WARNING

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. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction

(4) [Repealed, 2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

WARNING

An order restricting publication in this proceeding was made under s. 517(4) 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the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as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) Everyone 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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.A.C., 2015 ONCA 483

DATE: 20150629

DOCKET: M44626

Sharpe, Cronk and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Applicant

and

A.A.C.

Respondent

Benita Wassenaar, for the applicant

Marie Henein and Sherif M. Foda, for the respondent

Heard: April 21, 2015

On review under s. 680 of the Criminal Code, R.S.C. 1985, c. C-46, of the judicial interim release order of Justice Julie A. Thorburn of the Superior Court of Justice, dated December 22, 2014.

Cronk J.A.:

[1] The respondent, A.A.C., is charged with second degree murder. The Crown alleges that, after a chance encounter on a downtown Toronto street, A.A.C. and three other men beat a man severely and that A.A.C. then intentionally ran him over with his SUV, causing fatal injuries.

[2] A.A.C. applied for bail pending trial. The Superior Court justice who heard his bail application (the “Bail Judge”) concluded that A.A.C.’s detention was necessary on the tertiary ground – that is, to maintain confidence in the administration of justice – under s. 515(10)(c) of the Criminal Code, R.S.C. 1985, c. C-46. The Bail Judge denied bail.

[3] Following a preliminary inquiry, A.A.C. was committed for trial on second degree murder. Some months later, he applied in the Superior Court for a review of his detention on the basis that there had been a material change in circumstances since his original bail hearing.

[4] The judge who heard the review application (the “Bail Review Judge”) found that A.A.C. had demonstrated a material change in circumstances by reason of new evidence regarding both his mens rea and his level of intoxication on the night in question. She therefore considered the issue of detention anew. She concluded that A.A.C.’s continued detention was not necessary on any of the grounds set out in s. 515(10), including the tertiary ground. Accordingly, she granted A.A.C.’s application.

[5] A.A.C. has been on bail, without incident, ever since. His trial is scheduled to commence in October 2015.

[6] The Crown sought an order under s. 680(1) of the Criminal Code for review of the Bail Review Judge’s decision by a panel of this court. By order dated February 27, 2015, Strathy C.J.O. granted the Crown’s application and directed this panel to review the release order.

[7] For the reasons that follow, I agree with the Bail Review Judge that certain evidence led at A.A.C.’s preliminary inquiry demonstrated a material change in circumstances concerning his intent at the time of the incident. That evidence, in my opinion, materially diminished the strength of the Crown’s case against A.A.C. for second degree murder. I am also of the view that, on proper consideration of the factors identified in s. 515(10)(c) and the other relevant circumstances, the Bail Review Judge did not err in concluding that A.A.C.’s detention is not required in order to maintain confidence in the administration of justice.

[8] Accordingly, I would confirm the Bail Review Judge’s ruling and dismiss the Crown’s application.

I. Background

(1) The Allegations in Brief

[9] At the relevant time, A.A.C. was driving home in an SUV after spending an evening socializing with friends at a bar in Toronto. Five passengers – three men (M.M., N.S. and J.P.-B.) and two women (E.F. and C.H.) – were present in the vehicle.

[10] While A.A.C.’s vehicle was stopped at a red light, a man approached the front passenger side of the car and asked for a ride. When his request was refused, the man responded by banging on the window with his fist or hand. This prompted the four male occupants of the SUV to exit their vehicle and confront him.

[11] The Crown claims that A.A.C. and his three male associates beat the man and that A.A.C. then deliberately ran him over and drove away.

[12] Based on footage from local surveillance videos and the accounts of independent bystanders, the police identified the make and model of the SUV. After further investigation, they eventually obtained a wiretap authorization and identified the occupants of the SUV. Four of them provided statements to the police, each identifying A.A.C. as the driver.

[13] The police also determined that the vehicle involved in the incident matched a black SUV belonging to A.A.C.’s family, which A.A.C. routinely used. The police seized the vehicle.

[14] The Crown maintains that the wiretaps contain several calls in which A.A.C. made incriminating statements concerning the incident, including statements suggesting an intention by him to influence or harm witnesses and to destroy evidence.

[15] A.A.C. was arrested in late 2013 and charged with second degree murder. Two of the other men in the SUV were arrested later the same month and charged with assault causing bodily harm. One of those men was also charged with obstruct justice.

(i) First Bail Application

[16] A.A.C.’s first bail application was heard in February 2014. Because he was charged with murder, pursuant to s. 522(2) of the Criminal Code A.A.C. bore the onus of establishing that his continued detention in custody pending trial could not be justified on one or more of the three grounds set out in s. 515(10):

515. …

(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, or any person under the age of 18 years, 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.

[17] By the time of the bail hearing, videotapes of all the witnesses’ statements had been disclosed to the defence. Transcripts of the statements were not then available. The Crown called the Officer-in-Charge of the police investigation (the “OIC”) as its only witness. In his testimony, the OIC described the information contained in the various witnesses’ statements to police. The defence called a representative of an alcohol and GPS monitoring company and A.A.C.’s parents, two of his proposed sureties. The defence also filed affidavits sworn by A.A.C.’s aunt and uncle, as additional proposed sureties. A.A.C. did not testify.

[18] Counsel for A.A.C. conceded at the bail hearing that A.A.C. was the driver of the car that killed the victim. Counsel also acknowledged that some of the witnesses suggested that the incident was “a deliberate killing”. However, the defence argued:

[T]here is a plethora of evidence to suggest that it may be arguable whether this is a murder or a manslaughter or perhaps even an accident.

