



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Bedzra, 2014 ONCA 408

DATE: 20140516

DOCKET: M43776

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Evans Bedzra

Applicant

John H. Hale, for the applicant

Susan Magotiaux, for the respondent

Heard: May 9, 2014

On application for an extension of time to file an appeal, and on application
    for judicial interim release pending appeal from the convictions entered on
    September 10, 2013 and the sentence imposed on December 20, 2013 by Justice
    R.N. Fournier of the Ontario Court of Justice, sitting without a jury.

Lauwers J.A.:

[1]

The applicant was convicted of 36 counts in connection with two complainants:
    assault with a weapon (6 counts); assault (9 counts); breach of probation (13
    counts); criminal harassment (6 counts); assault causing bodily harm (1 count);
    and mischief under $5,000 (1 count), under ss. 267(a), 266, 733.1(1), 264(3),
    267(b) and 430(4) of the
Criminal Code
, respectively.

[2]

The sentence imposed was a global sentence of three years in custody
    less credit of one year for 133 days in pre-trial custody, for a balance of two
    years less a day. The trial judge also ordered 3 years of probation, a DNA
    order, and a lifetime s. 109 weapons prohibition.

[3]

The applicant seeks an extension of time to file an appeal, and bail
    pending his appeal of conviction and sentence.

A.

The Governing Principles on Bail Pending Appeal

[4]

Watt J.A. laid out the governing principles in
R. v. Manasseri
,
    2013 ONCA 647, [2013] O.J. No. 6177, at paras 37-38, 40-43:

Under section 679(3) of the
Criminal Code
, an
    applicant who seeks release pending the determination of an appeal from conviction
    must establish to the satisfaction of the chambers judge:

i.

that the appeal is not frivolous;

ii.

that the applicant will surrender into custody in accordance with the
    terms of the release order; and

iii.

that the applicants detention is not necessary in the public interest.



An appeal is not frivolous if the proposed grounds of appeal
    raise arguable issues.  An applicant need not establish a likelihood, much less
    a certainty of success on appeal, but must be able to point to a viable ground
    of appeal that would warrant appellate intervention if established.



The public interest criterion in section 679(3)(c) requires a
    judicial assessment of the need to review the conviction leading to
    imprisonment, on the one hand, and the need to respect the general rule of
    immediate enforceability of judgments, on the other:
R. v. Farinacci
(1993),
    86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires
    that judgments be enforced.  The public interest may thus require that a person
    convicted of a very serious offence, like second degree murder, who advances
    grounds of appeal that are arguable but weak, be denied release pending
    appeal:
Farinacci
, at p. 48.

But public confidence in the administration of justice also
    requires that judgments be reviewed, and that errors, if any, be corrected,
    especially where an appellants liberty is at state [sic]:
Farinacci
,
at p. 48.

The public interest ground assumes a place of greater
    prominence in cases in which an applicant has been convicted of a very serious
    offence and faces the prospect of a lengthy period of incarceration:
R. v.
    Baltovich
(2000), 144 C.C.C. (3d) 233 (Ont. C.A.  Chrs), at para. 19;
R.
    v. Demyen
(1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326.  As a
    result, release of an applicant pending appeal of a murder conviction is rare:
Baltovich
, at para. 20.  But where the grounds of appeal are strong
    and a serious concern about the accuracy of the verdict emerges from the
    materials filed, the public interest may favour release:
Baltovich
,
    at para. 20;
R. v. Parsons
(1994), 30 C.R. (4th) 169 (Nfld. C.A.), at
    pp. 186-187.

[5]

The Crown concedes that the applicant would surrender himself into
    custody in accordance with the terms of any bail order, and I am satisfied that
    he would do so. I now turn to the other two issues under s. 679 of the
Criminal
    Code:
whether
the appeal
    has sufficient merit that, in the circumstances, it would cause unnecessary
    hardship if the applicant were detained in custody; and whether his detention
    is not necessary in the public interest.

B.

The Evidence

[6]

The trial judge reviewed the facts in lengthy oral reasons.  In short,
    the accused was charged with assaulting and otherwise abusing two women with
    whom he had been involved in relationships. The applicants defence was a
    blanket denial.

