COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hope, 2016 ONCA 648

DATE: 20160831

DOCKET: M46855 (C57835)

Epstein J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Responding Party (Respondent)

and

Robert Hope

Applicant (Appellant)

Melanie Webb, for the applicant

Lucy Anne Cecchetto, for the responding party

Heard: August 25, 2016

ENDORSEMENT

[1] Robert Hope applies for release from custody pending his new trial on charges that include second degree murder. On October 4, 2009, Mr. Hope shot and killed Mr. Johnston. The killing took place on a residential street in Windsor, Ontario. On March 8, 2013, Mr. Hope was convicted of second degree murder, of using a firearm while committing an indictable offence and or possession of a prohibited weapon without a license (an offence to which he pled guilty). On October 4, 2013, Mr. Hope was sentenced to life imprisonment without eligibility for parole for 11 years for second degree murder and 1 year concurrent for using a firearm while committing the indictable offence. Mr. Hope was also sentenced to an additional 1 year concurrent for possession of a prohibited weapon without a license.

[2] In reasons released August 12, 2016, this court allowed Mr. Hope’s appeal from the two charges for which he was found guilty and ordered a new trial on those charges. The Crown advises that it will likely be a year or more before the new trial can commence.

[3] This is the first time that Mr. Hope has sought his release on bail since his arrest in January 2010. He has therefore been in custody for almost seven years.

[4] Section 679(7.1) of the Criminal Code provides that where this court has ordered a new trial, an application for release pending that trial may be dealt with by a judge of this court.

[5] Section 522(2) provides that because Mr. Hope is facing a charge listed in s. 469 of the Code he bears the onus of showing cause why his detention in custody is not justified on any of the three grounds set out in s. 515(10) of the Code. Those grounds are as follows:

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) on any other just cause being show and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

[6] I emphasize that as Mr. Hope comes before me awaiting trial, he is entitled to the presumption of innocence. While he lost the benefit of that presumption upon his conviction, that conviction has been set aside. I cannot ignore the conviction because it is part of the history of the case and explains why I am now considering bail pending trial at a point when Mr. Hope has served almost seven years in prison. However, the conviction is otherwise irrelevant to the application.

[7] I have concluded that in all of the circumstances Mr. Hope has met this onus. However, before turning to each of the three grounds, I make two observations.

[8] First, Mr. Hope is of aboriginal descent.

[9] Ontario courts have accepted that Gladue principles apply to bail hearings. As Winkler C.J.O., as he then was, held in R. v. Robinson, 2009 ONCA 205:

It is common ground that principles enunciated in the decision of the Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, have application to the question of bail. However, the application judge cannot apply such principles in a vacuum. Application of the Gladue principles would involve consideration of the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release.

See also, R. v. McCrady, 2016 ONSC 1591, at paras. 60-63; R. v. Spence, 2015 ONSC 1692, at para. 69; R. v. Achneepineskum, 2015 ONSC 5700, at para. 33 and R. v. Bain, [2004] O.J. No. 6147, at para. 12.

[10] I also note that this court has repeatedly applied Gladue principles outside of the sentencing context: United States of America v Leonard, 2012 ONCA 622 (finding Gladue principles in the context of extradition proceedings); Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534 (finding Gladue principles apply in the context of sentencing for civil contempt of court) and R. v. Sim, 2005 CanLII 37586 (ON CA), [2005] O.J. No. 4432 (finding Gladue principles apply in the context of Ontario Review Board hearings).

[11] As this court explained in United States of America v. Leonard, 2012 ONCA 622, at para. 60:

Gladue stands for the proposition that insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons…[B]oth Gladue and Ipeelee…emphasize that consideration of the systemic wrongs inflicted on Aboriginals does not amount to discrimination in their favour or guarantee them an automatic reduction in sentence. Instead, Gladue factors must be considered in order to avoid the discrimination to which Aboriginal offenders are too often subjected and that so often flows from the failure of the justice system to address their special circumstances. Treating Gladue in this manner resonates with the principle of substantive equality grounded in the recognition that "equality does not necessarily mean identical treatment and that the formal 'like treatment' model of discrimination may in fact produce inequality": R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 15.

[12] I am of the view that Gladue principles inform certain aspects of my analysis.

[13] Second, I observe that the reason this court quashed the convictions and ordered a new trial is a primarily on the basis that the jury was not properly instructed on Mr. Hope’s defence of self-defence.

[14] Turning to the first ground set out in s. 515(10), Mr. Hope must show that his detention is not necessary to ensure his attendance in court.

[15] Here, it is relevant that Mr. Hope is facing serious charges arising out of serious circumstances. Mr. Hope attended a child’s birthday party with a loaded gun illegally brought into the country and shot a guest in the back on the street outside the party.

