2014 QCCA 2190, 2014 QCCA 2190

Unofficial English Translation R. c. Turcotte 2014 QCCA 2190 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005723-141 (700-01-083996-093) DATE: December 3, 2014 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. GUY GAGNON, J.A. MARTIN VAUCLAIR, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. GUY TURCOTTE RESPONDENT – Accused JUDGMENT [ 1 ] The Court has before it an application for review [1] of a judgment rendered on September 12, 2014, by the Superior Court, District of Saint-Jérôme (the Honourable Mr.

Justice André Vincent), [2] which ordered the interim release of the respondent in addition to a number of conditions and prohibitions intended to restrict his freedom and ensure his presence at trial, [3] in compliance with the applicable rules. [ 2 ] The trial judge had to determine whether the respondent met the conditions set out in paragraphs 515(10)( a )( b )(

c) Cr. C ., which state that the detention of an accused in custody is justified in only one or more of the following situations: the detention is necessary to ensure his or her attendance in court, for the protection or safety of the public, or to maintain confidence in the administration of justice. [4] [ 3 ] The appellant argues that the trial judge erred in law in his

interpretation and application of paragraph 515(10)( c ). This provision sets out four criteria justifying the detention of an accused in custody to maintain public confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, and the fact that the accused is liable for a potentially lengthy term of imprisonment. *** [ 4 ] The bail hearing lasted two days. Counsel for the respondent called witnesses to discharge his burden under paragraphs 515(10) ( a )( b )(

c) Cr. C . and, in particular, to establish the absence of risk of his absconding and not appearing at trial and the fact that his detention is not necessary for the protection or safety of the public. The appellant has filed no evidence to counter the respondent's. [ 5 ] The trial judge assessed the testimony and concluded that the detention of the respondent was not necessary to ensure his presence at trial or for the safety or protection of the public. [ 6 ] The appellant does not challenge this finding in its application for review.

This choice has an unavoidable consequence: the Court, like the appellant, is bound by this conclusion, especially since the appellant has not adduced the evidence filed at first instance. The Court must therefore accept that the respondent's detention is not necessary for the safety or protection of the public or to ensure his appearance at trial. [ 7 ] Only the criterion under paragraph 515(10)( c ), which requires the detention of the respondent to be necessary to maintain public confidence in the administration of justice, remains to be considered. *** [ 8 ] The background of the case is well known.

The respondent was charged with two first degree murders for causing the deaths of his two children. On July 5, 2011, a jury rendered a verdict of not criminally responsible on account of mental disorder. The appellant

appealed the verdict, and on November 13, 2013, this Court ordered a new trial. [5] [ 9 ] To follow the timeline back, the respondent was arrested on February 26, 2009, at his home in Piedmont. Shortly after his arrest, he was transferred to the Institut Phlippe-Pinel to undergo psychiatric tests. He remained under detention and no application for release was filed. [ 10 ] On July 5, 2011, a verdict of not criminally responsible on account of mental disorder was rendered by a jury. Pursuant to

Part XX.1 of the Criminal Code , the Review Board must assess the respondent's mental state and the risk he may represent to society. [ 11 ] On June 4, 2012, the Review Board rendered its first decision. It ordered the respondent to remain in detention at the Institut Philippe-Pinel because on that date, he represented a significant risk to society. [ 12 ] On December 12, 2012, the Review Board reassessed the respondent's state. It found that the safety of the public no longer required that he be held in a hospital institution.

It therefore granted bail under certain conditions and allowed him to continue to receive the care he required as an out-patient. [ 13 ] On November 13, 2013, the day on which the Court of Appeal rendered its judgment ordering a new trial, the respondent submitted himself to custody. He remained in detention from that date until the judgment of the Superior Court, which the appellant now asks the Court to review. *** [ 14 ] The trial judge decided that the respondent's detention was not justified by the maintenance of public confidence in the administration of justice.

He took into account the circumstances that led to the charges, namely, the extremely violent death of his two children against a backdrop of family conflict including the end of the parents' relationship. More specifically, the judge considered the four factors enumerated in paragraph 515(10)(

c) Cr.

C . and made a decision in relation to each of them: - The apparent strength of the prosecution’s case : the respondent admits that he delivered the stab wounds that caused the death of his children; his guilt, however, is not established because the defences he raises are serious. - The gravity of the offence : the gravity is recognized, because first degree murder is the most serious crime there is. - The circumstances of the crimes : the judge referred to the circumstances as described by the Court of Appeal in its judgment of November 13, 2013, [6] adding that [ translation ] "it is clear that the actions committed were senseless...". - The fact that the respondent is liable for a lengthy term of imprisonment : the sentence for first degree murder is life imprisonment. [ 15 ] The weighing of these different factors led the judge to conclude that a reasonably informed public would not lose confidence in the administration of justice if the respondent were released pending his trial and the verdict of a jury. *** [ 16 ] In support of its application for review, the appellant alleges that the trial judge committed three errors of law. [ 17 ] First, he erred in his

interpretation of the criterion of the need to maintain public confidence in the administration of justice by placing the reasonable person standard above what is statutorily required and by taking into account the fact that the trial is still far in the future. [ 18 ] Second, the judge erred in his consideration of the criterion of the fact that the prosecution appears to have a strong case, since the respondent admits to causing the death of his two children. [ 19 ] Third, the judge erred with respect to the scope of the respondent's defences and assigned excessive weight to those that may be raised at the second trial, in light of the judgment of the Court. *** 1 - The applicable standard of review [ 20 ] Before beginning our consideration of the appellant's grounds, we must first define the standard of intervention applicable to an appellate court reviewing a release under subsection 680(1) Cr.

