COURT OF APPEAL FOR ONTARIO

DATE: 20000901 DOCKET: M26144/C34572

MACPHERSON J.A. (IN CHAMBERS)

BETWEEN:

HER MAJESTY THE QUEEN

Repsondent

• and -

GARY WAYNE GABRIEL PATTERSON

Applicant

Alan D. Gold for the applicant

Randy Schwartz for the respondent

Heard: August 29, 2000

MACPHERSON J.A.:

[1] The applicant, Gary Wayne Gabriel Patterson (“Patterson”), applies for bail pending the hearing of his appeal. On May 17, 2000, following a two-week trial with a judge and jury, he was convicted of a substantial number of offences: attempt to obstruct justice, kidnapping, unlawful confinement, procuring, exercising control of a person engaged in prostitution, living off the avails of prostitution, uttering a threat to cause bodily harm, two counts of uttering a threat to kill, and extortion. On June 21, 2000, Ferrier J. sentenced Patterson to a term of seven years imprisonment. Patterson has appealed both his conviction and his sentence.

[2] All of the convictions against Patterson relate to offences committed against a single complainant.[^1] The offences occurred over the course of a week in 1997, and include a horrible array of criminal acts.

[3] The application for bail pending the hearing of the appeal is brought pursuant to section 679(1) and (3) of the Criminal Code :

679(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if,

(a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal ….

(3) In the case of an appeal referred to in paragraph 1(a) … the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

(a) the appeal … is not frivolous;

(b) he will surrender himself into custody in accordance with the terms of the order; and

(c) his detention is not necessary in the public interest.

(1) The Appeal is not Frivolous

[4] The Crown concedes that the appeal is not frivolous.

(2) The Applicant Will Surrender

[5] The applicant asserts that if he is granted bail pending the hearing of his appeal, he will stay in Toronto and surrender into custody at the appropriate time before the hearing. There is certainly some strong and objective evidence to support his assertion.

[6] First, and importantly, Patterson was on bail for approximately 30 months while awaiting trial. The conditions of his bail were stringent. It appears that Patterson complied with his bail and, crucially, he appeared for his trial.

[7] Second, Patterson has deep roots in Toronto. His family, including wife, two children and mother, lives here. It is also fair to say that Patterson's personal, professional and social lives are centered in Toronto. It would not be a light decision to skip bail and leave, perhaps forever, his family and Toronto.

[8] Third, Patterson has a large number of supporters (family and friends) who are prepared to serve as sureties for him. Together, they are prepared to risk almost $300,000 on Patterson's promise not to abscond if he is granted bail. The normal expectation would be that a person would not do anything to place in jeopardy the substantial funds his family and friends are prepared to advance to support him.

[9] Fourth, Patterson is prepared to deposit $50,000 with the court as a personal guarantee of his intention to comply with all of the conditions of his bail if it is granted. He has already deposited $85,000 with the court with respect to bail relating to the charges involving a second complainant in Ontario (that trial is scheduled to commence in February 2001). If Patterson absconds, he faces the risk of losing $135,000, not an inconsequential amount for a man who professes an intention to support his wife and two young daughters.

[10] There are, however, several factors that cause me concern about whether Patterson would surrender into custody before the hearing of his appeal.

[11] First, Patterson has now been convicted of a series of very serious crimes and has begun to serve a seven year term of imprisonment. In my view, flight before trial and flight after conviction are very different scenarios. Before trial, an accused person might reject flight because of the role optimism and hope play in the decision-making process. However, once convictions are entered, for a prosperous professional man, successful in law and business, and acclaimed as a leader in well-known and respected organizations, the reality of lengthy incarceration must be a bitter pill to swallow. When optimism and hope recede, thoughts of flight might well advance.

[12] Second, Patterson must know that there is a substantial chance that his period of incarceration will increase dramatically in the near future. Within months, he faces a trial on a second set of pimping charges in Ontario. Also, there is a bench warrant for his arrest in Nevada on similar charges. If Patterson is convicted of either or both of these charges, he could well be in prison for something in the order 20 years. No matter how strong the ties of family, friends and Toronto, the legitimate possibility of prison time of this duration might weaken those ties.

[13] Third, Patterson has in the past demonstrated the inclination and resourcefulness to lie about his identity. When he was arrested in Nevada in a hotel room with one of the Nevada complainants, he was in possession of false identification, namely, a Nevada driver's licence and a birth certificate, both in the name of Brandon Slate.

[14] Fourth, and of particular importance, Patterson did not appear for his trial in Nevada which was set for May 12, 1995. The court record on that date records:

John Lusk, Esq. present for Richard Wright, Esq. Mr. Lusk stated that the defendant was due to arrive in town last night and was going to appear. He further stated that he has not heard from him.

A bench warrant for Patterson's arrest was issued.

