R v D.T., 2020 MBCA 5

Citation: R v D.T., 2020 MBCA 5 Date: 20200120 Docket: AR19-30-09376 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN ) A. R. Hodge ) for the Appellant Respondent ) ) D. C. Sahulka- and - ) for the Respondent ) D.Tse ) Chambers motion heard: ) December 5, 2019 (Accused) Appellant ) ) Decision pronounced: ) January 20, 2020 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code). MICHEL A. monnin JA [1] The accused seeks judicial interim release pending the hearing of his appeal following a conviction for sexualassault. The sentence imposed on the accused was one of 30 months’ incarceration. [2] The accused raises five grounds of appeal.

They are: that the trial judge erred in shifting the burden of proof onto theaccused; that she misapplied the credibility test in R v W(D) (see (SCC), [1991] 1 SCR 742); that she drew conclusionsbased on medical evidence which was not supported by expert evidence; that she accepted medical evidence from a witness that was notqualified as a medical expert, and that she misapprehended the evidence. [3] The accused was arrested on March 3, 2017, and was released on that day on a promise to appear until the date of hisconviction on January 25, 2019.

Following conviction, he remained in the community until November 27, 2019, when he wassentenced. From the time of his conviction, the accused was aware that the Crown would be seeking a lengthy jail sentence. He is alsopresently pending on charges of domestic assault with a trial continuation set for March 2020. [4] The test to be met in order to be released pending an appeal is set out in section 679(3) of the Criminal Code (theCode).

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 thedetermination 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] I have no issue with the second leg of the test, which the accused must meet, namely that, if released, he willsurrender himself into custody as directed. [6] The first leg of the test, that the appeal is not frivolous, is somewhat more problematic. The accused argues that hisappeal deals with legal errors made by the trial judge, which errors impacted her credibility findings and therefore, her decision does notattract any deference.

He argues that his grounds of appeal are of sufficient strength and merit to meet this leg of the test. [7] The Crown takes the position that the trial judge committed no errors in law and that the accused simply wants toattack the credibility findings, which are owed deference.

The Crown, however, acknowledges that the “not frivolous” test is a “verylow bar”, but that it is difficult in this case to ascertain whether the test has been met because of the lack of the trial transcripts. [8] In finding that the accused has in fact met this low threshold, I am mindful of what the Crown stated in its motionbrief, namely, “that even if the Applicant’s challenges to the Learned Trial Judge’s credibility findings are not frivolous, neither are theystrong.” [9] This therefore brings me to the third leg of the test, namely, whether the detention of the accused is in the publicinterest.

This involves the weighing of two competing interests: enforceability and reviewability. This matter was canvassedextensively in R v Oland, 2017 SCC 17, where Moldaver J provided the following directive (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,[R v Parsons (1994), (NL CA), 117 Nfld & PEIR 69] 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. [10] In considering this final leg of the test, I have three concerns. The first is the lack of a trial transcript, which mightprovide a foundation in the record, to substantiate the grounds of appeal that the accused wishes to advance.

The second, which to adegree ties in with the first, is that, although I am satisfied that the grounds are not frivolous, they do appear to be an attack on thejudge’s credibility findings which are owed deference and lead me to question the strength of the accused’s appeal.

Finally, I amtroubled by the fact that the accused is pending on charges that came about while he was on bail. [11] In the final analysis, I have not been convinced that the accused’s release is in the public interest and that in thecircumstances of this case, enforceability trumps reviewability. [12] Accordingly, I dismiss the accused’s application for judicial interim release.

JA