Re Regina and Baltovich [Indexed as: R. v. Baltovich]

47 O.R. (3d) 761

[2000] O.J. No. 987

Nos. C12090 and M25498

Court of Appeal for Ontario

Rosenberg J.A.

(In Chambers)

March 31, 2000

Criminal law -- Bail -- Bail pending appeal -- Second original application for bail pending appeal may be brought where there has been material change in circumstances after initial application -- Applicant convicted of second degree murder -- Original application denied because grounds of appeal not compelling and applicant considered unlikely to surrender into custody -- Judge hearing original application also assuming that appeal would be heard within six months -- Hearing of appeal delayed for eight years due to defence counsel's pursuit of fresh evidence -- Applicant having now demonstrated that he would surrender -- New grounds of appeal highly arguable -- Some grounds of appeal sufficiently compelling that it was not necessary in public interest that applicant be further detained -- Application for bail granted.

The applicant was convicted of second degree murder in 1992. The case against him was wholly circumstantial. His application for bail pending appeal was dismissed on the grounds that the grounds of appeal were not compelling and the accused, as a young, unattached man faced with a lengthy term of imprisonment and with very real uncertainty with respect to the success of his appeal, was unlikely to surrender into custody in accordance with the terms of a release order. The judge hearing the original application was influenced by the fact that it was expected that the appeal would be heard within six months. The applicant's application for a review of that decision was dismissed. The appeal was not heard within six months. Eight years after the applicant's conviction, it was expected that it would be at least another year before the appeal was heard. The delay in perfecting the appeal was caused by the pursuit of fresh evidence by counsel for the applicant. The applicant brought a second original application for bail pending appeal.

Held, the application should be granted.

A second original application for release pending appeal may be brought pursuant to s. 679 of the Criminal Code, R.S.C. 1985, c. C-46 where there has been a material change in circumstances after the initial application. Since it is a fresh application, rather than a review of the first decision, the parties must accept that the first decision was correct. A material change in circumstances would require additional information that could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in s. 679(3), namely, (a) whether the appeal is frivolous; (b) whether the applicant will surrender into custody in accordance with the terms of the release order; and (c) whether the applicant's detention is necessary in the public interest. If there is a material change in circumstances, the judge must then consider all of the statutory grounds and must be satisfied that the applicant met the onus in s. 679(3).

There had been a material change in circumstances in this case such that the court had jurisdiction to consider the second fresh application. Some of the new grounds of appeal were highly arguable. The applicant had demonstrated that he was likely to surrender into custody. The applicant's institutional record in the penitentiary during the eight years since his conviction was exemplary. He now had additional sureties available and an offer of employment. It could no longer be said that there had not been an undue delay before the appeal could be heard. An appellant's release pending appeal of a murder conviction, while not unprecedented, is rare. However, appellate courts have recognized that, where the grounds of appeal are strong and where there is serious concern about the accuracy of the verdict, the public interest may well shift in favour of release. The applicant was a mature offender, with no prior record, convicted of one of the most serious offences. The interest in reviewability outweighed the i nterest in enforceability of the judgment. There was no suggestion that the applicant represented a danger to the public. While the case should not be approached on the basis that there was a reasonable possibility that an innocent man had been convicted, at least some of the grounds of appeal were sufficiently compelling that it was not necessary in the public interest that the applicant be further detained.

APPLICATION for bail pending appeal.

R. v. Daniels (1997), 1997 3670 (ON CA), 35 O.R. (3d) 737, 119 C.C.C. (3d) 413, 11 C.R. (5th) 331 (C.A.), apld R. v. Farinacci (1993), 1993 3385 (ON CA), 109 D.L.R. (4th) 97, 18 C.R.R. (2d) 298, 86 C.C.C. (3d) 32, 25 C.R. (4th) 350 (Ont. C.A.); R. v. Johnson (1998), 1998 NSCA 14, 170 N.S.R. (2d) 349, 515 A.P.R. 349, 131 C.C.C. (3d) 343, 21 C.R. (5th) 135 (C.A.), consd Other cases referred to R. v. Baltovich (1991), 1991 7308 (ON CA), 6 O.R. (3d) 11, 68 C.C.C. (3d) 362 (C.A.); R. v. Demyen (1975), 1975 1338 (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.); R. v. Khan (1998), 1998 17677 (MB CA), 131 Man. R. (2d) 70, 187 W.A.C. 70, 129 C.C.C. (3d) 443 (C.A.); R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Morin (1993), 1993 17045 (ON CA), 19 C.R. (4th) 398 (Ont. C.A.); R. v. Parsons (1994), 1994 9754 (NL CA), 117 Nfld. & P.E.I.R. 69, 365 A.P.R. 69, 30 C.R. (4th) 169 (Nfld. C.A.), supp. reasons 1994 9768 (NL CA), 118 Nfld. & P.E.I.R. 353, 369 A.P.R. 353, 30 C.R. (4th) 189 (Nfld. C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 679, 680

