Published On: Jul 21,2020
The Court of Appeal Regina v. J.S, 2020 ONCA 448, Juriansz J.A., heard an application for bail pending appeal during the pandemic from a six (6) year global sentence that was imposed by the trial court. On a 19-count indictment, the applicant pled guilty to four offences, including the offences of invitation to sexual touching, contrary to s. 152 (count 7) and sexual interference contrary to s. 151 (count 16), under the Criminal Code, R.S.C., 1985, c. C-46. The other two (2) offences were trafficking a substance included in Schedule 1 (methamphetamine), contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (counts 18 and 19). The Crown and Defence filed an Agreed Statement of Facts in relation to the four (4) counts on the understanding the court would hear evidence about disputed facts pursuant to ss. 723 and 724 of the Code. The Crown called eight (8) witnesses and the defence called two witnesses. Based on the Agreed Statement of Facts and his findings on the evidence beyond a reasonable doubt, the sentencing judge described the applicant’s offences as “a toxic mixture of sustained trafficking in methamphetamine to numerous adults and children, over prolonged periods of time, with clear evidence that the trafficking to children was used as a means of grooming and facilitating sexual abuse in relation to those children”.
As said above, the sentencing judge imposed a global sentence of six years in custody. He thought it appropriate to impose higher sentences on the trafficking counts than on the sexual counts because “the more pervasive methamphetamine trafficking activity … essentially formed the manipulative platform or tool used by Mr. S. to enable his perpetration of repetitive sexual misconduct in relation to his numerous young victims.” He imposed custodial sentences of three years on each of the trafficking convictions, 20 months on the invitation to sexual touching conviction, and 22 months on the sexual interference conviction. The trafficking sentences were made consecutive to each other because they stemmed from “two non-overlapping periods of trafficking”. The sexual counts were made consecutive to each other “as they occurred at different times and involved different victims”. Each sentence for a sexual conviction was made concurrent to the trafficking conviction in the corresponding time frame. This resulted in a six year global sentence.
The Court of Appeal dismissed the accused’s application for bail pending appeal from his six-year global sentence of imprisonment. The sentence was imposed following the accused’s guilty plea to sexual interference, invitation to sexual touching, and two counts of trafficking in methamphetamine. Juriansz J.A. held as follows: (1) the accused had not demonstrated that his appeal had sufficient merit such that detention in custody pending the appeal would cause unnecessary hardship; and (2) the accused had not demonstrated that his detention was not necessary in the public interest.
The Appeals motions judge rejected the accused’s submission that he should be granted release because of the COVID-19pandemic. The Justice acknowledged that, on an application for bail pending appeal, the current COVID-19 pandemic is a factor to be considered in assessing the “public interest” criterion. In this case, however, the accused had not met his onus on this ground.
The Justice noted the following: (a) the primary responsibility for the safety of inmates in federal correctional institutions lies with the federal government and Corrections Canada; (b) in contrast, the focus of a court is necessarily solely on the individual case before it and the administration of the law (in this case, s.679(4) of the Code); (c) the accused had been sentenced to six years in custody in a federal penitentiary, and being on release for a few months now would not change the fact that he must serve his sentence and may be serving it during a second wave of COVID-19, should it occur; and (d) the accused was in custody at an institution where no inmate had tested positive to date.
The Court also noted that the convictions turn on serious crimes against children; the accused had previously breached recognizances; the sentencing judge made a finding that the accused had no insight into his sexual preference for prepubescent and pubescent individuals; and finally the accused’s plan of release was weak.
If you have been convicted of a criminal offence and are seeking bail pending an appeal, contact Mr. J.S. Patel, Criminal Defence Lawyer at 403-585-1960 to discuss your options.