COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bedzra, 2014 ONCA 408

DATE: 20140516

DOCKET: M43776

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Evans Bedzra

Applicant

John H. Hale, for the applicant

Susan Magotiaux, for the respondent

Heard: May 9, 2014

On application for an extension of time to file an appeal, and on application for judicial interim release pending appeal from the convictions entered on September 10, 2013 and the sentence imposed on December 20, 2013 by Justice R.N. Fournier of the Ontario Court of Justice, sitting without a jury.

Lauwers J.A.:

[1] The applicant was convicted of 36 counts in connection with two complainants: assault with a weapon (6 counts); assault (9 counts); breach of probation (13 counts); criminal harassment (6 counts); assault causing bodily harm (1 count); and mischief under $5,000 (1 count), under ss. 267(a), 266, 733.1(1), 264(3), 267(b) and 430(4) of the Criminal Code, respectively.

[2] The sentence imposed was a global sentence of three years in custody less credit of one year for 133 days in pre-trial custody, for a balance of two years less a day. The trial judge also ordered 3 years of probation, a DNA order, and a lifetime s. 109 weapons prohibition.

[3] The applicant seeks an extension of time to file an appeal, and bail pending his appeal of conviction and sentence.

A. The Governing Principles on Bail Pending Appeal

[4] Watt J.A. laid out the governing principles in R. v. Manasseri, 2013 ONCA 647, [2013] O.J. No. 6177, at paras 37-38, 40-43:

Under section 679(3) of the Criminal Code, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of the chambers judge:

i. that the appeal is not frivolous;

ii. that the applicant will surrender into custody in accordance with the terms of the release order; and

iii. that the applicant’s detention is not necessary in the public interest.

An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.

The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.

But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at state [sic]: Farinacci, at p. 48.

The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 2000 CanLII 5680 (ON CA), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 1975 CanLII 1338 (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 1994 CanLII 9754 (NL CA), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187.

[5] The Crown concedes that the applicant would surrender himself into custody in accordance with the terms of any bail order, and I am satisfied that he would do so. I now turn to the other two issues under s. 679 of the Criminal Code: whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant were detained in custody; and whether his detention is not necessary in the public interest.

B. The Evidence

[6] The trial judge reviewed the facts in lengthy oral reasons. In short, the accused was charged with assaulting and otherwise abusing two women with whom he had been involved in relationships. The applicant’s defence was a blanket denial.

[7] The first complainant, Melanie Groulx, testified that she met the applicant on August 14, 2011. They lived together from October 2011 until early July 2012. Ms. Groulx testified that she was assaulted by the applicant on a number of occasions. One included a kick to the stomach and resulted in a miscarriage. On another occasion, the applicant hit her in the face, dislocating her jaw.

[8] The second complainant was Lisa Labelle, with whom the applicant had a child. Ms. Labelle met the applicant in October 2008. Their relationship was “on and off” until July 2012. She testified that, during this period, the applicant assaulted her on several occasions. On one occasion, as the trial judge noted, the applicant hit Ms. Labelle in the eye with a beer can while she was driving. In cross-examination, the applicant, in the trial judge’s words: “claimed that she backhanded him and that his was an instinctive reaction. In short, while he was prepared to admit striking her in the eye with this can, he denied that it was intentional and alleged that he apologized subsequently.”

[9] The evidence of the complainants was corroborated in part by the testimony of their mothers. The trial judge also referred to a number of text messages, Facebook entries and a handwritten note in which the applicant showed a degree of remorse for his conduct.

[10] The trial judge recorded the way in which, as the cross-examination continued, the applicant backed away from responsibility for the content of his electronic communications. The trial judge used this cross-examination in assessing the applicant’s credibility as a witness, apart from its corroborative effects around certain incidents. The trial judge concluded that the applicant had become “the author of his own destruction as a credible witness.”

C. The Merits

[11] In the appeal against conviction, the applicant submits that this case is a “Sheppard [R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869] appeal regarding the insufficiency of the judge’s reasons for a conviction.” He argues that the trial judge: “committed reversible error by making a blanket finding of guilt on all counts based on this credibility finding without going through the evidence as it relates to each count and finding that each is proven beyond a reasonable doubt.”

[12] Counsel submits that the trial judge did not review the elements of the various offences or state what specific evidence he accepted as supporting convictions on each of the specific offences.

[13] In oral argument, counsel referred specifically to the six counts of criminal harassment. He noted that the elements of that offence were not laid out by the trial judge, with the possible exception of one count dealing with criminal harassment around July 9. In respect of that count, the trial judge noted: “this was towards the end of the relationship where he was really imposing himself, I’m indicating three months of time served.”

