



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Short, 2017 ONCA 153

DATE: 20170221

DOCKET: M47273 (C57652)

MacPherson J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Craig Short

Applicant/Appellant

Susan Chapman and Michael Dineen, for the applicant

Megan Stephens, for the respondent

Heard: February 16, 2017

ENDORSEMENT

[1]

On February 27, 2013, the applicant was convicted by a jury, presided
    over by Donohue J. of the Superior Court of Justice in Sarnia, of the first
    degree murder of his wife, Barbara Short. It was the second trial on this
    charge; the first trial ended with a hung jury.

[2]

The applicant filed a notice of appeal and brought an application for
    judicial interim release pending appeal. The application was dismissed by
    LaForme J.A. on March 6, 2014.

[3]

The relevant provision of the
Criminal Code
, R.S.C. 1985, c.
    C-46, is s. 679(3) which requires an applicant to establish three criteria:

a)       the appeal  is not frivolous;

b)       he will surrender himself into custody in           accordance
    with the terms of the order; and

c)       his detention is not necessary in the public           interest.

[4]

At the initial bail hearing, the Crown conceded the first and second of
    these criteria. LaForme J.A. denied bail on the basis of the third criterion,
    public interest. He concluded, at para. 29:

Mr. Short has been found guilty of murdering his wife by a jury
    of 12. This offence is arguably the most serious in Canada. While some of his
    grounds of appeal are more than simply arguable, they are nevertheless not
    sufficiently strong such that I can say, based on this record, they are likely
    to succeed on appeal. Release, in my view, would not be in the public interest.

[5]

Three years later, the applicant makes a second application for judicial
    interim release pending appeal. Once again, the Crown concedes the first and
    second criteria. The Crown says that the new grounds of appeal and the fresh
    evidence make the appeal arguable, but not so strong as to raise a serious
    concern about the accuracy of the verdict. The Crown acknowledges that the
    proposed release plan  the applicant, age 56 with no prior criminal record,
    will reside in the home of Russell (a former police officer) and Gaelene Bain in
    Dorchester, Ontario  is an appropriate plan.

[6]

Once again, the Crown opposes bail on the public interest criterion. The
    Crown says that many of the grounds of appeal raised in the applicants factum
    on the appeal proper were before LaForme J.A. in almost the same form and
    detail as they are now presented. In addition, the Crown contends that the
    proposed new grounds of appeal have not been shown to be sufficiently strong
    that they are likely to succeed.

[7]

The applicant does not challenge the merits of LaForme J.A.s bail
    decision in 2014. His position is that a combination of new grounds of appeal,
    compelling fresh evidence, and the passage of time constitutes a material
    change of circumstances justifying a fresh application.

[8]

The public interest criterion requires an appellate court to balance two
    separate interests: reviewability of convictions leading to imprisonment and
    enforceability of judgments: see
R. v. Farinacci
(1993), 109 D.L.R.
    (4th) 97 (Ont. C.A.);
R. v. Manasseri
, 2013 ONCA 647, [2013] O.J. No 6177.

[9]

I acknowledge that judicial interim release pending appeal for a person
    convicted of murder is rare: see
R. v. Baltovich
(2000), 144 C.C.C.
    (3d) 233 (Ont. C.A.); and
Manasseri
.

[10]

However, in my view, this is a rare murder case in which, at this
    juncture, the interests of reviewability outweigh the interests of enforcement.

[11]

First, one of the new grounds of appeal relates to the trial judges
    decision at the second trial not to remove defence counsel from the record.
    This decision was made about five weeks before trial. Defence counsel asserted
    that his client had discontinued payment for his services and that he could not
    ethically represent his client. The trial judge refused to allow the accused to
    speak on this issue. And he ruled that [defence counsels] difficulties relate
    to payment of his accounts and not to an ethical dilemma.

[12]

I do not say that either of these rulings was clearly wrong. However,
    the decision of the Supreme Court of Canada in
R. v. Cunningham
, 2010
    SCC 10, [2010] S.C.R. 331, raises a serious issue about the ethical dilemma
    component of the ruling. In
Cunningham
, Rothstein J. said, at para.
    49, that [i]f withdrawal is sought for an ethical reason, then the court must
    grant withdrawal (citation omitted). It may be that if an ethical dilemma is
    advanced as a colourable basis for withdrawing for non-payment of legal fees, a
    trial judge could refuse to allow counsels withdrawal. However, in para. 48,
    Rothstein J. also said:

However, in either the case of ethical reasons or non-payment
    of fees, the court must accept counsels answer at face value and not enquire
    further so as to avoid trenching on potential issues of solicitor-client
    privilege.

In any event, the new
Cunningham
issue
    presents as a serious appeal issue.

[13]

Second, there is now a very extensive fresh evidence record about a
    potential third party suspect. This was a live issue, though barely, at trial.
    At the initial bail hearing, the focus on this issue was on the trial judges
    ruling. Today, the picture is vastly different. The applicant has engaged a
    respected private investigator and there is a great deal of information about a
    potential third party suspect. There may well be, as the Crown asserts,
    problems with the admissibility of some of that evidence (e.g. hearsay). That
    said, whereas at the time of the trial a third party suspect defence appeared
    as farfetched, that is no longer a fair characterization.

[14]

Third, and crucially, against the backdrop of the first two points
    above, the applicant has been incarcerated for four years and his appeal has
    not been heard. I do not blame the applicant or the Crown for this state of
    affairs. However, I do say that this is an important factor in justifying bail
    at this juncture: see
Baltovich
, at paras. 41-42;
R. v. Pabani
(1991), 10 C.R. (4th) 381 (Ont. C.A.), at para. 10. The applicant is 56 years
    old. He had no criminal record before the conviction. His release plan  living
    with a former police officer  is unassailable.

[15]

Fourth, this appeal, even with all the fresh evidence material, can be
    heard in the near future. With the consent of counsel, I will case manage the
    appeal and it is scheduled for hearing on August 30 and 31, 2017.

[16]

Accordingly, the application is granted. The applicant is released
    pending his appeal in accordance with the terms set out in the draft order.

J.C. MacPherson J.A.


