



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order prohibiting disclosure of a witness identify
    has been made in this proceeding pursuant to s. 486.31 of the
Criminal
    Code
and shall continue.  This section of the
Criminal Code
provides that:

486.31 (1) In any
    proceedings against an accused, the judge or justice may, on application of the
    prosecutor in respect of a witness, or on application of a witness, make an
    order directing that any information that could identify the witness not be
    disclosed in the course of the proceedings if the judge or justice is of the
    opinion that the order is in the interest of the proper administration of
    justice.

(2) The judge or
    justice may hold a hearing to determine whether the order should be made, and
    the hearing may be in private.

(3) In
    determining whether to make the order, the judge or justice shall consider


(a) the right to a fair and public hearing;


(b) the nature of the offence;


(c) whether the witness needs the order for their security or to
    protect them from intimidation or retaliation;


(d) whether the order is needed to protect the security of anyone
    known to the witness;


(e) whether the order is needed to protect the identity of a
    peace officer who has acted, is acting or will be acting in an undercover
    capacity, or of a person who has acted, is acting or will be acting covertly
    under the direction of a peace officer;


(e.1) whether the order is needed to protect the witness's
    identity if they have had, have or will have responsibilities relating to
    national security or intelligence;


(f) society's interest in encouraging the reporting of offences
    and the participation of victims and witnesses in the criminal justice process;


(g) the importance of the witness' testimony to the case;


(h) whether effective alternatives to the making of the proposed
    order are available in the circumstances;


(i) the salutary and deleterious effects of the proposed order;
    and


(j) any other factor that the judge or justice considers
    relevant.

(4) No adverse
    inference may be drawn from the fact that an order is, or is not, made under
    this section.

S.C. 2015, c.
    20, s. 38(3).




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ruthowsky, 2018 ONCA 552

DATE: 20180613

DOCKET: M49204 (C65389)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent in Appeal)

and

Craig Ruthowsky

Applicant (Appellant)

Gregory Lafontaine, for the applicant

Michael Perlin, for the respondent

Heard: June 12, 2018

On an application for bail pending appeal from the
    convictions entered on April 25, 2018 by Justice Robert A. Clark, sitting with
    a jury, and from the sentence imposed on May 29, 2018.

ENDORSEMENT

OVERVIEW

[1]

After a 25 day jury trial, Mr. Craig Ruthowsky was convicted of bribery;
    attempt to obstruct justice; criminal breach of trust; and trafficking cocaine.
    He was sentenced to 13 years imprisonment less 6 months credit.

[2]

Mr. Ruthowsky is appealing both his conviction and his sentence. He
    brings this application for bail pending appeal.

[3]

The applicable law is not in dispute. Having been convicted, Mr. Ruthowsky
    is no longer presumed to be innocent. In order to avoid detention pending his
    appeal, the burden is on Mr. Ruthowsky to establish that he should receive bail
    pending appeal, under
Criminal Code
, s. 679(3):
R. v. Oland
, 2017
    SCC 17, [2017] 1 S.C.R. 250. He must show, on the balance of probabilities,
    that: (1) his appeal is not frivolous; (2) he will surrender himself into
    custody in accordance with the terms of any release order; and (3) his
    detention is not necessary in the public interest.

[4]

Mr. Ruthowsky has not discharged that burden. I am persuaded that his
    appeal contains grounds that are not frivolous, that he will more probably than
    not surrender himself into custody, and that he does not pose a risk to the safety
    of the community. However, I am not satisfied that a reasonable member of the
    public would conclude that his detention pending appeal is not necessary in the
    public interest. This is because he has been convicted of serious offences that
    were committed in extremely aggravated circumstances, and because his grounds
    of appeal do not clearly surpass the not frivolous threshold. In these
    circumstances, a reasonable member of the public would conclude that the
    interest in the immediate enforcement of his lengthy sentence outweighs the
    interest in releasing him pending the appeal of his conviction and sentence.

ANALYSIS

A.

