COURT OF APPEAL FOR ONTARIO DATE: 20230123 DOCKET: M53981 (C68759)

Sossin J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent

and

Dwayne Alexander Campbell Applicant

Counsel: Stephen Whitzman, for the applicant Jennifer Conroy, for the respondent

Heard: January 19, 2023 by video conference

ENDORSEMENT

OVERVIEW

[1] The applicant seeks bail pending an application for leave to appeal his conviction to the Supreme Court of Canada.

[2] The applicant was convicted of possessing 14.33 grams of heroin mixed with fentanyl for the purpose of trafficking and sentenced to six years in prison minus pre-sentence custody (for a net sentence of five years and eight months). He appealed his conviction and sentence to this court which, in September 2022, unanimously dismissed his appeal: R. v. Campbell, 2022 ONCA 666.

[3] The applicant applied for leave to appeal this court’s decision to the Supreme Court in November 2022.

[4] In order to succeed on an application for bail pending appeal, the applicant must establish, per s. 679(3) of the Criminal Code, that: a) the application for leave to appeal is not frivolous; b) the applicant will surrender themselves into custody in accordance with the terms of the release order; and c) the applicant’s detention is not necessary in the public interest: see R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

[5] The parties agree there is no concern about the applicant surrendering himself into custody as required, nor that he has complied with previous bail conditions. He has therefore satisfied the criterion in s. 679(3)(b). The only issues in dispute are (1) whether the application for leave is frivolous, and (2) whether detention is necessary in the public interest.

[6] For the reasons that follow, I dismiss the application for bail pending appeal.

A. Is the application for leave to appeal frivolous?

[7] In R. v. Drabinsky, 2011 ONCA 647, at para. 6, Doherty J.A. stated plainly that, “It is difficult for a judge of this court to determine whether an application for leave to appeal to the Supreme Court of Canada is frivolous.”

[8] As the Supreme Court itself observed in Oland, at para. 20, the “not frivolous” standard sets “a very low bar”. The purpose of this criterion is to require the applicant to demonstrate that the appeal or leave application has some merit such that the appellate process is not abused by those attempting to forestall the execution of a custodial sentence.

[9] Although the “not frivolous” criterion is a low threshold, its application at this stage of the proceedings must take into account the stringent requirements for obtaining leave to appeal to the Supreme Court, and the fact that leave is granted sparingly: see R. v. Motayne, 2022 ONCA 701, at para. 11; R. v. Boussoulas, 2018 ONCA 326, at para. 14; and R. v. Fundi, 2012 ONCA 227, at para. 8.

[10] In his application for leave to appeal, the applicant argues that while the Supreme Court has affirmed that s. 8 of the Charter applies to text messages, as set out in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, this court erred in accepting that a warrantless search is nonetheless lawful where there is a finding of exigent circumstances pursuant to s. 11(7) of the Controlled Drug and Substances Act, S.C. 1996, c. 19, even if that finding was incorrect or unreasonable. In this case, the impugned finding was that if not intercepted, the accused would have distributed the drugs which would then be outside the reach of the police.

[11] The applicant contends that this court’s decision expands the definition of “exigent circumstances” in a manner that will have significant implications for the s. 8 jurisprudence. In his application for leave to appeal to the Supreme Court, he states that this aspect of the decision raises an issue of national importance as it provides an “end run” around the holding in Marakah whenever the police can plausibly claim exigent circumstances. According to the applicant, “There will be a strong temptation for drug investigators, at a time when sales of fentanyl are widespread, to exaggerate or even fabricate evidence that proceeding without a warrant was compelled by urgency calling for immediate action.”

[12] The Crown argues that the applicant’s proposed ground of appeal was fully argued and rejected both at trial and by a unanimous court of appeal and is therefore without merit.

[13] The Crown emphasizes that this ground of appeal turns on findings of fact and mixed fact and law which are entitled to deference, and which would be unlikely to be the basis of a successful application for leave to appeal to the Supreme Court.

