



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Theriault, 2021 ONCA 554

DATE: 20210730

DOCKET: M52670 (C68671)

Thorburn J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Michael
    Theriault

Applicant (Appellant)

Michael W. Lacy and Deepa Negandhi, for the applicant

Susan Reid, for the respondent

Heard: July 23, 2021, by
    videoconference

ENDORSEMENT

OVERVIEW

[1]

The applicant, Michael Theriault, seeks bail pending the determination
    of his application for leave to appeal to the Supreme Court of Canada. He seeks
    leave to appeal both his conviction for assault and his sentence of nine
    months imprisonment.

[2]

He claims he meets the test for granting bail as his appeal is not
    frivolous, he will surrender when required, and the public interest favours
    granting him bail pending determination of his application for leave to appeal
    to the Supreme Court.

[3]

In seeking bail, the applicant focuses on three main grounds of appeal
    raised in his leave application from this courts endorsement of the trial
    judges decision:

1.

the trial judge erred in his use of social context and systemic racism
    to inform credibility assessments and increase the range of sentence;

2.

the trial judge erred in his finding with respect to the way a door or
    window was damaged; and,

3.

the trial judge erred in holding that simple assault is a lesser and
    included offence of aggravated assault.

[4]

The Crown claims these grounds of appeal are frivolous and the
    applicants continued detention is in the public interest and that he should therefore
    remain in detention.

[5]

For the reasons that follow, the application for bail is denied.

THE EVIDENCE AT TRIAL

[6]

The circumstances giving rise to the charges before the trial judge are
    as follows: The applicant is a Toronto police officer. While he was off duty,
    he chased and struck the complainant  Dafonte Miller, a young Black man 
    leaving him permanently blind in one eye.

[7]

The complainant testified that the applicant chased and struck him for
    no reason.

[8]

The applicant testified that, after seeing the complainant and his
    friends break into a vehicle on his parents property, he and his brother gave
    chase. They caught the complainant and body checked him. He claimed that the
    complainant then began to hit him with what he later learned was an aluminum
    pipe. He, in turn, punched the complainant in the face to disarm him. The
    applicant denied using the pipe to strike the complainant.

[9]

The trial judge rejected the complainants account that the applicant
    chased and struck him for no reason, noting that the complainant attempted to
    proffer a false version of events and perjured himself. He found his testimony
    internally inconsistent and contradicted by physical evidence. Instead, the
    trial judge accepted the applicants testimony that the complainant was
    breaking into cars and fled to avoid being apprehended. He also accepted that
    the complainants injury was likely caused by being punched and he had a
    reasonable doubt as to whether the punch was in self-defence.

[10]

The
    applicant was therefore acquitted of aggravated assault.

[11]

However,
    the trial judge did not believe the applicants evidence that he did not hit
    the complainant with the pipe. Instead, he concluded that, at the end of the
    struggle, the applicant struck the complainant in the head with the pipe as he
    sought assistance at a nearby house. The applicant could not have been acting
    in self-defence at the time. He was therefore convicted of assault.

[12]

In
    so doing, the trial judge held that the complainants evidence on this issue
    could be relied on notwithstanding that he perjured himself, because his
    evidence could be corroborated in several respects and, as a young Black man,
    he might have reasons to distrust law enforcement.

THE TEST FOR BAIL PENDING LEAVE TO APPEAL TO THE SUPREME COURT

[13]

The
    test for bail pending determination of an application for leave to appeal to
    the Supreme Court is governed by s. 679(3)(a) to (c) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. The applicant must establish that: (a) the application
    for leave is not frivolous, (b) the applicant will surrender into custody as
    required, and (c) detention is not necessary in the public interest.

[14]

The
    applicant bears the burden of establishing each of the three itemized release
    considerations on a balance of probabilities before an interim judicial release
    order may be made:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at
    para. 19.

