the enforceability and reviewability interests; (ii) adopting the criteria in section 515(10) (

c) of the Criminal Code (modified to an appellate review context) to inform the public confidence analysis; (iii) in the enforceability analysis, determining the seriousness of the crime by considering the gravity of the offence, the circumstances of the offence, the potential length of imprisonment and other factors (including any concerns about flight risk or public safety); (iv) in the reviewability analysis, considering the strength of the appeal; and (

v) assessing final considerations in balancing enforceability and reviewability interests, including timing issues relating to when the appeal will be heard, relative to the length of the sentence. [ 76 ] These aspects will be reviewed briefly below, with reference to specific excerpts from Oland , where appropriate, in order to provide a framework with which to inform the public confidence analysis in the context of the present application. (

i) Competing enforceability and reviewability interests [ 77 ] Oland confirmed Justice Arbour’s approach in Farinacci that an analysis of the “public confidence in the administration of justice” component of the public interest criterion involves the weighing of the competing interests of enforceability and reviewability. The Supreme Court of Canada stated: [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 … . . . [ 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. (ii) Adopting criteria in section 515(10) (

c) of the Criminal Code , with modifications for an appellate review context [ 78 ] Further, the Supreme Court of Canada in Oland also adopted the criteria in section 515(10)(

c) of the Code , used in the pre-trial judicial interim release context, as being applicable to a public confidence analysis on an application for release pending appeal, stating: [ 31 ] In section 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. (iii) Enforceability analysis: Determining the seriousness of the crime and assessing residual flight risk or public safety concerns (if any) [ 79 ] In respect of the enforceability interest, the Supreme Court of Canada in Oland noted the importance of determining the seriousness of the crime by considering the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential length of imprisonment; these are factors set out in section 515(10)(

c) of the Code , which the Court determined to be transferable to a section 679(3)(

c) analysis in the appellate release context. [ 80 ] In the present application for release, both the offence itself and the circumstances surrounding the commission of the offence are serious. As discussed previously, the seriousness of the offence is also aggravated in this instance by virtue of the violence involved and the domestic relationship context in which the offence occurred. [ 81 ] I n R. v. St-Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328 , the Supreme Court of Canada specifically noted circumstances involving domestic violence as relevant for section 515(10)(

c) purposes. The Court said: [61] Without drawing up an exhaustive list of possible circumstances surrounding the commission of the offence that might be relevant under s. 515(10)( c ), I will mention the following: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). … [ 82 ] In terms of the potential length of imprisonment, assault causing bodily harm (

section 267 (b)) is a Crown electable offence. In this instance, the Crown elected to proceed by indictment which meant the offence carried a maximum penalty of imprisonment for ten years. [ 83 ] In addition to the seriousness of the offence, Oland indicates that other considerations are also relevant in the enforceability context, including the presence or absence of public safety concerns or so-called “lingering flight risk” concerns.

The Court stated: [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. [ 84 ] These considerations are germane to Mr. Ferwerda’s release application given that, as discussed above when considering the public safety component, there are significant public safety concerns present in this circumstance.

As well, while less significant than the public safety concerns, there are also lingering flight risk concerns present which, as noted previously, do not “rise to the substantial risk level under s. 679(3)(b).” Both of these factors need to be considered in this application, in the context of the section 679(3)(

c) public confidence analysis. (iv) Reviewability analysis: Assessing the strength of the appeal [ 85 ] In considering the reviewability interest, the Court in Oland indicated that the strength of the appeal is an important factor, playing a “central role”. While section 679(3)(

a) already requires the appellant to establish that the appeal is “not frivolous”, Oland also directs that a further consideration of the strength of the appeal occur in the context of section 679(3)(c), to determine whether the grounds of appeal “clearly surpass” this not frivolous criterion. This will necessitate an adjustment in the approach taken by this Court, which, in the context of an application for release pending appeal, has not historically undertaken an assessment of the merits of the appeal to the degree now contemplated by Oland .

The Supreme Court of Canada stated on this point: [ 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. … [ 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. … [ 86 ] The Supreme Court of Canada in Oland further specified that appellate courts, when undertaking this assessment of the strength

of an appeal to determine whether the grounds of appeal “clearly surpass” the not frivolous criterion, should ground the assessment inthe materials provided on the application for release pending appeal, including the authorities and relevant parts of the record whichrelate to the issues on appeal: [45] …This assessment, it should be emphasized, is not a matter of guesswork. It will generally be based on material that counsel haveprovided, including aspects of the record that are pertinent to the grounds of appeal raised, along with relevant authorities.

In undertakingthis exercise, appellate judges will of course remain mindful that our justice system is not infallible and that a meaningful review processis essential to maintain public confidence in the administration of justice.

