COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McRae, 2020 ONCA 498

DATE: 20200804

DOCKET: M51663 (C66363)

Jamal J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

John McRae

Applicant

Matthew Gourlay, for the applicant

Bradley Reitz, for the respondent

Heard: July 30, 2020 by videoconference

REASONS FOR DECISION

[1] The applicant, Mr. John McRae, applies for bail pending his conviction and sentence appeal. He was convicted after a trial by judge and jury of the second degree murder of his son, Mr. Michael McRae. He was sentenced to life in prison without the possibility of parole for 12 years: R. v. McRae, 2018 ONSC 4035.

[2] The applicant was released on bail before his conviction for almost two years without incident. He now proposes a release plan pending appeal on terms much like those governing his release at first instance.

[3] The Crown’s position is that while this application for bail is a “close call”, it opposes bail because the applicant has failed to establish that his detention is not necessary in the public interest under s. 679(3)(c) of the Criminal Code, R.S.C. 1985, c. C-46.

[4] For the reasons that follow, I grant the application.

A. Background

(a) The stabbing and trial proceedings

[5] On July 7, 2015, in the early evening, the applicant, then aged 70, stabbed and slit the throat of his 51-year-old son, Michael. Michael was taken to the hospital, where he died.

[6] Both the applicant and his son were alcoholics. They had lived together on and off for over 30 years, enduring a destructive relationship fraught with mutual hostility. Both had been drinking heavily on the day of the stabbing.

[7] The applicant admitted stabbing his son and slitting his throat, but claimed that he had acted in self-defence because earlier that day his son had “kicked the shit out of” him, and had threatened to kill him, saying: “You’re no good for fuck all … You’re better dead. I’m going to fucking kill you one day.” The applicant testified that, after this initial altercation, his next clear memory was later the same day when his son kicked open his bedroom door and said: “You’re gonna die tonight you old bastard.” The applicant testified that he stabbed and killed his son moments after this threat.

[8] The applicant claimed that he acted in self-defence. In the alternative, he claimed that he lacked the specific intent for murder because he was intoxicated.

[9] The Crown contended that the applicant killed Michael while he was sleeping. The Crown claimed that the applicant was angry because of the dispute with his son earlier that day and against the backdrop of years of mutual hostility.

[10] On June 14, 2018, the jury convicted the applicant of second degree murder. On June 20, 2018, the applicant was sentenced to life imprisonment with no possibility of parole for 12 years.

(b) The applicant’s history on bail

[11] The applicant was released on bail for almost two of the three years between the offence (July 7, 2015) and the jury verdict (July 14, 2018). As the Crown concedes, this period of release was without incident.

[12] The applicant was originally released by order of Kane J. on October 19, 2015 following a contested application. Kane J. rejected the Crown’s position that bail should be denied mainly on the tertiary ground (s. 515(10)(c) of the Criminal Code), to maintain confidence in the administration of justice:

The potential strength of the defence to be presented impacts the strength of the Crown’s case and provides counter balance to the seriousness of the charge and the brutal circumstances of the deceased’s death.

There are lengthy periods of no criminal activity, particularly during the last 25 years of Mr. McRae’s life.

The bail plan presented addresses the substance issues of Mr. McRae which have accompanied his past criminal activity.

[13] Kane J. ordered the applicant’s release on these conditions:

• the applicant would reside initially at the Ottawa Mission’s residential treatment facility;

• on completion of his treatment there, the applicant would reside with his daughter, Ms. Terri McRae;

• the applicant would be subject to house arrest with limited exceptions;

• the applicant would abstain from consuming alcohol and non-prescription drugs;

• the applicant would possess no weapons or knives; and

• the applicant would enter into a $10,000 bond. His sureties would be his daughter, Ms. Terri McRae ($300,000), and granddaughter, Ms. Meaghan Frank ($100,000).

[14] The Crown applied to Strathy C.J.O. to direct a panel of the Court of Appeal to review Kane J.’s release order. Strathy C.J.O. dismissed the Crown’s application. He ruled that Kane J.’s decision was reasonable, a proper exercise of discretion, and one that a panel of the court would be unlikely to second-guess:

While the killing was horrific, the full circumstances paint a more nuanced picture: an elderly parent living with a violent, abusive and addicted son; a long and dysfunctional relationship characterized by abuse, intoxication and violence; an accused with significant health and addiction challenges, but making real progress addressing his addiction while on bail; the absence of recent criminal activity, except when involving the victim; a strong plan for release; a probable delay of at least three years until trial, meaning that if not released an elderly accused would spend three years in a provincial remand facility awaiting trial.

[15] The applicant remained on bail until January 31, 2017, when he was remanded into custody at his own request. He wished to serve more pre-trial custody because of the potential for a long prison sentence if convicted.