C .:

(1) Une décision rendue par un juge en vertu de l’article 522 ou des paragraphes 524(4) ou (5) ou une décision rendue par un juge de la cour d’appel en vertu des articles 261 ou 679 peut, sur l’ordre du juge en chef ou du juge en chef suppléant de la cour d’appel, faire l’objet d’une révision par ce tribunal et celui-ci peut, s’il ne confirme pas la décision :

a) ou bien modifier la décision;

b) ou bien substituer à cette décision telle autre décision qui, à son avis, aurait dû être rendue . [Emphasis added] 680.

(1) A decision made by a judge under

section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under

section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (

a) vary the decision; or (

b) substitute such other decision as, in its opinion, should have been made . [ 21 ] This is a timely issue. Last November 6, the Supreme Court heard an appeal concerning the standard of judicial review in the context of the review of a judgment on release in R. v. St-Cloud . [7] The case is under deliberation. [ 22 ] Canadian case law is divided on the issue.

Authors Penney, Rondinelli and Stribopoulos [8] as well as Gary Trotter [9] summarize the various approaches as follows. [ 23 ] The first approach views the review of a judgment on release as an actual appeal, requiring the demonstration of an error of principle and admitting new evidence only where the criteria defined in the case law are met. [ 24 ] The second approach deals with review as a de novo hearing. [10] The particulars of this approach are based on, inter alia , the purpose of the statute, which seeks to encourage granting bail as much as possible, the fact that the parties may adduce new evidence, and the wording of the statute, to authorize the reviewing judge to substitute his or her decision for that of the trial judge. [11] [ 25 ] The third approach sees the application for review as a hybrid measure, whereby the case is reviewed in light of new evidence, if any, and a decision is made as to whether there should be a different conclusion because of an error in principle, a substantial error of fact, or an important change revealed by the new evidence. [ 26 ] In the opinion of the authors, none of these three approaches is entirely satisfying, and a review should be authorized where there has been a material change in circumstances or where the reviewing judge is persuaded that the ends of justice compel a different outcome. [ 27 ] Here is an excerpt from Criminal Procedure in Canada outlining the three approaches used by Canadian courts. 6.103 The standard to be applied to bail reviews is the source of some controversy.

This stems from an unfortunate lack of clarity in the relevant legislation and the fact that bail issues rarely persist all the way to the Supreme Court of Canada. For reviews by the superior court, the Code instructs the judge to either “dismiss the application”, or where either the accused or the prosecutor “show cause, allow the application, vacate the order previously made by the justice and make any other order provided for in

section 515 that he considers is warranted”. The provision governing reviews by the court of appeal is similarly bereft of meaningful guidance. 6.104 Consequently, lower courts have largely been left on their own in deciding on the appropriate standard of review. Not surprisingly, divergent approaches have emerged.

At one end of the spectrum, some courts have treated bail reviews like ordinary appeals, demanding an identifiable error in principle in the original decision before intervening and only permitting the filing of new material when the stringent rules governing the admission of fresh evidence on appeal, are satisfied. At the other end of the spectrum, some courts have envisioned a de novo hearing.

On this view, no deference is given to the initial determination and the reviewing court is free to substitute its decision for that of the original justice. 6.105 The approach that has garnered the most jurisprudential support is a middle ground between these extremes. On this view, a bail review is neither an ordinary appeal nor a hearing de novo . Rather it is a hybrid between the two.

In short, the reviewing judge assesses the record (as amplified by any additional evidence) to decide whether a different order is warranted because of a legal or factual error or material change of circumstances. 6.106 We share Justice Trotter's view that none of the above approaches is entirely satisfactory. He argues that when the permissive language in the relevant sections of the Code is read in light of

section 11(

e) Charter right, a better approach on review would be to vacate an earlier order: “1. on the basis of a material change of circumstances; and/or, 2. by persuading the reviewing judge that a different result ought to have been reached by the justice. In our view, except when it comes to credibility assessments, deference toward the initial bail decision is an idea that is difficult to reconcile with the accused's constitutional right “not to be denied reasonable bail without just cause”. [12] [ 28 ] In Quebec, after some hesitation, this Court opted for the hybrid standard.

