Docket: CACR2201 Jason Brian Emil Will Applicant (Appellant) - v. -, 2012 SKCA 83

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 83 Date: 2012-09-17 Between: Docket: CACR2201 Jason Brian Emil Will Applicant (Appellant) - and - Her Majesty the Queen Respondent (Respondent) Before: Herauf J.A. Counsel:

Bob Hrycan for the applicant W. Dean Sinclair for the respondent Application: From: 2012 SKQB 310 Heard: September 12, 2012 Disposition: Dismissed Written Reasons: September 17, 2012 By: The Honourable Mr. Justice Herauf Herauf J.A. [1] Mr. Will was convicted by Justice Ball sitting without a jury of manslaughter in the death of Raime Myers and was sentenced toa term of 7 years’ incarceration. The victim was the 18-month old son of Mr. Will’s partner. Mr.

Will has appealed his conviction andnow applies for judicial interim release pending the determination of his appeal. [2] The relevant factors to consider on an application of this nature are contained in s. 679(3) of the Criminal Code. It reads asfollows: 679(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 bereleased pending 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. [3] Mr. Will has the onus to convince the Court that the three conditions in s. 679(3) have been satisfied on the balance ofprobabilities. [4] The Crown does not dispute that Mr. Will has satisfied the onus in conditions (

a) and (b). While the Crown agrees that theappeal is not frivolous it takes the position that the grounds of appeal are not compelling. With respect to condition (b), Mr. Will hadbeen on bail for over 3 years prior to sentencing and during that period never breached the conditions of his bail. [5] It becomes apparent that the application for release must be decided on the public interest component in condition (c). [6] In R. v. Tcho, 2011 SKCA 113, Richards J.A. set out the factors that may be considered when dealing with this condition. Atpara. 8 he stated: 8 Third and finally, I turn to the public interest.

This factor can take account of a range of factors including the appellant's risk toreoffend, the strength of his or her case, the nature and circumstances of the offence, the circumstances of the appellant himself orherself, delay and its impact, post-charge conduct, the possible terms of release, and the impact of release on the confidence of the publicin the administration of justice. See: L.S.R. v. R., 2008 SKCA 77, 311 Sask. R. 142; R. v. Toy, 2009 SKCA 32, 331 Sask. R. 1. [7] Further guidance can be found in R. v. D.H.S., 2009 SKCA 84, 337 Sask.

R. 92, at para. 10, where Jackson J.A. stated: 10 With respect to the third ground, sometimes referred to as the tertiary ground, this area of the law was recently canvassed by mein L.S.R. v. R., 2008 SKCA 77, 311 Sask.R. 142 and Wilkinson J.A. in R. v. Toy, 2009 SKCA 32. Both of these decisions gathertogether the relevant case law in Canada and rely on the leading authority in Canada: R. v. Farinacci (1993), (ONCA), 109 D.L.R. (4th) 97 (Ont. C.A.).

The Ontario Court of Appeal in Farinacci held that a chambers judge, considering the thirdground, may re-weigh the strength of the grounds of appeal, as part of all of the factors to be weighed, to determine whether detention orrelease is in the public interest. Since L.S.R. and Toy were issued, additional appellate decisions affirm the same proposition of law: R.v. Quinn, 2009 BCCA 226 at para. 3; R. v. Hayre, 2009 BCCA 247 at para. 18; and R. v. Le, 2009 MBCA 35 at para. 19. [8] The grounds of appeal essentially condense to one of unreasonable verdict. Mr.

Will contends that the validity of the convictionis in “grave doubt”. [9] The Crown, on the other hand, while acknowledging that the conviction is based upon circumstantial evidence, takes the

position that the conviction is well grounded in law and evidence and that the grounds of appeal, while not frivolous, are weak at best. [10] I have carefully reviewed the decision of the trial judge and his analysis found in paras. 75 - 91 of the judgment. At this stage, Icannot conclude that the strength of Mr. Will’s grounds of appeal “overcomes the factors that militate against release”. See R. v. D.H.S.,supra at para. 11. I certainly cannot conclude that there is a strong possibility of success on the appeal. [11] I am aware that Mr. Will is a young man without a criminal record prior to this conviction.

However, the nature of the offence andthe age of the vulnerable victim, including the circumstances surrounding the commission of the offence, are so grave that his releasepending appeal would be contrary to the public confidence in the administration of justice. See R. v. Demyen (1975), (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.) and R. v. Pabani (1991), (ON CA), 10 C.R. (4th) 381 (Ont. C.A.). [12] Mr. Will has not satisfied the onus that his detention is not necessary in the public interest and his application for release pendingappeal is dismissed.

DATED at the City of Regina, in the Province of Saskatchewan, this 17th day of September, A.D. 2012. “Herauf J.A.” Herauf J.A.