[14] For this court, in the decision from which leave to appeal is sought, Trotter J.A. stated at para. 82:

In my view it is clear from the underscored portion in the excerpt above that the trial judge was focused on public safety. This was a finding that was available to him on the evidence. It was open to the trial judge to accept the evidence of the officers that they believed that, had this drug transaction already in progress not been rerouted in the manner they chose, the appellant would have aborted the operation. The drugs would have been outside the reach of the police and sold to someone else at another time, ultimately reaching users on the street. The trial judge found that this, combined with the notoriously harmful nature of fentanyl […] amounted to exigent circumstances. Although the trial judge’s conclusion relied on some contingencies, it was not unduly speculative, nor was it unreasonable. [emphasis added] In her application for leave, the applicant does not disagree with the court that such an inference is a matter of common sense, but argues this proposition is only permissible when the inference is drawn from some evidence. In this case, the Crown led no evidence of motive whatsoever. [Emphasis added.]

[15] While I accept that the applicant has an uphill climb with respect to the application for leave to appeal, and that the prospects of leave being granted are low, I cannot conclude that this ground of appeal is frivolous.

B. Is detention necessary in the public interest?

[16] In my view, the crux of this application is the public interest component of the Oland framework, which includes two aspects: public safety and public confidence in the administration of justice. The Crown concedes there is no public safety issue raised on this motion. The applicant complied with his bail conditions both prior to trial and pending the appeal of his conviction without incident.

[17] With respect to the public confidence aspect of this prong, the court must balance the societal interest in enforcing the sentence imposed on the one hand, with the societal interest in reviewing the applicant’s conviction on the other, in light of the strength of the proposed case on appeal and any entitlement the applicant may have for that appeal to be heard before serving the sentence imposed at trial.

[18] With respect to the enforceability interest, the more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail pending appeal.

[19] As Doherty J.A. stated in Drabinsky, at para. 10:

Where an application for bail post-conviction turns on the public interest criterion in s. 679(3)(c), the court must determine whether the principle of enforceability should yield to the principle of reviewability. At this stage of the appellate proceedings, priority should be given to the enforceability principle…The pendulum must swing towards enforceability and away from bail pending further review after the correctness of the convictions entered at trial has been affirmed on appeal.

[20] Here, the offences for which the applicant was convicted are serious. As Benotto J.A. emphasized in R. v. Shaheen, 2022 ONCA 773, at paras. 14-16, denying bail pending leave to appeal to the Supreme Court in another case involving a conviction for fentanyl:

The interest in reviewability is low. Conversely, the interest in enforceability is high. By trafficking a large quantity of fentanyl, the applicant participated in putting a dangerous drug on the street, thereby endangering the public. In R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, Moldaver J. found it necessary to write concurring reasons to focus on the gravity of largescale trafficking in fentanyl for personal gain. He stated, at para. 93:

As grave a threat as drugs such as heroin and cocaine pose, that threat pales in comparison to the one pose by fentanyl and its analogues. Indeed, over the past decade, fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one.

Fentanyl is extremely dangerous and addictive and causes extraordinary harm and death. It has a devasting impact on lives, on communities and on families. As Moldaver J. said, at para. 98 of Parrento, fentanyl trafficking is:

… a crime marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public health crisis previous unseen in Canadian society … Put simply, it is a crime that can be expected to not only destroy lives, but to undermine the very foundations of our society.

These factors weigh towards enforceability.

[21] While the applicant points out important differences between the facts underlying Shaheen and those in this case, the relationship between public confidence and a conviction for trafficking heroin mixed with fentanyl remains salient. Additionally, the applicant has a long criminal history.

[22] In my view, and consistent with Shaheen, the seriousness of the offence supports a high enforcement interest. Further, at this stage, after this court already has unanimously rejected the ground of appeal on which the applicant seeks leave to appeal to the Supreme Court, the reviewability interest is low.

(1) Conclusion on public confidence

[23] Public confidence in the administration of justice is assessed qualitatively and contextually, from the perspective of a reasonable member of the public: Oland, at paras. 47-49.

[24] Balancing the relatively high enforceability interest with the relatively low reviewability interest, I conclude that the applicant has failed to meet his burden of establishing that public confidence does not favour continuing detention.

[25] Finally, for purposes of this application, in light of the usual three-to-six month time frame for a leave application to be decided by the Supreme Court, and the fact that the applicant has approximately five years remaining on his sentence, there is no danger that a significant portion of the sentence will be served by the time he learns if the Supreme Court will hear his appeal.

DISPOSITION

[26] For these reasons, the application for bail pending leave to appeal is denied, without prejudice to a further application should leave be granted by the Supreme Court of Canada.

[27] I wish to thank both counsel for their clear and helpful submissions.

"L. Sossin J.A."