It accords greater deference to the trial judge's findings of fact and limits interventions to situations where an error of law was committed, where clear errors in the weighing of the evidence occurred, where new and significant factual evidence must be considered, and finally, where the trial judge's discretion was not exercised judiciously. [ 29 ] In R. v. Coates , [13] the Court stated at the outset that it owed deference to the trial judge's findings of fact even when reviewing a decision under

section 680 of the Code : [ translation ] 20 It should also be noted that, save in the case of major error, the Court must not substitute its own opinion for that of the trial

judge with respect to the assessment of the evidence, since the trial judge is always better placed than the appellate court. A Côté J. stated in R. v. M.J. : [ translation ] [27] Although

section 680 Cr. C. allows this Court to substitute the trial judgment with the decision that, in its opinion, should have been made, it must guard against capriciously substituting its own assessment of the evidence for that of the trial judge, who had the benefit of hearing six witnesses and assessing their respective testimony. [14] [ 30 ] The Court then expanded on its thoughts, describing the standard put forward in R. v. St-Hilaire : [ translation ] 23 The standard of review applicable to an examination under

section 680 Cr. C. was outlined by Gendreau J.A. in R. v. St-Hilaire as follows: [ translation ] 12 A judge hearing an application for release enjoys broad discretion, and this Court will intervene only where an error of law has been committed, where new and significant facts have emerged that were unknown or not taken into consideration and finally, if the judge has not exercised his discretion judicially . [15] [Emphasis added.] [ 31 ] The Court then drew its own conclusion, as follows: [ translation ] 26 The review procedure is somewhere between a traditional appeal and a de novo hearing.

The Court must not usurp the discretionary power that is first conferred on the trial judge, and it must respect the trial judge's conclusions. It may, however, be more flexible with respect to new evidence, for example, or events that have taken place since the impugned decision.

In short, even if it is not strictly speaking an appeal but a review proceeding that authorizes the Court to "substitute such other decision as, in its opinion, should have been made", considerable deference is owed. [16] [ 32 ] These principles, as set out in Coates , will inform the Court's analysis of the appellant's grounds. 2 - The reasonable person [ 33 ] The appellant argues that the trial judge erred in law by elevating the standard of the reasonable person to that of a reasonable jurist.

In its submissions, it writes: [ translation ] If, as Vincent and Martin JJ. understand it, the reasonable person can only be one who is informed of the contents of the Charter , the provisions of the Criminal Code , and the teachings of the Supreme Court, the test is no longer that of the reasonable person but of the reasonable lawyer. We submit that this

interpretation is erroneous and departs markedly from the principles set out by the Supreme Court in Hall , which states: “... the reasonable person making this assessment must be one properly informed about ‘the philosophy of the legislative provisions, Charter values and the actual circumstances of the case’”...

There is an important nuance between requiring a reasonable person to be informed about the content of the Charter of Rights , the provisions of the Criminal Code , and the teachings of the Supreme Court on the one hand, and requiring that the person be aware of the philosophy behind these provisions. [ 34 ] The appellant is wrong. [ 35 ] The trial judge defined the reasonable person by relying on several judgments of this Court [17] and on the judgment rendered by the reviewing judge in St-Cloud, supra .

These judgments all refer to an "informed public", that is, a public that is able to form an enlightened opinion, in full awareness of the facts of the case and the applicable law, and that is not motivated by passion but by reason. [ 36 ] No one expects that the public referred to in the applicable provision should be limited to jurists, and this is not what the trial judge decided. [ 37 ] In R. v. Hall , [18] the Supreme Court indicated that judges must deny bail if they are satisfied that, in view of the four factors in paragraph 515(10)(

c) Cr. C. and related circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. The Supreme Court adopted the definition of the reasonable person provided in R. v. Nguyen . [19] A reasonable person must be informed about “the philosophy of the legislative provisions, Charter values and the actual circumstances of the case”.

[ 38 ] The appellant's grievance is based on the fact that the judge did not use the term "philosophy" when discussing a reasonable person’s knowledge of the provisions and values enshrined in the Charter . It infers therefrom that he required a reasonable person to be a jurist. Nothing in the judgment suggests that the judge committed any such error, and he certainly did not do so by failing to use the term "philosophy". In the circumstances, the appellant's argument is nothing more than semantics.

Moreover, in the case law cited, the Court did not use the term "philosophy" when describing the reasonable person. [ 39 ] Here, the trial judge required that public opinion be that of a public "informed" of both the actual circumstances of the case and the broad principles of the applicable law. The trial judge's

interpretation of this criterion is unimpeachable. [ 40 ] The appellant also asks the Court to find that the opinion of the reasonable public is reflected in the media review that it filed in support of its application for review. It includes 21 clippings from newspaper articles published after the trial judgment.

We shall return to this subject. 3 - The prosecution appears to have a strong case [ 41 ] The appellant argues that the trial judge erred when, at paragraph 32 of his judgment, he wrote the following: [ translation ] "Consequently, although the evidence appears to be strong, the defences raised are serious and merit the consideration of the jury". [ 42 ] According to the appellant, the respondent's admission that he killed his two children means that the presumption of innocence becomes moot (see paragraph 30 of its submissions).

In support of its submission, the appellant cites an excerpt from the volume Traité général de preuve et de procédure pénales . [20] A reading of this excerpt in context, however, leads to the opposite conclusion. In it, the authors state that if incarceration were to occur every time there was a strong possibility of the conviction of an accused charged with a serious crime, the presumption of innocence and the guarantee in paragraph 11(

e) of the Charter would have no value: [ translation ] 1857. These remarks have taken on greater meaning since the coming into force of paragraph 515(10)(

c) of the Code . Thus, in Hall , Chief Justice McLachlin indicated that courts must consider whether a reasonable person would be persuaded of the need for detention to maintain public confidence in the administration of justice, it being understood that "the reasonable person making this assessment must be one properly informed about 'the philosophy of the legislative provisions, Charter values and the actual circumstances of the case'". It is therefore clear that the presumption of innocence and the guarantee under paragraph 11(

e) of the Charter require the rejection of any

interpretation of this provision that would result in the nearly automatic incarceration of an accused charged with a serious crime solely because of a strong probability of conviction. 1858. On occasion, however, the evidence can be so strong and the circumstances so serious that the judge is justified in concluding that the presumption may be set aside and ordering the accused's detention. Thus, in Hall , the Supreme Court stated that where "the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence".

