Public Interest is Not Dead

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Kim Madsen was convicted of aggravated assault. He was sentenced to 40 months in jail. He appealed. He sought bail pending appeal. That request was denied: 2017 SKCA 73.

The Court of Appeal first considered whether the appeal was “frivolous” pursuant to s679(3)(a). It noted that the test represents a “very low bar”: see R v Oland, 2017 SCC 17; and R v Gill, 2015 SKCA 96 @para 15. Noting the grounds of appeal, the court concluded that the appeal was not frivolous – but, notably the court held that the merits of the appeal could also be considered under public interest:

While there may be some merit to the Crown’s position with respect to this criterion, I note the trial judge gave very serious consideration to Mr. Madsen’s defence. His oral decision encompasses some 150 transcript pages where he extensively reviews the evidence in support of Mr. Madsen’s claim to self-defence and his claim that he was not the cause of Mr. Peepeetch’s paralysis. Having regard for the seriousness with which the trial judge gave to Mr. Madsen’s defence, I am not prepared to say that the grounds of appeal from conviction are baseless, as the Crown suggests. I am, however, entitled to consider the strength of the grounds of appeal as presently put to me as part of my assessment of the public interest criterion. [Para 8].

Turning to the public interest ground pursuant to s679(3)(c), the court reflected on Oland and noted the following [see para 10 and 12]:

  • Not every application for bail engages public confidence: Oland @para 29
  • The more serious the crime the more public confidence will be undermined if the accused is released pending appeal: Oland @para 37
  • There must be a balancing of the relevant factors including the strength of the appeal and the seriousness of the offence: Oland.

Taking into account these factors the court denied Madsen’s release pending appeal concluding that it would be contrary to the public interest. In part, this was so due to grounds of appeal which were not particularly compelling and the seriousness of the offence – as described by the court:

As a result of what happened on the night in question, Mr. Peepeetch suffered a number of fractures to his spinal area, losing all function in his lower limbs and a certain loss of strength in his arms and hands. He now needs almost constant care. The medical expert at trial testified that “it is the force of impact … which cause[d] the injury to the spinal cord” (T699). Mr. Peeepeetch will remain “essentially a paraplegic” (T691). That same expert testified that Mr. Peepeetch’s injuries were caused as “a result of [the] patient’s neck being forced up and down” (T691). [Para 11].

Madsen offers a helpful example of circumstances, albeit they seem rare, where bail pending appeal may be properly denied.

DM

 

Every St Cloud has a silver lining

St Cloud, along with two others, was alleged to have been the perpetrator of a violent and vicious assault against a City of Montreal bus driver. The incident was video recorded by the onboard surveillance system. Notwithstanding the intervention of passengers the attack continued- the driver was left with serious long-term injuries.

St Cloud sought bail. The Crown bore the onus. At the time of the initial bail hearing the medical prognosis for the victim was uncertain- he remained in hospital. The bail hearing Judge found that the Crown had discharged their onus on the secondary ground but nonetheless went on to consider whether detention was warranted on the tertiary ground.

The bail hearing judge explained that the tertiary ground “calls for an analysis of whether, at the end of the day, after all the circumstances are considered ... there is a reasonable collective expectation that interim release must be denied to maintain public confidence in the administration of justice.” [@para 13]

The bail hearing judge concluded in light of the videotape and all of the circumstances a public who is well-informed, dispassionate and reasonable would conclude that St Cloud’s detention was warranted on the tertiary ground.

At the conclusion of the preliminary hearing St Cloud made a renewed bid for his release.  The preliminary hearing judge concluded that in order to hear the application St Cloud first had to demonstrate a material change in circumstance- the judge accepted that a new release plan financially backed by the accused’s parents and the possibility of employment were sufficient for the Court to consider the application.