James Lockyer and Joanne C. McLean, for applicant. Carol A.R. Brewer and Shawn D. Porter, for the Crown, respondent.

[1] ROSENBERG J.A.: -- The applicant applies for bail pending his appeal from conviction for second degree murder. The applicant was convicted on March 31, 1992 and sentenced to life imprisonment without parole for 17 years on May 1, 1992. The deceased was the applicant's girl friend and the Crown alleged that the applicant killed her when he learned that she wished to break off their relationship. The case against the applicant was wholly circumstantial. While the deceased's car, containing traces of her blood, was found a few days after she disappeared, the deceased's body has never been found.

[2] On October 8, 1992, the applicant's trial counsel applied for bail pending appeal on the applicant's behalf. Goodman J.A. dismissed that application on October 14, 1992. On January 25, 1993, Dubin C.J.O. dismissed an application for a review of that decision. That application was brought pursuant to s. 680 of the Criminal Code, R.S.C. 1985, c. C-46. The applicant now brings a fresh application for release pending appeal in accordance with the doctrine set out in R. v. Daniels (1997), 1997 3670 (ON CA), 35 O.R. (3d) 737, 119 C.C.C. (3d) 413 (C.A.).

The Daniels Threshold

[3] In Daniels, this court held at p. 748 O.R., p. 427 C.C.C. that a second original application for release pending appeal may be brought pursuant to s. 679 of the Criminal Code where there has been a "material change in circumstances after the initial application". There was some dispute between the parties as to the test to be applied in bringing a Daniels application and, specifically, whether it was sufficient that there be a change in circumstances or whether there must be a material change in circumstances. In my view, the judge's jurisdiction to deal with a second application depends upon there being a material change in circumstances.

[4] There was also some difference of opinion as to the consequences of a finding of a material change in circumstances and, in particular, the degree of deference that must be paid to the first decision if this threshold is met. Since this is a fresh application, not a review of the previous decision, it seems to me that the parties must accept that the first decision was correct. Of course, that decision would have been based on different material. I intend to only briefly set out my reasons for those conclusions.

[5] The scheme of Part XXI of the Criminal Code is that ordinarily there will be one opportunity to apply for release pending appeal. The scheme is very different from that set out in Part XVI, which governs release pending trial, where an elaborate process has been established permitting multiple applications and opportunities for review at all stages up to conviction and sentence. Under Part XXI, there is a narrow right of review that depends upon the applicant first obtaining a direction from the chief justice or the acting chief justice. Such applications are relatively rare and are rarely granted.

[6] While Daniels recognized that subsequent applications may be brought, I think it unlikely that this court intended that an applicant could bring a fresh application every time there was a change in circumstances. This would virtually subvert the scheme set out in Part XXI. In my view, a judge hearing a subsequent "original" application only has jurisdiction to deal with the application on the merits if he or she is satisfied that there has been a material change in circumstances. A material change in circumstances, for this purpose, would require additional information that could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in s. 679(3), namely, (a) whether the appeal is frivolous; (b) whether the applicant will surrender into custody in accordance with the terms of the release order; and (c) whether the applicant's detention is necessary in the public interest. If there is a material change in circumstances, the judge must then consider all of the statutory grounds and must be satisfied that the applicant has met the onus in s. 679(3).

