Court of Appeal for Ontario

Date: 2002-11-13 Docket: C38973

Re: Her Majesty the Queen (Respondent) - and - Michael Sernoski (Applicant)

Before: Rosenberg J.A.

Counsel: Applicant in person Susan Ficek, for the respondent

Heard: November 7, 2002

Endorsement

[1] Michael Sernoski applies in person for bail pending his appeal from conviction on two counts of attempting to obstruct justice. The applicant was sentenced on August 6, 2002 to ten months imprisonment and has thus served three months of the sentence. It is apparent that if he is not granted bail pending appeal, he will have served most of his sentence by the time the appeal is heard.

[2] The case against the appellant largely depended upon the testimony of the complainant Tara Moore. From the trial judge’s reasons it is apparent that she was a reluctant Crown witness and it seems that the trial judge convicted the appellant on the strength of a “KGB” statement. The reasons for admitting that statement have not yet been filed but Crown counsel fairly concedes that the appeal cannot be said to be frivolous.

[3] In her submissions, Ms. Ficek opposed the appellant’s release on the basis of the public interest and, in particular, the risk that the appellant would commit further offences if released.

[4] The appellant is 40 years of age. He has taken to crime quite late in life. His first conviction was in April 1999. Since that time he has seven convictions and was recommitted to jail once as a parole violator. He has three convictions for failing to comply with bail conditions and one conviction for failing to comply with probation. He has a prior conviction for forcible confinement, which is of some concern because one of the convictions under appeal has some features of an unlawful confinement. The trial judge found that the appellant in order to prevent Tara Moore from testifying against his friend Richard Roy lured Ms. Moore to an apartment where she was detained and therefore did not attend court to testify against Mr. Roy. Crown counsel also points out that a third accused Tara Dupont, has yet to be tried on the obstructing justice charge.

[5] Having regard to the nature of the offences and the appellant’s record, I am not satisfied at this point that it is in the public interest that the appellant be released. I am not satisfied that the appellant would refrain from committing further criminal offences, including offences against the administration of justice, if he were released.

[6] Crown counsel has ordered the trial transcript and it would appear that the transcript will be ready within a few weeks. If that is the case, the appeal can be listed for hearing within a short time.

[7] Accordingly, the application for release pending appeal is denied. However, the appellant may make a further application for bail if the transcript has not been completed by December 6, 2002.