[16] Also of relevance, however, is the relative strength of the Crown's case against him. With respect to the strength of the Crown's case, I view the case against Mr. Hope at this point as not overwhelming. First, I note that this court observed in its reasons for quashing the conviction that the record contains evidence capable of supporting the defence of self-defence. Second, counsel for the Crown fairly conceded in argument, that the case for the prosecution is now invariably weaker given the passage of time.

[17] Mr. Hope’s ties to the community are also relevant to this first ground. The affidavit evidence filed on this application demonstrates that there are a number of people who support him. All of them are prepared to offer him assistance in the form of proper living arrangements and employment should he be released. These individuals provide Mr. Hope with a real and meaningful social network in his community.

[18] The Crown raises a concern about the fact that given Mr. Hope’s aboriginal status, he is able to travel into the United States without a passport.

[19] In the circumstances, I do not view this concern as very significant. First, Mr. Hope’s conduct between the time of the killing, when he travelled to the United States, voluntarily returned to Canada and remained here until he was arrested, supports a finding that he is not a flight risk. As well, I find relevant the assessment Mr. Hope can make of the relative lack of strength of the case now raised against him, the demonstration of the ties between him and the social network that is prepared to support him including a young woman to whom Mr. Hope has been engaged to marry since 2009.

[20] In my view, Mr. Hope has shown that his detention is not necessary to ensure his attendance in court.

[21] As to the second ground, Mr. Hope must show that his detention is not necessary for the protection or safety of the public. In my opinion the record here readily permits him to do so.

[22] Prior to his convictions that this court set aside, Mr. Hope had no relevant criminal record. Although Mr. Hope admits to having killed Mr. Johnston, his defence of self-defence makes the nature of the crime of little assistance in assessing whether Mr. Hope’s detention is necessary to protect the public.

[23] Mr. Hope’s institutional record over the past seven years shows him to be a model prisoner.

[24] Thus, I conclude that Mr. Hope has shown that his detention is not necessary on the second ground.

[25] Finally, Mr. Hope must show that his detention is not necessary to maintain confidence in the administration of justice.

[26] Several grounds are relevant to the public interest determination. These include the strength of the Crown’s case including any defence raised, the seriousness of the offence, the strength of the Crown’s case on the new trial, circumstances surrounding its commission including the use of a firearm and ultimately whether detention is necessary to maintain confidence in the administration of justice: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.

[27] 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 Mr. Hope has reacquired the presumption of innocence as a result of the decision of this court. It would also understand that while his evidence protesting his innocence was disbelieved by the jury at his first trial, that jury did not have the benefit of proper instructions on the defence of self-defence.

[28] Moreover, given that the Crown's case against Mr. Hope will now almost certainly be somewhat weaker and that he has already spent seven years in jail on these charges, I think that Mr. Hope’s release on proper terms would do more to maintain confidence in the administration of justice than would his continued detention. Mr. Hope has therefore satisfied the third ground as well.

[29] In my view, Mr. Hope’s detention pending appeal is not necessary in the public interest. In fact, I conclude that the public's confidence in the administration of justice would be undermined rather than advanced by detaining Mr. Hope pending his trial. He is presumed to be innocent, and throughout his years of involvement with the justice system on these charges, he appears to have complied with the demands made upon him. 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 seven years. To detain Mr. Hope who is presumed to be innocent for at least two more years pending the determination of the trial would, in my view, be perceived by an informed and dispassionate public to be unfair and contrary to our society's sense of justice.

[30] In summary, I conclude that this application must succeed and that Mr. Hope must be released subject to appropriate terms and conditions.

[31] Mr. Hope proposes a cash deposit of $5,000. While this amount may appear modest, in all of the circumstances, I conclude it is an appropriate amount to secure Mr. Hope’s compliance with the terms of release.

[32] With respect to the issue of sureties, the people who have offered to be sureties and pledge various amounts secured by the equity in their homes are of aboriginal descent. They live on a reserve and therefore, under s. 89 of the Indian Act, RSC 1985, c I-5, their property is not subject to a charge other than by an Indian or a band. The Crown raises this as a concern.

[33] I do not accept this argument. First, I am of the view that the protection afforded to people of aboriginal descent provided under the Indian Act should not interfere with their right, in circumstances that are otherwise warranted, to secure release from detention. Second, the real point is that those who have come forward to support Mr. Hope have expressed a willingness to pledge the not insignificant equity in their properties, not whether the Crown can execute against those properties.

[34] For these reasons, I order Mr. Hope’s release and invite counsel to prepare a release order for signature. If there are any difficulties with the order I may be spoken to.

[35] The application for bail pending appeal is allowed on these terms plus those agreed-upon by counsel.

“Gloria Epstein J.A.”