[T]here is an argument to be made that this may not be a second-degree murder, that this may be a manslaughter, that this may, indeed, be even a killing with a defence.

[19] Although the Bail Judge expressed some “lingering concerns”, he found that detention was not required by the primary and secondary grounds (ss. 515(10)(a) and (b)), and concluded that A.A.C. should be denied bail on the tertiary ground under s. 515(10)(c).

[20] Section 510(10)(c) lists four factors to be considered by the court in determining whether an accused’s detention is necessary to maintain confidence in the administration of justice. In light of the nature of the charge against A.A.C., the Bail Judge noted (and the defence conceded) that the second and fourth factors – the gravity of the offence and the potential, on conviction, for a lengthy term of imprisonment (ss. 515(10)(c)(ii) and (iv)) – were “clearly met”.

[21] The Bail Judge then turned to the remaining two factors: the apparent strength of the Crown’s case and the circumstances surrounding the commission of the offence (ss. 515(10)(c)(i) and (iii)). With respect to the strength of the prosecution’s case, he held:

[T]he prosecution does have, at this stage, an apparently strong case. They have the content of the surveillance videos, and the eyewitness accounts in terms of the presence of the black SUV, and the actions of the occupants of that vehicle. …[T]hat evidence … strongly suggests that the driver of the vehicle intentionally drove over [the victim] while he was lying on the road. The police have evidence directly connecting [A.A.C.] to an identical vehicle. The police also, now, have sworn statements from some of the occupants of the vehicle who confirm that [A.A.C.] was the driver of that vehicle, and that also confirm that when [A.A.C.] drove off … he did so in a manner where he knew, or certainly, ought to have known, that he was putting [the victim’s] safety at risk. Indeed, the witnesses appear to have recognized that [the victim] was likely injured as they pleaded with [A.A.C.] to stop and provide assistance, but he chose to drive away.

There is very little that the defence can currently point to that would undermine the logical result of the evidence that the police have collected. Admittedly, there is some evidence that [A.A.C.] had been drinking that evening, and may have consumed cocaine. But, that evidence would, at best, possibly reduce the offence from murder to manslaughter. There is nothing that presents itself, at this point, that could realistically support a finding of accident.

[22] The Bail Judge also reviewed the circumstances surrounding the commission of the offence. He described them as producing “a result that [was] out of all proportion to the instigating event”, and reflective of conduct that was “difficult to fathom” and “profoundly disturbing, if not downright frightening”.

[23] The Bail Judge concluded that all four factors identified in s. 515(10)(c) were “at their maximum”. Also relevant, in his view, were “the inexplicable result of this chance encounter” and “the lingering concerns that exist under the primary and secondary grounds”. He determined that A.A.C.’s continued detention pending trial was necessary under s. 515(10)(c) to maintain the public’s confidence in the administration of justice. Consequently, he denied bail.

(ii) Bail Review Application

[24] Two of the passengers in the SUV (C.H. and M.M.) testified at A.A.C.’s preliminary inquiry, as did four independent civilian witnesses and six Toronto police officers. A.A.C.’s committal for trial was not in issue. As I have said, on completion of the inquiry, A.A.C. was committed for trial on second degree murder.

[25] Several months later, A.A.C. applied to the Superior Court of Justice, under s. 522 of the Criminal Code, for review of the Bail Judge’s detention order. (Nothing turns on the Bail Review Judge’s mistaken reference to s. 520 in her reasons.) A.A.C. did not challenge the correctness of the Bail Judge’s decision but, rather, argued that a material change in circumstances since the bail hearing justified a fresh assessment: see R. v. Whyte, 2014 ONCA 268, 119 O.R. (3d) 305, at paras. 21 – 22. He maintained that the evidence adduced at the preliminary inquiry cast his mens rea and the circumstances surrounding the offence in a significantly different light, yielding viable defences on the issues of intent and intoxication.

[26] In his factum before this court, A.A.C. elaborates on the alleged material change in circumstances as follows:

Although during the first bail hearing, there was some evidence of intoxication, by the end of the preliminary hearing it was clear that it was a significant triable issue. In addition, while the evidence during the first bail hearing appeared to be that [A.A.C.] knowingly ran over the deceased, the preliminary hearing evidence provided significant support for the defence position that [A.A.C.] lacked intent to kill. Subsequent to the preliminary hearing, the defence case became arguable. What appeared at the initial bail hearing to be a strong case for second-degree murder was now a strongly arguable manslaughter.

[Emphasis in original.]

Material Change in Circumstances

[27] The Bail Review Judge began her analysis by noting, in summary fashion, the findings at A.A.C.’s first bail hearing. She then turned to the issue whether A.A.C. had demonstrated a material change in circumstances concerning the strength of the Crown’s case and/or the Crown’s characterization of the circumstances of the offence at the time of the first bail hearing.

[28] The Bail Review Judge considered the pertinent evidence at the initial bail hearing and the associated evidence at the preliminary inquiry. In her view, new evidence had been adduced at the preliminary inquiry in respect of three matters: i) A.A.C.’s intention at the time he drove the SUV forward; ii) whether the passengers in the SUV told A.A.C. to stop before he ran over the victim; and iii) A.A.C.’s level of intoxication: at para. 20.

