R. v. Marchant, 2022 ONCA 406

COURT OF APPEAL FOR ONTARIO DATE: 20220516 DOCKET: M53366/M53367 (C70264/C70296)

Trotter J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Applicant

and

Christopher Marchant and Steven Snively Respondents

Counsel: Jamie Klukach and Nicolas de Montigny, for the applicant Michael W. Lacy and Bryan Badali, for Mr. Marchant Andrew Furgiuele, for Mr. Snively

Heard: April 29, 2022 by video conference

Reasons for Decision

1This is a Crown application brought under s. 683(5) of the Criminal Code, R.S.C. 1985, c. C-46 to suspend two conditional sentence orders (“CSOs”).

Background

2The respondents, both paramedics, were found guilty of failing to provide the necessaries of life to their patient, Yosif Al-Hasnawi, contrary to s. 215 of the Criminal Code.

3Mr. Al-Hasnawi, who was 19 at the time, intervened in an altercation and ended up being shot. He died from his injuries. The trial judge concluded that the respondents’ care of Mr. Al-Hasnawi amounted to a marked departure from what should have been expected from reasonably trained primary-care paramedics: R. v. Marchant and Snively, 2021 ONSC 3901, at paras. 122-145.

4On January 18, 2022, the respondents were both sentenced to 18-month CSOs. For present purposes, the important conditions of these orders are house arrest (subject to medical, employment, and legal exceptions) for the first six months of the sentence. For the remaining 12 months, the respondents will be subject to a curfew between 11:00 p.m. and 6:00 a.m. (with medical and employment exceptions). ¹ The respondents are also required to perform 150 hours of community service during the last 12 months of their CSOs: R. v. Marchant and Snively, 2022 ONSC 263.

5The respondents on this application have appealed their convictions, but not their sentences. The Crown appeals the imposition of both CSOs. It submits that penitentiary sentences should have been imposed.

6The Crown seeks an order suspending the CSOs pending the hearing of the appeal. It submits that, because the respondents will have served their CSOs by the time their conviction appeals are heard, the Crown’s sentence appeals will be prejudiced. The Crown seeks the suspension of the CSOs to “remediate” this prejudice.

7The respondents resist the application. They submit that the Crown has not established that its appeals are meritorious. Further, they submit that it is not in the interests of justice to suspend the CSOs. The Crown’s sole objective, suspending the CSOs to strengthen its litigation position, will unfairly impact the respondents who are content to serve their sentences now, and not sometime down the road. Moreover, the Crown has other options available to address its concerns, including a request to bifurcate the conviction and sentence appeals.

8For the following reasons, I dismiss the Crown’s applications.

Discussion

9I start by examining the text of s. 683(5) of the Criminal Code. The powers granted under this section may be exercised by a panel of the court of appeal, or by a single judge. The section provides:

(5) If an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, when the court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has been determined:

(a) an obligation to pay a fine; (b) an order of forfeiture or disposition of forfeited property; (c) an order to make restitution under section 738 or 739; (d) an obligation to pay a victim surcharge under section 737; (e) a probation order under section 731; and (f) a conditional sentence order under section 742.1. [Emphasis added.]

An order made under s. 683(5) may be revoked when it is in the interests of justice to do so: s 685(6).

10These provisions work together with s. 683(5.1), which permits the court or a judge making an order under paras. (5)(e) or (f) to require the “offender” to enter into a recognizance during the suspension of a probation order or CSO. Moreover, if the court subsequently varies a sentence for an individual whose probation order or CSO is suspended, s. 683(7) allows the court to “take into account the conditions of that order and the period for which they were imposed on the offender.”

11It is necessary to provide some background to s. 683(5). CSOs were first introduced into the Criminal Code in 1996: An Act to amend the Criminal Code (Sentencing) and Other Acts in Consequence Thereof, S.C. 1995, c. 22, s. 6. Section 683(5), which at the time permitted the relief listed in paras. (a) to (e), was not amended to include CSOs. This would come later, in 2008: An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), 2008, c. 18, s. 29.

12In the meantime, relief from the conditions of a CSO pending appeal was addressed as a matter of bail pending appeal in s. 679 of the Criminal Code. Some appellate courts held that a CSO was a form of “custody” within the meaning of s. 679(1), thereby triggering the bail pending appeal process: R. v. Vallance, [1998] O.J. No. 1615 (Ont. C.A.), R. v. W. (2005), 2005 ONCA 3942, 75 O.R. (3d) 38 (C.A.), at para. 6, R. v. Hornby, 2003 BCCA 649, at paras. 7-8, and R. c. Cantin, [1999] Q.J. No. 2610 (C.A.). There was no indication that s. 679 was an inadequate vehicle for delivering interim relief from a CSO pending appeal. Nonetheless, and without any apparent explanation, Parliament amended s. 683(5) in the manner discussed above.

13Since this legislative development, some appellate courts recognize that there are two potential methods of addressing the impact of a CSO pending an appeal when the accused person is the applicant – s. 679 and s. 683(5): see R. v. Kuzyk, 2015 MBCA 85, 329 C.C.C. (3d) 15, at paras. 19-21. However, the more appropriate avenue for relief is under the specific section that addresses CSOs – 683(5): see R. v. Gould, 2012 BCCA 308, at para. 9, and R. v. Steward, 2014 ABCA 79, 306 C.C.C. (3d) 162, at paras. 9-11.

