R v Bouvier, 2018 SKCA 89

Court of Appeal for Saskatchewan Docket: CACR3173 Citation: R v Bouvier, 2018 SKCA 89Date: 2018-11-19 Between:Allan Gordon BouvierApplicant/Appellant AndHer Majesty the QueenRespondent/Respondent Before: Caldwell J.A. (in Chambers)Disposition: Applications dismissedWritten 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] In September 2018, Allan Gordon Bouvier applied for judicial interim release pursuant to s. 679 of the Criminal Code andfor a stay of his driving prohibition pursuant to s. 261 of the Criminal Code and s. 143 of The Traffic Safety Act, SS 2004, c T-18.1. In Rv Bouvier, 2018 SKCA 79, I ruled I had jurisdiction to consider Mr. Bouvier’s application under s. 261; however, I found I did not havethe evidence to address his applications in a substantive way and adjourned the applications sine die pending preparation of a transcriptof proceedings in this matter.

The Crown subsequently sought to review the decision on jurisdiction under s. 680(1) of the CriminalCode, which the Chief Justice dismissed in R v Bouvier, 2018 SKCA 87. Having now received the transcript, I will addressMr. Bouvier’s applications on their merits. [2] To reiterate the background in this matter, Mr. Bouvier pled guilty in Provincial Court to impaired driving as an indictableoffence contrary to s. 253(1)(

a) of the Criminal Code. The Provincial Court stayed a charge of refusal to provide a breath sample under s.254(3)(a). After Mr. Bouvier 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 the application, entered theconviction under s. 253(1)(a), sentenced Mr. Bouvier to 10 months’ incarceration and ordered a 3-year driving prohibition under s. 259 ofthe Criminal Code. Mr.

Bouvier has appealed on grounds that the Provincial Court judge erred when dismissing the curative dischargeapplication. As noted, Mr. Bouvier now seeks interim release and a stay of the driving prohibition pending the disposition of his appeal. [3] Under the framework of s. 679(3), as interpreted in R v Oland, 2017 SCC 17 at para 19, [2017] 1 SCR 250, Mr. Bouvier hasthe onus of establishing, on a balance of probabilities, that: (

a) his appeal is not frivolous; (

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

c) his detention is not necessary in the public interest. [4] In my earlier decision, I was prepared to conclude Mr. Bouvier’s appeal raises an arguable issue and is not frivolous on thebasis of the grounds of appeal alone and the fact that the requirement of s. 679(1)(

a) is a “very low bar” (R v Oland at para 20). Havingreviewed the transcript of the proceedings in this matter, I find no reason to disturb that conclusion. For the reasons given in that earlierdecision, I also remain satisfied that Mr. Bouvier will surrender himself into custody in accordance with the terms of an order of release(s. 679(3)(b)). [5] Turning to s. 679(3)(c), Mr. Bouvier must establish, on a balance of probabilities, that his detention is not in the publicinterest. There are two aspects to this inquiry: public safety and public confidence in the administration of justice.

When I examined thefirst aspect earlier, I concluded Mr. Bouvier is not a threat to public safety and he is not likely to reoffend pending the disposition of hisappeal. The transcript does not give me reason to revisit that conclusion and the Crown has conceded the point. [6] As to the second aspect, public confidence in the administration of justice, factors such as the apparent strength of theappeal, the gravity of the offence and the circumstances surrounding the commission of the offence are relevant to the interests ofenforceability and of reviewability.

Of these, the seriousness of the offence and the apparent strength of the grounds of appeal are themost important considerations. [7] Objectively speaking, I find a reasonable, thoughtful and dispassionate member of the public would consider the offence ofimpaired driving under s. 253(1)(

a) a serious offence. Having now reviewed the subjective circumstances of Mr. Bouvier’s offence, asrecounted in the transcript, I remain of the view the public would consider Mr. Bouvier’s offence to be serious. As to Mr. Bouvier’sappeal, a judge’s decision under s. 730 is guided by what the judge considers to be in the best interests of the accused and to be in thepublic interest in the circumstances. Without delving into particulars, I acknowledge Mr. Bouvier’s appeal raises an arguable issue, but Iam not persuaded it has more strength than that (see: R v Fallofield (1973), (BC CA), 13 CCC (2d) 450 (BCCA); R v

Sorenson (1994), (SK CA), 116 Sask R 223 (CA); R v Montgrand, 2008 SKCA 50, 310 Sask R 41). In the result, Ifind, on balance, that the enforceability interest outweighs the reviewability interest in this case. Accordingly, I would dismiss Mr.Bouvier’s application for judicial interim release under s. 679(3). [8] Although not necessarily moot given the disposition of the s. 679(3) application, I am also not persuaded that a stay of the s.259(1)(

c) driving prohibition is warranted in this case. In addition to the factors I considered under s. 679(3), it is relevant thatMr. Bouvier does not seek to set aside his guilty plea and that a three-year driving prohibition under s. 259(1)(

c) is mandatory, regardlessof a judge’s decision under s. 730(1). This means he will be subject to a mandatory three-year driving prohibition notwithstanding hisappeal. When balancing the competing interests of enforceability and reviewability in respect of Mr. Bouvier’s mandatory s. 259(1)(c)driving prohibition, I am simply unable to conclude the reviewability interest outweighs the enforceability interest in his circumstances.Put another way, I have no hesitation concluding public confidence would be undermined if Mr.

Bouvier were permitted to drive pendinghis appeal in circumstances where he will continue to be subject to a three-year driving prohibition regardless of the outcome of thatappeal. Accordingly, I must dismiss his application for a stay of the driving prohibition. [9] The applications are dismissed. “Caldwell J.A.” Caldwell J.A.