[29] The Bail Review Judge found that the evidence led at the preliminary inquiry on these issues constituted a material change in circumstances. With respect to the issue of A.A.C.’s mens rea, she relied on the following new evidence, at para. 20:

1. C.H.’s evidence that i) A.A.C. told her that “he didn’t realize that he was running over [the victim] until he had”; and that ii) “No one said anything before going over the bumps”; and

2. E.F.’s evidence that i) she didn’t think A.A.C. “realized what he did”; and that ii) the victim’s location before A.A.C. drove the SUV forward was unclear.

The Bail Review Judge also reviewed the evidence led at the preliminary inquiry concerning A.A.C.’s level of intoxication.

[30] The Bail Review Judge held, at para. 22, that this new evidence materially altered the strength of the Crown’s case and called into question the Bail Judge’s determinations, outlined above, that:

1. “all four factors [of the tertiary ground] are at their maximum”;

2. there is a “strong suggest[ion] that the driver of the vehicle intentionally drove over [the victim] while he was lying on the road”; and

3. “nothing … presents itself, at this point, that could realistically support a finding of accident.”

[31] In these circumstances, a material change in circumstances having been made out, the Bail Review Judge undertook a fresh s. 515(10) analysis to determine whether bail should be granted.

Section 515(10) Analysis

[32] The Bail Review Judge began her analysis by addressing the primary and secondary grounds for detention – namely, flight risk and the protection or safety of the public. In so doing, she noted that the Crown had conceded that A.A.C. had met his onus to justify his release on these grounds.

[33] Before this court, the Crown disputes this concession. It is the Crown’s position that Crown counsel did not concede these grounds, but rather simply did not relitigate them, instead relying on the Bail Judge’s approach to these grounds. I do not think anything turns on this issue. The Bail Review Judge’s reasons confirm that she independently evaluated the primary and secondary grounds for detention and concluded that they did not justify detention. The Crown does not suggest otherwise.

[34] The Bail Review Judge then turned to the tertiary ground for detention – namely, whether A.A.C.’s continued detention is necessary to maintain confidence in the administration of justice.

[35] Given that A.A.C. had been charged with murder, the defence again acknowledged that two of the s. 515(10)(c) factors – the gravity of the offence and A.A.C.’s liability, on conviction, for a potentially lengthy term of imprisonment – supported the denial of bail. As a result, the Bail Review Judge regarded the central issue as “whether the Crown’s case is so strong and the surrounding circumstances so disturbing that [A.A.C.] must remain in presentence detention to maintain confidence in the administration of justice”: at para. 45.

[36] With respect to the strength of the Crown’s case, the Bail Review Judge held as follows, at paras. 48 – 49:

[T]here is no evidence [A.A.C.] knew or bore animosity to [the victim] prior to the altercation. … There is evidence from witnesses that he was drunk, that he was not warned by other passengers in the vehicle before moving the vehicle forward, that he did not intend to kill [the victim], and that he may not have known he ran over [the victim] until after he had done so.

I find that for the above reasons, the case for the prosecution is not at the maximum on all four factors of the tertiary ground. In order to find [A.A.C.] guilty of the charge of second degree murder, a jury must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the evidence is that [A.A.C.] intended to kill [the victim].

[37] The Bail Review Judge addressed the fourth factor, the circumstances surrounding the commission of the offence, in brief compass. She noted, correctly, that no exhaustive list of factors must be considered in assessing the circumstances of an offence. Rather, the courts have regarded myriad contextual factors as relevant to the question whether detention is justified on the tertiary ground: at para. 50. The Bail Review Judge was also alert to the tragic outcome of the encounter. However, in her view, “it is far from clear what [A.A.C.’s] intentions were or what his state of mind was on the evening in question”: at para. 51.

[38] In the result, having regard to the presumption of innocence, as well as the fact that “accused persons are not denied bail to punish them before their guilt has been determined”, the Bail Review Judge concluded that A.A.C. had met his onus under s. 515(10)(c) to demonstrate that his continued detention was not necessary to maintain confidence in the administration of justice: at para. 52. She therefore ordered that A.A.C. be released pending trial, on strict terms that include $4 million in sureties. As I have said, A.A.C. has been on bail, without incident, ever since.

II. Issues

[39] The Crown argues that there had been no material change in circumstances to justify a reassessment by the Bail Review Judge and that, in any event, A.A.C. should be detained pending trial. There are two main issues:

(1) Did the Bail Review Judge err in holding that there had been a material change in circumstances from A.A.C.’s initial bail hearing?

(2) Even if there had been a material change in circumstances, did the Bail Review Judge err in concluding that A.A.C.’s pre-trial detention was not necessary under the tertiary ground for detention?

III. Analysis

(1) Section 515(10)(c): Governing Principles

[40] I turn first to the governing principles concerning the application of s. 515(10)(c) of the Criminal Code.

[41] All accused, including those charged with serious crimes, are constitutionally entitled under s. 11(e) of the Charter of Rights and Freedoms not to be denied reasonable pre-trial bail without just cause. Pre-trial bail for an accused person is the general rule and detention is the exception. A claim for detention of an accused under s. 515(10)(c) must be approached in this context.

