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Reflex Record (related decisions, legislation cited and decisions cited)
·Court of Appeal
R. v. O’Connor, 1998 CanLII 14987 (BC CA) – 1998-03-24
- ·R. v. O’Connor, 1996 CanLII 3348 (BC CA) – 1996-12-10
- ·Criminal Code, R.S.C., 1985, c. C-46
- ·R. v. Dhindsa, 1986 CanLII 1185 (BC CA) — 30 CCC (3d) 368
Legislation cited (available on CanLII)
Court of Appeal for British Columbia
ORAL REASONS FOR JUDGMENT:
BEFORE THE HONOURABLE September 16, 1996
MADAM JUSTICE PROUDFOOT
IN CHAMBERS Vancouver, B.C.
R E G I N A
C. Considine appearing for the Appellant
M. Macaulay, Q.C. appearing for the (Crown) Respondent
(application for bail pending appeal)
 PROUDFOOT, J.A.: I have done this in my own handwriting. I reserve the right to edit the judgment ultimately. I must say this is probably one of the most difficult decisions I have had to make.
 This matter came before me on Friday, September 13, 1996. It is an application for release pending an appeal. The application is pursuant to s.679(3) of the Criminal Code. I adjourned it until today to deal with.
 The appellant must on this application establish three elements:
(a) the appeal or application for leave to appeal is not frivolous;
(b) he will surrender himself into custody in accordance with the terms of the order; and
(c) his detention is not necessary in the public interest.
 A brief outline of the facts. The appellant was charged in 1991 with various sex related offences arising out of incidents which took place sometime in the 1960s. He was at that time principal of the Cariboo Indian Residential School located near Williams Lake. The complainants involved in the four charges that were before the trial judge were either students or former students. The school was administered by the Roman Catholic Church. The appellant was a Roman Catholic priest.
 It appears the defence tendered by the appellant with reference to the rape charges was consent. The indecent assault charges he denied ever occurred.
These offences, indecent assault and rape, are no longer part of the Criminal Code but are now included as various categories of sexual assault. The charges were originally stayed in 1992 during the course of the trial but on appeal that ruling was reversed and a new trial was ordered by the Court of Appeal. The appellant appealed that ruling to the Supreme Court of Canada unsuccessfully. Hence the trial before Mr. Justice Oppal when a new trial was held.
 The appellant testified on his own behalf, however, the trial judge in his reasons made it clear he was not impressed with the appellant’s evidence. I have read those reasons for judgment. The appellant was convicted on July 25, 1996, on counts two and three and acquitted on one and four. He was sentenced last Friday to two and a half years imprisonment.
 He now appeals those convictions. Count two is one of rape and count three is one of indecent assault. I will deal with the points (a), (b), and (c) that I read earlier dealing firstly with (b). There is, in my view, no fear the appellant will not surrender himself into custody as and when required. The Crown does not oppose the application on that ground.
 Next, (a) is the appeal frivolous? The appellant argues he has a strong case.
I do not agree but rather the appellant has a weak case assessing the grounds of appeal put forward on this application. Substantial reliance is being placed on what this Court views as findings of fact which are in the trial judge realm to make. He argues inconsistencies in the evidence etcetera. The other arguments are Charter breaches. It is my understanding that those arguments have already been tested and ventilated before in this Court. However, the test or the threshold the appellant must meet is not a high one, “that the appeal is not frivolous”. I ask myself is this appeal futile, trifling, or totally without merit or is it that it cannot succeed, is it bound to fail. The Crown concedes it is close but they do not argue it is frivolous. In view of that position by the Crown the appellant has reached the threshold and the appellant cannot be detained on that ground alone.
 Finally, point (c), the public interest. Here the Crown is adamant that it is necessary in the public interest to detain the appellant. The consideration of this aspect is always the most difficult. I want to make it clear that it is not my job to make a popular decision but rather assessing all of the circumstances is it in the public interest or as part of that and important, will my decision bring the administration of justice into disrepute.
 Madam Justice Arbour of the Ontario Court of Appeal in the R. v. Farinacci (1993) 86 C.C.C. 31, indicated that there was a need to maintain a balance between competing interests and forcibility of judgment and reviewability of correction of error. In cases where the appeal is so strong she says and the probability of delay of an appeal could be successful because it is so strong it could be contrary to public interest to make a detention order. However, she says on the other hand a person convicted of a serious offence who was advancing grounds of appeal that are arguable but weak may be denied bail so whether or not an appeal has merit or not can be considered in my view under the heading of the public interest.
