Publication Notice: The order restricting publication in this proceeding made under s. 517 of the Criminal Code is no longer in effect. This judgment was published on April 21, 2023.

Corrected decision: The text of the original judgment was corrected on April 21, 2023, and the description of the corrections is appended.

COURT OF APPEAL FOR ONTARIO

DATE: 20220316 DOCKET: M53231

Lauwers, Pardu and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Robert Steven Wright Applicant

Counsel: Michael W. Lacy and Bryan Badali [1], for the applicant Jeremy D. Tatum, for the respondent

Heard: March 10, 2022, by video conference

REASONS FOR DECISION

The application

[1] The applicant seeks a review pursuant to s. 680(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 of the January 17, 2022 decision of the bail judge to continue the applicant’s detention on a charge of second-degree murder. The applicant submits that there has been a material change in circumstances that warrants reconsideration of his release pending his trial now scheduled for the fall of this year. He submits that the September 29, 2021 decision of the trial judge on a pretrial motion granting leave to raise a third-party suspect defence alters the calculus of the strength of the prosecution’s case, and that a re-weighing of the relevant factors now justifies his release.

[2] The applicant was arrested on December 11, 2018 for the January 27, 1998 murder of Renee Sweeney. He has been denied bail three times, always on the tertiary ground under s. 515(10)(c) of the Criminal Code that detention was necessary to maintain confidence in the administration of justice.

[3] Associate Chief Justice Fairburn of this court concluded that it was arguable that the bail judge applied too high a threshold when deciding whether the ruling that the applicant could attempt to introduce third-party suspect evidence amounted to a material change in circumstances. The bail judge focused on whether the new information “would” have altered the original bail judge’s views about the applicant’s detention rather than assessing whether it “could” have altered those conclusions: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 137. Although the bail judge concluded in the alternative that continued detention was justified, the applicant argues that he placed too much emphasis on what the original bail judge decided. The Associate Chief Justice accordingly directed that this panel review the bail judge’s decision.

[4] We assume, without deciding, that the ruling about third-party suspect evidence amounts to a material change in circumstances warranting a de novo reconsideration of interim release pending trial.

[5] The Crown does not argue that detention is necessary to ensure the applicant’s attendance in court or that detention is necessary for the protection or safety of the public. The applicant has no criminal record and over twenty years has passed since the time of the murder. The only issue is the application of s. 515(10)(c) of the Criminal Code:

s. 515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[6] There is no doubt that the crime charged is very serious, was very violent and that the victim was vulnerable. If convicted, the applicant faces a lengthy period of incarceration. The arguments about interim release turn on the strength of the prosecution’s case.

The circumstances surrounding the commission of the offence

[7] Renee Sweeney was a young university student working in a retail establishment in Sudbury on January 27, 1998. Between 11:00 a.m. and 11:37 a.m., she was stabbed as many as 30 times and left for dead. This was a horrific crime that was of enormous concern to the community.

[8] The Centre of Forensic Sciences was unable to exclude the applicant as the source of the DNA collected from the victim’s fingernails. The probability that the applicant would share the observed DNA profile with an unrelated individual was an estimated 1 in 1 trillion. The applicant’s fingerprints were found in the victim’s blood in multiple locations on the cash drawer in the store. Garments strewn along the path taken by the assailant when fleeing the store contained blood stains from the deceased and DNA profiles matching the applicant’s family members. Three eyewitnesses gave descriptions resembling the applicant.

[9] As the Associate Chief Justice noted, the Crown’s case is a “forensically formidable one.”

The change in circumstances

[10] We turn then to a consideration of the change in circumstances: the ruling about the third-party suspect evidence.

[11] On February 10, 1998, days after the killing, John Fetterly was arrested and charged with the same murder based on an opinion about a fingerprint match. The charge was withdrawn two days later. The applicant brought a motion before the trial judge to determine whether there was an air of reality to a defence that Mr. Fetterly was an alternate suspect. The motion judge outlined the evidence he relied upon as sufficient to give an air of reality to the third-party suspect evidence.

