W A R N I N G

An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect. This section of the Criminal Code provides:

517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

( a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

( b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2) Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

CITATION: R. v. Gale, 2011 ONCA 144

DATE: 20110225

DOCKET: M39594

COURT OF APPEAL FOR ONTARIO

Doherty J.A.

BETWEEN

Her Majesty the Queen

Applicant

and

George Christopher Gale

Respondent

Alexander Alvaro, for the applicant

Donald Crawford, Q.C., for the respondent

Heard: February 11, 2011

An application for review under s. 680 of the Criminal Code of the order of the Honourable Justice Rogin of the Superior Court of Justice dated December 3, 2010 releasing the respondent on bail pending his trial on a charge of second degree murder.

Doherty J.A.:

I

[1] The Crown applies under s. 680 of the Criminal Code for a direction that a panel of this court review the order of Rogin J. (the bail judge) admitting the respondent to bail on a charge of second degree murder. The respondent is charged with murdering his common law wife, Jocelyn Bishop. The Crown submits that the bail judge erred in releasing the respondent and that on a proper application of the tertiary ground in s. 515(10)(c) and having regard to the onus placed on the respondent by s. 522, a detention order should have been made.

[2] I will not direct a review of the bail order.

II

[3] The respondent and Ms. Bishop lived together for about two years. They resided on a property outside of London, Ontario. On July 4, 2010, the deceased’s father reported her missing to the police. She had not been seen since June 27th.

[4] The police went to the residence to speak to the respondent about his wife’s disappearance. On entering the residence, the police saw marijuana plants, several guns and some ammunition strewn about the house. The police asked the respondent about Ms. Bishop’s disappearance. He told them that he and Ms. Bishop had argued on June 27th and during the argument she had hit him with a pipe causing significant injury to his right hand. She then left the house and he had not seen her since. The respondent allowed the police to have a look around the residence.

[5] The police obtained a warrant to search the house and executed that warrant on July 5th. They seized a number of marijuana plants and several guns and some ammunition. The respondent is a collector of firearms and a gunsmith of sorts. The respondent was charged with a variety of firearms offences, most of them relating to careless storage, and with possessing and growing marijuana.

[6] The police conducted a more thorough search of the entire property on July 8th. In the course of that search, they discovered Ms. Bishop’s body wrapped in a tarp, secured with duct tape and buried in a shallow grave about 150 metres north of the residence. It appeared that efforts had been made to hide the grave.

[7] The respondent was charged with murder late in the evening of July 8, 2010. He gave a lengthy statement to the police the next day, July 9, 2010. In that statement, he eventually admitted knowing that his wife was dead. He repeated his description of the argument during which Ms. Bishop hit him on the hand with a metal pipe. However, he now told the police that after she struck him, Ms. Bishop went into another room, picked up a gun he had made and shot herself in the head. The respondent told the police that he had followed Ms. Bishop when she left the room and tried to stop her before she killed herself. He took her body and buried it on the property.

[8] The autopsy report confirmed that the deceased had died from a single gunshot wound to the head. The Crown argued that the location of the wound conflicted with the respondent’s description of the alleged suicide. The defence argued that the forensic report did not assist in determining whether Ms. Bishop had been shot or had killed herself. The bail judge ultimately concluded that the autopsy did not shed “any light on how that wound occurred”.

[9] There was evidence that both Ms. Bishop and the respondent had significant emotional problems. The deceased had a history of mental illness.

[10] The police took a statement from a friend of the respondent. That friend told the police that the respondent had told him that he was:

Tired of Ms. Bishop’s moods, wanted out, and felt like shooting her in the head and burying her.

III

[11] The respondent was not initially charged with murder and the Crown proceeded with a bail hearing on the firearms charges, the marijuana charges, and a charge of offering an indignity to a human body. A justice of the peace ordered the respondent detained on those charges.

[12] After the respondent was charged with murder, a bail hearing on that charge proceeded under s. 522 of the Criminal Code in the Superior Court. The respondent brought a simultaneous bail review application from the detention order made by the justice of the peace. The Crown and the defence agreed that if the respondent was ordered released on the murder charge, he should also be ordered released on the other charges.

[13] At the bail hearing, the Crown relied on the secondary ground, the protection or safety of the public (s. 515(10)(b)), and the tertiary ground, maintaining confidence in the administration of justice (s. 515(10)(c)), in urging the bail judge to order the detention of the respondent. On this application for review, the Crown relies only on the tertiary ground. I need not refer to the bail judge’s reasons on the secondary ground.

