COURT OF APPEAL FOR ONTARIO DATE: 20230315 DOCKET: M54108 (COA-23-CR-0206)

Lauwers J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent

and

Fitzroy Allen Applicant

Counsel: Alexander Ostroff, for the applicant Howard Piafsky, for the respondent

Heard: March 14, 2023

REASONS FOR DECISION

A. Overview

[1] The applicant seeks an order under s. 679 of the Criminal Code, R.S.C., 1985, c. C-46 releasing him from custody pending the hearing of his appeal for conspiracy to import cocaine, possession of cocaine for the purpose of trafficking, and conspiracy to possess cocaine for the purpose of trafficking. The trial judge found the appellant guilty of conspiring to import, conspiring to possess and possessing for the purpose of trafficking 3,498 grams of cocaine. The cocaine, imported from Suriname, was valued at between $125,000 and $350,000. The applicant was sentenced to 7 years concurrent on all the convictions.

B. Facts

[2] Some basic facts are not in dispute. On November 5, 2017, an officer with the Canada Border Service Agency (CBSA), assigned to the International Mail Processing Centre in Mississauga to identify contraband entering Canada, x-rayed a box found to contain cocaine. The address was a postal box at a UPS store. Shomari Williams, one of the applicant’s co-accused, had rented the UPS postal box on September 13, 2017, using a false name and identification.

[3] The CBSA turned the box over to the RCMP who effected a controlled delivery. They removed all but a fraction of the cocaine, installed a tracking device, re-assembled the box and took it to the UPS store to await pick up. On November 14, 2017, Mr. Williams went to the UPS store and, using a false identity, claimed the package. He put the box in the trunk of a silver Nissan and drove away. RCMP officers in unmarked vehicles followed. Using a tracking device, they located Mr. Williams at the parking lot of a Superstore just south of the 401 at Weston Road.

[4] There, an officer saw the silver Nissan parked next to a grey Honda which was later found to be registered to the applicant. He saw two men get out of the Honda and move towards the back of the Nissan. The officer ordered the men to the ground. The first man, Mr. Williams, complied, the second man, whom the judge found to be the applicant, quickly removed the box from the Nissan's trunk and placed it in the trunk of the Honda then quickly sped away, striking a police vehicle in the process and rendering it inoperable.

[5] The Honda was tracked to a townhouse complex. The applicant was then arrested along with his co-accused Issufu Adams.

[6] The trial judge convicted the applicant and Mr. Adams but acquitted Mr. Williams of charges of importing cocaine, conspiracy to import, and possessing cocaine for the purpose of trafficking. The trial judge found that Mr. Williams “only had control of the box containing the cocaine for a very short period – less than a half hour, which is the time it took for him to drive from the UPS store to the Superstore parking lot and meet the driver of the Honda who took the box from him.” He found that he had “a reasonable doubt that Mr. Williams either knew the box contained cocaine or some other controlled substance or that he was wilfully blind to that fact.”

C. The Governing Principles for Bail Pending Appeal

[7] For bail pending conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.

[8] The Crown submits that the applicant should remain incarcerated on the ground that his detention is necessary in the public interest on the basis of public confidence in the administration of justice.

[9] As the Supreme Court observed in R. v. Oland, 2017 SCC 17, at paras. 23-26, the public interest element must be tested under the framework set by this court in R. v. Farinacci (1993), 86 C.C.C. (3d) 32, [1993] O.J. No. 2627, per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability. As Arbour J.A. said in Farinacci, at paras. 41-43:

The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. The "public interest" criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.

On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes.

[10] In Oland, Moldaver J. reflected on Farinacci and added analytical details. He noted, at para. 31, that an appeal judge considering an application for bail pending appeal should consider the factors stipulated for bail pending trial by s. 515(10)(c) of the Criminal Code, with necessary modifications to account for the fact that the presumption of innocence has been displaced by the conviction. The onus of establishing that the applicant should not be detained in custody is reversed and placed on the applicant: Oland, at para. 35. The factors to be considered are: the apparent strength of the prosecution's case; the gravity of the offence; the circumstances surrounding the commission of the offence; and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.

