R v Kuzyk (C), 2015 MBCA 85

Citation: R v Kuzyk (C), 2015 MBCA 85 Date: 20150918 Docket: AR15-30-08440 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) S. E. Pinx, Q.C. and HER MAJESTY THE QUEEN ) J. C. Pinx ) for the Appellant ) Respondent ) J. A. Hyman ) for the Respondent - and - ) ) Chambers motion heard and ) Decision pronounced: CHRISTOPHER KUZYK ) August 6, 2015 ) (Accused) Appellant ) Written reasons: ) September 18, 2015 MAINELLA JA Introduction and Issues [ 1 ] The accused seeks relief from a conditional sentence order (CSO) pending determination of his conviction appeal.

The three issues raised by the application are: what is the correct procedure under the Criminal Code for such an application; what is the applicable standard; and, finally, in the circumstances has the accused met his onus. [ 2 ] At the hearing of the application, I made an order, with reasons to follow, that the accused enter into an undertaking with conditions, and further that his CSO order be suspended pursuant to section 683(5) (

f) of the Criminal Code until his appeal has been determined. These are my reasons for decision.

Background [ 3 ] The conviction appeal focusses on alleged errors by the trial judge in refusing to enter a judicial stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ) because the police officer who obtained the search warrant for the accused’s residence, where five ounces of cocaine and accoutrements of drug trafficking were seized, destroyed his original handwritten notes relating to discussions he had with a confidential informant. [ 4 ] The trial judge ruled that the officer’s “unacceptable negligence” in not preserving his notes amounted to a breach of the accused’s trial fairness rights under

section 7 of the Charter . However, she declined the request for a judicial stay of proceedings because she was not satisfied that the “the loss of the notes [had] irreparably prejudiced the accused’s right to a fair trial or that this is one of the clearest of cases justifying a stay” (at para 39). [ 5 ] The accused was convicted of possession of cocaine for the purposes of trafficking and possession of proceeds of crime.

On July 6, 2015, he was sentenced to a CSO of two years less a day with conditions including observing an absolute curfew, performing 240 hours of community service work and attending counseling. [ 6 ] The accused filed his notice of appeal on July 31, 2015. The Crown, unsatisfied that the trial judge did not impose a penitentiary sentence, subsequently filed a sentence appeal. Counsel advises that while the necessary transcripts of the trial are prepared, as of the date I heard the application, the trial judge’s reasons for sentence had not yet been released.

The parties agree that realistically the appeals should be ready for a half-day hearing in early 2016. Discussion What is the correct procedure for relief from a CSO pending an appeal?

[7] The formal written application filed with the Court seeks relief from the CSO by way of an order of judicial interimrelease pursuant to section 679(1) of the Criminal Code. The accused argues that a CSO is a form of “custody,” therefore the criteria toconsider to “release” him from serving his CSO pending determination of his conviction appeal, are those set out in section 679(3) of theCriminal Code. The relevant provisions of

section 679 are: Release pending determination of appeal 679.

(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determinationof 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; … Circumstances in which appellant may be released

(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 releasedpending 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. [8] The current wording in

section 679 of the Criminal Code has its origin in the Bail Reform Act, SC 1970-71-72, c 37,section 12. The original understanding of what was meant by “custody” in

section 679 was one of actual custody, because alternativedeprivations of liberty, as part of a criminal sentence, like a CSO, did not exist in 1972. Unfortunately, when Parliament created the CSOas a new form of sentence (An Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence Thereof, SC 1995, c 22,section 6), it neglected to specifically address the powers of the Court of Appeal under

Part XXI of the Criminal Code to, in effect, stay aCSO pending determination of an appeal. [9] The prevailing judicial view after CSOs came into force in 1996, was that a CSO was a form of “custody” within themeaning of section 679(1) of the Criminal Code (see R v Vallance, [1998] OJ No 1615 (QL) (CA); R v Cantin, [1999] QJ No 2610 (QL)(CA); R v Hornby (PA), 2003 BCCA 649 at para 7, 189 BCAC 242; and R v Walsh (L) (2005), (ON CA), 195 OAC311 at para 6).