HAS MR. RUTHOWSKY SHOWN THAT HIS APPEAL IS NOT FRIVOLOUS?

[5]

An appeal is frivolous if it does not give rise to arguable issues:
R.
    v. Manaserri
, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38. This first
    precondition therefore presents a very low bar:
Oland
, at para. 20.
    The Crown does not press its argument that Mr. Ruthowskys appeal is frivolous.
    Its central position is that his appeal is weak, an important consideration in
    deciding whether Mr. Ruthowsky has met his burden of showing that his detention
    is not necessary in the public interest. I will therefore consider the strength
    of the appeal when determining if Mr. Ruthowsky has met the third precondition
    to his release.

B.

HAS MR. RUTHOWSKY SHOWN THAT HE WOULD SURRENDER HIMSELF?

[6]

Mr. Ruthowsky has complied with the strict terms of his pre-trial
    release for close to three years. Although he now has greater incentive to flee
    given his conviction and the heavy sentence imposed, the Crown concedes that
    this second precondition to release is met. It accepts that although there are
    flight risks that should not be disregarded in an overall assessment of his
    application, Mr. Ruthowsky has established that, if released, he would surrender
    himself into custody as required by a release order.

C.

HAS MR. RUTHOWSKY SHOWN THAT HIS DETENTION IS NOT REQUIRED IN THE PUBLIC
    INTEREST?

[7]

There are two components to the public interest requirement: public
    safety and public confidence in the administration of justice:
Oland
, at
    para 23;

and
R. v. Farinacci
(1993), 86 C.C.C. (3d) 32 (Ont.
    C.A.), at pp. 47-48.

[8]

As the term suggests, the public safety component has to do with the
    protection and safety of the public should an appellant be released pending
    appeal. Appropriately, the Crown has not made this a focus of concern in its
    arguments. Mr. Ruthowskys pre-trial release was based on the premise that his
    behaviour could be controlled in the community, with conditions. Nothing has
    changed in this regard. I am satisfied that Mr. Ruthowskys release pending
    appeal would not imperil public safety.

[9]

Instead, the Crown focuses on the effect that Mr. Ruthowskys release
    would have on public confidence in the administration of justice as he has now been
    convicted. This consideration requires a balance between two competing
    interests  the enforceability interest, and the reviewability interest.

[10]

The
    enforceability interest recognizes that, as a general rule, it is important to
    respect and immediately enforce judgments. It can harm the repute of the
    administration of justice in the eyes of reasonable members of the public if
    sentences are postponed pending appeal, particularly where the appellant has
    been convicted of serious offences and the grounds of appeal are not strong.

[11]

On
    the other hand, those who are convicted are entitled to a meaningful review
    process. Denying bail pending appeal can result in individuals spending
    significant time in custody, only to have their convictions be subsequently
    overturned on appeal, something that would also disturb reasonable members of
    the public. The reviewability interest therefore agitates in favour of release
    before what may be pointless detention occurs.

[12]

The
    list of factors to be considered in evaluating the impact of a bail pending
    appeal decision on public confidence in the administration of justice is not
    closed. It is helpful, however, to pay regard to the list of factors found in
Criminal
    Code
, s. 515(10):
Oland
, at para. 32. This section relates to
    whether pre-trial detention is necessary to maintain confidence in the
    administration of justice, but it identifies central considerations in gauging
    the impact of bail pending appeal decisions on public confidence in the
    administration of justice. These considerations include: (1) the strength of
    the prosecution case, measured through the strength of the grounds of appeal;
    (2) the gravity of the offences; (3) the circumstances surrounding the
    commission of the offences; and (iv) the fact that the accused is liable for a
    lengthy term of imprisonment.

[13]

Mr.
    Ruthowsky argues that his appeal is extremely strong and undercuts his entire
    conviction, supporting his release notwithstanding the gravity of the offences for
    which he was convicted. He points out that bail pending appeal has been granted
    in cases involving the most serious of offences, including murder in
Oland
.
    Bail pending appeal was also initially granted in
R. v. Forcillo
, 2016
    ONCA 606, a high profile case involving a police officer convicted of attempted
    murder.

