R v Yates, 2021 SKCA 153

Court of Appeal for Saskatchewan Docket: CACR3487 Citation: R v Yates, 2021 SKCA 153Date: 2021-11-25 Between:Austin YatesAppellant AndHer Majesty The QueenRespondentBefore: Ryan-Froslie J.A. (in Chambers)Disposition: Application dismissed Written reasons by: The Honourable Madam Justice Ryan-FroslieOn appeal from: CRM 463 of 2019, ReginaApplication heard: November 10, 2021Counsel: Thomas Hynes for the Appellant Erin Bartsch for the Respondent Ryan-Froslie J.A. I. INTRODUCTION [1] After trial, before a Queen’s Bench judge, sitting without a jury, Austin Yates was convicted of manslaughter contrary to s.236(

b) of the Criminal Code. He was sentenced to 12 years imprisonment. Mr. Yates has sought to appeal both his conviction andsentence. He now applies, pursuant to s. 679(3) of the Criminal Code for judicial interim release pending the hearing of his appeal. [2] For the reasons set out herein I would dismiss Mr. Yates’ application. II. BACKGROUND [3] The trial judge found that Mr. Yates was a drug addict who had planned to rob Miguel Lane to obtain drugs. To carry out therobbery, Mr. Yates needed assistance from someone who had a vehicle. He enlisted Kayle George. Mr.

Yates then reached out to Mr.Lane, under the pretense of a drug buy. He lured Mr. Lane into Mr. George’s vehicle, where Mr. George and Desiree Morin-Jim werewaiting. Mr. Yates drove the vehicle while Mr. George sat in the backseat with Mr. Lane. Mr. George had a gun with which he threatenedMr. Lane. A struggle took place between Mr. George and Mr. Lane, both inside and outside the vehicle. Mr. Lane was shot and killed. [4] It is uncontroverted that it was Mr. George who brought the gun to the robbery and shot Mr. Lane once, causing his death.The issue at trial was whether Mr.

Yates, who had planned and participated in the robbery, was guilty of manslaughter as a party to theoffence. The key question was whether he knew or ought to have known that the shooting of Mr. Lane was a “probable consequence” ofcarrying out the robbery (s. 21(2) of the Criminal Code). [5] Originally, Mr. George and Mr. Yates were co-accused and were to be tried together. On the date set for their preliminaryinquiry, their lawyers and the Crown indicated to the preliminary inquiry judge that they had reached a deal whereby Mr.

George and Mr.Yates, who had both been charged with second degree murder, would plead guilty to manslaughter. There was to be a joint submission onsentence. Guilty pleas were entered as per the agreement and the matter was adjourned for sentencing submissions. When the matter cameup before the Court for sentencing, legal counsel for Mr. Yates indicated that she had received instructions from her client to resile fromthe plea agreement. As a result, the preliminary inquiry judge, who had accepted Mr. Yates’ guilty plea, made an order directing Mr.Yates’ counsel of choice to withdraw. Mr.

Yates did not apply for certiorari with respect to that decision nor did he raise it as an issuebefore the trial judge. [6] The sole ground underpinning Mr. Yates’ conviction appeal is that: The learned preliminary inquiry judge erred in law in making an order discharging the Appellant’s counsel, thereby depriving theAppellant of counsel of choice at his trial. [7] While not specifically referred to in the notice of appeal, counsel for Mr. Yates elaborated on this ground in his oral argumentindicating that the removal of Mr. Yates’ counsel of choice constituted a breach of his s. 10(

b) Charter right to counsel. Relying on theOntario Court of Appeal’s decision in R v McCallen, (ON CA), 43 OR (3d) 56 (CA) (McCallen), Mr. Yates contendsthat such a breach can only result in a new trial. III. THE LAW [8] Section 679(3) of the Criminal Code provides that a judge of this Court may order an appellant be released pending thedetermination of his appeal if the appellant establishes that (

a) his appeal is not “frivolous”; (

b) he will surrender himself into custody in

accordance with the terms of his release order; and (

c) his detention is not necessary in the “public interest”. [ 9 ] To secure release, Mr. Yates must establish all three of these criteria on a balance of probabilities.

The onus rests with him because he has been convicted of manslaughter and is therefore no longer presumed innocent. [ 10 ] In R v Oland , 2017 SCC 17 , [2017] 1 SCR 250 ( Oland ), Moldaver J., writing for a unanimous Court provided guidance on what each of the criterion set out in s. 679(3) encompasses and, in particular, how to evaluate the “public interest” criterion. [ 11 ] Justice Moldaver stated: [20] The first criterion requires the appeal judge to examine the grounds of the appeal with a view of ensuring that they are “not frivolous” (s. 679(3)(a)) …While not in issue on this appeal, the “not frivolous” test is widely recognized as being a very low bar. … [21] The second criterion requires the applicant to show that “he will surrender himself into custody in accordance with the terms of the [release] order” (s. 679(3)(b)).

