Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220920 DOCKET: M53736 (C67526)

Before: Paciocco J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent

and

Preston Darnell Scott Applicant

Counsel: Myles Anevich, for the applicant Manasvin Goswami, for the respondent

Heard: September 14, 2022 by video conference

Endorsement

Overview

[1] On September 15, 2022, I granted judicial interim release to Mr. Scott pending the determination of his leave to appeal application to the Supreme Court of Canada. My reasons for doing so are provided below.

Background & Material Facts

[2] Mr. Scott was charged with offences arising from a violent home invasion that occurred in February 2017. Despite having a related criminal record, he was granted interim release pending trial and complied with the terms of his release.

[3] On June 7, 2019, Mr. Scott was convicted of robbery after a trial judge sitting alone found that he was the driver who transported and then waited in the car for two of his associates (the “intruders”) while they entered a home and robbed and assaulted an occupant. Mr. Scott was sentenced on September 5, 2019, to six‑and-one-half years of imprisonment for the role he was found to have played.

[4] Mr. Scott appealed his conviction and sentence to this court. He was granted judicial interim release pending appeal and complied with his conditions of release during the long delay before his appeal was heard on April 12, 2022. His conviction appeal was dismissed on April 25, 2022. His sentence appeal was allowed but only to the limited extent that he was granted 23 days of credit for pre-sentence custody that had been overlooked below.

[5] Mr. Scott is now seeking an extension of time to apply for leave to appeal his conviction to the Supreme Court of Canada and will apply for leave to appeal if that extension is granted. His application for extension of time has merit, and he proposes two grounds of appeal before the Supreme Court of Canada.

[6] His first proposed ground of appeal arises from the fact, acknowledged before me, that he raised and argued “unreasonable verdict” as a ground of appeal in this court yet the judgment released by the panel does not identify “unreasonable verdict” as a ground of appeal. Indeed, the judgment states erroneously that, “the appellant does not suggest that the … findings were unavailable on the evidence, nor does he claim that the trial judge reached an unreasonable verdict.” Mr. Scott submits that the panel failed to consider this issue, which was raised by him, and that this rendered the appellate process procedurally unfair. He contends that this error raises an issue of national importance, namely, “Does a Court of Appeal’s mistake as to the substance of the grounds of appeal frustrate the appellate review process and render the process procedurally unfair; if so, is a remedy available for such an error?”

[7] Mr. Scott’s second ground of appeal is more mundane and addresses the adequacy of the trial judge’s reasoning in finding that Mr. Scott was the getaway driver. Although an eyewitness identified Mr. Scott as the driver of the suspect vehicle at the time of the robbery, the police officer who arrested Mr. Scott in the vehicle at the scene found Mr. Scott reclining in the front passenger seat and did not support the eyewitness’s claim that the driver attempted to start the car as the police were arriving. Mr. Scott argues that the police officer’s testimony is exculpatory evidence that casts doubt on the key foundation for his conviction by contradicting the eyewitness who places Mr. Scott in the driver’s seat, yet the trial judge failed to explain why the contradiction did not cast a reasonable doubt on the eyewitness’s evidence. He takes issue with the decision of this court to deny this ground of appeal. Mr. Scott suggests in his leave to appeal application that the state of the trial judge’s reasons for decision raises an issue of national importance, namely, “Is a trial judge required to explain a circumstantial case why potentially exculpatory evidence did not leave them in a reasonable doubt, and did the Court of Appeal err in its approach to the sufficiency of the reasons analysis?”

Issue and Analysis

[8] In the motion now before me, Mr. Scott is seeking interim release pending appeal pursuant to s. 679(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown acknowledges that the terms of release proposed by Mr. Scott are agreeable if Mr. Scott is granted such release but opposes his release. In doing so, the Crown does not contest Mr. Scott’s submission that he has satisfied his burden of establishing pursuant to s. 679(3) that his grounds of appeal are not frivolous and that he would surrender into custody in accordance with the terms of the proposed bail order. Instead, the Crown argues that Mr. Scott cannot satisfy the precondition imposed by s. 679(3)(c) of establishing that his detention is not necessary in the public interest.

