R. v. Finck

R. v. Finck Court Court of Appeal Date 2005-11-15 Citation 2005 NSCA 146 Docket CAC 246654 Judge/Registrar/Adjudicator MacDonald, J. Michael (Honourable Chief Justice) (CA) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R. v. Finck, 2005 NSCA 146 Date: 20051115 Docket: CAC 246654 Registry: Halifax Between: Lawrence Ross Finck and Carline VandenElsen Appellants v. Her Majesty the Queen Respondent Judge: The Honourable Chief Justice MacDonald Application Heard: November 4, 2005, in Halifax, Nova Scotia, in Chambers Held: Section 680 Criminal Code application (for bail review) dismissed. Counsel: Lawrence Finck, for both appellants Peter P. Rosinski, for the respondent Decision: [1] My colleague, Justice Saunders, denied the appellants’ request for bail pending the appeal of their criminal convictions. Under s. 680 of the Criminal Code, they have now asked me to direct a review of this decision. Should I grant the request, they have also asked that the review be heard by a panel of this court. Background [2] On May 12, 2005, Justice Wright of the Supreme Court with a jury convicted the appellants of several serious offences stemming from an armed stand-off that occurred a year earlier in May of 2004. [3] On May 16, 2005, before being sentenced, the appellants filed a joint notice of (conviction) appeal. Approximately one week later on May 25, 2005 they applied to this court for release pending appeal. Justice Saunders heard their application on June 9, 2005 and denied the same, concluding: ¶ 4 The application this morning brought by Ms. VandenElsen through her husband Lawrence Ross Finck as agent, and by Mr. Finck on his own behalf, is taken pursuant to Criminal Code s. 679(3) which reads: In the case of an appeal referred to in paragraph 1 (a) or (c) the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (a) the appeal or application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. ¶ 5 The applicants have the burden of proving, to my reasonable satisfaction on the balance of probabilities, that all of the conditions I have just outlined in ss. 679(3) have been met. ¶ 6 Having considered the fact (as they insisted be emphasized) that theirs was a single, joint application; the very serious nature of the crimes for which each stands convicted; that sentencing is less than three weeks away; that Ms. VandenElsen faces a statutory minimum of one year in jail for one of her crimes; the circumstances surrounding these offences; the record before me; their demeanour and attitude in the face of the court; together with the various submissions, I am not at all satisfied that any, let alone all, of those elements have been established. Even if I were to assume that it could be said that any of the stated grounds of appeal is not frivolous, I am not persuaded that either or both of the appellants would surrender themselves into custody in accordance with the terms of any order of this court, nor that the detention of either or both of them is not necessary in the public interest. [4] On June 29, 2005, Justice Wright sentenced the appellants each to federal terms of incarceration. On August 23, 2005 they filed a joint notice of (sentencing) appeal. [5] On October 26, 2005, the appellants filed their s. 680 application asking me to direct a review of Justice Saunders’ decision. I heard the application by way of teleconference on November 4, 2005. During this hearing, the appellant, Mr. Finck, spoke on his own behalf and on behalf of the appellant, Ms. VandenElsen. Analysis My Role under S. 680 [6] Section 680 of the Criminal Code establishes my jurisdiction to review Justice Saunders’ order: Review by court of appeal 680. (1) A decision made by a judge under section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (a) vary the decision; or (b) substitute such other decision as, in its opinion, should have been made. [Emphasis added] [7] This provision directs a two-step process. As a first step, I must decide whether or not to direct a review. Should I so direct, the second step would involve the actual review by a panel of the court. [8] In R. v. Wood (J.D.) (1999), 181 N.S.R. (2d) 193, my predecessor, Glube, C.J., explained: ¶ 9 Following an application for release pending appeal pursuant to section 679(1) of the Criminal Code, Justice Cromwell issued a written decision on October 19, 1999, granting the release with conditions, pending Mr. Wood’s appeal scheduled to be heard January 26, 2000. The original order is dated October 20, 1999 and an amended order changing several of the conditions is dated October 26, 1999. On the same date as the amended order, the Crown applied for a review under s. 680(1) of the Code. s. 680. (1) A decision made by a judge under section ... 