2020 QCCA 1085, 2020 QCCA 1085

Dhingra c. R. 2020 QCCA 1085 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006787-186 (500-01-099546-134) DATE: August 27, 2020 BEFORE THE HONOURABLE ROBERT M. MAINVILLE, J.A. SONINDER DHINGRA APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] On June 6, 2018, the appellant was found guilty of trafficking and importing large quantities of cocaine and crystal meth and of criminally conspiring to traffic such substances. [ 2 ] On January 16, 2019, he was sentenced to a total of 15 years of imprisonment.

A pretrial detention period of 4 years, 1 month and 13 days was however deducted on the basis of a credit of one and a half days of imprisonment for each day of pretrial detention, for an effective total sentence of imprisonment of 8 years, 9 months and 25 days. [ 3 ] An appeal of the conviction on grounds involving questions of law was filed on July 4, 2018 and an application for leave to appeal the conviction on grounds involving questions of fact or questions of mixed fact and law was allowed on October 18, 2018. The sentence has not been appealed.

Though over two years have since elapsed, there has been no progress whatsoever with regard to the prosecution of the appeal. [ 4 ] The appellant now seeks to be released pending the final determination of his appeal. * * * [ 5 ] The authority to release an appellant pending appeal is found in s. 679(3) of the Criminal Code : 679

(3) In the case of an appeal [against conviction], 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 [contre une déclaration de culpabilité], 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. [ 6 ] The first criterion is established if a review of the grounds of appeal lead to the conclusion that they are not frivolous.

This is a low bar. [ 7 ] The second criterion requires that the applicant satisfactorily establish that he is not a flight risk and that he will surrender himself into custody should the appeal fail. [ 8 ] The third criterion is assessed by having regard to two components: public safety and public confidence in the administration of justice. [ 9 ] The public safety component essentially requires the appellant to satisfactorily establish that he does not present a threat of reoffending while released. [ 10 ] It is the component of the third criterion dealing with public confidence in the administration of justice that has attracted the most judicial attention, since it relates to the inherent tension between the appellant’s right to have his conviction reviewed on appeal (the reviewability interest) and the enforceability of the trial court’s finding of guilt and the ensuing sentence (the enforceability interest).

[ 11 ] In R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250, Moldaver, J. identified the factors to be considered in resolving that tension by referring to s. 515(10) (

c) of the Criminal Code pertaining to pretrial bail, but with the proviso that the burden of satisfying these factors rests on the appellant rather than the Crown ( Oland , paras. 31-36 ): [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. [33] Approaching the matter this way advances an important policy consideration. It has the virtue of promoting consistency and harmony between the trial and appellate contexts so that, together, they may be seen as providing a cohesive and comprehensive statement of the law governing bail in Canada.

Importantly, it accords with the basic principle that, in general, bail should not be more readily accessible for someone who has been convicted of a crime than for someone who is awaiting trial and is presumed innocent. Approaching the two contexts in that fashion can only serve to foster the goals of fairness and coherence and enhance society’s confidence in the administration of justice. [34] Greater accessibility to bail pending trial is rooted in the presumption of innocence.

Accused persons charged with an offence in Canada are presumed to be innocent, and they remain so unless and until their guilt is proved beyond a reasonable doubt. With this in mind, the framers of the Canadian Charter of Rights and Freedoms saw fit to include in s. 11 (

e) the right of every person charged with an offence “not to be denied reasonable bail without just cause”: R. v. Hall , 2002 SCC 64 , [2002] 3 S.C.R. 309, at para. 13 . [35] By contrast, once a conviction is entered, the presumption of innocence is displaced and s. 11 (

e) of the Charter no longer applies. This is reflected in the shift in onus which occurs when a person who has been convicted and sentenced applies for bail pending appeal. Unlike the pre-trial context, where by and large the onus rests on the Crown to establish that an accused should be detained in custody, for appeal purposes, Parliament has seen fit to reverse the onus onto the applicant in all cases. [36] With these thoughts in mind, I turn to the enforceability and reviewability interests to explain how, with appropriate modifications, the public confidence factors listed in s. 515(10)(

c) are instructive in identifying the factors that make up the public confidence component in s. 679(3)(c). [ 12 ] As a result, with respect to public confidence in the administration of justice, pertinent factors related to the seriousness of the crime are to be considered; these include the assessment of the gravity of the offence, the circumstances surrounding the commission of the offence and the potential length of imprisonment.

Other appropriate factors also include public safety concerns that fall short of the substantial risk mark and lingering flight risks that do not rise to the substantial risk level under the second criterion: Oland , para. 39 . [ 13 ] The assessment of the strength of the appeal, which is taken as an adaptation of the factor prescribed by s. 515(10) ( c )(

i) Cr.C . , is also central to the analysis. As explained in Oland (paras. 40-41, 44-46 ) [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. In my view,categories and grading schemes should be avoided. Phrases such as “a prospect of success”, “a moderate prospect of success”, or “arealistic prospect of success” are generally not helpful. Often, they amount to little more than wordsmithing.

