



WARNING


An order restricting publication in this proceeding was made under s. 517
    of the
Criminal Code
and continues to
    be in effect.  This section of the
Criminal Code
provides:

517.

(1)
    If the prosecutor or the accused intends to show cause under section 515, he or
    she shall so state to the justice and the justice may, and shall on application
    by the accused, before or at any time during the course of the proceedings
    under that section, make an order directing that the evidence taken, the information
    given or the representations made and the reasons, if any, given or to be given
    by the justice shall not be published in any document, or broadcast or
    transmitted in any way before such time as

(
a
) if a preliminary inquiry is held, the
    accused in respect of whom the proceedings are held is
discharged
;
    or

(
b
) if the accused in respect of whom the proceedings are held is tried or
    ordered to stand trial, the trial is ended.

Failure to comply

(2) Every one who fails without lawful excuse, the
    proof of which lies on him, to comply with an order made under subsection (1)
    is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c.
    27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.






CITATION:
R. v. Gale, 2011
          ONCA 144



DATE: 20110225



DOCKET: M39594



COURT OF APPEAL FOR ONTARIO



Doherty J.A.



BETWEEN



Her Majesty the Queen



Applicant



and



George Christopher Gale



Respondent



Alexander Alvaro, for the applicant

Donald Crawford, Q.C., for the respondent



Heard:  February 11,
        2011

An application for review under s.
          680 of the
Criminal Code
of the
          order of the Honourable Justice Rogin of the Superior Court of Justice dated December
          3, 2010 releasing the respondent on bail pending his trial on a charge of
          second degree murder.

Doherty J.A.:






I

[1]

The Crown applies under s. 680 of the
Criminal Code
for a direction that a
    panel of this court review the order of Rogin J. (the bail judge) admitting the
    respondent to bail on a charge of second degree murder.  The respondent is charged with murdering his
    common law wife, Jocelyn Bishop.  The
    Crown submits that the bail judge erred in releasing the respondent and that on
    a proper application of the tertiary ground in s. 515(10)(c) and having regard
    to the onus placed on the respondent by s. 522, a detention order should have
    been made.

[2]

I will not direct a review of the bail
    order.

II

[Paragraphs 3 -10 refer to the evidence adduced at the bail
    hearing and have been edited pending completion of the proceedings, pursuant to
    the non-publication order of Justice
Rogin
.  The full text of the decision is available at
    the Registry of the court.]

III

[11]

The respondent was not initially charged with
    murder and the Crown proceeded with a bail hearing on the firearms charges, the
    marijuana charges, and a charge of offering an indignity to a human body.  A justice of the peace ordered the respondent
    detained on those charges

[12]

After the respondent was charged with murder, a
    bail hearing on that charge proceeded under s. 522 of the
Criminal Code
in the Superior Court.  The respondent brought a simultaneous bail
    review application from the detention order made by the justice of the
    peace.  The Crown and the defence agreed
    that if the respondent was ordered released on the murder charge, he should also
    be ordered released on the other charges.

[13]

At the bail hearing, the Crown relied on the
    secondary ground, the protection or safety of the public (s. 515(10
)(
b)), and the tertiary ground, maintaining confidence in
    the administration of justice (s. 515(10)(c)), in urging the bail judge to
    order the detention of the respondent.  On this application for review, the Crown relies only on the tertiary
    ground.  I need not refer to the bail
    judges reasons on the secondary ground.

[14]

In considering the tertiary ground, the bail
    judge began by correctly identifying the approach to be taken when considering
    detention on that ground.  He enumerated
    the specific factors set out in s. 515(10
)(
c).  The trial judge followed his enumeration of those
    factors with a consideration of the strength of the Crowns case, the factor
    identified in s. 515(10(c
)(
i).  The bail judge described the Crowns case as
    far from an overwhelming case.  The
    trial judge then acknowledged the serious nature of the charge and the
    inevitability of a lengthy jail sentence should the respondent be convicted of
    even the included offence of manslaughter.  These are the factors identified in ss. 515(10
)(
c)(ii)
    and (iv).

[15]

The bail judge concluded his analysis on the
    tertiary grounds with these words:

I am satisfied that the accused has demonstrated
    that a reasonable person, informed of the tenets of our criminal justice
    system, would not lose confidence in the administration of justice if he were
    released on appropriate terms.