[15]

In
    an application for post-appeal bail pending leave such as this, the court not
    only has the benefit of the first-instance decisionmakers reasons for
    conviction and sentence but also the decision of the panel that rejected what
    are presumably the applicants best arguments in seeking a further appeal
    against that conviction and sentence. However, even in these circumstances,
    reasonable measures should be taken to ensure the applicant is not deprived of
    the benefits of a successful second appeal, particularly where he will have
    served all or almost all of his sentence before the appeal is adjudicated:
R.
    v. Manuel
, 2021

ABCA 187, at paras. 48-49.

[16]

There
    is no concern about the applicant surrendering himself into custody as
    required. He has therefore satisfied the criterion in s. 679(3)(b). The only
    issues to be addressed therefore are (1) whether the application for leave is
    frivolous and (2) whether detention is necessary in the public interest.

DISCUSSION

(1)

Is the application for leave to appeal not frivolous?

[17]

As
    noted above, the applicant raises three issues in this bail application that he
    says makes his application for leave not frivolous.

[18]

Before
    addressing these issues, it is important to recall the principles governing the
    consideration of the not frivolous criterion. There is no dispute that, as
    the Supreme Court observed in
Oland
, at para. 20, the not frivolous
    criterion sets a very low bar. The purpose of this criterion is to require
    the applicant to demonstrate that the leave application has some merit such
    that the appellate process is not abused by those attempting to forestall the
    execution of a custodial sentence: see
R. v. T.S.D.
, 2020 ONCA 773, at
    para. 24.

[19]

Although
    the not frivolous criterion is not a high threshold, its consideration at
    this stage of the proceedings must take account of the stringent requirements
    for obtaining leave to appeal to the Supreme Court: see, e.g.,
R. v.
    Boussoulas
, 2018 ONCA 326, at para. 14;
Manuel
, at para. 30; and
R.
    v. Boima
, 2018 BCCA 498, at para. 18. The Supreme Court grants leave to
    appeal sparingly:
R. v. Fundi
, 2012 ONCA 227, at para. 8. The
    assessment of whether the application for leave to appeal is not frivolous is
    informed by this context.

[20]

Bearing
    these principles in mind, I consider each of the applicants three grounds of
    appeal. The first is the trial judges use of social context in assessing the
    complainants credibility and in sentencing the applicant.

(a)

Use of social context in assessing credibility and sentencing

[21]

In
    reviewing the complainants evidence, the trial judge held that as a young
    black man, Mr. Miller may well have had many reasons for denying any wrongdoing
    including a distrust of law enforcement. He noted that the complainants
    evidence should be assessed in a fair context and with a sensitivity to the
    realities that racialized individuals face in society.

[22]

Further,
    in deciding what an appropriate sentence would be, he held that a heightened
    degree of denunciation was required because of increasing awareness of
    anti-Black racism and that sentences must evolve in tandem with developing
    societal values.  He imposed a nine-month sentence for assault.

[23]

In
    affirming the trial judges conviction, this court held that:

[I]t is incumbent on trial judges
    to consider relevant social context, such as systemic discrimination, when
    making credibility assessments.

[24]

In
    affirming the sentence, this court held that:

As our society comes to grips with
    disproportionate rates of police violence against Black people, it is integral
    that the need for denunciation of crimes that are emblematic of these broader
    social patterns develops accordingly.

[25]

The
    applicant argues that this reasoning is flawed as it suggests that:

[I]t would amount to legal error for a trial judge to fail to
    consider relevant social context, including systemic racism, when making
    credibility assessments. What the decision does not unpack is how a trier of
    fact is to do so? Does it mean that when a racialized person is testifying,
    their evidence is to be assessed differently than non-racialized persons? Do
    normal credibility indicators need to be abandoned, adapted or reconsidered?
    What about standard jury instructions involving credibility assessments? What
    are juries to be told?

The decision has the potential to
    impact and affect credibility assessments not only for victims of violent crime
    (as the Court concluded Mr. Miller was) but also any racialized accused person
    alleged to have committed a crime who testifies. [Footnote omitted.]

