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JUDICIAL INTERIM RELEASE OR BAIL - Pending appeal - Grounds for denial - Detention necessary to maintain confidence in the administration of justice - Review of

Tuesday, April 04, 2017 @ 8:33 AM  


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Appeal by Oland from a judgment of the New Brunswick Court of Appeal denying him bail pending the determination of his appeal against conviction. Oland applied for bail pending appeal following his conviction on a charge of second degree murder involving the death of his father. His application was denied under the public interest criterion set out in s. 679(3)(c) of the Criminal Code. While public safety was not in issue, the appeal judge was not persuaded that public confidence in the administration of justice would be maintained if Oland were to be released. The appeal judge found that the gravity and brutality of the offence weighed in favour of Oland’s detention. While the grounds of appeal put forward by Oland were “clearly arguable”, they were not of such unique strength as to “virtually assure a new trial or an acquittal”. On balance, the appeal judge was not persuaded that public confidence in the administration of justice would be maintained if Oland were to be released. Accordingly, he dismissed the application for release pending appeal. A review of the detention order by a three-judge panel of the appeal court, as directed by the Chief Justice of New Brunswick under s. 680(1), proved unsuccessful. In dismissing Oland’s application for review, the panel determined that Oland had failed to show any error in the reasons of the appeal judge that would warrant interference; nor had he persuaded the panel that his detention in the circumstances was clearly unreasonable. Oland appealed the review panel’s decision, but prior to the appeal being heard, the New Brunswick Court of Appeal allowed his appeal from conviction, ordered a new trial and granted his release on bail pending his re-trial. Accordingly, Oland’s appeal from the review panel’s order upholding his detention order was rendered moot. However, in light of the unanimous position taken by the parties and interveners that guidance was needed from the Court to resolve inconsistent approaches to bail taken by appellate courts across the country, and given that the appeal met the criteria established in Borowski, the Court decided to hear the appeal on its merits.

HELD: Appeal allowed. In the Farinacci case, the Court determined that the public interest criterion in s. 679(3) consisted of two components: public safety and public confidence in the administration of justice.  The public interest framework established in Farinacci, which involved the weighing of enforceability and reviewability, remained good law. The Court elaborated on the competing interests of enforceability and reviewability identified in Farinacci and acknowledged some of the key factors that informed these interests in order to provide appellate judges with guidance as to how to weigh them in any given case. With appropriate modifications to reflect the post-conviction context, the public confidence factors pertaining to pre-trial judicial interim release listed in s. 515(10)(c) of the Criminal Code were instructive in identifying the factors that made up the public confidence component in s. 679(3)(c). Accordingly, the seriousness of the crime for which the person had been convicted played an important role in assessing the enforceability interest, but other factors were to be taken into account where appropriate. For example, the absence of flight or public safety risks would attenuate the enforceability interest. In assessing the reviewability interest, the strength of the appeal played a central role in informing public confidence. Further, when balancing these factors, public confidence was to be measured through the eyes of a reasonable member of the public. Where it was arguable that the judge committed material errors of fact or law in arriving at the impugned decision under s. 679(3), or that the impugned decision was clearly unwarranted in the circumstances, the chief justice should consider directing a review under s. 680(1). By all accounts, aside from the seriousness of the offence for which Oland was convicted, he presented as an ideal candidate for bail. For the purposes of s. 679(3)(c), even in the case of very serious offences, where there were no public safety or flight concerns and the grounds of appeal clearly surpassed the “not frivolous” criterion, a court could conclude that the reviewability interest overshadowed the enforceability interest such that detention would not be necessary in the public interest. In this case, the appeal judge was satisfied that there were no appreciable public safety or flight risk concerns and the grounds of appeal were “clearly arguable”, which meant that they clearly surpassed the “not frivolous” criterion. The appeal judge overlooked an important finding made by the trial judge, namely, that in the circumstances, Oland’s crime gravitated more toward the offence of manslaughter than to first degree murder. The cumulative effect of these considerations ought to have tipped the scale in favour of release. The appeal judge also erred in law by requiring Oland’s grounds of appeal to be comprised of unique circumstances that would have virtually assured a new trial or an acquittal. Oland’s detention was clearly unwarranted and the review panel erred in failing to intervene. Given that the appeal was moot, the appeal was allowed but no further order was made.

R. v. Oland, [2017] S.C.J. No. 17, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., March 23, 2017. Digest No. TLD-Apr32017004