



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McRae, 2020 ONCA 498

DATE: 20200804

DOCKET: M51663 (C66363)

Jamal
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

John
    McRae

Applicant

Matthew Gourlay, for the applicant

Bradley Reitz, for the respondent

Heard: July 30, 2020 by videoconference

REASONS
    FOR DECISION

[1]

The applicant, Mr. John McRae, applies for bail
    pending his conviction and sentence appeal. He was convicted after a trial by
    judge and jury of the second degree murder of his son, Mr. Michael McRae. He was
    sentenced to life in prison without the possibility of parole for 12 years:
R.
    v. McRae
, 2018 ONSC 4035.

[2]

The applicant was released on bail before his
    conviction for almost two years without incident. He now proposes a release
    plan pending appeal on terms much like those governing his release at first
    instance.

[3]

The Crowns position is
that
    while
this application for bail is a close call, it opposes bail because
    the applicant has failed to establish that his detention is
not necessary
in the public interest under s.
    679(3)(c) of the
Criminal Code
, R.S.C. 1985, c. C-46.

[4]

For the reasons that
follow, I grant the application.

A.

Background

(a)

The stabbing and trial proceedings

[5]

On July 7, 2015, in the
    early evening, the applicant, then aged 70, stabbed and slit the throat of his
    51-year-old son, Michael. Michael was taken to the hospital, where he died.

[6]

Both the applicant and
    his son were alcoholics. They had lived together on and off for over 30 years, enduring
    a destructive relationship fraught with mutual hostility. Both had been
    drinking heavily on the day of the stabbing.

[7]

The applicant admitted
    stabbing his son and slitting his throat, but claimed that he had acted in
    self-defence because earlier that day his son had kicked the shit out of him,
    and had threatened to kill him, saying: Youre no good for fuck all  Youre
    better dead. Im going to fucking kill you one day. The applicant testified
    that, after this initial altercation, his next clear memory was later the same day
    when his son kicked open his bedroom door and said: Youre gonna die tonight
    you old bastard. The applicant testified that he stabbed and killed his son
    moments after this threat.

[8]

The applicant claimed
    that he acted in self-defence.
In the alternative, he
claimed that he lacked the specific intent for murder because he was
    intoxicated.

[9]

The Crown contended that
    the applicant killed Michael while he was sleeping. The Crown claimed that the
    applicant was angry because of the dispute with his son earlier that day and
    against the backdrop of years of mutual hostility.

[10]

On June 14, 2018, the
    jury convicted the applicant of second degree murder. On June 20, 2018, the
    applicant was sentenced to life imprisonment with no possibility of parole for
    12 years.

(b)

The applicants history on bail

[11]

The applicant was released on bail for almost
    two of the three years between the offence (July 7, 2015) and the jury verdict
    (July 14, 2018). As the Crown concedes, this period of release was without
    incident.

[12]

The applicant was originally released by order
    of Kane J. on October 19, 2015 following a contested application. Kane J.
    rejected the Crowns position that bail should be denied mainly on the tertiary
    ground (s. 515(10)(c) of the
Criminal Code
), to maintain confidence in
    the administration of justice:

The potential strength of the defence to be
    presented impacts the strength of the Crowns case and provides counter balance
    to the seriousness of the charge and the brutal circumstances of the deceaseds
    death.

There are lengthy periods of no criminal
    activity, particularly during the last 25 years of Mr. McRaes life.

The bail plan presented addresses the
    substance issues of Mr. McRae which have accompanied his past criminal
    activity.

[13]

Kane J. ordered the applicants release on these
    conditions:

·

the applicant would reside initially at the
    Ottawa Missions residential treatment facility;

·

on completion of his treatment there, the applicant
    would reside with his daughter, Ms. Terri McRae;

·

the applicant would be subject to house arrest
    with limited exceptions;

·

the applicant would abstain from consuming
    alcohol and non-prescription drugs;

·

the applicant would possess no weapons or
    knives; and

·

the applicant would enter into a $10,000 bond. His
    sureties would be his daughter, Ms. Terri McRae ($300,000), and granddaughter, Ms.
    Meaghan Frank ($100,000).

