COURT OF APPEAL OF COUR DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 2-16-CA BETWEEN: ENTRE: DENNIS JAMES OLAND DENNIS JAMES OLAN APPELLANT APPELANT -and- 'et' HER MAJESTY THE QUEEN SA MAJESTE LA REINE RESPONDENT INTIMEE Motion heard by: Motion entendue par The Honourable Justice Richard l?honorable juge Richard Date of hearing: Date de l?audience February 12, 2016 1e 12 f?vrier 2016 Date of decision: Date de la d?cision February 17, 2016 le 17 f?vrier 2016 Counsel at hearing: Avocats a l?audience For the appellant: Pour l?appelant 2 Gary A. Miller, Q.C. Gary A. Miller, c.r. Alan D. Gold Alan D. Gold James R. McConnell James R. McConnell For the respondent: Pour l?intirn?e Jr- -- .I Gregory Gregory "Wm: it} Patrick R. Wilbur Patrick Wilbur FEB 3 7 2015 DECISION (a ?a I ET Ii. (Orally) that}. Canadian law distinguishes clearly between release pending trial and release pending the determination of an appeal. In the former case, s. 11(6) of the Canadian Charter of Rights and Freedoms provides that ?any person charged with an Offence has the right . not to be denied reasonable bail without just cause?. This is a right that is obviously rooted in a fundamental tenet of our criminal justice system: the presumption of innocence. However, the presumption of innocence is spent upon the conviction of an accused, and, as a result, there is no constitutional right to reasonable bail pending the determination of an appeal: R. v. Farinacci, [1993] OJ. No. 2627 (CA) (QL). Absent a constitutional right to bail pending appeal, there is nevertheless a legal basis upon which such bail is made available. The law in Canada provides that a person convicted of a criminal offence can apply to be released from custody pending the determination of his or her appeal: 5. 679 of the Criminal Code. No crime is exempt from the possible application of s. 679. The law allows a judge of the Court of Appeal to release an appellant from custody pending the determination of an appeal against conviction only if the appellant meets three conditions, all of which the appellant bears the onus of establishing. First, the appeal must be shown not to be frivolous. Second, the judge must be satis?ed the appellant would surrender him or herself into custody in accordance with the terms of any order of release. And third, the appellant must establish that his or her detention is not necessary in the public interest. The ?rst two of these preconditions are often much easier to establish than the third. That is certainly the case in the present matter. This is not to say that the third condition is insurmountable, even in the most serious of cases. Nevertheless, it is that condition that often forms the basis upon which release is refused. It is on the application of this condition that the present matter stands to be determined. On December 19, 2015, following a three-month trial, a jury convicted Dennis James Oland of the second-degree murder of his father, Richard Oland. On February 11, 2016, a judge of the Court of Queen?s Bench sentenced Mr. Oland to imprisonment for life without eligibility for parole until he has served at least ten years of his sentence. On January 20, 2016, Mr. Oland ?led a Notice of Appeal in which he asks the Court to quash the conviction and either direct a verdict of acquittal or order a new trial. The Notice of Appeal invokes numerous grounds under headings of unreasonableness, -3- misdirection, non-direction and inadmissible evidence. On that same date, Mr. Oland issued a Notice of Motion seeking his release pending the determination of the appeal. In support of his motion, M'r. Oland ?led a number of af?davits, including his own. Collectively, these af?davits establish that Mr. Oland was a suspect in his father?s murder from the outset of the police investigation. Despite this, more than two years and four months elapsed before Mr. Oland was arrested, and, during this interval, Mr. Oland?s travel away from New Brunswick was unimpeded. Yet, Mr. Oland did not abscond; after each excursion he returned to his community, where he has solid roots. Following his arrest, lVlr. Oland was released on bail with certain conditions, all of which he respected. His family is supportive of him and two family members are willing to act as surety on his behalf, for signi?cant amounts of money, knowing full well the responsibilities of being a surety and the potential for forfeiture of the amounts should Mr. Oland fail to comply with the conditions of his release. In addition, Mr. Oland has the support of numerous friends and members of his community who depose positively to his character and express having no fear or concern for the safety of anyone should Mr. Oland be released from custody pending the determination of his appeal. Applying the law to the evidentiary record ?led in support of Mr. Oland?s application for release pending the determination of his appeal, I conclude he has established the ?rst two of the three