R. v. Oland, 2020 QCCA 780

Xanthoudakis c. R. 2020 QCCA 780 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006187-163 (500-01-051050-117, seq. 003) DATE: JUNE 12, 2020 CORAM: THE HONOURABLE MANON SAVARD, J.A. CLAUDINE ROY, J.A. STÉPHANE SANSFAÇON, J.A. JOHN XANTHOUDAKIS APPLICANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The applicant seeks the review by a panel of the Court of the judgment [1] of a single judge, dated April 23, 2020, dismissing his motion for interim release pending a judgment of the Supreme Court on his application for leave to appeal filed on April 15, 2020 following the dismissal of his appeal against conviction and of his sentence by this Court on March 17, 2020. [2] [ 2 ] For the following reasons, the impugned judgment will be affirmed. * * * [ 3 ] On June 2, 2016, in Montreal, a jury at which the Honourable Mr.

Justice Pierre Labrie of the Superior Court presided, found the applicant guilty of one count of fraud ( s. 380(1) (

a) Cr.C . ), eight counts of forgery ( s. 367 (

a) Cr.C . ) and eight counts of using a forged document ( s. 368(1) (

c) Cr.C. ). On June 30, 2016, the applicant filed a notice of appeal which was later amended.

In the interim, on July 6, 2016, Labrie J. sentenced the appellant to 7 years and 11 months of imprisonment (i.e., 8 years minus a 30-day credit for time spent in remand custody), plus the victim surcharge on all counts. [3] An application for leave to appeal the sentence was referred to the Court to be heard concurrently with the appeal of the verdict. [4] On March 17, 2020, the Court granted the motion for leave to appeal against the sentence and dismissed the appeals both on the verdict and the sentence. [ 4 ] The applicant was released on bail during the proceedings in the courts below (except following the verdict) and pending his appeal [5] and has at all times complied with his bail conditions.

He has been in custody since the Court released its reasons in March 2020. [ 5 ] On April 15, 2020, the applicant filed a notice of application for leave to appeal to the Supreme Court of Canada together with his factum. On the same day, he also filed an application with this Court for interim release under s. 679(1)(

c) Cr.C . [ 6 ] On April 23, 2020 the single judge dismissed his application for interim release. He wrote : [6] The respondent, quite rightly, does not contest the fact that the criterion [679(3)( b )] as well as the protection of public safety, an element forming an integral part of criterion [679(3)( c )], have been satisfied. […] [12] On the first criterion [679(3)( a )], the Supreme Court noted, in R. v. Oland , that the "not frivolous" test is a very low bar.

The applicant need only show that his ground of appeal would not necessarily fail. [13] The applicant’s leave to appeal raises the following grounds: (1) the Court erred in failing to consider the period of 25 months of trial between the decision of the case management judge dismissing the applicant’s motion for a stay of proceedings and the end of the trial, (2) the Court erred in holding that the delay under

section 11(

b) of the Charter must fall within the category of "clearest of cases" in order to be qualified as unreasonable and (3) the Court erred in its application of the "Jordan Framework" to the judgment of the case management judge. [14] Without ruling on the merits of these grounds, at this stage, given the minimal standard for the first criterion, I cannot conclude that they are frivolous.

[15] Nonetheless, aside from a consideration of the grounds of appeal for purposes of the first criterion, the case law establishes that the strength of those grounds may be considered for purposes of the third criterion [679(3)( c )], namely, the public interest. Thus, grounds that, although not frivolous, are weak, bolster the enforceability interest of judgments, which then takes precedence over their reviewability. [16] I am of the view that this is the case in the matter at hand. The grounds of appeal the applicant raises involve much more of an application to a specific case than a question of principle.

Although I cannot characterize them as futile, they nevertheless have very little value on their very face and little chance of success. [17] Consequently, based on the guidance of the Supreme Court in Oland, I conclude that the enforceability of judgments must prevail here and that the application for release from custody must be dismissed. [References omitted and sections added] [ 7 ] On May 8, 2020, the acting Chief Justice authorized the review of the judgment by a panel of the Court. [6] * * * [ 8 ] The applicant argues that the single judge erred in deciding that “[t]he grounds of appeal the applicant raises involve much more of an application to a specific case than a question of principle” and that, without being futile, “they nevertheless have very little value on their very face and little chance of success”.

