Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20221013 DOCKET: M53788 (C67543)

Sossin J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent

and

Marcia Motayne Applicant

Christopher Sewrattan, for the applicant Jeremy Streeter, for the respondent

Heard: October 11, 2022 by video conference

Endorsement

OVERVIEW

[1] The applicant seeks bail pending an application for leave to appeal her conviction to the Supreme Court of Canada.

[2] On July 19, 2019, a jury convicted the applicant of one count of fraud over $5,000 pursuant to s. 380(1) (a) of the Criminal Code, R.S.C. 1985, c. C-46, for fraudulent manipulations and payouts carried out through her employer’s payroll system. She was sentenced to six years and six months’ imprisonment, minus time already served. On June 28, 2022, her appeal to this court was dismissed from the bench, with reasons that followed, reported at R. v. Motayne, 2022 ONCA 562.

[3] The applicant applied for leave to appeal her conviction to the Supreme Court of Canada on September 1, 2022.

[4] In order to succeed on an application for bail pending appeal, the applicant must establish, per s. 679(3) of the Criminal Code, that: a) the application for leave to appeal is not frivolous; b) the applicant will surrender herself into custody in accordance with the terms of the release order; and c) the applicant’s detention is not necessary in the public interest: see R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

[5] The parties agree there is no concern about the applicant surrendering herself into custody as required. She has therefore satisfied the criterion in s. 679(3)(b). The only issues in dispute are (1) whether the application for leave is frivolous, and (2) whether detention is necessary in the public interest.

[6] In her application for leave to appeal, the applicant raises a single ground of appeal: Did this court err in finding that the trial judge’s jury instruction on motive was proper? The Crown argues that the applicant’s proposed ground of appeal is frivolous and without merit.

[7] The Crown also submits that the applicant’s detention remains in the public interest, while the applicant argues that her compliance with prior bail conditions leads to the conclusion that her detention until the Supreme Court decides her leave application would not be in the public interest.

[8] For the reasons that follow, I dismiss the application for bail pending appeal.

A. Is the application for leave to appeal frivolous?

[9] In R. v. Drabinsky, 2011 ONCA 647, at para. 6, Doherty J.A. stated plainly that, “It is difficult for a judge of this court to determine whether an application for leave to appeal to the Supreme Court of Canada is frivolous.”

[10] As the Supreme Court itself observed in Oland, at para. 20, the “not frivolous” standard sets “a very low bar”. The purpose of this criterion is to require the applicant to demonstrate that the appeal or leave application has some merit such that the appellate process is not abused by those attempting to forestall the execution of a custodial sentence.

[11] Although the “not frivolous” criterion is a low threshold, its application at this stage of the proceedings must take into account the stringent requirements for obtaining leave to appeal to the Supreme Court, and the fact that leave is granted sparingly: see R. v. Boussoulas, 2018 ONCA 326, at para. 14; and R. v. Fundi, 2012 ONCA 227, at para. 8.

[12] In this case, the application for leave turns on this court’s rejection of the ground of appeal relating to motive. The trial judge instructed the jury that if they found the applicant took money from her employer, they could infer that she did so because she wanted more money than she otherwise had. Before this court, the applicant argued that this instruction amounted to impermissible speculation in the absence of any evidence of motive.

[13] The court squarely rejected that argument, at paras. 13-15:

[13] We reject that the trial judge’s instructions on motive were erroneous or unfair. The trial judge instructed the jury that the absence of a proven motive tends to support the presumption of innocence, saying, “Absence of proven motive, however, is a circumstance … which you may find tends to support the presumption of innocence.” This instruction nearly exactly aligned with defence counsel’s closing submissions.

[14] The trial judge then charged the jury to consider any evidence of motive for the fraud and stated, “if you find that [the appellant] took monies from [NVT], you may infer from the evidence that she did so because she wanted more money than she otherwise had.” There was no error in his reference to the common-sense proposition that most frauds are motivated by the desire to obtain more money. As Moldaver J.A. (as he then was) recognized in R. v. Deutsch (2005), 204 C.C.C. (3d) 361 (Ont. C.A.), at para. 24, leave to appeal refused, [2005] S.C.C.A. no. 533, “There are many reasons why people commit fraud. Greed is certainly one of them.” Moreover, this charge on motive could not have prejudiced the appellant because it effectively directed the jury that in order to infer that the appellant was motived by a desire to obtain more money, they first had to find that she took monies from NVT, in other words, that she had committed fraud. Put otherwise, as worded, this charge did not invite the jury to use motive as a basis for finding fraud, but rather as a consequence of finding that the appellant committed fraud. It is therefore harmless, even if it was in error.