[42] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, the Supreme Court of Canada held that s. 515(10)(c) provides a discrete basis for bail denial not covered by the other grounds for detention set out in ss. 515(10)(a) and (b): at para. 30. Further, the question whether s. 515(10)(c) applies is to be assessed by an objective appraisal of the four specific factors listed in s. 515(10)(c), as well as all other relevant circumstances. In Hall, at para. 41, McLachlin C.J. explained:

At the end of the day, the judge can only deny bail if satisfied that in view of [the factors outlined in s. 515(10)(c)] and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. … [T]he provision does not authorize a “standardless sweep” nor confer open-ended judicial discretion. Rather, it strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community.

[43] Some courts viewed the decision in Hall as standing for the proposition that the tertiary ground for detention under s. 515(10)(c) is to be construed narrowly and applied sparingly, in only rare or exceptional cases involving grave or inexplicable crimes.

[44] However, in R. v. St-Cloud, 2015 SCC 27, the Supreme Court of Canada lays this interpretation to rest. St-Cloud was released while this court’s decision in this proceeding was under reserve.

[45] In St-Cloud, the Supreme Court revisits the principles that inform the application of s. 515(10)(c). As I will explain later in these reasons, the Crown argues that St-Cloud strengthens its case for the denial of bail to A.A.C. The defence disagrees.

[46] In my view, four important considerations concerning the application of s. 515(10)(c) emerge from St-Cloud.

[47] First, St-Cloud clarifies the ambit of s. 515(10)(c). In St-Cloud, the Supreme Court rejects an unduly restrictive interpretation of the section’s scope and holds that the tertiary ground for detention is not to be interpreted narrowly or applied sparingly. As the court puts it, the section is not necessarily limited to exceptional circumstances, to unexplainable crimes, to the most heinous of crimes involving circumstances similar to those in Hall, or to certain classes of crimes: at paras. 5, 47, 50, 53 – 54, and 87.

[48] Rather, the Crown may rely on s. 515(10)(c) to support detention for any type of crime, so long as the Crown proves – except in the cases provided for in s. 515(6) of the Criminal Code, of which this is not one – “that the detention of the accused is justified to maintain confidence in the administration of justice”: at para. 54. In this context, the fact that detention may be justified on the tertiary ground only in rare cases is but a consequence of the application of s. 515(10)(c); it is neither a precondition to its application nor a criterion the court must consider or the purpose of the section: at para. 50.

[49] Second, St-Cloud reiterates the holding in Hall that each of the four listed factors in s. 515(10)(c) and their combined effect must be considered, together with all other relevant circumstances, when detention is sought to be justified under the tertiary ground: at para. 68.

[50] Consequently, “[a] court must not order detention automatically, even where the four listed circumstances [in s. 515(10)(c)] support such a result”: at para. 87. The s. 515(10)(c) inquiry requires a balancing of the listed factors, together with any other relevant factors, in order to answer the ultimate question: whether detention of the accused is necessary to achieve the purpose of maintaining confidence in the administration of justice: at paras. 69 and 87.

[51] Third, St-Cloud addresses the bail review authority under ss. 520 and 521 of the Criminal Code. With respect to those sections, St-Cloud instructs that it will be appropriate for a bail review judge to interfere with a bail justice’s decision in one of three circumstances: i) if the bail justice erred in law; ii) if the impugned decision was “clearly inappropriate”; or iii) where new evidence submitted by the accused or the prosecutor shows a material and relevant change in the circumstances of the case: at paras. 121 and 139.

[52] Fourth, where bail is sought on a review under ss. 520 or 521 of the Criminal Code based on new evidence that is said to constitute a material change in circumstances, the admissibility of that new evidence is to be evaluated in accordance with a modified version of the four-part test for the admission of fresh evidence set out in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759: St-Cloud, at paras. 128 – 29. However, “[g]iven the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end”, and in view of the relaxed approach to the rules of evidence at bail hearings mandated by s. 518 of the Criminal Code, the four Palmer criteria are to be applied in a flexible fashion: at para. 129.

[53] I will return later in these reasons to the issue of the admission of new evidence in support of a material change in circumstances claim. At this point, it is important to note that neither the Bail Judge nor the Bail Review Judge had the benefit of St-Cloud. In contrast, this court’s consideration of the Bail Review Judge’s release ruling must proceed in recognition of the principles articulated in St-Cloud.

[54] I turn now to the specific issues before the court.

(2) Was There a Material Change in Circumstances?

[55] A.A.C.’s first hurdle on his s. 522 application was to demonstrate a material change in circumstances between the date of the first bail application and the review hearing. The Crown contends that no such change occurred in this case, with the result that the threshold for the conduct of a review hearing was not met.

[56] Recently, in Whyte, this court considered the meaning of the material change in circumstances standard. The court held, at para. 26:

[T]he assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material.

[57] The Crown attacks the Bail Review Judge’s finding of a material change in circumstances on two main grounds. First, the Crown argues that, in so finding, the Bail Review Judge misapprehended the evidence and misapplied the law. Second, in its post-St-Cloud supplementary submissions, the Crown submits that: i) because she applied the tertiary ground too narrowly, the Bail Review Judge erred in her approach to the application of s. 515(10)(c); ii) the modified Palmer test set out under St-Cloud for the admission of new evidence on a bail review applies in this case; and iii) the new evidence on which the Bail Review Judge relied fails to meet this test because it was neither “new” nor material. Accordingly, the Crown says, the threshold for a s. 522 bail review was not met and the decision of the Bail Judge at the first bail hearing must stand.

[58] For the reasons that follow, I am persuaded that the material change in circumstances threshold was met. I begin with the Crown’s St-Cloud-based challenges to the Bail Review Judge’s ruling.

