DATE: 20000331
DOCKET: C12090
M25498
COURT OF APPEAL FOR ONTARIO
ROSENBERG J.A. (In Chambers)
BETWEEN: )
) James Lockyer and
HER MAJESTY THE QUEEN ) Joanne McLean,
) for the applicant
Respondent )
)
- and - ) Carol Brewer and
) Shawn Porter,
ROBERT BALTOVICH ) for the respondent
)
Applicant )
) Heard: March 29, 2000
)
ROSENBERG J.A.:
[1] The applicant applies for bail pending his appeal from
conviction for second degree murder. The applicant was convicted
on March 31, 1992 and sentenced to life imprisonment without
parole for seventeen years on May 1, 1992. The deceased was the
applicant’s girl friend and the Crown alleged that the applicant
killed her when he learned that she wished to break off their
relationship. The case against the applicant was wholly
circumstantial. While the deceased’s car, containing traces of
her blood, was found a few days after she disappeared, the
deceased’s body has never been found.
[2] On October 8, 1992, the applicant’s trial counsel applied
for bail pending appeal on the applicant’s behalf. Goodman J.A.
dismissed that application on October 14, 1992. On January 25,
1993, Dubin C.J.O. dismissed an application for a review of that
decision. That application was brought pursuant to s. 680 of the
Criminal Code. The applicant now brings a fresh application for
release pending appeal in accordance with the doctrine set out in
R. v. Daniels (1997), 119 C.C.C. (3d) 413 (Ont. C.A.).
THE DANIELS THRESHOLD
[3] In Daniels, this court held at p. 427 that a second original
application for release pending appeal may be brought pursuant to
s. 679 of the Criminal Code where there has been a “material
change in circumstances after the initial application”. There
was some dispute between the parties as to the test to be applied
in bringing a Daniels application and, specifically, whether it
was sufficient that there be a change in circumstances or whether
there must be a material change in circumstances. In my view,
the judge’s jurisdiction to deal with a second application
depends upon there being a material change in circumstances.
[4] There was also some difference of opinion as to the
consequences of a finding of a material change in circumstances
and, in particular, the degree of deference that must be paid to
the first decision if this threshold is met. Since this is a
fresh application, not a review of the previous decision, it
seems to me that the parties must accept that the first decision
was correct. Of course, that decision would have been based on
different material. I intend to only briefly set out my reasons
for those conclusions.
[5] The scheme of Part XXI of the Criminal Code is that
ordinarily there will be one opportunity to apply for release
pending appeal. The scheme is very different from that set out
in Part XVI, which governs release pending trial, where an
elaborate process has been established permitting multiple
applications and opportunities for review at all stages up to
conviction and sentence. Under Part XXI, there is a narrow right
of review that depends upon the applicant first obtaining a
direction from the chief justice or the acting chief justice.
Such applications are relatively rare and are rarely granted.
[6] While Daniels recognized that subsequent applications may be
brought, I think it unlikely that this court intended that an
applicant could bring a fresh application every time there was a
change in circumstances. This would virtually subvert the scheme
set out in Part XXI. In my view, a judge hearing a subsequent
“original” application only has jurisdiction to deal with the
application on the merits if he or she is satisfied that there
has been a material change in circumstances. A material change
in circumstances, for this purpose, would require additional
information that could lead the judge hearing the application to
alter the assessment of one or more of the statutory factors set
out in s. 679(3), namely, (a) whether the appeal is frivolous;
(b) whether the applicant will surrender into custody in
accordance with the terms of the release order; and (c) whether
the applicant’s detention is necessary in the public interest.
If there is a material change in circumstances, the judge must
then consider all of the statutory grounds and must be satisfied
that the applicant has met the onus in s. 679(3).
[7] Since a Daniels application is not a review, the parties
must accept the correctness of the decision of the first judge.
In my view, this means that the parties and the judge hearing the
subsequent application accept that on the basis of the material
that was before the first judge, the decision was correct.
