R. v. Roussin (B.), 2011 MBCA 103

Citation: R. v. Roussin (B.), 2011 MBCA 103 Date: 20111220 Dockets: AR 10-30-07352; AR 10-30-07353 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : HER MAJESTY THE QUEEN ) D. M. Sawchuk ) for the Applicant Respondent ) ) C. A.

Vanderhooft ) for the Respondent - and - ) ) Chambers motions heard: ) August 18, 2011 BJARNE ROUSSIN ) ) Decision pronounced: (Accused) Applicant ) December 20, 2011 SCOTT C.J.M. 1 The issue on this application for judicial interim release (JIR) is whether it is in the public interest to release the applicant, who is not otherwise a good candidate for release, in light of a number of unusual circumstances, most notably the alleged strength of his appeal. 2 Pursuant to s. 679(3) of the Criminal Code (the Code ), there are three well-known criteria which an applicant must establish when seeking JIR pending an appeal, namely, (1) the appeal is not frivolous, (2) the applicant will surrender himself into custody when ordered to do so, and (3) detention is not necessary in the public interest. 3 In this instance, the Crown concedes that the first two criteria have been met, but not the third.

The Factual Background 4 The applicant was convicted on December 12, 2009, by judge and jury of a total of 16 offences, including one count of armed robbery (he was acquitted on three other similar counts), one count of robbery with an imitation firearm, one count of attempted robbery, two counts of possession of a prohibited weapon, one count of flight from police in a motor vehicle, one count of dangerous driving and three counts of uttering threats. 5 On March 12, 2010, the applicant was sentenced to a total of 12 years in jail for the various offences.

After giving him double credit for the four years that he had been in custody, there remained to be served with respect to these offences a total of four years. 6 On March 11, 2010, following trial by judge alone, the applicant was convicted of one count of dangerous driving and two counts of uttering threats. He was sentenced on March 12, 2010, to a total of one year in jail, to be served consecutively to the sentences imposed with respect to the earlier trial.

In grand total, the applicant was sentenced to 13 years’ incarceration, with five years to be served post-sentencing. 7 The applicant has appealed all convictions and sentences. 8 At the time of the convictions that form the subject-matter of these appeals, the applicant was no stranger to the criminal justice system. 9 As noted by the first sentencing judge in the proceedings of March 12, 2010: Mr. Roussin has a lengthy criminal record both as a youth and as an adult. Between 1996 and 2006, he had 17 convictions for property offences and six prior convictions for failing to comply with a recognizance.

In my view, the most relevant convictions were on

December 1st, 2005, when Mr. Roussin pleaded guilty to two counts of robbery with a firearm, a third count of robbery and two countsof failing to comply with a recognizance. He was sentenced to six years’ incarceration concurrent for the robberies and 30 days’concurrent on the charges of failing to comply with a recognizance. 10 The sentencing judge also noted that some of the offences for which the applicant had just been convicted took place lessthan a month and a half after he had been released from his most recent period of incarceration. 11 The application for JIR was argued before me on August 18, 2011.

The delay in bringing the application is explained bythe fact that (as the court file confirms) there were difficulties in obtaining counsel and in obtaining legal aid. I was advised that whilethe transcripts of the proceedings were ordered some time ago, it will be awhile yet before they are completed. 12 In a nutshell, Mr.

Sawchuk, while recognizing that the applicant is not an ideal candidate for JIR, argues that there arespecial circumstances, namely, the delay since the sentences were imposed, the fact that the applicant has served a substantial portion ofhis sentence (and would have been eligible for day parole May 2011 but for his appeal) and strong arguments on the merits, that militatein favour of his interim release, subject to very strict bail conditions. 13 I was advised by Mr.

Sawchuk that there are numerous substantive issues on the conviction appeal, among them the refusalto sever the applicant’s trial from those of his co-accused, the admissibility of wiretap evidence, whether the applicant’s conviction ontwo of five similar counts of robbery resulted in an inconsistent verdict and, finally and most significantly, an allegation that at leastsome members of the jury “Googled” the applicant’s name and may have thereby made themselves aware of his extensive criminalrecord prior to completion of the trial. A new trial should be ordered, it is argued, on this ground alone.

This latter issue was brought tothe attention of the trial judge after the verdict had been rendered and the jury discharged, but before sentencing. The trial judgedeclined to deal with the issue because he (correctly in my view) considered himself to be functus at that stage of the proceedings. 14 Finally, there is strong support for the applicant, as confirmed by the letters of reference and support that have been filed. 15 The Crown submits that the delay in applying for JIR is not a significant factor since the applicant could have applied atany time had he wished to do so.