The appeal judge must be satisfied that the applicant will not flee the jurisdiction and will surrender into custody as required. [22] The third criterion requires the applicant to establish that “his detention is not necessary in the public interest” (s. 679(3)(c)) … [ 12 ] With respect to the third criterion, Moldaver J. approved the comments of Arbour J.A. (as she then was) in R v Farinacci (1993), 86 CCC 3d (32) (Ont CA). Justice Arbour had determined that the public interest criterion in s. 679(3) (

c) consisted of two components: public safety and public confidence in the administration of justice. Justice Moldaver summarized her analysis of the public interest criterion as follows: [24] Justice Arbour did not delve into the public safety component. She found that it related to the protection and safety of the public and essentially tracked the familiar requirements of the so-called “secondary ground” governing an accused’s release pending trial (pp. 45 and 47-48). The public confidence component, on the other hand, was more nuanced and required elaboration.

It involved the weighing of two competing interests: enforceability and reviewability. [25] According to Arbour J.A., the enforceability interest reflected the need to respect the general rule of the immediate enforceability of judgments.

Reviewability, on the other hand, reflected society’s acknowledgement that our justice system is not infallible and that persons who challenge the legality of their convictions should be entitled to a meaningful review process — one which did not require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful (pp. 47-49). [ 13 ] Justice Moldaver went on to indicate that “where the public safety threshold has been met by an appellant seeking bail pending appeal, residual public safety concerns or the absence of any public safety concerns remain relevant and should be considered in the public confidence analysis” ( Oland at para 27 ).

He found that “only a fraction” of applications pursuant to s. 679(3) are likely to involve the public confidence component because not every offence is serious enough to engage an assessment of the merits ( Oland at para 29 ). Justice Moldaver went on to elaborate on the competing interests of enforceability and reviewability and how they should be weighed in determining the public confidence portion of the public interest analysis. [ 14 ] With respect to the enforceability interest, Moldaver J. indicated the seriousness of the crime plays an important role.

As he stated at paragraph 37, “[t]he more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail” pending appeal. He found the factors that govern pre-trial bail applications pursuant to s. 515(2) (

c) of the Criminal Code apply with necessary modification in determining the seriousness of the offence in the public confidence analysis. Those factors include (

a) the gravity of the offence; (

b) the circumstances surrounding the commission of the offence including whether a firearm was used; and (

c) whether conviction carries with it a mandatory prison sentence or a potentially lengthy term of imprisonment. Other factors should also be taken into account where appropriate, including public safety concerns and any flight risk. [ 15 ] With respect to the reviewability interest, the key factor is the strength of the grounds of appeal, which in my view may also include an assessment of the overall strength of the prosecution’s case.

Justice Moldaver pointed out that the remedies sought on appeal may also inform the reviewability interest—for example, if an appeal can only result in a murder conviction being reduced to manslaughter, the reviewability interest may not bear much weight ( Oland at para 46 ). [ 16 ] After determining the enforceability and reviewability interests, an appeal judge must then go on to balance those interests against each other and to do so “through the eyes of a reasonable member of the public” ( Oland at para 47 ). In this exercise, other factors may play a

part including the anticipated delay in deciding an appeal relative to the length of the sentence imposed. [ 17 ] In Oland , Moldaver J. recognized that, where an applicant has been “convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear weak” ( Oland at para 50 ). Having said that, Oland involved an individual who had been convicted of the second-degree murder of his father.

While the application for judicial interim release pending Mr. Oland’s conviction appeal had been rendered moot as a result of a decision being given on the appeal proper, the Court was of the opinion that bail should have been granted pending that appeal. As stated by Moldaver J., “by all accounts, aside from the seriousness of the offence for which Mr. Oland was convicted, he presented an ideal candidate for bail” ( Oland at para 65 ). IV. APPLICATION OF THE LAW [ 18 ] The Crown takes the position that Mr. Yates does not meet any of the criteria set out in s. 679(3) .

It submits his single ground of appeal is frivolous and does not raise an arguable issue because he cannot show that the alleged breach of his s. 10(

b) Charter right prejudiced him in any way or resulted in a miscarriage of justice or unfair trial. In particular, the Crown points out that the decision to dismiss Mr. Yates’ legal counsel was not made by the trial judge but rather in Provincial Court. It is the Crown’s position that such an

order is not subject to an appeal pursuant to s. 686(1)(a)(ii), which does not empower this Court to address errors made by a preliminary inquiry judge. It also submits that there is nothing to support a conclusion that the dismissal of Mr. Yates’ legal counsel resulted in a miscarriage of justice or an unfair trial. Mr. Yates was represented at trial by an experienced criminal lawyer. As such, the Crown contends there is no link between the alleged Charter breach and the trial procedure. Finally, the Crown submits that the ability of Mr.

Yate’s former legal counsel to defend him at trial would have been “ethically limited” by the repudiation of the plea agreement. [ 19 ] With respect to the second criterion, the Crown argues Mr. Yates’ conviction and lengthy sentence of imprisonment give him motivation to flee. It suggests that, if Mr.

