R. v. Trocym

R. v. Trocym Collection Decisions of the Court of Appeal Date 1999-09-13 Docket numbers C23653, M24509 Judges Carthy, James Joseph Subject Criminal Decision Content DATE: 19990913 DOCKET: M24509 C23653 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) and STEPHEN TROCHYM (Applicant/Appellant) BEFORE: CARTHY J.A. (In Chambers) COUNSEL: James Lockyer and Andras Schreck For the appellant Kenneth Campbell For the respondent HEARD: September 10, 1999 ENDORSEMENT [1] This is an application for bail pending appeal from a conviction for 2nd degree murder. On October 14, 1992, Donna Hunter was murdered and her body found some days later in her apartment. The evidence against the applicant was entirely circumstantial. No forensic evidence connected him to the crime, no witness gave direct evidence concerning the crime, and the applicant made no inculpatory statements. The applicant and Ms. Hunter had just ended a relationship and the thrust of the Crown’s evidence related to motive, opportunity, and the applicant being seen in Ms. Hunter’s apartment complex at or about the time of the murder. There was also evidence introduced as to the conduct of the applicant going to similar fact circumstances and consciousness of guilt. [2] The applicant appealed his conviction and the Crown cross- appealed against the parole ineligibility period of 10 years. [3] Counsel for the applicant stated that he did not bring an earlier bail application because he did not feel be could justify such an order on an appeal from a murder conviction armed only with trial counsel’s opinion in support of a Legal Aid application. He said he needed the transcripts of evidence and only recently acquired sufficient pieces of transcript to provide a foundation for his argument on the merits of the appeal. [4] The history concerning the production of transcript now becomes a factor in the bail application itself, reflecting, as it does, on the administration of justice. [5] Most of the 75-day-trial was recorded in shorthand by the reporter Brian Keeley. A transcript was ordered in January 1996 at an estimated cost of $37,800.00. [6] Over the course of the next year and a half Mr. Keeley inveigled out of counsel for the applicant $35,800.00 without apparently producing any transcript. [7] By order of October 28, 1997, Finlayson J.A. directed Mr. Keeley to hand over to Eya Greenland, Acting Manager of Judicial Administration and Court Reporting, all his notes, tapes and transcripts and to co-operate with Ms. Greenland in the preparation of the transcript. [8] That order failed to produce the expected result. In June of 1999 Ms. Greenland reported that Mr. Keeley had co-operated at the beginning, but then moved to Ottawa, his telephone was disconnected, and she was unable to contact him thereafter. She and her staff had produced transcripts for about 38 days but the shorthand notes for the remaining 37 days were indecipherable. [9] It was at this point that the bail application was launched, returnable before Labrosse J.A. on July 9th, 1999. The applicant wished to proceed on the merits but the application was adjourned to July 15th with a direction that Mr. Keeley attend. He appeared under subpoena before Weiler J.A. and was examined under oath, admitting that he had extracted payment without performing and giving assurances of future co-operation. Weiler J.A. ordered that he dictate tapes at the rate of one trial day every two days and adjourned the bail application to September 10th, again over the objection of the applicant. It was agreed that Ms. Minardi, who replaced Ms. Greenland, would see to transcribing from the tapes and provide transcripts to the applicant’s counsel when each was completed. [10] As of September 10th, and the return of this application before me, no transcripts have been delivered to Mr. Lockyer and Mr. Keeley has dictated tapes for only 11 days of the 17 or 18 that should have been done under the schedule in the order of Weiler J.A. A telephone discussion between counsel and Ms. Minardi suggests that her failure to deliver transcripts, as completed, was an oversight which would be corrected. [11] The Crown did not ask for a further adjournment and the application was argued on the merits. [12] If this appeal had been from a less serious conviction than a homicide there would be little doubt as to the outcome of this application. The report from the institution indicates that the applicant has been a model prisoner, he has the full support of his family, and his employment at Canada Post awaits him upon release. The Crown made no comment in argument on these factors. Nor does the Crown argue that the appeal grounds are frivolous – only that they are less impressive than as opined by Mr. Lockyer. The thrust of Mr. Campbell’s argument was that the applicant failed to meet the high onus imposed upon a person convicted of such a serious crime as murder to overcome the public interest factor in favour of enforcement of the penalty, rather than release pending review. Reference was made to R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), where this court reviewed and approved of previous authorities stating that in appeals from conviction for such serious crimes as murder the appellant must show something more than that the appeal is not frivolous and that he will surrender prior to the hearing. Otherwise the public