[14] Counsel’s complaint, as I understand it, is that the trial judge “used up” six months of time served on two of the criminal harassment counts (three months on count 17 and three months on count 44); this time served would otherwise have been available to credit against other counts properly considered by the trial judge. There is little, if any, merit in this submission. Section 264 of the Code sets out the elements of criminal harassment, including “engaging in threatening conduct”. It was open to the trial judge, having thoroughly reviewed the evidence, to find that the elements of criminal harassment were satisfied. I also note that the credit at issue was effectively credit of 3-to-1, a product of the trial judge having been ‘very generous’. In my view, his focus was on the global sentence, so that even if there were no criminal harassment convictions, there would not have been any impact on the overall sentence.

[15] Counsel also submits that the applicant was found guilty of 13 breaches of probation in the absence of a fulsome review and consideration of these counts by the trial judge. In my view, those breaches were directly related to the assaults that the applicant committed while he was required to keep the peace, and did not call for further analysis by the trial judge. Moreover, all of the breach of probation counts were concurrent and, in the words of the trial judge, did not “affect the bottom line.”

[16] Similarly, the lack of legal analysis on the components of the other offences does not persuade me that the trial judge made a legal error. His thorough descriptions of the assaults clearly cover the necessary elements of the offences.

[17] With respect to the appeal against sentence, counsel makes the following submissions:

Mr. Bedzra spent 133 days in pre-trial custody before being released at a bail review hearing in the Superior Court of Justice. At the bail review, Justice Ratushny indicated that had all the facts been presented properly at the original bail hearing, Mr. Bedzra would likely not have been detained.

Defence argued that this error in detaining him was a breach of Mr. Bedzra’s Charter rights, specifically s. 11(e), and argued that the remedy should be enhanced credit for that pre-sentence custody, somewhere in the range of 3-for-1 credit. The Crown opposed anything above the standard 1 for 1 credit. The trial judge agreed that Mr. Bedzra’s Charter right not to be denied reasonable bail had been breached and ordered what he referred to as 2-for-1 credit (133 days times 2 being 266 days) ‘rounded up’ to credit for 1 year pre-trial custody. Mr. Bedzra was ultimately sentenced to 3 years less pre-trial custody.

[18] The Crown has appealed the sentence on the basis that it is demonstrably unfit. The Crown asked for a sentence of 4.5 years less pre-sentence custody at 1-for-1, amounting to a sentence of about 4 years. If the Crown appeal is successful, the applicant could end up serving an additional 2 years in custody.

D. Mootness of the Appeal

[19] The practical issue for this bail application is that, by the time of the appeal, the applicant will have served a substantial proportion of his sentence if he is not released. Refusing this bail application might render his appeals moot, which would thereby cause him unnecessary hardship. The appeal has not yet been perfected, so it cannot be expedited.

E. The Public Interest Ground

[20] The applicant argues that the Farinacci factors that favour enforcement of the judgment should only apply where the sentence imposed is lengthy. The applicant points out that, even if the Crown is successful on the sentence appeal and obtains a 4.5-year sentence, as was the submission at trial, this still falls well below the range contemplated in Farinacci. He notes that the sentence of two years less a day is much less than the sentence under appeal in R. v. H.B., 2014 ONCA 334 (Lauwers J.A.), in which the sentence imposed was eight years for child sexual abuse, and the 10-year sentence for sexual assault imposed in R. v. Doodnaught, 2014 ONCA 172 (LaForme J.A.). In both cases, the chambers judges refused bail pending appeal.

[21] The Crown responds that domestic violence is a very serious matter. Domestic violence is the kind of crime that is hard to detect, quite often because the victims hide the effects of the crimes, downplay them, and recant when they do complain. All of these dynamics are present in this case.

[22] I agree. The applicant committed these acts of domestic violence while he was on probation for a conviction on the same ground. He committed a number of acts of violence against two women over a lengthy period of time. He appears to constitute a continued risk, since, according to the pre-sentence report, he has no insight into his personal deficiencies. His tendency, as the trial judge noted, is to minimize the seriousness of his actions and to blame others. This is exactly the same “blame the victim” attitude that is shared by one of his proposed sureties, so it is highly doubtful that his sureties will adequately supervise him. The victim impact statements demonstrate the trauma that the applicant has caused and record plainly the fear that the complainants continue to experience.

[23] The Crown also argues that the release plan is unrealistic in its expectation that the applicant will find employment. The applicant’s pattern, as detailed by the trial judge, is that he does not work, and if he does it is only for short periods of time. The applicant prefers to live off others, particularly the women that he takes up with. The Crown identifies the applicant as being at a very high risk to re-offend.

[24] In my view, the convictions constitute serious crimes against the person. Home invasions accompanied by violence are especially unnerving for communities and traumatic for victims. The grounds for the conviction appeal are barely arguable. I find that the public interest balance required by Farinacci favours continued enforcement of the sentence rather than judicial interim release. The appeal can be scheduled quickly on an expedited basis once perfected.

[25] For these reasons, the application for judicial interim release is dismissed.

[26] The Crown consents to the extension of time to file the notice of appeal, and it is so ordered.

Released: May 16, 2014 “P. Lauwers J.A.”