R v Hahn, 2015 SKCA 148

Court of Appeal for Saskatchewan Citation: R v Hahn, 2015 SKCA 148Docket: CACR2664 Date: 2015-12-22Christopher R. Hahn AppellantAndHer Majesty the Queen Respondent Fiat I. INTRODUCTION [1] Christopher Hahn was convicted of criminal harassment, contrary to s. 264 of the Criminal Code. He was subsequentlysentenced to a jail term of 17 months. Mr. Hahn then appealed both his conviction and his sentence. [2] On October 28, 2015, Mr. Hahn applied, pursuant to s. 679 of the Criminal Code, for release pending the outcome of hisappeal.

His application was denied by a judge of this Court in Chambers. [3] On December 4, 2015, Mr. Hahn filed a notice of motion styled as being what would amount to a second application forinterim release, pursuant to s. 679. It is essentially a critique of the decision rendered by the Chambers judge and, as a result, I advisedMr. Hahn that I was prepared to proceed as if he was asking for a review of the Chambers decision as per s. 680 of the Criminal Code.The Crown took the same approach. [4]

Section 680 empowers a chief justice or his or her delegate to order a review, by the court of appeal, of a decision made by asingle judge under s.

Section 680 reads as follows: 680.

(1) A decision made by a judge under

section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appealunder

section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that courtand that court may, if it does not confirm the decision, (

a) vary the decision; or (

b) substitute such other decision as, in its opinion, should have been made.

(2) On consent of the parties, the powers of the court of appeal under subsection (1) may be exercised by a judge of that court.

(3) A decision as varied or substituted under this

section shall have effect and may be enforced in all respects as though it were thedecision originally made. [5] Accordingly, the issue before me is whether I should direct a review of the Chambers decision denying Mr. Hahn’s releasepending the resolution of his appeal. II. GOVERNING PRINCIPLES [6]

Section 680 contemplates a two-stage process. First, the chief justice (or his or her designate) must decide whether thedecision made pursuant to s. 679 should be placed before a panel of the court of appeal for review. Second, the panel considers themerits of the matter. [7] The case law reveals a variety of views as to the basis on which a chief justice should decide whether to direct a review.Those approaches were canvassed by Klebuc C.J.S. in R v Lewis, 2010 SKCA 54, 350 Sask R 241 [Lewis].

He endorsed an “arguablemerit” test on the basis that it allowed incarcerated or accused persons “reasonable but not unfettered access to a review of his or herdetention by a Court of Appeal” (para 9). This approach has been used subsequently in this Court.

See: R v Dombowsky, 2013 SKCA 96,423 Sask R 145; R v Mah, 2014 SKCA 26, 433 Sask R 222. [8] I have not been asked to reconsider Lewis or to bring the Saskatchewan approach to s. 680 into line with either the morestringent approach employed in Ontario (see: R v Woods, 2012 SKCA 67, 433 Sask R 1; R v Gale, 2011 ONCA 144 [Gale]) or the lessdemanding approach used in British Columbia, Nova Scotia, and Newfoundland and Labrador (see: R v Allen, 2001 NFCA 44, 45 CR(5th) 242; R v Hope, 2012 NLCA 30; R v Cain, 2008 NSCA 13; R v K.(R.W.), 2013 BCCA 387). Accordingly, I will proceed on thebasis that Mr.

Hahn’s application should be allowed if his application for interim release has arguable merit. [9] In considering the arguable merit issue, it is necessary to remember that the nature of the review conducted by the Court onthe second stage of the s. 680 process is broad and is undertaken without deference to the decision under review. See: Gale; R v Daniels(1997), (ON CA), 35 OR (3d) 737 (CA); R v Cooper, 2000 ABCA 75, 160 CCC (3d) 420; R v Hardiman, 2003NSCA 17, 211 NSR (2d) 358. III. ANALYSIS [10] An assessment of the possible merit of Mr.