[14]

The Crown applied to Strathy C.J.O. to direct a panel
    of the Court of Appeal to review Kane J.s release order. Strathy C.J.O.
    dismissed the Crowns application. He ruled that Kane J.s decision was
    reasonable, a proper exercise of discretion, and one that a panel of the court
    would be unlikely to second-guess:

While the killing was horrific, the full
    circumstances paint a more nuanced picture: an elderly parent living with a
    violent, abusive and addicted son; a long and dysfunctional relationship
    characterized by abuse, intoxication and violence; an accused with significant
    health and addiction challenges, but making real progress addressing his
    addiction while on bail; the absence of recent criminal activity,
except when
involving the victim; a strong plan for
    release; a probable delay of at least three years until trial, meaning that if
    not released an elderly accused would spend three years in a provincial remand
    facility awaiting trial.

[15]

The applicant remained on bail until January 31,
    2017, when he was remanded into custody at his own request. He wished to serve
    more pre-trial custody because of the potential for a long prison sentence if
    convicted.

[16]

The applicant remained in custody from January
    31, 2017 to December 1, 2017, when he was released again by order of Kane J.,
    again after a contested application. The applicant sought to be released
    because his health had deteriorated while he had been in custody, including his
    heart condition, diabetes, gallstones, and a broken arm caused by falling from
    a bunk. Kane J. acknowledged that the applicants daughter and surety, Ms.
    Terri McRae, with whom he had lived while on bail, had been convicted of
    impaired driving in January 2017, but was satisfied that this did not render
    her unfit to act as a surety because she agreed to a condition that there would
    be no alcohol in her house. Kane J. noted there was no suggestion that the
    applicant had consumed alcohol or had otherwise breached the bail conditions
    during his earlier release. He found the Crowns position on the application
    was a collateral attack of the original decision granting bail, which was
    denied leave to appeal. This is another case of the Crowns preference for
    detention rather than bail:
R. v. McRae
, 2017 ONSC 7145, at para. 48.
    Kane J. ordered the applicants release on terms broadly similar to his earlier
    release, but with enhanced terms in relation to alcohol.

[17]

The applicant was released from December 1, 2017
    until his conviction on June 14, 2018. Again, there was no suggestion that the
    applicant breached any of the conditions of his release.

[18]

The applicant has been in custody for over two
    years since his conviction. His time in custody has also been without incident.

(c)

The applicants medical condition

[19]

The applicant has been serving
    his sentence at the Millhaven Institution but since April 2020 has been in the medical
    unit at the Bath Institution. He is 75 years old and has many underlying health
    problems, including:

·

two heart attacks in the 1990s;

·

type-2 diabetes;

·

hepatitis C;

·

depression and anxiety;

·

kidney stones, which have led to five
    operations;

·

pancreatitis, caused by alcohol consumption and which
    required surgery;

·

high blood sugar;

·

pelvic bursitis; and

·

arthritis.

[20]

The applicant takes several prescription
    medications. His mobility is restricted and he requires a walker to walk longer
    distances.

[21]

Because his condition has stabilized at the medical
    unit of the Bath Institution, he is likely to be returned to Millhaven soon.

B.

DISCUSSION

[22]

To obtain bail pending
    appeal under s. 679(3) of the
Criminal Code
, the applicant must establish that: (1)
    the appeal is not frivolous (s. 679(3)(a)); (2) he will surrender himself
    into custody
in accordance with
the terms of
    the order (s. 679(3)(b)); and (3) his detention is
not necessary
in the public interest (s. 679(3)(c)).

[23]

The applicant has met
    his onus under the first two grounds in s. 679(3). The Crown concedes
that
this appeal meets the very low bar for being
    not frivolous under s. 679(3)(a):
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at
    para. 20. Nor does the Crown dispute that the applicant will surrender into
    custody in compliance with a bail order under s. 679(3)(b).

[24]

The Crown opposes bail
    only on the third ground, s. 679(3)(c). The Crown submits that the applicant
    has failed to establish that his detention is
not
    necessary
in the public interest.

[25]

The public interest
    criterion under s. 679(3)(c) has two elements: public safety and public
    confidence in the administration of justice:
Oland
, at paras. 23, 26.

[26]

I will address public
    safety first.

