R v Madsen, 2017 SKCA 73

Court of Appeal for Saskatchewan Docket: CACR2988 Citation: R v Madsen , 2017 SKCA 73 Date: 2017-09-08 Between: Kim Madsen Applicant And Her Majesty the Queen Respondent Before: Jackson J.A. (in Chambers) Disposition: Application denied On Application From: Provincial Court, Yorkton Appeal Heard: August 24, 2017 Counsel: David Rusnak, Q.C., for the Appellant Dean Sinclair, Q.C., for the Respondent Jackson J.A. I. Introduction [ 1 ] Kim Madsen was convicted of endangering the life of Dennis Peepeetch thereby committing an aggravated assault, contrary to s. 268 of the Criminal Code , RSC 1985, c C-46.

He was sentenced to 40 months of incarceration. He has appealed his conviction and sentence. [ 2 ] Mr. Madsen now applies for an order pursuant to s. 679 of the Criminal Code that he be released from custody pending the determination of his appeal from conviction and from sentence. [ 3 ] I have decided that Mr. Madsen should not be released pending the hearing of his appeal. He has not established that his detention is not in the public interest.

While he does not pose a flight risk and his release does not threaten public safety, the questionable strength of his grounds of appeal, the seriousness of the crime and the aggravating circumstances of its commission, support his continued incarceration pending appeal. II. Analysis A. Section 679(3) [ 4 ] Section 679(3) of the Criminal Code requires that Mr. Madsen demonstrate that (

a) his appeal is not frivolous; (

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

c) his detention is not necessary in the public interest. Crown counsel concedes the second point, but submits that Mr. Madsen’s grounds of appeal are frivolous and that his detention is necessary in the public interest. B. Section 679(3)(a): Whether the appeal is frivolous? [ 5 ] In its recent decision in R v Oland , 2017 SCC 17 , 409 DLR (4th) 457 [ Oland ], the Supreme Court discussed the principles of law governing an appellate court’s exercise of discretion under s. 679(3) . While s. 679(3)(

a) was not directly in issue in Oland , the Court observed that, generally, Canadian appellate courts view the “not frivolous” test as representing “a very low bar” ( Oland at para 20 ). That has been this Court’s consistent approach to the issue as well: R v Toy , 2009 SKCA 32 at para 24 , 331 Sask R 1; R v Mah , 2014 SKCA 26 at para 11 , 433 Sask R 222; and R v Gill , 2015 SKCA 96 at para 15 , 341 CRR (2d) 121. With that test in mind, I will review Mr. Madsen’s ground of appeal. [ 6 ] Mr. Madsen appeals on the following grounds: Conviction Appeal 1.

The Trial Judge erred in law in holding that after the complainant had spit on Mr. Madsen, Mr. Madsen had to wait until he was further assaulted before he reacted. 2. The Trial Judge erred in law in failing to consider the relevant circumstances of Mr. Madsen by failing to consider the effect that a prior assault had on Mr. Madsen’s response to the complaint’s actions. Mr. Madsen had been assaulted three months prior resulting in Mr. Madsen’s jaw being broken. 3. The Trial Judge erred in law in holding that it was appropriate for the Crown to question Mr. Madsen on prior charges. 4.

The Trial Judge erred in law in finding that there was objective foresight of the risk of bodily harm.

5. The Trial Judge erred in holding that Mr. Madsen’s actions were a significant contributing cause of Mr. Peepeetch’sparalysis given that there was evidence establishing reasonable grounds that there were intervening causes which lead to Mr. Peepeetch’sparalysis. Although Mr. Madsen’s actions may have been the significant contributing cause that resulted in Mr. Peepeetch’s neckfracture, Mr. Peepeetch’s paralysis is not directly attributable to Mr. Madsen’s actions. It was not reasonably foreseeable that a thirdparty would forcibly move an injured Mr. Peepeetch into an upright position. Sentence Appeal 1.

The sentence is unduly harsh, severe and excessive given the Accused’s background and the circumstances of the offence. 2. The sentencing Judge erred in law in not addressing the unique circumstances involving this offence and the full mitigatingcircumstances. 3. The sentencing Judge erred in his determination of the appropriate sentencing range for offences of this nature. 4. The sentencing Judge erred in his finding that the factual circumstances were not unusual. 5. Such further grounds as I may advise and this Honourable Court may permit. [7] Crown counsel submits that Mr.

