Docket: CACR2435 Scott Wybert Lachapelle Applicant/Appellant - v. -, 2014 SKCA 67

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 67 Date: 2014-06-18 Between: Docket: CACR2435 Scott Wybert Lachapelle Applicant/Appellant - and - Her Majesty the Queen Respondent/Respondent Before: Ryan-Froslie J.A. (in chambers) Counsel: Ronald P. Pich é for the applicant/appellant W. Dean Sinclair for the respondent Application: From: 2014 SKQB 124 Heard: June 11, 2014 Disposition: Application granted Written Reasons: June 18, 2014 By: The Honourable Madam Justice Ryan-Froslie

Ryan-Froslie J.A. [1] Mr. Lachapelle applies pursuant to ss. 261 of the Criminal Code and s. 143 of The Traffic Safety Act, S.S. 2004, c. T-18.1, for anorder staying revocation of his driving privileges pending the hearing of his appeal. [2] The Crown opposes his application, arguing the material before the Court is deficient and the appeal is frivolous. [3] Mr. Lachapelle was convicted in Provincial Court of driving a motor vehicle while over .08, contrary to s. 253(1)(

b) of theCriminal Code. His appeal of that conviction to the

summary conviction appeal court was dismissed. On May 12, 2014 he filed a noticeof appeal with this Court. Sufficiency of the Material [4] The Crown contends the material filed by Mr. Lachapelle is deficient and cannot support the granting of the order requested. [5] The Crown contends Mr. Lachapelle was incorrect when he averred in his affidavit that he had no criminal record. The Crownacknowledges this error was due to an oversight on the part of Mr. Lachapelle’s legal counsel. During argument it was agreed that Mr.Lachapelle’s legal counsel would file a copy of the criminal record with this Court.

That has now been done. It was acknowledged thatonly Mr. Lachapelle’s conviction in 2000 for failing to remain at the scene of an accident would be relevant to this application. [6] Crown counsel also submits Mr. Lachapelle’s second ground for appeal is devoid of merit. It alleges the

summary convictionappeal court judge erred by concluding Mr. Lachapelle’s right to counsel was not breached. In fact, a breach was found. In argument Mr.Lachapelle’s counsel acknowledged this ground for appeal was devoid of merit. He indicated the ground he meant to set out in the noticeof appeal was that the

summary conviction appeal judge erred in his determination of the appropriate remedy as a result of the breach.With the Crown’s consent, leave was given to Mr. Lachapelle to serve and file an amended notice of appeal. That has now been done. [7] Crown counsel is correct that applications for reinstatement of driver’s licences pending an appeal are important applications.While the Crown often consents to such orders, those convicted of offences which result in suspension of their driving privileges shouldnot take such applications for granted.

The material filed in support of such applications should be prepared with care, should be accurateand should provide the Court with sufficient information to enable it to exercise its discretion in accordance with the relevant legislativeprovisions. [8] In this case Mr. Lachapelle was allowed to remedy the deficiencies in his application. The Crown may not always be soamenable. Application for Stay of Prohibition [9]

Section 261 of the Criminal Code and s. 143(1) of The Traffic Safety Act operate in tandem with respect to the prohibition ofdriving privileges for individuals convicted of certain offences including offences pursuant to s. 253 of the Criminal Code. The relevantportions of those sections read as follows: 143(1) If a person appeals against or applies for judicial review of a conviction for an offence committed anywhere in Canada, theperson’s disqualification from driving a motor vehicle on a highway remains in force, unless: (

a) if the conviction occurred in Saskatchewan, the judge or court hearing the appeal or application orders otherwise; or . . . 261(1) Subject to subsection (1.1), if an appeal is taken against a conviction or discharge under

section 730 for an offence committedunder any of sections 220, 221, 236, 249 to 255 and 259, a judge of the court being appealed to may direct that any prohibition orderunder

section 259 arising out of the conviction or discharge shall, on any conditions that the judge or court imposes, be stayed pendingthe final disposition of the appeal or until otherwise ordered by that court. These sections give appellate court judges broad discretion when determining whether a driving prohibition should be stayed pending anappeal. Neither

section sets out what criteria an appellate court judge should consider when exercising his or her discretion, but courts ina number of jurisdictions have discussed what factors may be relevant in such cases. [10] In R. v. Restau, 2008 SKCA 111 at para. 9, 314 Sask. R. 7, Justice Richards (as he then was) discussed two factors that should beconsidered, namely, whether the appeal is frivolous and whether continuation of the prohibition is necessary in the public interest. [11] Those same two criteria were set out by the British Columbia Court of Appeal in R. v.

