R v Giesbrecht, 2018 MBCA 40

Citation: R v Giesbrecht, 2018 MBCA 40 Date: 20180413 Docket: AR17-30-08912 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) G. G. Brodsky, Q.C. and ) Z. B. Kinahan HER MAJESTY THE QUEEN ) for the Applicant ) ) J. M. Mann Respondent ) for the Respondent ) ) D. A. Stamm and - and - ) M. A. Salamandyk ) on a watching brief for ) The Elizabeth Fry Society ANDREA GIESBRECHT ) of Manitoba Inc. ) ) Chambers motion heard: (Accused) Applicant ) March 28, 2018 ) ) Decision pronounced: ) April 13, 2018 MICHEL A.

MONNIN JA [ 1 ] The accused seeks judicial interim release pending the hearing and determination of her appeal. [ 2 ] On February 6, 2017, the accused was convicted of six counts of concealing the dead body of a child pursuant to

section 243 of the Criminal Code (the Code ) . On July 14, 2017, she was sentenced to eight and one-half years’ incarceration, less a credit for time spent in pre-trial custody. [ 3 ] The accused has appealed her conviction and seeks leave to appeal the sentence imposed. Her amended notice of appeal sets out 42 grounds of appeal. A number of those grounds deal with the dismissal of an application for a stay of proceedings alleging delay, which application was made after she was convicted and just prior to being sentenced.

Other grounds of appeal deal with the findings made by the trial judge, the use of similar fact evidence, the lack of presumption of innocence and grounds dealing with the fitness of the sentence. In her counsel’s factum for this application, there are five grounds that are highlighted. Those grounds are as follows: 1. That the accused did not dispose of the products of conception in a manner that infringes the dictate of

section 243 of the Code ; 2. That the trial judge failed to accord the presumption of innocence in accordance with the Canadian Charter of Rights and Freedoms and by doing so reversed the onus onto the accused; 3. That the trial judge erred in finding that the evidence in connection with each of the counts in the indictment could be lumped together absent a successful motion for similar fact evidence when the evidence was that the fetuses were of different gestational ages; 4.

That the trial judge erred in determining that each of the fetuses were likely to have been born alive despite the absence of evidence of a live birth; and 5. That the trial judge imposed a sentence that was harsh and excessive in all circumstances. [ 4 ] The test to be met in order to be released pending an appeal is set out in section 679(3) of the Code . It reads: Circumstances in which appellant may be released 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

(

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. [5] The Supreme Court of Canada recently dealt with the issue of judicial interim release pending appeal. In R v Oland,2017 SCC 17, Moldaver J, writing for the Court, sets out a clear and useful road map for appellate judges dealing with such anapplication.

He reviews the test and how it is to be interpreted and analysed. [6] He begins by setting out and explaining the three-prong test that is set out in the Code (at paras 20-22): The first criterion requires the appeal judge to examine the grounds of appeal with a view to ensuring that they are not “not frivolous” (s.679(3)(a)). Courts have used different language to describe this standard. While not in issue on this appeal, the “not frivolous” test iswidely recognized as being a very low bar: see R. v. Xanthoudakis, 2016 QCCA 1809, at paras. 4-7 ; R. v.

Manasseri, 2013ONCA 647, 312 C.C.C. (3d) 132, at para. 38; R. v. Passey, 1997 ABCA 343, 121 C.C.C. (3d) 444, at paras. 6-8; G. T. Trotter, The Lawof Bail in Canada (3rd ed. (loose-leaf)), at pp. 10-13 to 10-15. The second criterion requires the applicant to show that “he will surrender himself into custody in accordance with the terms of the(release) order” (s. 679(3)(b)). The appeal judge must be satisfied that the applicant will not flee the jurisdiction and will surrender intocustody as required.

The third criterion requires the applicant to establish that “his detention is not necessary in the public interest” (s. 679(3)(c)). It is uponthis criterion that Mr. Oland’s bid for bail pending appeal failed — and it is on this criterion that guidance from the Court is sought. Inparticular, the parties ask this Court for guidance on how the strength of the grounds of appeal from a conviction should be considered indetermining whether detention is necessary in the public interest. [7] He then continued by elaborating on the third prong of the test, the public interest criterion (at paras 23-26): In R. v.

Farinacci (1993), (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), Arbour J.A. (as she then was) considered themeaning of the words “public interest” in the context of s. 679(3)(c). In the course of her careful analysis, she determined that the publicinterest criterion consisted of two components: public safety and public confidence in the administration of justice (pp. 47-48). Justice Arbour did not delve into the public safety component.

She found that it related to the protection and safety of the public andessentially tracked the familiar requirements of the so-called “secondary ground” governing an accused’s release pending trial (pp. 45and 47-48). The public confidence component, on the other hand, was more nuanced and required elaboration. It involved the weighingof two competing interests: enforceability and reviewability. According to Arbour J.A., the enforceability interest reflected the need to respect the general rule of the immediate enforceability ofjudgments.