[26]

The
    applicant claims that the use of social context in assessing credibility and
    determining an appropriate sentence is an issue of public importance that
    transcends the circumstances of this case, given that this was not a racially
    motivated crime. As such, there is a reasonable chance the applicant will be
    granted leave to appeal to the Supreme Court on this issue.

[27]

I
    disagree.

[28]

This
    courts assertion that it is incumbent on trial judges to consider relevant
    social context, such as systemic racism, when making credibility assessments
    has been addressed by the Supreme Court in
R. v. Le
, 2019 SCC 34,
    [2019] 2 S.C.R. 692. The issue is not a new one.

[29]

In
Le
, at para. 89, the court held that:

[I]nformation about race and
    policing plays a crucial role and may also inform many issues, including fact
    finding, credibility assessments, determining what evidence is accepted as
    persuasive.

[30]

Triers
    of fact are routinely instructed to consider whether there is any explanation
    for evidence proffered and whether it makes sense. The standard jury
    instructions state that, in addition to factors such as honesty and a witness
    interest in the case, other case-specific factors may be added.

[31]

The
    trial judge considered social context but he did not invoke social context to
    accept the complainants evidence and excuse any inconsistences because the
    complainant was Black; he rejected significant aspects of the complainants
    version of events and only relied on those aspects that were confirmed by
    independent evidence.

[32]

As
    noted by this court, the trial judge found that the complainants evidence as
    to what happened during the assault was independently supported by several
    pieces of evidence, including a scrape on the glass of the front door, the
    complainants blood on the end of the pipe, and the applicants admission that he
    brandished the pipe.

[33]

The
    statement from this court was that it is incumbent on trial judges to consider
relevant
social context (emphasis added) when
    making credibility assessments. This does not mean that credibility indicators
    need to be abandoned, but merely reflects the existing obligation on triers of
    fact to consider all relevant factors that may affect the credibility and/or
    reliability of a witness testimony. This statement is entirely consistent with
    the earlier statement of the Supreme Court in
Le
, set out above, that
    social context plays a crucial role and may also inform many issues, including
    fact finding, credibility assessments, [and] determining what evidence is
    accepted as persuasive.

[34]

Turning
    to the role of social context in sentencing, defence counsel conceded in his
    sentencing submissions at trial that the court could take judicial notice of
    the problematic issue of interactions between police and Black youth. The trial
    judge concluded that the case called for a heightened degree of denunciation
    given the social context and the importance of denunciation as a collective
    statement of societal values, including increased awareness of anti-Black
    racism. However, he also held that:

I remain mindful of the need to
    maintain proportionality.  While the sentence I impose must reflect the need
    for denunciation, the sentence must ultimately remain proportionate to the
    gravity of the offence and the offenders degree of moral responsibility.  The
    gravity of the offence must be assessed against the contextual backdrop,
    however, the sentence imposed cannot be disproportionate in an attempt to right
    past societal or systemic failings.

[35]

General
    and specific denunciation and deterrence are two factors that must be taken
    into account in sentencing in this case. The trial judge balanced the need for
    denunciation and deterrence with the need to impose a sentence that was
    proportionate to the offence and the offender. There is no clear range of
    sentence that reflects these circumstances, the cases referred to by the
    defence at trial are dated and distinguishable, and there is no reason to
    conclude the sentence was unfit.

[36]

Lastly,
    in assessing whether a ground of appeal raised in application for leave is not
    frivolous, the court must consider the stringent requirements for leave to the
    Supreme Court. Speaking extrajudicially, Sopinka J. observed that one
    consideration in the determination of public importance is whether the question
    is germane to the disposition of the case: see Henry S. Brown
et al.
,
Supreme Court of Canada Practice
(Toronto: Thomson Reuters Canada Ltd.,
    2020), at s. 1.2 (WL), quoting John Sopinka, The Supreme Court of Canada
    (April 10, 1997).

