



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hewitt, 2018 ONCA 293

DATE: 20180323

DOCKET: M48770 (C64079)

Brown J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

Amanda Hewitt

Appellant (Moving Party)

Robert J. Reynolds, for the moving party, appearing via videoconference

Avene Derwa, for the responding party

Heard: March 20, 2018

REASONS FOR DECISION

OVERVIEW

[1]

On June 19, 2017 the appellant, Amanda Hewitt, pleaded guilty to and was
    convicted of one count of weapons trafficking contrary to s. 99(1)(a) of the
Criminal
    Code
. The facts read in by the Crown, which were accepted by the
    appellant, stated that she had sold nine firearms to a police agent, including
    shotguns and rifles.

[2]

As a result of a joint submission, on June 21, 2017 the appellant was
    sentenced to the mandatory minimum sentence of three years incarceration:
Criminal
    Code
, s. 99(2)(b).

[3]

On February 16, 2018 Miller J.A. granted the appellant leave to appeal
    her sentence. The appellant will argue that the mandatory minimum sentence for
    the offence contravenes s. 12 of the
Canadian Charter of Rights and
    Freedoms
.

[4]

Her appeal is set for hearing on June 18, 2018.

[5]

The appellant seeks judicial interim release pending the hearing of her
    appeal. The Crown opposes. However, if judicial interim release is granted, the
    parties have agreed on the terms of release.

[6]

For the reasons that follow, the application for interim release is
    dismissed.

ANALYSIS

[7]

The Crown submits the appellant has not established that her appeal has
    sufficient merit to warrant release. The Crown also opposes the application on
    the basis the appellant has not established that her detention is not necessary
    in the public interest.

The merits of the appeal

[8]

In granting leave to appeal her sentence, Miller J.A. concluded her
    appeal was arguable. Although the appellant had not challenged the
    constitutionality of the mandatory minimum sentence below, Miller J.A. stated:

Although an appellate court will generally not entertain a
    constitutional argument on appeal that was not argued below, it has a
    discretion to do so. In my view, it is arguable that the discretion be
    exercised in circumstances where a provision of the [
Criminal Code
]
    has been found to be constitutionally infirm in previous judgments and no one
    brought this to the attention of the sentencing judge.

Although the Crown argues that the appellant could not benefit
    from the invalidation of the mandatory minimum in any event, this is not
    self-evident, and what constitutes a fit sentence may be impacted by the fresh
    evidence that Mr. Reynolds has assembled.

There is an arguable basis for the appeal and I am satisfied
    that leave to appeal sentence should be granted.

[9]

When considering whether to grant bail pending a sentence appeal under
    section 679(4)(a) of the
Criminal Code
, the court considers whether
    the appellant has established that the appeal has sufficient merit that, in
    the circumstances, it would cause unnecessary hardship if he were detained in
    custody.

[10]

As
    Justice Trotter notes in
The Law of Bail in Canada
, loose-leaf
    (2017-Rel. 2),
3d ed. (Toronto: Carswell, 2010),
at pp. 10-39 to 10-40, the link in s. 679(4)(a) between sufficient merit and
    unnecessary hardship is inextricable: The applicant must demonstrate that the
    appeal is sufficiently meritorious such that, if the accused is not released
    from custody, he/she will have already served the sentence as imposed, or what
    would have been a fit sentence, prior to the hearing of the appeal. It prevents
    the applicant from serving more time in custody than what is subsequently
    determined to be appropriate. As he observes: This balancing of factors in s.
    679(4)(a) strikes a familiar chord. It is reminiscent of the tension between
    enforceability and reviewability embodied in the public interest.

[11]

The
    appellant argues that the reviewability interest should prevail in the circumstances
    of this case. She points to the decision of the Supreme Court of Canada in
R.
    v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, where, in the context of its
    discussion of the public interest in s. 679(3)(c), the court stated, at para.
    48: Where it appears that all, or a significant portion, of a sentence will be
    served before the appeal can be heard and decided, bail takes on greater
    significance if the reviewability interest is to remain meaningful.