Nevertheless, assuming the material change in circumstances
threshold has been met, the judge’s reasons on the initial
application will be of assistance in determining whether the case
is a proper one for release. For example, if the judge in
refusing release expressed concern only about one particular
factor, and that concern has been addressed on the subsequent
application, this will be of assistance in deciding that the
applicant has met the test in s. 679(3).
[8] For reasons that follow, I am satisfied that there has been
a material change in circumstances and that I therefore have
jurisdiction to consider this second fresh application.
THE HEARING BEFORE GOODMAN J.A.
[9] The parties have filed the material that was before Goodman
J.A. This material included the charge to the jury, the
objections and the additional charge, an affidavit from the
applicant, an affidavit from his mother, an affidavit from trial
counsel setting out some of the facts of the case and the
proposed grounds of appeal, and an affidavit from one of the
trial Crown attorneys.
[10] The grounds of appeal as they are set out in the affidavit
of the applicant’s trial counsel are not compelling. Goodman
J.A. said that the grounds of appeal, “although clearly arguable,
cannot be said to be so forceful as to exhibit a strong
probability of the success of the appeal”. For example, in the
affidavit, counsel relied upon grounds of appeal based upon the
theory that the victim might still be alive, that there was no
evidence of foul play and that the Crown had failed to prove that
the murder had taken place at the time and place specified in the
indictment. In light of the substantial evidence that the victim
had been murdered, that alone would have affected the strength of
the proposed appeal. Based on the material placed before me,
which I will expand upon below, the grounds of appeal now appear
much more substantial. Indeed, Crown counsel characterized the
grounds of appeal as “highly arguable”.
[11] Goodman J.A. was also not satisfied that the applicant had
shown that he would surrender into custody in accordance with the
terms of a release order. After noting that this court had
previously ordered the applicant’s release pending the trial,1
Goodman J.A. pointed out that his situation was greatly different
after conviction. The prosecution’s case was sufficiently strong
that he was convicted of murder and he had been sentenced
to life imprisonment without parole for seventeen years.
That prospect, as Goodman J.A. observed, “might reasonably be
expected to have a negative effect on a decision to surrender
into custody”. Goodman J.A. described the applicant as a “young
unattached male facing a lengthy term of imprisonment subject to
a very real uncertainty with respect to the success of his
appeal”. Goodman J.A. also pointed out that, while members of
the applicant’s family had volunteered to be his sureties and
supervise him, some of them testified in support of an alibi
defence and were obviously disbelieved.
[12] There has been a material change of circumstances with
regard to the likelihood the applicant would surrender. Before
Goodman J.A., the only proposed sureties were the applicant’s
mother and father. The applicant’s mother is now deceased. The
applicant’s father still puts himself forth as a surety. In
addition, six other members of the family or friends of the
family are prepared to act as sureties offering a total of over
$800,000. The affidavit evidence also shows that the applicant
has considerable ties to the community where he would live if
released and that he has an offer of employment. Further, the
applicant has now served over half of the period of parole
ineligibility imposed by the trial judge.
[13] In considering the public interest, Goodman J.A. was
influenced by the fact that at the time he heard the application,
it was expected that the appeal would be heard within six months.
Considering the seriousness of the conviction, he did not
consider that an “undue delay”. Regrettably, Goodman J.A.’s
expectations have not been met. It is now eight years to the day
since the applicant was convicted. There have been serious
delays in perfecting the appeal because the applicant’s counsel
have been pursuing fresh evidence. Very little was said before
me as to why it was taking so long to complete this aspect of the
case. It was agreed, however, that it would be at least another
year before the appeal could be argued. Considering the time
that the applicant has already spent in custody, it can no longer
be said that there has not been an undue delay and it will be
some time before the appeal is heard.