confidence in the enforcement of the criminal law will be undermined. On the other hand, it was recognized that there will be cases where the appeal hearing is so long delayed and the probability of success so strong that it would be contrary to the public interest to refuse a release. [13] Arbour J.A. stated at p. 48-49: There may have been a time when appellate delays were so short that bail pending appeal could safely be denied, save in exceptional circumstances, without rendering the appeal illusory. Such is no longer the case. In both civil and criminal cases, appellate court judges are often required to balance two competing principles of justice: reviewability and enforceability. Ideally, judgments should be reviewed before they have been enforced. When this is not possible, an interim regime may need to be put in place which must be sensitive to a multitude of factors including the anticipated time required for the appeal to be decided and the possibility of irreparable and unjustifiable harm being done in the interval. This is largely what the public interest requires be considered in the determination of entitlement to bail pending appeal. This is what appellate judges do, sitting alone or on a review panel; this is what appellate judges have always understood their mandate to be. Any difference of opinion as to whether an individual applicant should or should not be granted bail merely reflects a different judgment in the application of the legal standard to the facts. It does not suggest that there is no discernable standard to be applied. [14] Respecting delay, the most optimistic projection is that this appeal will not be heard before the summer of 2000 and, given past performance and the current failure of Mr. Keeley to respond in full to two court orders, the realistic projection is probably November or December 2000. Even this assumes that accurate transcripts are forthcoming from what others have found to be unintelligible shorthand notes. Thus, at best the applicant will serve 5 years of his sentence before review by this court, and at worst even longer. The court reporter individually, and the administration of justice generally, is responsible for the delay and this cannot be ignored in weighing the public interest factor. [15] Turning to the merits, I heard a very full argument based upon the available transcripts, but must avoid expressing opinions which may transgress upon the full hearing before a panel of this court. It is sufficient for present purposes to observe that in a trial dependent solely upon circumstantial evidence any error made as to the admission of evidence may be significant or even critical. Here, the issues include the admission of hypnotically aided evidence as to the applicant’s presence at the apartment building, (an issue that has not previously been dealt with by this court). Further, there is an issue as to similar fact evidence that the applicant lost his temper and banged on a door when he broke up with a previous lady friend (a witness heard someone banging on the deceased’s door in this case, suggesting by the similar fact evidence that this was the applicant). Evidence was admitted going to consciousness of guilt, including such matters as not attending the deceased’s funeral, the subject of criticism (in different factual circumstances) by the Honourable Fred Kaufman in his report on the Commission concerning Guy Paul Morin. [16] I refer to the above as the most provocative of points of appeal and to illustrate that the debate will be a lively one on legal issues, which, if decided singly or collectively in favour of the applicant could lead to a new trial. [17] It is my duty to balance the considerations and decide, as best I can, what serves the public interest. The seriousness of the crime has been overlayed with the unconscionable delay which is still ongoing and is preventing the applicant from presenting a legitimate argument for review of his conviction. A reasoned and balanced public perception must be one of indignation with a sense that compromise against the usual strictures is in order. I have no hesitation in concluding that this applicant in these circumstances should be released pending the hearing. [18] It is easier to reach this conclusion knowing that the applicant has support in the community and has been a responsible inmate since his incarceration. Counsel have agreed to conditions to be included in his release order, in anticipation that I might so order, and these are appended to these reasons. [19] An order of release will issue on those conditions. [20] This case presents a shocking aberration in our court reporting system, not likely ever to be repeated. Nonetheless, this extreme example points up the impact which the court reporting system has upon appellate hearings generally. Preparation of a transcript from manual recording methods takes time and delays all appeals, some quite significantly. Any delaying factor which can be avoided is a detriment to the administration of justice. Modern electronic reproduction gives reality to instant availability of transcripts and it is my hope that this case and these comments will spur on those who are presently experimenting with new systems and dealing with the policy issues related to a conversion. “Carthy J.A.” Appendix to reasons of Carthy J.A. can be obtained from the Court of Appeal Office.