[11] Moldaver J. also considered the enforceability and reviewability interests and explained how, with appropriate modifications, the public confidence factors listed in s. 515(10)(c) are to be taken into account by the appeal judge in identifying the factors that make up the public confidence component in s. 679(3)(c).

[12] First, Moldaver J. noted, at para. 37 of Oland: "In considering the public confidence component under s. 679(3)(c), I see no reason why the seriousness of the crime for which a person has been convicted should not play an equal role in assessing the enforceability interest." He added, at para. 38, that the appeal judge should have regard to the sentencing judge's reasons, and not repeat that evaluation afresh.

[13] Second, Moldaver J. considered the "reviewability interest," which he identified, at para. 40, as "the strength of the prosecution's case (s. 515(10)(c)(i))." This "translates into the strength of the grounds of appeal ... [and] in assessing the reviewability interest, the strength of an appeal plays a central role." Specifically, Moldaver J. endorsed the view expressed by my colleague Trotter J.A. in his article entitled, "Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion" (2001), 45 C.R. (5th) 267 at p. 270, where he explained:

[R]ealistically, most cases do not raise strong claims regarding the public interest, at least not beyond the general concern that all criminal judgments ought to be enforced.... However, when an offence is serious, as with murder cases, such that public concern about enforceability is ignited, there should be a more probing inquiry into the chances of success on appeal. It is in this context that the balancing required by Farinacci requires some assessment of the merits, separate from the question of whether the appeal is frivolous or not. [Footnotes omitted.]

[14] Moldaver J. added, at para. 44 of Oland, that:

In conducting a more pointed assessment of the strength of an appeal, appellate judges will examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record. For purposes of this assessment, they will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the "not frivolous" criterion.

[15] Having assessed the enforceability and reviewability factors, the appeal judge is required to balance them, keeping "in mind that public confidence is to be measured through the eyes of a reasonable member of the public": Oland, at para. 47. Moldaver J. went on to add: "This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values." There is no precise formula, but a "qualitative and contextual assessment is required": at para. 49. However, he observed, at para. 50: "[w]here the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak" (citations omitted).

D. The Principles Applied

[16] I now consider the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.

(1) Not Frivolous

[17] The not frivolous test "is widely recognized as being a very low bar": Oland, at para. 20. The Crown concedes and I am satisfied that the appeal is not frivolous.

(2) Surrender into Custody in Accordance with the Terms of the Order

[18] I am satisfied that the applicant will surrender into custody in accordance with the terms of his release, as he did before sentencing.

(3) The Public Interest

[19] Under s. 679(3)(c), there are two components to consider: public safety and public confidence in the administration of justice. The Crown focused on the second component, public confidence.

(a) Public Safety

[20] I raised a concern in oral argument because, while he was on bail for these charges, the accused committed other serious offences of a similar nature. But he seems to have been adequately controlled by more stringent bail conditions.

[21] The applicant has a strong incentive to abide by the terms of any release, given the appeal. I am satisfied that the applicant has demonstrated on a balance of probabilities that he is not a public safety threat and will not likely commit further offences if released on bail pending his appeal.

(b) Public Confidence in the Administration of Justice

[22] As discussed above, consideration of the public confidence component involves striking the balance between enforceability and reviewability. The seriousness of the offences plays a role in the court’s assessment of this component. This court has identified offences related to drug importing and trafficking as being on the higher end of the gravity spectrum in the context of bail pending appeal applications: R. v. Janisse, 2022 ONCA 756, at para. 9, R. v. Isaac, 2022 ONCA 156, at para. 9. The applicant has been sentenced to a lengthy term of imprisonment.