Accordingly, a single judge of the court of appeal could “release” an appellant from a CSO, in the case of a convictionappeal, if the criteria set out in section 679(3) were met. [10] The Crown, however, submits that in light of subsequent amendments to the Criminal Code, the procedure proposed bythe accused to be “released” from his CSO pursuant to

section 679 is no longer correct, and, more importantly, now unlawful. TheCrown says the proper procedure is an application for a “suspension” of the CSO pursuant to section 683(5)(

f) of the Criminal Code. [11] The relevant provisions of

section 683 are: Power to order suspension

(5) If an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, whenthe court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has beendetermined: (

a) an obligation to pay a fine; (

b) an order of forfeiture or disposition of forfeited property; (

c) an order to make restitution under

section 738 or 739; (

d) an obligation to pay a victim surcharge under

section 737;

(

e) a probation order under

section 731; and (

f) a conditional sentence order under

section 742.1. Undertaking or recognizance

(5.1) Before making an order under paragraph (5)(

e) or (f), the court of appeal, or a judge of that court, may order the offender to enterinto an undertaking or recognizance. Revocation of suspension order

(6) The court of appeal may revoke any order it makes under subsection (5) where it considers the revocation to be in the interests ofjustice. Undertaking or recognizance to be taken into account

(7) If the offender has been ordered to enter into an undertaking or recognizance under subsection (5.1), the court of appeal shall, indetermining whether to vary the sentence of the offender, take into account the conditions of that undertaking or recognizance and theperiod during which they were imposed. [12] In my view, the plain meaning of

section 683 of the Criminal Code, particularly in light of the section’s evolution,supports the Crown’s submission. [13] Because a Court of Appeal is a statutory court, in matters of criminal procedure it lacks jurisdiction to suspend an orderof a lower court unless it has been given that power by Parliament (R v Metro News Ltd (1985), (ON CA), 11 OAC 58at para 4). Parliament first enacted a power for the Court of Appeal, or a judge thereof, to “suspend” part of a sentence pendingdetermination of an appeal in 1985. That power was restricted to fines, forfeitures, restitution orders and victim surcharges (CriminalLaw Amendment Act, 1985, SC 1985, c 19,

section 142). In 1997, probation orders were added to the list of sentences that could besuspended pending determination of an appeal (Criminal Law Improvement Act, 1996, SC 1997, c 18, section 97(2)). [14] More germane to the application before me, in 2008, Parliament amended

section 683 of the Criminal Code, in what Iwould describe as three important ways (An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencingand other amendments), SC 2008, c 18,

section 29). [15] First, in section 683(5)(f), Parliament explicitly added the CSO to the list of sentences that could be suspended pendingdetermination of an appeal by either an offender or the Crown. By itself, this enactment raises doubt about the need to resort to section679(1) at all in cases such as this one. [16] Second, Parliament, by enacting sections 683(5.1) and 683(7) provided a mechanism to balance the interests of theoffender and the community where the court is inclined to suspend a CSO pending determination of an appeal.

Section 683(5.1) protectsthe community by providing a means for an offender to be subject to some form of judicially imposed conditions, which can be tailoredto the given circumstances, while a CSO is suspended. At the same time, section 683(7) requires a panel hearing a sentence appeal toconsider the terms of release under section 683(5.1) in deciding whether or not to vary a CSO.

This provision ensures that an offender’spost-sentencing conduct, while their CSO is suspended, is properly taken into account, either positively or negatively, in deciding themerits of any sentence appeal. [17] Finally, in section 683(5), Parliament gave jurisdiction to a single judge of the Court of Appeal to suspend a CSOpending determination of an appeal. This enactment assists in preventing an appeal being rendered nugatory by the CSO ending prior toan appeal being determined.

This amendment to section 683(5) of the Criminal Code addresses the problem of the potential frustrationof sentence appeals due to delay as illustrated by the circumstances in Cantin. [18] In Cantin, a three member panel of the Québec Court of Appeal prevented the potential frustration of a Crown sentenceappeal by a CSO expiring before the appeal was determined, by exercising its general ancillary jurisdiction under section 683(3) of theCriminal Code to stay the running of the CSO.

