R. v. Olenick, 2010 MBCA 48

Citation: R. v. Olenick, 2010 MBCA 48 Date: 20100505 Docket: AR 10-30-07357 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : HER MAJESTY THE QUEEN ) D. Manning ) for the Applicant Respondent ) ) C. A. Vanderhooft ) for the Respondent - and - ) ) Chambers motion heard: ) April 15, 2010 DANIEL JOSEPH OLENICK ) ) Decision pronounced: (Accused) Applicant ) May 5, 2010 MacINNES J.A. 1 The accused was convicted at trial before a judge alone of sexual assault, forcible confinement and assault causing bodily harm.

Thereafter, he was sentenced to a period of imprisonment of four years in respect of the sexual assault and to a sentence of one- year incarceration on each of the offences of forcible confinement and assault cause bodily harm, both to run concurrently with each other and with the sentence for sexual assault. 2 In her reasons for sentence, the trial judge briefly described the facts of the offences for which the accused was convicted as follows: …. Suffice it to say that following an evening fueled by alcohol and drugs and considerable conflict between them, Mr. Olenick and the complainant arrived at their home.

The complainant had just recently moved in with Mr. Olenick after having a relationship with him for some time. Their argument escalated or at least turned violent when the complainant refused Mr. Olenick’s request to have anal sex. While much more occurred, important for today’s purposes is that Mr. Olenick then tied the complainant to the banister of the staircase, punched her in the face, taunted her and stabbed her with a steak knife.

He then dragged her upstairs and had forced anal sex. 3 The accused has appealed his conviction and now applies for judicial interim release pending determination of his appeal. 4 As regards the former, the accused, who represented himself at trial, raises three grounds of appeal in his notice of appeal.

He asserts that the trial judge erred: (1) by not appointing counsel to cross-examine the complainant under s. 486.3(2) of the Criminal Code ; (2) by failing to conduct a broader inquiry regarding the accused’s request to retain and instruct counsel to cross-examine the complainant; and (3) by failing to provide adequate assistance and guidance to the accused so as to ensure him a fair trial. 5 As regards the latter, s. 679(3) of the Criminal Code provides that an accused may be released from custody pending the determination of his appeal if he establishes that: (

a) the 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.

The accused bears the onus of establishing each of these three criteria. Section 679(3)(a) 6 While the burden is on the accused to establish that he comes within this section, the threshold created by the

section islow. He must only establish that his appeal is not doomed to fail, but has some arguable basis. See R. v. Ilina (L.), 2003 MBCA 27,170 Man.R. (2d) 292 at para. 7, Steel J.A. Having heard the submissions of both Crown and defence, but without stating my view as tothe merits of the appeal, I am satisfied that the accused has established that his appeal is not frivolous or doomed to fail and thus that hehas met this criterion. Section 679(3)(b) 7 Other than the convictions which are the subject of appeal, the accused has no other criminal record.

As well, the accusedwas arrested in respect of these offences on February 26, 2006, was released on a recognizance approximately four days later andcontinued on bail without incident for three and a half years approximately prior to his trial and conviction. 8 On his application before me, the accused indicates his willingness to live with his mother, as opposed to in his ownresidence, and to comply with any other conditions imposed by the court. His mother is prepared to provide a surety of $50,000. He has,throughout, attended court as and when required.

While he has now been convicted and sentenced to four years’ incarceration, I amnevertheless satisfied that if granted interim release, he will surrender himself into custody in accordance with the terms of any bail ordershould his appeal be unsuccessful. Thus, he has satisfied me on this criterion as well. Section 679(3)(c) 9 This criterion, that is, the accused’s ability to satisfy the court that his detention is not necessary in the public interest, isone that has been discussed in many previous cases. The dicta of Arbour J.A. (as she then was) in R. v. Farinacci (1993), (ON CA), 86 C.C.C. (3d) 32 (Ont.

C.A.), are often quoted as a clear explanation of the policy underlying the

section (at pp. 47-48): 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 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. 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. On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, becorrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if ayouthful first offender, sentenced to a few months’ imprisonment for a property offence, was compelled to serve his or her entiresentence before having an opportunity to challenge the conviction on appeal.

Assuming that the requirements of s. 679(3)(

a) and (

b) ofthe Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practicalpurposes. This same principle animates the civil law dealing with stays of judgments and orders pending appeal. It is a principle whichvindicates the value of reviewability. [underlining added] 10 I must therefore consider and balance the competing principles of enforceability and reviewability in determining whetheror not the accused has satisfied me in respect of the “public interest” requirement.

Some of the factors to be considered include theseriousness and the circumstances of the particular offence, the circumstances of the offender, the strength of the appeal and thepotential for undue delay before the appeal is heard. 11 In this case, the offences are very serious. The circumstances of them evidence significant violence by the accused againstthe complainant. As to the circumstances of the offender, I have already stated that these offences constitute the only criminal record ofthe accused.

In addition, as I have said, he has demonstrated an ability to be on and comply with the conditions of judicial interimrelease, albeit that he has now lost the presumption of innocence which he enjoyed prior to trial. 12 As for the potential for undue delay before the appeal is heard, I am satisfied that there is none. Early dates are available. 13 As for the strength of the appeal, I must be circumspect in my comments concerning that, given that the accused’s appeal isone of right and that a panel of this court will ultimately hear, consider and determine the merits of it. But, to conclude that the appeal is

not frivolous or doomed to fail does not mean that it has a strong likelihood of success. 14 I have stated the grounds of the accused’s appeal.

In essence, there are two real issues to be considered, namely, whether there is any basis in law for his argument that s. 486.3(2) of the Criminal Code entitles him to the appointment of counsel to cross- examine the complainant when, in fact, neither the complainant nor the prosecutor has made a request under the section, and whether the trial judge erred in failing to order that counsel be appointed for that purpose or in failing to provide him with adequate assistance and guidance so as to ensure him a fair trial. 15 Having read the trial evidence, there is no question but that his cross-examination of the complainant was considerably less than ideal.

The comments of the trial judge herself make that clear. The transcript also discloses, however, that the accused was originally reluctant to have counsel appointed and that when the issue was revisited and he understood that to appoint counsel would necessitate an adjournment of the trial, he indicated his preference to continue. In addition, the accused made no application for the appointment of counsel. 16 The same applies to the complainant. She was given the opportunity to discuss the issue with Crown counsel.

He confirmed to the trial judge that the complainant did not want counsel because she too did not want the matter adjourned, but wanted it to continue to completion. The complainant herself confirmed that when asked directly by the trial judge. 17 While these grounds of appeal will be considered fully by a panel of this court assigned to hear the appeal, neither the strength of the accused’s appeal nor any other factor advanced by the accused has satisfied me that his detention is not necessary in the public interest.

There are no circumstances here that, in my view, are sufficient to give precedence to the principle of reviewability over that of enforceability and thus warrant the accused’s release pending trial. 18 Accordingly, the accused’s application for judicial interim release pending appeal is denied. ____________________________ J.A.