R. v. Gingras (J.G.), 2012 BCCA 467

• Judge: Donald, Lowry, Kirkpatrick, Tysoe and Harris, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 22, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 467;(2012), 330 B.C.A.C. 102 (CA)

R. v. Gingras (J.G.) (2012), 330 B.C.A.C. 102 (CA);

    562 W.A.C. 102

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. NO.039

Regina (respondent) v. Jean Gaetan Gingras (appellant)

(CA040191)

Regina (respondent) v. Russell Anthony Porisky (appellant)

(CA039937)

(2012 BCCA 467)

Indexed As: R. v. Gingras (J.G.)

British Columbia Court of Appeal

Donald, Lowry, Kirkpatrick, Tysoe and Harris, JJ.A.

November 20, 2012.

Summary:

Gingras appealed his convictions and sentence for conspiracy to traffic in cocaine and laundering the proceeds of crime. Porisky appealed his convictions and sentence for tax evasion, GST evasion and counselling to commit fraud. Each applied for and were denied release from custody pending the appeals mainly because of the weakness of their grounds of appeal (see 327 B.C.A.C. 136; 556 W.A.C. 136 and 325 B.C.A.C. 161; 553 W.A.C. 161). Porisky applied under s. 680 of the Criminal Code for a direction that the court review the order denying him interim release.

The British Columbia Court of Appeal, per Finch, C.J.B.C., directed a review of the orders denying release to both Porisky and Gingras.

The British Columbia Court of Appeal dismissed Gingras' application for release and ordered that Porisky be released on conditions.

Criminal Law - Topic 3300

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - General - Considerations - At issue was whether the strength of the grounds of an appeal should be considered in bail applications under s. 679(3) of the Criminal Code and, if it was a relevant factor, how it should be used - The applicants asserted that the examination of the merits should be limited to determining whether the grounds were frivolous or, alternatively, if the grounds were relevant, that either a one-way approach (i.e., while strong grounds might support a bail, weak grounds should not count against the applicant) should be adopted or that consideration of the grounds should be limited to situations where there were public safety concerns - The British Columbia Court of Appeal stated that several of its decisions stated that the strength of the grounds had to be weighed in opposition to the seriousness of the offence - It followed from those decisions that the strength of the grounds had to be able to work for and against the applicants - It was not a one-way street - It was decided in R. v. Mapara (S.) (B.C.C.A.), following R. v. Farinacci (L.W.) et al. (Ont. C.A.), that the public interest component in s. 679(3)(c) involved a balancing of the principle of enforceability with the opposing principle of reviewability - On that scheme, the seriousness of the offence and the strength of the grounds were juxtaposed as competing elements in a corresponding relationship - The greater the seriousness, the stronger the grounds required to shift the balance from enforceability to reviewability - Serious offences required strong grounds for reviewability to prevail - It was unavoidable that the strength of the grounds had to be considered for and against an applicant - All the features of the public interest criterion developed in Farinacci and Mapara continued to apply without the suggested modifications - See paragraphs 4 to 45.

Criminal Law - Topic 3300

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - General - Considerations - The British Columbia Court of Appeal discouraged a trend of examining the grounds of appeal in bail hearings as almost a matter of routine - The court stated that "Not every offence is serious enough to engage an assessment of the merits. There is no need to go beyond the frivolous threshold in cases unlikely to arouse a concern about public confidence. Creating categories of seriousness for this analysis might introduce rigidity and lead to unintended consequences. Instead, we should expect Crown counsel to recognize that the continuum runs from petty theft to first degree murder and to exercise good judgment in raising public confidence only in those cases where the offence is at the serious end of the scale. ..." - See paragraphs 46 and 47.

Criminal Law - Topic 3304

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary in the public interest - [See first Criminal Law - Topic 3300 ].

Criminal Law - Topic 3304

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary in the public interest - Gingras was convicted of one count of conspiracy to traffic in cocaine and two counts of laundering the proceeds of crime - He was sentenced to 10 years' imprisonment - He appealed his convictions and sentence and applied to be released from custody pending the appeals - The Crown accepted that Gingras would surrender himself into custody, but asserted that he had not established that the grounds of appeals were not frivolous and, even if the grounds were not frivolous, they were so weak that they formed an important consideration in assessing the public interest - Gingras had prior convictions - He had strong family connections - He was 69 years old, in frail health and in a precarious situation in prison - For four years while waiting to go to trial, he complied with his bail conditions - The British Columbia Court of Appeal affirmed the denial of interim release - This was a serious drug case involving a high volume of cocaine, large cash transactions and a substantial sentence - Enforceability in the case demanded strong grounds of appeal - His grounds of appeal were arguable, but not strong enough, even when considered with his personal circumstances, to tip the balance in favour of reviewability - See paragraphs 48 to 61.