[14] To conclude, there has been a material change in
circumstances with respect to the strength of the grounds of
appeal, the likelihood that the appellant will surrender and, in
general, the public interest. I therefore conclude that I have
jurisdiction to consider this application for release. For the
reasons that follow, I would grant the application.
THE APPEAL IS NOT FRIVOLOUS
[15] Section 679(3) sets out the pre-conditions for release
pending the appeal. The appellant must first establish that the
appeal is not frivolous. This condition is not in dispute. As I
said, the Crown concedes that some of the grounds of appeal are
highly arguable. I will have more to say about the merits of the
appeal when considering the public interest ground.
THE APPLICANT WILL SURRENDER
[16] The second pre-condition is that the applicant establish
that he will surrender himself into custody in accordance with
the terms of the order. I am satisfied that the applicant has
demonstrated that he will surrender prior to the hearing of the
appeal as required by the release order. The applicant is 34
years of age. Until his incarceration, he lived all of his life
in Scarborough with his parents and older brothers. He has no
prior record. He was released pending his trial and complied
with all of the conditions of that release order. He is not known
to abuse alcohol or drugs. He obtained an honours degree in
psychology. He worked in the summers while a student and had
commenced regular employment in September 1990 where he was
working until his arrest in November 1990. After he was released
on bail following the preliminary inquiry, the applicant worked
part time at his father’s store. The applicant now has an offer
of employment if he is released pending his appeal.
[17] The applicant’s record in the penitentiary has been
exemplary. But for his continued protestations of innocence, and
therefore his refusal to take courses or treatment premised on
his guilt, he would probably have been transferred to a medium
security institution. In the applicant’s voluminous
institutional record, a letter dated June 8, 1999 is telling.
The writer is explaining why the applicant should not be
considered for an anger management programme:
When doing assessments for candidacy for the
program, we look at a number of factors, i.e.
previous criminal charges, institutional
adjustments, escalations of violence, patterns
of angry or aggressive behaviour, OIA [sic]
indicators, previous treatment plans, psychology
reports etc. This writer has checked over and
over and can find no concrete evidence in any of the
above sources that would indicate a need to take the
program. Therefore, accordingly, his name should
be removed from any Anger Management lists.
[18] I have already referred to a number of other matters bearing
upon the likelihood that the applicant will surrender into
custody prior to his appeal. He has many substantial sureties,
he will live with his father, he has the support of his family
and neighbours and he has already served a substantial portion of
the sentence. I am satisfied that the applicant will surrender.
THE PUBLIC INTEREST
[19] The public-interest ground takes on particular importance in
cases where an applicant has been convicted of a very serious
offence and faces the prospect of a lengthy period of
incarceration. In his reasons on the first application, Goodman
J.A. referred to the decision in R. v. Demyen (1975), 26 C.C.C.
(2d) 324 (Sask. C.A.) at p. 326 where Culliton C.J.S. wrote the
following:
I think it can be said that the release of a prisoner
convicted of a serious crime involving violence to the
person pending the determination of his appeal is a
matter of real concern to the public. I think it can
be said, as well, that the public does not take the
same view to the release of an accused while awaiting
trial. This is understandable, as in the latter instance
the accused is presumed to be innocent, while in the
former he is a convicted criminal. The automatic release
from custody of a person convicted of a serious crime
such as murder upon being satisfied that the appeal is
not frivolous and that the convicted person will surrender
himself into custody in accordance with the order that
may be made, may undermine the public confidence in and
respect for the Court and for the administration and
enforcement of the criminal law. Thus, in my opinion, it
is encumbent upon the appellant to show something more
than the requirements prescribed by paras. (a) and (b) of
s. 608(3) to establish that his detention is not necessary
in the public interest. What that requirement is will
depend upon the circumstances of each particular case.
[Emphasis added.]
