VBS was found guilty of assault and sexual interference on the daughter of a family friend. The victim was 10 to 12 years old at the time of the assaults. 15 to 20 assaults were found to have occurred by the trial judge. He was sentenced to three years imprisonment. VBS filed an appeal which challenged the findings of credibility of the trial judge and her interpretation of the evidence.
Section 679(3) of the Criminal Code provides that release pending appeal may be granted where the appellant shows that: (a) the appeal or application for leave to appeal is not frivolous; (b) the applicant would surrender themselves into custody when required according to the terms of release; and (c) the detention is not necessary in the public interest. There is a residual discretion in the court to refuse to grant judicial interim release pending the appeal even where the statutory criteria are met.
Mr. Justice McDonald, hearing the application for judicial interim release pending appeal from VBS in this case found that, though the grounds for appeal were weak (given the standard of review for findings of fact and credibility), the appeal was not frivolous. As well, there was no doubt that the applicant would surrender himself into custody if required to do so. He had been on release for two years previously without incident and had even left the country with permission and returned. The only contentious issue was whether the detention of the accused was necessary in the public interest.
The Court noted that the public interest aspect of the test in 679(3) relates to both “the safety of the public and public respect for the administration of justice” (at para. 11, citing R. v. DAR, 2003 ABCA 247 (CanLII)).
On the issue of public respect for the administration of justice, Justice McDonald noted in part:
[14] … Society has a profound interest in protecting children from sexual exploitation. The applicant was in a position of trust and authority vis-à-vis the victim who was his son’s best friend. The applicant has been found guilty of committing between 15 to 20 sexual assaults upon her. These are very serious, reprehensible crimes for which society has no tolerance. The prospects of the applicant’s appeal succeeding are weak – as I have already noted – given the deferential standard of review that will apply to his appeal.
[15] Moreover, when considering whether or not to grant bail pending conviction appeal, an offender’s guilt is presumed: R v RDL(2) (1995), 178 AR 142 at para 4 (CA) citing R v Farinacci 1993 CanLII 3385 (ON CA), (1993), 86 CCC (3d) 32 (Ont CA) and R v Branco 1993 CanLII 1444 (BC CA), (1993), 87 CCC (3d) 71 (BCCA). In my view, public respect for and confidence in the administration of justice would be significantly eroded if the applicant, who has been found guilty and who only has a limited chance of success, were to be released into the community pending the outcome of his appeal. In other words, the applicant has not satisfied me that the public interest no longer requires his continued detention, and has therefore failed to discharge his overall burden on this application.
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