R. v. Farinacci (L.W.) (1993), 67 O.A.C. 197 (CA)
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Her Majesty The Queen (respondent) v. Leonard William Farinacci, Guy Paul Morin and William Wade (appellants)
(File Nos. C10791, C13886 and C11372)
Indexed As: R. v. Farinacci (L.W.) et al.
Ontario Court of Appeal
Dubin, C.J.O., Catzman, Arbour, Osborne and Doherty, JJ.A.
November 8, 1993.
Summary:
Farinacci appealed a conviction and was denied bail by a single judge of the Court of Appeal. Farinacci appealed to review that decision under s. 680(1) of the Criminal Code. He claimed that s. 679(3)(c), which permitted denial of bail pending appeal on the ground of “public interest” violated his rights under ss. 7 (life, liberty and security of the person), 9 (arbitrary detention) and 11(e) (deprivation of bail without just cause) of the Charter of Rights and Freedoms. Farinacci submitted that bail pending appeal should be the same as pretrial release, except for the additional requirement of proving the appeal was not frivolous. Two other convicted persons, whose bail applications pending appeal were adjourned, were granted leave to intervene.
The Ontario Court of Appeal dismissed the application. Section 11(e) was limited to pretrial release; it did not apply to a convicted accused who appealed his conviction. Section 679(3)(c) did not constitute arbitrary detention, was not contrary to the principles of fundamental justice and was not void for vagueness.
Civil Rights – Topic 646.1
Liberty – Limitations on – Bail and interim release – Section 679(3) of the Criminal Code provided for bail pending conviction appeal – A convicted accused claimed s. 679(3)(c), which required him to prove his continued detention was not necessary in the public interest, violated s. 7 of the Charter of Rights and Freedoms – The Crown argued that s. 7 did not apply, because s. 679(3) enhanced liberty, it did not authorize imprisonment – The Ontario Court of Appeal stated that there was “a sufficient residual liberty interest at stake in the post-conviction appellate process to engage s. 7 in some form” – See paragraphs 18 to 19.
Civil Rights – Topic 3140
Trials – Due process, fundamental justice and fair hearings – Criminal proceedings – Right to bail – Section 679(3)(c) of the Criminal Code required a convicted accused seeking bail pending appeal to prove his continued detention was not necessary in the public interest – A convicted accused claimed s. 679(3)(c) denied his liberty contrary to the principles of fundamental justice (Charter, s. 7), that denying bail on the grounds of “public interest” was unconstitutionally vague – The Ontario Court of Appeal stated that “public interest” related to protection and safety of the public and the need to maintain a balance between the competing interests of enforceability and reviewability – Vagueness was avoided where discretion was guided by principles and the principles were capable of judicial definition – The court stated that s. 679(3)(c) was not void for vagueness – See paragraphs 21 to 50.
Civil Rights – Topic 3622
Detention and imprisonment – Bail and interim release – Denial of bail without just cause – Section 11(e) of the Charter of Rights and Freedoms provided that “any person charged with an offence has the right not to be denied reasonable bail without just cause” – The Ontario Court of Appeal held that s. 11(e) did not apply to a convicted accused seeking bail pending an appeal – The rights enumerated in s. 11 were, generally, pretrial or trial rights which were exhausted by a verdict – After conviction, there was no residual presumption of innocence sufficient to support the application of s. 11(e) – A conviction was an enforceable finding of guilt – There was no presumption left – See paragraphs 7 to 15.
Civil Rights – Topic 4903
Presumption of innocence – After conviction and pending appeal – [See
Civil Rights – Topic 3622
].
Civil Rights – Topic 8547
Canadian Charter of Rights and Freedoms – Interpretation – Principles of fundamental justice – The Ontario Court of Appeal stated that “the principles of fundamental justice are not enumerated in s. 7 of the Charter. In order to determine whether a statutory right or a principle of law is elevated to that constitutional status, one must examine the nature of the right or principle, its source, rationale and the essential role that the right or principle has come to play in the evolution of our legal system …” – See paragraph 21.
Civil Rights – Topic 8547
Canadian Charter of Rights and Freedoms – Interpretation – Principles of fundamental justice – The Ontario Court of Appeal stated that “it is arguable, but it does not fall to be decided in this case, that the principles of fundamental justice in Canada, as they had evolved at the time the Charter was enacted, provide an entitlement to some form of review of convictions resulting in imprisonment. … If reviewability, even in some minimum form, of convictions leading to imprisonment does constitute a principle of fundamental justice, then some ancillary right to bail pending review would have to follow, if only to prevent the review from being nugatory.” – See paragraphs 24 to 25.
Civil Rights – Topic 8584
Canadian Charter of Rights and Freedoms – Practice – Time for raising Charter issues – The Ontario Court of Appeal stated that “there is no constitutionally entrenched right of appeal, in the sense that s. 24 of the Charter does not create an appellate structure of courts to review decisions allowing or dismissing a Charter claim. Thus an appeal from a Charter ruling, interlocutory to a criminal trial, cannot be launched prior to the conclusion of the trial, unless a statutory avenue for such an appeal exists …” – See paragraph 22.