Public safety

[27]

Public safety
    considerations under s. 679(3)(c) relate to the protection and safety of the
    public, which tracks the secondary ground requirements of s. 515(10)(b)
    governing an accuseds release pending trial:
Oland
, at para. 24. To be denied bail for public
    safety considerations: (i) an individual must pose a substantial likelihood
    of committing an offence or interfering with the administration of justice;
    (ii) the substantial likelihood must endanger the protection or safety of
    the public; and (iii) the individuals detention must be necessary for
    public safety:
R. v. Morales
, [1992] 3 S.C.R. 711, at p. 737;
R. v. Stojanovski
, 2020 ONCA 285, at para. 18.

[28]

Public safety
    considerations alone can justify refusing bail in the public interest. And even
    where an applicant meets the public safety threshold, residual public safety
    concerns or the lack of any public safety concerns should still be
considered as
part of the public confidence
    analysis:
Oland
, at para. 27.

[29]

I am satisfied that
    public safety considerations alone do not justify the applicants continued
    detention. The Crown does not contend this. The applicants criminal record,
    while extensive, is dated, with the last prior conviction being for assault in
    2004. Although the applicants
current
offence
    involved the horrific killing of his son, it was linked with an alcohol
    addiction that appears to have been under control for the past five years. On
    two occasions Kane J. found that, with
appropriate
conditions
    for release, the applicant posed no significant risk to public safety. His first
    decision was affirmed as reasonable by Strathy C.J.O. I have no basis to reach a
    different conclusion.

[30]

I am also satisfied that
    the proposed release plan addresses any residual public safety concerns. Like
    the release plans approved by Kane J., the applicant proposes to live with his
    daughter, Terri McRae, to not possess any weapons, and to not consume alcohol
    or possess or consume controlled drugs. Terri has again agreed to a condition
    that no alcohol be permitted in her residence. The plan also calls for the
    applicant to attend addiction counselling and therapy as medically directed.
    The applicants sureties would again be his daughter Terri ($300,000) and
    granddaughter Meaghan Frank ($30,000), both of
whom have
    a record
of successfully supervising the applicant on release. The
    applicants bond would be $10,000. The Crown agrees to the terms of the
    proposed release plan, if bail is granted.

[31]

I now turn to the public
    confidence component, the focus of the Crowns opposition to release pending
    appeal.

Public confidence

[32]

The public confidence
    component involves weighing two competing interests: enforceability and
    reviewability. Enforceability concerns the need to respect the general rule of
    the immediate enforceability of all judgments. Reviewability concerns the need
    to provide for a meaningful review process, one that does not require persons
    convicted of offences to serve all or a significant part of their sentence only
    to have their conviction overturned on appeal:
Oland
, at paras. 24-26.

(i)

The enforceability interest

[33]

In assessing the enforceability interest, the
    seriousness of the crime has an important role. The more serious the crime, the
    greater the risk that public confidence in the administration of justice will be
    undermined if the person convicted is released on bail pending appeal:
Oland
,
    at para. 37. The absence of flight or public safety risks will attenuate the
    enforceability interest. Other factors should also be considered where
    appropriate:
Oland
, at para. 39.

[34]

Here, the applicant was convicted of a grave crime
     second degree murder  leading to a significant enforceability interest. But that
    interest is attenuated somewhat
by the lack of flight
    risks and the substantially reduced public safety risks, given the applicants proposed
    plan of release and the absence of issues during his earlier release.

[35]

I now turn to consider
    the reviewability interest.

(ii)

The reviewability interest

[36]

In assessing the
    reviewability interest, the strength of the appeal plays a central role:
Oland
, at
    para. 40. A preliminary assessment of the strength of the appeal is made by reviewing
    the grounds in the notice of appeal for their general legal plausibility and
    foundation in the record, to determine whether those grounds
clearly
surpass the not frivolous criterion:
Oland
, at
    para. 44. A broader public interest in reviewability transcends an individuals
    interest in any
given
case:
Oland
, at
    para. 45. The remedy sought on appeal may also inform the reviewability
    interest:
Oland
, at para. 46.

[37]

On this application the
    applicant filed his draft appeal factum setting out his proposed arguments,
    which I found helpful in forming a preliminary assessment of the strength of the
    appeal. He proposes to advance three grounds on the conviction appeal and one
    ground on the sentence appeal, but for this application relies only on the
    grounds on the conviction appeal:

1.
The trial judge erred by failing to charge the jury on the
    partial defence of provocation.

2.
The trial judge erred by dismissing (
in
    part
) the applicants
Scopelliti
application to adduce evidence
    of the victim Michael McRaes criminal record and prior bad acts, and by
    dismissing the applicants
Corbett
application to place an edited
    version of his criminal record before the jury.