[14] In considering the tertiary ground, the bail judge began by correctly identifying the approach to be taken when considering detention on that ground. He enumerated the specific factors set out in s. 515(10)(c). The trial judge followed his enumeration of those factors with a consideration of the strength of the Crown’s case, the factor identified in s. 515(10(c)(i). The bail judge described the Crown’s case as “far from an overwhelming case”. The trial judge then acknowledged the serious nature of the charge and the inevitability of a lengthy jail sentence should the respondent be convicted of even the included offence of manslaughter. These are the factors identified in ss. 515(10)(c)(ii) and (iv).

[15] The bail judge concluded his analysis on the tertiary grounds with these words:

I am satisfied that the accused has demonstrated that a reasonable person, informed of the tenets of our criminal justice system, would not lose confidence in the administration of justice if he were released on appropriate terms.

IV

[16] The relevant part of s. 680 reads:

A decision by a judge under s. 522 ... may, on the direction of the Chief Justice or acting Chief Justice of the Court of Appeal, be reviewed by that court and that court may if it does not confirm the decision,

(a) vary the decision; or

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

[17] Section 680 sets up a two-step process. The first step serves a leave to appeal-like function and requires the Chief Justice or his designate to determine whether the matter should go before a panel of the Court of Appeal for a review of the merits of the decision made at first instance. By imposing a leave requirement, Parliament has clearly determined that unlike most original bail orders, there should be no automatic review of the bail orders referred to in s. 680. Those orders include bail orders made under s. 522 in murder cases: Gary Trotter, The Law of Bail in Canada, 3d ed., looseleaf (Toronto, ON: Carswell, 2010) p. 8-22.

[18] Like any leave to appeal function, s. 680 serves to exclude from the appeal process applications that cannot succeed on their merits. To exclude the meritless cases, the Chief Justice or his or her designate must make some assessment of the merits of the application and its potential for success. Several cases have required the applicant to demonstrate a “reasonable prospect of success” as a condition precedent to the directing of a review under s. 680: R. v. R.B.B. (1993), 1992 ABCA 220, 131 A.R. 175 (C.A.) (Stratton J.A. in chambers); R. v. S.(J.), [1986] O.J. No. 1425 (C.A.) (McFadyen J.A. in chambers); R. v. M.T., [2008] O.J. No. 1597 at para. 5 (C.A.) (O’Connor A.C.J.O. in chambers).

[19] In R. v. White (2005), 2005 ABCA 403, 202 C.C.C. (3d) 295 (Alta. C.A.), Berger J.A., at paras. 6-9, rejects the “reasonable prospect of success” criterion as too onerous and prefers an “arguable merit” test. In doing so, he refers to s. 679, the provision governing bail pending appeal and, in particular, to s. 679(3)(a), which requires an applicant for bail pending appeal to show that the appeal “is not frivolous”. After pointing out that an applicant under s. 680 is presumed innocent while an applicant under s. 679 has been convicted, Berger J.A. declares, at para. 7, that it would be a “patent legal anomaly” were an applicant under s. 680 required to show a higher degree of merit to the application than was an applicant under s. 679.

[20] I see no connection between the criteria applicable to bail pending appeal in s. 679 and the criteria to be applied in determining whether a review should be directed under s. 680. Section 679 addresses original bail applications made as part of the appellate process. To obtain bail pending appeal, an appellant must meet essentially the same criteria that are applicable at the trial stage (s. 679(3)(b)(c)). In addition to the usual criteria for bail, and because the bail order is ancillary to the appellate process, the applicant must show that he has a bona fide appeal in the sense that he has an appeal that has some potential merit. The requirement that the applicant show that the appeal “is not frivolous” has less to do with the question of whether the applicant should be on bail and more to do with preserving the integrity of the appeal process by ensuring that persons with hopeless appeals are not admitted to bail pending the inevitable dismissal of those hopeless appeals.

[21] Section 680, unlike s. 679, is an appeal mechanism. The applicant has already had a full bail hearing on the merits. Section 680 is the means by which an applicant can challenge the correctness of the decision made at the original bail hearing. As the correctness of the original decision is central to the s. 680 application, it should, in my view, be central to the determination of the Chief Justice or his or her designate to direct a review of the original bail order. Unlike s. 679, which focuses on whether appellants should receive bail, s. 680 focuses on whether applicants should be allowed to appeal a decision made in respect of bail. Section 679 does not assist me in determining the criteria to be applied in deciding whether to direct a review under s. 680.