[15] We also note that defence counsel, who made submissions concerning the contents of the charge, raised no objections to and was content with the portions of the final charge now impugned on appeal. In our view, defence counsel’s lack of objection here undermines the appellant’s assertions that the charge was unbalanced or unfair: see R. v. Evan, 2019 ONCA 715, 377 C.C.C. (3d) 231, at para. 234.

[14] In her application for leave, the applicant does not disagree with the court that such an inference is a matter of common sense, but argues this proposition is only permissible when the inference is drawn from some evidence. In this case, the Crown led no evidence of motive whatsoever.

[15] The Crown submits that there is no error in this passage, and that, in any event, the trial judge’s charge actually assisted the applicant by stating that the absence of motive could lead to an inference of innocence. The Crown further highlights the court’s comment at para. 17 that, even if an error had occurred, the curative proviso would apply to sustain the conviction because the Crown’s case was overwhelming and the verdict was inevitable.

[16] The Crown also points to the context for the charge on motive, which was specifically requested by trial counsel for the applicant, and not objected to by trial counsel either in draft form or when delivered to the jury.

[17] The applicant contends that the curative proviso would not apply in this case, as the error alleged led to a miscarriage of justice. The applicant further submits that the failure of trial counsel to object to the trial judge’s jury charge on motive does not preclude the issue from being raised on appeal.

[18] Overall, this ground of appeal strikes me as weak.

[19] The applicant’s argument that the trial judge’s charge on motive led to “irreparable prejudice” does not follow from the record. As the court emphasized in dismissing this ground of appeal, the trial judge’s charge did not invite the jury to use motive as a basis for finding fraud.

[20] Further, I agree with the Crown that R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, relied on by the applicant, is distinguishable from this case. There, the trial judge’s treatment of motive went to a key finding of credibility involving the accused and was found to be an error amounting to a miscarriage of justice. In this case, the issue of motive was not tied to credibility nor was it a key element in the fraud case presented by the Crown.

[21] For these reasons, I cannot conclude that this ground of appeal crosses even the low threshold of “not frivolous.”

B. Is detention necessary in the public interest?

[22] The public interest component of the Oland framework includes two aspects: public safety and public confidence in the administration of justice. The Crown concedes there is no public safety issue raised on this motion. The applicant complied with her bail conditions for over two years pending the appeal of her conviction without incident, and for this reason argues that her continued detention is not necessary in the public interest.

[23] With respect to the public confidence aspect of this prong, the court must balance the societal interest in enforcing the sentence imposed on the one hand, with the societal interest in reviewing the applicant’s conviction on the other, in light of the strength of her proposed case on appeal and any entitlement the applicant may have for that appeal to be heard before serving the sentence imposed at trial.

(1) Enforceability interest

[24] With respect to the enforceability interest, the more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail pending appeal.

[25] As Doherty J.A. stated in Drabinsky, at para. 10:

Where an application for bail post-conviction turns on the public interest criterion in s. 679(3)(c), the court must determine whether the principle of enforceability should yield to the principle of reviewability. At this stage of the appellate proceedings, priority should be given to the enforceability principle…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.

[26] Additionally, the offences for which the applicant was convicted are serious and involve an abuse of trust and harm both to the organization and the children and adults living with a disability who are affected by the organization’s work, as the sentencing judge recognized: R. v. Motayne, 2019 ONSC 6084, at paras. 111-21.

[27] In my view, the stage of the proceedings and the seriousness of the offence support a high enforcement interest.

(2) Reviewability interest

[28] As set out above, the application for leave focuses on a single ground of appeal relating to the trial judge’s jury charge on inferring motive. That argument was entirely rejected by this court. In this case, there is no right to appeal to the Supreme Court without leave. Therefore, to the extent there is a reviewability interest in the ground of appeal raised by the applicant, that review arguably has now taken place.

[29] Additionally, in my view, there is a strong likelihood that the application for leave to appeal will be dismissed. Therefore, any residual reviewability interest is at the low end of the spectrum.

(3) Conclusion on public confidence

[30] Public confidence in the administration of justice is assessed qualitatively and contextually, from the perspective of a reasonable member of the public: Oland, at paras. 47-49.

[31] Balancing the relatively high enforceability interest with the relatively low reviewability interest, I conclude that the applicant has failed to meet her burden of establishing that public confidence does not favour continuing detention.

[32] Finally, for purposes of this application, the parties agree the usual time frame for a leave application to be decided by the Supreme Court is between three to six months. Given that the applicant has approximately five and one-half years remaining on her sentence, there is no danger that a significant portion of her sentence will be served by the time she learns if the Supreme Court will hear her appeal.

DISPOSITION

[33] For these reasons, the application for bail pending leave to appeal is denied, without prejudice to a further application should leave be granted by the Supreme Court of Canada. The applicant has not met her burden to show that the application for leave to appeal is not frivolous or that detention is not in the public interest.

[34] I wish to thank both counsel for their clear and helpful submissions.

“L. Sossin J.A.”