[37]

Important
    issues such as social context must therefore be examined in the context of the
    evidence adduced in a particular case. If there is little or no prospect that
    the findings or the outcome will be altered in a given case, leave to appeal
    may be denied regardless of the fact that issues of public importance are
    addressed in the case.

[38]

For
    these reasons, the applicant has not satisfied me that his ground of appeal
    impugning the trial judges use of social context is not frivolous.

(b)

Misapprehension of evidence or finding corroboration where none exists

[39]

The
    second ground of appeal the applicant raises is the claim that the trial judge
    misapprehended the evidence and/or improperly found corroboration where none
    existed.

[40]

The
    applicant raises several issues in the trial judges findings, affirmed by this
    court. For example, the applicant claims that the trial judge improperly
    concluded that certain damage was caused by the aluminum pipe in the absence of
    expert evidence or any witness having attested to the same.

[41]

This
    court held that:

[I]t was within the trial judges discretion, as the trier of
    fact, to reject defence counsels theory. The trial judge found that a hand or
    fist would not have caused the gouge/scrape in the glass, whereas, it would
    have been caused by contact with the edge of a metal pipe. While this finding
    was neither supported by any expert evidence, nor expressed by any of the
    witnesses, it nevertheless rested on common sense. This non-technical matter
    did not require expert evidence as it was within the knowledge and experience
    of the ordinary person and trier of fact:
R. v. Mohan
, [1994] 2 S.C.R.
    9, at pp. 23-25.

[42]

The
    applicant properly acknowledges that this type of argument is not one that the
    [Supreme] Court would normally grant leave on but claims that the supposed
    misapprehensions are inextricably linked to the trial judges approach to the
    credibility assessment generally.

[43]

In
    my view, the factual arguments raised by the applicant add little to the
    credibility-based ground of appeal, which I have already discussed.

[44]

This
    ground of appeal also does not meet the not frivolous threshold and the
    applicant has therefore not satisfied the requirement in s. 679(3)(a) on this
    ground.

(c)

Whether assault is a lesser and included offence of aggravated assault

[45]

The
    third issue raised by the applicant is whether assault is a lesser and included
    offence of aggravated assault. The charge was that on or about

December
    28, 2016, he did wound, maim and/or disfigure Dafonte Miller, thereby
    committing an aggravated assault.

[46]

The
    trial judge acquitted the applicant of aggravated assault because he concluded
    that the injury to the complainants eye was caused by a punch not by being
    struck by a pipe and that,

[W]hen I
    consider the whole of the evidence, I am left with reasonable doubt about
    whether Michael and Christian Theriault were acting in lawful self-defence
    during this portion of the incident
. If Mr. Miller initially wielded the
    pipe, Michael and Christian would have been entitled to act in self-defence by
    repeatedly punching Mr. Miller to disarm him and thereafter to prevent him,
    within reason, from engaging in any further assaultive conduct. [Emphasis
    added.]

[47]

He
    therefore acquitted the applicant of aggravated assault.

[48]

He
    held, however, that he was satisfied beyond a reasonable doubt that later in
    the transaction, the applicant was no longer acting in self-defence when he
    struck the complainant with the pipe, although it caused no injury. He
    therefore convicted the applicant of simple assault.

[49]

The
    trial judge was later asked to reopen the case to address the issue of whether
    the conviction for assault was a lesser and included offence of aggravated
    assault:
R. v. Theriault
, 2020 ONSC 5725. In dismissing the
    application, he rejected the applicants assertion that the assault was not a
    lesser and included offence for the following reasons:

[Defence counsel] argues that once the defence admitted that
    Mr. Millers injuries constituted wounding, maiming or disfiguring, the
    only issue for the court to determine was whether those injuries were the
    result of an assault committed without any justification or excuse. As such,
    the simple assault that Michael Theriault was found guilty of committing later
    in the altercation was not a lesser and included offence of the
specific
aggravated
    assault that was charged and was the subject of the trial. Boiled down to its
    essence, the argument is that Michael Theriault was found guilty of an offence
    that fell outside the transaction contemplated by the indictment, the
    procedural history and the admissions.