[12] Ray Hutchinson was working at a computer store near the store where the victim was killed. He gave a description of a male entering that store around 11:00 a.m. on the day of the killing. Some sixteen days later, he picked a photo of Mr. Fetterly out of a photo line-up and said “That’s him, definitely him” and “I’m positive.” His description did not match the photograph he selected. On June 15, 1999, after learning that the charge against Mr. Fetterly had been withdrawn, Mr. Hutchinson was no longer sure of his selection of the photograph, especially after suggestions by police that he had been lying.

[13] Mr. Fetterly lived in Mildmay, Ontario but his mother lived in Sudbury. There was a two-day window during which he was not seen in Mildmay, and during which it is possible he hitch-hiked or took a bus to Sudbury.

[14] Cynthia Bryson gave a statement to police indicating that, on March 31, 1998, Mr. Fetterly told her “I’m the guy that killed that girl”, and then clarified that he was referring to Renee Sweeney.

[15] In a statement given in August 1998, William Lockhart told police that while he and Mr. Fetterly were consuming significant amounts of drugs and alcohol, Mr. Fetterly told him that he should not have “jumped across the counter” and “stuck her”, and that he should not have “started stabbing her”.

[16] Two officers were initially of the view that Mr. Fetterly’s right thumb matched one of the fingerprints on the cash box in the store. Further analysis led one of those officers to reverse his initial impression. The other officer did not examine the enhanced photographs used in the further analysis.

[17] Police located shoeprints at the scene believed to belong to the killer. The shoes were a Brooks brand, possibly between men’s size 8 and 10. These characteristics correspond in some respects to shoes worn by Mr. Fetterly sometime in the eight months before the murder.

[18] Mr. Fetterly had a fascination with knives, the weapon used to kill the victim. Approximately $190 was stolen from the store, and there is evidence that Mr. Fetterly was in difficult financial circumstances and owed drug debts at the time of the killing. He also has a lengthy criminal record including crimes of violence.

[19] The trial judge concluded that there was an air of reality to the defence that Mr. Fetterly killed the victim but did not rule on the admissibility of whatever evidence the defendant might offer at trial to support that defence. The Crown has now conceded that some of the proposed third-party suspect evidence is admissible.

The weighing of factors relevant to the decision to grant or refuse interim release

[20] Of course, the strength of the prosecution’s case is not the only factor governing the decision whether to grant interim release pending trial. The governing authorities – St-Cloud, R. v. Oland, 2017 SCC 17 and R. v. Hall, 2002 SCC 64 – direct consideration of the following principles:

Section 515(10)(c) requires an appropriate balancing of the rights of an accused and the need to maintain justice in the community. While the presumption of innocence and the Charter right to reasonable bail pending trial form the contextual backdrop to decisions about release pending appeal, on occasion, the need to maintain public confidence in the administration of justice necessitates detention pending trial. “Public confidence is essential to the proper functioning of the bail system and the justice system as a whole”: St-Cloud, at paras. 4, 27, 51; Hall, at paras. 31, 41.

Sometimes, it will be appropriate to deny bail even if there is no risk the accused will fail to attend: St-Cloud, at para. 33; Hall, at para. 25.

As the seriousness of the crime increases, so does the risk that public confidence in the administration of justice will be undermined if the accused is released on bail: Oland, at paras. 37, 68; St-Cloud, at paras. 2, 44-54; Hall, at paras. 26, 40-41.

Detention pursuant to s. 515(10)(c) is not limited to rare cases: St-Cloud, at paras. 50, 52-54.

If the crime alleged is very serious or very violent, there is overwhelming evidence against the accused and the victim is vulnerable, pretrial detention will usually be ordered: St-Cloud, at paras. 2, 88, 160, 166-167; Hall, at para. 26.

