COURT OF APPEAL FOR ONTARIO

DATE: 2006-12-20

DOCKET: M34280

RE: HER MAJESTY THE QUEEN (Respondent/Respondent on the Motion) –and- BOYLE, MICHAEL (Moving Party/Applicant)

BEFORE: McMURTRY C.J.O. (In Chambers)

COUNSEL: Christopher Hicks, For the applicant/Moving Party, Michael Boyle Christine Barlett-Hughes, For the respondent/Responding Party, Her Majesty the Queen

HEARD: December 19, 2006

ENDORSEMENT

[1] This is an application brought on behalf of Mr. Boyle pursuant to section 680 of the Criminal Code seeking an order directing a review of the detention order made by the Honourable Justice Charbonneau on April 10, 2006. Given that the charges involve murder and attempted murder, the onus was upon the applicant to show cause why he could be released. The learned judge found that the applicant had not met that onus in respect of the "secondary ground" set out in section 515(10) of the Code. In the circumstances it was unnecessary for him to consider the tertiary grounds for detention.

[2] I am satisfied that on the basis of the material before him, the learned judge was justified in ordering the detention of the applicant. He was fully cognizant of the nature of the evidence to be adduced at trial and considered that while the case for the prosecution appeared to be strong, it was open to challenge given the circumstances surrounding the two primary crown witnesses. The evidence before him depicted a crime of extreme violence and one of remarkable ruthlessness, given that the evidence suggested that at least part of the motivation for the murders and attempted murder was the elimination of witnesses. Given the evidentiary record at the bail hearing, I am satisfied that there is no realistic likelihood that a panel of this court would find the judge erred in detaining the applicant.

[3] Counsel for the applicant also sought to introduce additional evidence, which he submitted, undercut the strength of the crown's case. The position of the crown was that if counsel for the defence wishes to put forward a material change, he is obliged to renew the application before the Superior Court. There is ample authority for this proposition, although I am not prepared to rule that there are no circumstances under which an appellate court might consider fresh evidence on such a review. However, there is considerable common sense in returning to the originating court, creating an evidentiary record and obtaining the views of a judge of first instance on the impact of the new or changed information on the issue of interim release. Such a procedure would create the necessary record for further review, if appropriate, by this court. Counsel have advised that the preliminary inquiry in this matter is scheduled to commence within a few weeks, when this evidence and the evidence of the two primary witnesses will no doubt be examined extensively.

[4] In the circumstances, I am of the view that this motion should be dismissed without prejudice to counsel for the applicant renewing the bail application in the Superior Court and without prejudice to counsel applying again before me at a later date, if appropriate.

"R. Roy McMurtry C.J.O."