Note: The trial has concluded. The decision is no longer subject to a non publication order. DATE: 20060915 DOCKET: M33694
COURT OF APPEAL FOR ONTARIO
BORINS, JURIANSZ and LAFORME JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN Applicant
Alex Alvaro for the applicant
- and -
ERLAND WALLACE MORDUE Respondent(s)
Robert Sheppard for the respondent
Heard: August 16, 2006
On review under s. 680 of the Criminal Code of the order of Justice John F. McGarry J. dated February 10, 2006.
JURIANSZ J.A.:
Introduction and Facts
[1] On the direction of the Chief Justice under s. 680 of the Criminal Code, this is a review of the order of the Superior Court of Justice granting bail to the respondent pending his trial for first-degree murder.
[2] The respondent is charged with the first-degree murder of his estranged spouse, Lois Mordue, on August 8, 2005 in Woodstock, Ontario. She was his second wife. The respondent and Lois Mordue both had adult children from earlier marriages. In 2004 the victim left the respondent. In the summer of 2005 she began a romantic relationship with another man. During the last two weeks of July 2005, the respondent contacted and attempted to contact the victim repeatedly by telephone and by leaving a note on her car asking for another chance. On July 30, he telephoned her and told her he knew she had been with another man on the previous Saturday night, knew that the man drove a white car and that he was at her house at that moment. The victim and her friend complained to the police who warned the respondent to leave them alone. The victim confided to friends that she was considering divorcing the respondent and that she feared for her safety and that of the man she was seeing.
[3] On August 8, the respondent advised his employer he was not well. At 10:30 a.m. he telephoned the victim at work and told her a tire on her car in the parking lot was flat and asked her to come out and open the trunk so he could change it for her. She refused to do so, believing that the respondent was stalking her.
[4] In the afternoon the respondent bought some beer and started to drink it. The victim returned home from work at about 5:00 p.m. and was murdered sometime between then and about 7:00 p.m. She was stabbed numerous times, suffered a number of defensive cuts, her throat was slashed and her hand was almost severed. The floor and her clothing were soaked in blood and there was blood splattered across the floor. The phone line to her home had been cut. A photograph of her son, who had provided her with a place to stay when she left the respondent, was slashed. The respondent’s fingerprints in blood were found at the scene. A beer bottle of the type the defendant had purchased and was drinking was found on the scene.
[5] Between 6:30 p.m. and 7:00 p.m. coworkers of the respondent saw him driving his pickup truck near the local railway line. He looked straight ahead and did not wave to them as he usually did. At 8:20 p.m., a railway conductor saw what he described as a “despondent man” near the railway tracks. He called the police who, when they arrived at about 8:40 p.m., observed the respondent attempt to jump in front of a train. They apprehended him and observed that he had dried blood on both of his hands, his shirt and pants and a strong odour of alcohol on his breath. He had long self-administered cuts on both wrists. The police recovered a knife that subsequently was found to have both his and the victim’s DNA on it. There was blood in his truck that had both his and the victim’s DNA. The blood on his clothes also had his own and the victim’s DNA.
[6] The police, upon doing a name check, discovered the victim’s complaint to the police made the previous week. They went to her residence and discovered her lying dead in a pool of blood on the kitchen floor.
[7] When the respondent was arrested he asked, “Who found her?” When told it was the police, he inquired, “How could they find her? She was in the house.” He later denied he had been to the house.
[8] The police found two handwritten notes at the murder scene, ostensibly to two of the victim’s children from a previous marriage. At the preliminary hearing, a CFS expert identified the respondent as the author of the notes. However, even without this further evidence, the contents of the notes strongly suggested that the respondent wrote them. In the note to the victim’s daughter, the respondent asked for forgiveness and told her he could not stand to see the victim with another man. In the note to the victim’s son, he blamed the son for having purchased a home that allowed the victim to move and live separate and apart from the respondent. The police found a further note at the respondent’s home to his three daughters. The respondent apologized to his daughters and told them he could not live without the victim and could not allow her to be with another man.
[9] The respondent had an unimportant minor criminal record consisting of one conviction for impaired driving in the late 1980s.
Legislative Framework
[10] Section 522 of the Code provides that only a judge presiding in a superior court of criminal jurisdiction may order the release of an accused charged with murder. Section 522(2) places the onus on the accused to show cause why his detention in custody is not justified within the meaning of s. 515(10). Section 515(10) provides:
For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.