That being the case, we must not lose sight of the fact that this measure cannot be ordered merely because the four criteria listed in paragraph 515(10)(

c) are met; it must also be necessary to protect the credibility of the justice system. The Supreme Court also indicated that cases of detention based on this third criterion were rare. [21] [ 43 ] In R. v. Chaulk , [22] the Supreme Court expressly addressed the issue of the presumption of innocence in a case where the accused admitted committing the crimes and raised an insanity defence. In that case, the appellants broke into a home, stole valuable objects and fatally stabbed its sole occupant. One week later, they turned themselves in and made full confessions.

They raised the defence of insanity and tried to establish that, at the time of the events, they were suffering from a paranoid psychosis that made them believe that they had the power to "rule the world" and to kill the victim because he was a "loser". [23] [ 44 ] The Supreme Court wrote that the accused, who raised the defence of insanity, was seeking a true acquittal from his criminal liability and that he had the right to the presumption of innocence guaranteed in paragraph 11(

d) of the Charter : 47 The Attorney General for Alberta has stated that a finding of "not guilty by reason of insanity" is not a finding as to "innocence". In my view, an accused raising insanity is asserting that he is incapable of having criminal intent and is, therefore, not criminally culpable – this is why the verdict under s. 16 is "not guilty by reason of insanity". The accused is alleging that he is "innocent" vis-à-vis criminal culpability; he is alleging that he is not criminally responsible.

Under s. 16, the criminal law may well be determining what sort of response is appropriate in the circumstances (as the Attorney General for Alberta has argued), but surely we are, in the process, determining that the response of attaching criminal culpability is not appropriate. In this sense, an accused raising s. 16 is, indeed, seeking a "true acquittal" vis-à-vis the attachment of criminal culpability and is, therefore, entitled to the presumption of innocence guaranteed by s. 11(

d) of the Charter . [24] [Emphasis added.] [ 45 ] That said, there is no doubt that a judge hearing an application for release must take the defences into account when evaluating the apparent strength of the prosecution's case. This Court ruled on this issue in R. v. Coates : [ translation ] [18] He also cannot be faulted for writing that, while the evidence appeared to be solid, it had not yet been tested. Even if some of this evidence has been examined and analyzed in other trials, often in a manner favourable to the prosecution’s theory, the fact remains that it has not been assessed in the current context.

It is worth noting, for example, that the witness Boulanger, who is at the core of the appellant's theory, has never been cross-examined and his credibility has never been subjected to the analysis of a jury. [19] Similarly, the judge was not able to determine the reliability of many other pieces of evidence, such that the only analysis to which he could subject the available evidence was that set out in paragraph 515(10)(

c) Cr. C ., which requires that he take into account,

among other things, "the apparent strength of the prosecution’s case". He was therefore also authorized to take into consideration thedefences that the evidence might support; it would in fact be unjust to allow the prosecution to lay out the Crown's case without allowingthe judge to consider not only its weaknesses but also any defences it may reveal. ... [44] The analysis of the third ground merits a few additional remarks. The judge agreed that three of the circumstances that ajudge must take into consideration militated against the release of the respondents.

These were the gravity of the offence, thecircumstances of its commission, and the long prison sentence associated with this type of offence. Indeed, in murder cases, judges oftenfind that the accused should be detained.

But this is not automatic, since the judge must also take into consideration "all thecircumstances", including the "apparent strength of the prosecution's case", which leads the judge hearing the application for release tosummarily weigh the evidence proposed by the prosecution. [45] The judge was therefore correct to consider not only the apparent strength of the prosecution's case, but also the defences thatthe respondents might raise.

As noted above, it would be unjust to ignore the arguments that the defence might raise and accept only theevidence that the prosecution states it is able to produce.[25] [Citations omitted; emphasis added.] [46] This approach is supported by the case law[26] and commentary.[27] In this case, the trial judge was aware of the teachings ofthis Court.

He was correct to weigh the respondent's defences to determine the apparent strength of the prosecution's case. 4 - The respondent's burden of proof with respect to his defence [47] The appellant recognizes that the Court of Appeal accepted that the respondent's defence of mental disorder has an air of realitybut states that, because of the reasons of the Court, the respondent [translation] "finds himself in a situation that is more difficult than inthe first trial".