[14]

The
    Crown maintains that given the weakness of his grounds of appeal, the
    seriousness of his crimes, the aggravating features identified by the trial
    judge, the lengthy period of incarceration, and the residual risk that Mr.
    Ruthowsky could flee, the enforcement interest must be given priority.

(1)

The Strength of the Prosecution Case/Grounds of Appeal

[15]

The
    strength of the prosecution case under s. 515(10)(c)(i) translates, in the bail
    pending appeal context, into the strength of the grounds of appeal:
Oland
,
    at para. 40. At this stage, an inquiry into the strength of the grounds of
    appeal cannot rise above a preliminary assessment, based on judicial knowledge
    and experience, since it is not realistic to hear full argument on the grounds
    of appeal with the benefit of full transcripts. At this juncture, I am to
    consider the general legal plausibility of the grounds of appeal and their
    foundation in the record:
Oland
, at para. 44.

[16]

Mr.
    Ruthowsky has raised numerous grounds of appeal in his notice of appeal, but
    focused on two in oral submissions. I will begin with those two specific grounds
    before discussing the rest.

(a)

Reasonable Apprehension of Bias

[17]

Mr.
    Ruthowsky appeals on the basis that the trial judge demonstrated a reasonable apprehension
    of bias in the way he conducted the trial. Thus denying Mr. Ruthowsky a fair and
    impartial trial. He says that the trial was conducted in an atmosphere of
    unabated oppression towards the defence.

[18]

To
    establish this, Mr. Ruthowsky relies primarily on an information and belief
    affidavit included in the application record. The affiant, a law student who
    works for Mr. Lafontaine (Mr. Ruthowskys trial and appeal lawyer), records
    observations made at trial by Mr. Ruthowskys lawyers, as well as by Mr.
    Ruthowskys sister-in-law. The hearsay reported by the law student describes
    the judge disparaging the defence case or betraying his disapproval of the
    defence by variously shaking his head and rolling his eyes, demonstrating
    impatience or disapproval through his body language, huffing and scoffing,
    scowling, sighing loudly, glaring and appearing visibly annoyed, angry,
    frustrated, or looking disdainfully or with apparent disapproval.

[19]

Mr.
    Ruthowsky also relies on the trial record, which he says shows that the trial
    judge demonstrated impatience with the defence. Mr. Ruthowsky further claims
    that the trial judge assisted the Crown by laying out the allegations
    supporting each count that he felt had been addressed in Mr. Ruthowskys
    evidence, thereby providing the Crown with a roadmap for cross-examination.

[20]

Finally,
    Mr. Ruthowsky relies on the manner in which he was sentenced. He claims that
    the trial judge subjected him, gratuitously, to a harsh three hour dressing
    down in which the trial judges personal revulsion for Mr. Ruthowsky was
    palpable, before imposing an unfit sentence in excess of what the Crown was
    seeking.

[21]

Reasonable
    apprehension of bias based on misconduct by a trial judge is a difficult ground
    of appeal. There is a strong presumption of judicial impartiality and a heavy
    burden on a party who seeks to rebut this presumption:
R. v. Dowholis
,
    2016 ONCA 801, 133 O.R. (3d) 1, at para. 18. See also
Yukon Francophone
    School Board, Education Area #23 v. Yukon (Attorney General)
, 2015 SCC 25,
    [2015] 2 S.C.R. 282, at para. 25. As the Supreme Court held
per curiam

in
Wewaykum Indian Band v. Canada
, 2003 SCC 45, [2003] 2 S.C.R.
    259, at para. 59, the presumption of impartiality carries considerable weight,
    and the law should not carelessly evoke the possibility of bias in a judge,
    whose authority depends upon that presumption.

