2012 QCCA 784, 2012 QCCA 784

Kyling c. R. 2012 QCCA 784 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004919-112 (455-01-008141-073) DATE: APRIL 25, 2012 IN THE PRESENCE OF THE HONOURABLE NICHOLAS KASIRER, J.A. WERNER KYLING APPELLANT-PETITIONER – accused v. HER MAJESTY THE QUEEN RESPONDENT – prosecutor JUDGMENT [ 1 ] This is a second application for release from custody pending appeal pursuant to subsection 679(3) of the Criminal Code by an appellant who has already been refused interim release by a judge of this Court.

I Context [ 2 ] On April 12, 2011, Werner Kyling was convicted by jury of offences relating to traffic and production of cannabis, conspiracy to traffic and produce cannabis, as well as production of cannabis for the benefit of a criminal organization. He filed a notice of appeal from the conviction on May 11, 2011. He was sentenced on June 20, 2011 to eight years in prison, less two months for time served.

As part of that sentence, he was ordered to serve three years of imprisonment, consecutively to the period to be served for the other offences, for the conviction on the charge of production of cannabis for the benefit of the criminal organization, and ordered him to serve half of that portion of the sentence prior to eligibility for parole. On July 6, 2011, his motion for leave to appeal from his sentence was deferred to the panel of this Court that will hear the appeal from the verdict. [ 3 ] As noted, this is Mr. Kyling’s second application for bail pending the present appeal.

On July 15, 2011, my colleague Bich, J.A. dismissed the first application presented pursuant to subsection 679(3) Cr.C . There was no petition to review that decision under

section 680 Cr.C. Instead, the petitioner now brings a fresh application for interim release under subsection 679(3) in accordance with the procedure explained in R . v. Daniels . [1] In Daniels and cases that have followed it, courts held that a further application for release pending appeal may be brought under subsection 679(3), after a refusal, where there has been a "material change in circumstances after the initial application". [2] This has come to be known as the " Daniels threshold".

II Judgment of the judge in chambers on the initial application [ 4 ] Bich, J.A. held that the petitioner met the first two conditions set forth in subsection 679(3) Cr.C . The chambers judge decided, however, that Mr. Kyling failed to meet his burden to show that his detention was not necessary in the public interest and therefore the judge refused to release him from custody pending appeal. [ 5 ] Specifically in respect of the requirement in paragraph 679(3) (

a) Cr.C . that the petitioner shows that his appeal is not frivolous, the chambers judge wrote: "[...] bien qu’ils n’aient peut-être pas tous une égale valeur, les moyens qu’énonce l’avis d’appel ne sont pas futiles et, dans l’ensemble, l’appel paraître défendable et, même, sérieux" (para. [6]). [ 6 ] Bich, J.A. noted that the petitioner had not been in custody during proceedings in first instance and during the better part of proceedings on extradition before that.

The chambers judge concluded that the petitioner had established, to her satisfaction, that he would surrender himself into custody in accordance with the terms of an order that might be made pursuant to the requirement in paragraph 679(3) (

b) Cr.C . [ 7 ] But as to requirement in paragraph 679(3) (

c) Cr.C., the chambers judge decided that the petitioner’s release would be contrary to the public interest, "principalement au regard de la confiance des justiciables dans le système de justice" (para. [7]). She noted that the petitioner had been convicted of serious crimes at trial and, among them, a conviction for the production of cannabis for the benefit of a criminal organization of which he was the leader and not, as she noted, a mere foot soldier. She considered the sentence of eight years less two months for time served to be a heavy one and indicative of the gravity of the matter.

She observed he was over 60 years old but did not consider that to be an attenuating factor. On the contrary, Bich, J.A. remarked that at his stage of life, the petitioner should have been aware of the seriousness of his acts and mindful of the consequences thereof. [ 8 ] In the course of her analysis of the public interest criterion, the chambers judge noted that the petitioner had a criminal

record that, while not recent, weighed against his release (para. [10]). [ 9 ] […]. [ 10 ] The chambers judge took note of the possibility that the petitioner ran the risk of serving a substantial part of his sentence while awaiting his appeal as consideration that might militate in favour of release (para. [14]). She observed, however, that if the petitioner were diligent and sought to have his appeal proceed with dispatch, this risk could be lessened.

She took comfort on this point from the remarks of the attorney for the crown who noted that the transcripts were prepared and the necessary translations were underway.