[20] This court and other appellate courts have applied this
reasoning in murder cases with the result that an appellant’s
release pending appeal of a murder conviction, while not
unprecedented, is rare. On the other hand, appellate courts have
recognized that, where the grounds of appeal are strong and where
there is serious concern about the accuracy of the verdict, the
public interest may well shift in favour of release. In an
excerpt from his reasons in R. v. Parsons (1994), 30 C.R. (4th)
169 (Nfld. C.A.) at 186-87, subsequently approved on review by
the Court of Appeal,2 Marshall J.A. put the matter this way:
The use of the notion “public perception” in this decision
comprehends the perception of the repute of the administration
of justice by a public reasonably informed of the criminal
process and the circumstances of this case. In my opinion,
such an opinion would conclude in the circumstances prevailing
that in the interests of fairness and justice, this verdict
should be reviewed before it is enforced.
[21] This echoes the explanation of public interest given by
Arbour J.A. in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont.
C.A.) at 47-8:
Section 679(3)(c) of the Criminal Code provides, in my
opinion, a clear standard against which the correctness of
any decision granting or denying bail pending appeal can be
reviewed. The concerns reflecting public interest, as
expressed in the case-law, relate both to the protection
and safety of the public and to the need to maintain a
balance between the competing dictates of enforceability
and reviewability. It is the need to maintain that balance
which is expressed by reference to the public image of the
criminal law, or the public confidence in the administration
of justice. The "public interest" criterion in s. 679(3)(c)
of the Code requires a judicial assessment of the need to
review the conviction leading to imprisonment, in which case
execution of the sentence may have to be temporarily suspended,
and the need to respect the general rule of immediate
enforceability of judgments.
Public confidence in the administration of justice requires
that judgments be enforced. The public interest may require
that a person convicted of a very serious offence, particularly
a repeat offender who is advancing grounds of appeal that are
arguable but weak, be denied bail. In such a case, the grounds
favouring enforceability need not yield to the grounds favouring
reviewability.
On the other hand, public confidence in the administration of
justice requires that judgments be reviewed and that errors, if
any, be corrected. This is particularly so in the criminal
field where liberty is at stake. Public confidence would be
shaken, in my view, if a youthful first offender, sentenced to
a few months' imprisonment for a property offence, was
compelled to serve his or her entire sentence before having an
opportunity to challenge the conviction on appeal. Assuming
that the requirements of s. 679(3)(a) and (b) of the Criminal
Code are met, entitlement to bail is strongest when denial of
bail would render the appeal nugatory, for all practical
purposes. This same principle animates the civil law dealing
with stays of judgments and orders pending appeal. It is a
principle which vindicates the value of reviewability. [Emphasis
added.]
[22] Most contested bail applications fall in between the two
extremes referred to by Arbour J.A., that is, between the case of
the repeat offender with weak grounds of appeal convicted of a
serious offence and a youthful first offender convicted of a
minor property offence. This is one of those cases. I am
dealing with a mature offender, with no prior record, convicted
of one of the most serious offences. I have concluded that the
interest in reviewability outweighs the interest in
enforceability.
[23] The public interest, in the sense of reasonably informed
public opinion, is difficult to gauge. The applicant has filed a
number of affidavits from persons in the community which indicate
their support for him and their belief in his innocence. This
evidence, like a statement filed in the Parsons case and the
similar affidavits filed in the Morin3 case, are entitled to some
weight. However, I take into consideration that this is only a
very small segment of the public and that their opinion of the
case may have been swayed by information that has not been tested
in court. I think it would also be unfair to place too much
weight on such evidence without bearing in mind the contrary
opinion likely held by the family of the deceased and their
associates.
[24] It is therefore necessary to consider other public interest
factors. There is no suggestion by the Crown that the applicant
represents a danger to the public or that he would interfere with
the administration of justice if released. This factor therefore
suggests that his release may be in the public interest.