679 may, on the direction of the Chief Justice ... of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (a) vary the decision; or (b) substitute such other decision as, in its opinion, should have been made. In the commentary following s. 680, it states in part: ... The procedure involves two steps. An application is made to the chief justice or acting chief justice of the court of appeal for a direction that the decision be reviewed by the court of appeal. If the direction is refused, no review will be held.... [Tremeear’s Criminal Code, The 2000 Annotated, p. 1002.] [9] At this initial step, my role is limited. I should direct a review unless the appellants would have no hope of success on a review of the record. Again, I refer to a decision of Glube, C.J., this time in R. v. Sanchez, [1998] N.S.J. No. 415: ¶ 40 The case of R. v. Moore (1979), 49 C.C.C. (2d) 78 (N.S.S.C.A.D.) deals with whether or not to order a review. MacKeigan, C.J.N.S. stated the basis for his decision as follows: I conceive that I should direct a review under s. 608.1 [now 680] if, in my view, the appeal Court, properly applying the law, could possibly conclude that the application for release should have been allowed. I should, on the other hand, probably refuse review only if the applicant would have no hope of success on a review of the record. [p. 79] ¶ 41 Thus a review should be ordered unless the accused or the Crown has no hope of success on the record. [Emphasis added] The Alleged Grounds for Review [10] In support of their application, the appellants suggest that the Chambers judge committed several errors. In their supporting affidavit, they assert: ¶ 8 That Saunders J.A. erred in law and fact within the S. 679 CCC application by to ensure that Rule 65.19(4) requested within the application record was respected. This failure to exercise jurisdiction prejudiced the Appellants’ ability to properly present their application. With the lower court record that included “Errors of Law on the Face of the Record” within led Saunders J.A. to conclude his decision on assumption and persuasion where the proper test to be implied is reasonable satisfaction on the balance of probabilities; See: R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw, [1952] 1 K.B. 338 (C.A.) ¶ 9 That Saunders J.A. erred in law by exceeding his jurisdiction when considering possible future custody that may be imposed; See: R. v. Morris, (1985) 21 CCC (3d) 242 (Ont. C.A). ¶ 10 That Saunders J.A. erred in law by failing to exercise jurisdiction when suggesting dates for the matter to be brought back. The proper exercising of jurisdiction is ordering return dates and not blocking the Appellants’ access to the court. In addition and more appropriate for the circumstances at bar were to ensure the Appellants were not held ransom to court reporting; Disposition [11] In my examination of the material filed in support of this application, I conclude that the appellants would stand no hope of success should a review go forward. It is clear to me that the Chambers judge committed no reviewable error. In reaching his decision, Justice Saunders properly reviewed the three conditions that the appellants had to meet in order to succeed with their application. He concluded that regardless of any merit the appeals may have, he remained concerned about the appellants’ compliance with the terms of surrender and with the public interest. I see no basis for challenging this conclusion. [12] In reaching my conclusion, I note that the appellants also assert that circumstances have changed since they were before Justice Saunders. For example, now that they are in separate federal institutions, they assert an inability to properly prepare for their appeals. [13] Without in any way commenting on a potential outcome, the appellants may nonetheless have the right to re-apply for release under s. 679 based upon these alleged changes in circumstance. [14] This point was made by the Ontario Court of Appeal in R. v. Daniels (1997), 119 C.C.C. (3d) 413, where Doherty, J.A. noted: ¶ 31 In my opinion, the fact that s. 680 creates an appellate jurisdiction which can be expanded to consider changes in circumstances does not assist in determining whether s. 679 contemplates a second bail application based on changed circumstances. Section 680 clearly provides the only means by which the correctness of a decision made under s. 679 can be challenged. It does not foreclose a second application under s. 679 where the correctness of the first decision is conceded, but it alleged that the circumstances have changed. [Emphasis added] See also R. v. C.V.S., [2003] N.B.J. No. 4 (N.B.C.A.). [15] Furthermore, I repeat that my role under s. 680 represents just an initial step in a two-step process. Even if I were inclined to direct a review, a panel of this court would have to be convened with dates set for the review some time in the future. As noted by Finch, C.J.B.C. in Seifert v. Italy, [2003] B.C.J. No. 2573 (B.C.C.A), a new s. 679 application may in fact represent a more efficient alternative: ¶ 15 I have not, however, been persuaded that such a review is the best course to follow. It remains open to the appellant to apply again under s. 679 before the same or another chambers judge to consider the issues now raised by the amended notice of appeal. Such a course appears to me to be more appropriate than a review of the present order. A fresh application under s. 679 to a single judge will be faster and less expensive than a review. It will make better use of judicial resources. It will enable counsel to develop more focussed submissions identifying those parts of the impugned rulings of the extradition judge alleged to be in error. And, in the event that such a second application is unsuccessful, it still permits a further application under s. 680 for a direction to review. [Emphasis added] [16] For all these reasons, I dismiss the appellants’ application for review. MacDonald, C.J.N.S.