



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kazman, 2020 ONCA 251

DATE: 20200408

DOCKET: M51472 (C65212)

Harvison Young J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Marshall Kazman

Applicant/Appellant

Cate Martell, for the applicant

Craig Harper, for the respondent

Heard: April 1, 2020

REASONS FOR DECISION

[1]

The applicant Mr. Kazman seeks bail pending his application for leave to
    appeal to the Supreme Court of Canada (SCC) from this courts dismissal of
    his appeal. After hearing this application by teleconference, I advised the
    parties that release was granted with brief reasons to follow. These are those
    reasons.

[2]

The applicant was charged in 2011 and convicted in September 2017. This
    court dismissed his appeal in late 2019:
R. v. Kazman
, 2020 ONCA 22,
    at para. 6.

[3]

There is no dispute that the charges  in five counts of fraud, one count
    of money laundering, and one count of fraud in association with a criminal
    organization  were serious. The applicant was at the center of a multi-layered,
    sophisticated scheme to fraudulently obtain small business loans from Canadian
    banks. His only ground of appeal from conviction was that the trial judge had
    erred in summarily dismissing the s. 11(b)
Charter
motions as she did.

[4]

The applicant has no criminal record for offences other than those that
    are the subject of this application. On February 14, 2020, he filed his
    application for leave to appeal to the SCC. The Crown has not yet filed
    responding materials. The draft release order filed on April 1, 2020, provides
    for the applicants release until the SCCs decision on the leave application,
    or August 30, 2020, whichever is sooner.

[5]

For the applicant, Ms. Martell submits that the application for leave is
    not frivolous under s. 679(3)(a) of the
Criminal Code
, R.S.C., 1985,
    c. C-46. She also points to the fact that, until he surrendered into custody in
    December 2019, the applicant had been on bail for some eight years with no
    incident. Mr. Harper, for the Crown, submits that the applicant does not clear
    the not frivolous bar. In the alternative, he submits that the applicant does
    not meet his onus of establishing that it is in the public interest that he be
    released.

[6]

As Moldaver J. stated in
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R.
    250, at para. 20, not frivolous is a very low bar. Though it is unclear at
    best whether leave to appeal will be granted in this case, I find the applicant
    has met the low bar under s. 679(3)(a). The applicant has been on bail for a
    long period of time without incident, and surrendered into custody in December
    2019. The criterion at s. 679(3)(b) is also met. This is a case that turns
    on the assessment of the public interest under s. 679(3)(c).

[7]

The criteria for assessing the public interest are well known and were outlined
    in
Oland
, at paras. 23-51. The applicant has the onus of establishing
    that his detention is not necessary in the public interest.

A.

The Applicants Submissions on the Public
    Interest

[8]

Ms. Martell acknowledges that where this court has dismissed an appeal
    and the appellant does not have an appeal as of right, bail is seldom granted before
    the SCC has granted leave to appeal. However, she argues exceptional
    circumstances exist in this case, and highlights:

·

Individuals in jails live in close quarters and
    in poor living conditions. As such, they are acutely vulnerable to COVID-19,
    the current global pandemic which can spread quickly in institutional settings.

·

There is evidence from the American Centers for
    Disease Control and Prevention (CDC) that people aged 65 and over, and those
    with underlying health conditions (particularly asthma), are at greater risk of
    serious illness from COVID-19: CDC, Older Adults, online: <https://www.cdc.gov/
coronavirus/2019-ncov/need-extra-precautions/older-adults.html>; CDC,
    Moderate to Severe Asthma, online: <https://www.cdc.gov/coronavirus/
2019-ncov/need-extra-precautions/asthma.html>.

·

The applicant is 64 years old. He has asthma,
    respiratory issues causing shortness of breath, and a heart condition. It is
    crucial for him to minimize contact with others in order to avoid a serious
    illness and to reduce the spread of COVID-19, but it is impossible for the
    applicant to self-isolate in custody. While he has a cell to himself, meals are
    served cafeteria style and the inmates in his range (roughly 40) eat at
    communal tables.

·

The spread of COVID-19 is not only a matter of
    the applicants personal safety, but the safety of the general public as well.
    If COVID-19 spreads amongst the prison population, staff will also contract the
    virus and carry it into the community. Large numbers of incarcerated persons
    becoming seriously ill will contribute to the overburdening of hospitals.

