



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIntyre, 2018 ONCA 210

DATE: 20180301

DOCKET: M48758

Epstein J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Leon McIntyre

Applicant (Appellant)

Breana Vandebeek, for the applicant

Carmen Elmasry, for the respondent

Heard: February 6, 2018

REASONS FOR
    DECISION

[1]

Following a guilty plea, the applicant was convicted of robbery while
    using a restricted firearm, assault causing bodily harm, possession of a loaded
    restricted firearm when not a holder of an authorization or licence, possession
    of a restricted firearm knowing that he is not the holder of a licence,
    pointing a firearm, dangerous driving and possession of a firearm while
    prohibited. On December 2, 2016 the sentencing judge dismissed the applicants
    challenge to the five-year mandatory minimum sentence in s. 344(1)(a) of the
Criminal
    Code

and sentenced him to six years imprisonment, less credit for
    pre-sentence custody.

[2]

The applicant seeks an extension of time to seek leave to appeal his
    sentence and bail pending appeal. The respondent opposes both. The respondents
    position is that the applicant has not adequately accounted for the delay in
    appealing sentence, that there is no merit in the proposed appeal, and that
    detention of the applicant is necessary in the public interest given the
    serious and violent nature of his offences.

[3]

For the reasons that follow, the application for an extension of time to
    appeal is allowed. The application for release pending appeal is also allowed.

BACKGROUND FACTS

[4]

On August 18, 2014, the victim was in his driveway fixing the door of
    his car. His four-year-old son was on the porch, watching. The applicant and another
    youth came onto the driveway. Their purpose was to steal the car. The applicant
    was armed with a loaded handgun. The applicant ordered the victim to hand over
    the car keys. The victim resisted. A struggle ensued during which the applicant
    hit the victim in the head with the gun and cut the victims finger while
    wrestling the keys from his hand.

[5]

As a result of the struggle, the victim briefly lost consciousness. The
    wound to the victims head required 13 staples. The injury to the victims
    finger left him with permanent impairment to the use of the finger. The victim
    was off work for two months. He continues to suffer effects of the assault,
    including pain while working and while engaging in daily physical activities.

[6]

The two perpetrators drove off with the car. The victims wife and
    neighbours arrived on the scene and notified the police. Two officers noticed
    the applicant, an unlicensed driver, driving the stolen car at a high rate of
    speed in a manner dangerous to the public. The applicant was ultimately
    arrested in a high-risk takedown. The applicant was searched. He was found in
    possession of a handgun loaded with a magazine containing nine rounds of 9mm
    Luger ammunition.

[7]

At the time he pleaded guilty, the applicant had been in custody for 744
    days. The Crown sought a global sentence of six years in jail. Counsel for the
    applicant argued that a two to three year sentence was appropriate. A six year
    sentence was imposed, less credit for time served of 3 years and 21 days. When
    the applicant was sentenced in December, 2016 he had 2 years and 11 months left
    to serve.

ANALYSIS

(1)

Should an Extension of Time to File a Notice of Appeal be Granted?

[8]

It appears that on December 8, 2016, six days after he was sentenced but
    before the reasons dismissing his constitutional challenge were released on
    January 16, 2017, the applicant told his parole officer that he had appealed
    his conviction and sentence. However, he had not filed an inmate notice of
    appeal. The applicant contacted counsel at the law firm of Rusonik, OConnor,
    Robbins, Ross, Gorham, Angelini, LLP in February to retain them to complete an
    opinion letter to Legal Aid. Legal Aid provided a certificate authorizing full funding
    for the appeal on July 7, 2017.

[9]

After acknowledging the legal aid certificate on July 28, 2017, the
    lawyer at the Rusonik law firm who was originally involved in the file was
    delayed in moving the matter forward due to other work-related and personal
    commitments. Early in October 2017 that lawyer asked appellate counsel at the
    firm to take the matter over and bring a bail application to ensure that the
    sentence appeal did not become moot. Affidavits were prepared and were signed
    by the applicant and by his proposed sureties. This took some additional time
    given the applicant was incarcerated in New Brunswick. It was not until early
    December 2017, when counsel began to assemble the materials for the bail
    application, that it was realized that no solicitor or inmate appeal had been
    filed. When the applicant was contacted he advised counsel that he believed the
    notice of appeal had been filed by counsel. All this time counsel believed the
    applicant had filed an inmate notice of appeal.

