R v Bouvier, 2018 SKCA 79

Court of Appeal for Saskatchewan Docket: CACR3173 Citation: R v Bouvier, 2018 SKCA 79Date: 2018-10-03 Between:Allan Gordon BouvierApplicant/Appellant AndHer Majesty the QueenRespondent/Respondent Before: Caldwell J.A. (in Chambers)Disposition: Applications adjourned sine die; expedited transcript orderedWritten reasons by: The Honourable Mr. Justice CaldwellOn Application From: Provincial Court, BeauvalApplication Heard: September 26, 2018Counsel: Ronald P. Piché for the Appellant W.

Dean Sinclair, Q.C. for the Respondent Caldwell J.A. [1] Allan Gordon Bouvier applies for judicial interim release pursuant to s. 679 of the Criminal Code and for a stay of hisdriving prohibition pursuant to s. 261 of the Criminal Code and s. 143 of The Traffic Safety Act, SS 2004, c T-18.1. [2] Mr. Bouvier pled guilty in Provincial Court to impaired driving as an indictable offence contrary to s. 253(1)(

a) of theCriminal Code. The Provincial Court stayed a charge of refusal to provide a breath sample under s. 254(3)(a). In his affidavit, Mr.Bouvier says that, after he had entered his guilty plea, he applied under s. 730 of the Criminal Code for a curative conditional discharge,which would have allowed him to seek treatment for his alcoholism. The Provincial Court judge denied this application, entered theconviction under s. 253(1)(a), sentenced Mr. Bouvier to ten months’ incarceration and ordered a three-year driving prohibition unders. 259 of the Criminal Code. Mr.

Bouvier has filed an appeal against his conviction on the grounds that the Provincial Court judge “erredin ruling that [he] was not in need of curative treatment and consequently erred in dismissing the curative discharge application.” [3] In its opening remarks, the Crown took the position that the Court lacks jurisdiction to grant a stay of Mr. Bouvier’s drivingprohibition. In this regard, the Crown characterises Mr.

Bouvier’s appeal as an appeal against sentence, not against conviction, andpoints to the language of s. 261 of the Criminal Code, which states: 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 the court. (Emphasis added) [4] Section 143(1) of The Traffic Safety Act references appeals against conviction or judicial review of a conviction. Neither s.261(1) nor s. 143(1) refer to an appeal against sentence. [5] Although questions as to the nature of such an appeal do not seem to have arisen very often, there is support for the positiontaken by the Crown on this Court’s jurisdiction under s. 261 to hear Mr.

Bouvier’s application. In R v Brideau, 2014 NBQB 170, 423NBR (2d) 60, the appellant had received a fine as well as a driving prohibition under s. 259 of the Criminal Code following a guilty pleato the

summary conviction offence of dangerous driving. He appealed against his sentence only. Justice McNally, sitting as the

summaryconviction appeal court judge, rejected the appellant’s argument that a conviction appeal necessarily included a sentence appeal (and,therefore, that s. 261 necessarily contemplated appeals against sentence), finding the Criminal Code treats the two as “separate anddistinct species” of appeal (at para 6). Relevant to the jurisdictional point raised by the Crown in this appeal, McNally J. concluded: [7] Accordingly, as Mr. Brideau’s appeal is not an appeal of his conviction or a discharge under s. 730, he cannot avail himself ofthe provisions of

section 261 of the Code and the court has no authority, under the provisions of

section 261, to grant a stay of theprohibition order pending the determination of his appeal of sentence. [6] Also relevant to this application, in R v Brideau, the appellant had submitted alternatively that McNally J. had residual orinherent jurisdiction to grant a stay of sentence (namely, the driving prohibition) pending appeal. Justice McNally rejected this argumenton several grounds, including the following: [12] In R v Metro News Ltd., (ON CA), [1985] O.J.

