Bail Pending Appeal: The Application of the Public Interest Ground in Domestic Violence Cases

Evans Bedzra was convicted of 36 counts in relation to two complainants. In brief, he was convicted of assaulting and abusing two women with whom he had been in a relationship. The charges included assault, assault with a weapon, assault causing bodily harm, criminal harassment, mischief and breach of probation. His unsuccessful defence was a blanket denial. Bedzra was sentenced to a global sentence of three years less pre-sentence credit of one year for 133 days of pre-sentence custody—for a balance of two years less a day.

Bedzra launched an appeal against conviction and sentence and sought bail pending appeal: 2014 ONCA 408.

The Test for Bail Pending Appeal in Manasseri

In Chambers, Lauwers, J.A. commenced his consideration of the application by reviewing the relevant test recently summarized by Watt J.A. in R. v. Manasseri, 2013ONCA647:

Under section 679(3) of the Criminal Code, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of the chambers judge:

i. that the appeal is not frivolous;
ii. that the applicant will surrender into custody in accordance with the terms of the release order; and
iii. that the applicant’s detention is not necessary in the public interest.
An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.
The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.
Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.
But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at state [sic]: Farinacci, at p. 48.
The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187. [Emphasis added] [Para. 4]

The Merits of the Appeal and Mootness

In the case, the Crown conceded that the appellant, Evans Bedzra, would surrender in accordance with his conditions of release, if granted. The court accepted this concession leaving the remaining two grounds to be considered.

Lauwers, J.A. then addressed whether the appeal was frivolous or, in other words, whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship to the applicant if he were to be detained in custody.

While Lauwers J.A. largely rejects in seriatim the proposed grounds of appeal against both conviction and sentence, he does note that the practical issue with this appeal is that by the time the proposed appeal is heard, Bedzra will have served a substantial portion of his sentence if not granted bail pending appeal. The refusal to grant bail pending appeal would essentially render the appeal moot thereby causing him unnecessary hardship.

The Public Interest Ground Applied

In relation to public interest ground, the applicant argued that the Farinacci factors [cited above in Manasseri] favoured the immediate enforcement of judgments should only be applied when the sentence imposed is lengthy. The Crown in Chambers responded that “domestic violence is a very serious matter. Domestic violence is the kind of crime that is hard to detect, quite often because the victims hide the effects of the crimes, downplay them, and recant when they do complain. All of these dynamics are present in this case.” [Para. 21]

Lauwers J.A. agreed with the Crown’s submission:

…The applicant committed these acts of domestic violence while he was on probation for a conviction on the same ground. He committed a number of acts of violence against two women over a lengthy period of time. He appears to constitute a continued risk, since, according to the pre-sentence report, he has no insight into his personal deficiencies. His tendency, as the trial judge noted, is to minimize the seriousness of his actions and to blame others. This is exactly the same “blame the victim” attitude that is shared by one of his proposed sureties, so it is highly doubtful that his sureties will adequately supervise him. The victim impact statements demonstrate the trauma that the applicant has caused and record plainly the fear that the complainants continue to experience.  [Para. 22] [Emphasis added]

After citing the Crown’s concern regarding the unrealistic nature of the plan for release, Lauwers J.A. gave effect to the public interest ground in this case of domestic violence in denying Evans Bedzra bail pending appeal:

In my view, the convictions constitute serious crimes against the person. Home invasions accompanied by violence are especially unnerving for communities and traumatic for victims. The grounds for the conviction appeal are barely arguable. I find that the public interest balance required by Farinacci favours continued enforcement of the sentence rather than judicial interim release. The appeal can be scheduled quickly on an expedited basis once perfected. [Para. 24] [Emphasis added]

Interestingly, Lauwers J.A.’s application of the Farinacci factors favours continued enforcement of the sentence in the context of this case of domestic violence where the grounds to be argued are “barely arguable” even where denial of bail will likely render the appeal moot.