preconditions. The ?rst condition sets a low threshold. Something is frivolous if it does not have any serious purpose or value. That cannot be said of this appeal. While I make no assessment on their merits, I am satis?ed that at least some of the grounds Mr. Oland asks the Court of Appeal to consider are arguable. In fact, the Attorney General concedes this point. As for the second condition, counsel for the Attorney General, while not conceding, did not forcefully argue the point. She acknowledged that rare in New Brunswick is any incidence of an appellant absconding while on bail pending appeal. Notwithstanding the low incidence of absconding appellants, I recognize that the incentive for absconding is greater when one is released pending appeal than it is while -4- on bail awaiting trial. I agree with the reasoning in the following observation of Goodman J.A. in R. v. Baltovich, [1992] OJ. No. 2118 (C.A.) (QL): The position of the applicant has changed drastically since that order [releasing him pending trial] was made. At that time, he enjoyed the presumption of innocence. Evidence at trial indicated that he had expressed the opinion prior to trial that he would be acquitted and that there was no chance that anyone would ?nd the body. He was a well? educated young man without any prior criminal record and a member of a respected family, the members of which were prepared to be his sureties. In those circumstances, it would be a reasonable inference from the facts that he would appear for his trial. The burden of establishing that he would surrender himself is somewhat easier to satisfy in those circumstances than it is after a conviction. His present situation is now greatly different. The case for the prosecution has been shown to be suf?ciently strong that a jury has convicted him of murder. He no longer is presumed to be innocent. He has been sentenced to life imprisonment without eligibility for parole for a period of seventeen years, a prOSpect which might reasonably be expected to have a negative effect on a decision to surrender into custody. His position has changed from one of a young unattached male with a reasonable hope or expectation of being acquitted of the charges of murder to that of a young unattached male facing a term of imprisonment subject to a very real uncertainty with respect to the success of his appeal. [paras 7-8] Similarly, the situation has drastically changed for Mr. Oland. With the jury?s verdict, he went from a presumed innocent man to a convicted murderer facing the prOSpect of a incarceration. The incentive for absconding is indeed greater now than it was before. Nevertheless, this cannot?be ?an insurmountable obstacle? to release pending appeal, because, if it were, it would render illusory the availability of such bail though it is speci?cally provided for in the Criminal Code: R. v. Ru??olo, 2011 BCCA 243, [2011] B.C.J. No. 915 (C.A.) (QL), at para. 9, reversed (but not on this point) 2011 BCCA 359, [2011] B.C.J. No. 1596 (QL). I am satis?ed on the evidence before me that Mr. Oland would not abscond. I come to this conclusion on the grounds that Mr. Oland had many opportunities to abscond before he was arrested, yet each time he travelled out of the Province he returned; he respected all the conditions of the bail order pending his trial; his family [10] [11] [12] [13] and roots are in the local community of Rothesay; and, Mr. Oland is not the type who would imperil the assets of his sureties should any be ordered. Thus, this case stands to be determined on the third of the three preconditions to release pending appeal. The question is therefore whether Mr. Oland has established that his detention is not necessary in the public interest. In this context, public interest has two components: (1) public safety, and (2) public con?dence. The ?rst component encompasses any danger Mr. Oland might pose to himself, the public at large, or to the administration of justice if he were released. For the reasons expressed below, I am satis?ed there would be no such danger. Mr. Oland was tried before a court composed of a judge and jury. Thus, there are thirteen people whose opinions on what led to his conviction are relevant. It was the role of each to listen to all the testimony over almost three months, to consider all the evidence, to apply the law to the factual ?ndings and inferences, and to make the resulting determinations. Since the jury does not give reasons for its decision, we know only that, on the basis of the evidence adduced at trial and the law as explained to them, the twelve jurors were convinced beyond a reasonable doubt that Mr. Oland murdered his father. Nevertheless, certain express and implied factual implications arise from such a verdict. These factual implications, together with other factual ?ndings that were necessary to determine the proper sentence, are related in the judge?s sentencing decision. The sentencing judge held that Mr. Oland?s father was ?a