[12]

The
    appellant was sentenced to three years imprisonment on June 21, 2017. By the
    time the appellants appeal is heard, she will have served almost a full year
    in custody. Her statutory release date is February 19, 2019. Her warrant expiry
    date is December 20, 2019.

[13]

The
    appellant submits that in the event her sentence appeal is granted and the
    panel concludes the three year sentence was not fit and reduces it, she risks
    serving more time in custody than would otherwise be required. She contends
    that should her appeal be granted, a fit sentence would have been 12 to 18
    months in custody.

[14]

I
    am not persuaded by the appellants submission.

[15]

First,
    although not determinative, I would observe that the appellant was eligible for
    day parole on December 21, 2017. However, her day parole hearing will not be until
    June 2018. Although the evidence is less than clear on the point, it appears
    the appellant delayed in applying for day parole. As well, the appellant will
    be eligible for full parole on April 21, 2018 but she has waived her full
    parole hearing.

[16]

Second,
    there is no dispute between the parties that a fit sentence for this offence
    could include a term of imprisonment in a penitentiary. If her sentence appeal
    is granted, the appellant plans to submit that several mitigating factors
    involving her background should result in a sentence of less than two years.

[17]

However,
    on its part the Crown intends to argue that a relevant aggravating factor was
    the appellants conviction on April 4, 2017 for another weapons offence - the
    unauthorized possession of a prohibited or restricted weapon contrary to s.
    91(2) of the
Criminal Code
.

[18]

As
    a result, the appellant has not persuaded me that it is more probable than not
    that a successful sentence appeal would result in a significantly lower
    sentence than that imposed at trial. Of course, I reach this conclusion based
    on the record before me. The panel will have the benefit of a more fulsome
    record.

[19]

While
    the appellants appeal has arguable merit, I am not satisfied it has sufficient
    merit such that it would cause unnecessary hardship if she were detained in
    custody within the meaning of s. 679(4)(a).

The public interest

[20]

The
    Crown also opposes the application on the basis the appellant has not
    established that her detention is not necessary in the public interest.

[21]

The
    public interest criterion in s. 679(3)(c) of the
Criminal Code
consists of two components: public safety and public confidence in the
    administration of justice:
Oland
, at para. 23. Section 679(4)(c),
    which applies to sentence appeals, contains identical wording to s. 679(3)(c).

[22]

Two
    factors relevant to the public interest criterion are raised on the record.

[23]

First,
    the appellant was detained in custody until her trial on the tertiary ground.
    On consent, she was released for the two days between her conviction and sentencing
    so that she could put her affairs in order. As a basic principle, bail should
    not be more readily accessible for someone who has been convicted of a crime
    than for someone who is awaiting trial and is presumed innocent:
Oland
,
    at para. 33. In the present case, this factor weighs towards enforceability.

[24]

Second,
    the public safety component of the public interest criterion tracks the
    secondary ground requirements governing an accuseds release pending trial:
Oland
,
    at para. 24. Even where public safety concerns fall short of the substantial
    risk mark, they will remain relevant under the public confidence component and,
    in some cases, can tip the scale in favour of detention:
Oland
, at
    para. 39.

[25]

The
    Crown has adduced an email from the appellants parole officer in which she
    expresses the opinion that at this time the appellants risk is not manageable
    on a day parole release as she has not sufficiently addressed/mitigated her
    risk factors. The Crown has also put forward evidence that at the time of the
    appellants arrest on the charge to which she pled guilty, she was out of
    custody on another charge on a promise to appear that contained the condition
    she not be found in possession of any weapons. Combined, this evidence raises a
    public safety concern that points toward enforceability.

[26]

Accordingly,
    the appellant has not persuaded me that her continued detention is not necessary
    in the public interest:
Criminal Code
, s. 679(4)(c).




DISPOSITION

[27]

For
    the reasons set out above, I dismiss the application. It is, of course, open to
    the appellant to renew her application before the panel in three months time
    in the event the panel reserves its decision.

David Brown J.A.


