R. v. Heyden, 2009 ONCA 494

CITATION: R. v. Heyden, 2009 ONCA 494

DATE: 20090617

DOCKET: M37658

COURT OF APPEAL FOR ONTARIO

Goudge, Sharpe and Armstrong JJ.A.

IN THE MATTER OF a direction on May 13, 2009 by the Chief Justice pursuant to section 680(1) of the Criminal Code;

AND IN THE MATTER OF a review of the decision of Mr. Justice M. Brown of the Ontario Superior Court of Justice denying judicial release to the applicant pending his new trial;

BETWEEN:

Her Majesty the Queen

Respondent

and

Jack Cornelius Heyden

Applicant

James Lockyer, for the applicant

Riun Shandler, for the respondent

Heard: June 12, 2009

On an application to review the decision of Justice M. Brown of the Superior Court of Justice dated January 9, 2009 pursuant to the direction of Winkler C.J.O. dated May 13, 2009.

By the Court:

[1] The appellant’s conviction for first degree murder was set aside by this court on October 21, 2008, and a new trial was ordered. The appellant’s application for judicial interim release pending his new trial pursuant to s. 522 of the Criminal Code was denied on December 23, 2008. This is a review of that decision, as ordered by Winkler C.J.O., pursuant to s. 680 of the Criminal Code.

Facts

[2] On March 20, 1992, the deceased, Paul Kneeshaw, was shot to death while standing outside a shed on his property. The appellant was a close friend and business associate of the deceased. At the time of the murder, the appellant was living with the deceased and his wife, Colleen Kneeshaw, with whom the appellant was engaged in a brief romantic relationship. The appellant and his son, William Vanderheyden, were arrested and charged with first degree murder of the deceased on February 1, 1994. The Crown’s theory was that the appellant had contracted his son to murder Kneeshaw both because of resentment over a failed business deal and as part of a plan to eliminate Kneeshaw, marry Colleen and assume Kneeshaw’s wealth.

[3] On March 31, 1994, McMurtry C.J. (then Chief Justice of the Superior Court) ordered that the appellant be released on bail pending his trial, secured by $250,000 pooled together by four named sureties. McMurtry C.J. found that the case against the appellant was “not overwhelming”, and that there was not a substantial likelihood that he would interfere with the administration of justice.

[4] The trial did not begin until August 1997. On October 22, 1999 both the appellant and his son were convicted of first degree murder. The appellant abided by his bail conditions for the entirety of the five and one half years that he was at liberty pending his trial and conviction. The only incident that occurred during that period was in November 1997, when his former wife, Lynda Smith, alleged that the appellant had driven by her residence during the court’s lunchtime recess. If so, that would have been a violation of the non-contact terms of his bail conditions. The Crown applied to revoke the appellant’s bail and the application was dismissed by McLean J. on the ground that the Crown had failed to prove the acts alleged against the appellant.

[5] The appellant sought release pending appeal after his conviction. That application was dismissed. However, when the appeal was heard in October 2008, the Crown conceded that there had been a serious error at trial, namely, the trial judge had forbidden both the appellant and his co-accused son from challenging the factual underpinnings of the son’s already existent convictions for counselling murder. The appeal was allowed with a brief judgment and a new trial was ordered: R. v. Vanderheyden, 2008 ONCA 733.

[6] The appellant applied for release from custody pending his new trial. The application was heard on December 18 and 23, 2008. The application judge denied the application on both the secondary and tertiary grounds as defined by ss. 515(10)(b) and (c):

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[7] On the secondary ground, the application judge found that the case against the appellant was “strong”, and also that there were “very substantial concerns that the appellant would offend or interfere with the administration of justice if released on bail.” This second finding was based on an allegation of the appellant’s ex-wife, Lynda, a key crown witness, that in January 2008, their son, Robert Vanderheyden (not the co-accused), had offered Lynda $150,000 on behalf of the appellant and mentioned that the appellant had his appeal coming up. The application judge also stated that he was not satisfied that the proposed sureties could adequately reduce the risk of the appellant interfering with the administration of justice, since the appellant would not be living with his proposed sureties

[8] On the tertiary ground, the application judge noted that that ground had not been considered by McMurtry C.J., as s. 515(10)(c) was not then in force. He also recognized that it is only in a very rare case that detention pending trial will be justified on this ground. However, he found the appellant’s situation to be such a rare case due to the strength of the Crown’s case, the severity of the alleged offence, the brutal circumstances of the murder and the potential for a lengthy sentence.

