Court File and Parties

Court of Appeal for Ontario

Date: 2024-05-13 Docket: M55080 (COA-23-OM-0303)

Before: Thorburn J.A. (Motions Judge)

Between: His Majesty the King, Respondent/Responding party And: Terry Lynn Bardwell, Appellant/Moving party

Counsel: Terry Lynn Bardwell, acting in person Andrew Furgiuele, appearing as duty counsel [1] Ian Bell, for the respondent

Heard: May 7, 2024

Endorsement

[1] The applicant, Terry Lynn Bardwell, seeks bail pending appeal of her conviction and sentence.

[2] Ms. Bardwell was arrested on December 30, 2020, seemingly on the day that a search warrant was executed. The warrant was issued on the basis of information from three confidential informants, corroborated by police observations.

[3] The applicant was committed to stand trial after her preliminary inquiry. During the preliminary inquiry she was offered a plea deal and told that if she pleaded guilty, the Crown would join with her to recommend a conditional sentence. She was unrepresented.

[4] She initially did not accept the plea but later pleaded guilty before the preliminary hearing judge on July 22, 2022.

[5] The transcript of the July 22 proceedings reveals that the preliminary inquiry judge conducted an extensive plea inquiry to confirm, among other things, that (i) the applicant understood she could have her plea taken by another judge, (ii) she was pleading guilty, (iii) the implications of pleading guilty, and (iv) in deciding to plead guilty, she had not been influenced by anyone else.

[6] Through answers to questions from the judge, the applicant indicated that her guilty plea was voluntary, informed, and given on the basis that the Crown would recommend a conditional sentence.

[7] The applicant pleaded guilty to possession of cocaine and methamphetamine for the purpose of trafficking and carrying a concealed weapon. The facts read in at the guilty plea were that when the applicant was arrested, she was in possession of a backpack style purse that contained 62.73 grams of cocaine, 8.58 grams of methamphetamine, and other illegal drugs. A collapsible baton was also found in her purse.

[8] In late 2022, the applicant retained counsel to apply to strike her guilty plea. During proceedings on January 18, 2023, her counsel confirmed to the court that she was abandoning the application. The applicant was sentenced after the judge was advised by the Crown that the applicant was speaking with her counsel “in regards to [sic] a potential application to withdraw guilty pleas. I understand that is not going to proceed.”

[9] The applicant now says she did not instruct her counsel to abandon the application.

[10] The sentencing judge imposed a conditional sentence of two years less one day concurrent on all counts.

[11] On March 21, 2023, the applicant’s conditional sentence supervisor alleged that she had breached her conditional sentence order because the applicant knew her residence was being used to store stolen property and she was continuing to associate with her former co-accused.

[12] While the relevant transcripts were not before me, the Crown indicated in its factum that on April 12, 2024, the applicant was found to have breached the terms of the “keep the peace” and “no contact” provisions in her conditional sentence order.

[13] The applicant’s conditional sentence order was terminated and she was ordered to serve the remainder of her sentence in custody. The Crown’s understanding, as outlined in its factum, is that the finding of breach of the “keep the peace” term was based on evidence of continuing drug trafficking between January and March 2023.

[14] The applicant is now in custody. The warrant of committal dated April 12, 2024, indicates that the applicant had 666 days left to serve in jail as of that date.

[15] On appeal, the applicant seeks to have her guilty plea set aside on the basis that the plea was uninformed. She also disputes the finding that she breached the terms of her conditional sentence.

[16] She seeks bail pending her appeal.

[17] The Crown submits that the applicant is in effect asking this court to suspend her conditional sentence pursuant to s. 683(5)(f) of the Criminal Code, R.S.C. 1985, c. C-46, and make a release order or order to enter into a recognizance pursuant to s. 683(5.1).

[18] As outlined above, the applicant is no longer serving her sentence in the community as her conditional sentence order was terminated as a result of the finding of a breach.

