R. v. Oland, 2017 SCC 17 – Criminal law — Interim release — Appeals

On appeal from a judgment of the New Brunswick Court of Appeal (2016 NBCA 15) affirming the decision of Richard J.A. denying bail to the appellant pending the determination of his appeal against conviction ([2016] NBJ No. 25) O applied for release pending the determination of his appeal against conviction on a charge of second degree murder involving the death of his father. His application was denied under the third criterion set out in s. 679(3)(c) of the Criminal Code, which requires the applicant to establish that “his detention is not necessary in the public interest”. While public safety was not in issue in this case, the appeal judge was not persuaded that public confidence would be maintained if O were to be released. Accordingly, he dismissed O’s application. A review of that decision by a three‑judge panel, as directed by the Chief Justice of the Court of Appeal under s. 680(1) of the Criminal Code, was unsuccessful. The Court of Appeal later allowed O’s appeal from conviction and ordered a new trial. Because he was then released pending his re‑trial, O’s appeal of the review panel’s decision to this Court was rendered moot. However, in accordance with Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Court determined that it would proceed to hear the appeal on its merits because of the unanimous position taken by the parties and interveners that guidance was needed to resolve conflicting jurisprudence on the issue of bail pending appeal, which is otherwise evasive of appellate review.

Held (9-0): The appeal should be allowed.

Following R. v. Farinacci (1993), 86 C.C.C. (3d) 32, the public interest criterion of s. 679(3)(c) of the Criminal Code consists of two components: public safety and public confidence in the administration of justice. The public confidence component involves the weighing of two competing interests: enforceability and reviewability. While the Farinacci framework has withstood the test of time and remains good law, appellate judges continue to have difficulty resolving the tension between enforceability and reviewability, especially in cases like the present one, where they are faced with a serious crime on the one hand, and a strong candidate for bail pending appeal on the other.

In s. 679(3)(c) of the Criminal Code, Parliament has not provided appellate judges with any direction as to how a bail pending appeal order is likely to affect public confidence in the administration of justice. Fortunately, it has done so in s. 515(10)(c) for the admittedly different but related context of bail pending trial. With appropriate modifications, the s. 515(10)(c) factors are also instructive in the appellate context. In assessing public confidence under s. 515(10)(c) in the pre‑trial context, the seriousness of the crime for which a person has been convicted plays an important role and is determined by three factors: the gravity of the offence; the circumstances surrounding the commission of the offence; and the potential length of imprisonment. In considering the public confidence component under s. 679(3)(c), the seriousness of the crime should play an equal role in assessing the enforceability interest. The remaining factor that Parliament has identified as informing public confidence under s. 515(10)(c) is the strength of the prosecution’s case. In the appellate context, this translates into the strength of the grounds of appeal, which informs the reviewability interest. For this assessment, appellate judges should examine the grounds of appeal for their general legal plausibility and their foundation in the record to determine whether they clearly surpass the minimal standard required to meet the “not frivolous” criterion.

When conducting the final balancing of the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values. There is no precise formula that can be applied to resolve the balance between enforceability and reviewability. A qualitative and contextual approach is required. Where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak. On the other hand, where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the “not frivolous” criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences.

A panel review under s. 680(1) of the Criminal Code should be guided by the following three principles. First, absent palpable and overriding error, the panel must show deference to the judge’s findings of fact. Second, the panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. It follows that the Chief Justice should consider directing a review under s. 680(1) where it is arguable that the judge committed material errors of fact or law in arriving at the impugned decision, or that the decision was clearly unwarranted in the circumstances.

In this case, the appeal judge was satisfied that there were no appreciable public safety or flight risk concerns and the grounds of appeal were “clearly arguable” — meaning that they clearly surpassed the “not frivolous” criterion. In addition, as found by the trial judge, O’s crime gravitated more toward the offence of manslaughter than to first degree murder, which attenuated the seriousness of the crime and hence the enforceability interest. The cumulative effect of these considerations made O’s detention clearly unwarranted. The appeal judge erred in law by looking for grounds of appeal that would have virtually assured a new trial or an acquittal. The review panel erred in failing to intervene.

Reasons for judgment: Moldaver J. (McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. concurring)

Neutral Citation: 2017 SCC 17

Docket Number: 36986



David McLennan v. Her Majesty the Queen(Ont.)

Criminal law — Dangerous driving causing death — Jury charge

On July 24, 2008, Mr. McLennan was driving on a highway when he lost control of his vehicle after completing a curve. His 16-year old son was killed in the resulting accident. Mr. McLennan was charged with impaired driving causing death and dangerous driving causing death. He testified that his right wheels momentarily touched the gravel shoulder of the highway, he overcorrected, and this caused the accident. The Crown’s evidence in part included Mr. McLennan’s prior consumption of alcohol, prior incidents of driving alleged to be stunt driving, a debris field, and the opinion of a police officer who responded to the accident that the accident involved excessive speed and unexplained bad driving. The Court of Appeal for Ontario dismissed the appeal.


9143-9059 Québec Inc v. City of Granby(Que.)