3.
The trial judge erred by giving the jury a special hearsay
    caution regarding the threatening utterances of the deceased reported by
    various witnesses, even though they were adduced for a non-hearsay purpose.

[38]

I will consider each
    ground briefly. Cumulatively, these three grounds establish that the appeal
clearly
surpasses the not frivolous criterion.

[39]

The applicants first
    ground of appeal asserts that the trial judge erred by failing to charge the
    jury on the partial defence of provocation. If the jury had accepted this
    defence, it could have convicted the applicant of manslaughter rather than
    second degree murder:
Criminal Code
, s. 232. The defence of provocation was raised
    as being potentially engaged and was mentioned in each of the bail decisions of
    Kane J. and the bail review decision of Strathy C.J.O. The defence of
    provocation was also included in the draft rolled-up charge, but the trial
    judge removed it from the final charge because he saw no evidence of
    provocation. Neither the Crown nor defence counsel
at
    trial
(not counsel on this application) made any further comment.

[40]

The applicant asserts
    that the trial judge erred in law by not instructing the jury on provocation.
    The applicant asserts that the defence should have been put to the jury because
    the defence had an air of reality  the applicants testimony about his sons
    provocative threat to kill him, leading to the applicants anger, moments
    before he stabbed his son. The applicant also submits that failing to instruct
    the jury on provocation was significant because during deliberations the jury
    had asked the trial judge about how they could use the evidence of the
    applicants anger. The trial judge consulted with counsel and reminded them,
    remember, we dont have provocation here so I took provocation out of the
    rolled-up [charge] because we didnt instruct on provocation. The trial judge
    then re‑charged the jury and instructed them that anger is not a
    defence but could be considered with the other evidence as to whether the
    applicant had the intent for murder. The applicant says the jury was left with
    the impression that the applicants anger was relevant only to the intent for
    murder, even though it could also have
been relevant
    to
the defence of provocation.

[41]

Failing to
leave provocation to the jury is also potentially significant
    because a conviction for manslaughter could have led to a lesser sentence than
    the conviction for second degree murder. Second degree murder carries a
    sentence of imprisonment for life without eligibility for parole for
a minimum of
ten years:
Criminal Code
, s.
    745(c). Manslaughter is also punishable by a sentence of imprisonment for life but
    with no minimum punishment unless a firearm is used:
Criminal Code
, s.
    236.
It has been noted that
[n]o sentencing
    discretion is wider than for manslaughter: Clayton C. Ruby
et al.,
    Sentencing
, 9th ed. (Toronto, LexisNexis, 2017), at §23.133.

[42]

During oral submissions
    on this application, the Crown conceded that the defence of provocation had an
    air of reality and therefore the trial judge should have put this defence to
    the jury. But the Crown submits
that
this error
    of law is subject to the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
.
    The Crown submits that the proviso can cure a harmless error that does not
    affect the verdict, or a serious error when the evidence of guilt is
    overwhelming: see
R. v. Khan
, 2001 SCC 86,
[2001] 3 S.C.R. 823,
at paras. 26, 31.

[43]

The applicants position is that while the
    proviso may not be categorically unavailable, it is unlikely to apply. He relies
    on
R. v. Wade
(1994), 18 O.R. (3d) 33
    (C.A.), at p. 56,
per
Doherty J.A., revd on
    other grounds,
[1995] 2 S.C.R. 737
: The curative proviso cannot be applied.
    Having held that there was an air of reality to a possible conviction for
    manslaughter, I cannot say that the jury would necessarily have rejected that alternative
    had it been left with them
.
The applicant also relies on
R. v. Land
, 2019 ONCA 39,
145 O.R. (3d)
    29,
at paras. 104-106;
R. v. Ronald
,
    2019 ONCA 971, at paras. 65-71; and
R. v. Sarrazin
,
    2011 SCC 54, [2011] 3 S.C.R. 505, at para. 31.

[44]

It
    will be for the panel hearing the appeal to determine whether the proviso applies.
    For now, because of the Crowns concession
that
there
    was an air of reality to the defence of provocation, this ground of appeal
clearly
surpasses the threshold of being not
    frivolous.

