Court of Appeal for Ontario
Paciocco J.A. (Motions Judge)
Between:
His Majesty the King (Respondent)
and
Althea Reyes (Applicant)
Counsel:
Jeff Langevin, for the applicant
Kevin Pitt, for the respondent
Heard: January 13, 2025
Endorsement
1On April 24, 2024, Althea Reyes was convicted after a guilty plea of multiple charges (fraud not exceeding $5,000 x 3; fraud exceeding $5,000 x 4; false pretence x 5; and impersonation to gain an advantage x 7). She received a conditional sentence of two years less a day, less-pre-trial credit, to be served in the community. She has initiated an inmate appeal of these convictions and of her sentence, under appeal number COA-24-CR-0960, which is still pending before this court.
2On May 23, 2024, Ms. Reyes’ sentence supervisor laid two charges of breaching the conditional sentence order. On August 23, 2024, the sentencing judge upheld one of those charges, concluding after applying the applicable standard of proof that Ms. Reyes served a subpoena in violation of a non-communication condition of the conditional sentencing order. The sentencing judge collapsed the conditional sentence order and converted the remaining sentence into a custodial sentence. Ms. Reyes has filed a solicitor appeal from this decision, which has now been designated the appeal number COA-24-CR-1228.1
3Ms. Reyes initiated a bail pending appeal application, which was denied by the bail judge on November 25, 2024. Although nominally the motion related only to appeal COA-24-CR-0960, the parties proceeded as though the motion included appeal COA-24-CR-1228.
4In support of her motion, Ms. Reyes proposed a two-part release plan that, if accepted, would have initially involved her enrollment in a 60-day in-patient treatment program at Valiant Recovery to address addiction and related issues (the “Valiant supervision stage”). Thereafter, she proposed residing with a surety in the Province of Quebec, pending her appeals (the “Quebec release stage”).
5After finding that appeal COA-24-CR-0960 had little merit, but that appeal COA-24-CR-1228 was arguable, the bail judge denied bail pending appeal on both matters. She did so on two bases. First, she was not persuaded that Ms. Reyes would surrender given her history of failing to attend court, her history of failing to comply with court orders and of being untruthful during civil and criminal proceedings, and because the surety proposed for the Quebec release stage resides in Montreal, Quebec. Second, the bail judge concluded that Ms. Reyes’ detention is necessary to maintain confidence in the justice system.
6In coming to this latter conclusion, the bail judge recognized in evaluating the reviewability interest that there was some risk that the appeals would not be “decided before the applicant has served most of her sentence”. However, she found the enforceability interest to be high enough to overcome this concern given the serious risk that Ms. Reyes would commit further fraudulent activities while on release. This finding was based, in part, on the bail judge’s conclusion that Ms. Reyes had an extensive record of fraudulent activities and a history of disrespecting court orders, coupled with broad concerns the bail judge had with the surety proposed for the Quebec release stage.
7Ms. Reyes has now commenced a review of this decision under s. 680 of the Criminal Code, R.S.C. 1985, c. C-46. I have been designated to conduct that review. With the consent of the parties, I have been asked and have agreed to conduct both steps of the review. The first step of that process involves the gate-keeping function of deciding whether the decision should be reviewed. A bail decision is reviewable if it is “‘arguable’ that the bail judge made material errors in law or fact when arriving at the impugned decision, or that the decision was clearly unwarranted”; in other words, is there a “reasonable chance of success if the review is ordered”: R. v. Nygard, 2024 ONCA 828, at para. 8. The second step, which is engaged only if the applicant clears the gate-keeping function, involves a determination of whether to intervene in the order made. Intervention is not appropriate unless the bail judge has made a palpable and overriding error, committed legal errors or errors in principle material to the outcome, or has arrived at a decision that is clearly unwarranted: R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 44.