[9]

Taking this together, Ms. Martell submits that a reasonable,
    well-informed member of the public would not find the applicants immediate
    detention necessary in these exceptional circumstances.

B.

The Crowns Submissions on the Public Interest

[10]

Mr.
    Harper emphasizes that the enforceability interest is high in this case. Since
    this court affirmed the applicants convictions and sentence, Mr. Harper points
    to Doherty J.A.s statement in
R. v. Drabinsky
, 2011 ONCA 647, 276
    C.C.C. (3d) 277, at para. 10:

The pendulum must
    swing towards enforceability and away from bail pending further review after
    the correctness of the convictions entered at trial has been affirmed on
    appeal.

[11]

The
    seriousness of the offences, despite the absence of any violence, further
    strengthens the enforceability interest in this case. This was a sophisticated
    fraud, for which the applicant faces a seven-year prison sentence. Public
    safety is not just a matter of physical safety but can include safety from
    victimization from financial exploitation. Notably, the applicant is not
    challenging his convictions on the merits.

[12]

Mr.
    Harper also suggests the reviewability interest is low in this case. Even if
    the merits are not frivolous pursuant to s. 679(3)(a), they remain an important
    part of the assessment under s. 679(3)(c) and must be considered more closely,
    as per
Oland
, at paras. 41-45. Here, the application for leave is weak
    at best and likely will not succeed as the s. 11(b) issue does not raise any
    jurisprudential issues. In dismissing the applicants appeal on the s. 11(b)
    ground, this court characterized the appeal as turning on well-settled law:
Kazman
,
    at para. 14.

[13]

In
    addition, given the length of the applicants sentence, the review process will
    not be rendered moot before the leave application is heard. As in
Drabinsky
,
    at para 12:

[D]enying bail, at
    least until the leave application is determined, will not render Drabinsky's
    attempt to further review his convictions meaningless in the sense that he will
    have served most, if not all, of his sentence before the outcome of his
    application is determined.

[14]

While
    Mr. Harper quite reasonably does not dispute that there is a global pandemic currently
    underway, he argues that there is no evidence that there have been any COVID-19
    cases at the Joyceville Penitentiary where the applicant is presently incarcerated,
    or that the applicant is living in crowded conditions rendering him at any
greater
risk of contracting the virus than any other member
    of the public.

C.

Analysis

[15]

With
    regard to the reviewability interest, I cannot say any more than the merits,
    while not frivolous, are weak. As the applicant submits, the SCC has granted
    leave in cases involving the interpretation and clarification of
R. v.
    Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. However, it is not at all clear
    that the SCC is likely to grant leave here.

[16]

That
    said, the particular circumstances of this case justify release. The applicants
    crimes were serious but not violent. These offences were the first offences
    with which he has been convicted. There are no lingering public safety or
    flight risk concerns that weigh in favour of immediate enforceability.

[17]

Further,
    the applicants health conditions, which were well documented in the record
    before the court, as well as his age, place him within a vulnerable group that
    is more likely to suffer complications and require hospitalization if he
    contracts COVID-19. It is necessary for him to practice social distancing to lower
    the risk of contracting COVID-19. Being in jail will make it difficult, if not
    impossible, to practice such social distancing.

[18]

As
    the public health authorities have emphasized at this time, the need for social
    distancing is not only a question of protecting a given individual but also the
    community at large. In the prison context, a COVID-19 outbreak may turn into
    wider community spread as prison staff return home. As we are repeatedly
    hearing during this pandemic, the wider the spread, the greater the pressure
    will be for scarce medical resources.

[19]

For
    these reasons, and in light of all of these factors together, the applicants
    release for a limited period would not undermine a reasonable and informed
    persons confidence in the administration of justice.

[20]

I
    emphasize that this does not mean that bail will be granted in any case where
    COVID-19 is raised as an issue. In
R. v. Morgan
(31 March 2020),
    Toronto, M51470 (C67536) (Ont. C.A.), bail pending appeal was denied due to the
    applicants risk of reoffending and the inadequacy of his sureties to supervise
    against further offending.

[21]

However,
    the particular circumstances of this case justify release. Given the
    applicants health issues amidst the COVID-19 situation, and the limited bail
    period sought, I am persuaded that the applicants detention is not necessary is
    in the public interest.

[22]

For
    these reasons, the application is allowed.

Released: April 8, 2020

A.
    Harvison Young J.A.


