R. v. Rosbergen

2025 BCCA 362 R. v. Rosbergen

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Rosbergen, 2025 BCCA 362 Date: 20251022 Docket: CA50614 Between: Rex Applicant And Adrianus Johannes Rosbergen Respondent Direction of the Chief Justice on an Application for Review Pursuant to Section 680 of the Criminal Code of Canada. Counsel for the Applicant: E. Purtzki Counsel for the Respondent: P. McMurray Written Submissions of the Applicant Filed: September 17, 2025 Written Submissions of the Respondent Filed: October 1, 2025 Place and Date of Judgment: Vancouver, British Columbia October 22, 2025 Summary: The Crown seeks a direction under s. 680 of the Criminal Code for a review of the order to release Mr. Rosbergen on bail pending appeal. Held: Application granted. It is arguable that, in the circumstances of this very serious case, the chambers judge failed to meaningfully grapple with the strength of Mr. Rosbergen's grounds of appeal. Reasons for Judgment of the Honourable Chief Justice Marchand: Overview [1] On December 10, 2024, the appellant, Adrianus Johannes Rosbergen, was convicted by a jury of the February 19, 2017 second degree murder of Allen Skedden. At the time of the murder, Mr. Rosbergen was 74 years old. He is now 82. [2] On April 16, 2025, Mr. Rosbergen was sentenced to life in prison with no eligibility for parole for a minimum of 12 years. On April 17, 2025, Mr. Rosbergen filed a notice of

appeal from his conviction. On August 22, 2025, Mr. Rosbergen was released on bail pending the conviction appeal. [3] The Crown seeks a direction under s. 680 of the Criminal Code, R.S.C. 1985, c. C-46 for a review of the order to release Mr. Rosbergen on bail pending appeal. [4] The Crown acknowledges Mr. Rosbergen's appeal is not frivolous. Further, the Crown does not dispute Mr. Rosbergen will surrender himself into custody in accordance with the release order. [5] The Crown submits, however, the chambers judge committed two errors in principle in ordering Mr. Rosbergen's release. Specifically, the Crown submits the chambers judge erred by: 1. Failing to engage with the strength of the appeal relative to the significant enforceability concerns arising from Mr. Rosbergen's conviction; and 2. Failing to consider the length of Mr. Rosbergen's sentence relative to any anticipated delays in hearing the appeal. [6] For the reasons that follow, I direct a review of the release order under s. 680 of the Code. The Circumstances [7] The circumstances of Mr. Rosbergen's offence were summarized as follows by the trial judge in her unreported reasons for sentence: · Mr. Rosbergen beat Mr. Skedden, causing blunt force trauma injuries, causing five broken ribs and a broken arm; · Mr. Rosbergen caused injury to Mr. Skedden while they were in Mr. Rosbergen's truck; · Mr. Rosbergen caused Mr.

Skedden to be placed in his trailer on River Road; · at the time Mr. Skedden was in the trailer, he bled from his injuries, and Mr. Rosbergen placed duct tape on Mr. Skedden's neck to attach some material which caused Mr. Skedden to suffocate; · Mr. Rosbergen placed Mr. Skedden's body in a sleeping bag and disposed of his body at the river; · knowing that his sleeping bag and flashlight would be found with Mr. Skedden's body, Mr. Rosbergen made a false report of theft of these items in an attempt to thwart any investigation into his involvement in Mr. Skedden's death; · Mr. Skedden's body was predated upon by animals before it was found; · Mr. Rosbergen enlisted his friend to cover up evidence of Mr. Skedden's blood in the trailer on River Road. [8] The trial judge described the circumstances as "aggravating" and Mr. Rosbergen's disposal of Mr. Skedden's body as "particularly callous and brutal". Although Mr. Rosbergen had no prior criminal history or history of violence, the trial judge considered him to have a high level of moral blameworthiness. Judgment Ordering Release Pending Appeal [9] The chambers judge's reasons for ordering Mr. Rosbergen's release pending appeal are unreported. I summarize what I consider to be the essential elements of his analysis below. [10] After setting out the basic background, the chambers judge identified the key issue to be whether Mr.

Rosbergen's release pending appeal would undermine public confidence in the justice system. [11] The chambers judge then carefully reviewed the evidence against Mr. Rosbergen, including DNA and other circumstantial evidence, as well as self-incriminating statements made by him. The chambers judge also noted Mr. Rosbergen's personal circumstances, including his age, health issues, lack of prior criminal record and good performance on bail pending trial. [12] The chambers judge accurately set out the principles on applications for release pending appeal on indictable matters. He held: [14] Applications for release pending appeal on indictable matters are governed by s. 679 of the Criminal Code. To obtain release on bail pending an appeal from conviction under s. 679(3), Mr. Rosbergen must show: (a) that his appeal is not frivolous; (b) that he will surrender himself into custody for the hearing of the appeal in accordance with the terms of his release order; and (c) that his detention is not required in the public interest. [15] There is no presumptive entitlement to bail pending appeal from conviction on an indictable matter. Further, because Mr. Rosbergen was found guilty following a trial, he no longer benefits from any presumption of innocence. [13] The chambers judge next noted, "the debate between the parties centered on the public interest element of the test for release

as set out in s. 679(3)(c)." He referenced the leading case of R. v. Oland, 2017 SCC 17, which confirmed that the public interest element has two branches. As the chambers judge stated: [20] The first branch of the analysis is concerned with public safety. An applicant will not be granted bail pending appeal from conviction unless it is shown that release into the community will not pose a substantial risk to the safety of the community. Even where the applicant satisfies the court that this threshold has been met, residual public safety concerns that fall short of substantial risk may factor into the second branch of the analysis: Oland at para. 39, among others. [21] The second branch of the analysis is concerned with public confidence in the administration of justice. Although s. 679(3) does not contain a list of factors or considerations relevant to the assessment of public confidence, guidance can be taken from the four factors found in s. 515(10)(c), the public confidence branch of the test for release on bail pending trial. The four factors listed there are: the strength of the Crown's case, the gravity of the offence, the circumstances surrounding its commission, and the likely sentence: Oland at paras. 31-32. In the post-conviction context, where the presumption of innocence no longer applies, the analysis is focused on the tension between the interests of

