Keywords: Appeals, Criminal law, Bail, Sentencing
Synopsis: Mr. Sona was convicted of election fraud and sentenced to nine months’ imprisonment. The trial was “fervently covered by the national media” and he was “subjected to more than the usual ignominy of a public trial and conviction” (para. 26). He brings a bail application in regards to his sentence appeal.
Importance: The issue before LaForme J.A. of the Court of Appeal was whether “Mr. Sona ought to have an opportunity to have [the Court of Appeal] consider the fitness of his sentence before he is required to serve it” (para. 30). The decision provides a clear and straightforward look at the test to be applied in these circumstances. Under s. 679(3) of the Criminal Code, an appellant must satisfy the court that: (i) his appeal is not frivolous; (ii) he will surrender into custody in accordance with the terms of the release order; and (iii) his detention is not necessary in the public interest (para. 8). The presumption of innocence no longer applies and the test is applied on the basis that the appellant is guilty.
The first part of the test looks at whether the grounds of appeal are arguable and not frivolous. This will be satisfied as long as there is a viable ground of appeal that would warrant appellate intervention if established. Given the novelty of the case (i.e. lack of precedents on appropriate range), it is difficult to show the appeal is frivolous.
The second part of the test was not contested — given the appellant’s history and background there is no concern that he wouldn’t surrender into custody. The third part of the test was given the most attention. It concerns “reviewability versus enforcement” which means balancing the need to review the sentence with the need to respect the general rule of immediate enforceability of the decision. LaForme J.A. explained:
 Reviewability arises where judgments or decisions ought to be reviewed and any errors corrected, especially where an appellant’s liberty is at stake. Public confidence in the administration of justice mandates that, in these circumstances, justice usually requires release from custody pending the review.
 On the other hand, public confidence in the administration of justice usually requires that judgments or decisions of the courts be enforced. A person convicted of a very serious offence, who advances grounds of appeal that are arguable but weak, should not be released from custody pending appeal: R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.
In applying the third part of the test to the case before him, LaForme J.A. went on to consider that the seriousness of the offence, the age of the appellant, the impact on the appellant, and danger if any to the public. In granting the application for bail, he emphasized that Mr. Sona would serve most of his sentence before the opportunity to have his appeal heard. This case provides a helpful example of when bail may be granted and gives some insight into the malleable expression “public interest”.
Counsel for Appellant/Applicant: Howard Krongold (Webber Schroeder Goldstein Abergel, Ottawa)
Counsel for Respondent: Nick Devlin (Crown Counsel at Public Prosecution, Toronto)