This argument is also without
    merit.
The count in the indictment was not particularized
    in any fashion. It simply alleged an aggravated assault. The transaction that
    sat at the core of the Crowns case was a beating of Mr. Miller by Michael and
    Christian Theriault. The beating was comprised of many individual blows
    delivered by both accused. The beating started when Mr. Miller ran in-between
    the homes and ended once police arrived and found Mr. Miller on the ground. The
    issue the court had to determine was whether some, none or all of the blows
    during this incident amounted to unlawful assaults and if so, whether it was
    proven beyond a reasonable doubt that the injuries Mr. Miller suffered were
    caused by these assaults.
[Italics in original; underlining added.]

[50]

This
    court upheld the verdict on the basis that the assault was part of the same
    transaction as the aggravated assault and therefore was a lesser and included
    offence. This court has previously taken this approach in similar
    circumstances: see
R. v. Rocchetta
, 2016 ONCA 577, 352 O.A.C. 130.

[51]

In
    seeking leave to appeal, the applicant claims there is competing appellate
    authority on the issue of what constitutes a lesser and included offence and
    that the approach of the majority in
R. v. Taylor
(1991), 66 C.C.C.
    (3d) 262 (N.S.S.C. App. Div.), should be preferred and would lead to his
    acquittal for assault.

[52]

Relying
    on
Taylor
, the applicant argues that his conviction for assault was
    not part of the same transaction as the charge of aggravated assault and
    therefore cannot be a lesser and included offence.

[53]

I
    disagree.

[54]

Section
    581(1) of the
Criminal Code
provides that each count in an indictment
    applies to a single transaction.

[55]

Simple
    assault is the intentional non-consensual application of force:
Criminal
    Code
, s. 265(1)-(2);
Canadian Foundation for Children, Youth and the
    Law v. Canada (Attorney General)
, 2004 SCC 4, [2004] 1 S.C.R. 76, at para.
    1.  Aggravated assault is the intentional non-consensual application of force
    that wounds, maims, disfigures or endangers the life of the complainant:
Criminal
    Code
, s. 268(1). The only distinguishing feature of aggravated assault is
    the element of wounding, maiming, disfiguring, or endangering the life of
    another person assaulted.

[56]

The
Taylor
decision is dated and has since been distinguished by this
    court in
Rocchetta
, at paras. 49-50, for the following reasons:

The majority [in
Taylor
] in considering whether those
    two events were part of the same transaction, framed the issue this way, at p.
    269: The question is raised whether an accused can be convicted under s.
    267(1)(b) of an assault not causally connected with the bodily harm. The
    majority answered the question in the negative observing that the only assault
    included in the allegation of assault bodily harm was the assault that was
    alleged to have caused the bodily harm.

With
    respect, the majoritys approach fails to distinguish between the acts to be
    proved to establish the offence as charged and the transaction referred to in
    the charge.
The latter describes an event or a series of events. The
    former refers to the essential element of the charge. Proof of bodily harm was
    an essential element of the full offence charged in
Taylor
.
The allegation of bodily harm did not, however, necessarily
    limit the scope of the transaction referred to in the allegation to the assault
    that caused the bodily harm
. The scope of the charge depended on the
    wording of the charge and the evidence describing the circumstances of the
    alleged offence. A single transaction alleging an assault causing bodily harm
    can encompass the
actus reus
of more than one assault.
Liability for the included offence of common assault is
    established if the Crown proves a common assault that occurred within the terms
    of the transaction referred to in the charge
. [Emphasis added.]