Cole (1994), (BC CA),49 B.C.A.C. 318 at para. 4 and 5 and by the Nova Scotia Court of Appeal in R. v. Lockerby (1999), 1999 NSCA 17 , 175 N.S.R.(2d) 329 at para. 5. [12] Appellate courts have referred to other factors, including whether a stay would detrimentally affect public confidence in the

effective enforcement and administration of the criminal law (see: R. v. Ouelette, 2005 ABCA 57 at para. 3, 11 M.V.R. (5th) 10 and R. v.MacCulloch, 2010 NSCA 31, at para. 6, 289 N.S.R. (2d) 341) and whether the driving prohibition would result in a hardship to theapplicant (see: R. v. Baker, [1994] B.C.J. No. 2323 at para. 2 (B.C.C.A.) (QL)). [13] What is meant by the public interest was considered by Justice Arbour in R. v. Farinacci (1993), (ON CA), 109 D.L.R. (4th) 97, in the context of an application pursuant to s. 269(3) of the Criminal Code. She described “in the public interest” atparas. 41-43 as follows: 41 Section 679(3)(

c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decisiongranting or denying bail pending appeal can be reviewed. The concerns reflecting public interest, as expressed in the case law, relate bothto the protection 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. 42 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. 43 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 entire sentencebefore having an opportunity to challenge the conviction on appeal.

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

a) and (

b) of theCriminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes.This same principle animates the civil law dealing with stays of judgments and orders pending appeal. It is a principle which vindicatesthe value of reviewability. While Justice Arbour was dealing with s. 679(3)(

c) of the Criminal Code, I find her comments with respect to what is meant by thepublic interest are generally applicable to the

interpretation of that phrase. Her explanation of the public interest would cover both thepublic’s confidence in the administration of justice which was referred to in R. v. Ouellette, supra and R. v. MacCulloch, supra and theindividual circumstances of the offender as set out in R. v. Baker, supra. [14] Justice Arbour’s comments have been referred to and quoted with approval by this Court on numerous occasions. In R. v. L.S.R.,2008 SKCA 77 at para. 8, 311 Sask.

R. 142, Justice Jackson of this Court, after referring to Farinacci, set out some of the factors to beconsidered in determining the public interest in applications pursuant to s. 679(3)(c): 8 … Detention in the public interest has come to be measured in terms of balancing the principles conferring a right of appellatereview against the enforceability of a sentence that has already been imposed on one convicted of a crime.

The reviewing judge reviews aconstellation of factors, including the risk to re-offend, the strength of the grounds of appeal, the nature and circumstances of the offenceand the offender, delay and its impact, post-charge conduct, the possible terms of release, and the impact of the release or detention onthe confidence of the public in the administration of justice. (See also: R. v. Switucka, 2009 SKCA 115 at para. 13, 337 Sask. R. 218; R. v. Toy, 2009 SKCA 32 at paras. 26-27, 331 Sask. R. 1; R. v.Galloway, 2004 SKCA 53 at para. 15, 184 C.C.C. (3d) 355; R. v. Agecoutay, 2008 SKCA 68 at para. 16, 310 Sask.

R. 224; and, R. v.Lerioux, 2014 SKCA 60 at para. 13.) These factors are also applicable in determining the public interest on applications pursuant to s.261(1) of the Criminal Code. [15] I conclude that the factors relevant to the exercise of an appellate court’s discretion pursuant to s. 261 of the Criminal Code and s.143 of The Traffic Safety Act will vary depending on the circumstances of the offender and the offence itself. It would of necessity,however, include a determination that the appeal is not frivolous (i.e., devoid of merit) and whether lifting the prohibition is in the publicinterest.

The public interest engages a balancing of the principles of enforceability and reviewability as well as concerns relating topublic safety. It would also include taking into account an applicant’s personal circumstances. The onus of establishing that thediscretion should be exercised in the applicant’s favour rests with the applicant on a balance of probabilities. [16] In this case, I cannot conclude Mr. Lachapelle’s appeal is frivolous. The bar for establishing this factor is not a high one (see: R. v.Restau, supra, at para. 10).

There are arguable issues with respect to the appropriate s. 24 Charter remedy as a result of the breach of Mr.Lachapelle’s right to counsel. [17] Mr. Lachapelle is 39 years old and owns his own concrete business. I am satisfied he needs a licence to conduct that business. Mr.Lachapelle has a criminal record, most of which is dated (prior to 1996). His last conviction was in October 2000 more than 13 yearsago. It related to a failure to remain at the scene of an accident. Mr. Lachapelle received a three month driving prohibition as a result ofthat conviction.

Given the gap since his last conviction, there is no significant concern with respect to public safety. [18] A prohibition order is part of the sentence. It is usually of short duration and thus, unless the prohibition is stayed pending anappeal, the sentence may well be served before the appeal is heard. [19] In the circumstances I am satisfied the public interest does not require that the prohibition remain in place pending the appeal. [20] There shall be an order pursuant to s. 261 of the Criminal Code and s. 143 of The Traffic Safety Act that Mr.

Lachapelle’s drivingprohibition and disqualification be stayed for a period of 90 days or until the date set for his appeal whichever event first occurs. Mr.Lachapelle is to file his factum within 60 days of this order so that the appeal may be set in September 2014.

DATED at the City of Regina, in the Province of Saskatchewan, this 18 th day of June, A.D. 2014. “Ryan-Froslie J.A.” ____________________ Ryan-Froslie J.A.