[45]

As
    for the second ground of appeal relating to the
Scopelliti
and
Corbett
applications, a
    preliminary assessment of this ground leads me to conclude that, while not
    frivolous, it faces significant challenges. The trial judges decisions on
    these applications will be entitled to appellate deference:
R. v. R.D.
, 2019 ONCA 951, at para. 13;
R. v. Joseph
, 2020 ONCA 73, at para. 72. As counsel for
    the applicant fairly acknowledged in oral submissions, the trial judges
    dismissal (in part) of the
Scopelliti
application
    would not have left the jury with the misapprehension that Michael was an
    angel. On balance, I conclude that it weighs somewhat but not heavily in favour
    of reviewability.

[46]

Finally,
    on the hearsay ground of appeal, the applicant relies on
R.
    v. Delellis,
2019 BCCA 335. The British Columbia Court of Appeal
    held that the trial judge 
erred in telling the jurors that
    evidence of past threats made by the deceased victim could not be used to the
    appellants benefit unless found to be truthful:
Delellis
, at para. 3.
    The court found that the hearsay instruction was given in error, because it was
    adduced not for the truth of its contents but as evidence relevant to the
    appellants state of mind. The court found that the erroneous hearsay
    instruction gave rise to a reversible error, as the jurys ability to rely on
    this evidence was unfairly restricted:
Delellis
, at paras. 117-120. While
    the limiting instruction in
Delellis
appears to have been more
    extensive than the hearsay caution at the applicants trial, this ground of
    appeal certainly surpasses the not frivolous threshold, and therefore also weighs
    in favour of reviewability
.

Balancing the public interest in
    enforceability and reviewability

[47]

In conducting a final
    balancing of the enforceability and reviewability interests, public confidence in
    the administration of justice is measured through the eyes of a reasonable
    member of the public, someone who is thoughtful, dispassionate, informed of
    the circumstances of the case and respectful of societys fundamental values:
Oland
, at
    para. 47. Anticipated delay in deciding an appeal, relative to the length of
    the sentence, is also a consideration, to ensure that the reviewability
    interest remains meaningful:
Oland
, at para. 48.

[48]

The COVID-19 pandemic
    is also a factor that may be
considered as
part
    of the public interest criterion, though the weight to be given to it depends
    on the particular circumstances of each case: see e.g.,
R. v. Kazman
,
    2020 ONCA 251, at paras. 17-21;
R. v. Omitiran
, 2020 ONCA 261, at para. 26; and
R. v. Jesso
,
    2020 ONCA 280, at para. 36. Here, the applicant is elderly and has serious underlying
    medical conditions. This puts him in a class of people particularly vulnerable
    to COVID-19. I have given this factor
some
weight.

[49]

I have concluded that
prima facie
the
    enforceability interest is strong, given the seriousness of the offence for
    which the applicant was convicted, but is attenuated somewhat by the lack of
    flight risks and the substantially reduced public safety risks, given the
    applicants proposed plan of release and the absence of issues during his
    earlier release.

[50]

I have also concluded that the reviewability
    interest is stronger than asserted by the Crown, especially because of the
    Crowns concession in oral argument that the trial judge erred by failing to
    instruct the jury on provocation. The other grounds of appeal add further
    weight to the reviewability interest. I also note that the applicant has served
    three years of his sentence, and while the appeal will be perfected by September
    4, 2020, it will not be heard for some months after that.

[51]

When I weigh the enforceability and
    reviewability interests, I conclude that the reviewability interest overshadows
    the enforceability interest and therefore the applicants detention is
not necessary
in the public interest. When measured
    through the eyes of a reasonable member of the public who is thoughtful,
    dispassionate, informed of the circumstances, and respectful of societys
    fundamental values, public confidence in the administration of justice would be
    maintained if the applicant were to be released pending appeal. I
reach this conclusion because of
the attenuated
    public safety concerns, the absence of flight risks and the strong plan of
    supervision with a proven track record of success, the applicants advanced age
    and health challenges in
the context of
the
current
public health climate, and because the
    applicant has
already
served three years of
    his sentence and has a
clearly
arguable appeal.

C.

Disposition

[52]

I grant the application for bail pending appeal.

M.
    Jamal J.A.


