A few weeks ago, I had an opportunity to address the students from Professor Glen Luther and criminal lawyer Brian Pfefferle’s Intensive Criminal Law Program at the University of Saskatchewan College of Law. It is always a pleasure to speak to a group of dedicated and eager students who have chosen the rewarding, yet often, difficult task of criminal work, be it prosecution or defence. The topic on which I chose to speak was on criminal appellate advocacy including practical considerations, the process and the written advocacy required. I also discussed the bail pending appeal process on conviction appeals to the provincial court of appeal and the criteria for release as outlined under s. 679(3) of the Criminal Code. This is an area rarely touched upon in law school and yet is an important step in the appellate process. Although s. 679(3) sets out articulable grounds for release, the judicial interpretation of the public interest ground has been unclear and often inconsistently applied. Yet, it tends to be the public interest ground relied upon by the Court to dismiss the bail pending appeal application.
Bail pending appeal significantly differs from judicial interim release at first instance, as the offender no longer has the advantage of the presumption of innocence. It is therefore the offender who has the burden to persuade the single Justice hearing the application to release the applicant pending the hearing of the appeal. If an offender is released on bail pending the appeal, he or she will be required to surrender into custody before the matter will be heard. Typically, this is manifested through a bail condition for the Appellant to surrender the evening before the hearing date. The custodian of the jail will transmit a confirmation this has been done. If the Appellant fails to surrender, the bail may be estreated, if applicable, and the appeal will be deemed abandoned.
Considering the onus is on the Appellant, The Court of Appeal Justice, in determining the bail pending for a conviction appeal, must be satisfied, as per s.679(3) that the Appellant will:
(a) the appeal or application for leave to appeal is not frivolous;
(b) he will surrender himself into custody in accordance with the terms of the order; and
(c) his detention is not necessary in the public interest.
These three factors for release, as will be discussed, are not treated by all appellate courts as mutually exclusive and are interconnected. The requirement, for instance, that the Appellant will surrender himself into custody is related to the other factor that detention is not necessary in the public interest as an Appellant who does not establish that he will obey the court terms would also have difficulty establishing that the detention is not necessary in the public interest. Those Appellants who fail to fulfill the surrender requirement would be offenders who have failed to comply with recognizances in the past and/or have fail to appears on their criminal record. This kind of evidence goes to the concern, applicable to this ground,that the Appellant is a flight risk and will therefore evade serving the sentence. This concern is connected to both aspects of the public interest ground as a failure to surrender would bring the administration of justice into disrepute and would put the public safety at risk. Usually, however, the Appellant can satisfy the requirement to surrender with appropriate conditions and sureties and this factor is not the factor, which causes the Court the most concern.
The next requirement that the appeal is not frivolous has been traditionally a matter of the Appellant establishing that the appeal is arguable or that the appeal would not necessarily fail. This requires some argument on the grounds of appeal as proposed in the Notice of Appeal and as evidenced by the trial record. Usually, this ground too is fairly simple to establish, although obviously dependent on the ground being advanced. Certainly an appeal based on a question of fact or mixed law and fact would be more difficult to argue than a question of law due to the principle of deference to the trial judge in those factual findings. But this is not where the real difficulty appears. The real difficulty for the Appellant is in the public interest ground where some courts take into account the strength of the appeal in the assessment. An Appellant may, therefore, be able to establish that the appeal is arguable but if the appeal is arguable but weak this finding may impact release under the public interest ground. This is certainly the case in Alberta but not the case in Newfoundland. I will now discuss this a schism on this issue and the implications for an Appellant in arguing a bail pending where the Court prefers the Alberta position. In my view, this is an inconsistency, which requires direction from the Supreme Court of Canada.
First, we must be mindful of the legal interpretation of the phrase “not necessary in the public interest.” The classic definition or legal interpretation comes from the 1993 Farinacci case. In that decision, Justice Arbour finds there are two aspects to the term “public interest” as it involves both protection of the public and public respect for the administration of justice. This dual nature of public interest, she further explained, in the context of a bail pending appeal balances enforceability with reviewability. There is a public interest in having judgments of the court obeyed and therefore enforced. However, there is an equally cogent reviewability interest, which requires that judgments be error-free. In criminal law, therefore, there is an important interest in ensuring the law is applied but applied in a fair and just manner. A judgment, which perpetuates a miscarriage of justice, is in law, no judgment at all.