[11] Paragraph (a) of s. 515(10) is referred to as the primary ground for the detention of an accused. The purpose of the primary ground is to ensure that the accused will attend in court to have the charges dealt with according to the law. Paragraph (b) is called the secondary ground. The secondary ground is primarily concerned with whether the accused will commit further offences while on bail awaiting trial. Paragraph (c) is the tertiary ground. The tertiary ground, which is the only ground at issue in this case, allows the detention of an accused in order to maintain the public’s confidence in the administration of justice. It may be noted that the word “public” does not appear in the English version of s. 515(10)(c). The French version, which refers to “la confiance du public envers l’administration de la justice”, and the Supreme Court’s interpretation of the paragraph make it clear that it is concerned with the public’s confidence.
[12] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, the Supreme Court of Canada found the opening phrase of s. 515(10)(c) – “on any other just cause being shown” – to be unconstitutional because it confers an open ended discretion to refuse release. The court found the rest of s. 515(10)(c) to be constitutional.
Decision Below
[13] The respondent’s bail hearing was conducted by a justice of the Superior Court in accordance with s. 522. The bail judge released the respondent on a recognizance in the amount of $125,000 with his three daughters named as sureties. Conditions imposed included that he reside with one daughter and her husband and that he be supervised at all times by his sureties.
[14] The Crown does not take issue with the bail judge’s finding that detention was not necessary to ensure the respondent’s attendance in court under s. 515(10)(a) nor for the protection or safety of the public under s. 515(10)(b). The Crown submits, however, that detention was required under s. 515(10)(c) in order to maintain confidence in the administration of justice.
[15] The bail judge found the tertiary ground was not satisfied because concern about his release could be met through appropriate conditions, and denying the accused bail would be tantamount to ruling that no person would be entitled to bail if charged with first degree murder and the Crown has a strong case.
[16] In my view, the bail judge considered the wrong question and took an unduly limited approach to the issue of public confidence. Specifically, he addressed bail principles at large rather than focusing on the individual case before him, he equated public concern about safety with public confidence in the administration of justice, and placed insufficient weight on the four statutory factors that must be considered under s. 515(10)(c).
Asking The Incorrect Question
[17] The bail judge seemed to consider that the issue before him was whether a person charged with first-degree murder and facing a strong Crown case could be released on bail. At para. 12 of his reasons, he stated, “In my view, the focus of my inquiry is whether a person charged with first degree murder, if the crown has a strong case, is entitled to be released on bail.” At para. 15 he stated, “In these circumstances, to deny the accused bail would be tantamount to ruling that no person would be entitled to bail if he is charged with first degree murder and there is a strong case to be brought by the crown.”
[18] With respect, this general question was not before the bail judge. The proper focus of his inquiry was whether bail was to be granted or refused in the circumstances of the individual case before him.
[19] It seems the general question posed and considered by the bail judge distracted him from focusing on and giving sufficient consideration to the four statutory factors. As I explain at greater length below, the question of whether the accused’s release will undermine the public’s confidence in the administration of justice largely hinges on the application of the four factors stipulated by s. 515(10)(c).
[20] Before discussing the application of the four statutory factors to the circumstances of this case, I turn to an examination of the bail judge’s approach to the notion of public confidence in the administration of justice.
Equating Public Concern with Public Confidence
[21] The bail judge considered the level of public concern about safety. He found that that public concern was adequately addressed by the quality of the respondent’s sureties and the bail conditions imposed. He said at para. 12, “I do not find in these circumstances the same level of public concern that was evidenced in the Hall decision. While the family of the deceased has understandable concerns with respect to his release, I believe that they can be met through conditions.”
[22] Indeed, as Hall makes apparent, public concern about safety may be a relevant consideration in analysing the tertiary ground. In Hall, there was a general sense of fear that there was a killer at large, and people, including the victim’s family, were very fearful.
[23] Public fear and concern about safety, while relevant, are not the exclusive considerations in assessing the public’s confidence in the administration of justice. The effect of the accused’s release on confidence in the administration of justice must be considered more broadly.
[24] Limiting the analysis of confidence in the administration of justice to the public’s safety concerns results in the tertiary ground amounting to little more than a recapitulation of the secondary ground. However, the tertiary ground provides a separate and independent basis to refuse bail to an accused, as McLachlin C.J.C. made clear in Hall. At para. 30, she said, “Bail denial to maintain confidence in the administration of justice is not a mere ‘catch-all’ for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories.” This is further apparent in the language of s. 515(10)(c) that provides that the detention of an accused is justified “on one or more” of the primary, secondary and tertiary grounds.