She thus did not find this delay on appeal to be such as to require release immediately. [ 11 ] The most positive feature, recorded the chambers judge, in regard of the public interest criterion was that the petitioner had been free from custody without incident during the long proceedings leading up to his conviction (para. [11]). [ 12 ] Bich, J.A. concluded this portion of her reasons as follows: [15] Dans les circonstances, considérant l'ensemble des éléments ci-dessus, le fait que l'appelant a été en liberté et a respecté les conditions qui lui ont été imposées ne suffit pas à justifier sa remise en liberté pendant l'instance d'appel.

À mon avis, un public bien informé ne comprendrait pas que l'appelant, compte tenu des faits relatés dans le présent jugement, soit libéré, même provisoirement, alors qu'il est le chef d'une organisation criminelle s'étant livrée à la production et au trafic de la drogue, ayant par ailleurs écopé d'une peine d'emprisonnement de près de huit ans […]. Une telle remise en liberté serait de nature à miner la confiance des justiciables dans le système de justice. [ 13 ] Accordingly, the chambers judge dismissed the initial application for release pending the appeal.

She also ordered a publication ban of the portions of her judgment in keeping with a similar ban ordered by the trial judge. III Whether this application should proceed before the first chambers judge [ 14 ] As a preliminary matter, it bears noting that in Daniels , Doherty, J.A. expressed the view that it is usually preferable for the chambers judge who heard and dismissed the initial application under subsection 679(3) Cr.C . to hear subsequent applications for bail pending appeal. But for Doherty, J.A., this is a preference and not an imperative.

He wrote: "I would not, however, set down any hard and fast rule". [3] [ 15 ] In the written motion presented before me, the applicant did not request that the hearing be held before the chambers judge who rules on his first application. Initially, the petitioner had raised his preference that the second application be heard by the first chamber judge in correspondence with the judge of this Court who has been designated by the Chief Justice as the coordinating judge in criminal matters for the Court. Following that exchange of correspondence, the petitioner chose to file his motion without making such a request.

Mindful of the comments of the Ontario Court of Appeal in Daniels , I asked the question of his attorney at the hearing. He noted his view of the advantages associated with the first judge hearing the matter but did not cite any special reasons against proceeding with another judge. He left the matter to my discretion. [4] Seeing no impediment, I undertook to hear the motion immediately.

IV The requirement of a material change in circumstance [ 16 ] Since this is not a review of the original application but a fresh consideration of release pending appeal, it is generally understood that the parties accept that the first application – in this case the judgment of Bich, J.A. – was correct. [5] Counsel for Mr. Kyling acknowledged that to be the case here at the hearing before me. I will proceed on that basis. [ 17 ] Distinguishing the recourse set forth in

section 679 Cr.C . from the "appellate jurisdiction" contemplated in

section 680, the Ontario Court of Appeal held in Daniels that a second original application can be brought only where there is a "material change in circumstances after the first application". [6] This approach has been followed by judges in chambers called upon to rule on second original applications such as the instant case.

In Baltovitch , [7] chambers judge Rosenberg, J.A. usefully described this " Daniels threshold" as follows: [6] While Daniels recognized that subsequent applications may be brought, I think it unlikely that this court intended that an applicant could bring a fresh application every time there was a change in circumstances. This would virtually subvert the scheme set out in

Part XXI. In my view, a judge hearing a subsequent "original" application only has jurisdiction to deal with the application on the merits if he or she is satisfied that there has been a material change in circumstances. A material change in circumstances, for this purpose, would require additional information that could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in s. 679(3), namely, (

a) whether the appeal is frivolous; (

b) whether the applicant will surrender into custody in accordance with the terms of the release order; and (

c) whether the applicant’s detention is necessary in the public interest. If there is a material change in circumstances, the judge must then consider all of the statutory grounds and must be satisfied that the applicant has met the onus in s. 679(3) . [ 18 ] The presence of a "material change" is thus a prerequisite to the exercise of the authority of the judge called upon to release an appellant from custody in a further original application. This reflects the nature of the proceeding which is neither appellate in character nor a true review of the first decision.