14Section 679 sets out very specific criteria for determining bail pending an appeal of conviction (s. 679(3)) and bail pending an appeal of sentence alone (s. 679(4)). Under s. 683(5), the animating concept is the “interests of justice.” Given that this application is brought by the Crown, it is not necessary for me to decide how the interests of justice might play out when an appellant/offender is the applicant. However, it would seem that the factors that drive bail pending appeal applications would be reflected in the “interests of justice” standard in s. 683(5). ²

15There is precedent for the Crown to obtain an order under this section, but not in this province: see, for example, Cantin, R. v. Duhamel, 2016 QCCA 112, and R. v. Cadman, 2016 BCCA 187. In Steward, O’Ferrall J.A. expressed skepticism about whether the Crown could apply under this provision: para. 10. He did not reach a firm conclusion on the issue. Assuming he had jurisdiction, he dismissed the application on the merits. I take the same approach.

16Certain challenges present where, as is the case here, the Crown is the moving party. As already noted, it is an appellant/offender who would typically “benefit” from having any of the enumerated orders “suspended until the appeal has been determined.” The provisions are designed to ensure appellate review is meaningful by dispensing with the requirement that the appellant/offender comply with the requirements of penal dispositions and ancillary orders pending an appeal.

17The Crown submits that s. 683(5) accommodates its interests in preventing a Crown sentence from being frustrated or becoming moot. In Steward, O’Ferrall J.A. rejected similar submissions. He observed that, at para. 10: “the Crown certainly provided no authority for the assertion that ‘these provisions were passed to enable the Court of Appeal to stay a conditional sentence order when the Crown’s sentence appeal may otherwise be prejudiced by awaiting the final resolution of the appeal’”.

18In terms of the criteria to be met under s. 683(5) of the Code, the respondents submit that, before the Crown is able to invoke this section, it must first obtain leave to appeal the sentence. I do not accept this submission. It is contradicted by the plain wording of the provision, which permits an application to be made on “an appeal or an application for leave to appeal.” Nonetheless, the apparent strength of the appeal against sentence is a relevant factor in the application of the “interests of justice”: Kuzyk, at para. 26. In discussing this well-worn expression in R. v. Bernardo (1997), 1997 ONCA 2240, 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16, Doherty J.A. said: “The phrase ‘the interests of justice’ is used throughout the Code. It takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case-by-case basis.”

19There is little in the record to inform a decision on the apparent merits of the Crown’s sentence appeal. For the purposes of this application, I am prepared to proceed on the assumption that it is not frivolous. I am not tasked with assessing the strength of the conviction appeals.

20At the heart of this application is the submission that the Crown’s appeals would be thwarted if the respondents serve their CSOs by the time the appeals are heard. This is based on the argument that a panel of this court would be disinclined to interfere with the sentences imposed and substitute carceral sentences once the CSOs have been served.

21I acknowledge that this court has been reluctant about re-incarcerating an individual after their sentence has been served, or after a lengthy period of time has elapsed since the sentence under review was imposed. But this decision is also driven by the “interests of justice”, decided on a case-by-case basis: see R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at para. 50 and R. v. E.C., 2019 ONCA 688, at para. 20. It is not inevitable. See R. v. Chen, [1991] O.J. No. 1026, 50 O.A.C. 374 (C.A.), in which the court said, at para. 5: “Reincarceration in itself imposes a considerable hardship and will be ordered only where the sentence is so inadequate that the interests of justice require the court’s intervention. In our opinion, this is such a case.” Similarly, see also R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241, at para. 34.

22In its submissions addressing the merits of its appeals, the Crown stressed that the sentences imposed failed to give proper effect to the principles of general deterrence and denunciation. It would appear, at least at this stage, that specific deterrence and rehabilitation will not figure prominently in this appeal. In similar circumstances, this court has increased a sentence to address general deterrence considerations, but then stayed the balance of the custodial sentence imposed on appeal: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 48-50. In these circumstances, the hardship of reincarceration is prevented without prejudicing or undermining what the Crown seeks to achieve by appealing sentence.

23In addition to suspending the CSOs, the Crown requests that the respondents enter into recognizances under s. 683(5.1) pending the appeals, but on terms that are less onerous than the CSOs. In essence, the Crown seeks to impose bail pending appeal on the respondents, something neither wants. This strikes me as somewhat self-defeating. As noted above, the time spent on a recognizance may be taken into account in deciding the appeal against sentence. Although the proposed conditions are less onerous than the CSOs, the panel hearing the appeal may be confronted with the similar submission that the conditions of the recognizance ought to mitigate any further punishment.

24Finally, I note the passage of time. The respondents were sentenced on January 18, 2022. These applications were brought 3.5 months later. In the meantime, the respondents have been subject to their house arrest conditions. The impact of being subject to these conditions may be an important, if not the most important factor in deciding whether further punishment is warranted. ³

25If I were to grant the relief requested and the Crown is successful on its sentence appeals, the panel hearing the appeal could consider the impact of the respondents having already served 3.5 months of this aspect of their CSOs, along with the proposed conditions of the new recognizance. However, if the Crown is ultimately unsuccessful, the suspensions would merely have the effect of forestalling the running of the respondents’ sentences. Combined with the proposed recognizances, the restrictions on their liberty would be prolonged, perhaps for a significant period of time.

26If I do not grant the relief requested, the assessment would involve the respondents having served 6 months of house arrest (in addition to the other requirements of their CSOs, but without any continuing bail-like conditions). At the end of the day, these two scenarios are not significantly different such that they tip the interests of justice in favour of suspending the CSOs.

Disposition

27The applications are dismissed.

Footnotes

1. 1Since the original orders were made, the respondents have sought and received variations to their respective CSOs, allowing them to be relieved from their house arrest conditions for limited periods of time for the purposes of religious observance and obtaining the necessities for living (i.e., groceries, etc.).
2. 2See Kuzyk, at para. 26, in which Mainella J.A. identifies the factors to be considered in an assessment of the “interests of justice”. They simulate the considerations relevant to bail pending appeal.
3. 3It has long been understood in this context that a house arrest condition is meant to be punitive: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 22.