R v Stone, 2020 ONCA 448

Updated: Dec 20, 2020

Facts

Stone, the Applicant in this case, plead guilty to four offences on a 19-count indictment. He plead guilty to the offences of invitation to sexual touching (section 152 Criminal Code) and sexual interference (section 151 Criminal Code). The two other offences were trafficking a substance included in Schedule 1 (methamphetamine), an offence under section 5(1) of the Controlled Drugs and Substances Act.

Based on an Agreed Statement of Facts between the Crown and defence, and the findings based on the evidence, the sentencing judge imposed a global (total) sentence of six years imprisonment.

The breakdown of the sentence is as follows:

· Three years jail on each drug trafficking convictions, to be served consecutive to one another

· 20 months jail on the invitation to sexual touching conviction

· 22 months jail on the sexual interference conviction

The two sexual convictions were made consecutive to each other, and then concurrent to the trafficking conviction in the corresponding time frame. This resulted in six years imprisonment as the total.

Issue on Appeal

The issue on appeal is whether Stone can be released from jail pending the decision of his sentence appeal. Leave to appeal his sentence was granted. The Applicant’s main argument is that the sentencing judge did not take into consideration the prolonged sexual abuse that he had suffered earlier in his own life, and that all of the sentences should be concurrent as opposed to consecutive to one another. The Applicant also raised the issue of the Covid-19 pandemic, and that he should be released from jail because of the risk of spread in a facility where many people all live together.

Analysis

Section 679(4) of the Criminal Code outlines three criteria that the Applicant must prove on a balance of probabilities in order to be released from jail pending his appeal:

a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody;

b) he will surrender himself into custody in accordance with the terms of his order; and

c) his detention is not necessary in the public interest.

In terms of “unnecessary hardship”, the court cited the legal test as being whether the Applicant is likely is spend more time in jail than his sentence is ultimately determined to be, considering the merits of the appeal (R v Hassan, 2017 ONCA 1008 at para 33). The court reviewed the reasons and decision of the sentencing judge and found that there was little to no reasonable prospect that the appeal will result in a longer time spent in jail than the original sentence.

For the second criterion, the court simply stated the Applicant met their onus.

The third and final criterion is the public interest component. The court stated that despite the Covid-19 pandemic, given the Applicant was sentenced to 6 years in jail, being released now does not change the reality that he will be in jail at some point during a second wave of the virus. The court elaborated that the safety of inmates in federal penitentiaries is the primary responsibility of the federal government, and, to date, no inmate has tested positive at the institution the Applicant is serving his sentence at. For these reasons, the court decided that the Applicant did not satisfy the court that his detention is not necessary in the public interest.

In addition to these factors, the court stated that the Applicant proposed a weak plan of release and has breached bail terms in the past. The court also highlighted that the offences he was convicted of include sexual offences and serious crimes against children.

Decision

Stone’s application for release pending appeal was dismissed. The court found that, based on the criteria set out in section 679(4) of the Criminal Code, it was necessary for Stone to remain in detention.

Read the full case HERE

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