Madsen’s grounds of appeal do not rise to even the low threshold depicted by the “notfrivolous” test. He says this because the entire interaction between Mr. Madsen and Mr. Peepeetch was captured on videotape. At theCrown’s request, and with no objection from Mr. Madsen’s counsel, I reviewed the videotape and the pre-sentence report, but I have,however, given little weight to either. It is the trial judge’s assessment of the evidence that is relevant to my reasons. [8] While there may be some merit to the Crown’s position with respect to this criterion, I note the trial judge gave very seriousconsideration to Mr.

Madsen’s defence. His oral decision encompasses some 150 transcript pages where he extensively reviews theevidence in support of Mr. Madsen’s claim to self-defence and his claim that he was not the cause of Mr. Peepeetch’s paralysis. Havingregard for the seriousness with which the trial judge gave to Mr. Madsen’s defence, I am not prepared to say that the grounds of appealfrom conviction are baseless, as the Crown suggests. I am, however, entitled to consider the strength of the grounds of appeal aspresently put to me as part of my assessment of the public interest criterion. C.

Section 679(3)(c): Whether detention or release is in the public interest? [9] The Supreme Court in Oland was principally concerned about providing guidance in relation to this criterion and what itmeans to consider detention or release in the public interest. In relation to it, the Court broadly confirmed the approach outlined byArbour J.A. (as she then was) in R v Farinacci (1993), (ON CA), 109 DLR (4th) 97 (Ont CA) [Farinacci].

Farinaccihas been referred to and relied upon by this Court on some 24 occasions, beginning first with R v Sutherland (1994), (SK CA), 90 CCC (3d) 376, and again, most recently, in R v Madraga, 2016 SKCA 28, 476 Sask R 87. [10] The Supreme Court made it clear that not every application for release pending appeal engages the public confidence in theadministration of justice (Oland at para 29). In my view, this appeal does. It engages the public interest because of the seriousness of thecrime and the way it which the trial judge found it had been committed.

As the Supreme Court stated in Oland, the more serious thecrime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released pendingappeal (at para 37). [11] As a result of what happened on the night in question, Mr. Peepeetch suffered a number of fractures to his spinal area, losingall function in his lower limbs and a certain loss of strength in his arms and hands. He now needs almost constant care. The medicalexpert at trial testified that “it is the force of impact … which cause[d] the injury to the spinal cord” (T699). Mr.

Peeepeetch will remain“essentially a paraplegic” (T691). That same expert testified that Mr. Peepeetch’s injuries were caused as “a result of [the] patient’s neckbeing forced up and down” (T691). [12] In Oland, the Supreme Court reiterated the principle from Farinacci, notably, that the decision to release or to detain aconvicted person involves a balancing of many factors. Very strong grounds of appeal will weigh in favour of release, notwithstandingthe seriousness of the crime.

In this case, however, I cannot find that the strength of the grounds of appeal overcome my concernsregarding the seriousness of the charge and the circumstances in which it was committed. I say this based upon my review of the trialjudge’s reasons. [13] After an extensive review of the evidence, the trial judge made these findings: (

a) Mr. Peepeetch spat on Mr. Madsen; (

b) Mr. Madsen caused the spinal cord injury; (

c) Mr. Peepeetch suffered from ankylosing spondylitis, but this pre-existing condition played no role in the trial judge’sanalysis because Mr. Madsen’s actions would have caused significant injury to an otherwise healthy individual; (

d) an employee at the bar moved Mr. Peepeetch from the floor to a chair where he was unable to support his head on his own,but that this movement did not cause the fractures that led to the paralysis; (

e) Mr. Madsen reasonably believed that Mr. Peepeetch used force against him but Mr. Madsen’s actions were not for the

purpose of defending or protecting himself, but rather to harm Mr. Peepeetch for insulting and annoying him and his friend, such that any defence available to Mr. Madsen under s. 34(1) (

b) of the Criminal Code failed; (

f) Mr. Madsen’s actions were not reasonable in the circumstances, given Mr. Peepeetch’s size, frailness, physical limitations and intoxication compared with Mr. Madsen’s size, physical capabilities and lack of intoxication; (

g) considering the totality of the evidence, and assuming the evidence relied upon by Mr. Madsen to be true, there was no air of reality to the defence of self-defence . [ 14 ] The trial judge went on specifically to state he did not believe Mr. Madsen, nor did he have a reasonable doubt as to his guilt based on the evidence as a whole. [ 15 ] Mr. Madsen challenges these findings, which is clearly his right to do. From his grounds of appeal, as I interpret them at this stage, Mr. Madsen is saying the trial judge should not have reached these findings, notably, his findings as to what happened between Mr.