(i) Approach to the Application of Section 515(10)(c)

[59] In her reasons, the Bail Review Judge stated: “In R. v. Hall, the Supreme Court of Canada emphasized that the tertiary ground for detention must be used sparingly”: at para. 39. As mentioned above, she also said: “The question is whether the Crown’s case is so strong and the surrounding circumstances so disturbing that [A.A.C.] must remain in presentence detention to maintain confidence in the administration of justice”: at para. 45. The Crown submits that, as these statements are inconsistent with St-Cloud, her reasons reflect legal error. I disagree.

[60] I agree that, based on St-Cloud, the Bail Review Judge’s first statement no longer reflects the correct interpretive approach to s. 515(10)(c). In addition, to the extent that the Bail Review Judge’s second statement implies that bail may be denied under s. 515(10)(c) only in rare or exceptional cases or in cases involving horrific or heinous circumstances, this, too, is inconsistent with St-Cloud.

[61] That said, contrary to the Crown’s submission, I do not agree that these statements fatally infect the Bail Review Judge’s analysis of a material change in circumstances. The Bail Review Judge made the statements in question only after she had found that new evidence materially altered the strength of the Crown’s case and undercut several of the Bail Judge’s core findings.

[62] Accordingly, I would not give effect to this submission.

(ii) Alleged Misapprehension of Evidence

[63] There are two branches to the Crown’s claim that the Bail Review Judge misapprehended the evidence.

[64] First, the Crown submits that the Bail Review Judge erred by wrongly stating that evidence was “new” when it was not; by misunderstanding the significance of the evidence said to be “new”; and by failing to consider the “new” evidence in the context of the case as a whole.

[65] Second, in its submissions after the release of St-Cloud, the Crown argues that the modified Palmer test for the admission of new evidence on a bail review, set out in St-Cloud, bolsters its contention that the evidence relied on by the Bail Review Judge to anchor her finding of a material change in circumstances was neither “new” nor material. As a result, the Crown says, there was no showing of a material change in circumstances and the Bail Review Judge should not have undertaken a fresh assessment whether bail should be granted.

[66] I would not accede to these arguments.

[67] To begin, as the Crown acknowledges, St-Cloud does not involve the scope of the bail review powers under ss. 522 and 680 of the Criminal Code. St-Cloud, as I have emphasized, was concerned with bail review under ss. 520 and 521. That said, like the review at issue in St-Cloud, the hearing before the Bail Review Judge required consideration of the material change in circumstances threshold for a fresh detention inquiry.

[68] The St-Cloud court outlines the proper approach to the Palmer test for determining what constitutes new evidence on a bail review under ss. 520 and 521 of the Criminal Code: at paras. 129 – 137. St-Cloud, however, does not hold that the same test applies under s. 522 or 680. Assuming, without deciding, that the test applies under ss. 522 and 680, I am satisfied that the new evidence before the Bail Review Judge met this test and gave rise to a material change in circumstances warranting a fresh s. 515(10)(c) inquiry.

[69] To be specific, in my opinion, new evidence before the Bail Review Judge materially diminished the strength of the Crown’s case on the issue of A.A.C.’s intent and, correspondingly, bolstered the viability of A.A.C.’s defence that he lacked the requisite intent for second degree murder. Furthermore, contrary to the Crown’s submission, the Bail Review Judge did not misapprehend the nature and significance of this evidence.

[70] As I have mentioned, the Crown’s evidence at the first bail hearing consisted only of the OIC’s testimony. Obviously, the sworn testimony subsequently given at the preliminary inquiry was not then available. Nor did the OIC and the parties have the benefit of transcripts of the various witnesses’ police statements. As a result, the OIC merely provided a synopsis of what he thought was said during the witness interviews, including in respect of the accounts of A.A.C.’s actions and utterances at the time of the incident.

[71] On the critical issue of A.A.C.’s intent, the OIC testified that: i) one of the occupants of the SUV (M.M.) claimed that A.A.C. drove over the victim deliberately; ii) two other occupants of the SUV (N.S. and C.H.) said that, before A.A.C. drove over the victim, several passengers had shouted, “don’t do it”; iii) according to C.H., E.F. and M.M., passengers in the SUV also exhorted A.A.C. to stop, go back and provide assistance to the victim after he had been run over, but A.A.C. instead chose to drive away; and iv) one of the passenger (N.S.) indicated that when a co-passenger exclaimed that the victim was dead, A.A.C. replied, “no, I ran over his legs, I only ran over his legs.”

[72] The Bail Judge found that the evidence “strongly suggest[ed] that the driver of the vehicle intentionally drove over [the victim] while he was lying on the road” and that the passengers had “pleaded with [A.A.C.] to stop and provide assistance, but he chose to drive away”. As a result, the Bail Judge expressed the view that, “[t]here is very little that the defence can currently point to that would undermine the logical result of the evidence that the police have collected.” In other words, the Bail Judge saw no viable defence to the offence charged.

[73] The evidence before the Bail Review Judge, however, was markedly different. By the time of the bail review hearing, the record included transcripts of the various witnesses’ actual police statements, as well as transcripts of the sworn evidence from the preliminary inquiry. Based on this amplified record, the Bail Review Judge found, as described above, that new evidence had been led at the preliminary inquiry regarding A.A.C.’s intent “at the time he drove the vehicle forward” and as to whether passengers in the SUV told him to stop before he ran over the victim.