While agreeing, as earlier noted, that the appeal is not frivolous, the Crown argues that the applicantdoes not have compelling grounds of appeal when considering the public interest. The Crown emphasizes that there was a lengthy andclear jury charge and considerable corroboration concerning the guilt of the applicant. There are obvious difficulties in obtainingevidence concerning the allegation of juror misconduct from the jurors given the provisions of s. 649 of the Code.

The fact that theapplicant has recently retained a private investigator is, the Crown argues, not a particularly meaningful fact given this provision. 16 Finally, reference is made by Crown counsel to a psychological/psychiatric assessment report made in July of 2010 which isdecidedly negative about the applicant’s prospects for rehabilitation. The report states: From an actuarial violence risk prediction perspective, Mr. Roussin should be seen as falling at a moderate risk level.

This risk estimateis based upon several factors, including the nature of his current criterion offending, a lengthy history of Robbery and Property offences,Weapons possession, and Failures to Comply with Court-imposed and Community-based Supervision Expectations. Further, the riskestimation is less based upon a history of assaultive behaviour, but instead rests more upon the fact that weapons possession and threat ofweapons usage (within the context of robberies), certainly creates the potential for violence to occur.

Unfortunately, given that Mr.Roussin has participated in appropriate correctional programming in the past, I am doubtful that further attempts of a similar nature arelikely to result in significant change. …. [emphasis added] Application to Introduce New Evidence 17 Subsequent to the presentation of oral argument, the applicant made an application to admit fresh evidence on the issue ofthe alleged juror misconduct. As noted earlier, a private investigator has been hired by the applicant to take recorded statements fromcertain persons (it is not clear from whom). These statements were recently received by Mr.

Sawchuk. The applicant seeks to now haveadmitted in these bail proceedings the “fruits of that investigation” on the basis that it can provide information into the nature of thealleged jury tampering. I am also advised that the Crown has followed up on this issue, and a police investigation of some sort has takenplace. 18 The applicant recognizes that s. 649 of the Code protects the veil of secrecy in the jury room and prevents jurors from beingcalled as witnesses in any appeal proceeding (see Wilson v. R. (1993), (MB CA), 85 Man.R. (2d) 250 (C.A.)) and thatthe decision of Palmer et al. v.

The Queen, (SCC), [1980] 1 S.C.R. 759 (see, as well, R. v. Stolar, (SCC),[1988] 1 S.C.R. 480) establishes rigorous criteria for the admission of fresh evidence before an appellate court. Nonetheless, whendealing with the issue of possible juror misconduct, Mr. Sawchuk refers to the decision of R. v.

Gumbly (D.) (1996), 1996 NSCA 213, 155 N.S.R. (2d) 117 at para. 67 (C.A.), which stands for the proposition, he says, that where there is a challenge to the trialprocess itself arising from possible juror misconduct, the rigorous application of the criteria in Palmer should be relaxed in the interestsof justice so as to prevent a possible miscarriage of justice.

As the court said in Gumbly (at para. 84): The due diligence requirement, even under Palmer, is not strictly applied in criminal cases … and should be considered “in the totalityof circumstances and a balance of factors respecting the ends of justice” …. 19 In the result, the court in Gumbly admitted fresh evidence, being affidavits of the accused and a party who had attended the

trial, which suggested that one of the jurors had discussed the evidence with her husband and had made up her mind regarding theaccused’s guilt before hearing all of the submissions. 20 Parenthetically, the court concluded (at para. 113): Any communications during the course of a trial, between a juror and any person, other than a member of the jury, respecting trialissues, are to be condemned. The information placed before this court, in the affidavits of Mr. Gumbly and Ms.

Valiquette, does notestablish, in my opinion, that the appearance of unfairness is “incontrovertible”, or that the confidence of the public should be shaken,when viewed in the light of the evidence, the instructions of the court to the jury, the oath taken by each member of the jury, thediscussions between the trial judge and counsel, and the verdict reached. 21 The reference by the court to the requirement that any appearance of unfairness be incontrovertible is consistent withdecisions in the United States and England which have endorsed the “real danger” test, namely, “Was there a real danger that anythingsaid or done had prejudiced the jury against the accused?” (at para. 102). 22 To all of this, the Crown, while taking no issue with the authorities relied upon by the applicant, states that the proposedstatements – which the Crown, unlike the court, has obviously read – are not decisive.