Accepting the first decision as correct, the second judge ruling on subsection 679(3) Cr.C . can only order release if the original order has been "overtaken" by a material change in circumstances. In cases where no such material change exists, such as D’Agostino , a chambers judge should dismiss the application because, as O’Leary, J.A. wrote "a pre-condition to my jurisdiction has not been met". [8] This approach has guided the jurisprudence of this Court in like circumstances. [9] [ 19 ] Four principal arguments are made in support of Mr.

Kyling’s application that, considered separately or together, constitute a material change in circumstances justifying release from custody on appeal. They are the following: that the time the petitioner will be obliged to serve in custody before his appeal is decided is a circumstance that justifies release now; the personal circumstances of the petitioner, including his age, justify release; that the available transcripts and the detailed elaboration of the grounds for appeal as set forth in his factum constitute a material change in circumstance that justify release; […].

In each case, the argument bears directly on the

evaluation to be undertaken in respect of the public interest criterion at paragraph 679(3) (

c) Cr.C. because the first two factors – the non- frivolous character of the grounds for appeal and the requirement that the petitioner surrender himself according with the terms of an order – had been satisfied before Bich, J.A. Again, it is to be recalled that this application, which is not an appeal, proceeds on the assumption that the findings by the chambers judge were correct where not altered by a material change in circumstance. IV The timing of the appeal [ 20 ] The petitioner argues that delays that are to be anticipated prior to a final decision on the appeal are substantial and command that he be released now, in view of the public interest criterion in paragraph 679(3)(

c) Cr.C. The matter was considered by the chambers judge but, says the petitioner, circumstances have changed since then. [ 21 ] The petitioner is represented by new counsel since the trial. In view of what he sees as a complex appeal, the new attorney brought a motion to increase the number of pages of the portion of his factum devoted to argument to 100 pages and, on March 22, 2012, filed his factum in the registry of the Court. In so doing, he acted in a manner consonant with his duty, underscored by Bich, J.A., to avoid undue delays. [ 22 ] The petitioner now fears delays on the crown’s side.

He notes that the principal crown attorney acting at trial is no longer actively involved in the case. The petitioner doubts that the crown can meet its obligation to file its factum within sixty days – which would be May 22, 2012 – and fears that the delay will mean that the appeal will not be heard until the spring of 2013. He notes that certain of the co-accused have filed appeals and the possibility that the appeals be heard together may further delay proceedings.

All in all, these time considerations represent a material change in circumstance that justifies release in the public interest. [ 23 ] At the hearing, I asked counsel for the crown whether he anticipated meeting the sixty day requirement for filing his factum. He answered candidly that he would make every effort to do so but that given the complexity of the file, the crown expected to file the factum no later than June 22, 2012 (assuming, of course, they are permitted to file late). [ 24 ] I take formal note of the undertaking by the crown that it will file its factum by June 22, 2012.

Should the crown fail to do so, that circumstance might be taken into account by a judge in chambers seized of a subsequent bail application by the petitioner. [ 25 ] That said, assuming the crown’s factum is filed by June 22, 2012, I expect that the appeal will be ready to be placed on the role in time to be heard in November or December, 2012. The change in counsel on the crown side is immaterial to its duty to be ready to proceed when the case it set down for hearing.

Taking all this into account, I am of the view that the circumstances of the timing of the appeal are not materially different from those considered by Bich, J.A. VI The personal circumstances of the petitioner, including his age [ 26 ] Petitioner asks that his age – he will be 70 years old on September 15, 2012 – and his other personal circumstances be taken into account in support of this application for bail. Proceedings have been pending against him for nearly seven years, and he has been free for the better part of this period without incident.

He says he is a family man in a long-term, stable marriage and, as such, the well- informed member of the public would not object to his release. [ 27 ] This argument is to be dismissed. No material change in his personal circumstances has occurred since the decision of the first chambers judge. VII The detailed grounds for appeal [ 28 ] The petitioner raises the seriousness of his appeal and the likelihood that it will be allowed as a basis for release from custody.

As a general matter, he contends that his grounds for appeal have revealed themselves to be stronger than they appeared to be at the hearing before Bich, J.A. based on the skeletal arguments in the notice of appeal. [ 29 ] The petitioner is right to argue that the grounds for appeal, including a new formulation of existing grounds in a factum, can, in theory, constitute material changes in the circumstance of a person seeking release on a second application made under subsection 679(3) Cr.C . [10] There are instances in which grounds for appeal revealed to be strong can "tip the scale in favour of reviewability". [11] Thus, it is possible that reformulated grounds for appeal can overcome a concern for public safety and justify release. [12] Pointing to the factum and the availability of transcripts, this is what Mr.

