



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bagherzadeh, 2020 ONCA 599

DATE: 20200921

DOCKET:
M51766
    (C67575)

Hourigan
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Nick Bagherzadeh

Applicant/Appellant

Alexander Ostroff, for the appellant

Kevin Rawluk, for the Crown

Heard: September 18, 2020

REASONS
    FOR DECISION

(a)

Introduction

[1]

On April 26, 2018, the appellant was convicted
    of second degree murder and aggravated assault. He was sentenced on June 26,
    2018 to life imprisonment with a 10 year parole ineligibility on the second
    degree murder conviction and received a concurrent sentence of three years
    incarceration on the aggravated assault conviction. The appellants bail was
    revoked on his conviction and he has been incarcerated since that time. He now brings
    this application for bail pending appeal.

[2]

The Crown opposes the
    application on the public interest criterion. For the reasons that follow, the
    application is dismissed.

(b)

Analysis

[3]

There are two
    components to the public interest criterion: public safety and public
    confidence in the administration of justice:
R. v. Oland
, 2017 SCC 17,
    at para. 23.  The focus of the argument was on the latter component.

[4]

In analyzing the public
    confidence component of the public interest criterion the court balances two

competing interests: reviewability and
    enforceability. Achieving this balance mandates a judicial assessment of, on
    the one hand, the need to review the conviction leading to imprisonment, and on
    the other, the need to respect the general rule of immediate enforceability

of

judgments:
Oland
, at

paras.

25-26. Rarely does the public interest
    component play a role, much less a central role, in the decision to grant or
    deny bail pending appeal:
Oland
, at para. 29.

[5]

The enforceability
    interest will often outweigh the reviewability interest when a person convicted
    of a very serious offence advances weak grounds of appeal:
Oland
, at
    para. 50. On

the

other

hand,

when

public

safety

or

flight

risk

concerns

are

negligible

and the

grounds

of

appeal

clearly

surpass the

not

frivolous

criterion,

the

reviewability

interest may favour release, even for
    murder or other serious offences:
Oland
, at para. 51.

[6]

The appellant submits
    that there is a strong reviewability interest in this case because he is not a
    threat to public safety, has a strong plan of release, and the merits of his
    appeal clearly

surpass

the

not

frivolous

criterion. The Crowns position is that the need for
    enforceability is paramount because of the serious nature of the offences and
    weak grounds of appeal.

[7]

It is common ground
    among the parties, and I agree, that the grounds of appeal asserted are not
    frivolous. However, in my view, the grounds do not clearly

surpass the

not

frivolous

criterion.

[8]

Two primary grounds of
    appeal are asserted. The first is that the trial judge erred in not instructing
    the jury on provocation. This is a challenging argument given that the
    appellants counsel expressly advised the court in the pre-charge conference
    that he did not believe there was a factual foundation for provocation and much
    of the appellants evidence was to the effect that during the incident that led
    to the charges he used measured force to defend a friend.

[9]

The second ground of
    appeal is that the trial judge erred in not declaring a mistrial and instead
    providing a correcting instruction. It is well established that a mistrial is a
    remedy of last resort and that appellate deference is owed to the discretionary
    decision of a trial judge about whether a mistrial order is appropriate. 
    Moreover, the appellant has not identified any error in principle made by the
    trial judge in the exercise of her discretion.

[10]

The lengthy sentence
    imposed is also a significant factor. There is no chance that the appellant
    will serve a significant part of it prior to the appeal being heard.  I am also
    advised that the transcripts have been completed and thus there is no reason
    why this appeal cannot be heard in the next few months.

[11]

Balanced against the
    weak grounds of appeal, serious convictions and lengthy sentence, is the fact
    that the appellant is not a flight risk and is not a threat to public safety. I
    conclude that the balance favours the enforceability criterion and the
    appellant has not met his onus of establishing that detention is not necessary
    in the public interest.

(c)

Disposition

[12]

The application is
    dismissed.

C.W. Hourigan J.A.


