Her Majesty the Queen v. Robinson [Indexed as: R. v. Robinson]
95 O.R. (3d) 309
Court of Appeal for Ontario,
Winkler C.J.O. (In Chambers)
March 4, 2009
Criminal law -- Bail -- Accused charged with conspiracy to commit murder, attempted murder and aggravated assault -- Accused refused bail on basis that he had failed to satisfy his onus on secondary and tertiary grounds -- Accused bringing fresh application on basis of material change of circumstances -- Application dismissed -- Application for review of that order dismissed -- Subsequent applications for bail not being entirely de novo proceedings -- Application judge not erring in finding that changes in circumstances did not justify vacating his earlier decision -- Application judge's reasons more than adequate when read in conjunction with earlier reasons for denying bail.
The accused was charged with conspiracy to commit murder, attempted murder and aggravated assault. He was refused bail on the basis that he had failed to satisfy his onus on both the secondary and tertiary grounds set out in s. 515(10) of the Criminal Code, R.S.C. 1985, c. C-46. He brought a fresh application based on a material change in circumstances, arguing that the evidence led at the preliminary inquiry demonstrated that the Crown's case was weaker than put forward at the original bail hearing, and submitting a new release plan. The application was dismissed. The accused brought an application for review of that detention order.
Held, the application should be dismissed.
Subsequent applications for interim release are not completely de novo proceedings based on entirely separate evidence, independent of and without reference to the evidence and reasons given on the original application. Rather, such subsequent applications provide an opportunity for the application judge to reconsider and reassess the evidence, as well as his or her original decision, in light of the impact of a significant or material change in circumstances or new or altered evidence. The application judge did not err in his approach to the application and he did not err in finding that the changes in circumstances did not justify vacating his earlier decision and granting bail. [page310]
He did not fail to adequately articulate the reasons for his decision. The reasons given on the second application must be read against the background and in conjunction with the application judge's earlier reasons for denying bail. When read together, those sets of reasons more than adequately outlined the basis for the ruling. While Gladue principles apply to the question of bail, nothing was tendered to assist the application judge in a Gladue analysis even though the accused is a lawyer and he was represented by counsel when the application was heard. If the accused was able to adduce evidence relevant to Gladue principles that would amount to a material change in circumstances, he is not precluded from bringing a fresh application on that basis. However, it seems likely that in the bail context, as with sentencing, the more violent the offence, the more likely that the outcome for an Aboriginal offender and a non-Aboriginal offender will be similar.
APPLICATION for review of a detention order of McGarry J., [2008] O.J. No. 3641, 2008 47026 (S.C.J.).
Cases referred to R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, 171 D.L.R. (4th) 385, 238 N.R. 1, J.E. 99-881, 121 B.C.A.C. 161, 133 C.C.C. (3d) 385, [1999] 2 C.N.L.R. 252, 23 C.R. (5th) 197, 41 W.C.B. (2d) 402, consd Other cases referred to R. v. Boyle, [2006] O.J. No. 5094, 72 W.C.B. (2d) 54, 2006 42662 (C.A.); R. v. Daniels (1997), 1997 3670 (ON CA), 35 O.R. (3d) 737, [1997] O.J. No. 4023, 103 O.A.C. 369, 119 C.C.C. (3d) 413, 11 C.R. (5th) 331 (C.A.); R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, 210 D.L.R. (4th) 608, 284 N.R. 342, J.E. 2002-582, 211 Nfld. & P.E.I.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 52 W.C.B. (2d) 360 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 515(10) [as am.], 680(1)
Michael A. Moon, for applicant. Shawn Porter, for respondent.
[1] Endorsement by WINKLER C.J.O. (In Chambers): -- This is an application brought under s. 680(1) of the Criminal Code, R.S.C. 1985, c. C-46, seeking an order directing a review of the detention order made by McGarry J. on September 19, 2008.
[2] The applicant was charged in 2007 in an information alleging conspiracy to commit murder, attempted murder and aggravated assault. As a result of the conspiracy charge, the applicant bore the onus of establishing that he could be released into the community pending his trial. The applicant originally sought bail in July of 2007. At that time, McGarry J. refused interim release, ruling that the applicant had failed to satisfy his onus on both the secondary and tertiary grounds set out in s. 515(10) of the Code. A fresh application based on a material change in circumstances was brought before McGarry J. in August 2008 and, as indicated, he dismissed the application in September 2008. [page311]
[3] On this application for review, the applicant suggests that McGarry J. made five errors in dismissing his second application for interim release. He submits that the application judge erred in (1) articulating the onus applicable to the application; (2) appreciating the nature of the proceedings; (3) assessing the new evidence; (4) failing to give adequate reasons for his decision; and (5) failing to apply the Gladue principles to the issue of whether the applicant could be released on bail. 1. The Onus of Proof
[4] The applicant submits that the application judge erred in articulating the proper onus of proof on the application. This argument has no merit. At para. 37 of his decision, the application judge mentioned that the charge involved attempted murder and seemed to suggest that this created a reverse onus on the bail hearing. Of course, it is the conspiracy to commit murder charge that created the reverse onus in this case. There was no dispute between the parties that the onus was upon the applicant to show cause as to why he could be released. Additionally, the three charges relate to a single transaction, and in the circumstances before the application judge and before me, the evidence in relation to conspiracy appears to be at least as strong as the evidence in relation to the other two charges. It is clear that the application judge simply misspoke in a way that had no impact on the proceedings. 2. The Nature of Proceedings
[5] In the court below, the Crown took the position that the application judge had no jurisdiction to hear the second application for bail based on a material change in circumstances. While the issue was not raised before me, I am of the view that the application judge did not err in ruling that he had jurisdiction to entertain the application. See, for example, R. v. Daniels (1997), 1997 3670 (ON CA), 35 O.R. (3d) 737, [1997] O.J. No. 4023, 119 C.C.C. (3d) 413 (C.A.); R. v. Boyle, [2006] O.J. No. 5094, 2006 42662 (C.A.).
