C.A.C. No. 121422 NOVA SCOTIA COURT OF APPEAL N.A.A. Applicant/Appellant and HER MAJESTY THE QUEEN Respondent M. Joseph Rizzetto for the appellant Robert C. Hagell for the respondent Application Heard: October 20, 1995 Decision Delivered: October 20, 1995 BEFORE THE HONOURABLE JUSTICE ELIZABETH A. ROSCOE, IN CHAMBERS ROSCOE, J.A.: (orally, in Chambers) This is an application for bail pending appeal pursuant to s. 679(3) of the Criminal Code. The hearing of the appeal from conviction is scheduled for March 20, 1996. The Crown opposes the application for release. The appellant was convicted by a jury of two counts of sexual assault against his teenaged nieces. The trial judge remanded the appellant until his sentencing which is scheduled for December 4, 1995. The grounds of appeal are: 1. That the learned trial judge erred in law in failing to permit the testimony of school teacher, who had been falsely accused of making sexual comments to the complainant [S.L.] by the complainant, [S.L.]. 2. That the learned trial judge erred in law in refusing to permit cross­- examination of the complainant, [A.L.], on an earlier contradictory statement on audio/video cassette, without even having heard the contradictory statement. 3. Such further and other grounds as may appear at trial. am advised that the appellant is married, has three children and is self-employed fisherman. He is the sole support of his family and has no previous criminal record. The appellant has the onus of satisfying the three conditions of s. 679(3). In my view, the grounds of appeal are not frivolous, nor does it seem that there is much risk that he would not appear in court when ordered. He abided by the terms of the pre-trial release and has strong economic and family ties to his community. The real issue is the question of the public interest. The cases have referred to where bail was sought prior to sentencing R. v. Smale (1980), 1979 CanLII 2925 (ON CA), 51 C.C.C. (2d) 126; R. v. Bencardino and De Carlo (1973), 1973 CanLII 1543 (ON CA), 11 C.C.C. (2d) 549; R. v. Morris (Ont. C.A.), QL [1985] O.J. No. 170; and R. v. Osolin (B.C.C.A.), QL [1989] B.C.J. No. 654 seem to place higher onus on the appellant at this point in the legal process than is the case after sentencing. For example in Smale, Associate Chief Justice MacKinnon said at p. 128: That jurisdiction should only, it appears to us, be exercised in unusual and limited circumstances but it does exist. In R. v. Morris, Morden J.A. said it is rare case where bail is granted pending sentence and in R. v. Osolin, MacFarlane J.A. said the jurisdiction should be granted in unusual and limited circumstances. It appears that in those cases the Appeal Court judges relied heavily on the trial judge's assessment of whether it was in the public interest to keep the convicted person in custody pending sentencing. In this case, the trial judge's reasons for the remand have been transcribed and provided to me. Although the Crown prosecutor at the trial was not opposed to continuing the interim release, the trial judge said: To put it bluntly, the issue on sentencing hearing following conviction for these offences is not whether Mr. N.A.A. will be going to jail but for how long. think it is important also from the public perception that the penalty or punishment for commission of these offences follow soon after finding of guilty. find myself persuaded by Mr. Rizzetto's argument that when the grounds of appeal do have some merit, the test for release should not be more strenuous at this stage of the proceeding. The other cases have referred to all involved more serious offences, and presumably more dangerous offenders. For example, Smale was conviction of manslaughter; Osolin was convicted of sexual assault and kidnapping, and had previous record; Morris was convicted of aggravated assault; and Bencardino and De Carlo were convicted of manslaughter. As well, those cases can be distinguished on the basis that the dates for sentencing appeared to be much closer than is the fact in this case: in Morris there were five days left before the sentencing; in Bencardino it was one month, and in Smale there were only two days between the date of the decision of Justice MacKinnon and the date for Mr. Smale's sentencing. I am, in the circumstances of this case, prepared to release Mr. N.A.A. from custody pending his sentencing because I am persuaded that his detention is not necessary in the public interest. will hear counsel respecting the terms of the release order. J.A. C.A.C. No. 121422 NOVA SCOTIA COURT OF APPEAL N.A.A. Applicant/Appellant and HER MAJESTY THE QUEEN Respondent BEFORE THE HONOURABLE JUSTICE ROSCOE (in Chambers)
This was an application for bail pending appeal pursuant to s. 679(3) of the Criminal Code. The appellant was convicted of sexual assault, and was remanded pending sentence. The Crown opposed release. An appeal of his conviction was not scheduled to be heard for several months; his sentencing hearing was slated for more than a month after the instant chambers application. Releasing the appellant pending sentence, that his detention was not necessary in the public interest. When the grounds of appeal do have some merit, the test for release should not be more strenuous at the early stage of the proceeding