[7] Since a Daniels application is not a review, the parties must accept the correctness of the decision of the first judge. In my view, this means that the parties and the judge hearing the subsequent application accept that on the basis of the material that was before the first judge, the decision was correct. Nevertheless, assuming the material change in circumstances threshold has been met, the judge's reasons on the initial application will be of assistance in determining whether the case is a proper one for release. For example, if the judge in refusing release expressed concern only about one particular factor, and that concern has been addressed on the subsequent application, this will be of assistance in deciding that the applicant has met the test in s. 679(3).

[8] For reasons that follow, I am satisfied that there has been a material change in circumstances and that I therefore have jurisdiction to consider this second fresh application.

The Hearing Before Goodman J.A.

[9] The parties have filed the material that was before Goodman J.A. This material included the charge to the jury, the objections and the additional charge, an affidavit from the applicant, an affidavit from his mother, an affidavit from trial counsel setting out some of the facts of the case and the proposed grounds of appeal, and an affidavit from one of the trial Crown attorneys.

[10] The grounds of appeal as they are set out in the affidavit of the applicant's trial counsel are not compelling. Goodman J.A. said that the grounds of appeal, "although clearly arguable, cannot be said to be so forceful as to exhibit a strong probability of the success of the appeal". For example, in the affidavit, counsel relied upon grounds of appeal based upon the theory that the victim might still be alive, that there was no evidence of foul play and that the Crown had failed to prove that the murder had taken place at the time and place specified in the indictment. In light of the substantial evidence that the victim had been murdered, that alone would have affected the strength of the proposed appeal. Based on the material placed before me, which I will expand upon below, the grounds of appeal now appear much more substantial. Indeed, Crown counsel characterized the grounds of appeal as "highly arguable".

[11] Goodman J.A. was also not satisfied that the applicant had shown that he would surrender into custody in accordance with the terms of a release order. After noting that this court had previously ordered the applicant's release pending the trial, [See Note 1 at end of document] Goodman J.A. pointed out that his situation was greatly different after conviction. The prosecution's case was sufficiently strong that he was convicted of murder and he had been sentenced to life imprisonment without parole for 17 years. That prospect, as Goodman J.A. observed, "might reasonably be expected to have a negative effect on a decision to surrender into custody". Goodman J.A. described the applicant as a "young unattached male facing a lengthy term of imprisonment subject to a very real uncertainty with respect to the success of his appeal". Goodman J.A. also pointed out that, while members of the applicant's family had volunteered to be his sureties and supervise him, some of them testified in support of an alibi defence and were obviously disbelieved.

[12] There has been a material change of circumstances with regard to the likelihood the applicant would surrender. Before Goodman J.A., the only proposed sureties were the applicant's mother and father. The applicant's mother is now deceased. The applicant's father still puts himself forth as a surety. In addition, six other members of the family or friends of the family are prepared to act as sureties offering a total of over $800,000. The affidavit evidence also shows that the applicant has considerable ties to the community where he would live if released and that he has an offer of employment. Further, the applicant has now served over half of the period of parole ineligibility imposed by the trial judge.

[13] In considering the public interest, Goodman J.A. was influenced by the fact that at the time he heard the application, it was expected that the appeal would be heard within six months. Considering the seriousness of the conviction, he did not consider that an "undue delay". Regrettably, Goodman J.A.'s expectations have not been met. It is now eight years to the day since the applicant was convicted. There have been serious delays in perfecting the appeal because the applicant's counsel have been pursuing fresh evidence. Very little was said before me as to why it was taking so long to complete this aspect of the case. It was agreed, however, that it would be at least another year before the appeal could be argued. Considering the time that the applicant has already spent in custody, it can no longer be said that there has not been an undue delay and it will be some time before the appeal is heard.

[14] To conclude, there has been a material change in circumstances with respect to the strength of the grounds of appeal, the likelihood that the appellant will surrender and, in general, the public interest. I therefore conclude that I have jurisdiction to consider this application for release. For the reasons that follow, I would grant the application.

The Appeal is not Frivolous

[15] Section 679(3) sets out the pre-conditions for release pending the appeal. The appellant must first establish that the appeal is not frivolous. This condition is not in dispute. As I said, the Crown concedes that some of the grounds of appeal are highly arguable. I will have more to say about the merits of the appeal when considering the public interest ground.