The applicant advances that on the contrary, his grounds of appeal “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” [7] and raise questions of principle applicable to all cases to be decided under s. 11(

b) of the Canadian Charter of Rights and Freedoms . [8] The single judge is also said to have erred as his judgment is “clearly unwarranted” in the circumstances of this case. The applicant therefore invites the Court to vary the judgment and grant him bail pending the outcome of his appeal. [ 9 ] The Crown contends that the single judge committed no error in fact or in law. His judgment is clearly not unwarranted as he concluded that the principle of the immediate enforceability of judgments trumped reviewability in view of the grounds of appeal he had alleged to the Supreme Court.

Such a finding being a matter of discretion, it should not be varied by the Court. * * * [ 10 ] In Oland , [9] Moldaver, J., on behalf of the Supreme Court, described the role of the review panel under s. 680(1) Cr.C . as follows: [61] Ultimately, in my view, a panel reviewing a decision of a single judge under s. 680(1) should be guided by the following three principles. First, absent palpable and overriding error, the review panel must show deference to the judge's findings of fact.

Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. [62] This approach allows for meaningful review while extending a measure of deference to the judge's decision.

It also achieves symmetry with the review process at the trial stage, save for those offences identified in s. 469 of the Code, for which the review process is governed by s. 680(1) . * * * [ 11 ] The criteria governing applications for release under s. 679(1)(

c) of the Code are set out in s. 679(3) Cr.C .: 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, 679(1) Un juge de la Cour d’appel peut, en conformité avec le présent article, mettre un appelant en liberté en attendant la décision de son appel : (…) […] (

c) in the case of an appeal or an application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, where leave is required, his application for leave to appeal.

c) si, dans le cas d’un appel ou d’une demande d’autorisation d’appel devant la Cour suprême du Canada, l’appelant a déposé et signifié son avis d’appel ou, lorsqu’une autorisation est requise, sa demande d’autorisation d’appel. (…) […] 679(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 679(3) Dans le cas d’un appel mentionné à l’alinéa

(1) a) ou c), le juge de la cour d’appel peut ordonner que l’appelant soit mis en liberté en attendant la décision de son appel, si l’appelant établit à la fois : (

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

a) que l’appel ou la demande d’autorisation d’appel n’est pas futile; (

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

b) qu’il se livrera en conformité avec les termes de l’ordonnance; (

c) his detention is not necessary in the public interest.

c) que sa détention n’est pas nécessaire dans l’intérêt public. [ 12 ] Still in Oland , [10] the Supreme Court clarified the principles and policy considerations by which appellate courts should be guided under s. 679(3) Cr.C . when deciding whether someone should be released on bail pending the determination of his appeal against

conviction. The same principles and policy considerations apply in the case of an application for leave to appeal to the Supreme Court, with the appropriate modifications, however, to reflect the stage of the appellate proceedings. [ 13 ] As the single judge rightly stated, the only criterion at issue in the case at hand is the third one, i.e. the public interest criterion of para. 679(3) (

c) Cr.C. This criterion involves balancing two principles, enforceability and reviewability: [11] [25] […] 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 acknowledgment that our justice system is not infallible and that persons who challenge the legality of their convictions should be entitled to a meaningful review process – one which did not require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful. [ 14 ] One element forming an integral part of the analysis relating to the public interest is security of the public.

In the case at hand, the Crown did not contest the fact that the applicant poses no threat to public security, and the single judge rightly agreed with it. [ 15 ] Analyzing the other components of the public interest criterion, the single judge, however, concluded that the enforceability of judments must prevail over reviewability. [ 16 ] Contrary to the applicant’s argument, the judge’s conclusion does not rely soly on his evaluation of the strength of his grounds of appeal. Paragraph 16 of his reasons must not be read in a vacuum, but, rather, globally with paragraphs 15 and 17.

In these paragraphs, the single judge carries out the balancing exercice required under s. 679(3) (

c) Cr.C. , taking into consideration his evaluation of the strength of the grounds of appeal. [ 17 ] On this latter issue, the applicant is right to say that the single judge did not characterize the strength of his grounds of appeal in the terms used by Moldaver, J. in Oland , as he did not expressely state whether or not they surpass the “not frivolus” test.

This, however, is not an error of law, as one can clearly understand from his reasons that, although the single judge did not consider the applicant’s grounds of appeal futile, he considered that they were not serious enough in the circumstances of this case to conclude that reviewability must prevail. Regarding that assessment, Moldaver, J. wrote in Oland : [45] In the end, appellate judges can be counted on to form their own “preliminary assessment” of the strength of an appeal based upon their knowledge and experience. This assessment, it should be emphasized, is not a matter of guesswork.