Enforceability

[23] With respect to enforceability, "[p]ublic confidence in the administration of justice requires that judgments be enforced": Farinacci, at para. 42. In this case, there are several factors that weigh in favour of enforceability and against the release of the applicant. As noted in Oland, the seriousness of the crime figures in the assessment of the enforceability interest.

Reviewability

[24] As Oland notes, "in assessing the reviewability interest, the strength of an appeal plays a central role": at para. 40. A preliminary assessment of the strength of the appeal reveals that, while the grounds of appeal are arguable, in my view they do not "clearly surpass the minimal standard required to meet the 'not frivolous' criterion" (emphasis added): Oland, at para. 44.

The Strength of the Appeal

[25] Counsel for the applicant focused on several points in arguing that the appeal had sufficient strength to "clearly surpass the minimal standard required to meet the 'not frivolous' criterion": Oland, at para. 44. First, the applicant asserts that the trial judge made a Villaroman error:

[T]he trial judge either [failed] to properly apply Villaroman, or failed to properly consider the reasonable alternative inference that the Applicant knew or suspected that the package contained something illegal but not that it contained cocaine or another controlled substance. The stated bases for finding “no room for doubt that he knew there was cocaine in the box” were not inconsistent with the reasonable alternative that resulted in Williams’ acquittal and did not support reasonable non-speculative inferences of the requisite mens rea.

[26] Second, and relatedly, the appellant points to the trial judge’s reasoning about the applicant, which he says is inconsistent with his reasoning about the co-accused, Mr. Williams, whom he acquitted. The trial judge said:

Despite the arrival of the police, Mr. Allen hurriedly transferred the box from Mr. Williams’s car to his own and took flight, striking a police car in the process. That, combined with the circuitous route he took to the townhouse complex, along with his involvement at an organizational level, leaves no room for doubt that he knew there was cocaine in the box.

All this evidence, considered cumulatively, leaves me with no doubt that Mr. Allen played an active role in coordinating the importation of cocaine into Canada and was a member of a conspiracy that had that object as its ends. Moreover, the incriminating evidence does not lend itself to any other alternative reasonable inferences.

[27] The difference between Mr. Williams’ scant involvement and the applicant’s much greater involvement is clear.

[28] Third, the appellant argues that the trial judge did not conduct the analysis required by R. v. Carter, [1982] 1 S.C.R. 938 before relying on the evidence of the statements of the co-conspirators. The Crown argues that this was unnecessary because the trial judge based his findings of guilt “on evidence directly admissible against the applicant, not on the hearsay utterances of co-accuseds. It was the applicant who picked up the box from Williams and sped away from the police; the texts on the Adam’s phone were sent to or were from the applicant; the money transfer to [Suriname] was sent by the applicant.”

[29] This was a case in which much of the evidence was circumstantial. The trial judge was required to take a holistic, not a piecemeal, approach. Thus, individual pieces of evidence, though weak, can combine and reinforce each other: see R. v. Abdelrahman, 2022 ONCA 798, at para. 13. Indeed, the section of the decision quoted above at para. 26 concluded that the applicant was well aware of what was in the box: “There are simply no other reasonable alternative inferences available based on the whole of the evidence.” The trial judge took the correct approach to the evidence.

[30] I see the applicant's appeal as weak, not rising to clearly surpass the minimal standard required to meet the “not frivolous” criterion, as required by Oland. I see the Crown's side in this appeal as strong.

[31] Given the seriousness of the crime, the interest in enforceability is strong. The interest in reviewability is weak, as I have explained.

[32] The balance of the competing interests of enforceability and reviewability in this case come down in favour of enforceability. I have no hesitation in saying that a reasonable member of the public, informed of the seriousness of the conviction, would lose confidence in the administration of justice if the applicant were released pending appeal.

[33] I find that the detention of the applicant is necessary in the public interest and dismiss the application for bail pending appeal. Pursuant to s. 679(10) of the Criminal Code, I order that the appeal be expedited.

“P. Lauwers J.A.”