IV

[16]

The
    relevant part of s. 680 reads:

A decision by a judge under s. 522 ... may, on the
    direction of the Chief Justice or acting Chief Justice of the Court of Appeal,
    be reviewed by that court and that court may if it does not confirm the
    decision,

(a)

vary
    the decision; or

(b)

substitute
such other decision as, in its opinion, should
    have been made.

[17]

Section 680 sets up a two-step process.  The first step serves a leave to appeal-like
    function and requires the Chief Justice or his designate to determine whether
    the matter should go before a panel of the Court of Appeal for a review of the
    merits of the decision made at first instance.  By imposing a leave requirement, Parliament has clearly determined that unlike
    most original bail orders, there should be no automatic review of the bail
    orders referred to in s. 680.  Those
    orders include bail orders made under s. 522 in murder cases:
Gary Trotter,
The Law of Bail in Canada
, 3d ed., looseleaf (Toronto, ON:  Carswell, 2010)
p. 8-22.

[18]

Like any leave to appeal function, s. 680 serves
    to exclude from the appeal process applications that cannot succeed on their
    merits.  To exclude the meritless cases,
    the Chief Justice or his or her designate must make some assessment of the
    merits of the application and its potential for success.  Several cases have required the applicant to
    demonstrate a reasonable prospect of success as a condition precedent to the
    directing of a review under s. 680:
R. v. R.B.B.
(1993), 131 A.R. 175 (C.A.)
    (Stratton J.A. in chambers);
R. v. S.(J.)
,
    [1986] O.J. No. 1425 (C.A.) (McFadyen J.A. in chambers);
R. v. M.T.
, [2008] O.J. No. 1597 at para. 5 (C.A.) (OConnor
    A.C.J.O. in chambers).

[19]

In
R. v. White
(2005), 202 C.C.C. (3d) 295 (Alta. C.A.), Berger J.A., at paras. 6-9, rejects
    the reasonable prospect of success criterion as too onerous and prefers an
    arguable merit test.  In doing so, he
    refers to s. 679, the provision governing bail pending appeal and, in
    particular, to s. 679(3
)(
a), which requires an
    applicant for bail pending appeal to show that the appeal is not
    frivolous.  After pointing out that an
    applicant under s. 680 is presumed innocent while an applicant under s. 679 has
    been convicted, Berger J.A. declares, at para. 7, that it would be a patent
    legal anomaly were an applicant under s. 680 required to show a higher degree
    of merit to the application than was an applicant under s. 679.

[20]

I see no connection between the criteria applicable
    to bail pending appeal in s. 679 and the criteria to be applied in determining
    whether a review should be directed under s. 680.  Section 679 addresses original bail
    applications made as part of the appellate process.  To obtain bail pending appeal, an appellant
    must meet essentially the same criteria that are applicable at the trial stage (s.
    679(3
)(
b)(c)).  In addition to the usual criteria for bail, and because the bail order
    is ancillary to the appellate process, the applicant must show that he has a
bona fide
appeal in the sense that he
    has an appeal that has some potential merit.  The requirement that the applicant show that the appeal is not
    frivolous has less to do with the question of whether the applicant should be
    on bail and more to do with preserving the integrity of the appeal process by
    ensuring that persons with hopeless appeals are not admitted to bail pending the
    inevitable dismissal of those hopeless appeals.

[21]

Section 680, unlike s. 679, is an appeal mechanism.  The applicant has already had a full bail
    hearing on the merits.  Section 680 is
    the means by which an applicant can challenge the correctness of the decision
    made at the original bail hearing.  As
    the correctness of the original decision is central to the s. 680 application,
    it should, in my view, be central to the determination of the Chief Justice or
    his or her designate to direct a review of the original bail order.  Unlike s. 679, which focuses on whether
    appellants should receive bail, s. 680 focuses on whether applicants should be
    allowed to appeal a decision made in respect of bail.  Section 679 does not assist me in determining
    the criteria to be applied in deciding whether to direct a review under s. 680.