The appellant argues that the trial judge erroneously failed to consider the value of the respondent's defence when heanalyzed the criterion of the apparent strength of the prosecution's case. [48] The appellant is wrong. [49] At the release stage, the judge does not have an obligation to evaluate the merits of the defence. This task falls to the jury. Thejudicial release inquiry is a more

summary proceeding,[28] with more flexible rules of evidence.[29] [50] The case law[30] and commentary[31] all take this reality into account and consequently urge courts to be cautious whenassessing the apparent strength of the prosecution's case, as it is not a determinative factor in assessing the four criteria in paragraph515(10)(

c) Cr. C.. The courts note that care must be taken not to assign a preponderant weight to the criterion of the apparent force of theprosecution's case, because this would result in the punishment of an accused before his or her conviction. For examples, we may look toR. v. Blind: [15] In considering all of the relevant circumstances, the hearing judge must not become so focused on the gravity of the offence andthe strength of the Crown's case as to overlook that there are no categories of offences for which bail is not a possibility.

There are fewcrimes of violence or of murder where one could not say that the gravity of the offence, considered on its own, without regard for thepurpose of bail, justifies detention. There are also many cases where the strength of the Crown's case appears, at the pre-trial stage, to beoverwhelming only to have it unravel as the trial progresses. It is also dangerous to place too much emphasis on the possibility of alengthy prison term as all serious crimes carry the possibility of such.

Giving undue weight to this factor becomes a means to startpunishment before conviction.[32] [51] When assessing the criterion of the apparent strength of the prosecution's case, the judge must verify whether the defenceproposed by an accused has a prima facie air of reality. Although the analysis is not quite as thorough at the preliminary release stage asit is at trial, the air of reality test involves determining whether the defence should be submitted to a jury: 52 It is trite law that the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.

DicksonC.J. drew attention to the distinction between these two types of burden in R. v. Schwartz, (SCC), [1988] 2 S.C.R. 443,p. 466: Judges and academics have used a variety of terms to try to capture the distinction between the two types of burdens.

The burden ofestablishing a case has been referred to as the “major burden,” the “primary burden,” the “legal burden” and the “persuasive burden.”The burden of putting an issue in play has been called the “minor burden,” the “secondary burden,” the “evidential burden,” the “burdenof going forward,” and the “burden of adducing evidence.” [Emphasis in original] The air of reality test is concerned only with whether or not a putative defence should be “put in play”, that is, submitted to the jury forconsideration.

This idea was crucial to the finding in Osolin that the air of reality test is consistent with the presumption of innocenceguaranteed by s. 11(

d) of the Canadian Charter of Rights and Freedoms.[33] [52] The trial judge therefore did not err in finding that the respondent had a valid defence to present to the jury. He did not have toconsider whether the respondent's defence of mental disorder would be more fragile than it was at his first trial or to speculate on howthe jury might assess this defence. 5 - The balancing of the four criteria in paragraph 515(10)(

c) Cr. C.

[53] After weighing the four criteria in paragraph 515(10)(

c) Cr. C. and taking into account the circumstances of the case, includingthe long wait for a new trial,[34] the judge found that the respondent had discharged his burden of establishing that his detention was notnecessary to maintain public confidence in the administration of justice. [54] He noted that the respondent has a defence that has an air of reality to present to the jury, that he does not have a criminal record,and that he had complied with the conditions of release.

The judge was aware of a certain perception according to which protection fromcriminals is only achieved through the harsh punishment of criminals and their imprisonment at all costs. To borrow a well-knownphrase from Baudouin J.A. in R. v.

Lamothe, some people believe that: [translation] "Getting rid of the criminal means getting rid of thecrime".[35] But the judge properly limited himself to the applicable standard, that of the informed public, that is to say, a public able toform a reliable opinion, who knows the facts of the case and the applicable principles of law, and who is not motivated by passion but byreason, as stated in paragraph 35, above. [55] An informed public knows that the respondent benefits from the Charter right to be presumed innocent so long as he has notbeen convicted by a jury.

The right to the presumption of innocence is a fundamental basis of Canadian criminal law from which therespondent must benefit, even if he admits to having committed the alleged crimes. [56] An informed public knows that to be convicted of a crime, the respondent must not only have committed the constitutive acts ofthe offence but also been able to form the criminal intent to commit them. [57] An informed public knows that, while the crime charged against the respondent is serious and he is liable to a long term ofimprisonment, he has a mental disorder defence to present and that this defence seeks to establish his inability to form a criminal intent. [58] An informed public knows that the respondent benefits from the constitutional protection against being deprived of his freedomwithout just cause and that the Constitution favours the release of an accused even in cases involving the most serious of crimes. [59] An informed public takes it as established that the respondent's detention is not necessary to ensure his presence at trial or toensure the protection and safety of the public because the appellant has submitted no such evidence and because it no longer raises theseissues in its application for review. [60] An informed public knows that if the respondent is convicted of the offences he is charged with or an included offence, he willserve the sentence imposed then.[36] As the Court of Appeal for Ontario wrote in R. v.

Heyden, confidence in the justice system wouldbe undermined more by the prolonged deprivation of the freedom of a person who may eventually be found innocent than it would bythe interim release of a person pending trial. 24 The public's interest in the continued incarceration of an individual charged with the most serious offence known to the law must bebalanced against the public's interest in seeing that no person be unjustly punished and, as in R. v. Khan (1998), (MBCA), 129 C.C.C. (3d) 443 (Man.

