Court of Appeal for Ontario

Date: 2018-03-23 Docket: M48770 (C64079) Motion Judge: Brown J.A.

Between

Her Majesty the Queen Respondent (Responding Party)

and

Amanda Hewitt Appellant (Moving Party)

Counsel

Robert J. Reynolds, for the moving party, appearing via videoconference

Avene Derwa, for the responding party

Heard

March 20, 2018

Reasons for Decision

Overview

[1] On June 19, 2017 the appellant, Amanda Hewitt, pleaded guilty to and was convicted of one count of weapons trafficking contrary to s. 99(1)(a) of the Criminal Code. The facts read in by the Crown, which were accepted by the appellant, stated that she had sold nine firearms to a police agent, including shotguns and rifles.

[2] As a result of a joint submission, on June 21, 2017 the appellant was sentenced to the mandatory minimum sentence of three years' incarceration: Criminal Code, s. 99(2)(b).

[3] On February 16, 2018 Miller J.A. granted the appellant leave to appeal her sentence. The appellant will argue that the mandatory minimum sentence for the offence contravenes s. 12 of the Canadian Charter of Rights and Freedoms.

[4] Her appeal is set for hearing on June 18, 2018.

[5] The appellant seeks judicial interim release pending the hearing of her appeal. The Crown opposes. However, if judicial interim release is granted, the parties have agreed on the terms of release.

[6] For the reasons that follow, the application for interim release is dismissed.

Analysis

The Merits of the Appeal

[7] The Crown submits the appellant has not established that her appeal has sufficient merit to warrant release. The Crown also opposes the application on the basis the appellant has not established that her detention is not necessary in the public interest.

[8] In granting leave to appeal her sentence, Miller J.A. concluded her appeal was arguable. Although the appellant had not challenged the constitutionality of the mandatory minimum sentence below, Miller J.A. stated:

Although an appellate court will generally not entertain a constitutional argument on appeal that was not argued below, it has a discretion to do so. In my view, it is arguable that the discretion be exercised in circumstances where a provision of the Criminal Code has been found to be constitutionally infirm in previous judgments and no one brought this to the attention of the sentencing judge.

Although the Crown argues that the appellant could not benefit from the invalidation of the mandatory minimum in any event, this is not self-evident, and what constitutes a fit sentence may be impacted by the fresh evidence that Mr. Reynolds has assembled.

There is an arguable basis for the appeal and I am satisfied that leave to appeal sentence should be granted.

[9] When considering whether to grant bail pending a sentence appeal under section 679(4)(a) of the Criminal Code, the court considers whether the appellant has established that "the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody".

[10] As Justice Trotter notes in The Law of Bail in Canada, loose-leaf (2017-Rel. 2), 3d ed. (Toronto: Carswell, 2010), at pp. 10-39 to 10-40, the link in s. 679(4)(a) between sufficient merit and unnecessary hardship is inextricable: "The applicant must demonstrate that the appeal is sufficiently meritorious such that, if the accused is not released from custody, he/she will have already served the sentence as imposed, or what would have been a fit sentence, prior to the hearing of the appeal. It prevents the applicant from serving more time in custody than what is subsequently determined to be appropriate." As he observes: "This balancing of factors in s. 679(4)(a) strikes a familiar chord. It is reminiscent of the tension between enforceability and reviewability embodied in the 'public interest'".

[11] The appellant argues that the reviewability interest should prevail in the circumstances of this case. She points to the decision of the Supreme Court of Canada in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, where, in the context of its discussion of the public interest in s. 679(3)(c), the court stated, at para. 48: "Where it appears that all, or a significant portion, of a sentence will be served before the appeal can be heard and decided, bail takes on greater significance if the reviewability interest is to remain meaningful."

[12] The appellant was sentenced to three years' imprisonment on June 21, 2017. By the time the appellant's appeal is heard, she will have served almost a full year in custody. Her statutory release date is February 19, 2019. Her warrant expiry date is December 20, 2019.

[13] The appellant submits that in the event her sentence appeal is granted and the panel concludes the three year sentence was not fit and reduces it, she risks serving more time in custody than would otherwise be required. She contends that should her appeal be granted, a fit sentence would have been 12 to 18 months in custody.

[14] I am not persuaded by the appellant's submission.

[15] First, although not determinative, I would observe that the appellant was eligible for day parole on December 21, 2017. However, her day parole hearing will not be until June 2018. Although the evidence is less than clear on the point, it appears the appellant delayed in applying for day parole. As well, the appellant will be eligible for full parole on April 21, 2018 but she has waived her full parole hearing.

[16] Second, there is no dispute between the parties that a fit sentence for this offence could include a term of imprisonment in a penitentiary. If her sentence appeal is granted, the appellant plans to submit that several mitigating factors involving her background should result in a sentence of less than two years.

[17] However, on its part the Crown intends to argue that a relevant aggravating factor was the appellant's conviction on April 4, 2017 for another weapons offence - the unauthorized possession of a prohibited or restricted weapon contrary to s. 91(2) of the Criminal Code.

[18] As a result, the appellant has not persuaded me that it is more probable than not that a successful sentence appeal would result in a significantly lower sentence than that imposed at trial. Of course, I reach this conclusion based on the record before me. The panel will have the benefit of a more fulsome record.

[19] While the appellant's appeal has arguable merit, I am not satisfied it has sufficient merit such that it would cause unnecessary hardship if she were detained in custody within the meaning of s. 679(4)(a).

The Public Interest

[20] The Crown also opposes the application on the basis the appellant has not established that her detention is not necessary in the public interest.

[21] The public interest criterion in s. 679(3)(c) of the Criminal Code consists of two components: public safety and public confidence in the administration of justice: Oland, at para. 23. Section 679(4)(c), which applies to sentence appeals, contains identical wording to s. 679(3)(c).

[22] Two factors relevant to the public interest criterion are raised on the record.

[23] First, the appellant was detained in custody until her trial on the tertiary ground. On consent, she was released for the two days between her conviction and sentencing so that she could put her affairs in order. As a basic principle, bail should not be more readily accessible for someone who has been convicted of a crime than for someone who is awaiting trial and is presumed innocent: Oland, at para. 33. In the present case, this factor weighs towards enforceability.

[24] Second, the public safety component of the public interest criterion tracks the "secondary ground" requirements governing an accused's release pending trial: Oland, at para. 24. Even where public safety concerns fall short of the substantial risk mark, they will remain relevant under the public confidence component and, in some cases, can tip the scale in favour of detention: Oland, at para. 39.

[25] The Crown has adduced an email from the appellant's parole officer in which she expresses the opinion that at this time the appellant's "risk is not manageable on a day parole release as she has not sufficiently addressed/mitigated her risk factors." The Crown has also put forward evidence that at the time of the appellant's arrest on the charge to which she pled guilty, she was out of custody on another charge on a promise to appear that contained the condition she not be found in possession of any weapons. Combined, this evidence raises a public safety concern that points toward enforceability.

[26] Accordingly, the appellant has not persuaded me that her continued detention is not necessary in the public interest: Criminal Code, s. 679(4)(c).

Disposition

[27] For the reasons set out above, I dismiss the application. It is, of course, open to the appellant to renew her application before the panel in three months' time in the event the panel reserves its decision.

"David Brown J.A."