W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
R. v. Stevenson, 2007 ONCA 378
Date: 2007-05-17
Docket: M35056
Court of Appeal for Ontario
O’Connor A.C.J.O.
Between:
Her Majesty the Queen
Respondent
and
Andrew Stevenson
Applicant
Lawrence Greenspon for the moving party
Robert W. Hubbard for the responding party
Heard: May 16, 2007
ENDORSEMENT
[1] The applicant applies under s. 680(1) of the Criminal Code for an order directing a review by a panel of this court of the detention order made in this matter.
[2] The applicant is charged with first degree murder of his wife. In the court below, Justice Linhares de Sousa gave very careful and detailed reasons for finding that the applicant had not met the onus upon him of showing that detention was not justified on the secondary and tertiary grounds. In my view, there is not a realistic likelihood that a panel of this court would interfere with her decision.
[3] While I find no error in the reasons or conclusion of the learned justice in respect of the secondary grounds for detention, for the purposes of this application, I need only address the tertiary ground.
[4] Section 515(10)(c) of the Criminal Code sets out the tertiary ground which permits the detention of an accused pending trial. It reads:
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.
[5] When looking at the four statutory factors under the tertiary ground, the applicant concedes that factors two and four have been met. Murder is the most serious offence and there is a certainty of a lengthy period of imprisonment upon conviction.
[6] As to the first factor, I agree with the justice in the court below that there is a very strong circumstantial case of first degree murder. There is evidence of motive – an ongoing domestic dispute. There is also evidence of opportunity. Significantly, the applicant in statements made to the police shortly after the time of the offence was unable to offer any explanation of his whereabouts during the critical time when his wife was shot. The applicant was familiar with and had access to guns. Moreover, on his arrest shortly after the shooting, the applicant was found to have gunshot residue on his hands and he was unable to offer an explanation about the source. Indeed, he made a statement that he had not been around guns for a year. The circumstantial evidence favouring conviction is strong.
[7] As to the circumstances of the offence, I agree with the justice below that they were egregious. In my view, the decision of the Supreme Court of Canada in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 does not stand for the proposition that, in the case of a murder charge, the surrounding circumstances must necessarily include a level of extreme viciousness or elements of torture or mutilation before the tertiary ground comes into play. Rather, the justice must consider the circumstances of each case to determine whether the applicant has shown that his or her detention is not necessary to maintain confidence in the administration of justice.
[8] The applicant, if guilty, planned and deliberated the shooting of his wife. He laid in wait for her at her home and shot her with a shotgun. The alleged crime was neither spontaneous nor the result of an impetuous emotional outbreak. It was a planned and cold-blooded killing. The applicant had been convicted a few months earlier of threatening the victim and was on probation for that offence at the time of her death. The applicant, if guilty, murdered the mother of his children whom he recognized to be a good and loving mother. As well, his actions would deprive them of a father.
[9] In my view, the justice in the court below properly assessed the factors on the tertiary ground and there is no realistic possibility that a panel of this court would find that she erred in denying the applicant interim release.
[10] Accordingly, this application is dismissed.
“Dennis O’Connor A.C.J.O.”