Thus, there is a broader public interest in reviewability thattranscends an individual’s interest in any given case. [87] In assessing the strength of the grounds of the appeal in this case it is notable that, while the notice of appeal indicates anintention to appeal both conviction and sentence, the material provided for this application and the submissions made by counselreference the conviction appeal only.

As such, only the grounds of appeal relating to the conviction shall be considered under section679(3)(c). [88] As discussed earlier, the grounds of appeal in this case relate to the following: the admission of a hospital record which Mr.Ferwerda submits should not have been admitted, and the failure of the trial judge to properly consider or refer to, in the reasons forjudgment, certain photographs which were admitted into evidence. [89] Earlier in these reasons, these grounds of appeal were determined to be “not frivolous” for purposes of the section 679(3)(a)analysis.

At this point, for purposes of the section 679(3)(

c) analysis, it must be determined whether the grounds of appeal “clearlysurpass” this “not frivolous” criterion. [90] To do so, guided by the decision in Oland, requires a review of the grounds of appeal “with an eye to their general legalplausibility and their foundation in the record” (paragraph 44), and an assessment of the materials provided, legal authorities and therelevant parts of the record. [91] Regarding the first ground of appeal involving the hospital record, the trial judge states in the reasons for judgment that thehospital record merely confirms the evidence of both Mr. Ferwerda and Ms. Colacci.

The trial judge stated: A major problem with his evidence also related to his assertion and [insistence] that he had no knowledge of Ms. Colacci’s injuries to herhand and that she made no complaint… He’s insistent that he had no knowledge that she was visiting the hospital in Blanc Sablon forthat purpose. Yet it appears that when the physician decided to put the cast on her hand it appears that he did not inquire as to its purposeor the reason for her injuries. This defies both logic and common sense and I can only conclude that he knew about the injuries prior toher visit to Labrador.

The Crown placed into evidence a medical note from the hospital in Blanc Sablon. This merely confirms theevidence of Ms. Colacci and indeed Mr. Ferwerda whereby the attending physician refers to the evidence of trauma to her right hand andis uncertain as to a fracture and recommends further x-rays in two weeks. [92] The trial judge further stated on this point: When they arrived in Labrador she went to the hospital in Blanc Sablon.

At the time it appeared her hand was very swollen and bruised.The attending physician there thought her hand was possibly fractured and advised her to attend at a hospital on arrival to St. Catherinesfor a further x-ray. A cast was applied to her hand. Mr.

Ferwerda disagreed with the physician that a cast was necessary… [93] An important consideration here is that, even if the hospital record had not been admitted into evidence, (that is, even if Mr.Ferwerda’s submission is correct on this point and the trial judge erred in admitting the hospital report in accordance with the CanadaEvidence Act), it is not evident that this would have been significant to the ultimate finding of the trial judge, given the evidence of bothMr. Ferwerda and Ms. Colacci that there was a hospital visit and treatment of Ms. Colacci’s hand, within days of the incident.

As well,as noted by the Crown, if there was an error here in the admission of the hospital record, the curative proviso might apply in thesecircumstances, given the totality of the evidence. [94] The second ground of appeal relates to the photographs of Ms. Colacci. As noted previously, unfortunately these photographswere not provided to this Court on the application. However, it appears they were admitted into evidence at the trial. As discussed earlierin these reasons, Mr.

Ferwerda argues that the photographs are important, and should have been considered and referred to directly bythe trial judge in the decision, as they contradict Ms. Colacci’s evidence relating to the severity and onset of her injuries. [95] It is somewhat difficult to assess the strength of this ground of appeal, and determine the extent to which it is supported by therecord, as the photographs in question were not provided on this application. However, it is apparent from the trial judge’s decision thatthe credibility of Mr. Ferwerda and Ms. Colacci was carefully considered.

The trial judge made findings relating to the credibility ofboth, clearly accepting Ms. Colacci’s evidence and rejecting Mr. Ferwerda’s evidence, stating: The analysis of the evidence directed by [R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742] necessarily brings me to assess theoverall credibility of Ms. Colacci’s evidence. I find that her evidence was plainly clear and sincere. She stated good memory in relationto an incident that happened in 2013. I find that she is honest and wanted to tell the truth.

Although she described a traumatic and(inaudible) event her evidence was not contrary to common sense and could not be considered to be far-fetched and unbelievable. At notime did I get the impression that Ms. Colacci was fabricating the event or acting out of revenge. I find that there was no inconsistenciesinvolving the material matter pertaining to the charge. The complainant made significant recall to all matters to the charge and that herevidence reflects her actual experience. On the contrary I cannot accept the evidence of Mr. Ferwerda.

More importantly I did notbelieve his account of the incident on July 26, 2013 on their drive from the provincial park up to St. Anthony. His version of the facts…is difficult to follow and lacks both credibility and certainty. [96] While the trial judge did not specifically refer to the photographs in the judgment, they were admitted as evidence and there isnothing to indicate that they were not considered. The trial judge’s decision was primarily based on findings related to the credibility ofMr. Ferwerda and Ms.