The preliminary hearing judge concluded that the new plan reduced the applicant’s risk of re-offending however on the tertiary ground the court concluded that the initial bail hearing judge was correct to detain on the basis that releasing St Cloud would erode the public’s confidence in the administration of justice. [@para 18]

St. Cloud applied pursuant to section 520 of the Code to the Superior Court for a review of the preliminary hearing judge’s denial of bail. Martin J concluded that both the initial bail hearing judge and the preliminary hearing judge had erred in their interpretation of the tertiary ground as they failed to consider that the crime although “repugnant, heinous and unjustifiable” was in fact explainable. [@para 23]

The Crown appealed: 2015 SCC 27 and the Supreme Court of Canada reviewed the correct approach to the tertiary ground for the first time the high court’s decision in R v Hall, 2002 SCC 64.

Wagner J writing for the Court first reviewed R v Hall and noted three significant areas of misinterpretation which have emerged in the jurisprudence post-Hall.

First, the facts in Hall were of a particularly heinous crime. A murder of a young woman who sustained 37 slash wounds during her attack.  The tertiary however does not require that the crime be heinous or horrific in order for the accused to be detained. In fact as Wagner J explained of Hall, “[t]he Court’s description of the crime as horrific, heinous and unexplained was simply an observation, a description of the facts considered by the Court in its analysis of s. 515(10) (c) Cr.C. It cannot be read as imposing conditions or prerequisites.” [@para 46]

Second, the Court in Hall referred to the crime as unexplained. This was of course a mere statement of fact about the circumstances of the case and not as Wagner J explained in St Cloud a criterion to be considered in applying the tertiary ground.

In my view, the question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide justices in their analysis under s. 515(10) (c). Apart from the fact that the provision itself does not even refer to such a criterion, I consider the concept ambiguous and confusing. What is meant by an “unexplainable” crime? Is it a crime against a random victim? A crime that could be committed only by a person who is not rational? An especially horrific crime?
Moreover, many crimes may be “explainable” in one way or another; for example, it may be that the assailant was provoked by the victim or that he or she had a mental illness or was intoxicated. From this perspective, the “unexplainable” crime criterion is of little assistance. [@paras 47-48]

Third, the infrequent application of the tertiary ground as a basis for detention is not a precondition to its application. As Wagner J explained, it is a consequence not a condition precedent.

I am of the view that a “rareness” of circumstances criterion would be vague and unmanageable in practice. How would such a criterion be assessed? Should justices consider how many cases have been heard (in their jurisdictions, in Canada, in the last year, etc.) and, at the same time, ensure that cases of detention based on s. 515(10) (c) will remain “rare” if they order detention in the cases before them? Should a justice review the cases in which detention has been ordered and determine whether the facts of the case before him or her are the same (or nearly the same) as the facts of those cases? In any event, it seems to me that a “rareness” of circumstances criterion would prompt justices to engage in a comparative exercise and thus to move away from the careful examination of the circumstances of individual cases that the situation requires. In my opinion, a comparative approach such as this could potentially undermine the public’s confidence in the administration of justice. [@para 52]

The Court then helpfully summarized the principles that must guide courts in applying the tertiary ground:

  • Section 515(10) (c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre‑trial detention of an accused.
  • Section 515(10) (c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
  • The four circumstances listed in s. 515(10) (c) Cr.C. are not exhaustive.
  • A court must not order detention automatically even where the four listed circumstances support such a result.
  • The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
  • The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
  • No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified. 
  • This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10) (c).
  • To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter  values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
  • This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified. [@para 87]

In light of the principles articulated above and the Superior Court’s erroneous reliance on the ‘explainable’ nature of the crime, the Court concluded that detention order should be restored.

LT

Public Interest Post-Conviction

RB was charged with two separate sets of charges related to sexual assaults. One set of charges (the first charges) related to allegations made by a three-year old complainant who was the daughter of a friend of RB's then girlfriend. The other set of charges (the second charges) related to a complainant who was four to six years old at the time of the alleged offences and was the daughter of the person he was living with.

The second set of charges came to trial first. RB was convicted. He was sentenced to 28 months. He obtained bail pending appeal.