[16] The applicant remained in custody from January 31, 2017 to December 1, 2017, when he was released again by order of Kane J., again after a contested application. The applicant sought to be released because his health had deteriorated while he had been in custody, including his heart condition, diabetes, gallstones, and a broken arm caused by falling from a bunk. Kane J. acknowledged that the applicant’s daughter and surety, Ms. Terri McRae, with whom he had lived while on bail, had been convicted of impaired driving in January 2017, but was satisfied that this did not render her unfit to act as a surety because she agreed to a condition that there would be no alcohol in her house. Kane J. noted there was no suggestion that the applicant had consumed alcohol or had otherwise breached the bail conditions during his earlier release. He found the Crown’s position on the application was “a collateral attack of the original decision granting bail, which was denied leave to appeal. This is another case of the Crown’s preference for detention rather than bail”: R. v. McRae, 2017 ONSC 7145, at para. 48. Kane J. ordered the applicant’s release on terms broadly similar to his earlier release, but with enhanced terms in relation to alcohol.

[17] The applicant was released from December 1, 2017 until his conviction on June 14, 2018. Again, there was no suggestion that the applicant breached any of the conditions of his release.

[18] The applicant has been in custody for over two years since his conviction. His time in custody has also been without incident.

(c) The applicant’s medical condition

[19] The applicant has been serving his sentence at the Millhaven Institution but since April 2020 has been in the medical unit at the Bath Institution. He is 75 years old and has many underlying health problems, including:

• two heart attacks in the 1990s;

• type-2 diabetes;

• hepatitis C;

• depression and anxiety;

• kidney stones, which have led to five operations;

• pancreatitis, caused by alcohol consumption and which required surgery;

• high blood sugar;

• pelvic bursitis; and

• arthritis.

[20] The applicant takes several prescription medications. His mobility is restricted and he requires a walker to walk longer distances.

[21] Because his condition has stabilized at the medical unit of the Bath Institution, he is likely to be returned to Millhaven soon.

B. DISCUSSION

[22] To obtain bail pending appeal under s. 679(3) of the Criminal Code, the applicant must establish that: (1) the appeal is “not frivolous” (s. 679(3)(a)); (2) he will surrender himself into custody in accordance with the terms of the order (s. 679(3)(b)); and (3) his detention is not necessary in the public interest (s. 679(3)(c)).

[23] The applicant has met his onus under the first two grounds in s. 679(3). The Crown concedes that this appeal meets the “very low bar” for being “not frivolous” under s. 679(3)(a): R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. Nor does the Crown dispute that the applicant will surrender into custody in compliance with a bail order under s. 679(3)(b).

[24] The Crown opposes bail only on the third ground, s. 679(3)(c). The Crown submits that the applicant has failed to establish that his detention is not necessary in the public interest.

[25] The “public interest” criterion under s. 679(3)(c) has two elements: public safety and public confidence in the administration of justice: Oland, at paras. 23, 26.

[26] I will address public safety first.

Public safety

[27] Public safety considerations under s. 679(3)(c) relate to the protection and safety of the public, which tracks the secondary ground requirements of s. 515(10)(b) governing an accused’s release pending trial: Oland, at para. 24. To be denied bail for public safety considerations: (i) an individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 737; R. v. Stojanovski, 2020 ONCA 285, at para. 18.

[28] Public safety considerations alone can justify refusing bail in the public interest. And even where an applicant meets the public safety threshold, residual public safety concerns or the lack of any public safety concerns should still be considered as part of the public confidence analysis: Oland, at para. 27.

[29] I am satisfied that public safety considerations alone do not justify the applicant’s continued detention. The Crown does not contend this. The applicant’s criminal record, while extensive, is dated, with the last prior conviction being for assault in 2004. Although the applicant’s current offence involved the horrific killing of his son, it was linked with an alcohol addiction that appears to have been under control for the past five years. On two occasions Kane J. found that, with appropriate conditions for release, the applicant posed no significant risk to public safety. His first decision was affirmed as reasonable by Strathy C.J.O. I have no basis to reach a different conclusion.

[30] I am also satisfied that the proposed release plan addresses any residual public safety concerns. Like the release plans approved by Kane J., the applicant proposes to live with his daughter, Terri McRae, to not possess any weapons, and to not consume alcohol or possess or consume controlled drugs. Terri has again agreed to a condition that no alcohol be permitted in her residence. The plan also calls for the applicant to attend addiction counselling and therapy as medically directed. The applicant’s sureties would again be his daughter Terri ($300,000) and granddaughter Meaghan Frank ($30,000), both of whom have a record of successfully supervising the applicant on release. The applicant’s bond would be $10,000. The Crown agrees to the terms of the proposed release plan, if bail is granted.