[74] I pause here to note that, in her reasons, the Bail Review Judge refers to E.F.’s “testimony”, suggesting, mistakenly, that E.F. testified at the preliminary inquiry. In fact, the evidence in question came from E.F.’s police statement. In my view, this misstatement is insignificant. The transcript of the bail review hearing indicates that the Bail Review Judge knew E.F. did not testify at the preliminary inquiry and that the information she provided came from her police statement.

[75] This new evidence, particularly C.H.’s testimony at the preliminary inquiry and E.F.’s transcribed police statement, is not consistent with the Crown’s theory that A.A.C. deliberately ran over the victim after passengers in the SUV warned him not to do so.

[76] C.H.’s preliminary inquiry evidence is especially germane in this regard. At the first bail hearing, the OIC summarized her then-untranscribed police statement as including the claim that the occupants of the SUV told A.A.C., “don’t do it.” Further, on the OIC’s description of her police statement, C.H. said that, after the victim had been run over, “people in the vehicle, including [C.H.], were yelling to stop and to go back”, but A.A.C. did not do so.

[77] A very different picture of C.H.’s evidence emerged at the preliminary inquiry. C.H. essentially said that she never told the police that the passengers in the SUV urged A.A.C., “don’t do it.” At the preliminary inquiry, she expressly said that none of the occupants of the SUV said anything before the vehicle ran over the victim. And, contrary to her statement to the police, she also denied at the preliminary inquiry that anyone told A.A.C. to stop and go back to attend to the victim.

[78] This evidence is relevant and material. Unlike the evidence before the Bail Judge, it suggests there were no pre-impact warnings to A.A.C. Compelling evidence that A.A.C. had been warned not to drive over the victim and did it anyway could support a strong inference of intent for second degree murder. C.H.’s evidence, as reflected in the record before the Bail Review Judge, significantly undercut this plank in the Crown’s case for second degree murder.

[79] The version of C.H.’s evidence before the Bail Review Judge about no pre-impact cautions to A.A.C. is also consistent with E.F.’s police statement, a transcribed version of which was available by the time of the bail review hearing. Recall that, in her statement, E.F. said that she didn’t think A.A.C. “realized what he did” and that the victim’s location was unclear when A.A.C. drove the SUV forward. There was also evidence at the preliminary inquiry that weakened the Crown’s theory of the location of the victim’s body.

[80] The evidence from C.H. and E.F. that was before the Bail Review Judge undermined the Crown’s claim that A.A.C. was repeatedly warned to watch out for or avoid the victim. Their evidence stands in stark contrast to that of M.M. and N.S., who claim that A.A.C. was warned to avoid impact with the victim. But M.M. and N.S. also deny participating in the physical beating of the victim, contrary to the accounts of multiple other witnesses. Moreover, M.M.’s claim that he told A.A.C., “don’t run him over”, is uncorroborated by any other occupant of the SUV. Tellingly, M.M. never made this claim in his statement to the police.

[81] The version of C.H.’s evidence put before the Bail Review Judge is important in another respect. Her denial at the preliminary inquiry that anyone told A.A.C., after the impact with the victim, to stop and go back tells against the assertion that A.A.C. knew he had run over the victim. It also runs contrary to the suggestion that A.A.C. was indifferent to and ignored pleas to return and assist the victim. C.H.’s testimony at the preliminary inquiry supports the defence position that there were no pleas for A.A.C. to return and attend to the victim and that he was unaware that he had run him over.

[82] As I see it, C.H.’s and E.F.’s evidence is capable of raising doubt about A.A.C.’s mens rea at the time he is alleged to have deliberately run over the victim. The Bail Review Judge’s reasons confirm that she appreciated the significance of this evidence and its potentially damaging effect on the Crown’s case. Moreover, I see nothing in her reasons to suggest that she failed to place and assess the potential import of this evidence in the context of all the available evidence bearing on A.A.C.’s intent.

[83] In my view, this evidence alone supports a finding of a material change in circumstances. In the language of St-Cloud, at paras. 132 and 137, it was “truly new” and “significant” evidence that was either not fully available or not available at all until after the initial bail hearing. Put somewhat differently, in the language of Whyte, at para. 26, this new evidence was “relevantly material” to an assessment of both the strength of the Crown’s case against A.A.C. and the circumstances of the offence. It was thus open to the Bail Review Judge to conclude, on the entirety of the augmented record, that there had been a material change in circumstances warranting a fresh bail review.

[84] The Crown argues that E.F.’s evidence was not “new” because the videotape of her police interview was disclosed to the defence prior to the first bail hearing. This argument, however, underplays the ‘real time’ circumstances of initial bail hearings. As the Supreme Court observed in St-Cloud, at para. 109:

[T]his expeditious [bail hearing] process is not without consequences for the accused, who generally has very little time to choose counsel and may even have no legal representation at the release hearing. The accused, or his or her counsel, also has very little time to, inter alia, review and analyze the prosecutor’s evidence, devise a defence strategy and make the best possible decisions on how to proceed. [Emphasis added.]

This comment is apposite here. In the circumstances, I do not think it can be said that the Bail Review Judge erred by regarding the confirmed version of E.F.’s evidence on these issues as “new”.

(iii) Alleged Misapplication of the Law

[85] The Crown submits that the Bail Review Judge misapplied the test for a material change in circumstances by misstating the requisite intent for second degree murder and by failing to appreciate the strength of the Crown’s case for manslaughter.