Colacci, and the trial judge’s conclusions regarding credibility would have been informed by considering the

respective testimony in light of any other evidence, including, presumably, the photographs. [97] While the entire transcript of the trial was not available for consideration on this application, one might reasonably expect thatany photographs contradicting Ms. Colacci’s evidence would have been put to Ms. Colacci in cross-examination. Again, unfortunately, asthe entire transcript was not available, it is unknown how exactly the photographs featured in the trial.

Given the limited recordavailable on this application, and in light of the evidence and findings of credibility as set out in the judgment, however, it is not evidentthat the trial judge’s failure to refer to the photographs in the judgment had any impact on the outcome reached in this case. [98] Having considered the grounds of appeal in the context of the materials provided, the authorities and the relevant parts of therecord, I conclude that, while not frivolous, they do not clearly surpass the not frivolous criterion. This is a factor to be considered in thesection 679(3)(

c) analysis. Accordingly, (as the grounds of appeal do not “clearly surpass” the “not frivolous” criterion), Mr. Ferwerdais not able to rely on the strength of the grounds of appeal as a factor favoring his release pending appeal, in the context of the presentapplication. [99] Before leaving this issue, I would note that this finding that the grounds of appeal do not clearly surpass the not frivolouscriterion is not meant to suggest, in any way, a determination regarding the ultimate likelihood of success of the appeal. An applicationfor release is heard in the context of a very limited record being available.

The Court, on the application, does not have the benefit of thefull transcript of proceedings at trial or the exhibits. For example, in this case, Mr.

Ferwerda submits that certain photographs constitutecritical evidence, and presumably these photographs will be considered closely on appeal, along with any other exhibits and the trialtranscript. [100] As such, an appellate panel hearing the appeal on the merits is informed by a more complete record and by the presentations ofcounsel for the parties focusing directly on the issues under appeal, and referencing specific portions of the record and relevantauthorities which support their positions.

This is a very different context when compared to an application for release pending appealwherein, to quote Oland, the Court is to provide a “preliminary assessment of the strength of an appeal” (paragraph 45). This clearlycontrasts with the role of an appellate panel hearing the appeal, whose function is to provide a final assessment on the appeal’s merits,informed by a full (or at least a fuller) picture of the record. (

v) Final considerations in balancing enforceability and reviewability interests under the public interest criterion (including anyissue relating to when the appeal will be heard, relative to the length of the sentence) [101] Finally, the Supreme Court of Canada in Oland provided further guidance on weighing the enforceability and reviewabilityinterests under section 679(3)(c), indicating that the analysis is case specific and there is no “one size fits all” approach. [102] For example, the Court stated: [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. … [103] The Court also made it clear in Oland that even the most serious of offences, including murder, which was the offence in questionin that case, do not automatically foreclose release pending appeal; each case must be assessed according to the statutory criteria insection 679 to reach a conclusion on release.

The Court stressed the need for a case-specific analysis, even in very serious cases: [50] That said, where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceabilitywill be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concernsand/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. … [66] . . . for the purposes of s. 679(3)(c), even in the case of very serious offences, where there are no public safety or flight concernsand the grounds of appeal clearly surpass the “not frivolous” criterion, a court may well conclude that the reviewability interestovershadows 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 flightrisk concerns, or a weaker release plan, which could raise concerns warranting detention.

Emphatically, a contextual analysis that canaccount for these differences is required. [104] Considering the factors outlined above, and relating them to Mr.

Ferwerda’s present application, the Court must consider thepresence, in this case, of a significant criminal record, appreciable and serious public safety concerns, “lingering” flight risk concerns andgrounds of appeal which do not clearly surpass the not frivolous criterion. [105] Before making a final determination under section 679(3)(c), it is important to note that the Supreme Court of Canada in Olandcautioned that, in certain circumstances, an additional important factor on an application for release pending appeal might be theanticipated delay in deciding the appeal, relative to the length of the sentence.

That is, the Court must be aware of the danger of anappeal being rendered nugatory as a consequence of the Court determining that an appellant has not met the statutory criteria for releasepending appeal. The Supreme Court of Canada said: [48] In balancing the tension between enforceability and reviewability, appellate judges should also be mindful of the anticipated delayin deciding an appeal, relative to the length of the sentence: R. v. Baltovich (2000), (ON CA), 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 anddecided, bail takes on greater significance if the reviewability interest is to remain meaningful. In such circumstances, however, where abail order is out of the question, appellate judges should consider ordering the appeal expedited under s. 679(10) of the Code. While thismay not be a perfect solution, it provides a means of preserving the reviewability interest at least to some extent.