Criminal Law – Topic 3304
Compelling appearance, detention and release – Interim release or detention of accused pending appeal – Detention necessary in the public interest – Section 679(3)(c) of the Criminal Code required a convicted accused seeking bail pending appeal to prove his continued detention was not necessary in the public interest – The Ontario Court of Appeal held that s. 679(3)(c) was not void for vagueness and did not violate ss. 7, 9 or 11(e) of the Charter of Rights and Freedoms.
Criminal Law – Topic 3310
Compelling appearance, detention and release – Interim release or detention of accused pending appeal – Release pending appeal – The Ontario Court of Appeal discussed the “right” of a convicted accused to bail pending the hearing of a conviction appeal.
Cases Noticed:
R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 147 N.R. 335 (Add.), refd to. [para. 1].
R. v. Pearson (E.), [1992] 3 S.C.R. 665; 144 N.R. 243; 52 Q.A.C. 1, refd to. [para. 1].
R. v. Potvin (R.) (1993), 155 N.R. 241 (S.C.C.), refd to. [para. 7].
R. v. Gallagher (R.) (1993), 155 N.R. 215; 64 O.A.C. 207 (S.C.C.), refd to. [para. 7].
R. v. Frazer (D.B.) (1993), 155 N.R. 220; 64 O.A.C. 202 (S.C.C.), refd to. [para. 7].
R. v. Baltovitch (R.J.) (1992), 59 O.A.C. 72; 10 O.R.(3d) 737 (C.A.), refd to. [para. 14].
R. v. Gamble, [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81; 45 C.C.C.(3d) 204, refd to. [para. 18].
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 19].
R. v. Mitchell, [1976] 2 S.C.R. 570; 6 N.R. 389, refd to. [para. 19].
Reference re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 24 D.L.R.(4th) 536; 36 M.V.R. 240; 69 B.C.L.R.(2d) 145; 18 C.R.R. 30, refd to. [para. 21].
R. v. Morgentaler, Smoling and Scott (1985), 6 O.A.C. 53; 48 O.R.(2d) 519; 16 C.C.C.(3d) 1 (C.A.), refd to. [para. 22].
R. v. Adamson (1991), 49 O.A.C. 26; 3 O.R.(3d) 272; 65 C.C.C.(3d) 159 (C.A.), refd to. [para. 22].
R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481; 29 D.L.R.(4th) 161; 21 C.R.R. 76, refd to. [para. 22].
R. v. Meltzer, [1989] 1 S.C.R. 1764; 96 N.R. 391; 49 C.C.C.(3d) 453; 70 C.R.(3d) 383, refd to. [para. 22].
Knox Contracting Ltd. and Knox v. Canada and Minister of National Revenue et al., [1990] 2 S.C.R. 338; 110 N.R. 171; 106 N.B.R.(2d) 408; 265 A.P.R. 408, refd to. [para. 22].
Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 93; [1993] 4 W.W.R. 225; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 22].
R. v. Robinson; R. v. Dolejs (1989), 100 A.R. 26; 51 C.C.C.(3d) 452 (C.A.), refd to. [para. 23].
Hicks v. R. (1982), 17 Alta. L.R.(2d) 1; 63 C.C.C.(2d) 547 (C.A.), refd to. [para. 27].
R. v. Gingras (1982), 70 C.C.C.(2d) 27 (Ct. Martial App. Ct.), refd to. [para. 28].
Hinds v. R. (1983), 4 C.C.C.(3d) 322 (B.C.S.C.), refd to. [para. 29].
R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 74 C.C.C.(3d) 289, refd to. [para. 31].
R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [para. 34].
R. v. Pabini (1991), 10 C.R.(4th) 381 (Ont. C.A.), refd to. [para. 38].
R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481; 29 D.L.R.(4th) 161; 21 C.R.R. 76, refd to. [para. 46].
Statutes Noticed:
Bail Reform Act, S.C. 1970-71-72, c. 37, generally [para. 11].
Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 9, sect. 11(e) [para. 6]; sect. 24 [para. 22]; sect. 24(1) [para. 46]; sect. 24(2) [para. 45].
Criminal Code, R.S.C. 1985, c. C-46, sect. 515(6) [para. 3]; sect. 515(10)(b) [para. 2]; sect. 679(1)(a), sect. 679(1)(b), sect. 679(1)(c), sect. 679(3)(a), sect. 679(3)(b), sect. 679(3)(c) [para. 5]; sect. 680(1) [para. 1].
National Defence Act, R.S.C. 1970, c. N-4, generally [para. 27].
Authors and Works Noticed:
Canada, Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969) (Ouimet Report), p. 126 [para. 11].
Ouimet Report – see Canada, Report of the Canadian Committee on Corrections.
Packer, Herbert L., The Limits of the Criminal Sanction (1968) pp. 161-163 [para. 10].
Counsel:
Kenneth Campbell and Gary Trotter, for the Attorney General of Ontario;
Frank Addario, for Leonard William Farinacci;
Marlys Edwardh, for Guy Paul Morin;
William S. Hechter, for William Wade;
Robert Hubbard and Scott Fenton, for the Attorney General of Canada.
This application was heard on January 18-21, 1993, before Dubin, C.J.O., Catzman, Arbour, Osborne and Doherty, JJ.A., of the Ontario Court of Appeal.
The judgment of the Court of Appeal was delivered by Arbour, J.A., and was released on November 8, 1993.