[15] In his affidavit in support of his application for bail, Patterson states: “I was unaware that there was a warrant for my arrest outstanding in Nevada”. Patterson is silent in his affidavit about the events surrounding his failure to appear at his trial. I find it difficult to accept that he would not have had a conversation with a lawyer who informed the court that “the defendant was due to arrive in town last night and was going to appear”. The conclusion I reach is that Patterson made a conscious decision not to appear for his trial in Nevada. By analogy, I would be concerned that, if bail is granted, he might not appear for his appeal in Ontario.

[16] Fifth, Patterson has just been convicted for obstructing justice. If he absconded before his appeal, that could amount to an obstruction of justice. The spectre of engaging in this type of conduct does not seem to have troubled Patterson in the past.

[17] In summary, there are strong points that can be made on both sides of the ‘surrender into custody' factor in s. 679 of the Code . Although I admit that it is close, in the end the applicant has not persuaded me that he will surrender into custody if he is granted bail pending the hearing of his appeal. He has some history of lying about his identity (Nevada), of failing to appear for a trial (Nevada), and of obstructing justice (Ontario). Moreover, the combination of the seven year sentence he has already received and the prospect of additional incarceration for two other sets of serious charges makes flight a real possibility.

(3) The Public Interest

[18] The public interest factor in s. 679(3) of the Criminal Code requires a judge to weigh the values of reviewability and enforceability. A particularly useful guide concerning this balancing process is found in the judgment of Arbour J.A. in R. v. Farinacci (1993), 1993 3385 (ON CA), 86 C.C.C. (3d) 32 at 47-48 (Ont. C.A.):

Section 679(3)>(c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decision granting or denying bail pending appeal can be reviewed. The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. The “public interest” criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.

On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)>(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes. This same principle animates the civil law dealing with stays of judgments and orders pending appeal. It is a principle which vindicates the value of reviewability.

[19] In my view, the relevant factors relating to the offences for which Patterson has been convicted, and the timing and merits of his appeal, point strongly towards the conclusion that he not be released on bail pending the hearing of his appeal.

[20] First, the offences for which Patterson has been convicted are very serious ones and he has received a lengthy prison sentence. In R. v. Baltovich (2000), 2000 5680 (ON CA), 47 O.R. (3d) 761 (C.A.), Rosenberg J.A. said, at p. 768:

The public interest ground takes on particular importance in cases where an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration.

[21] Baltovich was a murder case. Patterson has not been convicted of murder. However, the number and nature of the offences for which he has been convicted, and the downright cruel conduct in which he engaged when he committed them, place his offences at the serious end of the spectrum. Moreover, a seven year sentence certainly constitutes “a lengthy period of incarceration”.

[22] Second, one of the offences for which he was convicted was attempt to obstruct justice. The circumstances of this offence were that Patterson tried to coerce the complainant into changing her story which had led to criminal charges against a fellow pimp. Patterson still faces outstanding pimping charges in Ontario (relating to a second complainant) and in Nevada. I have serious concerns about what Patterson might attempt to do in relation to these charges if he is released on bail. The fact that he was willing to attempt to obstruct justice to assist a fellow pimp when he (Patterson) was free makes it reasonable to be concerned that he might engage in similar conduct when his own interests are at stake and he is already sentenced to a lengthy prison term.

[23] Third, although Patterson's appeal is not frivolous, it is not, subject to a qualification I will make in a moment, strong. In Baltovich, Rosenberg J.A. said, at p. 768:

[A]ppellate courts have recognized that, where the grounds of appeal are strong and where there is serious concern about the accuracy of the verdict, the public interest may well shift in favour of release.

[24] I do not have a serious concern about the accuracy of the jury's verdicts in relation to Patterson. However, I should qualify that remark. I do not have before me the entire trial record. In the application record there is (and I have read) the Notice of Appeal, the jury charge (including objections, recharge, jury questions and trial judge's answers) and the trial judge's reasons for sentence. I have also heard, and benefitted from, Mr. Gold's very able summary of the arguments he will make on the appeal. Based on all of this information, it is clear that the word ‘frivolous' does not apply to this appeal. However, in my view, the word ‘strong' is not appropriate either. It may be that with a full record, a well-crafted factum and comprehensive oral argument, the appeal will take on a complexion such that the panel hearing it has a “serious concern about the accuracy of the verdict”. All I can say is that at this juncture, and on the basis of the record before me, I do not have such a concern.

[25] Fourth, in the passage from Farinacci set out above, Arbour J.A. said that “entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes”. That is not this case. Patterson has served two months of a seven year sentence. This court can hear the appeal very soon, within 90 days of perfection. Indeed, I am prepared to order that the appeal be expedited if counsel makes such a request. I recognize that other factors, especially the preparation of transcripts, can delay the progress of the appeal. However, the trial of this matter took only two weeks. I would hope that this factor, coupled with the fact that Patterson will continue to be in custody until the hearing of the appeal, would incline the court reporter or reporters to give the preparation of the transcripts a high priority.

Disposition

[26] The application for bail pending appeal is dismissed.

“Sept. 01, 2000”

“J.C. MacPherson J.A.”

[^1]: There is a publication ban prohibiting publication of any details which might reveal the identity of the complainant.