His Majesty the King v. Christopher Janisse, 2022 ONCA 756

COURT OF APPEAL FOR ONTARIO

DATE: 20221102 DOCKET: M53836 (COA-22-CR-0236)

MacPherson J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent (Responding Party)

and

Christopher Janisse Appellant (Applicant)

Counsel: Gregory Lafontaine and Julia Kushnir, for the applicant Kerry Benzakein, for the responding party

Heard: October 25, 2022, by video conference

Endorsement

[1] On April 26, 2022, the applicant was convicted of possession for the purpose of trafficking (x4), trafficking, and possession of property obtained by crime (over $5,000) by Corrick J. of the Superior Court of Justice.

[2] On October 25, 2022, the applicant received a sentence of 16 years imprisonment for possession of fentanyl for the purpose of trafficking, with credit of 14 ½ months for 294 days of pre-sentence custody, leaving 14 years, 9 ½ months left to be served. On the other five counts on which he was convicted, he received concurrent sentences.

[3] The applicant appeals against his convictions.

[4] Section 679(3) of the Criminal Code, R.S.C., 1985, c. C-46 provides:

In the case of an appeal … the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

a) the appeal … is not frivolous;

b) he will surrender himself into custody in accordance with the terms of the order; and

c) his detention is not necessary in the public interest.

[5] The ‘not frivolous’ component of the test is “widely recognized as being a very low bar”: R. v. Oland, 2017 SCC 17, at para. 20. The respondent Crown does not argue that the appeal is frivolous.

[6] The respondent also does not contest the second Oland factor. It is content with the applicant’s proposed release plan.

[7] That leaves the third component of the test – the ‘public interest’ component – which involves weighing the interests of enforceability and reviewability: Oland, at paras. 24-25. The enforceability interest recognizes that it is important to respect and immediately enforce judgments and, thus, weighs in favour of detention: R. v. Ruthowsky, 2018 ONCA 552, at para. 10. The reviewability interest, on the other hand, reflects “society’s acknowledgment that our justice system is not infallible and that persons who challenge the legality of their convictions should be entitled to a meaningful review process”: Oland, at para. 25. Thus, the reviewability interest weighs in favour of release: Ruthowsky, at para. 11.

Enforceability

[8] The Supreme Court of Canada instructs appellate judges to consider the seriousness of the offences for which the applicant for bail pending appeal has been convicted. In determining the seriousness of the offences, Oland, at para. 38, provides that judges should consider: (1) the gravity of the offences; (2) the circumstances surrounding the commission of the offences; and (3) the length of imprisonment to which the appellant is subject in relation to the offences.

[9] Here, the applicant has been convicted of possession of cocaine (x2), fentanyl, and crystal methamphetamine, all for the purpose of trafficking, trafficking cocaine, and possession of proceeds of crime. Drug trafficking offences such as these have been identified as being on the higher end of the gravity spectrum in the context of bail pending appeal applications. This was confirmed by this court as recently as earlier this year, in R. v. Isaac, 2022 ONCA 156, at para. 9. In that case, the applicant had been convicted of possession of both cocaine and a heroin/fentanyl mix for the purpose of trafficking, as well as possession of the proceeds of crime. This stance on drug trafficking offences is unsurprising, given the fentanyl and methamphetamine epidemic this country is currently experiencing.

[10] I would also note that the circumstances surrounding the offences are aggravating, given the sheer amount of drugs involved. The total combined monetary value of the drugs possessed for the purpose of trafficking was well over $1 million. This suggests high-level, sophisticated trafficking, as opposed to low-level sale.

[11] In addition, the applicant has been sentenced to 16 years of concurrent imprisonment for the offences noted above in this matter, which tends to heighten the interest in enforceability. The same logic was employed by this court in Ruthowsky, at para. 45, to deny bail pending appeal, in which case the applicant had been sentenced to 13 years imprisonment.

Reviewability

[12] The reviewability interest on bail pending appeal is anchored in the strength of the proposed grounds of appeal: Oland, at para. 40.

[13] In this case, the respondent Crown has conceded that the grounds of appeal are more than “frivolous”. However, this a very low bar: Oland, at para. 20. When considering the reviewability interest, the appellate judge must undertake a more pointed assessment of the strength of the appeal than that performed in respect of the “not frivolous” criterion, with an eye to the general legal plausibility of the grounds identified in the Notice of Appeal and their foundation in the record: Oland, at para. 44.

[14] In my view, while Mr. Janisse’s grounds of appeal are clearly not frivolous, the success of those grounds of appeal is far from certain. It is true that Justice Nakatsuru’s finding of subversion on the part of D.C. De Sousa, in R. v. Downes, 2022 ONSC 4308, could call into question the validity of the search warrants in this matter, given that Downes related to the applicant’s co-accused, who were also the targets of the same drug investigation. This prior judicial finding, in my view, enhances the strength of the applicant’s appeal.

[15] It is also important to remember that meaningful review is essential to maintaining public confidence in the administration of justice. For that reason, it has been recognized that there is a “broader public interest” in reviewability that “transcends” the interest of any individual applicant: Oland, at para. 45. I recognize that this interest is particularly strong in this case, where the basis for the appeal rests upon alleged misconduct by a police officer. The fact that the misconduct was explicitly recognized by Justice Nakatsuru in Downes strengthens the argument in favour of reviewability and, thus, bail pending appeal.

[16] However, I observe that the Supreme Court of Canada said in Oland that the remedy sought on appeal can also inform the reviewability interest. For instance, if the result of a successful appeal is only that a murder conviction is reduced to manslaughter, this will lessen the interest in reviewability, even if the grounds of appeal are strong: para. 46. Similarly, the applicant in this case conceded that the Crown had proven its case beyond a reasonable doubt on the counts of possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. On the first count of possession for the purpose of trafficking, the applicant was sentenced to seven years concurrent, for the second, 10 years concurrent, and for the possession of the proceeds of crime, two years concurrent. Thus, even without the warrants, he has admitted to conduct which garners 10 years incarceration. Certainly, it will not take ten years for the appeal to be heard. Indeed, the appellant’s counsel said that he could perfect the appeal in 45 days.

Final Balancing

[17] After both enforceability and reviewability concerns are canvassed, the appellate judge must conduct a final balancing of these two factors in order to determine whether release has been justified: Oland, at para. 47. This balancing should be conducted through the eyes of a “reasonable member of the public”, someone who is thoughtful, informed of the circumstances of the case, and respectful of society’s fundamental values: Oland, at para. 47.

[18] Balancing both enforceability and reviewability considerations, I would not grant bail pending appeal. While the merits of the grounds of appeal exceed the threshold of “frivolous”, their merit is far from strong. Given the seriousness of the offences, the sentence imposed and, in particular, the fact that the applicant conceded responsibility for several counts, the record weighs in favour of enforceability and, thus, detention.

“J.C. MacPherson J.A.”