RB was then convicted in relation to the first set of charges. in relation to those charges RB was sentenced to four years.

RB once again sought bail pending appeal: 2014 ONCA 722. 

In considering the request for bail pending appeal, the court noted the test:

  1. his appeal is not frivolous;
  2. he will surrender in accordance with the terms of the release order; and
  3. his detention is not necessary in the public interest.

The court then cited the governing principles from R v Manasseri, 2013 ONCA 647:

The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48. 

Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal:  Farinacci, at p. 48.

But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at stake:  Farinacci, at p. 48.

The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326.  As a result, release of an applicant pending appeal of a murder conviction is rare:  Baltovich, at para. 20.  But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release:  Baltovich, at para. 20; R. v. Parsons (1994), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187.

The court reviewed the merits of the appeal and concluded that while it was not frivolous, it was a weak appeal. In considering the public interest the court offered the following:

In my view, as expressed above, the applicant has a weak appeal. I balance this view against the fact that the accused was convicted of serious crimes against vulnerable young children and that the applicant has received a fairly lengthy sentence.
I find that the combination of convictions for serious offences, a fairly lengthy sentence, and a weak appeal, demonstrate that the immediate enforcement of the judgement below should be of paramount concern. Therefore, the public interest balance required by Farinacci favours immediate enforcement of the sentence rather than judicial interim release. [@22-23].

The court denied the application for bail pending appeal.

DGM

Bail Pending Appeal: The Application of the Public Interest Ground in Domestic Violence Cases

Evans Bedzra was convicted of 36 counts in relation to two complainants. In brief, he was convicted of assaulting and abusing two women with whom he had been in a relationship. The charges included assault, assault with a weapon, assault causing bodily harm, criminal harassment, mischief and breach of probation. His unsuccessful defence was a blanket denial. Bedzra was sentenced to a global sentence of three years less pre-sentence credit of one year for 133 days of pre-sentence custody—for a balance of two years less a day.

Bedzra launched an appeal against conviction and sentence and sought bail pending appeal: 2014 ONCA 408.

The Test for Bail Pending Appeal in Manasseri

In Chambers, Lauwers, J.A. commenced his consideration of the application by reviewing the relevant test recently summarized by Watt J.A. in R. v. Manasseri, 2013ONCA647:

Under section 679(3) of the Criminal Code, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of the chambers judge:

i. that the appeal is not frivolous;
ii. that the applicant will surrender into custody in accordance with the terms of the release order; and
iii. that the applicant’s detention is not necessary in the public interest.
…
An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.
…
The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.
Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.
But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at state [sic]: Farinacci, at p. 48.
The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187. [Emphasis added] [Para. 4]

The Merits of the Appeal and Mootness

In the case, the Crown conceded that the appellant, Evans Bedzra, would surrender in accordance with his conditions of release, if granted. The court accepted this concession leaving the remaining two grounds to be considered.

Lauwers, J.A. then addressed whether the appeal was frivolous or, in other words, whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship to the applicant if he were to be detained in custody.

While Lauwers J.A. largely rejects in seriatim the proposed grounds of appeal against both conviction and sentence, he does note that the practical issue with this appeal is that by the time the proposed appeal is heard, Bedzra will have served a substantial portion of his sentence if not granted bail pending appeal. The refusal to grant bail pending appeal would essentially render the appeal moot thereby causing him unnecessary hardship.

The Public Interest Ground Applied

In relation to public interest ground, the applicant argued that the Farinacci factors [cited above in Manasseri] favoured the immediate enforcement of judgments should only be applied when the sentence imposed is lengthy. The Crown in Chambers responded that “domestic violence is a very serious matter. Domestic violence is the kind of crime that is hard to detect, quite often because the victims hide the effects of the crimes, downplay them, and recant when they do complain. All of these dynamics are present in this case.” [Para. 21]

Lauwers J.A. agreed with the Crown’s submission:

…The applicant committed these acts of domestic violence while he was on probation for a conviction on the same ground. He committed a number of acts of violence against two women over a lengthy period of time. He appears to constitute a continued risk, since, according to the pre-sentence report, he has no insight into his personal deficiencies. His tendency, as the trial judge noted, is to minimize the seriousness of his actions and to blame others. This is exactly the same “blame the victim” attitude that is shared by one of his proposed sureties, so it is highly doubtful that his sureties will adequately supervise him. The victim impact statements demonstrate the trauma that the applicant has caused and record plainly the fear that the complainants continue to experience.  [Para. 22] [Emphasis added]

After citing the Crown’s concern regarding the unrealistic nature of the plan for release, Lauwers J.A. gave effect to the public interest ground in this case of domestic violence in denying Evans Bedzra bail pending appeal:

In my view, the convictions constitute serious crimes against the person. Home invasions accompanied by violence are especially unnerving for communities and traumatic for victims. The grounds for the conviction appeal are barely arguable. I find that the public interest balance required by Farinacci favours continued enforcement of the sentence rather than judicial interim release. The appeal can be scheduled quickly on an expedited basis once perfected. [Para. 24] [Emphasis added]

Interestingly, Lauwers J.A.’s application of the Farinacci factors favours continued enforcement of the sentence in the context of this case of domestic violence where the grounds to be argued are “barely arguable” even where denial of bail will likely render the appeal moot.

BCH

New & Notable: The Pull of Bail

Jeffery Norman was on the hook for a lot of money. He pledged $30,000 to secure his release on bail. Norman also had very generous parents who pledged significant amounts totalling $30,000 as sureties on their son’s release. All Norman had to do was abide by his release conditions. He did not and the Crown sought forfeiture of the pledged amounts: 2014 ONSC 2005.

Norman’s actions leading ultimately to this forfeiture hearing were violent and heinous. Norman had been convicted of manslaughter and sentenced to 8 years imprisonment, in addition to the 4 years of pre-sentence custody: [2005] OJ No 1073 (SCJ). While on parole Norman committed a serious, random and vicious act of violence on a complete stranger. The woman was jumped from behind, taken to the ground and repeatedly punched.  

As Trotter J pointed out “surprisingly, Mr. Norman was ordered released on bail (…) The learned justice of the peace ordered that Mr. Norman enter into a recognizance in the amount of $30,000.  He named two sureties under s. 515(2.1) of the Criminal Code and the amounts for which they would be liable:  Tonie Norman - $20,000 and Brian Norman - $10,000” [@para 5].

The conditions of release included a condition of house arrest which required Norman to be in his residence “at all times seven days a week except to go directly to and from and while at employment, counselling (including residential treatment), reporting to a parole office, medical emergencies, or in the direct company of either surety” [@para 6].

Norman denied the breach and testified at his trial that in fact he had been working during the day, was on his way to an AA meeting and had taken a circuitous route to get there to beat the 8:30pm traffic. In fact, although there was a meeting at the location Norman indicated, it was to take place entirely in Portuguese - a language neither spoken nor understood by Norman. In finding Norman guilty, Clements J aptly pointed out that Norman’s explanation simply “made no sense” [@para 10].

Norman declined to participate in the estreatment hearing; both sureties, Norman’s parents, opposed forfeiture and were represented by counsel.

Before turning to the specifics of Norman’s case, Trotter J, referred to a recent case from the Superior Court (Romania v Iusein, 2014 ONSC 623) and helpfully set out some of the governing principles. They are as follows:

  1. The onus is on the surety to show why forfeiture is not appropriate.
  2. The preeminent concern for the court is the preservation of the moral pressure or the pull of bail. “The real pull of bail, the real effective force that it exerts, is that it may cause the offender to attend his trial rather than subject his nearest and dearest who has gone surety for him to undue pain and discomfort.”
  3. Overemphasizing the surety’s lack of fault can undermine the pull opf bail and adversely impact the criminal justice system. The diligence of the surety, however is a relevant consideration.
  4. The estreatment judge has a wide discretion. There is no rule requiring total forfeiture. However, the vast majority of cases which involve a relatively small sum, nothing less than total forfeiture will usually suffice. [@para 20]

