Kim Madsen was convicted of aggravated assault. He was sentenced to 40 months in jail. He appealed. He sought bail pending appeal. That request was denied: 2017 SKCA 73.
The Court of Appeal first considered whether the appeal was “frivolous” pursuant to s679(3)(a). It noted that the test represents a “very low bar”: see R v Oland, 2017 SCC 17; and R v Gill, 2015 SKCA 96 @para 15. Noting the grounds of appeal, the court concluded that the appeal was not frivolous – but, notably the court held that the merits of the appeal could also be considered under public interest:
While there may be some merit to the Crown’s position with respect to this criterion, I note the trial judge gave very serious consideration to Mr. Madsen’s defence. His oral decision encompasses some 150 transcript pages where he extensively reviews the evidence in support of Mr. Madsen’s claim to self-defence and his claim that he was not the cause of Mr. Peepeetch’s paralysis. Having regard for the seriousness with which the trial judge gave to Mr. Madsen’s defence, I am not prepared to say that the grounds of appeal from conviction are baseless, as the Crown suggests. I am, however, entitled to consider the strength of the grounds of appeal as presently put to me as part of my assessment of the public interest criterion. [Para 8].
Turning to the public interest ground pursuant to s679(3)(c), the court reflected on Oland and noted the following [see para 10 and 12]:
- Not every application for bail engages public confidence: Oland @para 29
- The more serious the crime the more public confidence will be undermined if the accused is released pending appeal: Oland @para 37
- There must be a balancing of the relevant factors including the strength of the appeal and the seriousness of the offence: Oland.
Taking into account these factors the court denied Madsen’s release pending appeal concluding that it would be contrary to the public interest. In part, this was so due to grounds of appeal which were not particularly compelling and the seriousness of the offence – as described by the court:
As a result of what happened on the night in question, Mr. Peepeetch suffered a number of fractures to his spinal area, losing all function in his lower limbs and a certain loss of strength in his arms and hands. He now needs almost constant care. The medical expert at trial testified that “it is the force of impact … which cause[d] the injury to the spinal cord” (T699). Mr. Peeepeetch will remain “essentially a paraplegic” (T691). That same expert testified that Mr. Peepeetch’s injuries were caused as “a result of [the] patient’s neck being forced up and down” (T691). [Para 11].
Madsen offers a helpful example of circumstances, albeit they seem rare, where bail pending appeal may be properly denied.