[25] In my view, the matter that is most influential on the
question of the public interest is the strength of the grounds of
appeal and I turn to those issues now. I must, however, preface
that review with the following comments. While I have had the
benefit of considerably more material than did Goodman J.A., I do
not have a complete appeal record. The applicant has filed a
lengthy and detailed factum running to 390 pages that will be
used at the hearing of the appeal. The Crown has not yet filed
its respondent’s factum. I did have the benefit of a
respondent’s factum filed on this application, but it does not
respond to all of the matters raised in the applicant’s appeal
factum. The applicant has also filed material that demonstrates
the nature of the fresh evidence he hopes to tender on the
hearing of the appeal. However, much of that material, while it
may well be reliable, based as it is on police interviews, is
double or triple hearsay. Some of the actual fresh evidence in
the sense of affidavits from the first-hand witnesses has not
been filed and there has only been cross-examination on some of
that material. It follows that I cannot reach any final
conclusion of the strength of the grounds of appeal and it is
certainly possible that the panel of the Court of Appeal hearing
the appeal would take a different view of the sufficiency of the
grounds of appeal. With these caveats, I turn to some of the
grounds of appeal.
The burden of proof
[26] The applicant submits that there was serious misdirection
with respect to the burden of proof. This case preceded the
decision of the Supreme Court of Canada in R. v. Lifchus (1997),
118 C.C.C. (3d) 1 (S.C.C.). Thus, the charge contains certain
phrases that are no longer in use. In particular, in referring
to the strength of circumstantial evidence, the trial judge said:
Nor is it very often that adequate evidence is not
afforded by the attendant and surrounding facts, to
remove all mystery, and to afford such a reasonable
degree of certainty as men and women are daily
accustomed to regard as sufficient in the most important
concerns of life; to expect more would be equally
needless and absurd.
[27] In Lifchus, Cory J. wrote as follows at p. 9:
Jurors should not be invited to apply to the
determination of guilt in a criminal trial the same
standard of proof that they would apply to the
decisions they are required to make in their everyday
lives, or even to the most important of these decisions.
[28] As Ms. Brewer pointed out, the charge must be read as a
whole and the trial judge gave a correct explanation of the
burden of proof in other parts of the charge. This is
nevertheless a very arguable ground of appeal that was not drawn
to the attention of Goodman J.A.
Fabricated alibi
[29] Several of the grounds of appeal concern the Crown’s
reliance upon evidence of consciousness of guilt and the trial
judge’s charge with respect to that evidence. The trial judge
directed the jury that it could find that the applicant’s alibi
was concocted and this could support the identification evidence.
There does not seem to have been any extrinsic evidence of a
concocted alibi and this direction may have been improper.
Other evidence of consciousness of guilt
[30] The trial judge left a large number of items as
demonstrating the applicant’s consciousness of guilt. The
applicant argues that many of these items were not capable of
constituting evidence of consciousness of guilt. The risk of
placing undue emphasis on this kind of evidence in a
circumstantial case like this has been referred to in a number of
cases. I agree with the applicant that this is a significant
ground of appeal.
[31] The applicant also argues that certain items of evidence
that tended to exculpate the applicant were turned around by the
trial judge and converted into pieces of inculpatory evidence.
He points, for example, to the directions concerning the
applicant’s inability to drive a car with a standard
transmission, like the deceased’s car. The trial judge said the
following:
Robert Baltovich’s ability to drive a standard
transmission. You will note that Robert Baltovich
makes protestations throughout his statements about
his inability to drive a standard gear shift. I
suppose it is a valid question for you to ask yourself:
Why all the protestations? Is it a big deal for a 26
year old male to drive a so-called “four on the floor”?
[32] On the application before me, the Crown did not dispute that
these directions may be in error. Considering the importance of
this evidence to the Crown’s case and the emphasis given to it by
the trial judge in his charge to the jury, this is an important
ground of appeal.
Guilty knowledge
[33] The trial judge left a number of items of evidence to the
jury as evidence of guilty knowledge, presumably statements by
the applicant demonstrating knowledge that only the killer could
have had. It is not apparent that this evidence was accurately
categorized. The Crown did not dispute before me that this may
be an error. However, I emphasize that I did not have any
argument on the point.