[7]

The first complainant, Melanie Groulx, testified that she met the
    applicant on August 14, 2011. They lived together from October 2011 until early
    July 2012. Ms. Groulx testified that she was assaulted by the applicant on a
    number of occasions. One included a kick to the stomach and resulted in a
    miscarriage. On another occasion, the applicant hit her in the face,
    dislocating her jaw.

[8]

The second complainant was Lisa Labelle, with whom the applicant had a
    child. Ms. Labelle met the applicant in October 2008. Their relationship was
    on and off until July 2012. She testified that, during this period, the
    applicant assaulted her on several occasions. On one occasion, as the trial
    judge noted, the applicant hit Ms. Labelle in the eye with a beer can while she
    was driving.  In cross-examination, the applicant, in the trial judges words:
    claimed that she backhanded him and that his was an instinctive reaction. In
    short, while he was prepared to admit striking her in the eye with this can, he
    denied that it was intentional and alleged that he apologized subsequently.

[9]

The evidence of the complainants was corroborated in part by the
    testimony of their mothers. The trial judge also referred to a number of text
    messages, Facebook entries and a handwritten note in which the applicant showed
    a degree of remorse for his conduct.

[10]

The
    trial judge recorded the way in which, as the cross-examination continued, the
    applicant backed away from responsibility for the content of his electronic
    communications. The trial judge used this cross-examination in assessing the
    applicants credibility as a witness, apart from its corroborative effects
    around certain incidents. The trial judge concluded that the applicant had
    become the author of his own destruction as a credible witness.

C.

The Merits

[11]

In
    the appeal against conviction, the applicant submits that this case is a 
Sheppard
[R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869] appeal regarding the
    insufficiency of the judges reasons for a conviction. He argues that the
    trial judge: committed reversible error by making a blanket finding of guilt
    on all counts based on this credibility finding without going through the
    evidence as it relates to each count and finding that each is proven beyond a
    reasonable doubt.

[12]

Counsel
    submits that the trial judge did not review the elements of the various
    offences or state what specific evidence he accepted as supporting convictions
    on each of the specific offences.

[13]

In
    oral argument, counsel referred specifically to the six counts of criminal
    harassment. He noted that the elements of that offence were not laid out by the
    trial judge, with the possible exception of one count dealing with criminal
    harassment around July 9. In respect of that count, the trial judge noted:
    this was towards the end of the relationship where he was really imposing
    himself, Im indicating three months of time served.

[14]

Counsels
    complaint, as I understand it, is that the trial judge used up six months of
    time served on two of the criminal harassment counts (three months on count 17
    and three months on count 44); this time served would otherwise have been
    available to credit against other counts properly considered by the trial
    judge. There is little, if any, merit in this submission. Section 264 of the
    Code sets out the elements of criminal harassment, including engaging in
    threatening conduct. It was open to the trial judge, having thoroughly
    reviewed the evidence, to find that the elements of criminal harassment were
    satisfied. I also note that the credit at issue was effectively credit of
    3-to-1, a product of the trial judge having been very generous.  In my view,
    his focus was on the global sentence, so that even if there were no criminal
    harassment convictions, there would not have been any impact on the overall
    sentence.

[15]

Counsel
    also submits that the applicant was found guilty of 13 breaches of probation in
    the absence of a fulsome review and consideration of these counts by the trial
    judge. In my view, those breaches were directly related to the assaults that the
    applicant committed while he was required to keep the peace, and did not call
    for further analysis by the trial judge. Moreover, all of the breach of
    probation counts were concurrent and, in the words of the trial judge, did not
    affect the bottom line.

[16]

Similarly,
    the lack of legal analysis on the components of the other offences does not
    persuade me that the trial judge made a legal error. His thorough descriptions
    of the assaults clearly cover the necessary elements of the offences.

[17]

With
    respect to the appeal against sentence, counsel makes the following
    submissions:

Mr. Bedzra spent 133 days in pre-trial custody before being
    released at a bail review hearing in the Superior Court of Justice. At the bail
    review, Justice Ratushny indicated that had all the facts been presented
    properly at the original bail hearing, Mr. Bedzra would likely not have been
    detained.

