COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Cole, 2020 ONCA 713
DATE: 20201106
DOCKET: M51837 (C63802)
Roberts J.A. (Motions Judge)
BETWEEN
Her Majesty the Queen
Respondent
and
Margaret Lee Cole
Appellant (Applicant)
Lisa Jørgensen, for the applicant
John Patton, for the respondent
Heard: October 16, 2020 by videoconference
REASONS FOR DECISION
Overview
[1] On March 5, 2015, the applicant was convicted by a jury, presided over by Justice Guy P. Di Tomaso of the Superior Court of Justice, of the first degree murder of Richard Humble. On March 24, 2015, the trial judge imposed the mandatory sentence of life imprisonment without parole eligibility for 25 years.
[2] The applicant seeks interim judicial release under s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, pending the hearing of her appeal, which is now scheduled for January 14, 2021. Until this application, she had not sought release pending her trial nor following her conviction and sentencing. Her concerns about the risk of contracting COVID-19 while incarcerated in what she describes as unhealthy and unsafe conditions provide the main impetus for her present application. She submits that she has met all the criteria under s. 679(3) of the Criminal Code: she has grounds of appeal that are not frivolous; she will surrender herself into custody when required; she proposes a strong release plan; her detention is not necessary in the public interest; and there is no substantial likelihood of a risk to public safety.
[3] While conceding for the purposes of this application that the appeal is not frivolous, the respondent submits that the applicant has failed to establish that her detention is not necessary in the public interest. Specifically, the respondent maintains that the applicant is a flight risk, she poses a real risk to public safety, her grounds of appeal are “frail or exceptionally weak”, and her release would “shatter” public confidence in the administration of justice. Moreover, as the respondent argues, the evidentiary record on this application does not support the applicant’s COVID-19 concerns.
The Public Interest Criterion
[4] It is well established that, following her conviction, the applicant lost the presumption of innocence and must therefore demonstrate that she meets the criteria for release pending the determination of her appeal: see R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 109 D.L.R. (4th) 97 (Ont. C.A.), at p. 102; R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 34-35. This application turns on the third criterion under s. 679(3) of the Criminal Code, namely, whether the applicant has established that her detention is not necessary in the public interest. As I shall explain, the applicant has not met this onus.
[5] The public interest criterion of s. 679(3)(c) of the Criminal Code has two components: public safety and public confidence in the administration of justice: Oland, at para. 23. The public confidence consideration requires a balancing between the respective public interests in the enforceability and reviewability of the judgment under appeal, having regard to such factors as the seriousness of the offence, the strength of the grounds of appeal, the length of the sentence, and any residual public safety or flight concerns: Oland, at paras. 47-51. This balancing must be done while keeping in mind that public confidence is to be measured through the eyes of a reasonable member of the public who is “thoughtful, dispassionate, [and] informed”: Oland, at para. 47.
[6] There is no issue that the applicant has been convicted of first degree murder, which is the most serious offence in the Criminal Code. As noted by the Supreme Court in Oland, this factor alone is not determinative, especially if the applicant has strong grounds of appeal: Oland, at paras. 50-51. However, unlike in Oland, where Mr. Oland’s grounds of appeal were recognized as “clearly arguable”, that is not the case here: Oland, at paras. 68-69. In my opinion, as I explain below, while arguable, the applicant’s grounds of appeal do not “clearly surpass” the not frivolous threshold, the latter recognized as being a very low threshold: Oland, at paras. 20, 44.
[7] This application can be further distinguished from Oland. Notably, Mr. Oland had family members prepared to act as sureties and risk substantial sums of money: Oland, at para. 10. Moreover, Mr. Oland was convicted of second degree murder and his “crime gravitated more toward the offence of manslaughter”, thereby “lessen[ing] [his] degree of moral blameworthiness”: Oland, at para. 68. Therefore, Mr. Oland was recognized “as an ideal candidate for bail”: Oland, at para. 65. In contrast, the applicant has no dedicated sureties and only pledged $2,500 if she failed to comply with the release order. Finally, the applicant was convicted of first degree murder. The applicant’s situation is therefore noticeably different from Oland.
The Grounds of Appeal
[8] For the purposes of this application, the applicant focussed on two grounds of appeal:
The trial judge erred in admitting forged letters on the applicant’s former solicitor’s letterhead as similar fact evidence and further erred by failing to give an appropriate jury instruction; and
The trial judge erred in his jury instruction concerning the fabrication of the applicant’s alibi.
[9] In assessing the relative strength of the applicant’s grounds of appeal, I am mindful that the applicant is not required to persuade me on a balance of probabilities that she will prevail on appeal. Rather, Oland, at para. 44, instructs the following:
In conducting a more pointed assessment of the strength of an appeal, appellate judges will examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record. For purposes of this assessment, they will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the “not frivolous” criterion.
