COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bagherzadeh, 2020 ONCA 599

DATE: 20200921

DOCKET: M51766 (C67575)

Hourigan J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Nick Bagherzadeh

Applicant/Appellant

Alexander Ostroff, for the appellant

Kevin Rawluk, for the Crown

Heard: September 18, 2020

REASONS FOR DECISION

(a) Introduction

[1] On April 26, 2018, the appellant was convicted of second degree murder and aggravated assault. He was sentenced on June 26, 2018 to life imprisonment with a 10 year parole ineligibility on the second degree murder conviction and received a concurrent sentence of three years’ incarceration on the aggravated assault conviction. The appellant’s bail was revoked on his conviction and he has been incarcerated since that time. He now brings this application for bail pending appeal.

[2] The Crown opposes the application on the public interest criterion. For the reasons that follow, the application is dismissed.

(b) Analysis

[3] There are two components to the public interest criterion: public safety and public confidence in the administration of justice: R. v. Oland, 2017 SCC 17, at para. 23. The focus of the argument was on the latter component.

[4] In analyzing the public confidence component of the public interest criterion the court balances two competing interests: reviewability and enforceability. Achieving this balance mandates a judicial assessment of, on the one hand, the need to review the conviction leading to imprisonment, and on the other, the need to respect the general rule of immediate enforceability of judgments: Oland, at paras. 25-26. Rarely does the public interest component play a role, much less a central role, in the decision to grant or deny bail pending appeal: Oland, at para. 29.

[5] The enforceability interest will often outweigh the reviewability interest when a person convicted of a very serious offence advances weak grounds of appeal: Oland, at para. 50. On the other hand, when public safety or flight risk concerns are negligible and the grounds of appeal clearly surpass the not frivolous criterion, the reviewability interest may favour release, even for murder or other serious offences: Oland, at para. 51.

[6] The appellant submits that there is a strong reviewability interest in this case because he is not a threat to public safety, has a strong plan of release, and the merits of his appeal clearly surpass the not frivolous criterion. The Crown’s position is that the need for enforceability is paramount because of the serious nature of the offences and weak grounds of appeal.

[7] It is common ground among the parties, and I agree, that the grounds of appeal asserted are not frivolous. However, in my view, the grounds do not clearly surpass the not frivolous criterion.

[8] Two primary grounds of appeal are asserted. The first is that the trial judge erred in not instructing the jury on provocation. This is a challenging argument given that the appellant’s counsel expressly advised the court in the pre-charge conference that he did not believe there was a factual foundation for provocation and much of the appellant’s evidence was to the effect that during the incident that led to the charges he used measured force to defend a friend.

[9] The second ground of appeal is that the trial judge erred in not declaring a mistrial and instead providing a correcting instruction. It is well established that a mistrial is a remedy of last resort and that appellate deference is owed to the discretionary decision of a trial judge about whether a mistrial order is appropriate. Moreover, the appellant has not identified any error in principle made by the trial judge in the exercise of her discretion.

[10] The lengthy sentence imposed is also a significant factor. There is no chance that the appellant will serve a significant part of it prior to the appeal being heard. I am also advised that the transcripts have been completed and thus there is no reason why this appeal cannot be heard in the next few months.

[11] Balanced against the weak grounds of appeal, serious convictions and lengthy sentence, is the fact that the appellant is not a flight risk and is not a threat to public safety. I conclude that the balance favours the enforceability criterion and the appellant has not met his onus of establishing that detention is not necessary in the public interest.

(c) Disposition

[12] The application is dismissed.

“C.W. Hourigan J.A.”