But more importantly, the Crown argues: …. With respect, the [applicant] is inviting the Court to rule on the fresh evidence motion and to weigh the evidence on that motionprematurely. That motion, and determination, will be made by the panel hearing the appeal. …. 23 I agree with this latter submission by the Crown. Gumbly, relied on so strongly by the applicant, is a decision of a panel ofthe Nova Scotia Court of Appeal, not a single judge in chambers hearing an application for JIR.

I am not aware of any authority wherefresh evidence dealing solely with the appeal’s potential merit has been received in a JIR application. In my opinion, the proper time andplace to argue the admissibility of sensitive evidence, touching upon potential juror misconduct of such significance as to warrant amistrial, is before a panel of the court, when full argument on all issues can be made. 24 I therefore reject the application to introduce new evidence.

The Law 25 Undoubtedly, the seminal authority when interpreting the provisions of s. 679 of the Code is the decision of Justice Arbour(as she then was) in the Ontario Court of Appeal in R. v. Farinacci (L.W.) et al. (1993), (ON CA), 67 O.A.C. 197. Concerning the “public interest” component, she had this to say (at para. 41): Section 679(3)(

c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decision grantingor denying bail pending appeal can be reviewed. The concerns reflecting public interest, as expressed in the case law, relate both [to] theprotection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability andreviewability. It is the need to maintain that balance which is expressed by a reference to the public image of the criminal law, or thepublic confidence in the administration of justice. The “public interest” criterion in s. 679(3)(

c) of the Code requires a judicialassessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to betemporarily suspended, and the need to respect the general rule of immediate enforceability of judgments. 26 Thus (at paras. 42-43): Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a personconvicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, bedenied bail.

In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability. …. Assuming that the requirements of s. 679(3)(

a) and (

b) of the Criminal Code are met, entitlement to bail is strongest when denial ofbail would render the appeal nugatory, for all practical purposes. …. 27 There are any number of cases that support the view that strong grounds of appeal may result in detention not beingnecessary in the public interest, even where other factors suggest the applicant may not be a good candidate for JIR. In R. v. Pabani(1991), (ON CA), 10 C.R. (4th) 381 (Ont. C.A.), Goodman J.A. observed (at para. 10): ….

There will no doubt be cases where the hearing of an appeal will be so long delayed and the probability of success on the appeal sostrong that it would be contrary to the public interest to refuse a release and a fortiori an applicant’s detention would not be necessary inthe public interest.

A strong probability of success on the appeal may be sufficient grounds in itself to establish that an appellant’sdetention is not necessary in the public interest. 28 This concept is sometimes explained on the basis of a sliding scale, “whereby, the more compelling public interestconsiderations become, the strength of the appeal should be considerably stronger” (The Honourable Mr. Justice Gary T. Trotter, The

Law of Bail in Canada, 3d ed., looseleaf (Toronto: Thomson Reuters Canada Limited, 2010) at 10-29, n. 123). In R. v. Rhyason (B.P.),2006 ABCA 120, 384 A.R. 146, Berger J.A. described the weighing process as follows (at para. 15): …. … [W]here there is a moderate public interest to enforce a conviction, the strength of the appeal must be stronger than “notfrivolous”, and where there is a compelling public interest the strength of the appeal should be considerably stronger.

It follows thatfinding 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. 29 See, as well, R. v. Mapara (S.), 2001 BCCA 508, 156 B.C.A.C. 138, where Ryan J.A., writing for the court, observed (atparas. 35-36): …. Very strong grounds will tip the scale in favour of reviewability.

Depending on the demonstrated strength of the grounds, other factors, such as the circumstances of the offence – for example,pre-meditated violence – and, inordinate delay will be matters to weigh in the balance. The essential question, however, will be whetherthe appellant has been able to establish that enforceability is outweighed by reviewability. To similar effect, see the brief reasons of Rosenberg J.A. in R. v. P.S.P. (1999), (ON CA), 121 O.A.C. 309 at para. 3. 30 There are numerous other examples. For instance, in R. v.

Wucherer (P.J.), 2004 BCCA 602, 205 B.C.A.C. 164, theapplicant, as in this case, had a lengthy criminal record. Notwithstanding, Oppal J.A. found there was compelling merit in theapplicant’s ground of appeal regarding jury selection and concluded that the strength of the appeal, combined with the imposition ofstrict conditions, outweighed concerns about the applicant’s prior record. See, as well, R. v.

