



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cole, 2020 ONCA 713

DATE: 20201106

DOCKET: M51837 (C63802)

Roberts
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Margaret
    Lee Cole

Appellant (Applicant)

Lisa Jørgensen, for the applicant

John Patton, for the respondent

Heard: October 16, 2020 by videoconference

REASONS
    FOR DECISION

Overview

[1]

On March 5, 2015, the applicant was convicted by
    a jury, presided over by Justice Guy P. Di Tomaso of the Superior Court of
    Justice, of the first degree murder of Richard Humble. On March 24, 2015, the
    trial judge imposed the mandatory sentence of life imprisonment without parole
    eligibility for 25 years.

[2]

The applicant seeks interim judicial release
    under s. 679(3) of the
Criminal Code
, R.S.C. 1985, c. C-46, pending
    the hearing of her appeal, which is now scheduled for January 14, 2021. Until
    this application, she had not sought release pending her trial nor following
    her conviction and sentencing. Her concerns about the risk of contracting
    COVID-19 while incarcerated in what she describes as unhealthy and unsafe
    conditions provide the main impetus for her present application. She submits
    that she has met all the criteria under s. 679(3) of the
Criminal Code
:
    she has grounds of appeal that are not frivolous; she will surrender herself
    into custody when required; she proposes a strong release plan; her detention
    is not necessary in the public interest; and there is no substantial likelihood
    of a risk to public safety.

[3]

While conceding for the purposes of this
    application that the appeal is not frivolous, the respondent submits that the
    applicant has failed to establish that her detention is not necessary in the
    public interest. Specifically, the respondent maintains that the applicant is a
    flight risk, she poses a real risk to public safety, her grounds of appeal are
    frail or exceptionally weak, and her release would shatter public
    confidence in the administration of justice. Moreover, as the respondent
    argues, the evidentiary record on this application does not support the
    applicants COVID-19 concerns.

The Public Interest Criterion

[4]

It is well established that, following her
    conviction, the applicant lost the presumption of innocence and must therefore
    demonstrate that she meets the criteria for release pending the determination
    of her appeal: see
R. v. Farinacci
(1993), 109 D.L.R. (4th) 97 (Ont.
    C.A.), at p. 102;
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at
    paras. 34-35. This application turns on the third criterion under
    s. 679(3) of the
Criminal Code
, namely, whether the applicant has
    established that her detention is not necessary in the public interest. As I
    shall explain, the applicant has not met this onus.

[5]

The public interest criterion of s. 679(3)(c) of
    the
Criminal Code
has two components: public safety and public
    confidence in the administration of justice:
Oland
, at para. 23. The
    public confidence consideration requires a balancing between the respective
    public interests in the enforceability and reviewability of the judgment under
    appeal, having regard to such factors as the seriousness of the offence, the
    strength of the grounds of appeal, the length of the sentence, and any residual
    public safety or flight concerns:
Oland
, at paras. 47-51. This balancing
    must be done while keeping in mind that public confidence is to be measured
    through the eyes of a reasonable member of the public who is thoughtful,
    dispassionate, [and] informed:
Oland
, at para. 47.

[6]

There is no issue that the applicant has been convicted
    of first degree murder, which is the most serious offence in the
Criminal
    Code
. As noted by the Supreme Court in
Oland
, this factor alone
    is not determinative, especially if the applicant has strong grounds of appeal:
Oland
, at paras. 50-51. However, unlike in
Oland
, where Mr.
    Olands grounds of appeal were recognized as clearly arguable, that is not
    the case here:
Oland
, at paras. 68-69. In my opinion, as
    I explain below, while arguable, the applicants grounds of appeal do not
    clearly surpass the not frivolous threshold, the latter recognized as being a
    very low threshold:
Oland
, at paras. 20, 44.

[7]

This application can be further distinguished
    from
Oland
. Notably, Mr. Oland had family members prepared to act as
    sureties and risk substantial sums of money:
Oland
, at para. 10.
    Moreover, Mr. Oland was convicted of second degree murder and his crime
    gravitated more toward the offence of manslaughter, thereby lessen[ing] [his]
    degree of moral blameworthiness:
Oland
, at para. 68. Therefore, Mr.
    Oland was recognized as an ideal candidate for bail:
Oland
, at para.
    65. In contrast, the applicant has no dedicated sureties and only pledged
    $2,500 if she failed to comply with the release order. Finally, the applicant
    was convicted of first degree murder. The applicants situation is therefore
    noticeably different from
Oland
.

The Grounds of Appeal

[8]

For the purposes of this application, the
    applicant focussed on two grounds of appeal:

1.

The trial judge erred in admitting forged
    letters on the applicants former solicitors letterhead as similar fact
    evidence and further erred by failing to give an appropriate jury instruction;
    and

2.

The trial judge erred in his jury instruction
    concerning the fabrication of the applicants alibi.

[9]

In assessing the relative strength of the
    applicants grounds of appeal, I am mindful that the applicant is not required
    to persuade me on a balance of probabilities that she will prevail on appeal.
    Rather,
Oland
, at para. 44, instructs the following:

In conducting a more pointed assessment of the
    strength of an appeal, appellate judges will examine the grounds identified in
    the notice of appeal with an eye to their general legal plausibility and their
    foundation in the record. For purposes of this assessment, they will look to
    see if the grounds of appeal clearly surpass the minimal standard required to
    meet the not frivolous criterion.

