WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order prohibiting disclosure of a witness’ identify has been made in this proceeding pursuant to s. 486.31 of the Criminal Code and shall continue.  This section of the Criminal Code provides that:

486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.

(3) In determining whether to make the order, the judge or justice shall consider

                    (a) the right to a fair and public hearing;

                    (b) the nature of the offence;

                    (c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

                    (d) whether the order is needed to protect the security of anyone known to the witness;

                    (e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

                    (e.1) whether the order is needed to protect the witness's identity if they have had, have or will have responsibilities relating to national security or intelligence;

                    (f) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

                    (g) the importance of the witness' testimony to the case;

                    (h) whether effective alternatives to the making of the proposed order are available in the circumstances;

                    (i) the salutary and deleterious effects of the proposed order; and

                    (j) any other factor that the judge or justice considers relevant.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

S.C. 2015, c. 20, s. 38(3).

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ruthowsky, 2018 ONCA 552

DATE: 20180613

DOCKET: M49204 (C65389)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent (Respondent in Appeal)

and

Craig Ruthowsky

Applicant (Appellant)

Gregory Lafontaine, for the applicant

Michael Perlin, for the respondent

Heard: June 12, 2018

On an application for bail pending appeal from the convictions entered on April 25, 2018 by Justice Robert A. Clark, sitting with a jury, and from the sentence imposed on May 29, 2018.

ENDORSEMENT

OVERVIEW

[1]          After a 25 day jury trial, Mr. Craig Ruthowsky was convicted of bribery; attempt to obstruct justice; criminal breach of trust; and trafficking cocaine. He was sentenced to 13 years’ imprisonment less 6 months’ credit.

[2]          Mr. Ruthowsky is appealing both his conviction and his sentence. He brings this application for bail pending appeal.

[3]          The applicable law is not in dispute. Having been convicted, Mr. Ruthowsky is no longer presumed to be innocent. In order to avoid detention pending his appeal, the burden is on Mr. Ruthowsky to establish that he should receive bail pending appeal, under Criminal Code, s. 679(3): R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250. He must show, on the balance of probabilities, that: (1) his appeal is not frivolous; (2) he will surrender himself into custody in accordance with the terms of any release order; and (3) his detention is not necessary in the public interest.

[4]          Mr. Ruthowsky has not discharged that burden. I am persuaded that his appeal contains grounds that are not frivolous, that he will more probably than not surrender himself into custody, and that he does not pose a risk to the safety of the community. However, I am not satisfied that a reasonable member of the public would conclude that his detention pending appeal is not necessary in the public interest. This is because he has been convicted of serious offences that were committed in extremely aggravated circumstances, and because his grounds of appeal do not “clearly surpass” the “not frivolous” threshold. In these circumstances, a reasonable member of the public would conclude that the interest in the immediate enforcement of his lengthy sentence outweighs the interest in releasing him pending the appeal of his conviction and sentence.

ANALYSIS

A.           HAS MR. RUTHOWSKY SHOWN THAT HIS APPEAL IS NOT FRIVOLOUS?

[5]          An appeal is frivolous if it does not give rise to arguable issues: R. v. Manaserri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38. This first precondition therefore presents a very low bar: Oland, at para. 20. The Crown does not press its argument that Mr. Ruthowsky’s appeal is frivolous. Its central position is that his appeal is weak, an important consideration in deciding whether Mr. Ruthowsky has met his burden of showing that his detention is not necessary in the public interest. I will therefore consider the strength of the appeal when determining if Mr. Ruthowsky has met the third precondition to his release.

B.           HAS MR. RUTHOWSKY SHOWN THAT HE WOULD SURRENDER HIMSELF?

[6]          Mr. Ruthowsky has complied with the strict terms of his pre-trial release for close to three years. Although he now has greater incentive to flee given his conviction and the heavy sentence imposed, the Crown concedes that this second precondition to release is met. It accepts that although there are flight risks that should not be disregarded in an overall assessment of his application, Mr. Ruthowsky has established that, if released, he would surrender himself into custody as required by a release order.

