



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Luckese, 2016 ONCA 461

DATE: 20160609

DOCKET: M46491 (C62086)

Strathy C.J.O. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

April Luckese

Applicant/Appellant

Stephen Whitzman, for the appellant

Michael Perlin, for the respondent

Heard: May 20, 2016

Application pursuant to s. 680 of the
Criminal Code
for an order directing a panel of the Court of Appeal to review the order of
    Justice David M. Brown, dated May 10, 2016, dismissing the application for
    release pending appeal.

ENDORSEMENT

[1]

The appellant seeks a review by a panel of this court, pursuant to s. 
    679(1)(a) of the
Code
, of the order of Brown J.A. dismissing her
    application for bail pending appeal.

[2]

The appellant, a day care provider, was convicted of manslaughter in the
    death of a 14-month-old child under her care. She was sentenced to six years in
    jail, less 24 days credit for pre-sentence custody.

[3]

The material facts are set out in the reasons for conviction:
R. v.
    Luckese
, 2016 ONSC 1206. In overview, the infant suffered a fracture to
    the back of her skull while in the appellants care. She died two days later,
    in spite of medical intervention.

[4]

The Crown relied on expert medical evidence as well as statements the
    appellant made to police and others.

[5]

In a videotaped police interview, the appellant said she had tripped on
    a mat causing the childs head to hit a bannister. Shortly after making that
    statement, she denied this had happened and said that she had shaken the child
    and the child went limp. She did not call 911 because she thought the child was
    sleeping. Later, while she was in the back of a police cruiser, she told an
    officer, I know it is wrong. I just snapped. I guess I hit a breaking point.

[6]

The trial judge rejected the theory of accident and found that the
    appellant had momentarily lost her patience and assaulted the child, causing the
    skull fracture. There was no other rational explanation for the injury and for
    the symptoms displayed by the child. He found the appellant guilty of
    manslaughter on that basis.

[7]

Alternatively, he found that the appellant had failed to provide the
    necessaries of life, for she had failed to call 911 after observing the childs
    symptoms.

[8]

The Crown did not dispute the primary and secondary grounds for bail.
    Nor did it dispute the good character of the appellant and the absence of a
    criminal record. The issue was the tertiary ground. Specifically, whether the
    appellant had demonstrated that her grounds of appeal were sufficiently strong
    that the public interest in enforceability of the conviction should yield to
    the interest in its reviewability.

[9]

Brown J.A. found that the appellant had not demonstrated that detention
    pending appeal was not necessary in the public interest. The appellant has been
    convicted of a very serious offence  manslaughter of a vulnerable infant in
    her care. She was sentenced to a lengthy period of incarceration  six years.
    Balancing the interest of enforceability against the interest of reviewability,
    he found that the determinative factor was that the grounds of appeal, although
    arguable, were weak.

[10]

The parties agree that the
    standard of review on this application is whether the proposed review
has a reasonable prospect of success:
R. v. Gale
, 2011 ONCA 144, at para 18. In
R. v. McRae
, (M45877 January 26, 2016), I described the reasonable prospect of
    success standard as a low one, which contemplates that a panel of this court
    may come to reasonable conclusions that differ from my own.

[11]

The standard has also been expressed as whether
    there is a realistic likelihood that a panel of this court would find that the
    bail review judge erred in denying, or granting, interim release:
R.
    v. Gulyas
, 2013 ONCA 68, at para. 2.

[12]

In
R. v. McRae
,
    I referred to the standard and added the following, at paras. 31-35:

The nature of the panels review involves a
    consideration of the circumstances in which it is appropriate for a court to
    reverse a bail judges decision and the standard of review that the panel
    itself would apply.

In
St-Cloud
,
    Wagner J. explained when a reviewing court may interfere with a bail judges
    decision. He pointed out that the decision to grant interim release involved a
    delicate balancing of the relevant circumstances, so a reviewing judge does
    not have open-ended jurisdiction. He said, at para. 6, that the exercise of
    this power is only appropriate in three circumstances:

(
1) where there is admissible new
    evidence;

(2) where the impugned decision contains an error of law; or

(3) where the decision is clearly inappropriate.