Yates is released, at minimum, electronic monitoring should be required. [ 20 ] Finally, with respect to the public interest criterion, the Crown contends that, given the weakness of the appeal, the gravity of the offence and its circumstances, and the length of the sentence imposed, the enforceability interest outweighs the reviewability interest. It submits that, as the trial transcripts have now been received, the appeal can be heard expeditiously. [ 21 ] I will address each of the criterion set out in s. 679(3) in turn. A.

Is the appeal frivolous? [ 22 ] As pointed out by Moldaver J. in Oland , this criterion presents a low bar and, in my view, Mr. Yates has met it. In light of McCallen , the ground of appeal pertaining to his conviction is not frivolous. B. Will Mr. Yates surrender himself into custody as required? [ 23 ] Mr. Yates is 25 years of age. He was born and raised in Regina where his mother, stepfather and siblings currently reside. If released, he proposes to live with his grandmother in Craik, Saskatchewan. That is where he lived while on bail pending his trial. His grandmother is prepared to act as his surety.

There is no evidence Mr. Yates has ever failed to attend court as required. He was released on bail pending trial and there were no alleged breaches of his terms of release. I note Mr. Yates was, however, on electronic monitoring during that period. Mr. Yates was unemployed at the time of the offence for which he was convicted and remains unemployed. I am satisfied, however, that he will surrender himself into custody as required and that the Crown’s concerns can be met by electronic monitoring. C. Is Mr. Yates’ detention necessary in the public interest? 1. Public safety [ 24 ] I am satisfied that Mr.

Yates has established that public safety is of minimal concern if he is released. Mr. Yates’ criminal record does not contain any prior convictions for violent offences. It consists of two convictions for driving while having a blood alcohol level over 0.8, and two convictions for driving while disqualified. It appears that Mr. Yates’ drug addiction was a key motivating factor in committing the offence in issue here. According to the sentencing transcript he has addressed his addiction and there is no evidence of relapse. In my opinion, so long as he does not relapse, his risk to public safety is minimal.

That risk can be managed by imposing appropriate release conditions. 2. Public confidence in the administration of justice [ 25 ] I am of the view, however, that public confidence in the administration of justice will be undermined if Mr. Yates is released because the enforceability interest outweighs the reviewability interest. This can best be explained by examining those competing interests in greater detail. a. Enforceability [ 26 ] Mr. Yates has been convicted of one of the most serious offences that exist under the Criminal Code . That offence involved the loss of human life and the use of a firearm.

The circumstances of the offence revealed that it was Mr. Yates who planned the robbery, which led to Mr. Lane’s death. He did not however, bring the gun nor did he fire the shot that killed Mr. Lane. Mr. Yates was convicted of manslaughter as a party to the offence. That conviction carries with it both a mandatory minimum sentence and a potentially lengthy term of imprisonment. [ 27 ] Further, it appears to be uncontroverted that Mr. Yates is, at a minimum, guilty of the robbery of Mr. Lane. That offence also carries with it a mandatory minimum sentence of imprisonment.

This fact increases the weight to be given to the enforceability interest. b. Reviewability [ 28 ] Given the Ontario Court of Appeal’s decision in McCallen , the issue Mr. Yates seeks to raise on appeal is not novel but it is previously unknown in this Court.

While I have concluded it is an arguable ground of appeal by reason of McCallen , I note that his situation is distinct from McCallen in that the dismissal of his legal counsel did not result from any decision of the trial judge but rather came about during preliminary proceedings in the Provincial Court—which is, in this case, two steps removed from this Court. That Provincial Court decision was not challenged prior to the trial nor was it raised with the trial judge.

Moreover, there was no suggestion at trial that his legal representation was ineffective and he has not impugned his trial counsel’s representation in this Court. In addition to distinguishing this case from McCallen , these observations give rise to the question of whether the Court is even empowered under s. 686 of the Criminal Code to address the appeal. As such, while I have concluded it remains an arguable appeal, these factors make it difficult to find that the reviewability interest is strongly engaged in this case.

Further, based on a review of the transcripts of trial, the Crown had a strong case against Mr. Yates. In particular, it is uncontroverted that he committed the underlying offence of robbery. As a result, I am not

persuaded that the reviewability interest has much weight in the circumstances of Mr. Yates’ appeal. 3. Balancing enforceability and reviewability [ 29 ] In my view, looking at the balancing of the enforceability and reviewability interests through the eyes of a reasonable member of the public, enforceability outweighs reviewability. [ 30 ] It is unlikely that Mr. Yates’ pre-appeal detention will exceed a fit term of imprisonment for either manslaughter or robbery. This view is buttressed by the fact that Mr. Yates’ appeal can be set for hearing in an expeditious manner. The transcripts have been received and Mr.

Yates is in a position to file his factum, following which the appeal can be set for hearing. V. CONCLUSION [ 31 ] While I am satisfied that Mr. Yates’ appeal is not frivolous and that he will surrender himself into custody in accordance with the terms of a release order, in my view, his detention is necessary in the public interest. Accordingly, Mr. Yates’ application for judicial interim release is dismissed. “Ryan-Froslie J.A.” Ryan-Froslie J.A.