[22]

The
    evaluation of whether a reasonable apprehension of bias has been created is
    context-driven, influenced not only by the conduct of the trial judge, but the
    context in which that conduct occurred. As this courts decision in
R. v.
    Hungwe
, 2018 ONCA 456 demonstrates, a conviction appeal based on judicial
    bias can succeed even though the underlying proceeding is a jury trial  and
    thus where it is the jury and not the judge that determines guilt. The separation
    of functions between judge and jury can, however, present additional challenges
    in reasonable apprehension of bias appeals relating to the trial judge:
R.
    v. Snow
(2004), 73 O.R. (3d) 40 (C.A.), 191 O.A.C. 212.

[23]

It
    would not be appropriate to discount the merits of Mr. Ruthowskys reasonable
    apprehension of bias appeal based solely on such generic observations. There
    are, however, particularized and significant impediments to this ground of
    appeal that materially reduce the chances that this appeal will succeed.

[24]

For
    example, in this case, the jury was directed to decide the case on the
    evidence, based on their own opinions.

[25]

More
    importantly, there are imposing impediments to this ground of appeal that arise
    from the failure of defence counsel to object, and the absence of an
    evidentiary record at trial confirming the allegations now being made about the
    trial judges demeanour. This failure to contemporaneously document in open
    court the trial judges impugned conduct in the record creates at least three
    problems.

[26]

First,
    as this court confirmed in
R. v. Nero
, 2016 ONCA 160, 334 C.C.C. (3d)
    148, at para. 33, at least as a general rule, allegations of bias or a
    reasonable apprehension of bias should be advanced as soon as it is reasonably possible
    to do so. This did not occur here.

[27]

Second,
    as reasonable apprehension of bias was not raised as an issue at trial, it
    becomes a new argument sought to be raised on appeal. It is therefore unclear whether
    this ground of appeal will even be allowed to proceed:
R. v. Perka
,
    [1984] 2 S.C.R. 232, at p. 240
per

Dickson J.; and
R. v.
    Brown
, [1993] 2 S.C.R. 918, at p. 923
per
LHeureux-Dubé J.
    (dissenting). This court has held that where a new issue is raised for the
    first time on appeal, the burden falls on the party raising it to demonstrate
    that all of the facts necessary to address the proposed issue are fully before
    the court, that the failure to raise the issue was not tactical, and that the
    refusal to hear the argument would result in a miscarriage of justice:
R.
    v. Reid
, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 42-44.

[28]

It
    is not clear that Mr. Ruthowsky can discharge that burden. Crown arguments made
    before me raise concerns about the absence of a fair and reliable evidentiary
    record, as a result of the failure to object during the trial. The Crown also
    makes a weighty case that the failure to raise the bias issue at trial was a tactical
    decision. Finally, the Crown claims that the failure to object created
    irreparable prejudice, since, had there been a meritorious objection, the trial
    judge could have provided a pointed mid-trial direction and a final direction
    to the jury not to be influenced by his behaviour:
Snow
, at paras.
    48-49.

[29]

Third,
    this ground of appeal depends, in material part, on a successful fresh evidence
    application. Yet the failure to object during the trial has created problems
    for the defence in meeting the
Palmer

test:
Palmer v. The
    Queen
, [1980] 1 S.C.R. 759, at p. 775. The facts claimed in the
    information and belief affidavit now being relied upon could arguably have been
    made part of the trial record with due diligence, and the second-hand opinion
    evidence from interested observers about the trial judges demeanour is apt to
    be found to be insufficiently reliable to gain admission.

[30]

There
    are therefore imposing hurdles to the success of this ground of appeal. As a
    result, I cannot agree with Mr. Ruthowsky. This is not a ground of appeal that
    clearly surpasses the not frivolous threshold.

(b)

Legal Errors in the Trafficking Conviction

[31]

In
    this case, the trial judge made findings of fact during sentencing, pursuant to
Criminal Code
, s. 724(2)(b). Mr. Ruthowsky submitted in oral argument
    that the trial judge erred by finding that he aided the offence of drug
    trafficking by arranging, on behalf of a drug dealer, for a superior cutting
    agent to be identified through lab testing and thereby increasing the drug
    dealers profits. Mr. Ruthowsky claims that this is not an appropriate basis
    for liability, and that, even if it was, the trial judge erred by treating this
    singular act as aiding ongoing drug trafficking activities.