very dif?cult man, who by his conduct and attitude created a long?standing, highly dysfunctional family dynamic, hallmarked by a extramarital relationship? (para. 22). Dennis Oland, on the other hand, is described as ?a loving/caring man; a man at the heart of his family and a contributing member of his community? (para. 18). He was, however, ?in desperate ?nancial straits (partly, at least, [of] his own doing given his extravagant spending) with nowhere else to turn except to his wealthy father; a situation badly complicated by the fact that Dennis had already signi?cantly compromised the security his father had expected to be given over the ancestral family home in exchange for the [14] [15] [16] [17] -6- earlier substantial loan he made to his son? (para. 22). On July 6, 2011, Dennis Oland visited his father at the latter?s of?ce. There, something happened, and ?Dennis Oland simply ?lost it?, ?snapped?, or ?exploded?, or whatever vernacular one wants to use to describe what occurred? (para. 24). In a ?t of ?pent-up rage?, Dennis Oland bludgeoned his father to death (para. 22). The verdict, and the jury?s unanimous recommendation that the minimum period of parole ineligibility be imposed, ?re?ects recognition of the long-standing dysfunctional family dynamic, the provocative character of the father, and the immense stress under which the otherwise law abiding son had to have been suffering? (para. 32). These factors support the sentencing judge?s conclusions that ?considering [Dennis Oland?s] age and a background devoid of evidence of past criminal behaviour, the circumstances of the offence are uniquely relational/situational speci?c? and that they combined to create ?a ?perfect storm? of sorts which led to such a horri?c, tragic end? (paras. 19 and 32). In light of the unique ?relational/situational speci?c? circumstances of this case, and considering Mr. Oland?s background as well as the numerous attestations to his otherwise good behaviour, I conclude he has established that he is no danger to the public at large. His love of family convinces me he is not a danger to himself. There being no suggestion that Mr. Oland would interfere with the administration of justice if he were to be released, I therefore conclude that the ?rst component of the public interest precondition has been met. I turn then to the last and most dif?cult part of the analysis: whether Mr. Oland has established that public con?dence in the administration of justice would not be undermined by his release pending the determination of his appeal. The importance of public con?dence in a country?s justice system cannot be overstated. One can easily postulate that, over the long term, the rule of law cannot be sustained without public con?dence in the administration of justice. As Chief Justice McLachlin, for a majority of the Supreme Court, explained in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 another case dealing with the provisions that govern bail pending [13] [19] -7- trial ?[p]ublic con?dence is essential to the proper functioning of the bail system and the justice system as a whole?, adding that ?public con?dence and the integrity of the rule of law are inextricably intertwined? (para. 27). Thus, she adopts the words of Hall .A. in R. v. MacDougal 1999 BCCA 509, [1999] B.C.J. No. 2034 (QL), that sustain the rule of law, a core value of our society, it is necessary to maintain public respect for the law and the courts? (para. 24). The ?rst step in determining that question is to establish the meaning of ?public?. Quite recently, the Supreme Court has settled the issue. In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Court considered the term in the context of bail pending trial. There are no principled reasons why the de?nition adopted in that case would be any different in the context of bail pending appeal. For a unanimous Court, Wagner J. points out that the word ?public? ?does not mean Canadians who tend to react impulsively? (para. 77). Rather, ?the public in question consists of reasonable, well-informed persons, and not overly emotional members of the community?. This is not to be equated with legal experts, since ?[t]he Canadian public even its most knowledgeable members cannot be expected to have the same level of legal knowledge as judges or lawyers? (para. 77). In the end, a member of the ?public? in this sense ?is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society?s fundamental valueslegal expert familiar with all the basic principles of the criminal justice system (para. 80). Justice Wagner warns against courts yielding to ?purely emotional public reactions or reactions that may be based on inadequate knowledge of the real circumstances of a case? (para. 82). Mr. Oland has ?led with the Court numerous af?davits of individuals who support his release. As did Rosenberg .A. in R. v. Baltovich, [2000] No. 987 (CA) (QL), I point out that ?this is only a very small segment of the public and that