Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2024-07-12 Docket: M55232 (COA-23-CR-1318)

Before: Lauwers J.A. (Motions Judge)

BETWEEN

His Majesty the King, Respondent/Responding Party

and

Emmanuel Pinard, Appellant/Applicant

Counsel: Geoff Haskell, for the appellant/applicant Susan Reid, for the respondent/responding party

Heard: July 10, 2024

Endorsement

[1] The applicant, Emmanuel Pinard, seeks bail pending his conviction and sentence appeals.

[2] The applicant was tried before a judge and jury at the Ottawa Superior Court of Justice on four counts: attempted murder, conspiracy to murder, reckless discharge of a firearm, and possession of a firearm contrary to a prohibition order. He was convicted of possessing a firearm contrary to a prohibition order, pursuant to s. 117.01 of the Criminal Code, R.S.C. 1985, c. C-46, and was acquitted of the other counts.

[3] The charges were laid after a shooting incident. The applicant and his co-accused, Michael Nicolitsis, were jointly charged with the above-mentioned offences. Mr. Nicolitsis was found not guilty of the conspiracy to commit murder and attempted murder charges, but guilty of reckless discharge of a firearm. The trial judge explained that the applicant was in a vehicle with Mr. Nicolitsis and a witness, Gordon Kinistino. Mr. Nicolitsis exited the vehicle and recklessly discharged a firearm. While several shots were fired, no one was injured. The trial judge interpreted the jury’s conviction of the appellant: “It seems likely that the path to conviction taken by the jury would have been that Emmanuel Pinard was found to be in joint possession of a firearm with Michael Nicolitsis on the night in question.”

[4] On May 18, 2023, the applicant was sentenced to a term of three years and four months in prison. After deducting pretrial credit for time served, the applicant had 800 days left to serve as of the date of sentence (roughly two years and two and a half months), leading to his statutory release date on November 1, 2024, just under four months from the date of this hearing.

A. The Governing Principles

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

[6] The Crown submits that the applicant should remain incarcerated on the third ground: his detention is necessary in the public interest on the basis of public confidence in the administration of justice. This is the only live issue in this bail application.

[7] I set out the governing principles at length in R. v. J.B., 2023 ONCA 264. As the Supreme Court observed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element must be tested under the framework set out by this court in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability.

B. The Principles Applied

The applicant’s detention is necessary in the public interest

[8] Under s. 679(3)(c), there are two components to consider: public safety and public confidence in the administration of justice: Farinacci, at para. 41. Only the second component, public confidence, is engaged in this application. Consideration of the public confidence component involves assessing the balance between enforceability and reviewability.

(a) Enforceability

[9] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at para. 42.

[10] As noted in Oland, the seriousness of the crime figures in the assessment of the enforceability interest. The crime at hand is serious, weighing in favour of the enforceability interest. Gun crime is epidemic, and this court has frequently spoken about the devastating impact of gun crimes on our community: see generally R. v. Husbands, 2024 ONCA 155, at para. 136; R. v. Parades, 2014 ONCA 910, 317 C.C.C. (3d) 415, at para. 44; R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at paras. 59-60; and R. v. Stojanovski, 2022 ONCA 172, 160 O.R. (3d) 641, at para. 114.

(b) Reviewability

[11] As the court also noted in Oland, “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40.

[12] I now assess the strength of the grounds of appeal on which the applicant premised his argument for bail pending appeal, first as to conviction, and second as to sentence.

(i) The conviction appeal

[13] The applicant raises numerous grounds on his conviction appeal:

The applicant’s conviction was inconsistent with the jury’s verdict, which saw him acquitted of attempted murder, conspiracy to commit murder, and discharging a firearm during an an alleged shooting in Ottawa. The trial judge’s jury charge was flawed with respect to the conviction under s. 117.01; The trial judge’s jury charge was flawed with respect to the Vetrovec caution; The trial judge failed to remedy the numerous disclosure issues that arose at trial, leaving the applicant, a self-represented accused, with deficient and incomplete Crown disclosure. The trial judge inappropriately interfered and curtailed the applicant’s cross-examination of various witnesses; The trial judge failed to ensure that the applicant could call a key police witness, the officer in charge, for cross-examination. The trial judge inappropriately excluded entries from the Crown’s main witness’ criminal record; The trial judge failed to properly delineate the appointed amicus curiae’s role and accordingly, the appointed amicus failed to make any objections or submissions whatsoever at trial; and The trial judge failed to assist the applicant as a self-represented accused.

[14] The Crown points out that:

Most of the grounds of appeal require a review of the trial record, which has not been provided by the Applicant, even though the trial transcript was completed on April 12, 2024. The Applicant also has not provided copies of any rulings that may be relevant… Instead, the Applicant relies on the opinion letter written by defence counsel in July 2023 for the purposes of obtaining legal aid, where counsel did not have access to the trial transcript.