C.           HAS MR. RUTHOWSKY SHOWN THAT HIS DETENTION IS NOT REQUIRED IN THE PUBLIC INTEREST?

[7]          There are two components to the public interest requirement: public safety and public confidence in the administration of justice: Oland, at para 23; and R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

[8]          As the term suggests, the “public safety” component has to do with the protection and safety of the public should an appellant be released pending appeal. Appropriately, the Crown has not made this a focus of concern in its arguments. Mr. Ruthowsky’s pre-trial release was based on the premise that his behaviour could be controlled in the community, with conditions. Nothing has changed in this regard. I am satisfied that Mr. Ruthowsky’s release pending appeal would not imperil public safety.

[9]          Instead, the Crown focuses on the effect that Mr. Ruthowsky’s release would have on public confidence in the administration of justice as he has now been convicted. This consideration requires a balance between two competing interests – the enforceability interest, and the reviewability interest.

[10]       The enforceability interest recognizes that, as a general rule, it is important to respect and immediately enforce judgments. It can harm the repute of the administration of justice in the eyes of reasonable members of the public if sentences are postponed pending appeal, particularly where the appellant has been convicted of serious offences and the grounds of appeal are not strong.

[11]       On the other hand, those who are convicted are entitled to a meaningful review process. Denying bail pending appeal can result in individuals spending significant time in custody, only to have their convictions be subsequently overturned on appeal, something that would also disturb reasonable members of the public. The reviewability interest therefore agitates in favour of release before what may be pointless detention occurs.

[12]       The list of factors to be considered in evaluating the impact of a bail pending appeal decision on public confidence in the administration of justice is not closed. It is helpful, however, to pay regard to the list of factors found in Criminal Code, s. 515(10): Oland, at para. 32. This section relates to whether pre-trial detention is necessary to maintain confidence in the administration of justice, but it identifies central considerations in gauging the impact of bail pending appeal decisions on public confidence in the administration of justice. These considerations include: (1) the strength of the prosecution case, measured through the strength of the grounds of appeal; (2) the gravity of the offences; (3) the circumstances surrounding the commission of the offences; and (iv) the fact that the accused is liable for a lengthy term of imprisonment.

[13]       Mr. Ruthowsky argues that his appeal is extremely strong and undercuts his entire conviction, supporting his release notwithstanding the gravity of the offences for which he was convicted. He points out that bail pending appeal has been granted in cases involving the most serious of offences, including murder in Oland. Bail pending appeal was also initially granted in R. v. Forcillo, 2016 ONCA 606, a high profile case involving a police officer convicted of attempted murder.

[14]       The Crown maintains that given the weakness of his grounds of appeal, the seriousness of his crimes, the aggravating features identified by the trial judge, the lengthy period of incarceration, and the residual risk that Mr. Ruthowsky could flee, the enforcement interest must be given priority.

(1)         The Strength of the Prosecution Case/Grounds of Appeal

[15]       The strength of the prosecution case under s. 515(10)(c)(i) translates, in the bail pending appeal context, into the strength of the grounds of appeal: Oland, at para. 40. At this stage, an inquiry into the strength of the grounds of appeal cannot rise above a preliminary assessment, based on judicial knowledge and experience, since it is not realistic to hear full argument on the grounds of appeal with the benefit of full transcripts. At this juncture, I am to consider the general legal plausibility of the grounds of appeal and their foundation in the record: Oland, at para. 44.

[16]       Mr. Ruthowsky has raised numerous grounds of appeal in his notice of appeal, but focused on two in oral submissions. I will begin with those two specific grounds before discussing the rest.

(a)         Reasonable Apprehension of Bias

[17]       Mr. Ruthowsky appeals on the basis that the trial judge demonstrated a reasonable apprehension of bias in the way he conducted the trial. Thus denying Mr. Ruthowsky a fair and impartial trial. He says that the trial was conducted in an atmosphere of “unabated oppression” towards the defence.