No. 1322, the Ontario Court of Appeal dismissed a corporateappellant’s motion for a stay of the payment of a fine pending appeal where the prosecutor had not yet sought to enforce payment of thefine. Goodman, J.A. writing for the majority said at para. 4: [4] I agree with the submission of the Crown that the appellate jurisdiction of the Court of Appeal is statutory and that the powerspossessed by the Court to hear and dispose of appeals, and to deal with matters ancillary to appeals, are those expressly conferred by

competent legislative authority or which arise by necessary implication. The competent legislative authority is the Parliament of Canadaand the power to stay the operation of a sentence pending appeal must be set out in or necessarily implied from the provisions of theCriminal Code or the other relevant federal legislation: Welch v. The King, (SCC), [1950] S.C.R. 412 at pp. 428-9; ReForget and the Queen (1982), (ON CA), 65 C.C.C. (2d) 373; R. v. Morgentaler et al. (1984), (ONCA), 16 C.C.C. (3d) 1; R. v. Geauvreau (1982), (SCC), 66 C.C.C. (2d) 375. [13] Again, Parliament, through the provisions of

section 261 of the Criminal Code has set out the conditions upon which a court ofappeal may grant a stay of a prohibition order issued pursuant to s. 259 of the Code. It does not authorize the imposition of a stay of aprohibition order pending appeal where there has been no appeal taken against either a conviction or a discharge under

section 730. Norcan it be said that such a power is necessarily implied from the provisions of the Criminal Code. Had Parliament intended to permit astay of a prohibition order upon an appeal of sentence only, then such would not have been difficult to clearly state. [7] While R v Brideau is not binding on this Court, it is persuasive and I am hard pressed to find flaw in the reasoning of JusticeMcNally. On that basis, I conclude the preliminary question arising in Mr.

Bouvier’s application under s. 261 of the Criminal Code iswhether his appeal is actually an appeal against conviction or against sentence. [8] On that question, I note that Mr. Bouvier’s appeal is framed as an appeal against conviction. His notice of appeal states thathe “does hereby appeal against the conviction imposed” and makes no mention of his sentence other than to describe its terms, which is arequired element of a Form A notice of appeal whether filed in an appeal against conviction, sentence, or both.

In Chambers, Mr.Bouvier made no comment on the fitness of his sentence, other than to acknowledge that a three-year driving prohibition is mandatoryunder s. 259. As such, I find nothing in the form of the notice of appeal or in Mr. Bouvier’s submissions to suggest his appeal is againstsentence, as opposed to conviction. [9] Nonetheless, I take the Crown’s argument as asserting that, notwithstanding its form, Mr. Bouvier’s appeal is in substance anappeal against sentence.

This assertion is helpfully addressed by the reasons of Martland J. in R v Hunt, (SCC), [1979]2 SCR 73, where the Court examined the right of an attorney general to appeal against a discharge ordered under what is now s. 730 ofthe Criminal Code. The decision is instructive for two reasons. First, Martland J. referred to what is now s. 673 of the Criminal Code,which defines sentence as including an order made under s. 730(1). That is, an absolute or conditional discharge order made unders. 730(1) is statutorily deemed to be a sentence. While helpful in an

interpretational way, this aspect of the decision in R v Hunt does notanswer the question at hand in this application because the judge in this case declined to make an order under s. 730(1). [10] Nonetheless, Martland J. also had reason to refer to what is now s. 730(3) of the Criminal Code, which in 1979 read asfollows: 662.1(3) Where a court directs under subsection (1) that an accused be discharged the accused shall be deemed not to have beenconvicted of the offence to which he pleaded guilty or of which he was found guilty and to which the discharge relates except that (

a) the accused may appeal from the direction that the accused be discharged as if that direction were a conviction in respect of theoffence to which the discharge relates; (a.1) the Attorney General may appeal from the direction that the accused be discharged, as if that direction were a judgment or verdictof acquittal referred to in paragraph 605(1)(a). [11] In R v Hunt at 79, Martland J. interpreted s. 662.1(3) in the following way: Subsection (3) is not concerned with appeals from a direction made under subs. 662.1(3) when considered as a matter of sentence.