Kyling argues here. [ 30 ] Needless to say, in virtually every case, a developed argument in a factum will appear stronger than a

summary notice of appeal. The newly revealed strength of the grounds for appeal must amount to more that a mere reformulation: they must represent a material change in circumstance in order to meet the Daniels threshold on the second application.

As the Ontario Court of Appeal noted in Daniels , this will seldom be the case since, in the main, the first judge will have undertaken a review of the grounds for appeal in the initial setting. [13] The obtained record and prepared factum, on their own, "rarely qualify" as a source of material change. [14] [ 31 ] These kinds of cases will be rarer still when the first chambers judge decided that the arguments as set forth in the first hearing were already strong. Under paragraph 679(3)(

a) Cr.C ., the petitioner need only show that his or her grounds are not frivolous, but it is of course in a petitioner's interest to show that the grounds are as compelling as possible in support of the argument for release. In this instance, Bich, J.A. not only characterized the grounds as not frivolous and arguable, but she said they were serious. The challenge for the petitioner is not simply to show initially weak arguments to be strong, but to show already strong arguments to be stronger still.

The present case is different, for example, from Baltovitch in which the grounds for appeal as set out before the first judge were "not compelling" and, as reformulated, were viewed as "much more substantial" by the second judge. [15] Given the presumptive correctness of Bich, J.A.’s decision in which she balanced "serious" arguments against the public interest and found those arguments lacking, the hurdle the petitioner faces is a difficult one. [ 32 ] The grounds set forth in the factum are for the most part a reformulation, over 100 pages, of grounds raised in the notice of appeal.

There are of course differences of detail and degree, but this is not a case, say, where new evidence is advanced that would

plainly amount to a material change in circumstance. [ 33 ] The grounds for appeal set out in the application before me are serious. They have been considerably developed – not surprisingly so, given the breadth of the petitioner's factum – and the arguments in support of the conclusion that the trial was an unfair one are markedly more fulsome and focused than before.

Yet the main arguments relating to an unfair trial, including the errors in the selection and composition of the jury were made, albeit in short form, before the first judge, as were the key arguments relating to language of the trial and to the petitioner’s right to a full and fair defence. This is true, too, of the complaints concerning the conviction relating to the criminal organization. [ 34 ] Bich, J.A. read the notice of appeal and understood these arguments, characterized as a whole, to be "serious". I come to the same conclusion.

But the grounds for appeal, supported by the same affidavit presented by the petitioner as at the hearing before the chambers judge, do not, by reason of their reformulation, amount to a material change in circumstances allowing me to release the petitioner. VIII […] [ 35 ] […]. [ 36 ] […]. [ 37 ] […]. [ 38 ] […]. [ 39 ] […]. [ 40 ] […]. [ 41 ] […]. [ 42 ] […]. [ 43 ] […]. [ 44 ] […]. [ 45 ] […]. [ 46 ] […]. [ 47 ] […]. [ 48 ] […]. [16] […]. [17] [ 49 ] […]. [ 50 ] […]. [ 51 ] […]. [ 52 ] […]. [ 53 ] […]. [ 54 ] […]. [ 55 ] […].

IX Conclusion [ 56 ] Notwithstanding his most able argument, the petitioner has not established to my satisfaction the existence of a material change in circumstances from those presented for consideration before Bich, J.A. in the first application. I understand this to mean a prerequisite to the proper exercise of my jurisdiction allowing me to release the petitioner in the circumstances has not been met. [ 57 ] The trial judge ordered a publication and distribution ban of his judgment on the motion […].

Bich, J.A. made the same order for portions of her judgment on the first bail application that referred to that judgment or its subject-matter. I will do the same. FOR THESE REASONS , the undersigned: [ 58 ] DISMISSES the motion for release from custody pending appeal; [ 59 ] ORDERS a publication and distribution ban of the following parts of this judgment: paragraph [9], portions of paragraphs [12] and [19], paragraphs [35] to [55], including the title preceding paragraph [35], and paragraph [57].

NICHOLAS KASIRER, J.A. Mtre Louis Belleau SHADLEY BATTISTA For the appellant Mtre Robert Rouleau CRIMINAL AND PENAL PROSECUTING ATTORNEY For the respondent Date of hearing: April 17, 2012