[18]       To establish this, Mr. Ruthowsky relies primarily on an “information and belief” affidavit included in the application record. The affiant, a law student who works for Mr. Lafontaine (Mr. Ruthowsky’s trial and appeal lawyer), records observations made at trial by Mr. Ruthowsky’s lawyers, as well as by Mr. Ruthowsky’s sister-in-law. The hearsay reported by the law student describes the judge disparaging the defence case or betraying his disapproval of the defence by variously shaking his head and rolling his eyes, demonstrating impatience or disapproval through his body language, huffing and scoffing, scowling, sighing loudly, glaring and appearing visibly annoyed, angry, frustrated, or looking “disdainfully” or “with apparent disapproval”.

[19]       Mr. Ruthowsky also relies on the trial record, which he says shows that the trial judge demonstrated impatience with the defence. Mr. Ruthowsky further claims that the trial judge assisted the Crown by laying out the allegations supporting each count that he felt had been addressed in Mr. Ruthowsky’s evidence, thereby providing the Crown with a roadmap for cross-examination.

[20]       Finally, Mr. Ruthowsky relies on the manner in which he was sentenced. He claims that the trial judge subjected him, gratuitously, to a harsh three hour dressing down in which the trial judge’s personal revulsion for Mr. Ruthowsky was palpable, before imposing an unfit sentence in excess of what the Crown was seeking.

[21]       Reasonable apprehension of bias based on misconduct by a trial judge is a difficult ground of appeal. “There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption”: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18. See also Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 25. As the Supreme Court held per curiam in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59, “the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption.”

[22]       The evaluation of whether a reasonable apprehension of bias has been created is context-driven, influenced not only by the conduct of the trial judge, but the context in which that conduct occurred. As this court’s decision in R. v. Hungwe, 2018 ONCA 456 demonstrates, a conviction appeal based on judicial bias can succeed even though the underlying proceeding is a jury trial – and thus where it is the jury and not the judge that determines guilt. The separation of functions between judge and jury can, however, present additional challenges in reasonable apprehension of bias appeals relating to the trial judge: R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.), 191 O.A.C. 212.

[23]       It would not be appropriate to discount the merits of Mr. Ruthowsky’s reasonable apprehension of bias appeal based solely on such generic observations. There are, however, particularized and significant impediments to this ground of appeal that materially reduce the chances that this appeal will succeed.

[24]       For example, in this case, the jury was directed to decide the case on the evidence, based on their own opinions.

[25]       More importantly, there are imposing impediments to this ground of appeal that arise from the failure of defence counsel to object, and the absence of an evidentiary record at trial confirming the allegations now being made about the trial judge’s demeanour. This failure to contemporaneously document in open court the trial judge’s impugned conduct in the record creates at least three problems.

[26]       First, as this court confirmed in R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 33, “at least as a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so”. This did not occur here.

[27]       Second, as reasonable apprehension of bias was not raised as an issue at trial, it becomes a new argument sought to be raised on appeal. It is therefore unclear whether this ground of appeal will even be allowed to proceed: R. v. Perka, [1984] 2 S.C.R. 232, at p. 240 per Dickson J.; and R. v. Brown, [1993] 2 S.C.R. 918, at p. 923 per L’Heureux-Dubé J. (dissenting). This court has held that where a new issue is raised for the first time on appeal, the burden falls on the party raising it to demonstrate that all of the facts necessary to address the proposed issue are fully before the court, that the failure to raise the issue was not tactical, and that the refusal to hear the argument would result in a miscarriage of justice: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 42-44.

[28]       It is not clear that Mr. Ruthowsky can discharge that burden. Crown arguments made before me raise concerns about the absence of a fair and reliable evidentiary record, as a result of the failure to object during the trial. The Crown also makes a weighty case that the failure to raise the bias issue at trial was a tactical decision. Finally, the Crown claims that the failure to object created irreparable prejudice, since, had there been a meritorious objection, the trial judge could have provided a pointed mid-trial direction and a final direction to the jury not to be influenced by his behaviour: Snow, at paras. 48-49.

