DATE: 20051007

DOCKET: M33018

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Moving Party/Applicant) –and- RICHARD TRUDEL (Respondent/Respondent on the Motion)

BEFORE:

MCMURTRY C.J.O.

COUNSEL:

Susan Chapman and Julie Scott

for the applicant/Moving Party, Her Majesty the Queen

Matthew Webber and Catherine Glastier

for the respondent/Responding Party, Richard Trudel

HEARD:

October 3, 2005

E N D O R S E M E N T

[1] This is an application brought by the Crown seeking an order under Section 680 of the Criminal Code directing a review of the order of Kealey J. made on July 7, 2005 granting judicial interim release, on strict terms, to the respondent. This case is unique, requiring a consideration of a novel combination of factors bearing on the determination of whether an accused person should be admitted to bail pending a retrial.

[2] In summery, the offences underlying this application were committed in January of 1990. The respondent was ultimately convicted and sentenced to life imprisonment. He had been in custody on this matter since the time he was charged in December 1990, having been denied bail pending his trial until his release pursuant to the decision of Kealey J.

[3] In 1990, and by the time of his original bail hearing, the respondent was, if not the "worst offender", certainly a person with a serious criminal record for violence, drug trafficking and interference with the administration of justice. The allegation with respect to the offences was that the respondent and others engaged in the execution of a low-level drug trafficker to enforce a drug debt and to send a warning message to other customers that their drug debts must be paid. Additionally, the victim’s wife, who was seven months pregnant at the time, was murdered at the scene. At trial, the Crown relied largely on the evidence of three "unsavoury" witnesses. The respondent did not testify. After a lengthy trial, the respondent was convicted. In 2004, this court directed a new trial in the matter.

[4] The Crown has advised that it will not be calling two of the unsavoury witnesses but will be relying on the third whose evidence was most important to the case. Before the motions judge and before me counsel argued as to whether the case was still strong or weakened in light of the findings of this court on the appeal and the Crown's decision to with respect to two of its witnesses.

[5] Counsel for the respondent estimated that the re-trial of the respondent would not take place until the autumn of 2006.

[6] As noted, the respondent has been in custody for many years. His institutional records were filed on the motion for bail pending the new trial. They are, arguably, reasonably good and appear to show progress made by the respondent. The position of the Defense was that the person seeking bail in 2005 was different from the person who had been denied bail prior to the first trial. A program sponsored and monitored by the John Howard Society was put forward as a plan of release that provided some liberty for the respondent on strict terms amounting to nearly house arrest at a facility operated by the Society.

[7] The respondent did not testify at his bail hearing. The Crown submitted that without exposing himself to examination, the motions court was not in a position to assess for itself the "changed" character and reliability of the respondent. The onus was, of course, upon the respondent to show that he could be released into the community.

[8] It was the motions judge’s difficult task to weigh all of these factors in coming to his decision. The Crown submits that he erred in law in evaluating and weighing them in relation to each of the primary, secondary and tertiary grounds for denying release.

[9] Given the unique and novel combination of factors that have come into play in this matter, I am of the view that the Crown's motion has arguable merit that would benefit from consideration by a panel of this court. Accordingly, I direct that a panel of this court review the decision of the motions judge, on a date to be fixed by the Registrar. I expect that counsel for the parties will file new or revised factums that contain the usual cross-references to a compendium or to the motion record and other material filed or to be filed.