[86] The Crown points to the Bail Review Judge’s statement that, “[i]n order to find [A.A.C.] guilty of the charge of second degree murder, a jury must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the evidence is that [A.A.C.] intended to kill [the victim]”: at para. 49. This statement, the Crown contends, ignores the intent for murder set out under s. 229(a)(ii) of the Criminal Code – namely, “[c]ulpable homicide is murder … where the person who causes the death of a human being … means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.” According to the Crown, this misstatement led the Bail Review Judge to discount the strength of the Crown’s case for second degree murder. Again, I disagree.

[87] It is true that the Bail Review Judge did not expressly refer in her reasons to the definition of intent set out in s. 229(a)(ii). However, this omission and the Bail Review Judge’s impugned comment must be understood in the context of the record as a whole. I note that, during oral submissions, the Crown specifically drew the s. 229(a)(ii) definition of intent to the Bail Review Judge’s attention, distinguishing “murder … when [a] person does something with the intention [to murder]” and “one in reckless disregard whether or not they cause grievous bodily harm to death”. The Bail Review judge responded, “I understand that.”

[88] I am satisfied that the Bail Review Judge appreciated the legal test for murder and the Crown’s potential reliance on s. 229(a)(ii). Her abbreviated reference in her reasons to the requisite intent for murder does not mean that she failed to consider both aspects of the statutory definition of culpable homicide.

[89] In any case, as I have said, there was evidence before the Bail Review Judge suggesting that A.A.C. lacked the intent to run over the victim with his vehicle. This evidence diminishes the strength of the Crown’s case for second degree murder under the s. 229(a)(ii) definition of intent because it suggests that A.A.C. may not have intended to cause the victim bodily harm that he knew was likely to cause his death. In other words, even had the Bail Review Judge expressly addressed s. 229(a)(ii) in her reasons, her justification for finding a material change in circumstances would have been no different – and no less valid.

[90] I also do not accept the Crown’s contention that the Bail Review Judge erred in her material change of circumstances analysis by failing to consider what the Crown claims is its “overwhelming case for manslaughter” if second degree murder is not made out at trial.

[91] The case put by the Crown at the first bail hearing and, again, at the review hearing, was that A.A.C. had embarked on an intentional course of conduct that began with the beating of the victim and ended when he got in his SUV, deliberately ran over the victim and sped away. The Bail Judge detained A.A.C. on the basis that the evidence “strongly suggest[ed]” that he intentionally ran over the victim while he was lying helpless on the road, notwithstanding warnings not to do so.

[92] The loss of life by reason of an unlawful act or criminal negligence is materially different from an intentional killing. In this case, there was new evidence before the Bail Review Judge that what had been characterized as the latter may in fact have been the former. She did not err in finding that, where A.A.C. had been detained under the tertiary ground in s. 515(10)(c), such new evidence constituted a material change in circumstances.

(iv) Conclusion on Material Change in Circumstances

[93] I conclude that the Bail Review Judge did not err in finding that A.A.C. had demonstrated a material change in circumstances at the review hearing on the key issue of his intent on the night of the incident. Consequently, I find it unnecessary to address the Crown’s submission that the Bail Review Judge erred in finding that there had also been a material change in circumstances with respect to the evidence of A.A.C.’s intoxication on the night in question. The new evidence regarding A.A.C.’s intent was itself sufficient to support the Bail Review Judge’s fresh s. 515(10)(c) analysis.

(3) Was Detention Necessary to Maintain Confidence in the Administration of Justice?

[94] The Crown argues that, even if there had been a material change in circumstances, A.A.C. should not have been released pending trial. It attacks the Bail Review Judge’s release order on several grounds. Before turning to those specific grounds, it will be useful to revisit the Bail Review Judge’s s. 515(10) analysis.

[95] I have already described the essential components of the Bail Review Judge’s evaluation whether A.A.C.’s continued detention was necessary on any of the grounds set out in s. 515(10). In summary, she began by considering the primary and secondary grounds for detention – flight risk and the protection or safety of the public. After detailed consideration of the relevant evidence, she concluded that neither of these grounds justified detention. That finding is not contested before this court.

[96] The debate before the Bail Review Judge focussed on whether detention was necessary under the tertiary ground to maintain confidence in the administration of justice. In considering this ground, the Bail Review Judge identified the specific factors to be considered, as listed in s. 515(10)(c). She noted, correctly, that no one factor is determinative and that the combined effect of the four factors must be considered: at para. 37. This balancing exercise enables a reviewing judge to decide whether detention is justified: St-Cloud, at para. 55. In this case, two of those factors were not in issue. The defence wisely conceded the obvious – that both the gravity of the offence (s. 515(10)(c)(ii)) and the likelihood that A.A.C., if convicted, would face a lengthy term of imprisonment (s. 515(10)(c)(iv)) – worked against A.A.C.’s release.

[97] The Bail Review Judge considered the two factors in dispute: the apparent strength of the Crown’s case (s. 515(10)(c)(i)) and the circumstances surrounding the commission of the offence (s. 515(10)(c)(iii)). Having reminded herself of the circumstances surrounding the encounter, the tragic outcome, the presumption of innocence, the nature of the Crown’s theory – that A.A.C. intentionally killed the victim – and the evidence regarding A.A.C.’s intent, the Bail Review Judge concluded that, “the case for the prosecution is not at the maximum on all four factors of the tertiary ground” and, further, that “[i]t is far from clear what [A.A.C.’s] intentions were or what his state of mind was on the evening in question”: at paras. 49 and 51. She therefore concluded that A.A.C. had met his onus of demonstrating that his continued detention was not justified on the tertiary ground.

