Ontario Court of Appeal rejects bail application of man convicted of assault

He has high risk to reoffend without proper counselling and support services, judge says

Ontario Court of Appeal rejects bail application of man convicted of assault
Ontario Court of Appeal

In a recent bail application, the court said that the enforceability interest overshadowed the reviewability interest. To reach this conclusion, it balanced the appeal’s strength, the offence’s seriousness, public safety, flight risks, and the likely delay in deciding the appeal.

The applicant was an Indigenous man from Wiikwemkoong Unceded Territory. The trial judge determined that the applicant’s attack on the complainant was unprovoked. The judge found him guilty of assault causing bodily harm and assault with a weapon. The court stayed the second charge in line with R. v. Kienapple, [1975] 1 S.C.R. 729.

The applicant received a sentence of three years’ imprisonment, minus 16 months’ pre-trial custody. The judge noted the following:

  • The applicant’s community struggled with colonialism’s systemic and socioeconomic effects
  • He was twice taken into the custody of the Children’s Aid Society
  • As a child, he experienced physical and sexual violence and addictions at home
  • He has been homeless and has himself struggled with addictions

The judge said that the applicant had a high risk to reoffend if he did not receive proper counselling and support services. The judge recommended that he attend at the Thunder Bay Detention and Treatment Centre.

However, the applicant was detained at the Sudbury Jail and was transferred to the Central North Correctional Centre. He applied for bail pending the determination of his appeal.

Applicant at high risk to reoffend

In R. v. Jacko, 2023 ONCA 38, the Ontario Court of Appeal dismissed the application. The applicant should perfect his appeal by Mar. 3. The appellate court should expedite the hearing of the appeal.

With regard to surrender into custody under s. 679(3)(b) of the Criminal Code, the Court of Appeal accepted that the sureties would address the risk of the applicant’s inadvertent non-attendance at his appeal.

However, the appellate court ruled that the applicant would probably not surrender himself under the proposed release order’s terms, given his history of failing to comply with such an order even when he had a surety and given the limitations on the sureties’ ability to supervise him.

Next, the Court of Appeal tackled the issue of public interest under 679(3)(c) of the Criminal Code. It held that releasing the applicant would undermine the public confidence in the administration of justice because the enforceability interest overshadowed the reviewability interest.

Regarding the reviewability interest, the applicant was able to advance grounds of appeal that clearly met the “not frivolous” criterion, the appellate court said. There was a risk that the applicant, who was eligible for statutory release on Aug. 30, would have served or mostly served his sentence by the time the court could hear and decide his appeal, the court explained.

However, in relation to the enforceability interest, the Court of Appeal held that the offence involved violence and that the applicant remained at a high risk to reoffend since the risk profile found by the trial judge was not meaningfully attenuated.

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