COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Luckese, 2016 ONCA 461

DATE: 20160609

DOCKET: M46491 (C62086)

Strathy C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

April Luckese

Applicant/Appellant

Counsel:

Stephen Whitzman, for the appellant

Michael Perlin, for the respondent

Heard: May 20, 2016

Application pursuant to s. 680 of the Criminal Code for an order directing a panel of the Court of Appeal to review the order of Justice David M. Brown, dated May 10, 2016, dismissing the application for release pending appeal.

ENDORSEMENT

[1] The appellant seeks a review by a panel of this court, pursuant to s. 679(1)(a) of the Code, of the order of Brown J.A. dismissing her application for bail pending appeal.

[2] The appellant, a day care provider, was convicted of manslaughter in the death of a 14-month-old child under her care. She was sentenced to six years in jail, less 24 days credit for pre-sentence custody.

[3] The material facts are set out in the reasons for conviction: R. v. Luckese, 2016 ONSC 1206. In overview, the infant suffered a fracture to the back of her skull while in the appellant’s care. She died two days later, in spite of medical intervention.

[4] The Crown relied on expert medical evidence as well as statements the appellant made to police and others.

[5] In a videotaped police interview, the appellant said she had tripped on a mat causing the child’s head to hit a bannister. Shortly after making that statement, she denied this had happened and said that she had shaken the child and the child went limp. She did not call 911 because she thought the child was sleeping. Later, while she was in the back of a police cruiser, she told an officer, “I know it is wrong. I just snapped. I guess I hit a breaking point.”

[6] The trial judge rejected the theory of accident and found that the appellant had momentarily lost her patience and assaulted the child, causing the skull fracture. There was no other rational explanation for the injury and for the symptoms displayed by the child. He found the appellant guilty of manslaughter on that basis.

[7] Alternatively, he found that the appellant had failed to provide the necessaries of life, for she had failed to call 911 after observing the child’s symptoms.

[8] The Crown did not dispute the primary and secondary grounds for bail. Nor did it dispute the good character of the appellant and the absence of a criminal record. The issue was the tertiary ground. Specifically, whether the appellant had demonstrated that her grounds of appeal were sufficiently strong that the public interest in enforceability of the conviction should yield to the interest in its reviewability.

[9] Brown J.A. found that the appellant had not demonstrated that detention pending appeal was not necessary in the public interest. The appellant has been convicted of a very serious offence – manslaughter of a vulnerable infant in her care. She was sentenced to a lengthy period of incarceration – six years. Balancing the interest of enforceability against the interest of reviewability, he found that the determinative factor was that the grounds of appeal, although arguable, were weak.

[10] The parties agree that the standard of review on this application is whether the proposed review has a reasonable prospect of success: R. v. Gale, 2011 ONCA 144, at para 18. In R. v. McRae, (M45877 January 26, 2016), I described the “reasonable prospect of success” standard as a low one, which contemplates that a panel of this court may come to reasonable conclusions that differ from my own.

[11] The standard has also been expressed as whether there is a realistic likelihood that a panel of this court would find that the bail review judge erred in denying, or granting, interim release: R. v. Gulyas, 2013 ONCA 68, at para. 2.

[12] In R. v. McRae, I referred to the standard and added the following, at paras. 31-35:

The nature of the panel’s review involves a consideration of the circumstances in which it is appropriate for a court to reverse a bail judge’s decision and the standard of review that the panel itself would apply.

In St-Cloud, Wagner J. explained when a reviewing court may interfere with a bail judge’s decision. He pointed out that the decision to grant interim release involved a “delicate balancing” of the relevant circumstances, so a reviewing judge does not have open-ended jurisdiction. He said, at para. 6, that the exercise of this power is only appropriate in three circumstances:

(1) where there is admissible new evidence;

(2) where the impugned decision contains an error of law; or

(3) where the decision is clearly inappropriate.

He elaborated on the last of these circumstances by saying that the reviewing judge could not simply substitute his or her decision for the decision of the bail judge: “It is only if the [bail] justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene.”

Although Wagner J. provided that guidance in the context of a review under ss. 520 or 521, in my view, it is equally applicable to bail reviews under s. 680.

The circumstances identified by Wagner J. in turn point to the standard of review that the panel would apply. Under the first two circumstances, a panel of this court would review the bail judge’s decision on a correctness standard. The third circumstance, however, is highly deferential and synonymous with reasonableness review.

[13] There are three grounds of appeal. The first two relate to the conviction for manslaughter. The third relates to the alternate basis of culpability – failure to provide the necessaries of life. In order to succeed on her application for bail pending appeal, the appellant needed to demonstrate her grounds of appeal on both alternative bases of culpability were sufficiently strong.

The admissibility of the appellant’s statement “I just snapped”

[14] The appellant will argue that this statement, made in the back of a police cruiser after the appellant had been taken to the day care centre to re-enact the events, should have been excluded because it was not videotaped. The bail judge considered this ground to be arguable, but not strong, in light of this court’s decision in R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 160 C.C.C. (3d) 493 (Ont. C.A.). The appellant does not challenge that conclusion.

The good character evidence

[15] The appellant did not testify at trial. However, she adduced evidence that she was a caring, loving, calm, patient and responsible day care worker.

[16] The trial judge accepted this evidence. He described the appellant’s argument as follows:

Finally, the defence submits that given the character evidence that was called, it is unlikely that she would have committed the offence charged. She was an experienced day care provider and would be used to an upset child in the early days of day care.

[17] The appellant will submit on appeal that although the trial judge stated the proper use of such evidence, he misapplied the test when he concluded the following in his reasons on this issue:

Ms. Luckese was an experienced day care provider. Her character evidence shows that she was an exemplary day care provider and had experience dealing with children in their early days in her care. However, how she had dealt with other children, in other circumstances, is not of great significance to me in this case relating to this child on this day. I cannot draw the inference that because she worked well with other children on other days, she could not have assaulted this child. [Emphasis added.]

[18] The appellant will argue that the trial judge misplaced the burden of proof, requiring her to prove that, because of her good character, she “could not have” assaulted the child.

[19] Brown J.A. regarded this ground of appeal as arguable, but not at the strong end of the spectrum. The trial judge understood the defence position and correctly stated the legal purpose of the character evidence: to support the inference that the accused was unlikely to have committed the offence. He noted that the language used by the trial judge in the impugned paragraph was the same language used by Bastarache J. in R. v. Charlebois, 2000 SCC 53, at para. 30.

[20] The trial judge’s determination of the low probative value of the good character evidence took place in the context of his assessment of all the other evidence. He considered the circumstances prevailing at the day care on the day in question. The appellant was responsible for seven children under the age of three. The deceased infant was new to the day care, understood little English and had been crying throughout the day. He considered the nature of the injury and the expert evidence about how it could have been inflicted. He considered the appellant’s contradictory statements about slipping, then saying that she had shaken the child, then stating that she “just snapped”. The trial judge drew an inference that was clearly available to him: that the appellant momentarily lost her patience and struck the child. The good character evidence, which the trial judge clearly accepted and considered, was of little probative value in the circumstances.

[21] The trial judge identified the correct test for the use of the character evidence. I agree with Brown J.A.: the appellant’s argument that the trial judge misapplied the test, having stated it correctly, is arguable but not strong.

[22] I would not, therefore, order a review of the order of Brown J.A. by a panel of this court in relation to this ground of appeal. This conclusion makes it unnecessary to consider the strength of the appellant’s appeal from conviction based on the alternative basis of liability.

Disposition

[23] For these reasons, the application is dismissed.