[32]

In
    my view, this ground of appeal is without merit. Assisting a known drug dealer
    in the selection of a cutting agent to be used in trafficking narcotics
    constitutes aiding the offence of narcotics trafficking. The law does not
    require advance knowledge of the specific acts of trafficking that will occur.
    Moreover, this was not the only basis for Mr. Ruthowskys narcotics trafficking
    conviction. The trial judge also found that Mr. Ruthowsky assisted a known drug
    trafficker by advising him of how to avoid being caught trafficking.

(c)

Remaining Grounds in the Notice of Appeal

[33]

I
    now turn to the remaining grounds of appeal in Mr. Ruthowskys notice of appeal
    that did not feature during oral argument.

[34]

The
    first ground in the notice of appeal is that the trial judge erred in
    permitting the Crown to adduce evidence from a Crown witness that the appellant
    had twice identified a confidential informant to the witness, without permitting
    the informants identity to be disclosed. It is Mr. Ruthowskys position that,
    without disclosing the informants identity, it was not possible for him to
    cross-examine that witness effectively.

[35]

This
    ground of appeal, while arguable, is not strong. Informer privilege is a fixed
    rule of law. In order to overcome that privilege, an accused person must
    persuade a judge that their innocence is at stake unless the privilege is set
    aside:
R. v. Liepert
, [1997] 1 S.C.R. 281, at para. 20;
Named
    Person v. Vancouver Sun
, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 29;
    and
R. v. Durham Regional Crime Stoppers Inc.
, 2017 SCC 45, [2017] 2
    S.C.R. 157, at para. 11. I note that the defence did not object to the evidence
    being led, or bring an application to disclose the confidential informers
    privilege during trial. This makes an appeal on this issue difficult to
    maintain.

[36]

The
    second ground of appeal identified in the notice of appeal is that the trial
    judge erred in permitting the Crown to expand the appellants scope of
    potential liability beyond what was contemplated when the prosecution began. In
    other words, Mr. Ruthowsky claims that the Crown changed its theory about how
    the charged offences occurred. Mr. Ruthowsky argues that this made it more
    difficult to defend the charges. This is an arguable ground of appeal, but it,
    too, is not without its challenges. The Crown is not bound to prove a case
    according to any particular factual or legal theory. Unless the right of the
    accused to make full answer and defence is compromised by doing so, the Crown
    is free to rely on different theories of liability that are rooted in the
    evidence. To succeed, Mr. Ruthowsky will have to show that a change in the Crowns
    theory occurred, and that it prejudiced his ability to defend himself. However,
    no specific evidence of such prejudice been offered in the application record.

[37]

The
    third ground of appeal identified in the notice of appeal is that the trial
    judge erred in failing to give counsel the opportunity to review hundreds of
    pages of new disclosure produced at trial. Based on the material before me, it appears
    that the trial judge ultimately ruled that defence counsel should proceed with
    his cross-examination, but would be entitled to an adjournment when he got to
    the new documents in his questioning of the witness. It appears that is what
    happened. Accordingly, I do not believe this to be a strong ground of appeal.

[38]

The
    fourth ground of appeal in the notice of appeal raises issues with the jury
    charge.

[39]

The
    first jury direction complaint relates to the failure by the trial judge to
    instruct the jury as suggested in
R. v. Starr
, 2000 SCC 40, [2000] 2
    S.C.R. 144, at para. 242, that proof beyond a reasonable doubt falls closer to
    absolute certainty than proof on the balance of probabilities. Although some
    judges direct juries in this way,
Starr

has not been
    interpreted authoritatively as requiring that this exact form of direction be
    given. While the
Canadian Criminal Jury Instructions
model charge
    includes this passage from
Starr
,
[1]
the current edition of
Watts Manual of

Criminal Jury
    Instructions
does not.
[2]
To succeed on this ground of appeal, it appears that Mr. Ruthowsky will have to
    move the law, as it is currently understood.