[9] In support of the contention that Mr. Scott has failed to establish that his detention is not necessary in the public interest, the Crown relies on a number of submissions including: (1) Mr. Scott is highly unlikely to get leave to appeal; (2) in R. v. Drabinsky, 2011 ONCA 647, [2011] O.J. No. 4491 this court has held, in effect, that where leave to appeal an appeal decision is required, “the general rule is immediate enforceability”; (3) Mr. Scott has a serious criminal record; (4) the delay pending the decision on his leave application is apt to be short and his sentence is lengthy such that denying him interim release would not result in him serving a substantial part of his sentence before a leave determination is made; and (5) relatedly, if leave is granted he may reapply based on a change in circumstances.

[10] Mr. Scott argues, to the contrary, that the public interest component should be taken as satisfied in his case because neither of the “two components” that can support detention in the public interest that were identified in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 23 arise. Specifically, he notes that there is no suggestion that he poses a “risk to public safety” so this component is not in play. And he claims that the offence he was found to have committed, being a party to a home invasion by driving the getaway car, is not a serious enough offence to warrant his detention in the interests of preserving “public confidence”.

[11] I agree with Mr. Scott’s submission that public safety concerns cannot undermine his ability to demonstrate that his detention is not necessary in the public interest, but I do not accept his submission that the offence he was found to have committed is not serious enough to raise public confidence concerns related to judicial interim release decisions. Home invasions are serious offences, and the home invasion he was convicted of assisting was a violent attack by masked intruders that involved an assault on the victim with a hammer and the theft of narcotics. It is therefore necessary to consider in this case whether Mr. Scott has demonstrated that his (and the public’s) interest in reviewability before his sentence of detention begins outweighs the public interest in enforcement.

[12] I also lean towards the Crown’s position on the unlikelihood of Mr. Scott ultimately being granted leave to appeal. I do not wish to overstep by describing in detail, without the benefit of a full record and argument, my views on the merits of the proposed grounds of appeal. I will therefore rest content to express my agreement with Mr. Scott’s concession that leave is unlikely based on his second ground of appeal, and by agreeing with the Crown that the force of Mr. Scott’s claim of procedural unfairness may be weakened by the fact that the panel’s reasoning arguably indirectly addresses the unreasonableness arguments while resolving other grounds of appeal. There is also force in the Crown’s submission that the law arguably settles the issues that Mr. Scott frames as being of national importance.

[13] Having said this, I do not accept the Crown’s position that “the general rule is immediate enforceability” where release is sought pending a leave to appeal application. In my view, this is an overreading of Doherty J.A.’s reasoning in Drabinsky, at para. 11. What Doherty J.A. said, in material part, was that “At this stage of the proceedings, the principle that the trial judgments should be enforced is very much in play while the operation of the reviewability principle is contingent upon the granting of leave.” Put otherwise, it is more difficult in a leave to appeal situation for an appellant to meet the public interest requirement, than it is pending a first, as of right appeal. Nonetheless, no presumptive outcome is in place and the balance between the enforceability and reviewability remains case specific. This is important because, given the nature of the appeal that Mr. Scott is bringing, I am satisfied that the strength of the enforceability interest is significantly diminished. In effect, in seeking leave Mr. Scott is not asking for a second panel to reconsider a ground of appeal that has already been argued and rejected. He is asking the Supreme Court of Canada to ensure that he is not finally convicted without any body considering his ground of appeal. Put simply, in the unusual circumstances of this case he is not asking for a second appeal but arguably, for a first one.

[14] I have recognized that there are vulnerabilities in Mr. Scott’s leave to appeal application, but in my view, this leave to appeal application clearly surpasses the minimal standard required to meet the “not frivolous” criterion. Moreover, Mr. Scott has complied for years with his conditions of release on the charges he continues to contest, thereby reducing the relevance of his criminal record. In addition, satisfactory terms of release have been crafted, he does not present a flight risk, and there is no suggestion that he poses a substantial risk to public safety. And although his detention pending the resolution of his leave application is apt to reflect only a fraction of the sentence he will serve if he is ultimately, finally convicted, any period of detention before being finally convicted represents a serious compromise on a person’s liberty. All of these factors favour reviewability and diminish the call for immediate enforcement.

[15] Mr. Scott has persuaded me that his detention pending a leave to appeal determination is not necessary in the public interest.

Conclusion

[16] I therefore ordered Mr. Scott’s release pending his application for leave to appeal pursuant to s. 679(1)(c) on the terms agreed to by the parties.

“David M. Paciocco J.A.”