Accused was terminally ill, feared he would not be alive when appeal was heard
The Alberta Court of Appeal has refused a request for bail by a terminally ill prisoner who was convicted of sexual offences.
In R v. SDH, 2022 ABCA 367, a terminally ill man was convicted of sexual interference, invitation to sexual touching, incest, and sexual assault. He was sentenced to nine years’ incarceration. He appealed his convictions, and he also applied for judicial interim release pending determination of his appeal. He said he was fearful that he would not be alive when his appeal was heard. The man suffered from a rare skin cancer that prevented him from working and an oncologist said that he had already lived longer than the median life expectancy for a person with his condition.
The appeal court determined that an applicant seeking bail pending appeal against a conviction for a serious criminal offence must pass a four-part test – the applicant must establish on a balance of probabilities that their appeal is not frivolous, they will surrender into custody in accordance with the terms of any final bail order, the likelihood they will commit a criminal offence if released is nonexistent, and, finally, the appeal is more likely to succeed than fail.
During trial, the lawyer of the accused argued that it would be appropriate, on account of the accused’s terminal illness, to relieve him to pass the onerous merit-based component of the public interest criterion. The lawyer asserted it did not make sense to apply the onerous merit-based test if there was a concern that the accused’s medical condition may compromise the utility of his appeal.
However, the appeal court was of the view that the bail-pending appeal test could not be revised to accommodate applicants who were terminally ill. The court emphasized that the Criminal Code and case law did not allow an adjudicator to ignore the merit-based component of the public interest criterion on account of the health of the accused.
The court acknowledged the possibility that the accused may die in prison before his appeal was heard and that his appeal was not hopeless. But this was not a factor that the court could consider when applying the relevant provision of the Criminal Code. Rather, the law focused on the likelihood that the offender would commit another crime and pose a threat to the safety of the public. The court emphasized that prison conditions and the health of an offender did not factor in the assessment.
In addition, the accused also failed to convince the court that his appeal was more likely to succeed than fail. The court ultimately dismissed the accused’s application to be released pending his appeal.
