Court of Appeal Decision of the Week

Bail Pending Appeal Approved in First Degree Murder Case

Case: R. v. Papasotiriou, 2018 ONCA 719

Keywords: Bail Pending Appeal; First Degree Murder; Public Safety; R. v. Oland, 2017 SCC 17 (CanLII):

Synopsis:

The Applicant, Mr. Papasotiriou is married to Mr. Lanteigne. Mr. Papasotiriou and Mr. Ivezic have an affair. While Mr. Papasotiriou is away in Greece, Mr. Lanteigne is beaten to death in the foyer of their Toronto matrimonial home. The case against Mr. Papasotiriou is completely circumstantial. The Crown’s theory: Mr. Papasotiriou encouraged Mr. Ivezic to kill Mr. Lanteigne, and assisted him by ensuring Mr. Lanteigne arrived home at a certain time, where Mr. Ivezic lay in wait.

Following a lengthy trial, the jury deliberates for six days before delivering its verdicts. They ask no questions during deliberations. Mr. Papasotiriou and Mr. Ivezic are found guilty of first degree murder and sentenced to life imprisonment with no parole eligibility for 25 years. Mr. Papasotiriou seeks bail pending his appeal.

Counsel for Mr. Papasotiriou proposes a stringent plan of supervision, including:

  • $500,000 recognizance;
  • strict house arrest with very narrow exceptions; and
  • GPS ankle bracelet to be monitored by Recovery Science Corporation (funded by Mr. Papasotiriou, not the government).

The Court of Appeal allows Mr. Papasotiriou’s bail pending appeal application.

Importance:

This decision is significant because it clarifies the application of criteria for bail pending appeal of a conviction as set out in s. 679(3) of the Criminal Code. In order to obtain bail, an applicant must establish three things: (1) the appeal is not frivolous; (2) that they will surrender into custody in accordance with the terms of any bail order; and (3) that detention is not necessary “in the public interest.”

As noted in R. v. Oland, 2017 SCC 17 (CanLII), the “not frivolous” test is a “…very low bar”. The Court of Appeal found that Mr. Papasotiriou’s appeal met the standard.

As regards his surrender into custody, the Court of Appeal addressed the concern that, since Greece is not required to extradite its citizens, Mr. Papasotiriou might flee there. For the Court, “any lingering concerns about flight” could be answered by Mr. Papasotiriou’s history of bail compliance and the strict release plan he proposed. (See para. 31).

Moreover, citing R. v. Forcillo, 2016 ONCA 606 (CanLII), at para. 19, R. v. Matteo, 2016 QCCA 2046 (CanLII), para. 13, and R. v. Xanthoudakis, 2016 QCCA 1809 (CanLII), at para. 9, the Court of Appeal noted Mr. Papasotiriou’s “flawless” pre-trial bail compliance was “…an important factor that typically weighs in favour of release”. (See para. 29).

With respect to the public interest requirement contained at s. 679(3)(c) of the Criminal Code, the Court of Appeal noted the section entailed a need to ensure public safety and public confidence in the administration of justice. (See para. 33). At para. 43, the Court of Appeal referred to the framework for applying “public safety” as set out in R. v. Oland, 2017 SCC 17 (CanLII):

The “public interest” requires that I balance all of these factors – the circumstances of the applicant, the nature of the offence, the apparent strength of the appeal, and the time it will take to argue the appeal – to determine whether public confidence in the administration of justice would be undermined by Mr. Papasotiriou’s release on bail. This is no easy task when the offence is as serious and as disturbing as this one. This balancing is explained in the following passage from Oland, in which Moldaver J. says, at paras. 49-51:

In the final analysis, there is no precise formula that can be applied to resolve the balance between enforceability and reviewability. A qualitative and contextual assessment is required. In this regard, I would reject a categorical approach to murder or other serious offences, as proposed by certain interveners. Instead, the principles that I have discussed should be applied uniformly.

That said, where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak…

On the other hand, where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the “not frivolous” criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences. [Emphasis added. Citations omitted.]

As regards the balance between “enforceability” and “reviewability”, the Court of Appeal noted that, “In the appellate sphere, the focus is on the strength of the grounds of appeal”. (See para. 38). In this case, the Court of Appeal noted there was a credible argument that the guilty verdict, which was based on circumstantial evidence, was “…unreasonable and could not have been reached without impermissible speculation: s. 686(1)(a)(i).” (See para. 39).

With respect to public confidence in the administration of justice, the Court of Appeal noted the standard is that of a reasonable member of the public, defined in Oland at para. 47 and R. v. St-Cloud, 2015 SCC 27 (CanLII) at paras. 74-80 as follows: “This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values.” (See para. 45).

In this particular case, the Court of Appeal noted that, since Mr. Papasotiriou was not being “turned loose” on society, but rather carefully monitored in accordance with a stringent release plan, a reasonable member of the public would accept his release on bail as consistent with the proper functioning of the Canadian justice system. As such, the application for bail pending appeal was allowed. (See para. 47).

Counsel for the Applicant: James Lockyer (Lockyer Campbell Posner, Toronto)

Counsel for the Respondent: Frank Au (Ministry of the Attorney General (ON), Toronto)

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Posted: Wednesday, September 05, 2018