C.A.) at 445, it is our view that "confidence in the administration of justice would more likely becompromised by detaining a possibly innocent man in custody for a prolonged period pending his retrial."[37] [61] For these reasons, and on the basis of the standard of review defined in Coates, the Court is of the view that the trial judge didnot commit a palpable error of law or fact and that he exercised his discretion judicially. [62] Although the appellant may deny it, it is in actual fact asking the Court to substitute its assessment for that of the trial judge,which is precisely the criticism it levels against the reviewing judge in St-Cloud.[38] If the Court were to do this, in light all of thecircumstances of the case and the record on appeal, it would arrive at the same conclusion as Vincent J. [63] Some may wonder what circumstances would require that release be refused if it is not refused in the respondent's case.

There isno universal answer to this question, other than to say that an accused will not be released if he or she presents a risk to the safety orprotection of the public or if there is a fear that he or she will not appear for trial. As for situations in which detention is justified solely toavoid undermining public confidence in the administration of justice, the Supreme Court recognizes that such cases are rare; its judgmentin Hall, supra, is one such example.

These are situations in which the evidence is so overwhelming and the circumstances so serious thatdefences are almost non-existent, to the point where the presumption of innocence must, for all intents and purposes, be set aside and anorder to detain the accused be made. [64] In Hall, a woman was found dead, having been stabbed 37 times. Her assailant had tried to decapitate her. Strong evidenceconnected the appellant to the crime. An expert stated that the appellant's footprint in the victim's blood had been found at the residenceof the appellant’s father.

The appellant had provided no explanation and raised no defence, unlike in our situation. The Supreme Courtfound that the the trial judge had not erred in taking into account the public fear of seeing a dangerous criminal at large. [65] R. v. Rondeau[39] is another example of a rare case where release was refused on the basis of the criterion in paragraph 515(10)(c)Cr. C. The Crown had overwhelming evidence against the accused. There were direct witnesses of events contemporaneous to themurder and incriminating statements made by the accused, his accomplice, and other immediate witnesses.

A reading of the depositionsof the accused and the different witnesses reveals that they overlap entirely.

Proulx J.A. pointed out the degree of planning involved inthe crime and its sordid nature: [translation] In fact, the evidence also demonstrates that (1) in the hours preceding the incident, the respondent had agreed to accompany Cerutti withthe initial plan of ”doing” the victim, (2) that both were armed, (3) that the respondent was wearing surgical gloves, (4) that once theywere at the victim's home, they waited for her to be in her room to plan the villainous murder and then cut up the body (which they didnot do), all while imagining a scenario in which the victim had provoked them so that they could eventually plead self-defence, (6) thatCerutti checked with the respondent to make sure that his vehicle was properly parked to make it easier to get the body out and get away,(7) that Cerutti and the respondent did not worry about confiding their plan to a certain Roy, who was on the premises and who heard thevictim's first cries as the respondent and Ceruti were fatally stabbing her in her room, where she had been asleep.

This all happened

because Cerutti suspected that the victim had stolen $40 worth of cassettes from him and the respondent was Cerutti's friend. [40] [ 66 ] Proulx J.A. concluded that the violence of the crime, its careful planning and the total lack of explanation justified the refusal to order release. [ translation ] It seems to me that the more serious the crime, the more carefully the perpetrator's participation is planned, and the more violent the actions, the greater the risk for society. The more a crime like this one is unexplained and inexplicable, the more worrisome the provisional release will be for society.

With respect for the contrary opinion, this is my view of this case. [41] 6 - The media review [ 67 ] The appellant filed a media review consisting of 21 cuttings from newspapers published after the trial judgment. It highlighted certain articles and argued that their authors expressed the opinion of an informed public. The Court cannot accept this argument. [ 68 ] A reading of these press clippings demonstrates how dangerous it is to rely on this type of evidence. They contain diverse opinions, more or less balanced, more or less objective, more or less measured, more or less superficial.

Many refer to inaccurate facts or do not report essential ones. Most omit the legal principles essential to making a decision respecting release. Some opinions stir up anger and distort the debate. Few of them faithfully report the facts or correctly note the applicable principles. Overall, it must be found that they do not satisfy the reasonable person test as defined in the case law. [ 69 ] By relying on these newspaper articles to meet the public confidence test, the appellant is attempting to allow public opinion to usurp the role that Parliament has conferred on the judge.

Its submission seeks to divert from its proper purpose the assessment based on fundamental Charter values, statutory criteria, and a rigorous and balanced analysis of all of the circumstances. *** [ 70 ] The Court is of the view that the grounds submitted by the appellant are without merit and that its application for review is unfounded in fact and in law. FOR THESE REASONS, THE COURT: [ 71 ] DISMISSES the appellant's application for review. FRANCE THIBAULT, J.A. GUY GAGNON, J.A. MARTIN VAUCLAIR, J.A.