[10]

This
    motion for bail and for an extension of time to appeal was immediately brought.

[11]

The
    three factors to consider in determining whether to grant an extension of time
    to file a notice of appeal are (i) whether the applicant has shown a
bona
    fide
intention to appeal within the appeal period; (ii) whether the
    applicant has accounted for or explained the delay; and (iii) whether there is
    merit to the proposed appeal:
R. v. Stirling
,
2005 CarswellOnt
    10611 (C.A., In Chambers), at para. 7. Justice Feldman put it this way in
Stirling
,
    Above all, the main consideration is whether the applicant has demonstrated
    that justice requires that an extension of time be granted.

[12]

The
    respondent, quite fairly, concedes that the applicant formed an intent to
    appeal within the requisite time.

[13]

However,
    the respondent submits that the applicant is unable to adequately explain the
    delay in filing the notice of appeal.

[14]

Although
    counsel for the applicant, once retained, should have been more diligent in
    checking the Court of Appeal records to ensure that a notice of appeal had been
    filed, I conclude that the delay has been adequately explained and that the
    justice of the case requires an extension of time.

[15]

Finally,
    the respondent contends there is no merit to the proposed appeal. I will deal
    with this argument in considering whether bail pending appeal should be
    granted, below.

(2)

Should Leave to Appeal Sentence be Granted?

[16]

To
    grant the applicant judicial interim release pending his sentence appeal, I
    must first determine whether he should be granted leave to appeal his sentence:
Criminal Code
,

s.
    679(1)(b);
Criminal Appeal Rules
, SI/93-169, r. 31;
Practice
    Direction Concerning Criminal Appeals at the Court of Appeal for Ontario
,
7.2.11

(March 1, 2017).

[17]

The
    respondent challenges the applicants request for leave on the basis that the
    proposed appeal does not raise viable grounds of appeal. However, in the
    circumstances of this case, I am satisfied that leave should be granted.

[18]

The
    applicant advances two main grounds of appeal: (i) that the sentencing judge
    failed to consider relevant mitigating factors in sentencing, including the
    applicants youth and his significant family dysfunction; and (ii) that the
    judge erred in dismissing the applicants challenge to the constitutional
    validity of the five-year minimum sentence contained in s. 344(1)(a) of the
Code
.

[19]

As
    I will describe below, although I have some concern about the merits of the
    pending appeal  and have factored those concerns into my consideration of the
    bail application that follows  I am satisfied that the appeal is not so devoid
    of merit as to fail the low bar required to obtain leave to appeal sentence. It
    is at least arguable that the sentence is unfit: The Honourable Justice Gary
    T. Trotter,
The Law of Bail in Canada
, 3rd ed. (Toronto: Carswell,
    2010)
,
at 10-38.

[20]

Having
    granted leave, the applicant is entitled to have his bail application
    considered on the merits:
Criminal Code
, s. 679(1)(b).

(3)

Should the Applicant be Released Pending his Appeal?

[21]

Having
    granted the applicant leave, I now turn to determining whether he should be
    granted bail pending his sentence appeal:
Criminal Code
, s. 679(1)(b).
    I may only grant bail if I am satisfied that: (1) the applicants appeal has
    sufficient merit that, in the circumstances, it would cause unnecessary
    hardship if he were detained in custody; (2) he will surrender himself into
    custody in accordance with the terms of the order; and (3) his detention is not
    necessary in the public interest:
Criminal Code
, s. 679(4).
The respondent does not contest the second element
    of the test, so I will focus my analysis on (1) and (2).

[22]

The
    respondent disputes whether the applicant has satisfied the first element,
    which calls for a threshold inquiry into the merits of his pending appeal, and
    an assessment of the hardship the applicant would experience if bail were
    denied:
R. v. Hassan
, 2017 ONCA 1008, at para. 18. The respondent also
    asserts that granting bail pending appeal would be contrary to the public
    interest.

[23]

After
    viewing these factors in conjunction, I have concluded this application should
    be allowed.