ANALYSIS

[9] Section 680 of the Criminal Code provides that on a review of a decision to refuse judicial interim release pursuant to s. 522, this court may

(a) vary the decision; or

(b) substitute such other decision as, in its opinion, should have been made.

[10] For the following reasons, we respectfully disagree with the decision of the application judge and order that the appellant be granted judicial interim release pending his new trial.

[11] We emphasize that as the appellant comes before us awaiting trial, he is entitled to the presumption of innocence. While he lost the benefit of that presumption upon his conviction in 1999, that conviction has been set entirely aside because of an error that the Crown itself conceded rendered the trial unfair. We cannot ignore the conviction because it is part of the history of the case and explains why we are now considering bail pending trial at a point when the appellant has served almost ten years in prison. However, the conviction is otherwise irrelevant to our task. The appellant is legally entitled to go back to “square one” and benefit from the crucial core value of our legal system, enshrined in s. 11(d) of the Charter, that everyone accused of a crime is entitled “to be presumed innocent until proven guilty according to law in a fair and public hearing”. This right has been described by the Supreme Court of Canada as “essential in a society committed to fairness and social justice”: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at p. 120, per Dickson C.J.

[12] It is common ground that, as the appellant is charged with first degree murder, s. 522(2) operates so as to place upon him the burden of showing cause why his detention pending trial is not justified under the three grounds specified in s. 515(10) and set out above.

Primary Ground

[13] The Crown does not dispute that the appellant has satisfied the primary ground and that his detention is not required to ensure his attendance at trial.

Secondary Ground

[14] We disagree with the application judge’s conclusion that the appellant fails to meet the secondary ground on the basis that the Crown’s case is “strong” and that there are “very substantial concerns” that the appellant would offend or interfere with the administration of justice if released on bail.

[15] With respect to the strength of the Crown’s case, we agree with McMurtry C.J.’s assessment of the case against the appellant as “not overwhelming”. As counsel for the Crown fairly conceded before us, the Crown’s case is almost inevitably weaker now given the passage of time since this crime was committed. One witness has died and the evidence of Debbie Vanderheyden as to an incriminating statement allegedly made by the appellant prior to the murder has been significantly undermined by her cross-examination at trial.

[16] The application judge based his assessment of the risk of interference with the administration of justice primarily on Lynda Smith’s unsworn complaint that she was offered $150,000 by the appellant through their son, Robert Vanderheyden. However, that evidence suffers from several defects. First, Smith’s allegation is vague and lacking in detail. In particular, she did not state that this offer was accompanied by any threat from the appellant or request by him to change her evidence about the murder. Second, the alleged offer was made before the appeal was heard, and therefore before the appellant knew that he would face a new trial. Third, Robert Vanderheyden denies that he made any such offer on behalf of his father. Fourth, Smith is involved in a civil dispute with Robert Vanderheyden over the proceeds of a real estate deal and, within days of the alleged offer from the appellant, she commenced a civil action against Robert for $165,000. Her evidence is not strong enough to warrant a conclusion that there is a substantial likelihood that the appellant would interfere with the administration of justice if released from custody.

[17] We turn now to the appellant’s record of compliance with the terms of his judicial interim release pending trial. In our view, the fact that the appellant spent five and one half years on relatively lenient terms pending his trial without incident has a strong bearing on the risk he now poses. We agree with Mr. Lockyer’s submission that given the appellant’s proven record of compliance with his conditions of bail pending trial, his case for release pending trial is now even stronger than it was when he was granted bail in 1994. As we read his reasons, the application judge gave no meaningful consideration to this factor. We would add that the appellant’s case also appears to be somewhat stronger than in 1994 in that the proposed sureties are more numerous and the amounts available are significantly higher.