The charge on identification evidence
[34] The identification evidence was subject to a number of
frailties. The applicant argues that the trial judge failed to
relate the particular frailties to the evidence in this case.
For example, it was the theory of the Crown that, several days
after the killing, the applicant used the deceased’s car to
transport her body up north to a swampy area where it would never
be discovered. The Crown relied upon the evidence of David
Dibben that he saw the applicant driving the deceased’s car early
on Friday morning, June 22nd, at the intersections of Highways 7A
and 12. There were a number of problems with Mr. Dibben’s
evidence that, the applicant argues, were not adequately placed
before the jury by the trial judge. For example, his description
of the driver of the car changed over time to more closely match
the applicant’s appearance. The applicant argues that
Mr. Dibben's original description tended to eliminate the
applicant as the driver of the vehicle and this should have been
pointed out to the jury.
The applicant’s opportunity to commit the offence
[35] The applicant argued that a careful analysis of the evidence
shows that the applicant had a limited opportunity to commit the
offence and this was not set out for the jury in a manner whereby
they would appreciate the force of the defence case. The
applicant also submits that the evidence suggests that, if Dibben
saw anyone driving the deceased’s car, it could not have been on
Friday following the disappearance, but must have been on
Wednesday. The applicant appears to have had an alibi for that
time on Wednesday as he was speaking to the deceased’s mother at
the relevant time.
The applicant’s attendance at the deceased’s class
[36] A puzzling piece of evidence at the applicant’s trial
concerned his statements to the police that after working out at
the gym he went to the classroom to wait for the deceased at
about 9:00 p.m. He told the police that when he came to the
classroom, he saw a man waiting outside. He thought that this
man might be waiting for the deceased and accordingly he
concealed himself. As it turned out, the man was there to meet
another student and the deceased did not show up. At trial, the
Crown seems to have relied upon these statements as an attempt by
the applicant to fabricate evidence. The Crown argued that the
applicant never did go to the classroom since, having killed the
deceased, he knew she was not there, and he lied to the police.
Proposed fresh evidence tends to support the applicant’s
statements that he did go to the classroom. The applicant argues
that this evidence is important exculpatory evidence. If he had
killed the deceased, he would not have gone to the classroom.
Or, if he had killed the deceased but then went to the classroom
to try to create exculpatory evidence, he would not have
concealed himself so that no one would be able to confirm that he
had been there. I did not understand the Crown on this
application to dispute that this was a highly arguable ground of
appeal.
The Bernardo fresh evidence
[37] At trial, the defence attempted, with limited success, to
suggest that the deceased may have been abducted and killed by
the Scarborough rapist. The identity of the Scarborough rapist
was then unknown. It is now known that he was Paul Bernardo and
that he went on to kill three women. The applicant has obtained
further evidence that he suggests now points to Bernardo as a
likely perpetrator of this offence as well. While the defence
does have additional evidence about Bernardo, which it may be
able to develop more fully, at this stage I would place only very
limited reliance upon that proposed fresh evidence in my
assessment of the strength of the grounds of appeal.
CONCLUSION ON THE PUBLIC INTEREST
[38] In an interesting submission, Mr. Lockyer urged me to
approach this case on the basis that there is a reasonable
possibility that an innocent man has been convicted. He referred
to several recent decisions to support this submission. For
example, In R. v. Khan (1998), 129 C.C.C. (3d) 443 (Man. C.A.) at
445, Twaddle J.A. took into account that there was “a real
possibility that the applicant will eventually be acquitted”.
