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Milligan’s Criminal Law Advisor | Gladue Principles

Milligan’s Criminal Law Advisor | Gladue Principles

"Gladue" principles apply to bail applications before Ontario Court of Appeal

Milligan’s Criminal Law Advisor

By Jeffrey Milligan

Madam Justice Epstein of the Ontario Court of Appeal recently allowed an application under s. 679(7.1) of the Criminal Code and released an accused on bail pending a new trial that had been ordered by the Court of Appeal for charges that included second-degree murder. The application was the first time he had sought bail since his arrest; he had been in custody for nearly seven years.

Mr Hope went to a child’s birthday party in Windsor, Ontario, on 4 October 2009 with a loaded handgun that had been unlawfully brought into the country. He shot another guest at the party in the back on a residential street just outside the party.

He was arrested in early 2010 and charged with second-degree murder, with using a firearm while committing an indictable offence and with possession of a prohibited weapon without a licence.

On 8 March 2013, Mr Hope was convicted by a jury for the charges of second-degree murder and using a firearm in the commission of an indictable offence and he pleaded guilty to possession of a prohibited weapon without a licence. The main issue at the trial was self-defence and the jury rejected his defence.

In August 2016, his appeal was allowed and the Court of Appeal ordered a new trial on the offences for which the jury convicted him. The panel held that the jury was not properly instructed on his defence of self-defence.

The new trial, Justice Epstein was told, would likely take a year or more to be heard.

Under s. 522(2) of the Criminal Code, the applicant bears the onus of showing cause why his or her detention is not justified under the grounds set out in s. 515(10). Madam Justice Epstein was persuaded that he met that onus and ordered his release on a surety bail. She made two important points at the outset of her analysis as to whether he should be released.

First, he is entitled to the presumption of innocence. Second, Mr Hope is of aboriginal descent and Gladue principles apply to bail hearings (see: R. v. Robinson, 2009 ONCA 205, 2009 CarswellOnt 1186, R. v. McCrady, 2016 ONSC 1591, 2016 CarswellOnt 6230 and R. v. Spence, 2015 ONSC 1692, 2015 CarswellOnt 4981) and in contexts other than sentencing hearings. Thus, Gladue principles should inform her decision in the application for bail.

Mr Hope demonstrated that he was not a flight risk owing to his ties to the community and his support from friends and family in the community. As Epstein J.A. put it, at para. 29, he had “several reputable friends and family members” offered to supervise him as sureties. Thus, it was not necessary that he be detained on the primary grounds.

As regards the secondary grounds, Mr Hope had, as Justice Epstein put it, at para. 22, “no relevant criminal record” prior to his convictions that the Court of Appeal set aside. He had been, to quote her at para. 23, “a model prisoner”. Further, the Crown’s case was, as she put it at para. 16, “not overwhelming”. The record contained evidence capable of supporting a defence of self-defence. Moreover, as the Crown fairly conceded, the case for the prosecution is, to quote her again at para. 16, “ . . . weaker given the passage of time”. Thus, his detention was not necessary on the secondary grounds.

She also held that detention was not necessary in the public interest. In view of the presumption of innocence, the strong support he had from prospective sureties, and the almost seven years he had spent behind bars, “the public’s confidence in the administration of justice would be undermined rather than advanced by detaining Mr Hope pending his trial”.

The Crown raised a concern that because the sureties lived on a reserve, by virtue of s. 69 of the Indian Act, their property was not subject to a charge other than by an aboriginal person or a band. Epstein J.A. did not accept his submission. First, she held that the protection afforded to people of aboriginal descent should not interfere with the right to be released in appropriate circumstances from detention. The “real point”, as she put it at para. 33, was that the prospective sureties’ offer to pledge the equity in their homes expressed their confidence in their ability to supervise Mr Hope and in his (Mr Hope’s) amenability to their supervision.

R. v. Hope, 2016 ONCA 648, 2016 CarswellOnt 13574
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