The use of that general ancillary jurisdiction under section 683(3) is practically difficulthowever, because it can only be exercised by the court sitting as a panel of three or more judges, and cannot be exercised by a singlejudge in chambers (R v Church of Scientology of Toronto and Zaharia (1986), (ON CA), 13 OAC 17 at para 6).

Thelanguage of section 683(5) of the Criminal Code assists in guaranteeing the integrity of the appeal process as any party to an appeal canmove quickly before one judge of the Court of Appeal in chambers to seek suspension of a CSO to ensure the appeal does not becomemoot merely by the delay in its determination. [19] These features of Parliament’s amendment of

section 683 of the Criminal Code in 2008 lead me to agree with theconclusions of Chiasson JA in R v Gould (E), 2012 BCCA 308 at para 9, 325 BCAC 167; and O’Ferrall JA in R v Steward (AE), 2014ABCA 79 at paras 9-11, 569 AR 331, that there are now two different procedures that exist in

Part XXI of the Criminal Code to in effect

stay a criminal sentence pending determination of an appeal. [20] The first is the traditional one set out in section 679(1) of the Criminal Code reserved for the appellant who isinstitutionally incarcerated. That procedure is an application for judicial interim release. The criteria for release are those set out ineither section 679(3) or section 679(4) depending on the type of appeal. [21] The second procedure is for the suspension of one of the prescribed sentences set out in section 683(5), such as a CSO,based on the criteria contained in section 683(5). [22] The Crown appropriately conceded that the mere fact the application before me was filed under the wrong

section of theCriminal Code (section 679(1) as opposed to section 683(5)) should not be a bar to the accused. Rather, I should decide the applicationin light of the correct procedure (section 683(5)). What is the applicable standard to suspend a CSO? [23] The standard for an applicant seeking the suspension of one of prescribed sentences set out in section 683(5), such as aCSO, is whether the court considers it to be in the “interests of justice” for the sentencing court’s order to be suspended until an appealhas been determined.

The expression “interests of justice” is used in several different contexts in the Criminal Code. It requiresassessment of interests beyond just those of the offender. As Doherty JA explained in R v Bernardo (PK) (1997), (ONCA), 105 OAC 244 (at para 16): The phrase “the interests of justice” is used throughout the Criminal Code. It takes its meaning from the context in which it is used andsignals the existence of a judicial discretion to be exercised on a case-by-case basis.

The interests of justice encompass broad basedsocietal concerns and the more specific interests of a particular accused. [24] Many decisions have discussed the application of section 683(5), and what are the relevant factors to weigh, from boththe perspective of the public and an offender, in assessing the “interests of justice” in relation to suspension of: fines (R v CHEK TV Ltd(1986), (BC CA), 27 CCC (3d) 380 (BC CA); Regina v Sunoco Inc (1986), 11 CPR (3d) 572 (Ont CA); R v Weinkauf(G), 2008 SKCA 99, 311 SaskR 177; and R v Roshanimeydan (A), 2013 NSCA 146, 338 NSR (2d) 221); probation orders (Naimer c R,2015 QCCA 882 (QL)) and CSOs (Gould and Steward). [25] As Chiasson JA explained in Gould, while the procedure in section 683(5) is distinct from that set out in section 679(1)there is a “similarity” of considerations including evaluating the competing interests of “reviewability versus enforceability” (at para 12;see also para 9). [26] The factors to be considered in an assessment of the “interests of justice” under section 683(5) as to whether to suspend asentence include: (

a) the seriousness of the offence and the circumstances surrounding the commission of it; (

b) the relative merits of the ground(

s) of appeal; (

c) the anticipated delay for the appeal to be determined and whether such delay could render the appeal nugatory; (

d) the criminal background of the offender and his or her current circumstances; (

e) the nature and degree of prejudice, if any, to the offender if execution of the sentence is not suspended pending determination of theappeal; and (

f) the impact of suspension of the sentence to maintenance of public confidence in the administration of justice. Has the accused met his onus? [27] But for the positive background of the accused and the favourable impact suspension of the CSO will have onmaintaining public confidence in the administration of justice, the application fails. [28] The circumstances of the drug offences are serious. The anticipated delay for the appeal is only a few months. Suchdelay will not render the appeal nugatory.