C.D.B., 2006 YKCA 8, 233 B.C.A.C. 1,where, despite the existence of the applicant’s “horrendous” record, the relative strength of the appeal and the fact that if the applicantwas detained any longer, the appeal would be rendered nugatory, led to JIR being granted. In R. v. Hayre (H.S.), 2009 BCCA 247,271 B.C.A.C. 177, the chambers judge took into account, in determining the strength of the appeal, important and potentially decisivenew evidence that was sought to be introduced on the appeal. 31 Interestingly, given the facts in this instance, in R. v.

Baltovich (2000), (ON CA), 47 O.R. (3d) 761(C.A.), Rosenberg J.A. wrote that in considering the strength of the grounds of appeal, it was appropriate to take into account “thelengthy period of time that remains before this appeal can be heard” (at para. 42). In comments that are particularly apt here, he went onto add (ibid.): ….

While it may be said that the applicant “caused” the delay in that he instructed his counsel to pursue difficult and complex matters offresh evidence, there is no suggestion that the applicant has personally been responsible for any delay or that he has sought to avoid thehearing of the appeal. 32 While the precise issue being discussed in these reasons has not been expressly dealt with before by this court, the previousdecisions in R. v. Le (T.D.), 2009 MBCA 35, 236 Man.R. (2d) 225, and R. v.

Olenick, 2010 MBCA 48, clearly confirm theappropriateness of considering the strength of an appeal under s. 679(3)(c). 33 The only decision that I have been able to locate that is against the weight of authority summarized in these reasons is thatof R. v. Allen, 2001 NFCA 44, 45 C.R. (5th) 242, where Wells C.J.N. made a strong statement against taking the strength of an appealinto consideration under subs. (3) given concerns that the single judge hearing the application not be seen to be pre-empting or undulyinfluencing the decision of a panel of the court.

But the background circumstances in Allen may well explain these comments. As notedby Gary T. Trotter, “Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion” (2001) 45 C.R. (5th) 267 (atp. 269): …. … [W]hen Wells C.J.N. was asked to direct a review, the original bail pending appeal application was over a year old and the appealhad already been argued and judgment was reserved. Moreover, the Chambers judge who heard the bail application was a member ofthe panel that heard the appeal. ….

Decision 34 In my opinion, the case law is quite clear that it is entirely appropriate to take into account the strength of the potentialappeal in determining whether detention is necessary in the public interest. The authorities reviewed in this decision confirm that thebalancing act between reviewability and enforceability takes place on a sliding scale and that especially strong grounds of appeal arerequired 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 JIR were successful in their application because therewere compelling reasons in favour of reviewability. Is this such a case? 35 In my opinion, the answer is clearly “No.” Of particular concern are the comments made in the psychological/psychiatricreport respecting the applicant’s willingness to benefit from help available to him to aid in his return to society.

There is no evidencebefore me to inspire any confidence in his willingness to live by the rules of society; nor can it be forgotten that he was barely out ofprison after serving a prior six-year sentence for robbery when he is alleged to have committed the string of offences that bring him nowbefore this court. In my opinion, the reasons for reviewability are not so compelling as to warrant JIR; it is simply too risky to turn this

person loose upon the public. 36 As noted by McEachern C.J.B.C. in R. v. Nguyen (Y.V.) (1997), (BC CA), 97 B.C.A.C. 86 (at paras.22-23): … [A]s a great many offences involve some violence, the fact that there is violence cannot of itself be conclusive against release as therewould otherwise be very few cases where a detention order should not be made. An important consideration is whether the violenceoccurred in circumstances of malevolent rather than foolish or spontaneous intent.

It is important to consider whether the applicant is aperson prone to violence or cruelty or whether she or he became caught up in circumstances where awful things sometimes happen. Without stating any rule which can be applied to every case, it is my view that detention pending appeal will not always be necessary foryoung men or women fighting on a Saturday night, even though awful consequences sometimes result.

On the other hand, where the offence appears to have been committed with wanton, deliberate or cruel violence, particularly againstvulnerable victims such as children or aged persons, or by persons with substantial criminal records or by persons already on bail orparole for similar offences, then the public may well lose respect for the administration of justice if detention is not continued afterconviction. [emphasis added] 37 The public interest in enforcing the conviction in this instance is paramount. 38 To sum up, I can do no better than to repeat the words of MacInnes J.A. in Olenick (at para. 17): … [N]either the strength of the accused’s appeal nor any other factor advanced by the accused has satisfied me that his detention is notnecessary in the public interest.

There are no circumstances here that, in my view, are sufficient to give precedence to the principle ofreviewability over that of enforceability and thus warrant the accused’s release pending trial. 39 The application for JIR is dismissed. ____________________________ C.J.M.