Court of Appeal for Ontario

Date: 2017-02-21

Docket: M47273 (C57652)

MacPherson J.A. (In Chambers)

Between

Her Majesty the Queen Respondent

and

Roger Craig Short Applicant/Appellant

Counsel

Susan Chapman and Michael Dineen, for the applicant

Megan Stephens, for the respondent

Heard: February 16, 2017

Endorsement

[1] On February 27, 2013, the applicant was convicted by a jury, presided over by Donohue J. of the Superior Court of Justice in Sarnia, of the first degree murder of his wife, Barbara Short. It was the second trial on this charge; the first trial ended with a hung jury.

[2] The applicant filed a notice of appeal and brought an application for judicial interim release pending appeal. The application was dismissed by LaForme J.A. on March 6, 2014.

[3] The relevant provision of the Criminal Code, R.S.C. 1985, c. C-46, is s. 679(3) which requires an applicant to establish three criteria:

a) the appeal … is not frivolous;

b) he will surrender himself into custody in accordance with the terms of the order; and

c) his detention is not necessary in the public interest.

[4] At the initial bail hearing, the Crown conceded the first and second of these criteria. LaForme J.A. denied bail on the basis of the third criterion, public interest. He concluded, at para. 29:

Mr. Short has been found guilty of murdering his wife by a jury of 12. This offence is arguably the most serious in Canada. While some of his grounds of appeal are more than simply arguable, they are nevertheless not sufficiently strong such that I can say, based on this record, they are likely to succeed on appeal. Release, in my view, would not be in the public interest.

[5] Three years later, the applicant makes a second application for judicial interim release pending appeal. Once again, the Crown concedes the first and second criteria. The Crown says that the new grounds of appeal and the fresh evidence make the appeal arguable, but not so strong as to raise a serious concern about the accuracy of the verdict. The Crown acknowledges that the proposed release plan – the applicant, age 56 with no prior criminal record, will reside in the home of Russell (a former police officer) and Gaelene Bain in Dorchester, Ontario – is an appropriate plan.

[6] Once again, the Crown opposes bail on the public interest criterion. The Crown says that many of the grounds of appeal raised in the applicant's factum on the appeal proper were before LaForme J.A. in almost the same form and detail as they are now presented. In addition, the Crown contends that the proposed new grounds of appeal have not been shown to be sufficiently strong that they are likely to succeed.

[7] The applicant does not challenge the merits of LaForme J.A.'s bail decision in 2014. His position is that a combination of new grounds of appeal, compelling fresh evidence, and the passage of time constitutes a material change of circumstances justifying a fresh application.

[8] The public interest criterion requires an appellate court to balance two separate interests: reviewability of convictions leading to imprisonment and enforceability of judgments: see R. v. Farinacci (1993), 109 D.L.R. (4th) 97 (Ont. C.A.); R. v. Manasseri, 2013 ONCA 647, [2013] O.J. No 6177.

[9] I acknowledge that judicial interim release pending appeal for a person convicted of murder is rare: see R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A.); and Manasseri.

[10] However, in my view, this is a rare murder case in which, at this juncture, the interests of reviewability outweigh the interests of enforcement.

[11] First, one of the new grounds of appeal relates to the trial judge's decision at the second trial not to remove defence counsel from the record. This decision was made about five weeks before trial. Defence counsel asserted that his client had discontinued payment for his services and that he could not ethically represent his client. The trial judge refused to allow the accused to speak on this issue. And he ruled that "[defence counsel's] difficulties relate to payment of his accounts and not to an ethical dilemma."

[12] I do not say that either of these rulings was clearly wrong. However, the decision of the Supreme Court of Canada in R. v. Cunningham, 2010 SCC 10, [2010] S.C.R. 331, raises a serious issue about the ethical dilemma component of the ruling. In Cunningham, Rothstein J. said, at para. 49, that "[i]f withdrawal is sought for an ethical reason, then the court must grant withdrawal" (citation omitted). It may be that if an 'ethical dilemma' is advanced as a colourable basis for withdrawing for non-payment of legal fees, a trial judge could refuse to allow counsel's withdrawal. However, in para. 48, Rothstein J. also said:

However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel's answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.

In any event, the new Cunningham issue presents as a serious appeal issue.

[13] Second, there is now a very extensive fresh evidence record about a potential third party suspect. This was a live issue, though barely, at trial. At the initial bail hearing, the focus on this issue was on the trial judge's ruling. Today, the picture is vastly different. The applicant has engaged a respected private investigator and there is a great deal of information about a potential third party suspect. There may well be, as the Crown asserts, problems with the admissibility of some of that evidence (e.g. hearsay). That said, whereas at the time of the trial a third party suspect defence appeared as farfetched, that is no longer a fair characterization.

[14] Third, and crucially, against the backdrop of the first two points above, the applicant has been incarcerated for four years and his appeal has not been heard. I do not blame the applicant or the Crown for this state of affairs. However, I do say that this is an important factor in justifying bail at this juncture: see Baltovich, at paras. 41-42; R. v. Pabani (1991), 10 C.R. (4th) 381 (Ont. C.A.), at para. 10. The applicant is 56 years old. He had no criminal record before the conviction. His release plan – living with a former police officer – is unassailable.

[15] Fourth, this appeal, even with all the fresh evidence material, can be heard in the near future. With the consent of counsel, I will case manage the appeal and it is scheduled for hearing on August 30 and 31, 2017.

[16] Accordingly, the application is granted. The applicant is released pending his appeal in accordance with the terms set out in the draft order.

J.C. MacPherson J.A.