Reviewability, on the other hand, reflected society’s acknowledgement that our justice system is not infallible and thatpersons who challenge the legality of their convictions should be entitled to a meaningful review process — one which did not requirethem 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 wasunlawful (pp. 47-49). Almost a quarter of a century has passed since Farinacci was decided. The public interest framework which it established has withstoodthe test of time.

It has been universally endorsed by appellate courts across the country: see, e.g., R. v. Matteo, 2016 QCCA 2046, atpara. 20 ; R. v. Sidhu, 2015 ABCA 308, 607 A.R. 395, at paras. 5-6; R. v. Porisky, 2012 BCCA 467, 293 C.C.C. (3d) 100, atparas. 8 and 14-15; R. v. Parsons (1994), (NL CA), 117 Nfld. & P.E.I.R. 69 (C.A.), at paras. 30-34. Moreover, all ofthe parties and interveners in this appeal are content with the Farinacci framework. None has spoken against it; none has asked us torevisit it — and I see no reason to do so. Farinacci remains good law in my view.

[ 8 ] Justice Moldaver then proceeds to expand on the enforceability and reviewability interests. With respect to enforceability, he wrote (at paras 37-39): In assessing whether public confidence concerns support a pre-trial detention order under s. 515(10)(c), the seriousness of the crime plays an important role. The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail pending trial. So too for bail pending appeal.

In considering the public confidence component under s. 679(3) (c), I see no reason why the seriousness of the crime for which a person has been convicted should not play an equal role in assessing the enforceability interest. With that in mind, I return to s. 515(10)(c), where Parliament has set out three factors by which the seriousness of a crime may be determined: the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential length of imprisonment (s. 515(10)(c)(ii), (iii) and (iv)).

In my view, these factors are readily transferable to s. 679(3) (c) — the only difference being that, unlike the pre-trial context, an appeal judge will generally have the trial judge’s reasons for sentence in which the three factors going to the seriousness of the crime will have been addressed. As a rule, the appeal judge need not repeat this exercise. I pause here to note that while the seriousness of the crime for which the offender has been convicted will play an important role in assessing the enforceability interest, other factors should also be taken into account where appropriate.

For example, public safety concerns that fall short of the substantial risk mark — which would preclude a release order — will remain relevant under the public confidence component and can, in some cases, tip the scale in favour of detention: R. v. Rhyason , 2006 ABCA 120 , 208 C.C.C. (3d) 193 , at para. 15 ; R. v. Roussin , 2011 MBCA 103 , 275 Man. R. (2d) 46 , at para. 34 . The same holds true for lingering flight risks that do not rise to the substantial risk level under s. 679(3) (b).

By the same token, the absence of flight or public safety risks will attenuate the enforceability interest. [ 9 ] With respect to reviewability, he wrote (at paras 40-41, 43-45): 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.

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. [footnote omitted] Gary T. Trotter, now a Justice of the Court of Appeal for Ontario, reached a similar conclusion in his

article “ Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion” (2001), 45 C.R. (5th) 267 , where he explained: . . . realistically, most cases do not raise strong claims regarding the public interest, at least not beyond the general concern that all criminal judgments ought to be enforced. . . . However, when an offence is serious, as with murder cases, such that public concern about enforceability is ignited, there should be a more probing inquiry into the chances of success on appeal.

It is in this context that the balancing required by Farinacci requires some assessment of the merits, separate from the question of whether the appeal is frivolous or not. (Footnotes omitted; p. 270.) 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 “a realistic prospect of success” are generally not helpful. Often, they amount to little more than wordsmithing. Worse yet, they are liable to devolve into a set of complex rules that appellate judges will be obliged to apply in assessing the category into which a particular appeal falls. 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 ameaningful review process is essential to maintain public confidence in the administration of justice.

Thus, there is a broader publicinterest in reviewability that transcends an individual’s interest in any given case. [10] Finally, he provides the following directives in balancing these criteria (at paras 47-51): Appellate judges are undoubtedly required to draw on their legal expertise and experience in evaluating the factors that inform publicconfidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks.

However, whenconducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to be measured throughthe eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstancesof the case and respectful of society’s fundamental values: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 74-80. In thatsense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which hasno role to play in the decision to grant bail or not.

In balancing the tension between enforceability and reviewability, appellate judges should also be mindful of the anticipated delay indeciding an appeal, relative to the length of the sentence: R. v. Baltovich (2000), (ON CA), 47 O.R. (3d) 761 (C.A.),at paras. 41-42. Where it appears that all, or a significant portion, of a sentence will be served before the appeal can be heard anddecided, bail takes on greater significance if the reviewability interest is to remain meaningful.