their opinion of the case may have been swayed by information that has not been tested in court? (para. 23). Moreover, their views are tainted by their personal knowledge of Mr. Oland and may not be the product of an objective assessment of all relevant factors. Thus, while these views are given some weight, they are not in any way determinative. [20] [21] I pause here to dispel any notion that, because case law and academic writing note that release pending appeal from a conviction for murder is ?rare? or that it is granted ?only in exceptional cirCumstances?, this constitutes a criterion in making a determination under s. 679. In my View, it does not. The rarity of release pending appeal in murder cases is but a consequence of the proper application of s. 679 and a function of the fact that, in the great majority of cases, the appellants have not been able to meet the burden of establishing one or more of the criteria. And the exceptional circumstances to which the cases refer are but illustrations of the type of cases where the appellants have met the dif?cult burden. I ?nd support for this view in St-Cloud, where Wagner J. points out that the bail pending trial provisions do ?not require exceptional or rare circumstances? and notes that these words are not contained in the governing legislative provision (para. 53). The same is true for s. 679. On this point, I adopt the words of Ryan .A. in R. v. Mapara, 2001 BCCA 508, [2001] B.C.J. No. 1774 (QL). The rare granting of bail pending determination of an appeal arises ?[n]ot because it is a principle that emerges from the cases, but because that will generally be the result when one balances the dictates of enforceability and reviewability found in the public interest aspect of s. 679(3) of the Code? (para. 38). The public confidence component of the public interest criterion must, in the end, be determined by weighing the two competing values Arbour .A. (as she then was) identi?ed in R. v. Farinacci: enforceability and reviewability. For the Court, she explains as follows: Section 679(3)(c) of the Criminal Code provides, in my opinion, a clear standard against which the correctness of any decision granting or denying bail pending appeal can be reviewed. The concerns re?ecting public interest, as expressed in the case law, relate both to the protectlon and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public con?dence in the administranm of justice. The "public interest" criterion in s. 679(3)(c) of the 'Code requires a judicial assessment of the need to review the conv1ct10n leading to imprisonment, in which case execution of the sentence may [22] -9- have to be temporarily suspended, and the need to respect the general rule of 1mmed1ate enforceability of judgments. Public con?dence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability. On the other hand, public con?dence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal ?eld where liberty is at stake. Public con?dence would be shaken, in my View, if a youthful ?rst offender, sentenced to a few months imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes. This same principle animates the civil law dealing with stays of judgments and orders pending appeal. It is a principle which vindicates the value of reviewability. There may have been a time when appellate delays were so short that bail pending appeal could safely be denied, save in exceptional circumstances, without rendering the appeal illusory. Such is no longer the case. In both civil and criminal cases, appellate court judges are often required to balance two competing principles of justice: reviewability and enforceability. Ideally, judgments should be reviewedlbefore they have been enforced. When this is not possible, an interim regime may need to be put in place which must be sensitive to a multitude of factors including the anticipated time required for the appeal to be decided and the possibility of irreparable and unjusti?able harm being done in the interval. This is largely what the public interest requires be considered in the determination of entitlement to bail pending appeal. This is what appellate judges do, sitting alone or on a review panel; this is what appellate judges have always understood their mandate to be. Any difference of opinion as to whether an individual applicant should or should not be granted bail merely re?ects a different judgment in the application of the legal standard to the facts. It does not suggest that there is no discernable standard to be applied. [paras 41?44] How then is a judge to determine whether the reviewability of a verdict outweighs its enforceability such that public con?dence would not be undermined by the temporary suspension of the verdict?s enforcement? The judge does so by looking at [23] [24] [25] [26] -10- the circumstances of the particular case and considering a number of factors, including the objective seriousness of the offence for which the appellant has been