Administrative law — Judicial review — Standard of review

In 2008, the respondent City of Granby expropriated the applicant 9143‑9059 Québec inc. The applicant applied to the Administrative Tribunal of Québec to have it fix the indemnity to which the applicant claimed to be entitled as a result of the appropriation. The Administrative Tribunal of Québec refused to apply a certain method for computing the expropriation indemnity. The Court of Québec allowed the appeal and set aside the decision of the Administrative Tribunal of Québec. That decision was itself reversed on judicial review by the Superior Court, which found that the Court of Québec judge had overstepped his appellate role.


R.G. v. Her Majesty the Queen(Ont.)

Criminal law – Dangerous offender designation – Persistent criminal behavior

The complainant, the Applicant’s former common-law partner, alleged he confined her to her apartment, beat her, and forced her to perform oral sex. Initially, the complainant had claimed he had broken into her apartment, but it was apparent the pair went there after going out drinking together. The Applicant was acquitted on a charge of breaking and entering, the trial judge noting the telephone and hydro accounts at the new apartment were in the Applicant’s name. He convicted the Applicant on the unlawful confinement and sexual assault charges despite denials from the Applicant that he had engaged in any sexual assault or unlawful confinement of the complainant. The trial judge took note of the consistency between the evidence of the complainant and the state of her clothing when she fled from the apartment and was later attended by the police. In imposing the dangerous offender designation the trial judge noted the Applicant’s long history of abusing domestic partners, and psychiatric evidence confirming that he was a psychopath who posed a significant risk for violent re-offending. He considered conflicting evidence from two psychiatrists, one who found psychopaths untreatable, and the other who recommended a multi-faceted treatment plan. The judge found the Crown proved beyond a reasonable doubt that there was no reasonable possibility of controlling the Applicant’s risk in the community. The Court of Appeal for Ontario dismissed the appeal.


A.C., S.I. and R.M. v. The Children's Aid Society of Ottawa(Ont.)

Family law — Child protection — Civil procedure

R.M. entered into surrogacy agreements with S.I. and A.C.; a total of seven children were born to both women, and all seven were apprehended by an Alberta child protection agency. Three other children were later apprehended in Ontario. The trial judge made an order for Crown wardship with no parental right of access for the three children apprehended in Ontario, finding that the parents were unable to provide for the care and health of the children or their basic needs. All three parents appealed the Crown wardship order in Divisional Court.

Prior to the appeal being heard, the parents brought various procedural motions. A single judge of the Ontario Court of Appeal dismissed the motions, finding that they were not properly before the Court of Appeal. A full panel of the Court of Appeal dismissed an appeal of that decision.

In addition, the Divisional Court dismissed the parents’ substantive appeal for reasons of delay, finding that the best interests of the children required that the appeal be dismissed. The parents had no explanation for not having perfected the appeal; the delay greatly prejudiced the children; the parents had no plan for perfecting the appeal or for the care of the children; and when considering the substance of the challenge, the Divisional Court concluded that the underlying appeal lacked merit. The Court of Appeal dismissed a motion to review this decision.

The parents now seek leave to appeal both Court of Appeal decisions (i.e., the dismissal of a review of the ruling on the procedural motions, and the dismissal of a review of the order dismissing the substantive appeal for delay).


Gary Grant v. Equifax Canada Co., Trans Union of Canada, Ministry of Government Services and Consumer Services(Ont.)

Limitation of actions

Mr. Grant, applicant, sought an order requiring Trans Union and Equifax, respondents, to remove from his credit report debts that were over two years old and for which no legal action had been commenced or judgment obtained. He argued that the basic limitation period of two years set out in the Limitations Act, 2002, S.O. 2002, c. 24, applied to the statutory framework for consumer credit reporting in Ontario set out in the Consumer Reporting Act, R.S.O. 1990, c. C.33. Essentially, he submitted that consumer debts which could not be collected should not be listed on his credit report. The Superior Court dismissed Mr. Grant’s application on the basis that there was nothing in the Limitations Act which extended its application to the Consumer Reporting Act. The Court of Appeal dismissed the appeal.


Fabian Loayza-Penaloza v. Her Majesty the Queen(Ont.)

Criminal Law — Trial — Jury charge — First degree murder

Mr. Loayza-Penaloza was tried jointly with Mr. Figueroa for the first degree murder of Ms. Dulnuan, who was strangled to death during a home invasion and robbery. Each accused admitted he participated in the robbery and blamed the other for the murder. Mr. Loayza-Penaloza testified that he was a get-away driver, he was outside the house in his van when Mr. Figueroa killed Ms. Dulnuan, he could not have anticipated a murder, and he did not know about the murder until later. The Crown’s evidence included a statement to the police by Mr. Loayza-Penaloza’s ex-wife that she had dreamed that Mr. Loayza-Penaloza had participated in the murder. She described details not released to the public. At trial, she testified that she lied to the police and the details in the fabricated dream were told to her by Mr. Loayza-Penaloza, who also told her that Mr. Figueroa had done these things. Sproat J. in part instructed the jury that, pursuant to s. 231(5) of the Criminal Code, murder is first degree when death is caused while committing or attempting to commit forcible confinement. He also instructed the jury on party liability under s. 21 of the Criminal Code. Mr. Loayza-Penaloza was convicted by a jury of first degree murder. The Court of Appeal for Ontario dismissed the appeal.