Theword “sentence” does not appear in the subsection. It is designed to enable the accused to appeal against the finding of guilt. It isdesigned to enable the Attorney General to contest, on the merits, the making of the direction. The occasions when it might be used areobviously limited, but it is conceivable that the Attorney General might seek to contest, as a matter of law, the right of the court to invokethe section. ... [Emphasis added] [12] While Martland J.’s

interpretation of what is now s. 730(3) is also not directly applicable to the circumstances at hand, hisreasoning is and it readily leads to the conclusion that the appeal of an accused who seeks to challenge the decision not to order adischarge under s. 730(1) ought to be treated as an appeal against conviction. This is best explained by referring to the circumstances athand. [13] Here, the judge made a finding of guilt based on Mr. Bouvier’s guilty plea. In Chambers, Mr. Bouvier’s counsel clarified thatMr. Bouvier does not seek to set aside his guilty plea.

Rather, he seeks to establish error in the judge’s determination under s. 730, whichfollowed on the heels of the finding of guilt. As I interpret his grounds of appeal, Mr. Bouvier seeks to show that the judge erred whenassessing whether it was “in the best interests of the accused and not contrary to the public interest” to discharge Mr. Bouvier on thecurative conditions he had proposed. From the record it is unclear whether the judge determined it was not in Mr.

Bouvier’s bestinterests or was not in the public interest or both to order him conditionally discharged (there is no written decision and, as yet, notranscript of the proceeding). Nonetheless, it is clear that s. 730 operates as an either/or gate; i.e., either the judge orders a discharge (andno conviction is entered) or the judge does not order a discharge (and a conviction is entered). That is, in substance, Mr.

Bouvier seeks toget at the decision that led to his conviction. [14] Looking at this from the other direction, I find little support for treating an appeal of this nature as an appeal against sentence.Certainly, as R v Hunt observes, an order under s. 730(1) is considered a sentence for the purposes of the Criminal Code; but, s. 730(3)nonetheless permits both an accused and the Crown to appeal against a s. 730 discharge order as if it were a conviction or acquittal, asthe case may be.

Further, in an appeal against sentence, under s. 687(1) the appellate court must “consider the fitness of the sentenceappealed against”, having the powers either to “vary the sentence within the limits prescribed by law for the offence of which the

accused was convicted” or to dismiss the appeal. While there is some breadth to the power to vary a sentence, I do not see that power asincluding the ability to set aside a conviction, revisit a determination under s. 730(1) and impose a conditional discharge in lieu. [15] In the end, I am persuaded by the circumstances and the reasoning in R v Hunt that an accused’s appeal against a judge’sdetermination under s. 730(1) is in substance an appeal against conviction and ought to be treated as such, regardless of the outcome ofthat determination. Given that conclusion, I turn now to address Mr.

Bouvier’s applications under s. 261 and s. 679(3) of the CriminalCode. [16] Justice Ryan-Froslie thoroughly reviewed the considerations at play in a s. 261 application in R v Lachapelle, 2014 SKCA 67,438 Sask R 281, where she identified factors including whether the appeal is frivolous and whether continuation of a driving prohibitionis necessary in the public interest (citing R v Restau, 2008 SKCA 111, 314 Sask R 7; R v Cole (1994), (BC CA), 49BCAC 318; and R v Lockerby (1999), 1999 NSCA 17 , 175 NSR (2d) 329 (CA)), whether a stay would detrimentally affectpublic confidence in the effective enforcement and administration of the criminal law (citing R v Ouelette, 2005 ABCA 57; and R vMacCulloch, 2010 NSCA 31, 289 NSR (2d) 341), and whether a driving prohibition would result in hardship to the applicant (citing R vBaker, [1994] BCJ No 2323 (QL) (CA)).