However, that comment was made in relation to an application for
bail pending a new trial ordered following the applicant’s
successful appeal from conviction for murdering his sister. In
that case, the applicant had regained the presumption of
innocence. In the companion application, where the applicant was
seeking release pending the appeal from conviction for the murder
of his wife, Twaddle J.A. used the more traditional public
interest language, which looks to the merits of the appeal. He
said at p. 448:
Taking into account the delay already encountered, the
further delay due to counsel's ability to argue this case
on a timely basis and the strength of the prisoner's
appeal, I am of the view that the prisoner should be
released pending his appeal to this Court from his
conviction on the charge of murdering his wife. A
reasonable, well-informed member of the public is less
likely, in my view, to lose confidence in a system which
admits a person to bail in such circumstances than one
which tolerates delay and ignores the strength of the
prisoner's appeal.
[39] In R. v. Johnson (1998), 21 C.R. (5th) 135 (N.S.C.A.),
Freeman J.A. also took into account the reasonable possibility
that the applicant was innocent. The applicant was applying for
release pending a hearing before the Court of Appeal directed by
the Minister of Justice under s. 690 of the Criminal Code to
consider the admissibility of fresh evidence. The prosecution’s
case depended upon expert evidence as to the manner of death.
New expert evidence suggested that the death was accidental and
some of the expert prosecution witnesses from the trial also
appeared to have altered their opinion. In that context, Freeman
J.A. said the following at p. 138:
It would be unrealistic to deny that, at the
end of the day, there is at least a reasonable
possibility that he has been wrongly convicted.
If that should be the final outcome,
neither justice nor the public interest can
be served by requiring him to remain in
prison until the process has worked itself
through what appears to be two separate
hearings in this court and possibly a new
trial. As his counsel points out, the months
unjustly taken from him, if he is innocent,
can never be restored to him, but if at the
end of the day he is still found to be
guilty, they can be added to the time he must
serve. I find that Mr. Johnson’s detention
is not necessary in the public interest.
[40] Johnson is an unusual case. The focus of the new hearing
before the court of appeal was narrow, involving a single, albeit
possibly difficult issue. The fresh evidence seems to have been
relatively well developed. The case before me is much different.
The prosecution's case was complex and did not depend upon any
one piece of information. The case for the applicant's being
“factually innocent” turns upon the applicant’s statements to the
police, as he did not testify at trial, the alleged frailties in
the prosecution's case and the strength of the fresh evidence
pointing to someone else as the perpetrator. As I have
indicated, the fresh evidence is simply not at a stage where I
could safely come to a conclusion on the strength of that
submission. In the circumstances, it is my view that the better
course is to consider the public interest from the traditional
standpoint as articulated by this court in many decisions.
[41] In his reasons for refusing to release the applicant back in
1992, Goodman J.A. said that there will no doubt be cases where
the hearing of the appeal “will be so long delayed and the
probability of success in the appeal so strong that it will be
contrary to the public interest to refuse a release and a
fortiori an applicant’s detention would not be necessary in the
public interest”. In my view, this is now one of those cases.
[42] In reaching that conclusion, I not only take into account
the lengthy period of time that remains before this appeal can be
heard, but the very long delay to this point. While it may be
said that the applicant “caused” the delay in that he instructed
his counsel to pursue difficult and complex matters of fresh
evidence, there is no suggestion that the applicant has
personally been responsible for any delay or that he has sought
to avoid the hearing of the appeal.
[43] At least some of the grounds of appeal, which I have only
briefly touched upon, are sufficiently compelling that it is not
necessary in the public interest that the applicant be further
detained.
DISPOSITION
[44] Accordingly, the application is granted and the applicant
will be released pending his appeal in accordance with the terms
set out in the draft order.
(signed) "M. Rosenberg J.A."
RELEASED: March 31, 2000
_______________________________
1 R. v. Baltovich (1991), 68 C.C.C. (3d) 362 (Ont. C.A.).
2 R. v. Parsons (1994), 30 C.R. (4th) 189 (Nfld. C.A.).
3 R. v. Morin (1993), 19 C.R. (4th) 398 (Ont. C.A.). |