[ 106 ] This issue of the time (or delay) required to hear and decide the appeal is of particular significance in this application. Mr. Ferwerda was sentenced to a period of imprisonment for eight months, and he was taken into custody on November 17, 2017, immediately after sentencing. A notice of appeal was filed in this Court and the application for release pending appeal was filed on December 21, 2017, approximately five weeks after sentencing. Counsel requested a date in early January 2018 for the hearing of the application, and the application was set for and heard on January 4, 2018. Therefore, Mr.

Ferwerda had served approximately seven weeks of his sentence before the release application came on for hearing. [ 107 ] At the hearing, and before a decision was made on the application for release, the Court raised with counsel concern about the time normally required for perfecting and hearing an appeal, and how this might negatively impact the reviewability interest in the event release was not ordered. Specifically, the Court canvassed with counsel the earliest possible dates when counsel might be available for the appeal, noting the Court could provide early dates in February and March 2018.

Unfortunately, while counsel for the Crown indicated that someone from the Crown’s office (but perhaps not the Crown counsel appearing on this application) could appear in February or March 2018, counsel for Mr. Ferwerda, quite understandably, had existing commitments to clients and various courts which precluded his appearance at an appeal hearing until April 2018.

It was also noted that, even if counsel for the parties had been available earlier, considerations relating to preparing the transcript, appeal book and facta would still make the scheduling of an early appeal hearing date challenging. [ 108 ] The fact that the appeal could not be heard until April 2018 was then considered, along with the other factors previously discussed under section 679(3)(c), before a determination was made on release. The Court was mindful that, if release was not ordered, a considerable amount of the sentence would be served before the appeal was heard and decided.

This is a significant consideration in this context “if the reviewability interest is to remain meaningful” ( Oland , paragraph 48 ). [ 109 ] While the appellant’s reviewability interest in this context is critically important, and must be carefully considered, it also must be weighed in relation to the other considerations related to reviewability and enforceability, in the full section 679(3)(

c) analysis. That is, while all efforts must be made to respect the reviewability interest, and avoid rendering appeals nugatory, this interest is to be carefully considered among, and does not necessarily trump, other relevant concerns. In this case, the concern that the outcome of the appeal might be of limited practical significance, unless release was ordered pending appeal, is a factor to be appropriately considered and weighed in the section 679(3)(

c) analysis. Conclusion on section 679(3)(c) [ 110 ] Section 679(3)(

c) of the Code requires an appellant to establish, on a balance of probabilities, that “his detention is not necessary in the public interest.” As stated previously, the public interest criterion requires consideration of both public safety and public confidence in the administration of justice. [ 111 ] In terms of public confidence in the administration of justice, the Supreme Court of Canada in Oland advises how, and from whose perspective, public confidence is assessed: [47 ] … 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. [ 112 ] Mindful of this, an evaluation of public confidence in the administration of justice involves a consideration of numerous factors in the present application, many of which have been discussed in some detail above.

In terms of balancing enforceability and reviewability interests, factors to be considered include: the presence of significant public safety concerns, noted previously, including the appellant’s criminal record (which includes numerous offences involving violence and breaching court orders); the circumstances and seriousness of the offence, including the relationship to the victim of the offence and the context of domestic violence; the flight risk concerns which, while not paramount, are lingering; the grounds of appeal, which do not clearly surpass the not frivolous criterion; and the time required to hear and decide the appeal in relation to the length of the sentence, and the concern about rendering the appeal nugatory. [ 113 ] Considering the foregoing factors, and in light of the discussion on many of the factors above, I conclude that Mr.

Ferwerda has not established that “his detention is not necessary in the public interest” pursuant to section 679(3)(

c) of the Code , specifically with respect to that component of public interest which involves maintaining public confidence in the administration of justice. Section 679(10): Directions for expediting the appeal [ 114 ] Finally, after the application for release pending appeal was dismissed, the Court and counsel further discussed the issue of providing directions, pursuant to section 679(10) of the Code , “for expediting the hearing of the appellant’s appeal.” In this regard, the Court and counsel confirmed April 18, 2018, the earliest available date for counsel, as the date for the hearing of the appeal.

Further dates were set for filing of the appeal book and facta, and the Court indicated that it would make inquiries regarding the timely production of the trial transcript.

SUMMARY AND DISPOSITION [ 115 ] The application filed on behalf of Mr. Ferwerda seeking release pending appeal was dismissed as Mr. Ferwerda had not established that he had met the statutory criteria for release pursuant to section 679(3) of the Criminal Code . [ 116 ] While Mr. Ferwerda satisfied the requirements for release under section 679(3) (a) (by establishing the appeal is not frivolous) and section 679(3) (b) (by establishing that he would, if released, surrender himself into custody as required), he did not satisfy the requirement for release set out in section 679(3) (c) (in that he did not establish that his detention is not in the public interest). Application dismissed.