R. v. Hayman

R. v. Hayman Collection Decisions of the Court of Appeal Date 1998-12-04 Docket numbers C303946, C30396 Judges Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19981204 DOCKET: C30396 C303946 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. JOYCE HAYMAN (Appellant) BEFORE: Feldman J.A. COUNSEL: James Lockyer For the appellant Feroza Bhabha For the respondent HEARD: November 26, 1998 E N D O R S E M E N T [1] The appellant seeks release pending her appeal. She currently has an in-person appeal against conviction, and a solicitor’s appeal against sentence. [2] Because the transcript has not yet been ordered in full, her counsel has not been able to give an opinion as to the merit of her appeal against conviction. The Crown takes the position that there is no merit in it. Defence counsel points to his need to retain his own expert to provide an opinion on the expert evidence given at trial, and the possibility that the appeal would be based on fresh evidence. [3] Under the circumstances, at the present time, the court cannot say that the appeal is not frivolous as required by s. 679(3)(a) of the Criminal Code. [4] The test in respect of a sentence appeal is set out in s. 679(4). There must be some merit in the appeal as leave is required, there must be sufficient merit that detention would cause unnecessary hardship, the appellant must establish that she will surrender when required, and that her detention is not necessary in the public interest. [5] The crown opposes the application on the basis that it would not be in the public interest to release the appellant at this time. In particular she points to the fact that the proposed surety, Mr. Winn was not forthright with the court on the bail hearing in respect of his knowledge of the appellant’s cocaine use, that he is involved in two businesses and will not be able to supervise the appellant, that he has a record for possession of cocaine for the purpose of trafficking, and that he allowed the appellant to continue to use cocaine while she was on bail pending her trial, in breach of her recognizance and while he was her surety. [6] The crown also points to the fact that the presentence report recommends that the appellant be incarcerated in the Vanier Institute where she currently is in order to obtain treatment for her drug addiction problem as she was unwilling to undergo treatment in the community. She has been in that facility since August, and has now enrolled in a substance abuse class which commenced on November 16, she has been in a life skills course for one month, is seeing a psychiatrist once per week and a social worker. Crown counsel also points to the fact that the appellant has received a misconduct in jail for possession of marihuana, which reflects on her attitude toward drug rehabilitation as well as toward complying with any undertakings she may give with respect to her release and her rehabilitation. [7] Defence counsel points out that because the child is now in care, there will be no opportunity for further harm to him if the appellant is released. He also points to the fact that the appellant now wishes to attend a residential program in the community for her drug problem, which program apparently can only be applied for from outside the institution. He also suggests that as a condition of her release she be obliged to report back to the court within two weeks to confirm that she is following through with the drug treatment plan which she is now proposing. [8] He also says that the sentence of two years less a day is particularly harsh for this offence and for a first time offender, and that the factor of denunciation was over-emphasized by the court. He submits that a conditional sentence would have been appropriate. [9] I am not satisfied that bail should be granted in this case if it is a sentence appeal only. In those circumstances the appeal can be expedited and heard early in the new year. If the conviction appeal is also going to proceed so that the matter cannot be expedited, then the issue of bail may be revisited based on whatever submissions may be made to the court as to the tests under s. 679(3)(a).