Citation: R. v. Cox, 2009 NSCA 15
Date: 20090206
Docket: CAC 297894
Registry: Halifax
Between:
Kaz Henry Cox
Appellant
(Applicant)
v.
Her Majesty the Queen
Respondent
Judge: The Honourable Justice Fichaud
Application Heard: February 5, 2009, in Halifax, Nova Scotia, In Chambers
Held: Application for bail pending appeal is dismissed.
Counsel: Kent McNally, for the appellant (applicant)
Mark Scott, for the respondent
Decision:
[1] This is an application under s. 679(1)(a) of the Criminal Code for release pending determination of an appeal against conviction.
[2] On May 5, 2008, Provincial Court Judge Claudine MacDonald conducted a trial of Mr. Cox on assault charges under the Criminal Code. Mr. Cox, while intoxicated at a party, pushed Ms. Elaine Walsh over a table with enough force to break the table leg. Then he pushed Mr. Glenn Russell over a stairwell, followed down the stairs and kicked and punched Mr. Russell. Mr. Russell was rendered unconscious and suffered a concussion, broken ribs and a collapsed lung. Mr. Cox represented himself at the trial but did not testify. The trial judge convicted Mr. Cox of assault causing bodily harm under s. 267(b) of the Code for Mr. Russell and assault under s. 266 for Ms. Walsh.
[3] Mr. Cox was represented by counsel at the sentencing hearing on June 18, 2008. In her sentencing, the judge noted Mr. Cox's lengthy record of convictions, his substance abuse, and that Mr. Cox had been on probation when he committed the offences for which he was convicted. On June 18, 2008, the judge sentenced Mr. Cox to 18 months for the assault causing bodily harm and 3 months concurrent for the assault on Ms. Walsh, to be followed by 2 years probation with conditions.
[4] Mr. Cox has appealed. His appeal focuses primarily on the ground of unreasonable verdict, based on inconsistencies in the evidence of the Crown's witnesses. The Court of Appeal will hear his appeal on March 18, 2009.
[5] Mr. Cox applies for interim release under s. 679(1)(a) of the Code:
(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if,
(a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to section 678;
[6] Section 679(3) states the conditions and onus for an interim release under s. 679(1)(a):
(3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that
(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.
[7] Mr. Cox has the onus to establish each of the conditions under s. 679(3). His conviction has replaced his initial presumption of innocence with a status quo of guilt, and it is his burden to oust the status quo by proving the statutory conditions for interim release. R. v. Barry, 2004 NSCA 126 at ¶ 8 and cases there cited.
[8] The Crown does not contest the condition in s. 679(3(a). So I will move on.
[9] Section 679(3)(b) requires Mr. Cox to satisfy me that he will surrender into custody in accordance with the terms of the interim release order. The Crown points to examples in the past of Mr. Cox's failure to cooperate with the authorities, and suggests that Mr. Cox is a flight risk. Though I appreciate the reasons for the Crown's concern, I am satisfied that Mr. Cox would surrender in accordance with an interim release order. Mr. Cox testified that he wishes interim release to assist his wife and child financially by earning income. Their family assets would be pledged as security for his attendance in court. I do not believe that Mr. Cox would deliberately place his family at further financial risk by avoiding surrender.
[10] It is the third condition that causes me the greatest concern. Mr. Cox must prove that his "detention is not necessary in the public interest" under s. 679(3)(c).
[11] In R. v. Ryan, 2004 NSCA 105, Justice Cromwell described the balancing approach under s. 679(3)(c):
[21] Iagree with former Chief Justice McEachern when he wrote in R. v. Nugyen (1997), 119 C.C.C. (3d) 269 (B.C.C.A. Chambers) at paras. 15 ‑ 16 that the public interest requirement in s. 679(3)(c) means that the court should consider an application for bail with the public in mind. He went on to add that doing so may mean different things in difference contexts:
In some cases, it may require concern for further offences. In other cases, it may refer more particularly to public respect for the administration of justice. It is clear, however, that the denial of bail is not a means of punishment. Bail is distinct from the sentence imposed for the offence and it is necessary to recognize its different purpose which, in the context of this case is largely to ensure that convicted persons will not serve sentences for convictions not properly entered against them. (Emphasis added)
[22] I also think it important to remember in applying the public interest criterion that it must not become a means by which public hostility or clammer is used to deny release to otherwise deserving applicants: see Gary Trotter, The Law of Bail in Canada, 2nd ed. (Carswell, 1999) at p. 390.
[23] Underlying the law relating to release pending appeal are the twin principles of reviewability of convictions and the enforceability of a judgment until it has been reversed or set aside. These principles tend to conflict and must be balanced in the public interest. As Arbour, J.A. (as she then was) pointed out in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 at 48:
Public confidence in the administration of justice requires that judgments be enforced. ... On the other hand, public confidence in the administration of justice requires that judgments be reviewed and errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake.
[24] Justice Arbour then went on to discuss how these two competing principles may be balanced in the public interest:
Ideally judgments should be reviewed before they have been enforced. When this is not possible, an interim regime may need to be put in place which must be sensitive to a multitude of factors including the anticipated time required for the appeal to be decided and the possibility of irreparable and unjustifiable harm being done in the interval. This is largely what the public interest requires to be considered in the determination of entitlement to bail pending appeal.
[25] This statement was cited with approval by my colleague Chipman, J.A. in R. v. Innocente, supra.
To the same effect: R. v. Barry at ¶ 10.
[12] Mr. Cox’s bail application at this late date, since his sentencing on June 18, 2008, is motivated by his wish to assist his family by earning income. His wife and child depend on social assistance and the child tax credit. The interval until the decision of the Court of Appeal on the merits is likely about two months. Mr. Cox has no fixed job but he testified that an acquaintance would give him work on construction projects. He promised that he would abide by any conditions of release.
[13] My difficulty with Mr .Cox's position is that he has said before he would abide by conditions, which he then breached. The breaches involved activity that placed the public at risk. His convictions, before those under appeal, include: escape from lawful custody, driving while disqualified, failure to attend in court, breach of undertaking, breathalyzer, theft, possession of property obtained by crime, and various drug charges. Several of these categories include multiple convictions. When he committed the assaults on Mr. Russell and Ms. Walsh, Mr. Cox had just recently been released from incarceration for an earlier offence and was on probation with conditions to keep the peace and be of good behaviour.
[14] In the past, Mr. Cox's turbulent side has emerged erratically, sometimes incited by substance abuse and notwithstanding his undertakings. Mr. Cox has not satisfied me that, if he was released, this would not recur despite his honest intention now. Repeated breaches of undertaking tend to heighten skepticism on a later bail application. If his misconduct recurred, the public might well be at risk from Mr. Cox's uncontrolled behaviour.
[15] Mr. Cox has not established the condition in s. 679(3)(c). I dismiss the application.
Fichaud, J.A.