So far, the meaning of public interest appears to apply legal common sense and the kind of balancing we are so familiar with in Canada. But, it is the extension of this interpretation in the Alberta Court of Appeal Rhyason case, written by Justice Berger, which causes an imbalance to the Farinacci structure by placing undue emphasis on the strength of the Appellant’s appeal. I would argue that this emphasis is misplaced as it elevates the s. 679 requirement that the appeal not be frivolous to a higher standard depending on the public safety aspect of the public interest ground.
In Rhyason, the Appellant was convicted of impaired causing death in 2006. He had a prior conviction for impaired driving and was sentenced to eighteen months incarceration. He was gainfully employed at the time of incarceration and enjoyed the support of his family. At the time of the bail pending, he had been ticketed for speeding on three occasions and was convicted of failing to comply with the reporting condition of his pre trial bail as he had failed to telephone in as required.
On appeal, the defence advanced a number of errors entered into by the trial judge including an error in the finding that the officer had reasonable and probable grounds for the breath demand. Justice Berger in dismissing the bail application found there could be a close connection between both the requirement that the appeal not be frivolous and the requirement that the Appellant surrender with the public interest ground. As already discussed, there is a rational connection with the requirement to surrender but a connection that can be addressed by proper bail terms. However, by relating the strength of the appeal to the public interest ground, Justice Berger was not merely making a reasonable and valid connection but imbued the public interest with a further requirement that the Appellant must establish a certain a level of “argueability” to the appeal, which is simply not required under the rubric that the appeal simply not be considered frivolous.
Essentially, Justice Berger created a “sliding scale” whereby the more compellable the public interest is in further detaining the Appellant, the stronger the appeal must be for the Appellant to be released on bail. In the case of Rhyason, Justice Berger found compelling public interest reasons for detention although the appeal was “clearly arguable”, and therefore was “clearly” not frivolous, however, in Justice Berger’s opinion, the grounds for appeal did not have a “strong prospect of success,” which required the Appellant be ordered to remain in custody. For the Appellant to be released, according to Justice Berger, Rhyason would have to have an appeal that was more than clearly arguable to “trump” the public safety concerns in the case.
Ironically, the Rhyason case was appealed all the way to the Supreme Court of Canada on the basis of a dissent in the Alberta Court of Appeal. Although the Supreme Court of Canada ultimately dismissed the Appellant’s appeal, it was a split 5:4 decision – a far cry from an appeal, which Justice Berger characterized as not having a strong prospect of success.
The Rhyason analysis was recently tested in the Alberta Court of Appeal case from 2015 in the Awer decision. Justice Berger was again faced with a bail pending application in which the Crown, opposing the release, urged the court to enter into a Rhyason analysis tying the strength of the appeal to the public interest issue. In releasing the Appellant on bail, Justice Berger attempted to limit the broad test he enunciated in Rhyason. Thus, in Awer, he found that the Rhyason analysis was only engaged when there was a “moderate” to “compelling’ public interest in detention, which was not the case in Awer. It should be noted that in Awer the accused was convicted of a serious sexual assault but there was conflicting expert evidence which, according to Justice Berger, “was a critical component” to the finding of guilt or innocence. Awer was released as his appeal was not frivolous and the terms of the bail could ensure public safety.
The Newfoundland Court of Appeal has taken a position strongly opposed to Rhyason in a number of cases (see Parsons, Allen, and Newman) and will not take into account the strength of the appeal under the public interest ground. The British Columbia Court of Appeal in Ali and in Al-Maliki cases appears to be firmly on side with Alberta.
There are many concerns with the Rhyason analysis. As earlier discussed the threshold requirement that the appeal not be frivolous is not only elevated but also fluctuates depending on how compelling the public interest is in a particular case. This uneven application of bail requirements allows for inequities between various Appellants, such as evinced in the Awer and Rhyason cases. As demonstrated in Rhyason, a case, which was not just “clearly” arguable but “strongly” arguable, the Rhyason analysis invites a single Justice to dispose of an arguable appeal without the benefit of a full transcript, a full argument and a full court. Further, this approach fails to properly consider the other important aspect of the public interest – reviewability – and the public confidence resulting from the need to provide a meaningful opportunity for an individual to appeal to protect society from miscarriages of justice. Without a clear and articulable standard, reviewability and our concept of justice will be hampered by an Appellant who abandons an appeal as a result of serving his or her sentence. Such a result is clearly not in the public interest.