Hahn’s position revolves, of course, around s. 679(3) of the Criminal Code. Itprovides that an individual in his position may be released from custody pending the resolution of his appeal if he establishes that: (

a) the appeal is not frivolous;

(

b) he will surrender himself into custody in accordance with the terms of any order made; and (

c) his detention is not necessary in the public interest. [ 11 ] The Crown does not suggest that Mr. Hahn’s appeal is frivolous. As well, the Chambers judge found that Mr. Hahn had satisfied this aspect of s. 679(3) . Accordingly, this consideration is not an issue. [ 12 ] I turn, therefore, to the question of whether Mr. Hahn can establish that he will surrender himself into custody if he is released. In this regard, the Chambers judge identified a central factor that led him to conclude Mr. Hahn had not satisfied this standard. After being convicted, but before being sentenced, Mr.

Hahn was apparently arrested for illegally entering Canada from the United States. At the time he was arrested, Mr. Hahn had in his possession over $1000 USD and travel notes indicating he was on his way to Florida. [ 13 ] Mr. Hahn submits that none of this properly suggests that he would not surrender himself into custody as required because (

a) the entire incident was based on false allegations and, as a result, the charge in question was dropped, (

b) while on bail in relation to the charge underpinning this appeal, he left Canada more than a dozen times and always returned as required for court, and (

c) he has otherwise never failed to report to court as required while on release during the Queen’s Bench proceedings and has no convictions for failing to report to court. [ 14 ] The second factor referred to by the Chambers judge in relation to s. 679(3) (

b) was that Mr. Hahn had failed to sign his probation order after being sentenced. Mr. Hahn says this issue is tied up with errors made in the calculation of his sentence and, in particular, alleged errors in calculating credit for remand time. Mr. Hahn submits that none of this has anything to do with whether he will surrender himself into custody if he is released pending his appeal. [ 15 ] In the result, it is apparent that Mr.

Hahn has an “arguable” position in relation to the question of whether he can establish that he will surrender himself into custody if he is released. [ 16 ] This brings the analysis to the final aspect of s. 679(3) —the question of whether Mr.

Hahn can establish that his detention pending appeal is not necessary in the public interest. “Public interest” in this context comprehends a variety of considerations including the nature of the offence, the situation of the offender, the circumstances surrounding the offence, the strength of the appeal, post-charge conduct, the likelihood the appellant will re-offend if released, and the need to maintain public confidence in the administration of justice. [ 17 ] The Chambers judge concluded that Mr. Hahn had not satisfied this feature of s. 679(3) . The judge was particularly concerned that the nature of Mr.

Hahn’s conviction (harassment of a judge because of a decision to which Mr. Hahn objected) should be of concern to the public and, in this regard, he quoted from R v Klein , 2003 SKCA 119 , 241 Sask R 104, to the effect that “failure to take steps to protect the victim would erode confidence in the administration of justice.” [ 18 ] In response to all of this, I understand Mr. Hahn to say there is no need in this case to protect the victim. He says that he is not a violent person, has never been convicted of an offence involving violence and is not a danger to the judge in question or anyone else.

There was no suggestion by the Crown in its submission that, during the time Mr. Hahn was on bail during the course of the Queen’s Bench proceedings, he approached or otherwise harassed the judge or failed to comply with any of his other bail conditions. Mr. Hahn says he has a job if he is released from custody and that his release will allow him to prepare more effectively for his appeal. [ 19 ] I conclude, considering all of the relevant factors here, that Mr. Hahn has an “arguable” position to the effect that his ongoing detention is not necessary in the public interest. IV. CONCLUSION [ 20 ] Mr.

Hahn has an arguable case to the effect that he should be released from custody pending his appeal. He is therefore entitled to a review of the Chambers judge’s denial of his application for interim release, pursuant to s. 680 of the Criminal Code . I direct that this review take place on a date to be fixed by the Registrar. “Richards C.J.S.” Richards C.J.S. Counsel: Christopher Richard Hahn appearing on his own behalf Andrew S. Davis for Her Majesty the Queen