convicted, the degree of any violence used in the commission of the offence, the appellant?s personal pro?le including any criminal convictions, the length of the sentence, the time it might take for the appeal to be heard, and, to some degree, the strength of the grounds of appeal In the present case, the seriousness of the offence and the degree of violence are self?evident. Mr. Oland was convicted of second-degree murder in the brutal slaying of his father. He has been sentenced to imprisonment for life With no chance of parole until he has served 10 years of that sentence. Thus, there is no chance of the sentence being served before he gets an opportunity to challenge the conviction on appeal. In my View, these factors weigh in favour of enforceability. On the other hand, but for this conviction, there is nothing in Mr. Oland?s personal history that weighs in favour of enforceability. Counsel have advised that their best estimate of the time that will elapse before Mr. Oland?s appeal can be heard is eight months. This is because of the time it will take to produce a transcript of the three-month?long trial and the other pre-trial proceedings. While this delay is long, it is not inordinately long so as to factor heavily in the balance. AS for the strength of the grounds of appeal, there is no consensus on the appropriateness and value of such an evaluation in the context of a hearing under s. 679 of the Criminal Code. Some cases warn against making any determination on the grounds of appeal beyond a finding that the appeal is not frivolous. In Allen v. R., 2001 NFCA 44, [2001] NJ. No. 243 (QL), Wells C.J.N. concludes as follows on this point: Taking into account the foregoing authorities, and the other considerations, 1 am of the view that there is no clear or even persuaswe case to be made for the proposition that a judge or a panel of a court of appeal, considering judicial interim release pending appeal, should make a determination of the relative merits of the grounds of appeal in order to determine whether detention of the applicant "is not necessary in the public interest". 'l?here may be a case to be made for doing so in the [27] -11- unique circumstances of a particular case such as where there was an application to present convincing fresh evidence, or a witness recanted essential evidence or was found to have committed perjury in respect of such evidence, or there was some other clear error so patent as to make the case for entry of an acquittal or new trial virtually unavoidable. Such cases could, in my view, be said to amount to an "Overwhelming case on appeal" or even a "strong" - or "probable" case. However, that determination would not be the result of an adjudication of the relative legal merit of the challenge to the trial court's decision. Rather, it would come from the existence of other circumstances clearly recognizable as being such that it is not in the interest of justice that the convicted person should continue to serve a jail sentence while the matter is being resolved. In such circumstances, the appeal becomes less of a review of the legal soundness of the trial court's decision, than a process whereby a very probable wrong, established as such by factors other than legal merit discernible from the record, can most conveniently and effectively be corrected. It is only in the sense of determining whether or not the case on appeal falls into such a category that a judge or panel considering judicial interim release pending appeal should make a determination of the merits of a case on appeal, beyond determining that the grounds have suf?cient merit that they cannot be said to be frivolous. [para 51] On the other hand, in Mapara, the British Columbia Court of Appeal concluded otherwise. Ryan .A. explained ?the strength of the interest of reviewability must primarily be measured by examining the likelihood of the success of the appeal? and that ?[v]ery strong grounds will tip the scale in favour of reviewability? (para. 35). I note that in Baltovich (2000), Rosenberg J.A. proceeded to generally review the grounds of appeal and, in the end, held they were ?suf?ciently compelling? but his main reason for releasing the appellant appears to be that several years had elapsed between the trial decision and the time the appeal would be heard on account of the defence counsel pursuing ?dif?cult and complex matters of fresh evidence? (para. 42). A similar approach was taken in R. v. Ilina, 2003 MBCA 27, [2003] M.J. No. 41 (QL). That case stands apart from others in the sense that the grounds were not found to be very strong, yet release was ordered on other factors. Ru?olo is a case where release was also ordered despite weak grounds of appeal, but, in reversing the release order, the Court of Appeal stated that ?