Officer Jason Nevill Denied Bail Pending Appeal

Officer Jason Nevill has been in the news a lot lately.  He’s the Barrie officer who beat up a citizen, Jason Stern, and attempted to cover it up and even had the citizen charged with assault.  Thanks to video evidence the citizen was vindicated and the officer charged.  Last week the officer was sentenced to 12 months in custody.  Yesterday he applied for bail.

The test for bail pending appeal to the Court of Appeal is quite simple and is governed by s. 679(3) of the Criminal Code:  the appeal must not be frivolous, the court must be satisfied the person will surrender into custody prior to the determination of the appeal, and the detention is not necessary in the public interest.  The test for whether an appeal is frivolous is not overly burdensome – the Judge must simply determine if there is some merit to the appeal, not necessarily how they would rule if the appeal were heard that day.  In the majority of cases for an accused who was out of custody before sentencing the Crown will consent to the bail.  In this case, the Crown did not consent.

Justice Robert Sharpe denied officer Nevill bail.

The short, 28 paragraph decision, contains many strong comments and presents important issues for the criminal justice system.  For one, there is the issue of police training.  Officer Nevill raised a defence that his training justified his behaviour.  Justice Sharpe didn’t buy this argument:

[12]       The appellant called an expert witness who testified that the appellant’s conduct was consistent with police training. I pause to observe that I find the proposition that the appellant’s conduct, as revealed by the video, could be consistent with police training to be extremely alarming.

The reality is that police training in this province is lacking.  There is no consistent criteria.  While I agree that there is no basis to the officer’s argument, I do think that many problems with policing can be solved by implementing a consistent and rigorous training regimen that teaches officers how to behave in various circumstances.

Justice Sharpe, who viewed the video evidence, ultimately found the appeal to be frivolous, stating:

[25]       In my view this appeal is frivolous. The case turned on credibility and the trial judge gave careful and detailed reasons rejecting the evidence of the appellant and finding that it failed to raise a reasonable doubt. The appellant’s version of what occurred was inconsistent not only with the complainant’s evidence but also with the video. The video evidence is powerful and overwhelming and it is impossible to see how the grounds of appeal advanced by the appellant could overcome the force of that evidence.

The practical effect of this decision is that Officer Nevill will likely have served a large portion or all of his sentence by the time a panel of the court hears the appeal.  The court was attune to this.  In considering the public interest part of the test (which wasn’t even necessary given the finding that the appeal is frivolous), Justice Sharpe stated:

[26]       I turn to the tertiary criterion, namely, the public interest. I recognize that it is highly unlikely that this appeal will be heard before the appellant has served his sentence and that the interest of reviewability favours release pending appeal.

Another disturbing part of this case is that, but-for the presence of the video, a man could have been wrongfully convicted, and Officer Nevill would have never been held to account for his actions.  Justice Sharpe’s comments on this issue were particularly striking:

[27]       Against the interest of reviewability I must weigh the interest of enforceability. In my view, the interest of enforceability must prevail in the circumstances of this case. There is, in my view, no prospect of success on this appeal because of the powerful evidence revealed by the video. The appellant unleashed an unprovoked and vicious attack on the complainant. As Crown counsel put it, but for the video it is entirely possible that an innocent man would have been convicted on fabricated charges. The public interest in maintaining confidence in the integrity of the administration of justice strongly militates towards enforceability in these circumstances.

Unfortunately, in this province there are officers who will behave unethically and cause the entire force, and the many good and decent cops, to be looked-upon with disdain and suspicion by the public.  This case certainly doesn’t help this image.  Hopefully it will make police realize that the “brotherhood” mentality needs to go, and that poor behaviour needs to be reported.  Hopefully it will also make the public realize that not everyone charged with an offence is guilty.

Ideally Crown Attorneys will take note of this decision and examine their cases with a bit more skepticism.

The most disturbing part of this case is that there are likely others who have been wrongly charged with rogue police officers.  I doubt it happens often, but I do believe it does happen.  Jason Stern was lucky that the video was found.  There are definitely other people out there who weren’t fortunate enough to locate such clear evidence to prove their own innocence.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

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