[6] Before me, the applicant submitted that the application judge misapprehended the nature of the proceedings when he concluded that the fresh application was not an entirely de novo [page312] hearing. In my view, this position is not consistent with the authorities. A second application for interim release does not take place in a vacuum. The test for bringing such an application is whether there has been a material change in circumstances from those that existed at the time of the original application. As stated by this court in Daniels, at para. 39:
Where the second application is brought before the judge who heard the first application, there can be no suggestion of "judge shopping", nor can it appear that one judge of the court is effectively sitting on appeal from a decision of another judge of the court. In addition, the judge who heard the first application is in the best position to decide the significance, if any, of the alleged change in circumstances since the first application. That judge should also be able to dispose of the application more expeditiously than would a judge who has no prior familiarity with the matter.
[7] In light of these comments, I am of the view that such subsequent applications for interim release are not completely de novo proceedings based on entirely separate evidence, independent of and without reference to the evidence and reasons given on the original application. Rather, such subsequent applications provide an opportunity for the application judge to reconsider and reassess the evidence, as well as his or her original decision, in light of the impact of a significant or material change in circumstances or new or altered evidence. This is how the application judge approached the matter. He did not err in this approach. 3. The Change in Circumstances
[8] The applicant identified two changes in circumstances that he submitted would have justified the application judge vacating his earlier decision and granting judicial interim release to the applicant. First, he submitted that the evidence led at the preliminary inquiry demonstrated that the Crown's case was weaker than put forward at the original bail hearing. Notably, the applicant pointed to a time discrepancy in the evidence of the main Crown witness, which suggested that the offence occurred at least one hour later than originally claimed. While the time discrepancy is favourable to the defence, the main thrust of the evidence of that witness remains unchanged. Further, there is substantial independent evidence supporting the Crown's theory of events. The application judge recognized that there had been a change in evidentiary record but nevertheless held that the Crown's case was still very strong. On the record before me, there is no likelihood that a panel of this court would disagree with his assessment in this regard. [page313]
[9] The second material change raised by counsel for the applicant was the proffering of a new release plan involving a new surety and virtual house arrest. At the original bail hearing, the application judge ruled that the applicant had not met the onus placed upon him on both the secondary and tertiary grounds. There was evidence before him that could and did give rise to concerns on both the secondary and tertiary grounds. Specifically, the applicant's testimony at the original bail hearing could be described as unimpressive at best. Certainly, the application judge was fully justified in finding that the applicant, on the basis of his own evidence, was not likely to be amenable to any significant level of control over his activities. While the sureties originally proposed were fine upstanding citizens and sincere in their desire to assist the applicant, the application judge was not satisfied that they could exercise the level of control over the applicant so as to satisfy his concerns on the secondary grounds.
[10] The new release plan involved house arrest under the control of a new surety. However, that surety had had little contact with the applicant for over 13 years. The evidence did not support a finding that the new surety could address the application judge's concerns that the applicant was not likely to be amenable to such supervision of his conduct.
[11] Finally, I am satisfied that the changes put forward by the defence did not materially alter the circumstances in relation to the analysis of the tertiary grounds. I am satisfied that there is no likelihood that a panel of this court would find that the application judge erred on either the secondary or tertiary grounds. 4. Failure to Give Adequate Reasons
[12] The applicant submitted that the application judge failed to adequately articulate the reasons for his decision on the second application, as required in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30. There is no merit in this argument. In light of the nature of the proceedings, the reasons given on the second application must be read against the background and in conjunction with the application judge's earlier reasons for denying the applicant's bail request. When read together, these sets of reasons more than adequately outlined the basis for the ruling. However, even when read separately, the application judge's reasons on the second application provide sufficient explanation to the applicant for his continued detention. [page314] 5. Failure to Apply Gladue Principles
[13] It is common ground that principles enunciated in the decision of the Supreme Court of Canada in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 have application to the question of bail. However, the application judge cannot apply such principles in a vacuum. Application of the Gladue principles would involve consideration of the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts. The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular Aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release.
[14] Notwithstanding that the applicant is a lawyer and was represented by counsel, nothing was tendered to assist the application judge in any such analysis. It appears that the matter was only raised in final submissions. While the applicant testified and evidence was also introduced from other Aboriginal persons, none of that evidence touched on matters that would inform a Gladue analysis. In the absence of such evidence, and in the circumstances of this case, I am satisfied that there is no basis to direct a review by a panel of the court on this ground.
[15] If the applicant is able to adduce evidence relevant to Gladue principles that would amount to a material change in circumstances, there is nothing to preclude him from bringing a fresh application on that basis. However, I note that the Supreme Court in Gladue, in the context of sentencing, stated, at para. 79, that "the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same". I would think that the same practical reality would apply to applications for judicial interim release.
[16] In conclusion, the applicant has not satisfied me that I should make an order referring this matter to a panel of this court for review. The application is dismissed.
Application dismissed.