When examining what was meant by “public interest”, Ryan-Froslie J.A. referred to the caselaw built up under s. 679(3)(

c) of the Criminal Code in respect of judicial interim release, including R v Farinacci (1993), (ON CA), 109 DLR (4th) 97 (Ont CA); R v L.S.R., 2008 SKCA 77, 311 Sask R 142; R v Switucka, 2009 SKCA 115, 337 Sask R218; R v Toy, 2009 SKCA 32, 331 Sask R 1; R v Galloway, 2004 SKCA 53, 184 CCC (3d) 355; R v Agecoutay, 2008 SKCA 68, 310Sask R 224; and R v Leroux, 2014 SKCA 60, 438 Sask R 162. All of which led Ryan-Froslie J.A. to conclude that the factors set outunder s. 679(3)(

c) of the Criminal Code are also applicable under s. 261 when determining whether it is in the public interest to stay adriving prohibition that has been ordered under s. 259. [17] Given Ryan-Froslie J.A.’s conclusion in R v Lachapelle and the fact that Mr. Bouvier has also applied for judicial interimrelease under s. 679(3) of the Criminal Code, I propose to examine both applications at the same time, largely under the framework of s.679(3). [18] Under s. 679(3) of the Criminal Code, Mr. Bouvier has the onus of establishing, on a balance of probabilities, that (

a) hisappeal is not frivolous, (

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

c) hisdetention is not necessary in the public interest: R v Oland, 2017 SCC 17 at para 19, [2017] 1 SCR 250. [19] Addressing s. 679(3)(

a) is somewhat difficult in this case because there is no written judgment and the Court does not yethave a transcript of the proceedings at which Mr. Bouvier entered his guilty plea and was convicted and then sentenced. As noted, Mr.Bouvier does not seek to impugn his guilty plea, but rather seeks to establish error in the judge’s determination under s. 730. In thatregard, as I interpret his grounds of appeal, Mr. Bouvier must show error in the judge’s assessment of whether it was “in the interests ofthe accused and not contrary to the public interest” to direct that Mr.

Bouvier be discharged on the curative conditions he had proposed.While it is difficult to assess the merit of this conviction appeal without examining the transcript of the s. 730 application, therequirement of s. 679(1)(

a) is a “very low bar” (R v Oland at para 20) and I am prepared to conclude the appeal raises arguable groundsand is not frivolous. [20] I am also satisfied under s. 679(3)(

b) that Mr. Bouvier will surrender himself into custody in accordance with the terms of anorder of release. He is working, has family commitments and family support as well as other pro-social supports. He seems to respect thejustice system. None of his prior convictions, which are dated, relate to breaches of court orders or failures to appear. [21] As to s. 679(3)(c), Mr. Bouvier must establish, on a balance of probabilities, that his detention is not in the public interest,which has two aspects, namely, public safety and public confidence in the administration of justice. As to the first of these, Mr.

Bouvierpled guilty to impaired driving but has, since committing the offence, led a sober life for 4.5 years—that is, he has not reoffended. Hisprior involvement in the criminal justice system is dated, with 13 convictions between 1976 and 2009, primarily involving alcohol anddriving. However, he does have one assault conviction in 2000 and an uttering threats conviction in 2006. The author of Mr. Bouvier’spre-sentence report assessed him as a low risk to reoffend and describes positive factors in Mr. Bouvier’s life. This evidence leads me toconclude, on balance, that Mr.