[t]he strength of the grounds of appeal is a signi?cant part of the analysis? (para. 25). [28] [29] [30] -12- In my View, this jurisprudential con?ict is attenuated if one follows the approach of Catzman J.A. in R. v. Morin, [1993] OJ. No. 267 (CA) (QL), where, after hearing counsel for the appellant argue the strength of several grounds of appeal and the Crown?s response, he limited his observation on this point to stating that he was simply ?prepared to record that [he] consider[ed] all of these grounds of appeal to be clearly arguable when the appeal comes to be presented on its merits?, indicating he was ?not prepared to record any more precise assessment of the strength of particular grounds of appeal or of the overall probability of success of the appeal? 3). The approach Wagner J.A. (as he then was) took in Delisle v. R., 2012 QCCA 1250, [2012] J.Q. no 6555 (QL) is consistent with the one in Morin, although Wagner .A. went a little further in his consideration of the grounds. Delisle involved a 77-year? old former judge of the Quebec Court of Appeal convicted of the ?rst degree murder of his disabled wife. Having concluded the appeal was not frivolous and that the appellant would not abscond, Wagner .A. turned to the public interest factor and in particular to the public con?dence component. He noted that the case against the appellant hinged primarily on circumstantial evidence and the testimony of expert witnesses. He summarily reviewed the grounds of appeal and found that, while all were of equal strength, several would likely be strongly debated before the Court of Appeal. Despite this, he refused to release the appellant. Heeding to the caution Wells C.J.N. expressed in Allen, yet recognizing the importance of the strength of the grounds of appeal in determining whether reviewability outweighs enforceability in determining the public interest component of the s. 679 analysis, I choose to proceed as did Catzman .A. in Marin. Having considered the grounds of appeal and the arguments made in support, well as Crown counsel?s response, I am prepared to say that some of the grounds will be clearly arguable when the appeal comes to be presented on its merits. I am not prepared to say more on any particular ground, although I point out that none of the grounds fall into the category of the unique circumstances contemplated by Wells C.J.N, such as where there was an application to present convincing fresh evidence, or where a Witness has [31] [32] -13- recanted essential ev1dence or ?some other clear error so patent as to make the case for entry of an acquittal or new trial virtually unavoidable? (para. 51). Having made these determinations, it falls on me to apply the law to the facts and exercise my best judgment as to whether Mr. Oland has established that public con?dence would not be undermined by his release pending appeal. As stated above, the member of the public involved is as described in St?Cloud: ?a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society?s fundamental valueslegal expert familiar with all the basic principles of the criminal justice system (para. 80). While this member of the public may not be a legal expert, he or she would know that Mr. Oland stands before this Court as a convicted murderer and not as an innocent man. The reasonable member of the public would have con?dence in one of the fundamental institutions of our criminal justice system: the jury trial. Although the reasonable member of the public would appreciate that verdicts can sometimes be reversed or set aside, they would consider the criminal justice system to suffer if jury verdicts are not treated with great respect. That person would know that the jury which delivered the verdict convicting Mr. Oland of second-degree murder is presumed to have been composed of reasonable people acting reasonably after having heard all of the evidence adduced over three months of trial. In the end, the reasonable member of the public, looking at this dispassionately, would balance the fact that the offence for which Mr. Oland was convicted ranks among the most serious in the Criminal Code, as well as the brutality with which the offence was committed and the trial judge?s imposition of a life sentence, against the other factors that weigh in favour of Mr. Oland?s release. In my respectful view, that reasonable member of the public would ?nd that, although the grounds of appeal may be clearly arguable, none fall in the category of the unique circumstances that would virtually assure a new trial or an acquittal. In the end, I am forced to conclude that knowing all this, should Mr. Oland be released in these circumstances, the con?dence of the reasonable member of the public in the administration of criminal justice would be undermined. -14- [33] For these reasons, I ?nd that Mr. Oland has not established that his detention is not necessary in the public interest. His motion is therefore dismissed. Since these reasons were delivered Orally, I order this decision be released initially in the English language with the French version to follow in due course. if i J. C. MARC Court of Appeal of New Brunswick