[29]       Third, this ground of appeal depends, in material part, on a successful fresh evidence application. Yet the failure to object during the trial has created problems for the defence in meeting the Palmer test: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. The facts claimed in the information and belief affidavit now being relied upon could arguably have been made part of the trial record with due diligence, and the second-hand opinion evidence from interested observers about the trial judge’s demeanour is apt to be found to be insufficiently reliable to gain admission.

[30]       There are therefore imposing hurdles to the success of this ground of appeal. As a result, I cannot agree with Mr. Ruthowsky. This is not a ground of appeal that clearly surpasses the “not frivolous” threshold.

(b)         Legal Errors in the Trafficking Conviction

[31]       In this case, the trial judge made findings of fact during sentencing, pursuant to Criminal Code, s. 724(2)(b). Mr. Ruthowsky submitted in oral argument that the trial judge erred by finding that he aided the offence of drug trafficking by arranging, on behalf of a drug dealer, for a superior cutting agent to be identified through lab testing and thereby increasing the drug dealer’s profits. Mr. Ruthowsky claims that this is not an appropriate basis for liability, and that, even if it was, the trial judge erred by treating this singular act as aiding ongoing drug trafficking activities.

[32]       In my view, this ground of appeal is without merit. Assisting a known drug dealer in the selection of a cutting agent to be used in trafficking narcotics constitutes aiding the offence of narcotics trafficking. The law does not require advance knowledge of the specific acts of trafficking that will occur. Moreover, this was not the only basis for Mr. Ruthowsky’s narcotics trafficking conviction. The trial judge also found that Mr. Ruthowsky assisted a known drug trafficker by advising him of how to avoid being caught trafficking.

(c)         Remaining Grounds in the Notice of Appeal

[33]       I now turn to the remaining grounds of appeal in Mr. Ruthowsky’s notice of appeal that did not feature during oral argument.

[34]       The first ground in the notice of appeal is that the trial judge erred in permitting the Crown to adduce evidence from a Crown witness that the appellant had twice identified a confidential informant to the witness, without permitting the informant’s identity to be disclosed. It is Mr. Ruthowsky’s position that, without disclosing the informant’s identity, it was not possible for him to cross-examine that witness effectively.

[35]       This ground of appeal, while arguable, is not strong. Informer privilege is a fixed rule of law. In order to overcome that privilege, an accused person must persuade a judge that their innocence is at stake unless the privilege is set aside: R. v. Liepert, [1997] 1 S.C.R. 281, at para. 20; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 29; and R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 11. I note that the defence did not object to the evidence being led, or bring an application to disclose the confidential informer’s privilege during trial. This makes an appeal on this issue difficult to maintain.

[36]       The second ground of appeal identified in the notice of appeal is that the trial judge erred in permitting the Crown to expand the appellant’s scope of potential liability beyond what was contemplated when the prosecution began. In other words, Mr. Ruthowsky claims that the Crown changed its theory about how the charged offences occurred. Mr. Ruthowsky argues that this made it more difficult to defend the charges. This is an arguable ground of appeal, but it, too, is not without its challenges. The Crown is not bound to prove a case according to any particular factual or legal theory. Unless the right of the accused to make full answer and defence is compromised by doing so, the Crown is free to rely on different theories of liability that are rooted in the evidence. To succeed, Mr. Ruthowsky will have to show that a change in the Crown’s theory occurred, and that it prejudiced his ability to defend himself. However, no specific evidence of such prejudice been offered in the application record.

[37]       The third ground of appeal identified in the notice of appeal is that the trial judge erred in failing to give counsel the opportunity to review hundreds of pages of new disclosure produced at trial. Based on the material before me, it appears that the trial judge ultimately ruled that defence counsel should proceed with his cross-examination, but would be entitled to an adjournment when he got to the new documents in his questioning of the witness. It appears that is what happened. Accordingly, I do not believe this to be a strong ground of appeal.