Worse yet, they are liable todevolve into a set of complex rules that appellate judges will be obliged to apply in assessing the category into which a particular appealfalls. [45] In the end, appellate judges can be counted on to form their own “preliminary assessment” of the strength of an appeal basedupon their knowledge and experience. This assessment, it should be emphasized, is not a matter of guesswork. It will generally be basedon material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, along withrelevant authorities.

In undertaking this exercise, appellate judges will of course remain mindful that our justice system is not infallibleand that a meaningful review process is essential to maintain public confidence in the administration of justice. Thus, there is a broaderpublic interest in reviewability that transcends an individual’s interest in any given case. [46] As a final matter, I note that the remedy sought on appeal may also inform the reviewability interest.

For example, if asuccessful appeal can result only in a murder conviction being reduced to manslaughter, this will lessen the interest in reviewability, evenif the grounds of appeal appear to be strong: R. v. Meda (1981), (BC CA), 23 C.R. (3d) 174 (B.C.C.A.); R. v. Olsen(1996), (ON CA), 94 O.A.C. 62, at para. 5; R. v. Roe, 2008 BCCA 253, 256 B.C.A.C. 308, at para. 14; R. v.

Lees, 1999BCCA 441, 127 B.C.A.C. 280, at paras. 4-5. [14] As a result, the assessment of the strength of the appeal may play a determining role, even in the most serious offences. “Thus,for the purposes of s. 679(3)(c), even in the case of very serious offences, where there are no public safety or flight concerns and thegrounds of appeal clearly surpass the ‘not frivolous’ criterion, a court may well conclude that the reviewability interest overshadows theenforceability interest such that detention will not be necessary in the public interest.” (Oland, para. 66). * * * [15] The appellant submits that despite his best efforts, he has been unable to obtain the transcripts of his trial; as a result, it is quitepossible that he may obtain a conditional release or be otherwise released before the appeal is heard, rendering his appeal largely useless.He further submits that he is precluded from properly arguing his release application as a result of the unavailability of the trialtranscripts.

As a subsidiary argument, he asks that the Court take into account his medical condition which would increase his healthrisks in the context of the ongoing Covid-19 pandemic. [16] The Crown opposes the release. The Crown submits that the appellant’s grounds of appeal are insufficiently compelling tojustify release on the first criterion and, at the very least, do not to satisfy the appellant’s burden under the third criterion pursuant towhich he must establish that the interest of reviewing his conviction overshadows the interest of enforcing it.

The Crown furthercontends that the Covid-19 pandemic has no bearing on these proceedings. * * * [17] As will become apparent, the principal difficulty with respect to the adjudication of the appellant’s application for releasepending the outcome of his appeal lies in the delays that have occurred with respect to securing the transcripts of the trial and theconfusion as to what transcripts, if any, have been provided to the appellant’s lawyers. [18] The record is not clear as to when the trial transcripts were first ordered.

The confusion in this matter may stem from thechanges of attorneys that occurred in the file since the appeal was initiated. In any event, in an email dated October 16, 2019, Mtre EricPoudrier from the prosecutor’s office informed the appellant’s counsel that the transcripts had been ordered in July 2019. A further jointrequest to obtain some missing transcripts appears to have also been made in October 2019. [19] Yet, at the hearing on the application, the appellant’s counsel stated that she had received none of the trial transcripts.

Thatassertion was not directly challenged by the prosecution. [20] Moreover, it is not disputed that the trial was held on the basis that the proceedings would be simultaneously interpreted for theappellant and that the ensuing translation would be recorded separately. Yet the numerous requests made by the appellant’s counsel toobtain a confirmation of the location of the recordings of the translation have remained unanswered. [21] Prior to the hearing of the application, counsel for the prosecution enquired as to the status of the trial transcripts and of therecording of the English translation.

On August 24, 2020, a technician working at the Montreal Courthouse informed him throughvarious emails that the recordings of the English translation had been found. She did not appear to have a copy of the request fortranscripts of these recordings. She was rather of the view that no “official” request for transcribing the English translations had beenreceived.

She further wrote that the timeframe to prepare these transcripts can be long in light of the small number of available Englishlanguage stenographers and that delays of approximately 6 to 8 weeks from the receipt of an “official” request should be expected. [22] As for the transcripts of the trial itself, a staff member of the Service du greffe criminel et pénal informed counsel for theprosecution that the transcripts of the trial hearing days of January 25, 26 and 28 and February 26 and 27, 2018 were available. However,these transcripts do not seem to have been provided to the appellant.