 At p.48 she says “any difference of opinion as to whether or not an individual appellant should or should not be granted bail merely reflects a different judgment in the application of the legal standard of the facts. It does not suggest that there is no discernible standard to be applied.”
 It would appear that all circumstances of a case must be considered when dealing with the public interest including the merits. There are many cases dealing with this aspect. I must point out neither counsel cited any previous decisions dealing with this aspect which was not helpful particularly when dealing with such a high profile case. I am mindful that the application came to me on the basis of short leave. The Crown consented to the short leave. The only case cited to me was R. v. Latimer, the case in Saskatchewan where a severely handicapped child’s death was involved. However, I have no reasons for judgment and accordingly it was of little assistance.
 In the circumstances here I have reviewed some of the cases over the weekend where judges have dealt with the concept of the public interest. As I stated earlier I point out the application after conviction pending appeal is on a different footing referred to by Madam Justice Arbour in Farinacci. Whether an appellant is detained in the public interest must be viewed in all of the circumstances of that case. Each case has its own particular set of circumstances.
 Mr. Justice Toy, as he then was, dealt with this concept in the case of R. v. Dhindsa et al 1986 CanLII 1185 (BC C.A.), (1987) 30 C.C.C. (3d) 368 at 377. He deals with several early decisions including one of the earliest Re: Powers and the Queen (1972), 9 C.C.C. (2d) 533 which was Mr. Justice Learner’s decision. The Powers case has
been cited in many cases and is a useful guide.
 In the case at bar the appellant does not have any previous record which is often referred to in these earlier cases. In addition, there is no concern that he would reoffend.
 In the next case R. v. Demyen (1975) 26 C.C.C. (2d) 324. That was a decision of Mr. Justice Culliton as he then was. At p.326 he has three paragraphs which are very useful and I propose to refer to those passages later in my reasons.
That line of reasoning was followed by Tallis, J., as he then was, in R. v. Kingwatsiak (1977) 31 C.C.C. (2d) at 213. Madam Justice Wilson, as she then was, in R. v. Morenstein (1978) 40 C.C.C. (2d) 131 and Mr. Justice Boilard in R. v. Lebel, (1989) 70 CR (2d) 83 made similar comments. The latter two cases were dealing with drug traffickers and the expense of bringing them back if released and fled. All of these cases assist me because it is readily discernible that “in the public interest” must be given a broad and generous interpretation when dealing with an application pending appeal. A judge has a wide unfettered discretion as stated in the Demyen case.
 Applying this broad meaning in the case at bar the appellant is, as I have stated earlier, 68 years of age. He has stated he is in poor health with a heart condition. He has no previous criminal record, the question of reoffending is not a concern. This conviction arises out of a circumstances which occurred some 30 years ago. I state this as a fact not in any way meant to minimize the circumstances. The appellant’s grounds of appeal may be arguable but in my view are very weak.
 This case has a long and tortuous history and counsel for the appellant somewhat presumptuously states it will go “all the way to the Supreme Court of Canada”. The appellant cannot be said to be a risk to the community. There is also to be considered although to a lesser degree, the argument made by defence that the appellant could be eligible for parole before an appeal could be heard. The appellant was involved in pastoral work in Duncan and resided at the Oblate Centre House and if released would return there.
 After considering all of the circumstances, I go back to the words of Culliton, J. in the Denyen case, where he said this: In my opinion, in the determination of what may constitute the public interest parliament intended to give to the Judge a wide and unfettered discretion. To attempt to define with particularity what constitutes public interest would not only be difficult but would likely result in restricting by judicial pronouncement the unfettered discretion which parliament intended to confer. The proper application, in my view, is to give to public interest a comprehensive meaning and to decide in the circumstances of each case whether or not the public interest requires the prisoner’s detention.
I am convinced that the effective enforcement and administration of the criminal law can only be achieved if the Courts, Judges and police officers, or law enforcement agencies have and maintain the confidence and respect of the public. Any action by the Courts, Judges, police officers, or law enforcement agencies which may detrimentally affect that public confidence and respect would be contrary to the public interest.
I think it can be said that the release of a prisoner convicted of a serious crime involving violence [rape of itself is inherently violent] to the person pending the determination of his appeal is a matter of real concern to the public. I think it can be said, as well, that the public does not take the same view to the release of an accused while awaiting trial. This is understandable, as in the latter instanced the accused is presumed to be innocent, while in the former he is a convicted criminal.
[These are my words]
 I am satisfied that those passages are most compelling and I adopt them. In view of the circumstances of this particular case I do not feel it in the public interest to have the appellant released. He will be detained.
“The Honourable Madam Justice Proudfoot”