In such circumstances, however, where abail order is out of the question, appellate judges should consider ordering the appeal expedited under s. 679(10) of the Code. While thismay not be a perfect solution, it provides a means of preserving the reviewability interest at least to some extent. In the final analysis, there is no precise formula that can be applied to resolve the balance between enforceability and reviewability. Aqualitative and contextual assessment is required. In this regard, I would reject a categorical approach to murder or other seriousoffences, as proposed by certain interveners.

Instead, the principles that I have discussed should be applied uniformly. That said, where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will behigh and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or thegrounds of appeal appear to be weak: R. v. Mapara, 2001 BCCA 508, 158 C.C.C. (3d) 312, at para. 38; Baltovich, at para. 20; Parsons,at para. 44.

On the other hand, where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the “notfrivolous” criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder orother very serious offences. [11] The accused argued that she meets all three prongs of the test; her appeal is not frivolous, as demonstrated by thenumber of grounds she raises as well as their breadth.

She also argues that there should be no concerns with her surrendering herself intocustody pursuant to whatever may be the terms of her release and points out in support of this position that she was on a strict form ofjudicial interim release from April 2015 to July 2017 without any breaches or other incidents and that should be a consideration whenassessing this part of the test. Finally, she argues that her detention is not necessary in the public interest as she does not pose a safetyconcern or a continuing danger to any member of the public.

On this latter prong of the test, the accused argues that because of themerits of her grounds of appeal, reviewability should outweigh the enforceability of the judgment. [12] The Crown takes little issue with the bail plan being proposed by the accused save possibly for her proposed place ofresidence. On the issue of the frivolousness of the grounds of appeal, the Crown argues that those grounds are in fact weakened by thestandard of review that applies to most of them, being either deference or palpable and overriding error.

Where the Crown advances itsstrongest argument against release is on the issue of reviewability versus enforceability and that the release of the accused woulddiminish the public confidence in the administration of justice. [13] I have no concerns with respect to the accused having met the first two prongs of the test nor do I have a concern withrespect to the first leg of the third prong.

Although I have a healthy skepticism in respect to some of the grounds being advanced, as it isa rare occurrence, in my view, where there are 42 meritorious grounds to advance in an appeal, I am nevertheless satisfied that, on thewhole, the accused’s appeal is not frivolous. I have no concerns that she will not surrender herself into custody in accordance withwhatever terms I might set and finally, I am not concerned that the public’s safety would be compromised by her release. [14] The only live issue before me is that of reviewability versus enforcement.

This, I must consider in light of whatMoldaver J stated in para 51 of his reasons, which I have already quoted above in para 10 of these reasons. [15] The accused has been found guilty of a number of serious crimes, but I hasten to add that they are far less serious thanthe alleged crime in Oland. Although there are deaths involved, this is not a case of murder or even manslaughter. This is far from arun-of-the-mill case. Charges laid under

section 243 of the Code are few and far between and the requirements on which to found a

conviction have not been regularly considered by courts in this country. In her argument against release, counsel for the Crown termed this case as unprecedented. I agree with her use of that term, but possibly for reasons that are different than hers. All things being equal, in my view, the rarity of this type of case militates in favour of reviewability over enforcement. [ 16 ] I am well aware that this case has captivated the attention of the public, but that fact alone is insufficient to tilt the balance in favour of enforceability. As stated in Oland , “there is a broader public interest in reviewability that transcends an individual’s interest in any given case” (at para 45). [ 17 ] In

summary and following the directive provided by Moldaver J, my assessment of the first two prongs of the test also favours reviewability over enforcement. However, I arrive at this conclusion with a caveat that has to do with the accused’s bail plan, and more precisely, her intention of residing in her residence. [ 18 ] During the course of hearing submissions, I indicated that I had concerns with respect to the accused’s proposed place of residence.

I indicated at that time that I viewed her residing at a facility of The Elizabeth Fry Society of Manitoba Inc. (the Society), where she had resided when on release pending trial, as a preferred option. Counsel for the accused advised that there were no openings at this time. For whatever reason, counsel failed to inform me that, for reasons I will clarify, the possibility of residing in a Society residence was simply not possible. [ 19 ] In my assessment of the balance between reviewability and enforceability, I considered where the accused might reside while on release.

The fact that such residence at the Society would be in a structured setting and under direct supervision informed my consideration of the third prong of the test and is crucial to my disposition of her application. [ 20 ] The Court has now been advised by the Society itself, that not only is there no opening at a facility of the Society, the possibility of the accused ever being admitted to such a facility at any time is not possible because the mandate of the Society does not permit it to house federally sentenced prisoners. [ 21 ] I would have been prepared to grant judicial interim release to the accused, but only to reside in a controlled setting, such as the Society offered.

That not being a possibility at this point in time, I am not prepared to grant the application as presently advanced. If a different release plan was proposed in the future, I would then possibly be prepared to consider the accused a candidate for release. [ 22 ] Accordingly, the application is denied. JA