[22] Where a s. 680 application is brought in this province, the Chief Justice or his or her designate has the benefit of the record at the original bail hearing, often additional material relevant to bail, and full argument. There is no impediment to the taking of a hard look at the potential merits of the application. A “reasonable prospect of success” standard allows for a separation at this first stage of the potential wheat from the obvious chaff. In doing so, it furthers the due administration of justice.

[23] When the Chief Justice or his or her designate is deciding whether the applicant has “a reasonable prospect of success”, the Chief Justice must bear in mind the nature of the review contemplated at the second stage of the s. 680 process: White at para. 9. A s. 680 review is an appeal and not a hearing de novo. The appeal is, however, a broad one. Appeal courts reviewing original bail orders under s. 680 have regularly applied a correctness standard. Evidence not adduced at the original bail hearing may also be received on the s. 680 review: R. v. Daniels (1997), 1997 CanLII 3670 (ON CA), 35 O.R. (3d) 737 at 747 (C.A.); R. v. Badgerow (2010), 2010 ONCA 236, 260 O.A.C. 273 at paras. 26-27 (C.A.) (Feldman J.A. in chambers); R. v. Rodrigue, [2008] Y.J. No. 13 at para. 11 (C.A.); R. v. Hardiman (2003), 2003 NSCA 17, 172 C.C.C. (3d) 211 at paras. 22-28 (N.S.C.A.); R. v. Wu (1998), 117 B.C.A.C. 305 at para. 6.

V

[24] Bearing in mind the nature of the s. 680 review and the standard of review to be applied, I turn to the arguments advanced by the Crown on its application for the order directing a review. The Crown does not allege an error in law or any misapprehension of the evidence. Nor does the Crown indicate that it will seek to produce additional material relevant to the question of bail. The Crown argues that in considering the tertiary ground, the bail judge failed to give sufficient weight to certain features of the evidence, specifically the use of the firearm and the domestic context in which the homicide occurred. The Crown also submits that the bail judge understated the force of the Crown’s case, both by devaluing the circumstantial evidence arising out of the respondent’s conduct after the homicide, and by giving undue weight to the respondent’s denial of any culpability, which the Crown points out came only after the police had found the body. In his analysis of the tertiary ground, the bail judge did not specifically refer to the use of the firearm or the domestic relationship between the respondent and Ms. Bishop. The use of a firearm is specifically mentioned as a consideration in s. 515(10)(c)(iii).

[25] The motion judge’s determination that the respondent’s detention was not justified on the primary or secondary ground is not challenged. The tertiary ground is to be used sparingly to justify detention: R. v. R.D. (2010), ONCA 899, at paras. 51-55. A bail judge, in considering the tertiary ground, must take the pulse of the reasonable, informed member of the community. A judge sitting within the community where the homicide occurred and hearing the bail application in that community is in a better position to perform that function than a panel of this court. That is not to say that bail orders that turn on the tertiary ground are immune from review under s. 680. However, where it is not suggested that the bail judge misapplied the law, misapprehended the evidence, or reached an unreasonable conclusion, I think it unlikely that a panel will “second guess” the bail judge on the proper application of the tertiary ground.

[26] Accepting that s. 680 contemplates a correctness standard of review that does not mean that every decision can be reviewed on a correctness standard. Some decisions involve the exercise of a broad discretion based on the application of general principles to a specific fact situation. In some fact situations, the exercise of that broad discretion will quite properly admit of different decisions. Those decisions cannot be classified as either “right” or “wrong”, but only as a proper exercise of the discretion.

[27] A decision to grant or refuse bail based on the tertiary ground involves a careful assessment of the interaction of subtle factors that are difficult to measure and which readily admit of different assessments by reasonable people. An appellate court reviewing that decision must take into account the nature of the decision and recognize the clear advantage that the local judge has over the appellate court in making the kinds of assessments required by the criteria relevant to the tertiary ground.

[28] This was a close call on bail. This is a case that falls into that category of cases where reasonable judges could reach different conclusions on the question of bail. However, absent any claim that the bail judge fell into legal error, misapprehended material evidence, or reached an unreasonable result, I do not think there is any realistic prospect that a panel of this court would reverse the bail judge’s exercise of his discretion on the tertiary ground.

[29] The application is dismissed.

RELEASED: “DD” “FEB 25 2011”

“Doherty J.A.”