A qualitative and contextual assessment of the strength of the prosecution and defences raised is required: Oland, at paras. 49, 68; St-Cloud, at paras. 58-59, 137-138.

Delay

[21] The applicant’s former counsel also represented Mr. Fetterly. The Crown brought an application to remove that counsel on the ground of a conflict of interest. With the benefit of independent legal advice, the applicant disavowed any intended reliance on a defence that Mr. Fetterly was an alternate suspect, persuading a motion judge that no competent counsel would advance that defence. When former counsel reviewed the file further, he changed his views about the viability of such a defence and the applicant had to retain new counsel. This accounts for some of the delay in setting the trial date. Pretrial motions will be heard this spring and the trial is scheduled to proceed in September of this year. Here, the delay is not a significant factor in assessing whether to grant the applicant interim release.

COVID-19

[22] One of the grounds advanced earlier by the applicant as a change justifying his release was the emergence of the COVID-19 outbreak, particularly in custodial settings. He did in fact contract COVID-19 and has now made a substantial recovery. This is now a neutral factor.

Proposed terms of release

[23] The applicant proposed to reside with his parents under house arrest, with ankle monitoring. There is no reason to now doubt the ability of the sureties to supervise the applicant, under those circumstances.

Should the applicant be released pending his trial?

[24] The alternative conclusions of the bail judge were set out at paras 62-63:

[62] There being no material change in circumstances, I do not have jurisdiction to conduct a bail hearing de novo.

[63] If I had such jurisdiction, I find I would ultimately arrive at the same conclusions as Gareau J. I, too, would give more weight to the scientific evidence implicating the applicant in the balancing at this stage, even after considering the third-party suspect defence. At best, the eyewitness identification of John Fetterly puts him at the video store but does not connect him to the crime scene. Three other eyewitnesses described an individual that bears a striking resemblance to the applicant fleeing the video store. The scientific evidence when considered as a whole strongly connects him to the crime and the crime scene. The apparent strength of the Crown’s case continues to be very strong.

[25] There is no doubt that this panel has jurisdiction to confirm the bail judge’s decision or substitute our own. As noted in Oland, at para. 61:

[A]bsent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.

[26] The applicant submits that the bail judge erred in stating that the Hutchinson eyewitness identification “puts [Mr. Fetterly] at the video store but does not connect him to the crime scene.” We would interpret this as an observation that this eyewitness evidence was not forensic evidence connecting Mr. Fetterly to the scene in the same fashion as the bloody fingerprints on the cash box said to belong to the applicant, his DNA under the victim’s fingernails, and his familial DNA on clothing items discarded near the store where the crime occurred. Essentially, the bail judge concluded that the strength of the forensic evidence against the applicant was such that even taking into account the third-party suspect evidence, the balance favouring detention was unaltered.

[27] We are not persuaded that the alternative conclusions of the bail judge are tainted by palpable and overriding error, that he erred in law or in principle or that his decision was clearly unwarranted. In fact, we agree with him.

[28] In these circumstances, and on balancing the relevant factors for and against interim release, we are not satisfied that the applicant should be released pending his trial. The offence was horrific. The victim was vulnerable. The case against the applicant remains very strong despite the leave granted to raise a third-party suspect defence. If the DNA evidence is accepted, it is difficult to conceive how the applicant was not involved in the killing.

[29] We conclude that detention is still necessary to maintain confidence in the administration of justice, and the application is dismissed.

“P. Lauwers J.A.”

“G. Pardu J.A.”

“L. Sossin J.A.”

Erratum

Corrections made April 21, 2023: The duplicate word “used” in the last sentence of para. 16 was removed. With respect to the second-to-last sentence of the quote in para. 24, a space was inserted after the period. With respect to the last sentence of the quote in para. 24, the words “I agree” were removed. The duplicate signature at the end of the decision was removed.

Footnotes

[1] Mr. Badali appeared but made no oral submissions on behalf of the applicant.