[57]

This
    definition of a single transaction is consistent with the observation in
R.
    v. Manasseri
, 2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 73, leave to
    appeal refused, [2016] S.C.C.A. No. 513, that a single transaction can include
    circumstances that are successive and cumulative and which comprise a series
    of acts that are sufficiently connected. It has been followed by this court on
    several occasions: see, e.g.,
R. v. Kenegarajah
, 2018 ONCA 121, at
    paras. 30-32, leave to appeal refused, [2018] S.C.C.A. No. 472;
R. v.
    Schoer
, 2019 ONCA 105, 371 C.C.C. (3d) 292, at para. 62. It has also been
    followed by courts across Canada: see, e.g.,
Drouin c. R.
, 2020 QCCA
    1378, at para. 219, leave to appeal refused, [2020] S.C.C.A. No. 465 (
Lafortune
),
    and [2020] S.C.C.A. No. 468 (
Amato
);
R. v. James
, 2021 BCSC
    1408, at para. 83.

[58]

By
    contrast, the reasons of the majority in
Taylor
have not been followed
    to any appreciable extent, despite being rendered twenty-five years prior to
Rocchetta
.

[59]

Moreover
    and in any event, the majority in
Taylor
, accepted that [a]
    transaction may and frequently does include a series of occurrences extending
    over a length of time: at p. 270, quoting
R. v. Barnes
(1975), 26
    C.C.C. (2d) 112 (N.S.S.C. App. Div.), at p. 119, quoting
R. v. Canavan and
    Busby
, [1970] 5 C.C.C. 15 (Ont. C.A.), at p. 18, leave to appeal refused,
    [1970] S.C.R. viii.

[60]

The
    majority in
Taylor
, at p. 270, quoted with approval the reasons in
Barnes
,
    at p. 125, where the same court held that:

In considering
the validity of a
    charge  whether it is or is not duplicitous or multifarious or
whether it does or does not apply to a single transaction 
    the wording, scope, and nature of the charge (and its particulars, if any) are
    what must be tested
. Thus, so long as evidence is directed to the
    continuing offence contained in the charge, the validity of that charge is not
    affected by the fact, on the one hand, that two or more acts or occurrences
    falling within the ambit of the charge are proved or, on the other hand, that
    some of the acts or occurrences alleged are not proved. [Emphasis added.]

[61]

It
    is clear that where assaults occur in the course of a single transaction, a
    charge of aggravated assault can encompass the
actus reus
of more than
    one instance of non-consensual application of force by the accused, including a
    lesser and included offence of assault.  I do not read
Taylor
to
    suggest otherwise.

[62]

In
    this case, the indictment is not particularized except by indicating that an aggravated
    assault took place on the day in question.

[63]

The
    transaction that sat at the core of the Crowns case was a beating of the
    complainant on the day in question. The trial judge found as a fact that there
    was a consistent and sustained attack on the complainant over a short period.
    The Crown took the position from the outset that the attacks on the complainant
    were connected and occurred in the course of a single transaction.

[64]

The
    only issue at trial was whether some, all or none of the blows during this
    transaction on the day in question amounted to unlawful assaults and if so,
    whether it was proven beyond a reasonable doubt that the injuries the
    complainant suffered were caused by these assaults.

[65]

In
    my view therefore, there is no serious issue as to whether simple assault is a
    lesser and included offence of aggravated assault in this charge, as the
    assault is part of the same transaction.

[66]

For
    these reasons, I find that, as with the first two grounds of appeal, this final
    ground of appeal also does not meet the not frivolous threshold.

(2)

Is detention not necessary in the public interest?

[67]

The
    applicant argues that his continued detention is not necessary in the public
    interest, given the strong grounds of appeal raised in his application for
    leave to appeal and the likelihood that he will serve a substantial portion of
    his sentence prior to any determination of the application.

[68]

I
    am not satisfied, however, that his detention is not necessary in the public
    interest.