The Applicant Will Surrender

[16] The second pre-condition is that the applicant establish that he will surrender himself into custody in accordance with the terms of the order. I am satisfied that the applicant has demonstrated that he will surrender prior to the hearing of the appeal as required by the release order. The applicant is 34 years of age. Until his incarceration, he lived all of his life in Scarborough with his parents and older brothers. He has no prior record. He was released pending his trial and complied with all of the conditions of that release order. He is not known to abuse alcohol or drugs. He obtained an honours degree in psychology. He worked in the summers while a student and had commenced regular employment in September 1990 where he was working until his arrest in November 1990. After he was released on bail following the preliminary inquiry, the applicant worked part time at his father's store. The applicant now has an offer of employment if he is released pending his appeal.

[17] The applicant's record in the penitentiary has been exemplary. But for his continued protestations of innocence, and therefore his refusal to take courses or treatment premised on his guilt, he would probably have been transferred to a medium security institution. In the applicant's voluminous institutional record, a letter dated June 8, 1999 is telling. The writer is explaining why the applicant should not be considered for an anger management program:

When doing assessments for candidacy for the program, we look at a number of factors, i.e. previous criminal charges, institutional adjustments, escalations of violence, patterns of angry or aggressive behaviour, OIA [sic] indicators, previous treatment plans, psychology reports etc. This writer has checked over and over and can find no concrete evidence in any of the above sources that would indicate a need to take the program. Therefore, accordingly, his name should be removed from any Anger Management lists.

[18] I have already referred to a number of other matters bearing upon the likelihood that the applicant will surrender into custody prior to his appeal. He has many substantial sureties, he will live with his father, he has the support of his family and neighbours and he has already served a substantial portion of the sentence. I am satisfied that the applicant will surrender.

The Public Interest

[19] The public-interest ground takes on particular importance in cases where an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration. In his reasons on the first application, Goodman J.A. referred to the decision in R. v. Demyen (1975), 1975 1338 (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.) at p. 326 where Culliton C.J.S. wrote the following:

I think it can be said that the release of a prisoner convicted of a serious crime involving violence to the person pending the determination of his appeal is a matter of real concern to the public. I think it can be said, as well, that the public does not take the same view to the release of an accused while awaiting trial. This is understandable, as in the latter instance the accused is presumed to be innocent, while in the former he is a convicted criminal. The automatic release from custody of a person convicted of a serious crime such as murder upon being satisfied that the appeal is not frivolous and that the convicted person will surrender himself into custody in accordance with the order that may be made, may undermine the public confidence in and respect for the Court and for the administration and enforcement of the criminal law. Thus, in my opinion, it is encumbent upon the appellant to show something more than the requirements prescribed by paras. (a) and (b) of s. 608(3) to establish that his detention is not necessary in the public interest. What that requirement is will depend upon the circumstances of each particular case.

(Emphasis added)

[20] This court and other appellate courts have applied this reasoning in murder cases with the result that an appellant's release pending appeal of a murder conviction, while not unprecedented, is rare. On the other hand, appellate courts have recognized that, where the grounds of appeal are strong and where there is serious concern about the accuracy of the verdict, the public interest may well shift in favour of release. In an excerpt from his reasons in R. v. Parsons (1994), 1994 9754 (NL CA), 30 C.R. (4th) 169 at pp. 186-87, 117 Nfld. & P.E.I.R. 69 (Nfld. C.A.), subsequently approved on review by the Court of Appeal, [See Note 2 at end of document] Marshall J.A. put the matter this way:

The use of the notion "public perception" in this decision comprehends the perception of the repute of the administration of justice by a public reasonably informed of the criminal process and the circumstances of this case. In my opinion, such an opinion would conclude in the circumstances prevailing that in the interests of fairness and justice, this verdict should be reviewed before it is enforced.

[21] This echoes the explanation of public interest given by Arbour J.A. in R. v. Farinacci (1993), 1993 3385 (ON CA), 86 C.C.C. (3d) 32 at pp. 47-48, 18 C.R.R. (2d) 298 (Ont. C.A.):

s. 679(3)(c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decision granting or denying bail pending appeal can be reviewed. The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. The "public interest" criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.