Defence argued that this error in detaining him was a breach of
    Mr. Bedzras
Charter
rights, specifically s. 11(e), and argued
    that the remedy should be enhanced credit for that pre-sentence custody,
    somewhere in the range of 3-for-1 credit. The Crown opposed anything above the
    standard 1 for 1 credit.  The trial judge agreed that Mr. Bedzras
Charter
right not to be denied reasonable bail had been breached and ordered what he
    referred to as 2-for-1 credit (133 days times 2 being 266 days) rounded up to
    credit for 1 year pre-trial custody. Mr. Bedzra was ultimately sentenced to 3
    years less pre-trial custody.

[18]

The
    Crown has appealed the sentence on the basis that it is demonstrably unfit. The
    Crown asked for a sentence of 4.5 years less pre-sentence custody at 1-for-1,
    amounting to a sentence of about 4 years. If the Crown appeal is successful, the
    applicant could end up serving an additional 2 years in custody.

D.

Mootness of the Appeal

[19]

The
    practical issue for this bail application is that, by the time of the appeal,
    the applicant will have served a substantial proportion of his sentence if he
    is not released. Refusing this bail application might render his appeals moot,
    which would thereby cause him unnecessary hardship. The appeal has not yet been
    perfected, so it cannot be expedited.

E.

The Public Interest Ground

[20]

The
    applicant argues that the
Farinacci
factors that favour enforcement of
    the judgment should only apply where the sentence imposed is lengthy. The
    applicant points out that, even if the Crown is successful on the sentence
    appeal and obtains a 4.5-year sentence, as was the submission at trial, this
    still falls well below the range contemplated in
Farinacci
.  He notes
    that the sentence of two years less a day is much less than the sentence under
    appeal in
R. v. H.B.
, 2014 ONCA 334 (Lauwers J.A.),  in which the
    sentence imposed was eight years for child sexual abuse, and the 10-year
    sentence for sexual assault imposed in
R. v. Doodnaught
, 2014 ONCA 172
    (LaForme J.A.). In both cases, the chambers judges refused bail pending appeal.

[21]

The
    Crown responds that domestic violence is a very serious matter. Domestic
    violence is the kind of crime that is hard to detect, quite often because the
    victims hide the effects of the crimes, downplay them, and recant when they do
    complain.  All of these dynamics are present in this case.

[22]

I
    agree. The applicant committed these acts of domestic violence while he was on
    probation for a conviction on the same ground.  He committed a number of acts
    of violence against two women over a lengthy period of time.  He appears to
    constitute a continued risk, since, according to the pre-sentence report, he
    has no insight into his personal deficiencies.  His tendency, as the trial
    judge noted, is to minimize the seriousness of his actions and to blame others.
    This is exactly the same blame the victim attitude that is shared by one of his
    proposed sureties, so it is highly doubtful that his sureties will adequately
    supervise him. The victim impact statements demonstrate the trauma that the
    applicant has caused and record plainly the fear that the complainants continue
    to experience.

[23]

The
    Crown also argues that the release plan is unrealistic in its expectation that
    the applicant will find employment. The applicants pattern, as detailed by the
    trial judge, is that he does not work, and if he does it is only for short
    periods of time. The applicant prefers to live off others, particularly the
    women that he takes up with. The Crown identifies the applicant as being at a
    very high risk to re-offend.

[24]

In
    my view, the convictions constitute serious crimes against the person. Home
    invasions accompanied by violence are especially unnerving for communities and
    traumatic for victims. The grounds for the conviction appeal are barely
    arguable. I find that the public interest balance required by
Farinacci
favours continued enforcement of the sentence rather than judicial interim
    release. The appeal can be scheduled quickly on an expedited basis once perfected.

[25]

For
    these reasons, the application for judicial interim release is dismissed.

[26]

The
    Crown consents to the extension of time to file the notice of appeal, and it is
    so ordered.

Released:    May 16, 2014                                     P.
    Lauwers J.A.