[24]

As
    I said in
R. v. Hassan
, at para. 19, the threshold assessment of merit
    mandated by s. 679(4)(a) has been described by some courts as a search for
    arguable merit:
R. v. Ewanchuk
, 2000 ABCA 303, 271 A.R. 118
(C.A.), at paras. 5-6;
R. v. Figiel
, 2015 ABCA 19, 588 A.R. 372
(C.A.), at para. 4. The court asks whether the appeal has some hope or
    prospect of success:
Ewanchuk
,
at para. 5. I also expressed
    the view that the standard established in s. 679(4)(a) is more stringent than
    the test for leave to appeal sentence:
The Law of Bail in Canada
, at
    10-38.

[25]

As
    previously indicated, the applicants sentence appeal relies on two alleged
    errors made by the sentencing judge. First, the applicant submits that in
    imposing sentence the sentencing judge erred by failing to properly take into
    account relevant mitigating factors including the applicants youth and his
    significant family dysfunction. Second, the applicant argues that the judge
    erred in dismissing the applicants challenge to the constitutional validity of
    the five-year minimum contained in s. 344(1)(a) of the
Code
.

[26]

With
    respect to the first argument, the applicant was just months past his 18
th
birthday at the time he committed the offences. He is a black youth who has endured
    significant family dysfunction. The applicant submits that these factors,
    particularly the significant details of his societal circumstances, were not
    properly taken into account by the sentencing judge.

[27]

Although
    I accept the respondents argument that looking at the record as a whole,
    including the sentencing judges references to the pre-sentence report and the
    comments it contains about the applicants dysfunctional background, it is
    clear that the sentencing judge was alive to these factors, I cannot say that
    there is no arguable merit to this ground of appeal, particularly in the light
    of this courts comments in
R. v. Borde
(2003), 63 O.R. (3d) 417
    (C.A.), at paras. 2, 30-33
.
While the sentencing judge summarized some
    of those factors in his reasons, he did not identify them as mitigating factors
    or expressly consider them when determining the appropriate sentence for the
    applicant.

[28]

With
    respect to the second argument, the applicant points out that there has been no
    pronouncement on the constitutional validity of s. 344 of the
Code
by
    this court since
R. v. McDonald
, (1998) 40 O.R. (3d) 63 (C.A.), where this
    court upheld the then four year mandatory minimum sentence for the offence of
    armed robbery. Since that decision was released there have been changes in the
    law that may impact this courts assessment of gross disproportionality. First,
    following
R. v. Nur
, 2015 SCC 15, [2015] 1 S.C.R. 773, constitutional
    challenges can be argued on the basis of reasonable hypotheticals involving the
    best offender. This was not available when
McDonald
was decided.  As
    well, the minimum sentence has been increased by one year to five years,
    something that may prompt a reassessment of the minimum sentence.

[29]

The
    Crown correctly points out that the sentencing judge conducted an analysis of
    the constitutionality of s. 344 of the
Code
, including using
    reasonable hypotheticals and considering this courts decision in
McDonald
.
    However, notwithstanding the sentencing judges thorough reasoning, the five
    year minimum sentence in issue has not been the subject of any review by this
    court. There appears to be at least
arguable
merit to the
    constitutional challenge in the circumstances. Further, the inflationary floor from
    the mandatory minimum sentence is arguably relevant to the applicants
    circumstances: without that inflationary floor, an appropriate sentence may be lower
    than the six years given by the sentencing judge:
R. v. Delchev
,
2014
    ONCA 448, 323 O.A.C. 19, at para. 18.

[30]

In
    my view, an assessment of the merits of the appeal indicates that it has some
    hope or prospect of success, and weighs in favour of granting bail.

[31]

I
    am required under s. 679(4)(a) to consider not only the merits of the
    applicants sentence appeal, but also whether denying the applicant bail
    pending appeal would cause him unnecessary hardship. The two factors are
    inter-related: the weaker the merits of a pending appeal, the harder it will be
    for an applicant to show that hardship caused by continued incarceration is
    unnecessary:
Hassan
,
at para. 32. My above observations
    regarding the merits of this particular appeal therefore weigh in favour of a finding
    of unnecessary hardship.