On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes. This same principle animates the civil law dealing with stays of judgments and orders pending appeal. It is a principle which vindicates the value of reviewability.

(Emphasis added)

[22] Most contested bail applications fall in between the two extremes referred to by Arbour J.A., that is, between the case of the repeat offender with weak grounds of appeal convicted of a serious offence and a youthful first offender convicted of a minor property offence. This is one of those cases. I am dealing with a mature offender, with no prior record, convicted of one of the most serious offences. I have concluded that the interest in reviewability outweighs the interest in enforceability.

[23] The public interest, in the sense of reasonably informed public opinion, is difficult to gauge. The applicant has filed a number of affidavits from persons in the community which indicate their support for him and their belief in his innocence. This evidence, like a statement filed in the Parsons case and the similar affidavits filed in the Morin [See Note 3 at end of document] case, are entitled to some weight. However, I take into consideration that this is only a very small segment of the public and that their opinion of the case may have been swayed by information that has not been tested in court. I think it would also be unfair to place too much weight on such evidence without bearing in mind the contrary opinion likely held by the family of the deceased and their associates.

[24] It is therefore necessary to consider other public interest factors. There is no suggestion by the Crown that the applicant represents a danger to the public or that he would interfere with the administration of justice if released. This factor therefore suggests that his release may be in the public interest.

[25] In my view, the matter that is most influential on the question of the public interest is the strength of the grounds of appeal and I turn to those issues now. I must, however, preface that review with the following comments. While I have had the benefit of considerably more material than did Goodman J.A., I do not have a complete appeal record. The applicant has filed a lengthy and detailed factum running to 390 pages that will be used at the hearing of the appeal. The Crown has not yet filed its respondent's factum. I did have the benefit of a respondent's factum filed on this application, but it does not respond to all of the matters raised in the applicant's appeal factum. The applicant has also filed material that demonstrates the nature of the fresh evidence he hopes to tender on the hearing of the appeal. However, much of that material, while it may well be reliable, based as it is on police interviews, is double or triple hearsay. Some of the actual fresh evidence in the sense of affidavits fro m the first-hand witnesses has not been filed and there has only been cross-examination on some of that material. It follows that I cannot reach any final conclusion of the strength of the grounds of appeal and it is certainly possible that the panel of the Court of Appeal hearing the appeal would take a different view of the sufficiency of the grounds of appeal. With these caveats, I turn to some of the grounds of appeal.

The burden of proof

[26] The applicant submits that there was serious misdirection with respect to the burden of proof. This case preceded the decision of the Supreme Court of Canada in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1. Thus, the charge contains certain phrases that are no longer in use. In particular, in referring to the strength of circumstantial evidence, the trial judge said:

Nor is it very often that adequate evidence is not afforded by the attendant and surrounding facts, to remove all mystery, and to afford such a reasonable degree of certainty as men and women are daily accustomed to regard as sufficient in the most important concerns of life; to expect more would be equally needless and absurd.

[27] In Lifchus, Cory J. wrote as follows at p. 330 S.C.R., p. 9 C.C.C.:

Jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions.

[28] As Ms. Brewer pointed out, the charge must be read as a whole and the trial judge gave a correct explanation of the burden of proof in other parts of the charge. This is nevertheless a very arguable ground of appeal that was not drawn to the attention of Goodman J.A.

Fabricated alibi

[29] Several of the grounds of appeal concern the Crown's reliance upon evidence of consciousness of guilt and the trial judge's charge with respect to that evidence. The trial judge directed the jury that it could find that the applicant's alibi was concocted and this could support the identification evidence. There does not seem to have been any extrinsic evidence of a concocted alibi and this direction may have been improper.

Other evidence of consciousness of guilt

[30] The trial judge left a large number of items as demonstrating the applicant's consciousness of guilt. The applicant argues that many of these items were not capable of constituting evidence of consciousness of guilt. The risk of placing undue emphasis on this kind of evidence in a circumstantial case like this has been referred to in a number of cases. I agree with the applicant that this is a significant ground of appeal.

