Court of Appeal for Ontario

Date: 2018-12-04 Docket: M49870 (C65096) Motions Judge: Huscroft J.A.

Between

Her Majesty the Queen Respondent

and

Jason Meloche Appellant

Counsel

Eva Taché-Green, for the appellant Jacob Sone, for the respondent

Heard: December 4, 2018

Reasons for Decision

[1] The appellant was convicted of aggravated assault, following trial in the Ontario Superior Court of Justice. He seeks bail pending appeal of his conviction.

[2] For the reasons that follow, the application is dismissed.

[3] The trial judge found that the appellant fought with his brother during a party at the victim's home. The appellant was very intoxicated at the time. When the victim sought to intervene in the fight in an attempt to stop it, he was stabbed in the stomach by the appellant with a steak knife.

[4] The Crown did not concede that the appeal was not frivolous, but did not press the position. The Crown conceded that the appellant is not a flight risk. The only question in this case is whether detention is necessary in the public interest under s. 679(3)(c) of the Criminal Code, R.S.C. 1985, c. C-46, and the strength of the appeal is a relevant consideration at this stage.

[5] Although the victim did not see the stabber, the trial judge was satisfied that the appellant was the only person standing in front of the victim when he intervened in an attempt to stop the fight. There was direct evidence, both forensic and from witnesses, as well as circumstantial evidence permitting the inference that the appellant stabbed the victim. The trial judge had no doubt that the appellant was the stabber and found that any other theory as to the identity of the stabber was speculation without evidence.

[6] In these circumstances, and given the appellant's decision not to testify at trial, the proposed unreasonable verdict argument will be difficult to establish on appeal. Based on the limited materials filed on this motion, I also do not think that the appellant – who was unrepresented at trial – has strong grounds for arguing that the trial judge erred in failing to provide him adequate assistance, in particular concerning a possible intoxication/automatism defence.

[7] Of course, the correctness and reasonableness of the trial judge's reasons ultimately will be reviewed by a panel of this court. I say only that for purposes of bail, the trial judge's decision does not appear to be erroneous. The grounds for appeal do not appear to be strong.

[8] On the other hand, the enforceability interest is strong. As the Supreme Court said in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 37, "[t]he more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released".

[9] This was a serious offence: the victim would have died from the stab wound if he had not received surgical attention. The appellant was sentenced to imprisonment for a term of 40 months. He has a lengthy criminal record that includes convictions for violent offences. There is no delay anticipated in bringing the appeal, so there is no risk that the appellant will have served his sentence before his appeal can be heard.

[10] I conclude that the balancing between the enforceability and reviewability interests inherent in this concept favours detention in this case. The appellant's release is not in the public interest.

[11] The application is dismissed.

Grant Huscroft J.A.