Peepeetch and him immediately prior to the incident and as to the cause of Mr. Peepeetch’s catastrophic injury. As these grounds of appeal call into question findings of fact and mixed fact and law, Mr. Madsen will face a significant hurdle overcoming them on appeal. I cannot say that these grounds of appeal are frivolous, as I have not reviewed the transcript in its entirety, nor do I have the benefit of full argument from counsel. Nonetheless, I can say these grounds are not particularly strong.

To use the words of the Supreme Court in Oland , I cannot say at this stage of analysis that “the grounds of appeal clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added, at para 44) so as to justify release in the face of the seriousness of the crime. [ 16 ] I am aware that Mr. Madsen is not a flight risk – the Crown concedes this point. I am also not concerned that Mr. Madsen would commit a serious offense if I were to release him. He has been a hard-working member of the community and his prior employer will accept him back – if he were released pending appeal.

Prior to this offence, he had no record and the offence appears out of character for him.

He was on bail for some significant time prior to his trial, and again between the date of conviction and his sentencing, largely without incident – although he did breach his undertaking on one occasion by attending a restaurant that served alcohol and by consuming alcohol at that restaurant. [ 17 ] In Oland , Moldaver J. for the Court discusses how an appellate judge should evaluate whether release or detention is in the public interest: [47] Appellate judges are undoubtedly required to draw on their legal expertise and experience in evaluating the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks.

However, when conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of 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 that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not . … [49] In the final analysis, there is no precise formula that can be applied to resolve the balance between enforceability and reviewability . A qualitative and contextual assessment is required. In this regard, I would reject a categorical approach to murder or other serious offences, as proposed by certain interveners.

Instead, the principles that I have discussed should be applied uniformly. (Emphasis added) [ 18 ] In a case such as this one, where emotions run high, these are important words to keep in mind. Notwithstanding this caution, as I balance the factors, and consider the matter from the perspective of a reasonable member of the public, I conclude that release, pending conviction appeal, is not in the public interest. [ 19 ] Mr. Madsen has also appealed his sentence and seeks interim judicial release in relation to it as well.

This requires separate consideration: R v Janzen , 2015 SKCA 97 at paras 12–16 , 465 Sask R 261. Given the length of his sentence, I have no concerns that his appeal will not be heard before the expiry of his sentence. Having regard for the seriousness of the offense, in light of the facts as found by the trial judge, releasing Mr. Madsen pending his appeal from sentence is not in the public interest. I am also entitled to consider the highly deferential standard of review applicable to sentence appeals: see Gary T.

Trotter, The Law of Bail in Canada , loose-leaf (2015- Rel 1) 3d ed (Scarborough: Carswell, 2010) at 10-35. [ 20 ] In Oland , the Court noted that in “balancing the tension between enforceability and reviewability, appellate judges should be mindful of the anticipated delay in deciding an appeal, relative to the length of the sentence” (at para 48). In that regard, Mr. Madsen was convicted on March 20, 2017. While he was not entitled to file his notice of appeal until he was sentenced on June 23, 2017, nonetheless, he has been in a position to instruct counsel regarding his appeal for over five months.

Now that the transcripts have been prepared, there is no administrative impediment to the prompt review of his conviction and sentence. This appeal could be set down for hearing as soon as Mr. Madsen’s factum is filed.

III. Conclusion [ 21 ] Mr. Madsen’s application for release is denied. Since the transcript has been prepared, there is no need for an order expediting this appeal. As soon as Mr. Madsen’s factum has been filed, the matter can be set down for hearing at the next available court date fixed according to the Registrar’s consultations with counsel. “Jackson J.A.” Jackson J.A.