[31] I now turn to the public confidence component, the focus of the Crown’s opposition to release pending appeal.

Public confidence

[32] The public confidence component involves weighing two competing interests: enforceability and reviewability. Enforceability concerns the need to respect the general rule of the immediate enforceability of all judgments. Reviewability concerns the need to provide for a meaningful review process, one that does not require persons convicted of offences to serve all or a significant part of their sentence only to have their conviction overturned on appeal: Oland, at paras. 24-26.

(i) The enforceability interest

[33] In assessing the enforceability interest, the seriousness of the crime has an important role. The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: Oland, at para. 37. The absence of flight or public safety risks will attenuate the enforceability interest. Other factors should also be considered where appropriate: Oland, at para. 39.

[34] Here, the applicant was convicted of a grave crime – second degree murder – leading to a significant enforceability interest. But that interest is attenuated somewhat by the lack of flight risks and the substantially reduced public safety risks, given the applicant’s proposed plan of release and the absence of issues during his earlier release.

[35] I now turn to consider the reviewability interest.

(ii) The reviewability interest

[36] In assessing the reviewability interest, the strength of the appeal plays a central role: Oland, at para. 40. A preliminary assessment of the strength of the appeal is made by reviewing the grounds in the notice of appeal for their general legal plausibility and foundation in the record, to determine whether those grounds clearly surpass the “not frivolous” criterion: Oland, at para. 44. A broader public interest in reviewability transcends an individual’s interest in any given case: Oland, at para. 45. The remedy sought on appeal may also inform the reviewability interest: Oland, at para. 46.

[37] On this application the applicant filed his draft appeal factum setting out his proposed arguments, which I found helpful in forming a preliminary assessment of the strength of the appeal. He proposes to advance three grounds on the conviction appeal and one ground on the sentence appeal, but for this application relies only on the grounds on the conviction appeal:

1. The trial judge erred by failing to charge the jury on the partial defence of provocation.

2. The trial judge erred by dismissing (in part) the applicant’s Scopelliti application to adduce evidence of the victim Michael McRae’s criminal record and prior bad acts, and by dismissing the applicant’s Corbett application to place an edited version of his criminal record before the jury.

3. The trial judge erred by giving the jury a special hearsay caution regarding the threatening utterances of the deceased reported by various witnesses, even though they were adduced for a non-hearsay purpose.

[38] I will consider each ground briefly. Cumulatively, these three grounds establish that the appeal clearly surpasses the “not frivolous” criterion.

[39] The applicant’s first ground of appeal asserts that the trial judge erred by failing to charge the jury on the partial defence of provocation. If the jury had accepted this defence, it could have convicted the applicant of manslaughter rather than second degree murder: Criminal Code, s. 232. The defence of provocation was raised as being potentially engaged and was mentioned in each of the bail decisions of Kane J. and the bail review decision of Strathy C.J.O. The defence of provocation was also included in the draft rolled-up charge, but the trial judge removed it from the final charge because he saw no evidence of provocation. Neither the Crown nor defence counsel at trial (not counsel on this application) made any further comment.

[40] The applicant asserts that the trial judge erred in law by not instructing the jury on provocation. The applicant asserts that the defence should have been put to the jury because the defence had an air of reality – the applicant’s testimony about his son’s provocative threat to kill him, leading to the applicant’s anger, moments before he stabbed his son. The applicant also submits that failing to instruct the jury on provocation was significant because during deliberations the jury had asked the trial judge about how they could use the evidence of the applicant’s anger. The trial judge consulted with counsel and reminded them, “remember, we don’t have provocation here so I took provocation out of the rolled-up [charge] because we didn’t instruct on provocation”. The trial judge then re‑charged the jury and instructed them that “anger is not a defence” but could be considered with the other evidence as to whether the applicant had the intent for murder. The applicant says the jury was left with the impression that the applicant’s anger was relevant only to the intent for murder, even though it could also have been relevant to the defence of provocation.

[41] Failing to leave provocation to the jury is also potentially significant because a conviction for manslaughter could have led to a lesser sentence than the conviction for second degree murder. Second degree murder carries a sentence of imprisonment for life without eligibility for parole for a minimum of ten years: Criminal Code, s. 745(c). Manslaughter is also punishable by a sentence of imprisonment for life but with no minimum punishment unless a firearm is used: Criminal Code, s. 236. It has been noted that “[n]o sentencing discretion is wider than for manslaughter”: Clayton C. Ruby et al., Sentencing, 9th ed. (Toronto, LexisNexis, 2017), at §23.133.

[42] During oral submissions on this application, the Crown conceded that the defence of provocation had an air of reality and therefore the trial judge should have put this defence to the jury. But the Crown submits that this error of law is subject to the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The Crown submits that the proviso can cure a harmless error that does not affect the verdict, or a serious error when the evidence of guilt is overwhelming: see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 26, 31.