[18] We recognize that the appellant was convicted in 1992 of assault causing bodily harm and uttering threats with regard to Smith. However, those convictions did not prevent the appellant from obtaining bail in 1994, and they are now dated. As we have noted, the appellant did not attempt to interfere with Smith during the five and one half years before his first trial. The fact that the appellant is now almost 65 years old and has served almost ten years in prison also reduces the risk that he will commit another offence if released.

[19] The Crown expresses concerns that the appellant will attempt to influence the future testimony of his son Robert, with whom he is now reconciled. However, Robert has assured the police that, despite their reconciliation,, he will give the same evidence at the new trial that he gave at the first trial.

[20] Viewing this evidence as a whole, we are satisfied that the appellant’s detention pending trial is not required on the secondary ground.

Tertiary Ground

[21] We also disagree with the application judge that detention pending trial is justified on the tertiary ground. As the application judge recognized, and as both the Supreme Court of Canada and this court have held, bail can be denied under the tertiary ground only in limited circumstances: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at paras. 31, 85; R. v. LaFromboise (2005), 2005 CanLII 63758 (ON CA), 203 C.C.C. (3d) 492, at para. 23.

[22] As we have already indicated, we would describe the Crown’s case as “not overwhelming” rather than as “strong”. While this is a serious offence involving a brutal murder for which the appellant will face a lengthy sentence if convicted, we disagree that his detention “is necessary to maintain confidence in the administration of justice” when the case is looked at as a whole.

[23] In R. v. Hall supra, at para 41, McLachlin C.J.C. stated:

At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.

Similarly, this court held in R. v. Dhillon, [2002] O.J. No. 3451, at para. 28:

…the applicant must show that his detention is not necessary to maintain confidence in the administration of justice. It is the confidence of a reasonable, informed and dispassionate public that provides the measure of this ground. As such, the public would understand that the applicant has reacquired the presumption of innocence as a result of the decision of this court.

[24] The public’s interest in the continued incarceration of an individual charged with the most serious offence known to the law must be balanced against the public’s interest in seeing that no person be unjustly punished and, as in R. v. Khan (1998), 1998 CanLII 17677 (MB CA), 129 C.C.C. (3d) 443 (Man. C.A.) at 445, it is our view that “confidence in the administration of justice would more likely be compromised by detaining a possibly innocent man in custody for a prolonged period pending his retrial.”

[25] For five and one half years before his trial, the appellant complied with his terms of release, and for almost ten years since his conviction at a trial it would appear that he has been a model prisoner. We are informed that his trial will not start before early 2010 and is estimated to take up to one year.

[26] In our view, the public’s confidence in the administration of justice would be undermined rather than advanced by detaining the appellant pending his trial. The appellant presents a stronger case for release than he did fifteen years ago when he was released pending his trial. He is now sixty-five years old, he is presumed to be innocent, and throughout his fifteen years of involvement with the justice system on this charge, he appears to have complied with all terms and conditions. He has the strong support of several reputable friends and family members who offer to stand as sureties for him if he is released. He has already served almost ten years after being convicted at a trial that the Crown conceded and this court found to be unfair. To detain a man of his age, who is presumed to be innocent and who complied fully with the terms of his release pending his first trial, for at least two more years pending the determination of the trial would, in our view, be perceived by an informed and dispassionate public to be unfair and contrary to our society’s sense of justice.

CONCLUSION

[27] Accordingly, we set aside the decision of the application judge and order that the appellant be granted judicial interim release pending trial. If counsel are able to agree on the precise terms of release, we ask that those terms be presented to us in writing. If counsel are unable to agree, the court will entertain submissions from counsel as to the precise terms of release at a time to be arranged through the Registrar.

“S.T. Goudge J.A.”

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

RELEASED: June 17, 2009