Criminal Law - Topic 3304

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary in the public interest - Porisky was convicted of tax evasion, GST evasion and counselling to commit fraud - He was sentenced to 54 months' incarceration and a fine of $274,815 - He appealed his conviction and sentence and sought judicial interim release - Chiasson, J.A., denied interim release, finding that although the grounds for appealing were arguable, they were not strong enough to outweigh enforceability - Porisky obtained an order directing a review of the order - The British Columbia Court of Appeal ordered that Porisky be released on conditions - The grounds of appeal in the notice of appeal were prolix, unfocussed and "tainted by nonsense" - It was no wonder that Chiasson, J.A., found them frivolous - Porisky intended to represent himself on the appeal, but had retained counsel for this review - Counsel had identified several points of substance which, if incorporated into an amended notice of appeal, might alter the nature of the case considerably - Tax evasion on this scale was serious, and there were social and economic consequences to be considered, but the gravity of the offence was not the same as that associated with violence or organized crime - As a non-violent offender, Porisky was likely to serve only one-third of his sentence and thus be eligible for parole before his appeal was decided - The need to preserve a viable appeal weighed heavily in favour of release - On balance, the reviewability aspect of the public interest criterion had to prevail over enforceability - See paragraphs 62 to 74.

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - [See second and third Criminal Law - Topic 3304 ].

Criminal Law - Topic 3310.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending sentence appeal - [See second and third Criminal Law - Topic 3304 ].

Cases Noticed:

R. v. Allen (D.J.) (2001), 158 C.C.C.(3d) 225; 2001 NFCA 44, not folld. [para. 5].

R. v. Parsons (G.J.) (1994), 117 Nfld. & P.E.I.R. 69; 365 A.P.R. 69; 30 C.R.(4th) 169 (Nfld. C.A.), affd. (1994), 118 Nfld. & P.E.I.R. 353; 369 A.P.R. 353; 30 C.R.(4th) 189 (Nfld. C.A.), not folld. [para. 5].

R. v. Rhyason (B.P.) (2006), 384 A.R. 146; 367 W.A.C. 146; 2006 ABCA 120, not folld. [para. 6].

R. v. Roussin (B.), [2012] 5 W.W.R. 440; 275 Man.R.(2d) 46; 538 W.A.C. 46 (C.A.), not folld. [para. 6].

R. v. Lauer (J.M.) (2009), 291 Nfld. & P.E.I.R. 332; 898 A.P.R. 332; 2009 PECA 25, not folld. [para. 6].

R. v. Mapara (S.) (2001), 156 B.C.A.C. 138; 255 W.A.C. 138; 158 C.C.C.(3d) 312; 2001 BCCA 508, folld. [para. 7].

R. v. Farinacci (L.W.) et al. (1993), 67 O.A.C. 197; 109 D.L.R.(4th) 97; 86 C.C.C.(3d) 32 (C.A.), folld. [para. 8].

R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 51 Q.A.C. 161, addendum 147 N.R. 335, refd to. [para. 11].

R. v. Crockett (D.) (2001), 161 B.C.A.C. 114; 263 W.A.C. 114; 2001 BCCA 707, refd to. [para. 17].

R. v. Hanna (K.D.) (1992), 3 B.C.A.C. 57; 7 W.A.C. 57 (C.A.), refd to. [para. 19].

R. v. O'Connor (H.P.) (1997), 89 B.C.A.C. 15; 145 W.A.C. 15 (C.A.), consd. [para. 20].

R. v. B.S.B. (2008), 263 B.C.A.C. 51; 443 W.A.C. 51; 2008 BCCA 483, consd. [para. 22].

R. v. Nguyen (Y.V.) (1997), 97 B.C.A.C. 86; 157 W.A.C. 86; 119 C.C.C.(3d) 269 (C.A.), refd to. [para. 26].

R. v. Chu (C.T.) (2009), 275 B.C.A.C. 150; 465 W.A.C. 150; 2009 BCCA 377, refd to. [para. 28].

R. v. Pierce (S.D.) (2010), 292 B.C.A.C. 314; 493 W.A.C. 314; 2010 BCCA 491, refd to. [para. 28].

R. v. Schiel (A.K.), [2011] B.C.A.C. Uned. 58; 2011 BCCA 160, refd to. [para. 28].

R. v. Bath (S.S.) (2012), 322 B.C.A.C. 72; 549 W.A.C. 72; 2012 BCCA 221, refd to. [para. 28].

Canada (Attorney General) v. Ibrahim (2012), 323 B.C.A.C. 234; 550 W.A.C. 234; 2012 BCCA 278, refd to. [para. 28].

United States of America v. Ibrahim - see Canada (Attorney General) v. Ibrahim.

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 679(3) [para. 8 et seq.].

Authors and Works Noticed:

Trotter, Gary T., Bail Pending Appeal: The Strength of the Appeal and Public Interest Criterion (2001), 45 C.R.(5th) 267, generally [para. 38].

Counsel:

G.D. McKinnon, Q.C., for the appellant, Jean Gaetan Gingras;

P.M. McGowan and K.A. McCleery, for the appellant, Russell Anthony Porisky;

W.P. Riley and M. Ogi-Harris, for the (Crown) respondent.

This appeal was heard at Vancouver, British Columbia, on October 22, 2012, by Donald, Lowry, Kirkpatrick, Tysoe and Harris, JJ.A., of the British Columbia Court of Appeal. Donald, J.A., delivered the following reasons for judgment for the court on November 20, 2012.