Mtre René Verret Mtre Maria Albanese Mtre Nicolas Abran COUNSEL FOR THE DIRECTOR OF PUBLIC AND PENAL PROSECUCTION For the Appellant Mtre Pierre Poupart Mtre Guy Poupart POUPART, DADOUR, TOUMA & ASSOC. Mtre Ronald Prégent SHADLEY BATTISTA COSTOM For the respondent Date of hearing: November 10, 2014

SCHEDULE 1 Conclusions of the trial judgment

[ translation ] [94] ORDERS the interim release of Guy Turcotte on the conditions that he: (

a) keep the peace and be of good behaviour, (

b) appear before the court when required to do so by the court, (

c) live at the domicile of his uncle Léo Turcotte, at ..., Brossard. [95] He is prohibited from changing address without the prior permission of the Court. [96] He is prohibited from communicating directly or indirectly by any means whatsoever with his former spouse or her spouse, as the case may be. He is also prohibited from being within 100 metres of their residence. [97] He is prohibited from leaving the territory of the province of Quebec. [98] He is prohibited from possessing or applying for a passport. [99] He is prohibited from possessing, acquiring or having in his possession firearms, ammunition and other items referred to in

section 109 of the Criminal Code . [100] ORDERS the imposition of a curfew between 6 p.m. and 6 a.m. when he must at all times be at the residence on ...

Street in Brossard. [101] He is required to report every second Wednesday of every month to a Sûreté du Québec officer. [102] He is required to continue psychiatric treatments provided by the psychiatrist Roy, as well as therapy with the psychologist Costi, and to attend the appointments scheduled at the Institut Philippe Pinel in Montreal. [103] He is required to take the medication prescribed by his attending physicians. [104] A judicial hypothec on the residence of Gilles Turcotte, brother of the applicant, in the amount of $100,000 must be provided and filed at the registry of the Superior Court before his release. [105] He is prohibited from consuming alcohol and any medication or drug that is not prescribed by a qualified physician.

SCHEDULE 2 Paragraphs 515(10) ( a )(

b) and (

c) of the Criminal Code

515(10) Pour l’application du présent article, la détention d’un prévenu sous garde n’est justifiée que dans l’un des cas suivants :

a) sa détention est nécessaire pour assurer sa présence au tribunal afin qu’il soit traité selon la loi;

b) sa détention est nécessaire pour la protection ou la sécurité du public, notamment celle des victimes et des témoins de l’infraction ou celle des personnes âgées de moins de dix-huit ans, eu égard aux circonstances, y compris toute probabilité marquée que le prévenu, s’il est mis en liberté, commettra une infraction criminelle ou nuira à l’administration de la justice;

c) sa détention est nécessaire pour ne pas miner la confiance du public envers l’administration de la justice, compte tenu de toutes les circonstances, notamment les suivantes : (

i) le fait que l’accusation paraît fondée, (ii) la gravité de l’infraction, (iii) les circonstances entourant sa perpétration, y compris l’usage d’une arme à feu, (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.the seriousness of the offence; 515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

ANNEXE 3 The facts as related by the Court of Appeal in its judgment of November 13, 2013 [5] At the outset of the trial, the respondent admitted to causing the death of the two victims by means of an unlawful act. An acquittal, therefore, was not one of the possible outcomes, and the judge stated as much to the jury. Thus, the only issue was the state of mind of the respondent at the time of the events.

The evidence showed that he knew of the effects of methanol intoxication, making it impossible to characterize his intoxication as involuntary in the legal sense of the word, despite the fact that he describes it as [ translation ] "morally involuntary" in his memorandum of appeal. [6] The evidence supports the following reconstruction of events: [7] On the morning of February 21, 2009, two police officers followed up on a call placed to 911 after the respondent had expressed

his suicidal thoughts to his mother. When they entered the respondent's home, the officers discovered the inert bodies of two children, a boy and a girl. They also found the respondent, who had hidden under the bed upon their arrival. [8] This tragedy took place one month after the respondent and Isabelle Gaston, the children's mother, had separated. [9] The respondent, a cardiologist, and Gaston, an emergency room doctor, had met some ten years earlier in medical school. They wed in 2003, and their children were born in 2003 and 2005. [10] The relationship was a rocky one and they considered separating in 2007.

Although they ended up staying together, they fought frequently and even met with a life coach. [11] Although the relationship was turbulent and marked by conflict, there were good times still and the fact that the respondent was a good father has been acknowledged. At trial, Gaston said that [ translation ] "he was not a bad father", on the contrary. His love for his children is not at issue here. [12] In 2007, Gaston met Martin Huot, who would become her personal trainer. Huot was then in a relationship with Patricia Giroux.

The two couples started spending time together and became friends. [13] In mid-January of 2009, Giroux discovered that her de facto spouse and Gaston were having an affair. She found a letter and emails that left no room for doubt. She told the respondent, who kept a copy of this correspondence. [14] On January 17, 2009, the respondent took a trip to Mexico with his family. During this trip, Gaston realized that the respondent had discovered the affair. Their discussions broke down and they decided to separate. Two days after coming home from their trip, the respondent left the family residence.

Gaston and the children stayed in the house and the parents agreed to share custody. [15] Conversations during the separation were often acrimonious. [16] On February 8, the respondent found out that the children had been to the Carnaval de Québec with their mother and Huot. The Carnaval had special meaning to him since he had lived in Quebec City for many years. [ translation ] "A hammer to the head would have hurt less", he said in his testimony.

He added: [ translation ] "I could not accept that Martin spent time with my children ... as if I was being replaced" [17] The next day, a former neighbour told him that the day he left, Huot had spent the night in the family residence and that he had been there almost every night for the last two weeks. This news [ translation ] "made him flip", he said. [18] On February 10, he went to the family residence to fetch his son's sweater. He found Huot in the kitchen. He told him off: [ translation ] "You stole my wife. You betrayed me, you were my friend".