[22]

Where a s. 680 application is brought in this
    province, the Chief Justice or his or her designate has the benefit of the
    record at the original bail hearing, often additional material relevant to bail,
    and full argument.  There is no
    impediment to the taking of a hard look at the potential merits of the
    application.  A reasonable prospect of
    success standard allows for a separation at this first stage of the potential
    wheat from the obvious chaff.  In doing
    so, it furthers the due administration of justice.

[23]

When the Chief Justice or his or her designate
    is deciding whether the applicant has a reasonable prospect of success, the
    Chief Justice must bear in mind the nature of the review contemplated at the
    second stage of the s. 680 process:
White
at para.
9.  A
s. 680 review is an appeal and not a
    hearing
de novo
.  The appeal is, however, a broad one.  Appeal courts reviewing original bail orders
    under s. 680 have regularly applied a correctness standard.  Evidence not adduced at the original bail
    hearing may also be received on the s. 680 review:
R. v.
    Daniels
(1997), 35 O.R. (3d) 737 at 747 (C.A.);
R. v. Badgerow
(2010), 260 O.A.C. 273 at paras. 26-27 (C.A.) (Feldman
    J.A. in chambers);
R. v. Rodrigue
,
    [2008] Y.J. No. 13 at para. 11 (C.A.);
R.
    v. Hardiman
(2003), 172 C.C.C. (3d) 211 at paras. 22-28 (N.S.C.A.);
R. v. Wu
(1998), 117 B.C.A.C. 305 at
    para. 6.

V

[24]

Bearing in mind the nature of the s. 680 review
    and the standard of review to be applied, I turn to the arguments advanced by
    the Crown on its application for the order directing a review.  The Crown does not allege an error in law or
    any misapprehension of the evidence.  Nor
    does the Crown indicate that it will seek to produce additional material
    relevant to the question of bail.  The
    Crown argues that in considering the tertiary ground, the bail judge failed to
    give sufficient weight to certain features of the evidence,  [the balance of this
    paragraph refers to evidence adduced at the bail hearing and has been edited
    pending completion of the proceedings to comply with the non-publication order
    of  Justice
Rogin
.
    The full text of the decision is available at the Registry of the court.]

[25]

The motion judges determination that the
    respondents detention was not justified on the primary or secondary ground is
    not challenged.  The tertiary ground is
    to be used sparingly to justify detention:
R. v. R.D.
(2010), ONCA 899,
    at paras. 51-55
.  A
bail judge, in considering the tertiary ground, must take the pulse of the
    reasonable, informed member of the community.  A judge sitting within the community where the homicide occurred and hearing
    the bail application in that community is in a better position to perform that
    function than a panel of this court.  That
    is not to say that bail orders that turn on the tertiary ground are immune from
    review under s. 680.  However, where it
    is not suggested that the bail judge misapplied the law, misapprehended the
    evidence, or reached an unreasonable conclusion, I think it unlikely that a
    panel will second guess the bail judge on the proper application of the
    tertiary ground.

[26]

Accepting that s. 680 contemplates a correctness
    standard of review that does not mean that every decision can be reviewed on a
    correctness standard.  Some decisions
    involve the exercise of a broad discretion based on the application of general
    principles to a specific fact situation.  In some fact situations, the exercise of that broad discretion will
    quite properly admit of different decisions.  Those decisions cannot be classified as either right or wrong, but
    only as a proper exercise of the discretion.

[27]

A decision to grant or refuse bail based on the tertiary
    ground involves a careful assessment of the interaction of subtle factors that
    are difficult to measure and which readily admit of different assessments by
    reasonable people.  An appellate court
    reviewing that decision must take into account the nature of the decision and
    recognize the clear advantage that the local judge has over the appellate court
    in making the kinds of assessments required by the criteria relevant to the tertiary
    ground.

[28]

This was a close call on bail.  This is a case that falls into that category
    of cases where reasonable judges could reach different conclusions on the
    question of bail.  However, absent any claim
    that the bail judge fell into legal error, misapprehended material evidence, or
    reached an unreasonable result, I do not think there is any realistic prospect
    that a panel of this court would reverse the bail judges exercise of his
    discretion on the tertiary ground.

[29]

The application is dismissed.

RELEASED:
DD  FEB
    25 2011

Doherty J.A.