[98] As indicated, the Crown attacks the Bail Review Judge’s s. 515(10)(c) analysis on several bases. First, the Crown repeats its claim that the Bail Review Judge erred by misstating the requisite intent for second degree murder. I have already addressed this issue. As I have explained, I am not persuaded that the Bail Review Judge’s’ reasons, viewed in the context of the submissions made at the review hearing, reflect the error alleged by the Crown.

[99] Second, the Crown seizes on the Bail Review Judge’s comment that the prosecution’s case was “not at the maximum on all four factors of the tertiary ground” to argue that she misdirected herself on the applicable standard for detention.

[100] I disagree. For convenience, I repeat in part the Supreme Court’s direction in Hall, at para. 41, regarding detention on the tertiary ground:

At the end of the day, the judge can only deny bail if satisfied that in view of [the factors listed in s. 515(10)(c)] and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.

St-Cloud affirms this test for detention under s. 515(10)(c): at paras. 35 and 87.

[101] The Bail Review Judge’s reasons confirm she was alive to the need to consider all the factors identified in s. 515(10)(c) and their combined effect, as well as the surrounding circumstances in order to determine whether detention was necessary to maintain confidence in the administration of justice. She expressly cited Hallfor the applicable test for detention and stated, at para. 41:

The question to be answered is whether, in light of all four factors, a reasonable member of the community would be satisfied that the denial of bail is necessary to maintain confidence in the administration of justice.

[102] Again echoing Hall, the Bail Review Judge continued: “The reasonable person [assessing what is necessary to maintain confidence in the administration of justice] is one who is informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case”: at para. 42; see Hall, at para. 41. St-Cloud confirms this standard, at paras. 74 and 87.

[103] The Bail Review Judge clearly appreciated the test for detention. Her reasons on this issue accord with Hall and St-Cloud. Viewed in this context, her impugned remark, which tracks precisely the language used by the Bail Judge, was simply a shorthand explanation, based on a more developed record, for her assessment of the strength of the Crown’s case.

[104] Third, the Crown argues that the Bail Review Judge erred by failing to factor the wiretap evidence into her s. 515(10)(c) analysis, thereby minimizing the strength of the Crown’s case. In the Crown’s submission, the wiretap evidence establishes consciousness of guilt on A.A.C.’s part, which the Bail Review Judge ought to have viewed as strengthening the Crown’s case.

[105] I would reject this argument.

[106] In her analysis of the tertiary ground, the Bail Review Judge did not specifically refer to the wiretap evidence. However, she was clearly mindful of that evidence, noting, in her analysis of the secondary ground for detention, the Bail Judge’s treatment of concerns arising from some of the intercepted communications: at para. 34.

[107] The Bail Judge addressed the concerning aspects of the wiretap evidence in the context of the secondary ground for detention – the protection or safety of the public. He regarded the remarks in question as the product of “bravado” or, perhaps, “the ill-considered utterances of a person in fear; one who is desperately looking for an out”. He dismissed the suggestion that the concerning aspects of the wiretap evidence warranted detention.

[108] The central issue before both the Bail Judge and the Bail Review Judge was the tertiary ground for detention. The Crown relied on the captured utterances on the wiretaps as evidence of incriminating post-offence conduct. As the transcript of the review hearing makes clear, the Bail Review Judge was alive to the distinction between consciousness of guilt in general and consciousness of guilt for murder in particular. Indeed, in one exchange with Crown counsel, the Bail Review Judge specifically queried the Crown’s reliance on the wiretap evidence, given the absence of evidence of consciousness of guilt for murder. Her exchange with counsel on this issue is consistent with the Supreme Court’s direction in R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, at p. 145, and related cases that evidence of conduct consistent with consciousness of guilt “can serve the function of indicating consciousness of guilt only if it relates to a particular offence”.

[109] The charge against A.A.C. is one of second degree murder. The Crown has pointed to no wiretap evidence that meets the Arcangioli standard for establishing consciousness of guilt in relation to the offence charged.

[110] In these circumstances, I do not think it can fairly be said that the Bail Review Judge erred by failing to consider the wiretap evidence for a second time, in her analysis of the tertiary ground.

IV. Disposition

[111] It goes without saying that the crime alleged in this case could hardly be more serious. However, having considered the materially changed circumstances since A.A.C.’s first bail hearing and having conducted a fresh and full s. 515(10) inquiry, the Bail Review Judge determined that A.A.C. had met his onus of demonstrating that his continued pre-trial detention was not warranted on any of the grounds identified in s. 515(10). The Bail Review Judge’s balancing of the relevant factors under the tertiary ground and her consideration of their combined effect was a delicate, discretionary exercise: see St-Cloud, at paras. 113 – 14. I see no basis for interfering with her decision to release A.A.C., nor any justification to detain him again for the brief period remaining before his trial.

[112] For the reasons given, I would dismiss the application and confirm the Bail Review Judge’s decision.

Released:

“RJS” “E.A. Cronk J.A.”

“JUN 29 2015” “I agree Robert Sharpe J.A.”

“I agree Grant Huscroft J.A.”