He then punched him in the face before leaving the house. 19] On February 17, Giroux sent the respondent new emails between Huot and Gaston. The respondent testified that he did not feel strong enough to read them and that he [ translation ] "sent them to the spam folder", although he did not delete them. [20] On February 20, he woke up early. He was afraid that Gaston, who was on call, had left the children with Huot. He drove by his old house and did not see Gaston's car parked there. Huot's car was there, however.

He stopped and went into the house, where, to his surprise, he found Gaston According to him, she ordered him to leave and told him: [ translation ] "... you are going to stop controlling my life ... now, if I want to, I can change the children's names, ... I can get custody, I can move anywhere in Quebec". t then dawned on him that he had made a [ translation ] "monumental error". He states that he was shaken to the core at the idea of losing his children, who were all that he had left.

[21] That day, while he was at work, he exchanged a few emails with Gaston. He then went to pick up the children at daycare and school. [22] He went to the video store. On his way, he telephoned Gaston. She told him that she had had the locks changed on the house. He was angry and [ translation ] "took it as an attack", since, in addition to wanting to take away his role as a father, she was [ translation ] "taking away the keys to the house".

From her words, he inferred that she had consulted a lawyer and that was why, before ending the conversation, he told her, [ translation ] "If you want war, you are going to get it". According to his testimony, he intended this to mean that he could do the same. [23] He fed the children, who then wanted to watch a movie. After clearing the table and washing the dishes, he went to join them in the living room. Feeling dejected, he began to cry. The children consoled him. He put them to bed so that they would be well rested the next day. [24] He then sat down to read the emails he had set aside a few days earlier.

This hurt and disheartened him. He wanted to end his life and searched the Internet for ways to commit suicide. From that moment, the respondent's testimony is vague and imprecise. Instead, we have "flashes", images, and partial memories of the events. Here are a few of these memories, drawn from the appellant's memorandum, with which the respondent agrees: [ translation ] - He is in the basement, looking for ethylene glycol, a component of antifreeze, but does not find any. - He is at the foot of the stairs. He has a knife in his hands and is sharpening it.

He wants to stab himself while holding the knife with both hands but remembers an incident Gaston related to him: a man was brought into the emergency room after being stabbed in the chest, but it did not kill him. He is afraid of failing and does not have the strength to act. - He is sitting on his bed. He has a glass in his hand and a windshield washer fluid container: [ translation ] "I drank windshield washer fluid and then threw back my drink, then I took more, and threw back another drink, and that's it". He drinks so much that he feels [ translation ] "full", and is unable to go to bed because of this.

He understands that he is going to die and does not want his children to find his body. To avoid this, he decides that he will [ translation ] "bring them with him". He is standing in his son's room. He has a knife in his hands and stabs his son. His son cries out "no" and moves away. He realizes that he is hurting him. He panics and [ translation ] "stabs him more". He has a similar memory with respect to his daughter. He sees himself in the bathroom. He drinks windshield washer fluid. He has blood on his hands.

He has hurt his children and looks for the knife to [ translation ] "stab himself in the heart", but cannot find it. He is in the stairwell, dizzy, and falls backwards. Kneeling next to the bath, he is speaking to his mother on the telephone, telling her: [ translation ] "I love you, I love you". [25] He could not place the events in chronological order. [26] When he woke the next day, it was daylight. He heard the police and decided to hide under the bed. He does not remember that day.

All that he remembers is waking up in the intensive care unit of the hospital. [27] Other evidence sheds more light on the events that occurred on the evening of February 20.

[28] We know that the respondent used his laptop computer between 6:20 p.m. and 8:09 p.m. Around 8:30 p.m., he left a message to his real estate agent to let him know that he could not make their appointment to see a property he was planning to buy. Around 8:30 p.m., he called the children's babysitter to let her know that his plans had changed and that he would not need her the next day. At 8:35 p.m., he called his mother back, as she had tried to reach him earlier, and spoke with her for nearly one hour. His mother testified that she was under the impression that he was inebriated.

He was incoherent and made disturbing remarks. [29] It is worth noting that the evidence tends to show that the respondent started drinking windshield washer fluid before stabbing the victims. [30] Moreover, some of the events that occurred after the death of the victims were also put in evidence. [31] For example, the respondent made several statements during his arrest and subsequent hospitalization. He cried out ceaselessly that he had killed his children and that he was a criminal.

He indicated that the events had taken place around 8:00 p.m., while his son had been asleep in his bed. [32] By way of other examples: in the days and weeks following his admittance to the Philippe-Pinel Psychiatric Institute, the respondent made a list of objects to be retrieved from his residence; he asked his family to pick up the tickets that he had bought during the holidays for a family outing to a show and a gift card for a spa day that he had given to Gaston; he telephoned his financial planner to remove Gaston's name from his will and from his life-insurance policy; finally, he telephoned the children's babysitter, apologized for the pain he had caused her, and told her it was not the first time he had thought of doing what he did. [33] Gaston testified that the respondent telephoned her on May 17, 2009, while he was at the Pinel Institute, and told her that he had not died because he was too angry with her and did not want her to benefit from the insurance or from his will. [34] In November of 2009, he attempted suicide once more.