Turning to the facts before the court Trotter J noted that one of the sureties had effectively delegated her responsibilities to the second surety when she left the country on holidays. Prior to leaving on holidays Mrs Norman made arrangements wither her ex-husband. Before doing so however she consulted with counsel and received legal advice which she followed. Trotter J held that:

even though Mrs. Norman received advice that the proposed plan was legal, I have a difficult time seeing how anyone could have thought that it was wise. It was fraught with obvious risk. [i]n circumstances such as these, when a surety is unable to act (either permanently or temporarily), it is necessary that the bail situation be formally addressed.  This may achieved by making an application for variation on a bail review under s. 520 of Criminal Code.  Other options include making an application to substitute a surety (under s. 767.1), or by rendering the accused into custody (ss. 766 or 767): see R. v. Smith, 2013 ONSC 1341, per Dambrot J.  At the very least, the officer-in-charge or the prosecutor should be apprised of the situation. [@para 32]

In recognizing that Norman was apprehended before any real consequences flowed from the breach of the house arrest condition and that he received a criminal conviction for the same conduct, the Court ordered forfeiture of $10,000 of Norman’s $30,000 bond.

Notwithstanding the fact that Mrs Norman received legal advice prior to departing on her holiday, Trotter J found that: “she undermined the bail order by compromising her own ability to monitor her son’s behaviour” [@para 38]. As a result of the needless risks the public was exposed to the Court ordered $7,500 of the $20,000 bond to be forfeited [@para 38].

Trotter J had no sympathy for Mr. Norman Sr finding that:

he knew his son has a violent past and was facing a very serious offence of violence (while intoxicated). Jeremy Norman required intensive supervision. These types of conditions must be taken seriously by sureties. Mr. Norman (sr.) offered no real excuse for his lack of vigilance. He decided to put leisure activities ahead of his obligations as a surety. The only way to emphasize the importance of compliance in these circumstances is to order forfeiture in a substantial amount. Accordingly, I order Mr. Norman also to forfeit $7,500 for exposing the community to the risk of re-offending by his unsupervised son. [@para 39]

LT

New & Notable: Anesthesiologist Abusing Sedated Patients

Until the Ontario Superior Court’s decision in R v Doodnaught, 2014 ONSC 1196, there have been no reported cases in Canada on sentencing of an anesthesiologist who sexually assaulted his sedated patients during various medical proceedings [para 26].

Doodnaught was convicted of sexually assaulting 21 female patients. The victims were between the ages of 25 to 75. The sexual acts perpetrated on them included kissing, fondling, and forced fellatio. Although three formal complainants were made during the time period in the indictment, Doodnaught had faced no repercussions; the effects of the anesthesia were blamed and Doodnaught denied the allegations. McCombs J found that the dismissal of these complaints emboldened Doodnaught and escalated the frequency of his crimes. In fact, in the ten days prior to his arrest, no less than four women were sexually assaulted; three of them by forced fellatio. 

McCombs J found held that “the power imbalance between” Doonaught “and his victims was absolute” [para 8]. Sedated but aware of what was happening to them, the impact on the victims has been devastating.   The victim impact statements described profound psychological effect, sexual dysfunction and a distrust of the medical profession [para 13].  

At the time of sentencing Doodnaught was 65 years old with no prior criminal record.  McCombs J held that the “court has a duty to send a clear message that reflects society’s abhorrence for the conduct, and serves as a deterrent to others in a position of trust who might be inclined to prey upon vulnerable, sedated patients” [para 29].

Doodnaught was sentenced to 10years.

In March of 2014 Doodnaught sought release pending the hearing of his appeal. The notice of appeal alleges some 100 errors by the trial judge - all of which challenge the correctness of the findings of fact [2014 ONCA 172 @paras 7-8].