Bouvier is not a threat to public safety and that he is not likely to reoffend pending the disposition of hisappeal. However, the fact is that, regardless of the success of his appeal, Mr. Bouvier will remain subject to a three-year drivingprohibition under s. 259(1)(

c) of the Criminal Code. That prohibition is mandatory regardless of whether the decision under s. 730(1) isset aside or not: 259(1) If an offender is convicted of an offence committed under

section 253, other than an offence under paragraph 253(3)(b), or undersection 254 or this

section or discharged under

section 730 of an offence committed under

section 253, other than an offence undersubsection 253(3)(b), and, at the time the offence was committed or, in the case of an offence committed under

section 254, within thethree hours preceding that time, was operating or had the care or control of a motor vehicle, vessel or aircraft or of railway equipment orwas assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall, in addition to any otherpunishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street,road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be, (

a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment,and not less than one year; (

b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment,and not less than two years; and (

c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced toimprisonment. [22] The public confidence aspect of s. 679(3)(

c) involves weighing the competing interests of enforceability and reviewability.The Supreme Court explained in R v Oland that factors such as the apparent strength of the appeal, the gravity of the offence and thecircumstances surrounding the commission of the offence are relevant to the interests of enforceability and of reviewability. Of these, the

seriousness of the offence and the apparent strength of the grounds of appeal are the most important considerations. In R v Oland , the Court also said that where public safety or flight-risk concerns are negligible and where the grounds of appeal “clearly surpass the ‘not frivolous’ criterion”, the public interest in reviewability may well overshadow the enforceability interest, even in the case of a very serious offence. [ 23 ] With R v Oland in mind, in my assessment, a reasonable, thoughtful and dispassionate member of the public would consider the objective offence of impaired driving under s. 253(

a) a serious offence, albeit not at the level of seriousness as something like murder. However, in this case, it is difficult to assess public confidence because I do not have a transcript of the proceedings before the Provincial Court. In those proceedings, the Crown would have laid out the facts of the subjective offence to which Mr. Bouvier has admitted guilt. This information is necessary because the author of Mr. Bouvier’s pre-sentence report notes there are discrepancies “between the Prosecutor’s Information Sheet and [Mr. Bouvier’s] version” of the offence. A transcript would also contain Mr.

Bouvier’s arguments under s. 730 and the evidence he brought to bear in that regard, the Crown’s submissions as to sentence, as well, perhaps, as some of the judge’s reasoning for the decisions made in that regard and under s. 730 . [ 24 ] Without a transcript, I find I am unable to assess the two most important considerations under the public confidence component of s. 679(3)(c), i.e., strength of the appeal and gravity of the offence committed. Further, I have little information as to the circumstances surrounding the commission of the offence, other than what may be gleaned from the bare court record.

As a result, I do not have the evidence that would allow me to conclude a reasonable member of the public, informed of all of the relevant circumstances, would perceive the reviewability interest to be more important than the enforceability interest. [ 25 ] Parliament has authorised appellate courts to release convicted offenders under s. 679(3) pending determination of an appeal against conviction if the offender establishes that the circumstances set out in that

section exist on a balance of probabilities ( R v Oland ). While Mr. Bouvier makes a valid point that it takes time to obtain a transcript (and that he will necessarily be incarcerated during that time), he has not given me any precedent to suggest that the evidentiary requirements of s. 679(3)(

c) as interpreted by R v Oland may be relaxed at the discretion of the judge hearing the application. [ 26 ] That said, I am not unsympathetic to Mr. Bouvier’s circumstances or to the point he has made about the delay inherent in obtaining a transcript. Therefore, I adjourn sine die Mr. Bouvier’s applications under s. 261 and s. 679(3) and I exercise my authority under s. 679(10) of the Criminal Code to order the expedited preparation of the transcript of the proceedings at Provincial Court in this matter. The transcript should be prepared with all due haste. This will not only expedite the hearing of Mr.

Bouvier’s appeal but also facilitate the hearing of the applications for judicial interim release and for a stay of the driving prohibition. In that regard, if Mr. Bouvier or the Crown wishes to make additional arguments on the basis of the transcript, they may contact the Registrar to arrange a time to do so. If not, once the transcript is filed with the Court, I will review it and render my decision on the applications brought by Mr. Bouvier. “Caldwell J.A.” Caldwell J.A.