[31] The applicant also argues that certain items of evidence that tended to exculpate the applicant were turned around by the trial judge and converted into pieces of inculpatory evidence. He points, for example, to the directions concerning the applicant's inability to drive a car with a standard transmission, like the deceased's car. The trial judge said the following:

Robert Baltovich's ability to drive a standard transmission. You will note that Robert Baltovich makes protestations throughout his statements about his inability to drive a standard gear shift. I suppose it is a valid question for you to ask yourself: Why all the protestations? Is it a big deal for a 26 year old male to drive a so-called "four on the floor"?

[32] On the application before me, the Crown did not dispute that these directions may be in error. Considering the importance of this evidence to the Crown's case and the emphasis given to it by the trial judge in his charge to the jury, this is an important ground of appeal.

Guilty knowledge

[33] The trial judge left a number of items of evidence to the jury as evidence of guilty knowledge, presumably statements by the applicant demonstrating knowledge that only the killer could have had. It is not apparent that this evidence was accurately categorized. The Crown did not dispute before me that this may be an error. However, I emphasize that I did not have any argument on the point.

The charge on identification evidence

[34] The identification evidence was subject to a number of frailties. The applicant argues that the trial judge failed to relate the particular frailties to the evidence in this case. For example, it was the theory of the Crown that, several days after the killing, the applicant used the deceased's car to transport her body up north to a swampy area where it would never be discovered. The Crown relied upon the evidence of David Dibben that he saw the applicant driving the deceased's car early on Friday morning, June 22, at the intersections of Highways 7A and 12. There were a number of problems with Mr. Dibben's evidence that, the applicant argues, were not adequately placed before the jury by the trial judge. For example, his description of the driver of the car changed over time to more closely match the applicant's appearance. The applicant argues that Mr. Dibben's original description tended to eliminate the applicant as the driver of the vehicle and this should have been pointed out to the jury.

The applicant's opportunity to commit the offence

[35] The applicant argued that a careful analysis of the evidence shows that the applicant had a limited opportunity to commit the offence and this was not set out for the jury in a manner whereby they would appreciate the force of the defence case. The applicant also submits that the evidence suggests that, if Dibben saw anyone driving the deceased's car, it could not have been on Friday following the disappearance, but must have been on Wednesday. The applicant appears to have had an alibi for that time on Wednesday as he was speaking to the deceased's mother at the relevant time.

The applicant's attendance at the deceased's class

[36] A puzzling piece of evidence at the applicant's trial concerned his statements to the police that after working out at the gym he went to the classroom to wait for the deceased at about 9:00 p.m. He told the police that when he came to the classroom, he saw a man waiting outside. He thought that this man might be waiting for the deceased and accordingly he concealed himself. As it turned out, the man was there to meet another student and the deceased did not show up. At trial, the Crown seems to have relied upon these statements as an attempt by the applicant to fabricate evidence. The Crown argued that the applicant never did go to the classroom since, having killed the deceased, he knew she was not there, and he lied to the police. Proposed fresh evidence tends to support the applicant's statements that he did go to the classroom. The applicant argues that this evidence is important exculpatory evidence. If he had killed the deceased, he would not have gone to the classroom. Or, if he had killed the deceased but then went to the classroom to try to create exculpatory evidence, he would not have concealed himself so that no one would be able to confirm that he had been there. I did not understand the Crown on this application to dispute that this was a highly arguable ground of appeal.

The Bernardo fresh evidence

[37] At trial, the defence attempted, with limited success, to suggest that the deceased may have been abducted and killed by the Scarborough rapist. The identity of the Scarborough rapist was then unknown. It is now known that he was Paul Bernardo and that he went on to kill three women. The applicant has obtained further evidence that he suggests now points to Bernardo as a likely perpetrator of this offence as well. While the defence does have additional evidence about Bernardo, which it may be able to develop more fully, at this stage I would place only very limited reliance upon that proposed fresh evidence in my assessment of the strength of the grounds of appeal.