[25] Here, the bail judge placed decisive weight on the quality of the respondent’s bail arrangements. By doing so, he erred by not considering whether the tertiary ground established a separate and distinct basis for denying bail. Having quite appropriately considered the level of public concern about safety in this case, the bail judge erred by not going on to consider the effect the release of the respondent would have more broadly on the public confidence in the administration of justice.
Insufficient Weight on the Four Statutory Factors
[26] Where the individual case turns on the tertiary ground, as here, the question is whether the accused’s presence in the community will undermine the public’s confidence in the administration of justice. The question, while easily stated, is not easily answered. A court, given the tools and evidence available to it, cannot directly discern what the public is thinking. As McLachlin C.J.C. explained in Hall, the question comes down whether a reasonable member of the community is satisfied that the denial of bail is necessary to maintain the public’s confidence in the administration of justice. At para. 41 she said:
At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.
[27] McEachern C.J.B.C. (in Chambers) put it this way in R. v. Nguyen (1997), 1997 10835 (BC CA), 119 C.C.C. (3d) 269 (B.C.C.A.), at p. 274:
The principle that seems to emerge is that the law favours release unless there is some factor or factors that would cause “ordinary reasonable, fair- minded members of society”…, or persons informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case…, to believe that detention is necessary to maintain public confidence in the administration of justice [citations omitted].
[28] The question whether a reasonable person would be satisfied that refusal of bail is necessary to maintain public confidence in the administration of justice presents the usual difficulties of a reasonableness standard. Reasonable people can disagree. Without more, there is a danger that the unadorned application of this standard could too easily simply reflect a judge’s own perspective, resulting in unpredictable and inconsistent bail decisions determined by judicial discretion.
[29] Parliament, recognizing the court’s inability to measure public confidence directly and the judicial discretion inherent in identifying it, has specified four factors that the court should consider: “the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.” Courts are well able to assess these factors.
[30] The importance of the legislative direction that the court consider these four factors cannot be overstated. Their existence was integral to the Supreme Court’s finding in Hall that s. 515(10)(c) is constitutional where McLachlin C.J.C. explained that the provision did not authorize a “standardless sweep” because these four key criteria delineated a basis for the exercise of judicial discretion. She stressed the objective basis of decisions under s. 515(10)(c), stating at para. 36:
The inquiry is narrowed to the reasonable community perception of the necessity of denying bail to maintain confidence in the administration of justice, judicially determined through the objective lens of “all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment” [underlining added].
[31] No one factor is determinative. The four factors should be analysed together, not separately. Consideration of their combined effect in the context of all the circumstances enables the court to determine whether it is necessary to deny bail in order to maintain public confidence in the administration of justice.
[32] Section 515(10)(c) is designed so that a consideration of all the circumstances with special regard to the four key factors will result in a determination that maintains the public’s confidence in the administration of justice. For example, where each of the four factors is assessed as having maximum force, a determination that refusal of bail is necessary to maintain public confidence in the administration of justice is entirely to be expected.
Application of the Four Factors to the Facts of This Case
[33] The offence in this case, first-degree murder, is of the utmost gravity.
[34] The bail judge noted that the Crown has a strong case of first-degree murder. However, he did not explicitly comment on the strength of the Crown’s case for second-degree murder, nor upon “the potential for a lengthy term of imprisonment.” The apparent strength of the prosecution’s case for second-degree murder, at this stage, is formidable. Indeed, counsel conceded that the major issue at trial will be whether the respondent should be convicted of first or second-degree murder. A sentence of life imprisonment in this case seems highly likely.
[35] Thus, three of the four factors should be assessed at or near their highest levels.
[36] As well, more weight should have attached to the circumstances of the offence. Explicit consideration should have been given to the domestic nature of the murder and the extent of the violence used in committing it in assessing the effect of release on the public’s confidence in the administration of justice. In this case, it is alleged that the respondent brutally murdered his wife because she had left him and had started seeing another man. As already noted, the evidence that he did so is quite overwhelming. A reasonable member of the community would rightly be concerned with the public’s confidence in how the justice system responds to acts of domestic violence if the respondent were granted bail.
[37] In my view, the combined effect of the four statutory factors in all the circumstances of the case indicates that the detention of the respondent is necessary to maintain public confidence in the way justice is administered.
[38] For these reasons, the application is granted, the order releasing the respondent is set aside, and an order returning the respondent to detention is substituted.
“R.G. Juriansz J.A.”
“I agree S. Borins J.A.”
“I agree H.S. LaForme J.A.”