[19] Sections 683(5)(f) and 683(5.1) do not apply when a conditional sentence order has been terminated under s. 742.6(9)(d) of the Criminal Code and the offender has been directed to be committed to custody until the expiration of the sentence. In such cases, the test for bail pending appeal as set out in s. 679 of the Criminal Code applies.

[20] The parties made no submissions on the applicability of s. 679 in these circumstances. I am mindful that this is an inmate appeal and the applicant was unrepresented. In any event, there is significant overlap in the factors considered under s. 679 and s. 683(5), and as I will explain below, the result is the same under either provision.

[21] The test for bail pending appeal against conviction is set out in s. 679(3) of the Criminal Code. The applicant bears the burden of establishing, on a balance of probabilities, that: (i) the appeal or application for leave to appeal is not frivolous; (ii) the applicant will surrender into custody in accordance with the terms of the order; and (iii) the applicant’s detention is not necessary in the public interest.

[22] While the appeal is not frivolous, I am not satisfied that the applicant will surrender into custody in accordance with the terms of the order or that the surety will properly monitor her behaviour as the breaches were seemingly committed while the applicant lived in the home shared by her only proposed surety. Moreover, the applicant’s detention is necessary in the public interest as there are both public safety concerns and concerns of public confidence in the administration of justice in allowing the applicant out again into the community after a finding that she breached the terms of her conditional sentence order. Accordingly, I would deny the application for release pending appeal pursuant to s. 679(3) of the Criminal Code.

[23] Even if s. 683(5) applied, the considerations informing an assessment of the “interests of justice” under s. 683(5) “simulate the considerations relevant to bail pending appeal”: R. v. Marchant, 2022 ONCA 406, 414 C.C.C. (3d) 548, at footnote 2.

[24] They include: (i) the seriousness of the offence and the circumstances surrounding its commission, (ii) the merits of the appeal, (iii) the anticipated delay for the appeal to be determined and whether the delay could render the appeal nugatory, (iv) the applicant’s criminal background and his or her current circumstances, (v) the nature and degree of prejudice to the offender if execution of the sentence is not suspended pending determination of the appeal, and (vi) the impact of the suspension of the sentence on public confidence in the administration of justice: R. v. Kuzyk, 2015 MBCA 85, 329 C.C.C. (3d) 15, at para. 26.

[25] A review of these considerations leads to the same conclusion that the application should not be granted in these circumstances.

[26] Drug trafficking offences such as these are serious crimes and the evidence against the applicant is strong as the contraband was found in her purse which was on her person. Moreover, although she now seeks to contest the plea, including on the basis that she was not advised before the plea hearing that she could present her plea to another judge who had not heard the evidence at the preliminary inquiry, the judge who accepted the plea conducted a lengthy inquiry to ensure she understood that she was free to present a plea to another judge, she understood the process and the consequences of her guilty plea and, although she later retained counsel to withdraw her pleas, her counsel abandoned that application.

[27] The applicant received a sentence to be served in the community and was only ordered to serve her sentence in custody after she breached the terms of her conditional sentence order.

[28] It would undermine public confidence in the administration of justice to grant this application where the breaches were seemingly committed while the applicant lived in the home shared by her only proposed surety. Moreover, the appeal is not likely to be rendered nugatory as this is a relatively straightforward appeal that could be heard in a timely manner and, according to Crown counsel, the applicant still has roughly 21 months of her sentence left to serve.

[29] For these reasons, I would also deny the application if the considerations under s. 683(5) were applicable.

[30] For these reasons, the application is dismissed. According to duty counsel, the applicant has now prepared a Notice of Appeal, she will file a new form for waiver of solicitor and client privilege, and an opinion letter will be submitted.

[31] This matter is remanded to the June 4, 2024 sittings to address the progress of the appeal.

“Thorburn J.A.”

[1] Duty counsel did not make submissions on the application.