Conclusion on the Public Interest

[38] In an interesting submission, Mr. Lockyer urged me to approach this case on the basis that there is a reasonable possibility that an innocent man has been convicted. He referred to several recent decisions to support this submission. For example, in R. v. Khan (1998), 1998 17677 (MB CA), 129 C.C.C. (3d) 443 at p. 445, 131 Man. R. (2d) 70 (C.A.), Twaddle J.A. took into account that there was "a real possibility that the applicant will eventually be acquitted". However, that comment was made in relation to an application for bail pending a new trial ordered following the applicant's successful appeal from conviction for murdering his sister. In that case, the applicant had regained the presumption of innocence. In the companion application, where the applicant was seeking release pending the appeal from conviction for the murder of his wife, Twaddle J.A. used the more traditional public interest language, which looks to the merits of the appeal. He said at p. 448:

Taking into account the delay already encountered, the further delay due to counsel's ability to argue this case on a timely basis and the strength of the prisoner's appeal, I am of the view that the prisoner should be released pending his appeal to this Court from his conviction on the charge of murdering his wife. A reasonable, well-informed member of the public is less likely, in my view, to lose confidence in a system which admits a person to bail in such circumstances than one which tolerates delay and ignores the strength of the prisoner's appeal.

[39] In R. v. Johnson (1998), 1998 NSCA 14, 21 C.R. (5th) 135, 131 C.C.C. (3d) 343 (N.S.C.A.), Freeman J.A. also took into account the reasonable possibility that the applicant was innocent. The applicant was applying for release pending a hearing before the Court of Appeal directed by the Minister of Justice under s. 690 of the Criminal Code to consider the admissibility of fresh evidence. The prosecution's case depended upon expert evidence as to the manner of death. New expert evidence suggested that the death was accidental and some of the expert prosecution witnesses from the trial also appeared to have altered their opinion. In that context, Freeman J.A. said the following at p. 138:

It would be unrealistic to deny that, at the end of the day, there is at least a reasonable possibility that he has been wrongly convicted.

If that should be the final outcome, neither justice nor the public interest can be served by requiring him to remain in prison until the process has worked itself through what appears to be two separate hearings in this court and possibly a new trial. As his counsel points out, the months unjustly taken from him, if he is innocent, can never be restored to him, but if at the end of the day he is still found to be guilty, they can be added to the time he must serve. I find that Mr. Johnson's detention is not necessary in the public interest.

[40] Johnson is an unusual case. The focus of the new hearing before the Court of Appeal was narrow, involving a single, albeit possibly difficult issue. The fresh evidence seems to have been relatively well developed. The case before me is much different. The prosecution's case was complex and did not depend upon any one piece of information. The case for the applicant's being "factually innocent" turns upon the applicant's statements to the police, as he did not testify at trial, the alleged frailties in the prosecution's case and the strength of the fresh evidence pointing to someone else as the perpetrator. As I have indicated, the fresh evidence is simply not at a stage where I could safely come to a conclusion on the strength of that submission. In the circumstances, it is my view that the better course is to consider the public interest from the traditional standpoint as articulated by this court in many decisions.

[41] In his reasons for refusing to release the applicant back in 1992, Goodman J.A. said that there will no doubt be cases where the hearing of the appeal "will be so long delayed and the probability of success in the appeal so strong that it will be contrary to the public interest to refuse a release and a fortiori an applicant's detention would not be necessary in the public interest". In my view, this is now one of those cases.

[42] In reaching that conclusion, I not only take into account the lengthy period of time that remains before this appeal can be heard, but the very long delay to this point. While it may be said that the applicant "caused" the delay in that he instructed his counsel to pursue difficult and complex matters of fresh evidence, there is no suggestion that the applicant has personally been responsible for any delay or that he has sought to avoid the hearing of the appeal.

[43] At least some of the grounds of appeal, which I have only briefly touched upon, are sufficiently compelling that it is not necessary in the public interest that the applicant be further detained.

Disposition

[44] Accordingly, the application is granted and the applicant will be released pending his appeal in accordance with the terms set out in the draft order.

Application granted.

Notes

Note 1: R. v. Baltovich (1991), 1991 7308 (ON CA), 6 O.R. (3d) 11, 68 C.C.C. (3d) 362 (C.A.).

Note 2: R. v. Parsons (1994), 1994 9768 (NL CA), 30 C.R. (4th) 189 (Nfld. C.A.).

Note 3: R. v. Morin (1993), 1993 17045 (ON CA), 19 C.R. (4th) 398 (Ont. C.A.).