Flight risk considered in intimate partner violence decision

Law360 Canada (September 9, 2024, 1:13 PM EDT) --

John L. Hill

By all accounts, Johnny W. was considered a model citizen. The married father of two lived in London, Ont., and was employed in the family business, operating a fleet of taxi cabs. He had no criminal record. That is until he was charged in 2018 and convicted by a jury in 2023 of choking to overcome resistance, assault causing bodily harm, sexual assault and forcible confinement. The victim was an intimate partner who claimed the mistreatment occurred between 2013 and 2015, although not reported until 2018. He remained on bail without incident until he was sentenced to just under six years on Aug. 5, 2024.

An application for appeal bail under s. 679(3) was made to a single Ontario Court of Appeal judge. The Crown opposed bail. The matter was heard on Aug. 6, and the written decision was handed down the next day (R. v. W, Johnny, [2024] O.J. 3558).

Justice Lene Madsen of the Ontario Court of Appeal reviewed W.’s eligibility for appeal bail and his position that his grounds of appeal are not frivolous, he will surrender himself into custody when required and his detention is not necessary in the public interest. Further, he submitted, there is no substantial likelihood of a risk to public safety.

 Since the presumption of innocence is not considered following the principles established by the Supreme Court of Canada in R. v. Oland, 2017 SCC 17, the requirements must be proven on the balance of probabilities, and the onus rests with the appellant.

The Crown did not contest that the appeal was not frivolous as determined by R. v. Manaserri, 2013 ONCA 647. W.intends to argue nine grounds of appeal relating to an overly broad jury instruction that misdirected the jury to use myths and stereotypes, preventing him from making a defence based on the complainant’s prior statements. This is an issue requiring appellate consideration.

Similarly, W. can be expected to surrender himself if his appeal is dismissed. He had been on bail and abided by the terms of his release for six years while awaiting trial. The Crown also conceded he is not a flight risk.

The decision on appeal bail rested on the third criterion — public interest and risk to public safety as discussed in the Oland and Farinacci decisions (R. v. Farinacci, (1993) 86 C.C.C.(3d) 32). Once again, the Crown conceded that public safety would not be at risk if W. were released.

The real issue to be decided was where law and politics intersect. On the one hand, the public wants to see sentences become immediately enforceable (i.e., an extension of the “catch and release” criticism of granting bail in the first instance) and the hatred of situations where a person is detained but subsequently found wrongly convicted. Justice David Paciocco identified these concerns in R. v. Ruthowsky, 2018 ONCA 552. The justice system is not infallible, and caution necessitates that only the genuinely guilty be imprisoned.

The Crown decided that it needed to play the political card in trying to see W. imprisoned despite his appeal. It argued that the public has difficulty accepting what might be considered lenient treatment when the conviction involves intimate partner violence, “which evokes deep social concerns about gender equality, breach of trust and sexual integrity.”

In this case, the appeal court Justice found the grounds to be argued on appeal were “legally plausible.” Public confidence must be assessed through the eyes of a reasonable person who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values.

Weighing these factors, appeal bail was granted. In granting release, the Court of Appeal, through a well-reasoned judgment, has shielded itself from criticism that has made judicial interim release a hot-button topic in provincial politics.

Editor's note: This original version of this story has been amended in accordance with a publication ban.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.