Court File and Parties

Court of Appeal for Ontario Date: 2024-12-09 Docket: M55489 (C70083)

Before: Hourigan J.A. (Motions Judge)

Between: His Majesty the King, Respondent and Mark Dookhram, Applicant/Appellant

Counsel: Margaret Barnes, for the applicant/appellant Katherine Beaudoin, for the respondent

Heard: December 6, 2024

Endorsement

[1] The applicant seeks release on bail pending his conviction appeal. He was convicted by a jury of first-degree murder. It was alleged that the applicant participated in a murder-for-hire that was executed by Justine Ordonio and orchestrated by Eric Lu. The victim was Mr. Lu’s mother. The applicant, Mr. Ordonio, and Mr. Lu were each convicted of first-degree murder.

[2] The applicant is currently serving a life sentence without parole eligibility for 25 years. The Crown opposes the application for bail based on the public interest criterion.

[3] The applicant must establish the three elements set out in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46 on a balance of probabilities to be granted judicial interim release pending the determination of the appeal. These three elements are 1) the appeal is not frivolous; 2) he will surrender into custody in accordance with the terms of the order; and 3) his detention is not necessary in the public interest: R. v. Oland, 2017 SCC 17, at para. 19.

[4] The not frivolous standard sets a very low bar: Oland, at para. 20. The criterion operates as an initial hurdle that allows for immediate rejection of a release order in the face of a baseless appeal: Oland, at para. 41. The Crown submits that all of the alleged grounds of appeal, except one, do not pass this bar. The only ground of appeal that is arguable concerns the voluntariness of the applicant’s statement to the police.

[5] Regarding the issue of surrender, the Crown does not take issue with this criterion and I am satisfied that the applicant has met his onus.

[6] There are two components to the public interest criterion: public safety and public confidence in the administration of justice: Oland, at para. 23. The public confidence component balances two competing interests: reviewability and enforceability. The statutory criteria in s. 515(10)(c), used to assess whether pre-trial detention is in the public interest, inform the reviewability and enforceability interests: Oland, at paras. 31-32, 36. Relevant factors may include the gravity of the offence, the circumstances surrounding its commission, the potential for a lengthy term of imprisonment, and the strength of the appeal; R. v. MacMillan, 2020 ONCA 141, at para. 13.

[7] Regarding the merits, in oral submissions the applicant’s counsel relied primarily on an ineffective assistance of counsel ground of appeal. She submitted that trial counsel should have brought a Charter application alleging that the applicant’s s. 10(a) and 10(b) rights had been violated. She conceded in her submissions that the voluntariness ground of appeal is not strong.

[8] This court is placed in a difficult position when considering an ineffective assistance ground of appeal on a bail application where the court’s protocol has not been followed. Based on the material that is before me, I view this ground of appeal as weak. I note that in para. 5 of her reasons on the voluntariness voir dire, Baltman J. noted that the “Defence has not brought any applications under the Charter regarding the statement, indicating that any ss. 7 or 10(b) issues are “rolled into” the voluntariness inquiry. The Defence did not call any evidence on this application.” There would appear to be a basis for the trial counsel to take the position that in light of the nature of the voluntariness voir dire, there would have been no point in bringing the Charter application because the result would have been a foregone conclusion.

[9] With regard to the gravity of the offence, the applicant has been convicted of first-degree murder, one of the most serious offence in the Criminal Code, and is serving a mandatory life sentence. The circumstances of the murder were particularly heinous: this was a murder-for-hire plot where a local business woman was violently stabbed to death in her vehicle. The applicant’s willing participation, which involved stalking the victim for several days leading up to the murder and conducting reconnaissance on her property, reveals his level of dangerousness to the community. Finally, the proposed sureties and GPS monitoring will not restore the damage to public confidence.

[10] Based on the foregoing, I conclude that the applicant has not met his onus of establishing that the reviewability interest outweighs the enforceability interest.

[11] For these reasons, the application is dismissed.

Released: December 9, 2024 C.W. Hourigan J.A.