8During a case conference conducted in anticipation of this hearing, Ms. Reyes indicated that her sole argument on the review would be that the bail judge erred in denying bail release based on her concerns about the Montreal release stage of her bail release plan, given that her sentence on the matters being appealed would expire before the “Quebec release stage” was concluded. She took the position that the bail judge erred by failing to appreciate this, and that this error is palpable since it is grounded in concerns about the Quebec release stage plan. When it became apparent that the parties disagreed on when Ms. Reyes’ sentences would expire, the Crown agreed to secure the pending release dates from corrections officials. That has been done and the parties agree that I should admit this information as fresh evidence and consider it in these proceedings. This evidence confirms what Ms. Reyes has said. Contrary to the Crown’s original belief that the sentence in the matters under appeal would expire on March 29, 2025, the warrant of committal on the matters under appeal will expire on January 16, 2025, three days from the date of this hearing.
9The Crown’s position is that this information is relevant because it shows this s. 680 application to be moot, given that even if I was to decide that intervention in the bail decision was required, it will be functionally impossible to arrange release before the sentence expires, thereby undermining the utility of a new bail order.
10Ms. Reyes argues that this review is not moot because a decision of this court denying bail pending appeal is prejudicial to future bail applications that she may bring because it sends the message that she “is not bailable”. She is particularly concerned about a hearing for release pending sentencing, which is scheduled to be heard shortly, arising out of Ms. Reyes’ recent obstruction conviction, which is not the subject of the s. 680 application. She argues that I should conduct the s. 680 hearing and rely on the fresh evidence to conclude that the bail judge’s decision was based on a palpable misconception of the situation that grounded her decision so that the bail judge’s decision does not prejudice her in the future.
11In Jaser, Doherty J.A. explained that during a s. 680 review, a “flexible”, “receptive” approach should be taken to evidence that is relevant to a potentially material issue, where the applicant has a “legitimate and reasonable” explanation for the failure to present the evidence at the initial hearing: at para. 53. I am persuaded that this fresh evidence should be admitted. It is relevant to both material issues I have described. Moreover, there is a “legitimate and reasonable” explanation for the absence of this evidence during the motion. This bail release application was conducted through the inmate appeal stream, where Ms. Reyes was not fully represented but ably and generously assisted by duty counsel. It is notorious that duty counsel, despite their best efforts, are often less able to prepare fully than retained counsel. It is also evident on the record that, in the circumstances, neither she nor duty counsel appreciated the potential importance of the precise warrant expiry date, since much of the focus during the bail hearing before the bail judge was on the suitability of the surety proposed for the Montreal release part of her proposed plan, which in fact was immaterial to her release.
12Although there may well be merit in Ms. Reyes’ submissions, I agree with the Crown’s position that this application is moot and that I should not rule on the s. 680 application relating to either stage of the two-part process. Since it is not realistically possible to put a bail pending appeal order in place before the sentence expires, even if Ms. Reyes succeeds, there is no point in making such order. It would expire before it can take effect.
13I do not accept Ms. Reyes’ submission that I should nonetheless decide the merits of the application because, unless set aside, the order that is the subject of the s. 680 application will continue to prejudice her future bail applications because it suggests, that in the view of this court, she is “unbailable”. The decision that is the subject of this s. 680 review application is not binding on judges or justices who will be addressing future bail applications, including the application for release pending sentencing that is currently scheduled. The decision of the motion judge to deny Ms. Reyes’ bail pending appeal application was not a finding that she is “unbailable”, and it is not a precedent that should influence the courts below. The bail judge simply decided that in the bail pending appeal hearing, Ms. Reyes failed to meet her onus for obtaining release pending appeal, given the evidence that was before the bail judge and the specific bail release plan that Ms. Reyes had proposed. This decision is not binding on other judges because each bail release proceeding is to be decided by the presiding judge or justice on the evidence that is before them after considering any plan for release that may be proposed to them at that hearing. Moreover, this court applies a different standard for bail release. An applicant for bail pending appeal has been convicted of the offences that are the subject of that application and is therefore no longer entitled to the benefit of the presumption of innocence, which is a relevant consideration at an original bail release hearing. It would be an error for a judge or justice in a hearing below to conclude that they are bound by the outcome of a bail pending appeal decision.
14I appreciate that Ms. Reyes had numerous objections to the factual findings made by the bail judge that she wishes to have decided, and that will not be resolved. But the issues those arguments address are moot and should not be considered.
15The application is dismissed.
“David M. Paciocco J.A.”