R. v. Melanson

R. v. Melanson Collection Decisions of the Court of Appeal Date 1999-06-03 Docket numbers C32143, M24334 Judges Rosenberg, Marc Subject Criminal Decision Content DATE: 19990603 DOCKET: C32143 M24334 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. JOSEPH P. MELANSON (Appellant) BEFORE: ROSENBERG J.A. (In Chambers) COUNSEL: Joel Lehman, for the appellant Robert Kelly, for the respondent HEARD: June 1, 1999 ENDORSEMENT [1] This is an application for bail pending appeal from conviction. The convictions result from two trials. The first conviction was entered by Roberts J. for aggravated assault on April 1, 1998. The applicant has not yet been sentenced for that offence. The second conviction was entered by McLean J. for attempted murder on June 22, 1998. In January 1999, the Attorney General consented to the bringing of a dangerous offender application in relation to the attempted murder conviction. That application is to be heard on September 21, 1999. [2] The circumstances of the two convictions are unusual. Both convictions relate to the same act, striking the complainant on the head with a piece of concrete on March 7, 1997. The applicant has been in custody since that date. He has never sought a review of the detention order nor asked either trial judge to exercise his jurisdiction under s. 523(2) of the Criminal Code. [3] The principal ground of appeal from the conviction before McLean J. concerns the dismissal of the special plea of autrefois convict. Mr. Kelly properly concedes that this represents a highly arguable ground of appeal. [4] I am also satisfied that the applicant will surrender into custody prior to the sentencing proceedings in accordance with any order I might make. [5] I have, however, not been persuaded that this is a proper case for release on bail pending appeal at this time. As stated in Re Morris and the Queen (1985), 21 C.C.C. (3d) 242 (Ont. C.A.), while I have jurisdiction to make such an order, the circumstances in which that jurisdiction will be exercised are rare. In the course of the oral submissions, I expressed my concern about the delay in proceeding to sentence before Roberts J. and in bringing the dangerous offender application before McLean J. That delay in the circumstances of this case is not, however, sufficient to justify release at this point by a judge of the Court of Appeal given the features of this case that I will detail below. In addition, as I understand counsel's submissions, the delay in sentencing before Roberts J. has been at the request of both Crown and defence and that much of the delay before McLean J. arises from adjournments sought by both parties, the fact that the trial judge is from out of town and, perhaps, due to the complexity of the proceedings. [6] The reasons that cause me to find that this is not a proper case for release pending appeal prior to sentencing and that release is contrary to the public interest are the following. [7] I have been presented with conflicting expert reports as to the applicant’s dangerousness and the likelihood of re-offending. Drs. Bloom and McDonald opine that the applicant represents a significant risk to the community and have diagnosed him as suffering from a serious sexual deviance—paraphilia-sexual sadism. They were pessimistic about the applicant’s amenability to treatment. Counsel for the applicant has pointed out some of the weaknesses in the strength of that opinion, most importantly that this 49-year-old man has no prior criminal record. [8] The applicant relies upon the opinion of Dr. Federoff. It would appear that Dr. Federoff has established a better rapport with the applicant and he is prepared to offer him treatment in the community. It is his opinion that with proper reporting conditions and monitoring by him, the applicant does not represent a danger to the public. Unfortunately, I have only a very brief affidavit from Dr. Federoff and one page of a multi- page draft preliminary report. He does not indicate what that monitoring or treatment would be. [9] On this record, I am unable to determine that the applicant does not represent a danger to the public or that he will not re- offend. It seems to me that the opinions of all three experts need to be tested by cross-examination. Since the applicant has not pursued his bail remedies in the trial court and since no sentencing proceedings have occurred, that full exploration of the opinions has not occurred. The applicant bears the burden of establishing his entitlement to release and therefore I must find against him on this aspect of the public interest ground. [10] I also must take into account the nature of the offence. The applicant and the Crown take very different views of the seriousness of the offence. There is no dispute that, fortunately, the physical injuries to the victim were not permanent. However, the parties differ as to whether the applicant released the victim or she was able to free herself. This is an important fact and without the opinion of either trial judge it is a matter I am unable to resolve on this record. The same must be said of the applicant’s writings. The applicant says they are acts of fiction and that he was physically unable to carry out some of the more gruesome acts described. The Crown casts these writings in a more sinister vein and relies upon the expert opinions. The second jury verdict would tend to add some support to the Crown theory. [11] For these reasons, and notwithstanding my concern about the delay, the application for bail is dismissed. I should make it clear that an important consideration is that the dangerous offender matter will be heard in September. If there should be further delay, it may be, depending on the explanation for that delay, that the public interest would shift more in favour of the applicant. [12] Counsel for the applicant has asked me to expedite the hearing of the appeals. In the course of the oral argument I suggested to both counsel that they might explore whether the autrefois convict ground of appeal could be dealt with separately and expeditiously on a simplified record. It may be that this is not feasible, but, if so advised, counsel may wish to make an appointment with Doherty J.A. to deal with that issue and the question of expediting the appeals. [13] Accordingly, the application for release pending appeal prior to sentencing is dismissed. This order is made without prejudice to the applicant renewing his application once sentence has been imposed. The question of expediting the appeal should be pursued before Doherty J.A.