RB was charged with two separate sets of charges related to sexual assaults. One set of charges (the first charges) related to allegations made by a three-year old complainant who was the daughter of a friend of RB's then girlfriend. The other set of charges (the second charges) related to a complainant who was four to six years old at the time of the alleged offences and was the daughter of the person he was living with.
The second set of charges came to trial first. RB was convicted. He was sentenced to 28 months. He obtained bail pending appeal.
RB was then convicted in relation to the first set of charges. in relation to those charges RB was sentenced to four years.
RB once again sought bail pending appeal: 2014 ONCA 722.
In considering the request for bail pending appeal, the court noted the test:
- his appeal is not frivolous;
- he will surrender in accordance with the terms of the release order; and
- his detention is not necessary in the public interest.
The court then cited the governing principles from R v Manasseri, 2013 ONCA 647:
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 stake: 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.
The court reviewed the merits of the appeal and concluded that while it was not frivolous, it was a weak appeal. In considering the public interest the court offered the following:
In my view, as expressed above, the applicant has a weak appeal. I balance this view against the fact that the accused was convicted of serious crimes against vulnerable young children and that the applicant has received a fairly lengthy sentence.
I find that the combination of convictions for serious offences, a fairly lengthy sentence, and a weak appeal, demonstrate that the immediate enforcement of the judgement below should be of paramount concern. Therefore, the public interest balance required by Farinacci favours immediate enforcement of the sentence rather than judicial interim release. [@22-23].
The court denied the application for bail pending appeal.