Michael Mullins v. Her Majesty the Queen(Ont.)

Charter of Rights – Criminal law – Sexual assault

The Applicant, Mr. Mullins was convicted of sexual assault and of administering a stupefying drug for the purpose of committing the assault. The victim was 18 years old and a close friend of his daughter. He was sentenced to 9 years and was given a credit of 9 months for the period from the date of his arrest to the date of his sentencing, to take into account pre-trial custody, time spent on bail, and time served since conviction. The Court of Appeal dismissed the appeal from conviction. Leave to appeal the sentence was however granted and the appeal allowed, to the extent that the sentence was reduced to 8 years, less 8 days.


Roberto Orellana Gonzalez v. Workers’ Compensation Board (Worksafe) of British Columbia, Workers’ Compensation Appeal Tribunal and Her Majesty the Queen in Right of the Province of British Columbia (Attorney General - Ministry of Attorney General in the City of Victoria)(B.C.)

Charter of Rights and Freedoms ― Constitutional law ― Fundamental justice

The applicant, Mr. Gonzalez suffered a work-place injury in 1995. This application stems from a dismissed petition for judicial review in 2010 from two Workers’ Compensation Appeal Tribunal decisions. After the 2010 decision was rendered, Mr. Gonzalez filed a notice of appeal but took no steps to prosecute the appeal and it was dismissed as abandoned in 2011. Four and a half years later, Mr. Gonzalez brought an application before the British Columbia Court of Appeal to reinstate the appeal. It was dismissed. On appeal, the Court of Appeal also dismissed the application to vary that order.


Glenda Bonilla v. The Personal Insurance Company of Canada(Ont.)

Insurance – Automobile insurance – Statutory accident benefits scheme

The applicant, Ms. Bonilla, was involved in a motor vehicle accident in 2002. Shortly thereafter, she applied for and received Income Replacement Benefits (“IRB”) from the respondent insurer, The Personal Insurance Company of Canada. On February 4, 2003, Personal wrote to Ms. Bonilla advising her that, effective February 27, 2003, her IRBs would no longer be paid. Ms. Bonilla did not commence an action against Personal in respect of her entitlement to IRBs until 2007.

Personal brought a motion for summary judgment seeking a dismissal of Ms. Bonilla’s action with respect to IRB entitlement on the basis that her claim was barred by the two-year limitation period set out in s. 281.1 of the Insurance Act R.S.O. 1990 c. I8, and s. 51 of the Statutory Accident Benefit Schedule – Accidents on or After November 1, 1996, O. Reg. 403/96, as those provisions read at the relevant time. The Court of Appeal for Ontario dismissed the appeal.


C.K.Z., G.L.P. v. Nova Scotia Minister of Community Services(N.S.)

Charter of Rights – Right to equality – Disability – Status of persons

The mother and the father have been in a relationship for approximately eight years. They both have intellectual disabilities. They have two boys who are almost four and three years of age. Both were found to be in need of protective services in separate protection proceedings. The eldest was taken into temporary care and custody by the Minister when he was three months old pursuant to s. 22(2) of the Children and Family Services Act, S.N.S. 1990, c. 5. He was found to be at substantial risk of physical and emotional harm by reason chronic and serious neglect. The parents were unable to resume his care but were granted supervised access. The parents had many parenting challenges that impeded their ability to provide for the children’s care, needs and safety. Multiple disposition reviews ensued and the parents’ access increased with reduced supervision. Initially, it appeared that the circumstances might be improving but in April, 2015, the Minister took the younger child into care when he was ten months old. He was also found to be in need of protection due to substantial risk of physical and emotional harm. The Minister reverted to seeking an order placing both children in permanent care and custody. The parents contested the disposition.


D.M, M.M. and G.M. v. Director, Child and Family Services Authority(Alta.)

Civil procedure – Appeals – Leave to appeal

The proceedings arise from an order of the Provincial Court of Alberta granting guardianship of three minor children to the respondent, Director. The applicants’ appeal from that order to the Alberta Court of Queen’s Bench was dismissed due to the applicants’ failure to comply with an order to serve and file a complete transcript of the proceedings below. The applicants did not appeal the dismissal order, but instead brought an application to restore the appeal in the Court of Queen’s Bench which was dismissed for lack of merit. The applicants’ appeal from that dismissal was subsequently struck by the Court of Appeal for failure by the applicants to file their Appeal Record or seek and extension of time. The applicants then brought two applications in the Court of Appeal seeking: (i) permission to appeal the decision of the Court of Queen’s Bench dismissing the application to restore their appeal and (ii) an order to restore their appeal which had been struck in the Court of Appeal.

The Court of Appeal dismissed the applications. As to the first application, the court held that the applicants had not satisfied the requirements of Rule 12.71 of the Alberta Rules of Court for granting leave to the Court of Appeal; no error of law or jurisdiction on the part of the Queen’s Bench judge had been established. Second, the application to restore the appeal was found to be moot, however, for the sake of completeness, the court dismissed the application.