Moreover, the trial lasted at least 15 days and there is no indicationas to when the transcripts of the other trial hearing dates will be available. [23] There is no doubt that this is a situation which is unfortunately all too common in appeals from trials held with English speakingdefendants. The delays in obtaining trial transcripts to allow appeals to proceed, particularly when the trial was held in English or wassimultaneously interpreted into English, have become a recurring difficulty affecting the confidence of the public in the administration ofjustice.

Schrager, J.A. already took note of this problem in Sorella v. R., 2020 QCCA 896, para. 30. Though, in this case, some of thedelay may be attributable to the Covid-19 pandemic, the systemic delays in obtaining English language transcripts predate the pandemic. [24] These delays are particularly egregious in this case since the appellant is currently incarcerated. The net result is that not only is

the hearing of the applicant’s appeal substantially delayed, but also the analysis set out in Oland becomes extremely difficult to carryout.

This is particularly true in this case, where resolving the tension between the appellant’s right to have his conviction reviewed onappeal (the reviewability interest) and the enforceability of the trial court’s finding of guilt and the ensuing sentence (the enforceabilityinterest) is far from obvious in light, among other factors, of the serious nature of the offences. [25] As the appellant’s counsel rightly points out, though a considerable amount of time has elapsed since the appeal was initiatedand the transcripts ordered, the appellant has still not been provided the tools to move his appeal forward or to properly argue before thisCourt that the reviewability interest overshadows the enforceability interest such that his detention can be found not to be necessary inthe public interest. [26] In addition, the prosecution submits in this case that there is a risk that the appellant may reoffend should he be released.

Yetthe transcripts of the bail hearings and of the judgment of December 6, 2016 refusing the release of the appellant have not been submittedto the Court, presumably because of the long delays in preparing transcripts. [27] That being stated, the serious nature of the offences of which the appellant has been found guilty require the Court to treadcarefully.

On the other hand, the appellant cannot be held in limbo indefinitely as a result of never-ending delays in obtaining thetranscripts required to prosecute his appeal and to argue for his release pending the disposition of his appeal. [28] Consequently, I will refer the appellant’s application for release to a panel of the Court, while making appropriate orders toensure that when the Court hears that application, the issue of the transcripts has hopefully been resolved.

In the event it is not, theparties should then be ready to argue what relief or remedy the appellant is entitled to as a result of the failure to provide him withtranscripts in a timely manner. [29] As for the subsidiary submission with respect to the appellant’s health situation and the ongoing Covid-19 pandemic, I note thatthe Court of Appeal for Ontario in R. v. Stone, 2020 ONCA 448, the Court of Appeal of Alberta in R. v. Robinson, 2020 ABCA 222 andthe Court of Appeal of New Brunswick in Currie v.

R., (NB CA) have all concluded that, barring extraordinarycircumstances, the release of an appellant on that sole basis is not warranted. The Quebec Superior Court has also concluded likewise inthe context of pre-trial bail: R. c. Videz-Rauda, 2020 QCCS 1478. The appellant may well wish to have this issue canvassed bythe Court at the hearing of his application. That being said, the appellant has not convinced me that the factual situation within theinstitution in which he is presently incarcerated is such that it would merit his immediate release pending the hearing before a full panelof the Court.

FOR THESE REASONS, THE UNDERSIGNED: [30] REFERS the application to the panel of the Court siting on November 23, 2020 in the Mignault Courtroom in Montreal, at9h30 am, for a hearing not exceeding 100 minutes (50 minutes for each party); [31] ORDERS the parties to work together and to take the required measures to ensure that the transcripts of the trial the appellantrequires, including the transcripts of the translations made by the interpreter which the appellant may require, be prepared and filed assoon as feasible; [32] ORDERS the parties to work together and to take the required measures to ensure that the transcripts of the judgment ofDecember 6, 2016 refusing the appellant’s release and of the hearings leading to that judgment be prepared and filed as soon as feasible; [33] ORDERS the parties to file such transcripts with the Court at the latest November 6, 2020, failing which the parties shalladdress the Court at the hearing scheduled for November 23, 2020 as to the relief or remedy the appellant may be entitled to as a resultof the failure to provide him with transcripts in a timely manner; [34] ORDERS the appellant to file with the Court five (5) copies of his application materials as well as written submissions notexceeding ten (10) pages and to serve a copy thereof on the respondent no later than November 6, 2020; [35] ORDERS the respondent to file with the Court five (5) copies of the additional materials it deems appropriate for purposes ofdeciding the application as well as written submissions not exceeding ten (10) pages and to serve a copy thereof on the respondent nolater than November 13, 2020.

ROBERT M. MAINVILLE, J.A. Mtre Véronique RobertROY ROBERT AVOCATSFor appellant Mtre Robert BenoitDIRECTOR OF CRIMINAL AND PENAL PROSECUTIONSFor respondent Date of hearing: August 25, 2020