[15] On the first ground, I agree with the Crown that there is no inconsistency in the verdicts. The jury was entitled to find on the evidence that the applicant was in a car with Mr. Nicolitsis knowing Mr. Nicolitsis possessed a loaded handgun, which Mr. Nicolitsis later fired after getting out of the car at Hog’s Back Park, and for which Mr. Nicolitsis was convicted of various offences. There is no inconsistency with the fact that the applicant and Mr. Nicolitsis were acquitted of the charges of attempted murder and conspiracy to commit murder, which related to an allegation of a planned shooting.

[16] Nor do I consider the trial judge’s possession instruction related to s. 117.01 of the Criminal Code to be flawed. The trial judge said:

Sometimes several persons may have possession of a firearm at the same time, where any of two or more persons with the knowledge and agreement of the other has a firearm in his possession or custody, all of them are in possession of the firearm, provided each has some control over it. Knowledge and agreement by others who are not in actual possession of the firearm is essential. Mere indifference or doing nothing is not enough.

[17] The balance of the grounds of the conviction appeal are fact-driven. How seriously they are intended is difficult to discern but Mr. Pinard’s failing to file supporting documentation, including the transcript, permits me to draw the inference that there is not much in them.

[18] 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.

(ii) The sentence appeal

[19] Sentence appeals are much more difficult in the wake of R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, which obliges appellate courts to defer to the exercise of sentencing judges’ discretion, except in fairly narrow instances. This obligation must affect the assessment of the strength of sentence appeals under Oland.

[20] The applicant’s primary argument on the sentence appeal is that the jury convicted him under s. 117.01 of the Criminal Code of possessing a firearm contrary to a prohibition order, but the trial judge sentenced him under s. 95 of the Criminal Code. At the time sentence was passed, the maximum sentence under both sections was 10 years.

[21] Section 117.01(1) of the Criminal Code provides:

Subject to subsection (4), every person commits an offence who possesses a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance while the person is prohibited from doing so by any order made under this Act or any other Act of Parliament.

[22] Section 95(1) of the Criminal Code provides:

Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm [without a licence]

[23] The Crown argued before the sentencing judge, as he noted, that:

[T]he range of sentence for this case should be more akin to the range of sentences for possessing a loaded handgun or conviction pursuant to s. 95 of the Criminal Code, the logic being there had to have been a finding of fact by the jury that Mr. Pinard was in possession of a firearm to find him guilty of possessing a firearm while prohibited.

[24] The sentencing judge accepted the Crown’s argument that “[i]n a case such as this where it is a standalone offence, logic dictates that that must be the consideration.” He accepted that the range for possession of a loaded firearm is from three to six years, citing R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Mohiadin, 2021 ONCA 122; R. v. Mahamet-Zene, 2018 ONSC 1050; and R. v. Elie, 2015 ONSC 300, 118 W.C.B. (2d) 560.

[25] The trial judge explained: “What Mr. Pinard must understand, [is] that in his circumstances the path to conviction here had to, by inference, include a finding of fact that Mr. Pinard was a party to possessing a loaded restricted firearm.”

[26] In short, although conviction under s. 117.01 only requires possession of a firearm, s. 95 addresses possession of a loaded restricted firearm. In this case, because a loaded restricted firearm was involved, Mr. Pinard’s criminal conduct was more serious.

[27] Counsel for the applicant argued that the indictment was culled by the Crown before trial by deleting the count under s. 95 and leaving the count under s. 117.01. This action, it was argued, must have consequences and it was an error in principle for the trial judge to consider s. 95 cases.

[28] The Crown responded that there is no real sentencing range for standalone s. 117.01 offences. The section is usually used to add consecutive time to another contemporaneous conviction, often in the range of 6-12 months. But such a low sentence would be an error in principle given the gravity of the crime. I agree with the Crown that possession of a loaded firearm in the circumstances of this case as a “true crime” for which, in affirming this court’s decision in Nur, the Supreme Court of Canada agreed with Doherty J.A. that “cases falling near the ‘true crime’ end of the spectrum may warrant sentences of three years or more.”

[29] While the ground for the sentence appeal is arguable, in my view it does not clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion under Oland.

[30] The crime is serious, making the interest in enforceability strong. By contrast, the interest in reviewability is weak because of the weakness of the appeal and the strength of Crown’s position. The balance between the two comes down in favour of enforceability. A reasonable member of the public, informed of the seriousness of this gun conviction and the weakness of the grounds for appeal would lose confidence in the administration of justice if the applicant were released pending appeal.

[31] The application for bail pending appeal is dismissed.

“P. Lauwers J.A.”