[43] The applicant’s position is that while the proviso may not be categorically unavailable, it is unlikely to apply. He relies on R. v. Wade (1994), 1994 CanLII 10562 (ON CA), 18 O.R. (3d) 33 (C.A.), at p. 56, per Doherty J.A., rev’d on other grounds, 1995 CanLII 100 (SCC), [1995] 2 S.C.R. 737: “The curative proviso cannot be applied. Having held that there was ‘an air of reality’ to a possible conviction for manslaughter, I cannot say that the jury would necessarily have rejected that alternative had it been left with them”. The applicant also relies on R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, at paras. 104-106; R. v. Ronald, 2019 ONCA 971, at paras. 65-71; and R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 31.

[44] It will be for the panel hearing the appeal to determine whether the proviso applies. For now, because of the Crown’s concession that there was an air of reality to the defence of provocation, this ground of appeal clearly surpasses the threshold of being “not frivolous”.

[45] As for the second ground of appeal relating to the Scopelliti and Corbett applications, a preliminary assessment of this ground leads me to conclude that, while not frivolous, it faces significant challenges. The trial judge’s decisions on these applications will be entitled to appellate deference: R. v. R.D., 2019 ONCA 951, at para. 13; R. v. Joseph, 2020 ONCA 73, at para. 72. As counsel for the applicant fairly acknowledged in oral submissions, the trial judge’s dismissal (in part) of the Scopelliti application would not have left the jury with the misapprehension that Michael was an angel. On balance, I conclude that it weighs somewhat but not heavily in favour of reviewability.

[46] Finally, on the hearsay ground of appeal, the applicant relies on R. v. Delellis, 2019 BCCA 335. The British Columbia Court of Appeal held that the trial judge “erred in telling the jurors that evidence of past threats made by the deceased victim could not be used to the appellant’s benefit unless found to be truthful”: Delellis, at para. 3. The court found that the hearsay instruction was given in error, because it was adduced not for the truth of its contents but as evidence relevant to the appellant’s state of mind. The court found that the erroneous hearsay instruction gave rise to a reversible error, as the jury’s ability to rely on this evidence was unfairly restricted: Delellis, at paras. 117-120. While the limiting instruction in Delellis appears to have been more extensive than the hearsay caution at the applicant’s trial, this ground of appeal certainly surpasses the “not frivolous” threshold, and therefore also weighs in favour of reviewability.

Balancing the public interest in enforceability and reviewability

[47] In conducting a final balancing of the enforceability and reviewability interests, public confidence in the administration of justice is measured through the eyes of a reasonable member of the public, someone who is “thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, at para. 47. Anticipated delay in deciding an appeal, relative to the length of the sentence, is also a consideration, to ensure that the reviewability interest remains meaningful: Oland, at para. 48.

[48] The COVID-19 pandemic is also a factor that may be considered as part of the public interest criterion, though the weight to be given to it depends on the particular circumstances of each case: see e.g., R. v. Kazman, 2020 ONCA 251, at paras. 17-21; R. v. Omitiran, 2020 ONCA 261, at para. 26; and R. v. Jesso, 2020 ONCA 280, at para. 36. Here, the applicant is elderly and has serious underlying medical conditions. This puts him in a class of people particularly vulnerable to COVID-19. I have given this factor some weight.

[49] I have concluded that prima facie the enforceability interest is strong, given the seriousness of the offence for which the applicant was convicted, but is attenuated somewhat by the lack of flight risks and the substantially reduced public safety risks, given the applicant’s proposed plan of release and the absence of issues during his earlier release.

[50] I have also concluded that the reviewability interest is stronger than asserted by the Crown, especially because of the Crown’s concession in oral argument that the trial judge erred by failing to instruct the jury on provocation. The other grounds of appeal add further weight to the reviewability interest. I also note that the applicant has served three years of his sentence, and while the appeal will be perfected by September 4, 2020, it will not be heard for some months after that.

[51] When I weigh the enforceability and reviewability interests, I conclude that the reviewability interest overshadows the enforceability interest and therefore the applicant’s detention is not necessary in the public interest. When measured through the eyes of a reasonable member of the public who is thoughtful, dispassionate, informed of the circumstances, and respectful of society’s fundamental values, public confidence in the administration of justice would be maintained if the applicant were to be released pending appeal. I reach this conclusion because of the attenuated public safety concerns, the absence of flight risks and the strong plan of supervision with a proven track record of success, the applicant’s advanced age and health challenges in the context of the current public health climate, and because the applicant has already served three years of his sentence and has a clearly arguable appeal.

C. Disposition

[52] I grant the application for bail pending appeal.

“M. Jamal J.A.”