DATE: 20060327

DOCKET: M33018

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant) – and – RICHARD TRUDEL (Respondent)

BEFORE:

SHARPE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Eric Siebenmorgen and Jason Neubauer

for the applicant

Philip Campbell and Matthew Webber

for the respondent

HEARD:

March 22, 2006

Application to review the order of Justice Roydon J. Kealey of the Superior Court of Justice dated July 7, 2005, granting the respondent judicial interim release.

E N D O R S E M E N T

[1] The Crown applies, pursuant to the direction of the Chief Justice, to review the order of Kealey J. granting the respondent judicial interim release pending his retrial on two counts of first-degree murder.

[2] The Crown submits that the application judge made the following errors:

(i) He failed to appreciate the legal and evidentiary significance of the respondent’s failure to provide the required affidavit in support of his application;

(ii) He failed to give consideration to the respondent’s participation in the murders, as that involvement bears upon his character;

(iii) He inappropriately emphasized the impact of the passage of time since the 1994 application for release and the evidence of his institutional behaviour;

(iv) He failed to give proper consideration to all the relevant circumstances, and considered irrelevant matters, in determining whether the respondent’s release would undermine confidence in the administration of justice.

[3] In oral argument, the Crown relied principally upon the first ground. Grounds (ii), (iii), and (iv) relate to issues of fact and weighing of the evidence. We did not call on the respondent with respect to those grounds of appeal. It is common ground that this court will only reverse a bail decision if there has been an error of law or error in principle. The application judge’s assessment and weighing of the evidence is entitled to deference on appeal. The application judge’s reasons satisfy us that he appropriately considered and weighed the very considerable volume of evidence before him. We are not persuaded that there was any reviewable error with respect to grounds (ii), (iii) and (iv).

[4] The only argument advanced as to legal error relates to the first ground. The argument that the application judge failed to appreciate the legal and evidentiary significance of the respondent’s failure to provide the required affidavit in support of his application rests upon a procedural requirement imposed by the Ontario Court of Justice Criminal Proceedings Rules, SI/92-99 s. 20.05(1)(a). That rule requires that a notice of application for judicial interim release be accompanied by the affidavit of the applicant. Section 20.05(2) provides that the affidavit of the applicant shall disclose certain information including: (a) particulars of the charge; (b) the applicant’s place of abode for the past 3 years and the place where the applicant intends to reside if released; (c) the applicant’s employment history for the past three years; and (d) the form of order upon which the applicant proposes to be released.

[5] The respondent did not file an affidavit, although it is apparent that all of the required information was before the court. The Crown submits, however, that the respondent in effect, shielded himself from cross-examination by failing to file the affidavit and that the application judge should have taken that into account in considering whether or not the respondent had satisfied the onus of establishing the grounds for his release.

[6] We do not agree that the application judge erred in this regard. The Criminal Code does not require the affidavit and we were informed that the rules of several other provinces do not require an affidavit. We agree with the respondent that the requirement for the affidavit is purely procedural in nature and that remedies for failure to comply with the rule are also procedural. The Crown had a procedural remedy. It could have insisted upon an affidavit prior to the hearing of the application so that it could cross-examine the respondent. The Crown did not take that step. The record contained all the information required by the rule. As the application judge noted, the prison records provided voluminous detail as to the respondent’s attitudes and behavior during the past fifteen years. Moreover, the application judge expressly took into account the respondent’s failure to file an affidavit and to be cross-examined and, from the respondent’s perspective, the application judge assumed the worst. He stated that had the respondent filed an affidavit, he would have been vigorously cross-examined and that the “harsh reality” was that “most inmates will say anything to get out of prison”. Even on this premise, he was nonetheless satisfied that the record demonstrated a sufficient basis for concluding that the respondent had made significant progress in dealing with his anti-social behaviour during his almost fifteen years in prison. He was therefore persuaded that the respondent had met the onus on the three grounds required for judicial interim release under s. 515(10) of the Criminal Code.

[7] We are not persuaded that there is any merit to this ground of appeal.

[8] For these reasons, the application to review the order granting the respondent judicial interim release pending his retrial is dismissed.

“Robert J. Sharpe J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”