[69]

The
    meaning of public interest in the context of post-conviction bail
    applications was described by Arbour J.A., for a five-judge panel, in
R. v.
    Farinacci
(1993), 109 D.L.R. (4th) 97 (Ont. C.A.), at p. 118:

The concerns reflecting public
    interest, as expressed in the case-law, relate both to the protection and
    safety of the public and to
the need to maintain a
    balance between the competing dictates of enforceability and reviewability
. 
    It is the need to maintain that balance which is expressed by reference to the
    public image of the criminal law, or the public confidence in the
    administration of justice.  [Emphasis added.]

[70]

The
    parties agree that there is no public safety concern with releasing the
    applicant, but dispute whether, in balancing the enforceability and
    reviewability interests, the applicants release would undermine public
    confidence in the administration of justice. The court in
Oland
, at
    para. 29, underscored that [r]arely does [the public confidence] component
    play a role, much less a central role, in the decision to grant or deny bail
    pending appeal.

[71]

As
    noted by Doherty J.A. in
R. v. Drabinsky
, 2011 ONCA 647, 276 C.C.C.
    (3d) 277, at para. 11: At this stage of the proceedings [where conviction and
    sentence have been affirmed without further right of appeal], the principle
    that trial judgments should be enforced is very much in play while the
    operation of the reviewability principle is contingent upon the granting of
    leave to appeal: see also
Boussoulas
, at para. 22. The seriousness of
    the offence and the strengths of the grounds of appeal are among the most
    important factors in assessing reviewability and enforceability:
Oland
,
    at paras. 37-46.

[72]

If
    reviewability is not considered, a successful appeal could be rendered
    fruitless. This is particularly true in cases such as this, where the custodial
    sentence is nine months. Taking into account earned remission, the applicant
    can reasonably be expected to be released from custody at the latest after
    serving two thirds of his sentence, i.e. six months. Moreover, he will be
    eligible for parole after serving just one third of the sentence, i.e. three
    months. If his leave application is determined in three to six months, the
    applicant may have served most of his time before the leave application is
    determined.

[73]

On
    the other hand, it is also important to consider the enforceability interest
    and the finality principle  especially after an accused person has been found
    guilty and an appeal has been heard and dismissed, bearing in mind that leave
    to appeal is granted sparingly.

[74]

In
    my view, in the circumstances of this case, the applicant has not established
    on balance that the reviewability interest outweighs the enforceability
    interest.

[75]

First,
    the grounds for the application for leave to appeal have little chance of
    success. As the court noted in
Oland
, at para. 44, at the public
    interest stage of the analysis, a more pointed assessment of the strength of
    an appeal is required and the court will consider if the grounds of appeal
    clearly surpass the minimal standard required to meet the not frivolous
    criterion. For the reasons discussed above, the grounds of appeal raised in
    the application for leave do not clearly surpass the not frivolous threshold.

[76]

Second,
    the offence is serious. As the trial judge observed in his sentencing reasons,
    the assault was gratuitous and violent. The applicant struck the acutely
    vulnerable complainant with a metal pipe while he was seriously injured and
    posed no threat. Moreover, the offence caused emotional suffering to the
    complainant, his family and the community at large.

[77]

Finally,
    while it is true that the applicant may serve much of his sentence before the
    application for leave is determined, the public interest requires that the
    enforceability principle be given paramountcy given the stage of this
    proceeding; the fact that the applicant was an off-duty police officer and the
    complainant was seriously injured by him while retreating; and the trial
    judges finding that the applicant bears a high degree of moral responsibility,
    such that the community has a strong interest in enforceability.

[78]

For
    these reasons, I conclude that the applicant should be detained pending the
    determination of his application for leave to appeal to the Supreme Court of
    Canada.

[79]

If,
    however, the applicant does receive leave to appeal, that changed circumstance
    may well call for a reassessment of his bail status.

CONCLUSION

[80]

For
    these reasons, the application for bail pending appeal is refused without
    prejudice to a further application should leave to appeal to the Supreme Court
    be granted.

J.A. Thorburn J.A.