It will generally be based on material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, along with relevant authorities. In undertaking this exercise, appellate judges will of course remain mindful that our justice system is not infallible and that a meaningful review process is essential to maintain public confidence in the administration of justice.

Thus, there is a broader public interest in reviewability that transcends an individual’s interest in any given case. [ 18 ] In addition to his own “knowledge and experience”, the single judge had the benefit of the reasons given by the Court, which unanimously rejected the applicant’s sole ground of appeal before it, i.e. that his right to be tried within a reasonable time guaranteed by s. 11(

b) of the Canadian Charter of Rights and Freedoms had been breached. [ 19 ] In the case at hand, the applicant proposes three grounds of appeal that attack the reasonning adopted by the Court. He submits that this Court erred in refusing to consider, for the first time on appeal, the two-year delay to complete the trial after the question of the delay was raised “in the absence of a concrete foundation in the record of the appelant”. His failure to raise the argument before the trial judge was not “tantamount to a waiver of the right” for that period of time, as the trial was concluded prior to the release of Jordan . [12] Furthermore, this Court erred when it concluded that “in cases under

section 11 ( b ) [of the Charter ,] the remedy of a stay is automatic but only if the violation of the right falls within the clearest of cases”. According to the applicant, such a distinction was abandoned by the Supreme Court in R. v. Mills . [13] Lastly, the Court erred in its application of the “Jordan Framework”. [ 20 ] The Court sees no error in the single judge’s conclusion that these grounds of appeal had “very little value on their face and little chance of success”, given, among other things, his failure to bring a new application at trial claiming unreasonable delay.

Appellate courts are reluctant to accede to a ground of appeal advanced for the first time on appeal without the issue first having been raised before the trial judge, particularly where, as in the case at hand, both parties agree to characterize the trial, which occupied more than two years of a jury’s time, as being very complex. As to his second ground, it seems to misquote the reasons of Healy, J.A., at paras. [48] to [51] of the judgment of the Court.

Evidence must establish that the delay is unreasonnable before justifying the stay of proceedings, which is the only remedy possible. [ 21 ] Furthermore, the strength of the grounds of appeal is one, but not the only factor to be considered in evaluating the public confidence criterion. The stage of the appellate proceeding is certainly one of them and the single judge was right to take it into consideration in his evaluation of public confidence.

A reasonable member of the public, i.e. “thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values” would have considered that the applicant’s argument had already been rejected by an appellate court. [ 22 ] On this particular issue, the Crown argues that “the pendulum must swing towards enforceability and away from bail pending further review after the correctness of the convictions entered at trial has been affirmed on appeal”. [14] [ 23 ] Here, some nuance is required.

While we agree that there will be situations where “the pendulum swing” will occur, [15] it will not be so in every case. The possibility of an appeal to the Supreme Court forms an integral part of the process of the Canadian judicial system of justice.

Section 679 Cr.C . provides that the same criteria apply in the case of an appeal against conviction to the court of appeal and an appeal or application for leave to appeal to the Supreme Court. Each case is specific and we cannot afford to generalize, as the respondent suggests. [ 24 ] The Court is therefore of the view that the single judge did not commit any error of law or of principle that could justify its intervention. [ 25 ] In addition, the applicant did not establish that the single judge’s decision was clearly unwarranted. It is worth mentioning again

that the role of the review panel is not to substitute its own decision for that of the single judge, but only to determine whether or not the latter’s conclusion was clearly unwarranted. The security of the public component of the public confidence criterion clearly favoured bail.

However, based on the seriousness of the crime – a fraud in which the applicant was an important actor, involving US$123 million of money belonging to Cinar, a publicly held company – the significant term of incarceration imposed, the strength of the grounds of appeal which, although not futile, have little value, and the stage of the proceedings, the single judge could reasonably conclude that the enforceability interest overshadows the reviewability interest such that detention is necessary in the public interest.

In such circumstances, the review panel must show deference and not substitute its own decision. [ 26 ] The application to review will therefore be rejected. FOR THESE REASONS, THE COURT: [ 27 ] DISMISSES the application to review. MANON SAVARD, J.A. CLAUDINE ROY, J.A. STÉPHANE SANSFAÇON, J.A. Mtre Andrew Barbacki For the Applicant Mtre Matthew Ferguson Director of Criminal and Penal prosecutions For the Respondent Date of hearing: May 29, 2020.