[32]

The applicant can show unnecessary hardship if he is able to demonstrate
    that his appeal is sufficiently meritorious such that, if judicial interim
    release is not granted, he will have spent more time in custody than what is
    subsequently determined to be fit:
The Law of Bail in Canada
, at 10-39.
    Accordingly, I will therefore consider whether, if the applicant is ultimately
    successful on appeal, it is likely that he will have served more time in
    custody than he ought to have spent.

[33]

The
    applicant appears to have been in custody since his sentencing on December 2,
    2016. He seeks to have his sentence varied to a maximum of three years. If he
    were successful on appeal to this extent, he would be eligible for release now. 
    That is the case as well if this court were to reduce the sentence to four
    years. Even if his sentence were reduced to five years, there would be a risk
    that he will end up serving more time in custody than he ought to have spent.  Particularly
    in the light of the demands of a constitutional challenge, I am not confident
    the appeal can be disposed of on an expedited basis. Consequently, there is a
    real risk that the applicant will have spent more time than necessary in
    custody if he succeeds, or is even partially successful on appeal. In these
    circumstances, the applicants continued detention would cause unnecessary
    hardship.


[34]

However,
    an applicant cannot obtain bail pending sentence appeal simply by pointing
    to possible hardship, such as the appeal being moot by the time it is heard. Section
    679(4)(a) requires an applicant to establish unnecessary hardship. Whether
    potential hardship suffered by the applicant will be unnecessary must be
    determined with reference to the merits of the pending appeal:
The Law of
    Bail in Canada
, at 10-39;
R. v. Johnston
,
2014 NSCA 78,
    349 N.S.R. (2d) 122, at para. 21;
Hassan
, at para. 32. As Bryson J.A.
    explains in
Johnston
, at para. 21:

It is important to emphasize the connection between
    "sufficient merit" and "unnecessary hardship" in s.
    679(4)(a). Some cases give the impression that simply pointing out the mootness
    of appeal, owing to delay, creates unnecessary hardship which satisfies this
    section.
But there is no unnecessary hardship in serving an appropriate
    sentence.
Only if the appellant raises arguable issues can incarceration
    constitute an unnecessary hardship in such circumstances [Emphasis added].

[35]

I
    agree with this passage. It is consistent with the observation in
Hassan
,
    at para. 32, that the weaker the merits of a pending appeal, the harder it
    will be for an applicant to show that hardship caused by continued
    incarceration is unnecessary. As I outlined above, I view both of the applicants
    proposed grounds of appeal as having arguable merit. Accordingly, there is a
    risk of unnecessary hardship such that the protection of the integrity of the
    appellate process militates towards granting bail:
The Law of Bail in
    Canada
,
at 10-39.

[36]

The
    respondent also argues that, in any event, it is contrary to the public
    interest to grant the applicant bail pending appeal. As the respondent points
    out, when release pending appeal is sought the competing interests are
    enforceability and reviewability:
R. v. Oland
,
2017 SCC 17,
    [2017] 1 S.C.R. 250, at paras. 36-49. The respondent submits that in the
    circumstances of this case, the need for enforceability is paramount to
    maintenance of the publics confidence in the administration of justice. This
    submission is based on the violence that the applicant inflicted  injuries to
    the victim, the involvement of a loaded restricted firearm, and the
    traumatization of a child.

[37]

The
    first and third branches of the s. 679(4) analysis overlap to an extent: the
    merits of the appeal are also relevant to the public interest inquiry under s.
    679(4)(a):
The Law of Bail in Canada
,
at 10-38-10-40. For the
    reasons articulated above, this militates in favour of granting bail. Further, although
    the offence at issue is undeniably serious, the applicant is a first time
    offender who was 18 at the time of sentence and has already served several
    years custody. Accordingly, in my view the public interest favours granting
    bail in the circumstances.

[38]

Here,
    given my conclusion that both grounds of appeal have some merit, that the
    hardship the applicant would suffer qualifies as "unnecessary" due to
    the potential mootness of the appeal, and my related conclusion that the
    applicants continued detention is not necessary in the public interest,  the requirements
    of s. 679(4) have been satisfied.

DISPOSITION

[39]

For these reasons, the application is allowed.
    The applicant is to be released on the terms contained in the draft release
    order filed with me at the time of the hearing of this application.

Gloria Epstein J.A.