The accused’s affidavit is silent as to any prejudice he may suffer if he is required to serve hisCSO pending determination of his appeal. The CSO permits the accused to maintain his job installing ventilation systems and theconditions of the CSO are not onerous.

Cumulatively, these factors favour the interest of enforceability over that of reviewability. [29] As I will explain in greater detail, the relative merits of the conviction appeal, as put before me on the application, donot justify suspension of the CSO. [30] Counsel for the accused made lengthy submissions on what he called “troublesome examples” of improper reasoning by

the trial judge. It is not necessary to review the submissions in detail, suffice to say that the accused’s position focussed on two potentialreversible errors in the trial judge’s reasons. [31] First, the accused says that the trial judge’s conclusion on not granting a judicial stay, rests on an unreasonablecredibility finding where she accepted the police officer’s evidence that he had “accurately and completely included” the informationcontained in the destroyed notes in the Information to Obtain (ITO) the search warrant (at para 35).

The accused submits that thisfinding is a palpable and overriding error because it is incompatible, and ultimately illogical, with negative credibility findings the trialjudge made against the police officer in finding a breach of

section 7 of the Charter. [32] The second submission is that the trial judge wrongfully exercised her discretion in refusing to grant a judicial stay bygiving no weight to a relevant consideration. The accused says once the trial judge found that the notes were deliberately destroyed, andshe also accepted defence counsel’s submission at trial that cross-examination of the police officer on the contents of the notes would be“futile,” the trial judge had no practical remedy capable of removing the prejudice suffered to the

section 8 Charter challenge to theadmissibility of the evidence found in the residence, which was the accused’s only defence to the charges, except for a stay ofproceedings (see R v Forster (HR) et al, 2005 SKCA 107 at para 33, 269 SaskR 275). [33] The accused argues that these grounds of appeal are such that his appeal is not frivolous. [34] To begin, I do not agree with counsel’s submission that if it is established that the grounds of appeal are not frivolous,that is a significant factor in the assessment of the “interests of justice” to suspend a CSO.

In my view, that position is a misreading ofthe Criminal Code. [35] In an application for suspension of a CSO pending determination of an appeal, whether or not an appeal is frivolous isnot a statutory criteria, unlike the situation in section 679(3)(

a) of the Criminal Code. The analysis for the purposes of section 683(5) asto the relative merits of the ground(

s) of appeal is like that to be taken with respect to consideration of the “public interest” in section679(1)(

c) of the Criminal Code. Examination of the merits of the appeal is an assessment as to relative strength on a sliding scale eitherin favour of, or against, the application. A strong probability of success on a ground of appeal favours the interest of reviewability andmay warrant a suspension of a CSO even on a serious offence.

Likewise, a weak probability of success favours the interest ofenforceability (see R v Roussin (B), 2011 MBCA 103 at paras 26-32, 275 ManR (2d) 46). [36] Another concern of mine is the adequacy of the materials put before me in chambers on the first ground of appeal giventhe standard of review of a trial judge’s assessment of the credibility of a witness.

A credibility assessment will not be disturbed onappeal unless it cannot be supported on any reasonable view of the evidence (R v RP, 2012 SCC 22 at para 10, [2012] 1 SCR 746). [37] On the application for a suspension of the CSO, no excerpts of the transcript of the trial were provided to me. Assessingthe merits of a submission that the trial judge made a palpable and overriding error in her credibility findings regarding the police officerin such a vacuum is difficult for a chambers’ judge.

Where, as is the case here, the trial judge gives clear and detailed reasons the task isnear impossible as there is simply no informed way to assess the merits of a claim of palpable and overriding error (see R v FAU, 2014MBCA 71 at para 20, 306 ManR (2d) 273). [38] While the rules of the Court of Appeal do not require filing portions of the record on applications such as this, thepractical reality is that given the standard of review on overturning findings of fact or assessments of credibility, an applicant, whether itbe on an application for judicial interim release (section 679(1)) or the suspension of a sentence (section 683(5)), may need to producerelevant parts of the record, in advance of the chambers’ application, so that the chambers’ judge can properly assess the relative meritsof a claim of palpable and overriding error in a finding of fact or as to a trial judge’s assessment of the credibility of a witness (R v Le(TD), 2009 MBCA 35 at paras 7-10, 236 ManR (2d) 225).