[38]       The fourth ground of appeal in the notice of appeal raises issues with the jury charge.

[39]       The first jury direction complaint relates to the failure by the trial judge to instruct the jury as suggested in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, that proof beyond a reasonable doubt falls closer to absolute certainty than proof on the balance of probabilities. Although some judges direct juries in this way, Starr has not been interpreted authoritatively as requiring that this exact form of direction be given. While the Canadian Criminal Jury Instructions model charge includes this passage from Starr,[1] the current edition of Watt’s Manual of Criminal Jury Instructions does not.[2] To succeed on this ground of appeal, it appears that Mr. Ruthowsky will have to move the law, as it is currently understood.

[40]       The balance of the issues raised with the jury charge depend on whether Mr. Ruthowsky’s characterization of what the trial judge said bears up when the jury charge is read as a whole. The descriptions of the charge offered are controversial. These grounds of appeal are arguable, but have not shown to clearly surpass the “not frivolous” threshold.

[41]       The fifth ground of appeal in Mr. Ruthowsky’s notice of appeal alleges an error in the trial judge’s decision to deny a stay of proceedings application brought pursuant to s. 24(1) of the Charter of Rights and Freedoms. This ground of appeal is presented as a bald assertion, without an attempt to identify errors of law, or principle, or unreasonable findings of fact. On this record, it stands no chance of success.

[42]       In sum, Mr. Ruthowsky is seeking bail pending appeal without the benefit of grounds of appeal that clearly surpass the “not frivolous” threshold. This weakens the reviewability interest.

(2)         The Gravity of the offences and the Circumstances Surrounding the Commission of the Offences

[43]       The crimes that Mr. Ruthowsky has been convicted of are grave. In his reasons for sentence, the trial judge described that they were committed in seriously aggravated circumstances. He was found to have repeatedly abused the trust reposed in him by the community over a protracted period, facilitating drug trafficking for his own enrichment. The sums involved where significant. He was found to have exposed the identity of a confidential informant to a known drug trafficker, and to have warned that trafficker that prospective buyers were undercover police officers.

[44]       These factors agitate in favour of his continued detention as they elevate the enforcement interest.

(3)         The Length of Imprisonment

[45]       Mr. Ruthowsky was sentenced to 13 years in custody. Even if his sentence appeal succeeds, he is facing a lengthy period of incarceration. I do not trivialize the loss of liberty that occurs during detention pending appeal, even for those who have much longer sentences to serve. There is no risk, however, that Mr. Ruthowsky will serve anything close to the full sentence imposed on him pending his appeal. Denying his release pending appeal will not, for all practical purposes, undermine the reviewability interest of the decision against him.

CONCLUSION

[46]       I bear in mind that courts have been instructed that only a fraction of bail pending appeal applications should be resolved based upon the impact that release pending appeal would have on public confidence in the administration of justice. I am also mindful that, in balancing the enforceability and reviewability interests, I am to conduct the evaluation through the eyes of a reasonable member of the public.

[47]       Mr. Ruthowsky has been convicted of very serious crimes, committed in aggravated circumstances, and his grounds of appeal do not clearly surpass the “not frivolous” threshold. A reasonable member of the public would conclude, in my view, that the public interest in enforceability outweighs the reviewability interest in this case. Mr. Ruthowsky has not satisfied me that his detention is not necessary in the public interest, to preserve public confidence in the administration of justice.

[48]       I therefore dismiss Mr. Ruthowsky’s application for bail pending appeal. As a result, it is particularly important that the appeal proceed without delay. I order that the appeal be expedited pursuant to s. 679(10) of the Criminal Code. I am prepared to assist the parties in achieving that. Counsel will coordinate and provide this court with mutually agreeable dates within the next three weeks for a case conference that I am offering to conduct so that directions may be given to expedite the appeal.

“David M. Paciocco J.A.”