R v Drabinsky

R. v. Drabinsky —

Ontario Court of Appeal — Doherty J.A. (in chambers) — October 14, 2011 | 2011 ONCA 647

Background

Garth Drabinsky was convicted in March 2009 of two counts of fraud following a lengthy trial arising from conduct in the 1990s. He was sentenced in August 2009 to seven years imprisonment. He was released on bail pending appeal and remained out of custody throughout the appellate process — over two years in total. In May 2011, his conviction appeal was heard. In September 2011, this court dismissed the conviction appeal, describing the case against him as overwhelming, particularly given the absence of any testimony from the appellants. His sentence was reduced to five years on a separate sentence appeal.

Upon release of those reasons, Drabinsky went into custody. He then applied under s. 679(3) of the Criminal Code for bail pending his application for leave to appeal to the Supreme Court of Canada. That application came before Doherty J.A. sitting in chambers.

Issues

Whether Drabinsky had established, under s. 679(3) of the Criminal Code, that his detention was not necessary in the public interest — specifically, whether the principle of reviewability of his conviction was sufficient, at this late stage of the appellate process, to displace the principle of enforceability of his sentence.

The Legal Framework

Section 679(3) of the Criminal Code requires an applicant seeking bail pending appeal to establish three things: the appeal or leave application is not frivolous; the applicant will surrender into custody as required; and detention is not necessary in the public interest. Drabinsky's compliance history was unimpeachable — the surrender criterion was never in doubt. The frivolousness threshold was assumed cleared without deciding, as the application failed on the public interest criterion in any event.

The governing framework for that criterion is R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.). As Arbour J.A. set out in that decision, the public interest in the bail-pending-appeal context requires a judicial assessment of two competing principles: enforceability — the general rule that court orders, including sentences, should be given immediate effect — and reviewability — the principle that a statutory right of appeal should not be rendered meaningless because an accused will have served their entire sentence before the appeal is determined. Neither principle is absolute. The court must determine, on the facts before it, which principle should yield.

The Court's Analysis

Doherty J.A. held that at this stage of the proceedings — bail pending a leave application to the Supreme Court of Canada, following dismissal of a conviction appeal — priority must go to enforceability. He identified three reasons.

First, the reviewability principle had already been given full effect. Drabinsky had been on bail for over two years while he pursued his appeal to the Court of Appeal. That court not only dismissed the conviction appeal but described the evidence against him as overwhelming. The appellate process had run its course at the intermediate level. Enforcing the sentence at that point is not a failure of the system — it is the system working as designed.

Second, Drabinsky had no further right of appeal as of right. To obtain any further review, he needed leave from the Supreme Court of Canada — a threshold that court grants sparingly, and nothing in the material before Doherty J.A. pointed to features of the case that made a grant of leave likely. The reviewability principle does real work when appeal is available as of right. Where review depends entirely on a discretionary leave grant that is unlikely to succeed, the principle operates only contingently and with considerably less force.

Third, denying bail would not render the leave process meaningless in practical terms. Counsel advised that the Supreme Court typically disposes of leave applications within three to six months. Drabinsky had served approximately one month of a five-year sentence. Even if bail were denied pending the leave decision, he would still have years remaining to serve — plenty of time to pursue an appeal on the merits if leave were granted. This was not a case where a short sentence would be exhausted before the court could act. The practical injustice that animates the reviewability principle was not present.

Doherty J.A. left open the possibility of a fresh application. If leave were granted, that would be a materially changed circumstance calling for reassessment.

Decision

Application dismissed, without prejudice to a further application should leave to appeal to the Supreme Court of Canada be granted.

Key Takeaways

Drabinsky applies Farinacci at the far end of the appellate road and makes explicit what Arbour J.A.'s framework implies: the enforceability-reviewability balance is not static. It shifts as proceedings advance.

At the pre-trial stage, the presumption of innocence governs. At the conviction appeal stage, reviewability carries real weight — an accused who cannot raise bail serves months waiting for a hearing that may produce an acquittal. By the time a conviction appeal has been heard and dismissed, however, the calculus has changed materially. The system has already reviewed the conviction. It has already given priority to reviewability by releasing the accused during that process. When the appeal fails — especially when the appellate court describes the evidence against the accused as overwhelming — enforceability moves to the front.

Three variables determine where the balance sits at the leave-to-appeal stage: the strength of the remaining grounds of review, the likelihood of leave being granted, and whether the sentence will practically be exhausted before review can occur. When grounds are weak, leave is unlikely, and years of sentence remain to be served — enforceability wins.

The broader lesson is this: bail pending appeal is not a benefit that compounds automatically as you advance through the system. Every stage of the process requires its own analysis, and the further a conviction has been affirmed, the heavier the weight on the enforceability side of the scale. Know where you are in the process. Know what the balance looks like at that stage. And if leave is granted, apply again — because Drabinsky itself acknowledges that changed circumstances change the answer.