Failure to follow that approach may lead to the court either adjourning theapplication, or simply dismissing the argument on the basis of failure to meet the onus that an applicant bears. [39] On the question of the merits of the other ground of appeal, relating to the alleged wrongful exercise of discretion inrefusing to grant a judicial stay by giving no weight to a relevant consideration, the material before me on that issue is adequate based onthe trial judge’s reasons for decision. The challenge for the accused on this ground of appeal again is the standard of review.

Absent amisdirection, a refusal to grant a judicial stay will only be interfered with on appeal where it can be said that the exercise of discretionwas so clearly wrong as to amount to an injustice (R v Carosella, (SCC), [1997] 1 SCR 80 at paras 48-50). [40] The trial judge again gave extensive reasons explaining why the accused had not suffered actual prejudice over thedestruction of the police officer’s notes and why this case was distinguishable from Forster because it was not an ongoing pattern ofbehaviour in the preparation of the ITO.

Her refusal to grant a judicial stay is also based on credibility findings regarding the policeofficer. She accepted his evidence that in substance the contents of the ITO contained the information that was in the destroyed notes. The Crown reminds me that subject to demonstration of a palpable and overriding error, an appellate court would have to showdeference to that credibility finding. [41] That said, the accused has the benefit of a finding by the trial judge that his trial fairness rights under

section 7 of theCharter were violated. He also can rely on some negative credibility comments of the trial judge against the police officer. Finally, theimportance of the destruction of notes is that the only real defence the accused had to the allegations was the sufficiency of the ITO forthe purposes of

section 8 of the Charter. Cumulatively considered, these circumstances provide a realistic basis founded in the recordfor the accused to challenge his conviction. It is unnecessary for me to handicap with any precision the probability of success of thisground of appeal other than to say that the relative merits of this ground of appeal are not so strong that the interest of reviewabilityoutweighs that of enforceability. [42] Despite these shortcomings of the application, the background and current circumstances of the accused do favoursuspending the CSO.

The accused is 28 years old, employed and in a long-term common law relationship. He has no previous criminalrecord and has a number of supportive family members of good character. He was at large in the community on a promise to appear for

over four years for these offences without incident. The Crown concedes the accused is not a flight risk in any way. This evidence satisfies me that there is no reason to be concerned that the accused will commit further offences, interfere with the administration of justice or not surrender himself into custody if his CSO is suspended.

The risk the accused poses to the community can reasonably be managed by an appropriate order pursuant to section 683(5.1) of the Criminal Code until the appeal has been determined. [ 43 ] What is ultimately the deciding feature of this application is that, in my view, suspension of the CSO is the best outcome in the circumstances to maintain public confidence in the administration of justice. For the accused, a suspension allows him to not suffer the potential injustice of serving a sentence based on a conviction despite there being no dispute that his Charter rights were violated in the police investigation.

Where there is no dispute that some police misconduct occurred in a case involving a serious offence, there is a strong public interest in reviewability of any resulting conviction, particularly so where that review can be conducted with little delay as is the case here. [ 44 ] Also relevant, is that for the Crown, suspension of the CSO does not undermine its sentence appeal. In fact it assists in the reviewability of the sentence.

Counsel for the accused conceded that one drawback to the suspension application is if the Crown is successful in its sentence appeal, subject to consideration of section 683(7) of the Criminal Code , the accused will not receive the benefit of having served part of his CSO to reduce any sentence of imprisonment that the panel substitutes for the CSO. In my view, because a suspension of the CSO does not prejudice either appeal, public confidence in the administration of justice would best be fostered by allowing the appeal process to take its course with the accused’s CSO suspended.

Conclusion [ 45 ] The application is granted. The accused is ordered to enter into an undertaking with the conditions set previously in court when my decision was pronounced. It is further ordered that the accused’s CSO be suspended until his appeal has been determined. JA