[10] With respect to the first ground of appeal, the applicant is faced with a difficult task, as there was ample evidence to show that the letters were forged, and that the applicant deceitfully forged these letters to postpone the payment of her debt to her brother and sister-in-law. The applicant’s trial counsel conceded the relevance and materiality of the forged letter evidence for the Crown’s case, but trial counsel argued that its prejudicial effect significantly overcame its probative value. Nor did trial counsel object to the jury instruction given by the trial judge that followed the model jury instruction found in David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at pp. 350-51 (Final 28-A). Moreover, as the respondent submits, “with the assistance and concurrence of counsel”, the trial judge “appropriately restrained the use of the [forged] letters by providing correct limiting instructions to the jury.” The trial judge’s weighing of the relevant factors to conclude that the letters had substantial probative value that outweighed any prejudicial effect is entitled to appellate deference.
[11] The applicant’s second ground of appeal presents similar difficulties. Again, there was ample independent evidence of the applicant’s fabrication of her alibi that she was not near the victim’s house at the relevant time, including the false statements that she gave voluntarily to police before she was a suspect. The trial judge again followed the standard language from the model jury instruction outlining the difference between not believing the applicant and finding fabrication as circumstantial evidence of her guilt: see Watt’s Manual of Criminal Jury Instructions, at pp. 343-44 (Final 27-B). There was no objection to it at trial.
The Seriousness of the Offence
[12] Along with the weakness of the applicant’s grounds of appeal, the seriousness and particularly egregious aspects of the offence for which she was convicted, and the concomitant serious public safety concerns that arise, tilt the balancing of the respective public interests firmly towards enforceability.
[13] As I have already mentioned, the applicant was convicted of first degree murder. Her victim was very vulnerable and elderly, who was recovering from a heart attack and knee surgery. She was acting as his caregiver. By virtue of her position and proximity to the victim, she gained access to his bank account and withdrew a large sum of money with cheques she had forged. She applied his signature to a forged will that left her a significant bequest. She drugged him before she set his house ablaze and left him to die. The jury’s rejection of the applicant’s alibi and the evidence of the applicant’s previous forgery further support concerns with the applicant’s probity and trustworthiness.
The Release Plan
[14] Given this constellation of factors, the applicant’s release plan is not adequate to ensure that the serious risk she poses to public safety is appropriately diminished.
[15] While I have no doubt of the sincerity of the Elizabeth Fry Society to do their best to monitor the applicant, the practical reality is that because of the COVID-19 pandemic, they must house the applicant in a hotel where security will be less robust than the institution where she is at present incarcerated. It is not at all clear how the applicant’s movements will be restricted or monitored, other than as the letter from the Elizabeth Fry Society states there will be four employees at all times “with clear view of hallways, room doors and the parking lot.” However, for example: Will someone be outside her room? Will her room be locked? Can she come and go as she wishes, or will she always be accompanied? None of these questions were answered in the materials provided. Nor am I satisfied that the electronic bracelet monitoring attenuates the risk. As Ms. Jørgensen frankly and fairly acknowledged in oral submissions, if the bracelet is disabled and removed, there could be time for the applicant to leave the premises before the police are alerted to her departure.
[16] I also note that given the length of the applicant’s sentence and the imminence of the hearing of her appeal in January 2021, her appeal will not be moot because it will have been heard before she has completed a substantial portion of her sentence: Oland, at para. 48.
The COVID-19 Pandemic
[17] Lastly, I turn to the question and impact of the COVID-19 pandemic raised by the applicant. It is common ground that the COVID-19 pandemic is a factor to be considered on an application for judicial interim release pending appeal, though the weight given to this factor depends on the particularities of the case: R. v. McRae, 2020 ONCA 498, at para. 48.
[18] However, I am not persuaded that it is a factor that carries much weight here because the evidence falls short of showing any serious or immediate risk to the applicant. The information gleaned from Correctional Service Canada’s “Inmate COVID-19 testing in federal correction institutions” document, dated October 7, 2020, which was put forward by the respondent, indicates that while there were eight positive COVID-19 tests of inmates at her facility, all of them have since recovered. More importantly, there are no active COVID-19 cases in the institution where the applicant resides. I also accept that there is a rigorous cleaning protocol in place that, as the results appear to show, attenuates the spreading of the virus. I have no comparable evidence concerning the state of the hotel where the applicant proposed to reside on release. The risk of exposure to the applicant is also lessened by the hearing of her appeal in just over two months.
[19] For these reasons, I am of the view that the public interest in the enforceability of the judgment under appeal outweighs the public interest in its reviewability, and that a reasonable member of the public’s confidence in the administration of justice would be undermined by the applicant’s release on bail pending appeal.
Disposition
[20] The application is therefore dismissed.
“L.B. Roberts J.A.”