[40]

The
    balance of the issues raised with the jury charge depend on whether Mr. Ruthowskys
    characterization of what the trial judge said bears up when the jury charge is
    read as a whole. The descriptions of the charge offered are controversial.
    These grounds of appeal are arguable, but have not shown to clearly surpass the
    not frivolous threshold.

[41]

The
    fifth ground of appeal in Mr. Ruthowskys notice of appeal alleges an error in
    the trial judges decision to deny a stay of proceedings application brought
    pursuant to s. 24(1) of the
Charter of Rights and Freedoms
. This
    ground of appeal is presented as a bald assertion, without an attempt to
    identify errors of law, or principle, or unreasonable findings of fact. On this
    record, it stands no chance of success.

[42]

In
    sum, Mr. Ruthowsky is seeking bail pending appeal without the benefit of
    grounds of appeal that clearly surpass the not frivolous threshold. This
    weakens the reviewability interest.

(2)

The Gravity of the offences and the Circumstances Surrounding the
    Commission of the Offences

[43]

The
    crimes that Mr. Ruthowsky has been convicted of are grave. In his reasons for
    sentence, the trial judge described that they were committed in seriously
    aggravated circumstances. He was found to have repeatedly abused the trust
    reposed in him by the community over a protracted period, facilitating drug
    trafficking for his own enrichment. The sums involved where significant. He was
    found to have exposed the identity of a confidential informant to a known drug
    trafficker, and to have warned that trafficker that prospective buyers were
    undercover police officers.

[44]

These
    factors agitate in favour of his continued detention as they elevate the
    enforcement interest.

(3)

The Length of Imprisonment

[45]

Mr.
    Ruthowsky was sentenced to 13 years in custody. Even if his sentence appeal
    succeeds, he is facing a lengthy period of incarceration. I do not trivialize
    the loss of liberty that occurs during detention pending appeal, even for those
    who have much longer sentences to serve. There is no risk, however, that Mr.
    Ruthowsky will serve anything close to the full sentence imposed on him pending
    his appeal. Denying his release pending appeal will not, for all practical
    purposes, undermine the reviewability interest of the decision against him.

CONCLUSION

[46]

I
    bear in mind that courts have been instructed that only a fraction of bail
    pending appeal applications should be resolved based upon the impact that
    release pending appeal would have on public confidence in the administration of
    justice. I am also mindful that, in balancing the enforceability and reviewability
    interests, I am to conduct the evaluation through the eyes of a reasonable
    member of the public.

[47]

Mr.
    Ruthowsky has been convicted of very serious crimes, committed in aggravated
    circumstances, and his grounds of appeal do not clearly surpass the not
    frivolous threshold. A reasonable member of the public would conclude, in my
    view, that the public interest in enforceability outweighs the reviewability
    interest in this case. Mr. Ruthowsky has not satisfied me that his detention is
    not necessary in the public interest, to preserve public confidence in the
    administration of justice.

[48]

I
    therefore dismiss Mr. Ruthowskys application for bail pending appeal. As a
    result, it is particularly important that the appeal proceed without delay. I
    order that the appeal be expedited pursuant to s. 679(10) of the
Criminal
    Code
. I am prepared to assist the parties in achieving that. Counsel will
    coordinate and provide this court with mutually agreeable dates within the next
    three weeks for a case conference that I am offering to conduct so that
    directions may be given to expedite the appeal.

David
    M. Paciocco J.A.





[1]

Gerry A. Ferguson, The Honourable Justice Michael R.
    Dambrot & The Honourable Justice Elizabeth A. Bennett,
Canadian Criminal
    Jury Instructions
, loose-leaf (consulted on 13 June 2018), (Vancouver:
    Continuing Legal Education Society of British Columbia, 2005), at
§ 4.04.1.



[2]


The Honourable Justice David Watt,
Watt's
    Manual of Criminal Jury Instructions
, 2nd ed. (Toronto: Carswell, 2015), at
    Final 13, pp. 261-67.


