Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20200408 DOCKET: M51472 (C65212)

BEFORE: Harvison Young J.A. (Motion Judge)

BETWEEN:

Her Majesty the Queen Respondent

and

Marshall Kazman Applicant/Appellant

COUNSEL: Cate Martell, for the applicant Craig Harper, for the respondent

HEARD: April 1, 2020

Reasons for Decision

[1] The applicant Mr. Kazman seeks bail pending his application for leave to appeal to the Supreme Court of Canada (“SCC”) from this court’s dismissal of his appeal. After hearing this application by teleconference, I advised the parties that release was granted with brief reasons to follow. These are those reasons.

[2] The applicant was charged in 2011 and convicted in September 2017. This court dismissed his appeal in late 2019: R. v. Kazman, 2020 ONCA 22, at para. 6.

[3] There is no dispute that the charges – in five counts of fraud, one count of money laundering, and one count of fraud in association with a criminal organization – were serious. The applicant was at the center of a multi-layered, sophisticated scheme to fraudulently obtain small business loans from Canadian banks. His only ground of appeal from conviction was that the trial judge had erred in summarily dismissing the s. 11(b) Charter motions as she did.

[4] The applicant has no criminal record for offences other than those that are the subject of this application. On February 14, 2020, he filed his application for leave to appeal to the SCC. The Crown has not yet filed responding materials. The draft release order filed on April 1, 2020, provides for the applicant’s release until the SCC’s decision on the leave application, or August 30, 2020, whichever is sooner.

[5] For the applicant, Ms. Martell submits that the application for leave is “not frivolous” under s. 679(3)(a) of the Criminal Code, R.S.C., 1985, c. C-46. She also points to the fact that, until he surrendered into custody in December 2019, the applicant had been on bail for some eight years with no incident. Mr. Harper, for the Crown, submits that the applicant does not clear the “not frivolous” bar. In the alternative, he submits that the applicant does not meet his onus of establishing that it is in the public interest that he be released.

[6] As Moldaver J. stated in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20, “not frivolous” is a “very low bar”. Though it is unclear at best whether leave to appeal will be granted in this case, I find the applicant has met the low bar under s. 679(3)(a). The applicant has been on bail for a long period of time without incident, and surrendered into custody in December 2019. The criterion at s. 679(3)(b) is also met. This is a case that turns on the assessment of the public interest under s. 679(3)(c).

[7] The criteria for assessing the public interest are well known and were outlined in Oland, at paras. 23-51. The applicant has the onus of establishing that his detention is not necessary in the public interest.

A. The Applicant’s Submissions on the Public Interest

[8] Ms. Martell acknowledges that where this court has dismissed an appeal and the appellant does not have an appeal as of right, bail is seldom granted before the SCC has granted leave to appeal. However, she argues exceptional circumstances exist in this case, and highlights:

• Individuals in jails live in close quarters and in poor living conditions. As such, they are acutely vulnerable to COVID-19, the current global pandemic which can spread quickly in institutional settings.
• There is evidence from the American Centers for Disease Control and Prevention (“CDC”) that people aged 65 and over, and those with underlying health conditions (particularly asthma), are at greater risk of serious illness from COVID-19: CDC, “Older Adults”, online: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html; CDC, “Moderate to Severe Asthma”, online: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html.
• The applicant is 64 years old. He has asthma, respiratory issues causing shortness of breath, and a heart condition. It is crucial for him to minimize contact with others in order to avoid a serious illness and to reduce the spread of COVID-19, but it is impossible for the applicant to self-isolate in custody. While he has a cell to himself, meals are served cafeteria style and the inmates in his range (roughly 40) eat at communal tables.
• The spread of COVID-19 is not only a matter of the applicant’s personal safety, but the safety of the general public as well. If COVID-19 spreads amongst the prison population, staff will also contract the virus and carry it into the community. Large numbers of incarcerated persons becoming seriously ill will contribute to the overburdening of hospitals.

[9] Taking this together, Ms. Martell submits that a reasonable, well-informed member of the public would not find the applicant’s immediate detention necessary in these exceptional circumstances.

B. The Crown’s Submissions on the Public Interest

[10] Mr. Harper emphasizes that the enforceability interest is high in this case. Since this court affirmed the applicant’s convictions and sentence, Mr. Harper points to Doherty J.A.’s statement in R. v. Drabinsky, 2011 ONCA 647, 276 C.C.C. (3d) 277, at para. 10:

The pendulum must swing towards enforceability and away from bail pending further review after the correctness of the convictions entered at trial has been affirmed on appeal.

[11] The seriousness of the offences, despite the absence of any violence, further strengthens the enforceability interest in this case. This was a sophisticated fraud, for which the applicant faces a seven-year prison sentence. Public safety is not just a matter of physical safety but can include safety from victimization from financial exploitation. Notably, the applicant is not challenging his convictions on the merits.

[12] Mr. Harper also suggests the reviewability interest is low in this case. Even if the merits are not frivolous pursuant to s. 679(3)(a), they remain an important part of the assessment under s. 679(3)(c) and must be considered more closely, as per Oland, at paras. 41-45. Here, the application for leave is weak at best and likely will not succeed as the s. 11(b) issue does not raise any jurisprudential issues. In dismissing the applicant’s appeal on the s. 11(b) ground, this court characterized the appeal as turning on “well-settled law”: Kazman, at para. 14.

[13] In addition, given the length of the applicant’s sentence, the review process will not be rendered moot before the leave application is heard. As in Drabinsky, at para 12:

[D]enying bail, at least until the leave application is determined, will not render Drabinsky's attempt to further review his convictions meaningless in the sense that he will have served most, if not all, of his sentence before the outcome of his application is determined.

[14] While Mr. Harper quite reasonably does not dispute that there is a global pandemic currently underway, he argues that there is no evidence that there have been any COVID-19 cases at the Joyceville Penitentiary where the applicant is presently incarcerated, or that the applicant is living in crowded conditions rendering him at any greater risk of contracting the virus than any other member of the public.

C. Analysis

[15] With regard to the reviewability interest, I cannot say any more than the merits, while not frivolous, are weak. As the applicant submits, the SCC has granted leave in cases involving the interpretation and clarification of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. However, it is not at all clear that the SCC is likely to grant leave here.

[16] That said, the particular circumstances of this case justify release. The applicant’s crimes were serious but not violent. These offences were the first offences with which he has been convicted. There are no lingering public safety or flight risk concerns that weigh in favour of immediate enforceability.

[17] Further, the applicant’s health conditions, which were well documented in the record before the court, as well as his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts COVID-19. It is necessary for him to practice social distancing to lower the risk of contracting COVID-19. Being in jail will make it difficult, if not impossible, to practice such social distancing.

[18] As the public health authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.

[19] For these reasons, and in light of all of these factors together, the applicant’s release for a limited period would not undermine a reasonable and informed person’s confidence in the administration of justice.

[20] I emphasize that this does not mean that bail will be granted in any case where COVID-19 is raised as an issue. In R. v. Morgan (31 March 2020), Toronto, M51470 (C67536) (Ont. C.A.), bail pending appeal was denied due to the applicant’s risk of reoffending and the inadequacy of his sureties to supervise against further offending.

[21] However, the particular circumstances of this case justify release. Given the applicant’s health issues amidst the COVID-19 situation, and the limited bail period sought, I am persuaded that the applicant’s detention is not necessary is in the public interest.

[22] For these reasons, the application is allowed.

Released: April 8, 2020 “A. Harvison Young J.A.”