[10]

With respect to the first ground of appeal, the
    applicant is faced with a difficult task, as there was ample evidence to show
    that the letters were forged, and that the applicant deceitfully forged these
    letters to postpone the payment of her debt to her brother and sister-in-law.
    The applicants trial counsel conceded the relevance and materiality of the
    forged letter evidence for the Crowns case, but trial counsel argued that its
    prejudicial effect significantly overcame its probative value. Nor did trial
    counsel object to the jury instruction given by the trial judge that followed
    the model jury instruction found in David Watt,
Watts Manual of Criminal
    Jury Instructions
, 2nd ed. (Toronto: Carswell, 2015), at pp. 350-51 (Final
    28-A). Moreover, as the respondent submits, with the assistance and
    concurrence of counsel, the trial judge appropriately restrained the use of
    the [forged] letters by providing correct limiting instructions to the jury.
    The trial judges weighing of the relevant factors to conclude that the letters
    had substantial probative value that outweighed any prejudicial effect is
    entitled to appellate deference.

[11]

The applicants second ground of appeal presents
    similar difficulties. Again, there was ample independent evidence of the
    applicants fabrication of her alibi that she was not near the victims house
    at the relevant time, including the false statements that she gave voluntarily
    to police before she was a suspect. The trial judge again followed the standard
    language from the model jury instruction outlining the difference between not
    believing the applicant and finding fabrication as circumstantial evidence of
    her guilt: see
Watts Manual of Criminal Jury Instructions
, at pp.
    343-44 (Final 27-B). There was no objection to it at trial.

The Seriousness of the Offence

[12]

Along with the weakness of the applicants
    grounds of appeal, the seriousness and particularly egregious aspects of the
    offence for which she was convicted, and the concomitant serious public safety
    concerns that arise, tilt the balancing of the respective public interests
    firmly towards enforceability.

[13]

As I have already mentioned, the applicant was
    convicted of first degree murder. Her victim was very vulnerable and elderly,
    who was recovering from a heart attack and knee surgery. She was acting as his
    caregiver. By virtue of her position and proximity to the victim, she gained
    access to his bank account and withdrew a large sum of money with cheques she
    had forged. She applied his signature to a forged will that left her a
    significant bequest. She drugged him before she set his house ablaze and left
    him to die. The jurys rejection of the applicants alibi and the evidence of
    the applicants previous forgery further support concerns with the applicants
    probity and trustworthiness.

The Release Plan

[14]

Given this constellation of factors, the
    applicants release plan is not adequate to ensure that the serious risk she
    poses to public safety is appropriately diminished.

[15]

While I have no doubt of the sincerity of the
    Elizabeth Fry Society to do their best to monitor the applicant, the practical
    reality is that because of the COVID-19 pandemic, they must house the applicant
    in a hotel where security will be less robust than the institution where she is
    at present incarcerated. It is not at all clear how the applicants movements
    will be restricted or monitored, other than as the letter from the Elizabeth
    Fry Society states there will be four employees at all times with clear view
    of hallways, room doors and the parking lot. However, for example: Will
    someone be outside her room? Will her room be locked? Can she come and go as
    she wishes, or will she always be accompanied? None of these questions were
    answered in the materials provided. Nor am I satisfied that the electronic
    bracelet monitoring attenuates the risk. As Ms. Jørgensen frankly and fairly
    acknowledged in oral submissions, if the bracelet is disabled and removed,
    there could be time for the applicant to leave the premises before the police
    are alerted to her departure.

[16]

I also note that given the length of the
    applicants sentence and the imminence of the hearing of her appeal in January
    2021, her appeal will not be moot because it will have been heard before she
    has completed a substantial portion of her sentence:
Oland
, at para.
    48.

The COVID-19 Pandemic

[17]

Lastly, I turn to the question and impact of the
    COVID-19 pandemic raised by the applicant. It is common ground that the
    COVID-19 pandemic is a factor to be considered on an application for judicial
    interim release pending appeal, though the weight given to this factor depends
    on the particularities of the case:
R. v. McRae
, 2020 ONCA 498, at
    para. 48.

[18]

However, I am not persuaded that it is a factor
    that carries much weight here because the evidence falls short of showing any
    serious or immediate risk to the applicant. The information gleaned from
    Correctional Service Canadas Inmate COVID-19 testing in federal correction
    institutions document, dated October 7, 2020, which was put forward by the
    respondent, indicates that while there were eight positive COVID-19 tests of
    inmates at her facility, all of them have since recovered. More importantly,
    there are no active COVID-19 cases in the institution where the applicant
    resides. I also accept that there is a rigorous cleaning protocol in place
    that, as the results appear to show, attenuates the spreading of the virus. I
    have no comparable evidence concerning the state of the hotel where the
    applicant proposed to reside on release. The risk of exposure to the applicant
    is also lessened by the hearing of her appeal in just over two months.

[19]

For these reasons, I am of the view that the
    public interest in the enforceability of the judgment under appeal outweighs
    the public interest in its reviewability, and that a reasonable member of the
    publics confidence in the administration of justice would be undermined by the
    applicants release on bail pending appeal.

Disposition

[20]

The application is therefore dismissed.

L.B.
    Roberts J.A.


