Court File and Parties

CITATION: R. v. Cook, 2010 ONCA 688

DATE: 20101021

DOCKET: M39196-C52643

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O.

BETWEEN

Her Majesty the Queen Respondent

and

Sheldon Cook Applicant (Appellant)

Counsel: Marie Henein and Matthew Gourlay, for the applicant (appellant) Anya Weiler, for the respondent

Heard and orally released: October 18, 2010

Endorsement

[1] This is an application for bail pending appeal. The Crown does not argue that the appeal is frivolous. The Crown concedes that the applicant is not a flight risk.

[2] The applicant was on bail for five years pending his trial without incident. He has no previous criminal record and he supports his family.

[3] The Crown opposes bail on the basis that the applicant has not shown that his detention is not necessary in the public interest. The Crown does not submit that the applicant need be detained pending appeal in order to protect public safety. There is no evidence to indicate that the applicant may commit further offences if released.

[4] The sole issue on the public interest test relates to the public’s confidence in the administration of justice. Is the need to have the applicant’s conviction and sentence reviewed while the applicant is not in custody greater than the need to have the sentence enforced immediately? In other words, should enforcement be temporarily suspended? The answer to this question turns in large part on the strength of the grounds of appeal.

[5] At trial, the Crown called police officers Williams and Rykhoff. Those officers were involved in the events that gave rise to the applicant’s convictions. In his reasons, the trial judge disbelieved much of their evidence, but made findings of fact adverse to the applicant that arguably were consistent with some of their evidence. After the trial judge released his judgment, the police instituted investigations of both Rykhoff and Williams. Before sentencing, the defence moved for disclosure of information arising from those investigations. The trial judge refused that request.

[6] On appeal, the applicant will argue that the trial judge should have ordered disclosure of the information gathered in the police investigations relating to the evidence of Rykhoff and Williams and the events underlying the applicant’s convictions. Subsequent to the trial judge’s refusal to order disclosure, Williams has been charged with perjury and other offences relating to obstructing justice. The investigation of Rykhoff is continuing.

[7] It is difficult on this record to assess the strength of the applicant’s grounds of appeal. However, in my view, there is sufficient merit to those grounds that the need to have the convictions reviewed is sufficient to dispel the need to enforce the sentence immediately. Obviously, if the appeal is dismissed, the sentence will be enforced.

[8] That said, it is important that the appeal not be unnecessarily prolonged. Public confidence demands an expeditious resolution of this matter. I am told that one of the investigations is now complete and that the other is well underway. Ms. Henein, on behalf of the applicant, does not suggest that this appeal need await the disposition of any charges relating to the two individuals. She requests only the disclosure of the fruits of the investigations.

[9] In the circumstances, I am prepared to order that the applicant be released pending appeal. I also direct that the appeal be case managed. I will act as the case management judge and, with the co-operation of counsel, will hopefully have the appeal scheduled for an early argument.

“D. O’Connor A.C.J.O.”