He elaborated on the last of these
    circumstances by saying that the reviewing judge could not simply substitute
    his or her decision for the decision of the bail judge: It is only if the
    [bail] justice gave excessive weight to one relevant factor or insufficient
    weight to another that the reviewing judge can intervene.

Although Wagner J. provided that guidance in
    the context of a review under ss. 520 or 521, in my view, it is equally
    applicable to bail reviews under s. 680.

The circumstances identified by Wagner J. in
    turn point to the standard of review that the panel would apply. Under the
    first two circumstances, a panel of this court would review the bail judges
    decision on a correctness standard. The third circumstance, however, is highly
    deferential and synonymous with reasonableness review.

[13]

There
    are three grounds of appeal. The first two relate to the conviction for
    manslaughter. The third relates to the alternate basis of culpability  failure
    to provide the necessaries of life. In order to succeed on her application for
    bail pending appeal, the appellant needed to demonstrate her grounds of appeal
    on both alternative bases of culpability were sufficiently strong.

The admissibility of the appellants
    statement I just snapped

[14]

The
    appellant will argue that this statement, made in the back of a police cruiser
    after the appellant had been taken to the day care centre to re-enact the
    events, should have been excluded because it was not videotaped. The bail judge
    considered this ground to be arguable, but not strong, in light of this courts
    decision in
R. v. Moore-McFarlane
(2001), 160 C.C.C. (3d) 493 (Ont.
    C.A.). The appellant does not challenge that conclusion.

The good character evidence

[15]

The
    appellant did not testify at trial. However, she adduced evidence that she was a
    caring, loving, calm, patient and responsible day care worker.

[16]

The
    trial judge accepted this evidence. He described the appellants argument as
    follows:

Finally, the defence submits that given the character evidence
    that was called, it is unlikely that she would have committed the offence
    charged. She was an experienced day care provider and would be used to an upset
    child in the early days of day care.

[17]

The
    appellant will submit on appeal that although the trial judge stated the proper
    use of such evidence, he misapplied the test when he concluded the following in
    his reasons on this issue:

Ms. Luckese was an experienced day care provider. Her character
    evidence shows that she was an exemplary day care provider and had experience
    dealing with children in their early days in her care. However, how she had
    dealt with other children, in other circumstances, is not of great significance
    to me in this case relating to this child on this day. I cannot draw the
    inference that because she worked well with other children on other days, she
could not have
assaulted this child. [Emphasis added.]

[18]

The
    appellant will argue that the trial judge misplaced the burden of proof,
    requiring her to prove that, because of her good character, she could not
    have assaulted the child.

[19]

Brown
    J.A. regarded this ground of appeal as arguable, but not at the strong end of
    the spectrum. The trial judge understood the defence position and correctly
    stated the legal purpose of the character evidence: to support the inference
    that the accused was unlikely to have committed the offence. He noted that the
    language used by the trial judge in the impugned paragraph was the same
    language used by Bastarache J. in
R. v. Charlebois
, 2000 SCC 53, at
    para. 30.

[20]

The
    trial judges determination of the low probative value of the good character
    evidence took place in the context of his assessment of all the other evidence.
    He considered the circumstances prevailing at the day care on the day in
    question. The appellant was responsible for seven children under the age of
    three. The deceased infant was new to the day care, understood little English
    and had been crying throughout the day. He considered the nature of the injury
    and the expert evidence about how it could have been inflicted. He considered
    the appellants contradictory statements about slipping, then saying that she
    had shaken the child, then stating that she just snapped. The trial judge drew
    an inference that was clearly available to him: that the appellant momentarily
    lost her patience and struck the child. The good character evidence, which the
    trial judge clearly accepted and considered, was of little probative value in
    the circumstances.

[21]

The
    trial judge identified the correct test for the use of the character evidence. I
    agree with Brown J.A.: the appellants argument that the trial judge misapplied
    the test, having stated it correctly, is arguable but not strong.

[22]

I
    would not, therefore, order a review of the order of Brown J.A. by a panel of
    this court in relation to this ground of appeal. This conclusion makes it
    unnecessary to consider the strength of the appellants appeal from conviction
    based on the alternative basis of liability.

Disposition

[23]

For
    these reasons, the application is dismissed.