The Crown argued that Doodnaught’s ongoing detention was necessary and in the public interest. LaForme JA agreed and noted the following:

(…) on the record before me, his grounds of appeal are weak and not likely to succeed, although some may be arguable.  In cases like this, the need for immediate enforcement of the judgment outweighs the need to review the decision. Release, therefore, would not be in the public interest [ONCA para 24].

Doodnaught submitted the same 49 letters of support that were filed on sentencing. The point was to illustrate that some small segment of the public believed in his innocence.  LaForme JA held that:

These opinions should be accorded little weight given that a contrary opinion is no doubt held by the 21 victims and their families and associates.  The letters thus do not assist very much in gauging the public interest in this case [ONCA para 19].

 LT

Current & Curious: Practical - but perhaps not precise - Interpretation

Tassandra Whyte was charged with accessory after the fact to murder. She wanted to be released on bail pending her trial. She applied for bail and had a hearing in Superior Court; her application was denied and she was detained on the secondary grounds.

Whyte renewed her application for bail in Superior Court, alleging there had been a material change. The changes included her living arrangements and the fact that the trial was now likely to occur some significant distance in the future.

At that second bail hearing the court declined to consider the matter on the basis that it lacked jurisdiction; the court held that a renewed bail application based on change in circumstances could only be heard by the Court of Appeal. .

Whyte sought a review under section 680(1) to the Court of Appeal: 2014 ONCA 268.

The Court of Appeal considered the issue of whether the Superior Court could entertain a second bail hearing. It offered the following overview of the law on this issue:

The relevant practice in Ontario can be summed up as follows:  Where an applicant is detained pursuant to a charge for an offence listed in s. 469 of theCode, the appropriate procedure for challenging the s. 515(11) denial of bail turns on the nature of the applicant’s grievance. Where the applicant disputes the correctness of a bail decision of a Superior Court of Justice or Court of Appeal judge, the proper course is to seek review by a court of appeal under s. 680 of theCode: R. v. Daniels (1997), 35 O.R. (3d) 737 (C.A.), at p. 746. Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change in circumstances, the normal course is to bring a second bail application in Superior Court: R. v. Robinson, 2009 ONCA 205, 95 O.R. (3d) 309, at para. 5; R. v. Klymchuk (2007), 220 C.C.C. (3d) 439 (Ont. S.C.), at pp. 447-48; R. v. Saleh (2007), 252 C.C.C. (3d) 521 (Ont. S.C.). This second avenue reflects the “considerable common sense in returning to the originating court, creating an evidentiary record and obtaining the views of a judge of first instance on the impact of the new or changed information on the issue of interim release”: R. v. Boyle, [2006] O.J. No. 5094 (C.A.), at para. 3.

The availability of this second procedure does not foreclose consideration of a change in circumstances on a s. 680 application, however: see Daniels, at p. 747; Boyle, at paras. 3-4. In other words, the Superior Court of Justice and the Court of Appeal have concurrent jurisdiction to decide whether there has been a material change of circumstances warranting judicial interim release [paras 21-22].

The court then turned to consider what amounts to a “change in circumstances” and noted:

In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material [para 26].

In the present case the court accepted that a change in the trial date, arising from severance of the accused, and other delays, such that the accused may spend more time in custody then they would even if convicted, is a material one. In so concluding the court cited the following comments of Hill J in R v White, 2010 ONSC 3164:

[P]ublic confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted [para 10].

Interpreting section 522 as permitting a second bail hearing where there is not a material change in circumstances is, with respect, not the most compelling work of statutory interpretation. Indeed, in the past there has been divide about the proper interpretation. The Court of Appeal has clearly endorsed, the “purposive” [read practical] interpretation which permits successive bail hearings in Superior Court (rather than reviews at the Court of Appeal) where there is a material change. Practical, indeed, but precisely interpreted?

At any rate, at least in Ontario, there is no ambiguity; section 522 permits successive bail hearings in Superior Court where there is a material change in circumstances.

DGM