enforceability and reviewability: Oland at paras. 34-36. These two competing interests must be subjected to a weighing or balancing, with the ultimate question being whether the applicant can satisfy the court that detention is not necessary to maintain the public confidence in the justice system, assessed through the eyes of a reasonable and informed member of the public: Oland at para. 47. [14] The chambers judge also referenced a passage in Oland where Justice Moldaver held, "even in the case of very serious offences, where there are no public safety or flight concerns and the grounds of appeal clearly surpass the 'not frivolous' criterion, a court may well conclude that the reviewability interest overshadows the enforceability interest such that detention will not be necessary in the public interest": Oland at para. 66. [15] The chambers judge began his analysis by evaluating the reviewability interest. Given Mr. Rosbergen's arguments would eventually come before a division, the judge indicated he would be "somewhat circumspect" in his evaluation of various grounds of appeal. [16] After conducting the necessary "preliminary assessment" of the strength of the appeal, the chambers judge concluded "there are at least some grounds of appeal that are arguable and clearly surpass the 'not frivolous' threshold." More specifically, he held: a) There was "some legal merit" to Mr.

Rosbergen's argument the trial judge erred in restricting the cross-examination of a key Crown witness related to a polygraph test he had taken; and b) Some of Mr. Rosbergen's arguments regarding the trial judge's instructions to the jury also surpassed the "not frivolous" threshold. [17] In turning to the enforceability interest, the chambers judge accepted that Mr. Rosbergen's offence was very serious, and the sentence substantial. In the chambers judge's view, there was "a strong public interest in seeing the sentence enforced without delay." [18] In terms of striking the balance between the interests of reviewability and enforceability, the judge considered Mr. Rosbergen's age to be neutral noting: [33] On the one hand, if he is released he could avoid serving his sentence for as long as it takes for his appeal to be heard, in circumstances where there is room to question the likelihood of success. On the other hand, if he is not released, he would spend an appreciable amount of time in custody awaiting his hearing, in circumstances where he has a viable but by no means overwhelmingly strong appeal. [19] After holding "public confidence would not be undermined by unease about flight risk or threats to community safety arising from Mr. Rosbergen's release", the chambers judge stated "[i]t comes down to a pure question of public confidence in the administration of justice,

given the seriousness of the offence and the relative strength of the grounds of appeal." [20] The chambers judge concluded his analysis as follows: [35] We can see from Oland that where there are no residual public safety or flight concerns, and the grounds of appeal clearly surpass the "not frivolous" threshold, reviewability may outweigh enforceability, even in the case of a very serious offence such as murder. Of course, this is not a formula or a straightjacket. The analysis must turn on the particulars of the case. I would say this is a close call given the gravity of the offence and Mr. Rosbergen's moral blameworthiness as found by the trial judge. However, a reasonably informed member of the public would take into account that, if bail is denied, Mr. Rosbergen could spend a considerable amount of time in jail pending the hearing of his appeal, in circumstances where he appears to have at least some arguable grounds on which to challenge the soundness of his conviction. [21] Having reached this conclusion, the chambers judge released Mr. Rosbergen on terms he considered appropriate in the circumstances. Standard of Review [22] Under s. 680 of the Code, the Chief Justice may direct that a bail decision made by a single judge sitting in chambers be reviewed by a division of the Court. [23] In R. v. Poony, 2017 BCCA 447, Chief Justice Bauman set out the proper approach to the task of determining whether to direct such a review: [22] In deciding whether to direct a review, I must consider "whether it is arguable that the judge committed material errors of fact or law in arriving at the impugned decision, or that the impugned decision was clearly unwarranted in the circumstances": Oland at para.

64. This test takes into account the standard of review to be applied by a division of this Court on a review hearing: Oland at para. 55. [23] Any review of the chambers judge's decision must be guided by the following principles (Oland at para. 61): 1. Absent palpable and overriding error, the review panel must show deference to the judge's findings of fact; 2. The review panel may intervene and substitute its decisions for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome; and 3. In the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. [24] On the last point, a decision cannot be found to be unwarranted "simply because a different judge or judges may come to a different balancing result." Rather, a decision will be "clearly unwarranted" only where it is arguable that no reasonable chambers judge would make the same decision: Poony at paras. 29-30. Analysis [25] The question before me is whether it is arguable the chambers judge committed material errors of fact or law in arriving at his decision, or that his decision was clearly unwarranted in the circumstances: Oland at para. 64. [26] In my respectful view, the Crown has surpassed this test in relation to its first ground of review,

namely that the chambers judge failed to engage with the strength of the appeal relative to the significant enforceability concerns arising from Mr. Rosbergen's conviction. [27] I agree with Mr. Rosbergen that the reasons of the chambers judge must be read as a whole and that, in doing so, it is clear the chambers judge "was alive to the requirement to assess the strength of the grounds of appeal." [28] I also agree with Mr. Rosbergen that the chambers judge's circumspection was understandable. Yet, it is arguable that, in the circumstances of this very serious case, the chambers judge was required to meaningfully grapple with the strength of Mr. Rosbergen's grounds of appeal. It is also arguable that he did not do so. [29] Having reached this conclusion, I do not consider it necessary or helpful to comment on the Crown's second ground of review. Disposition [30] I grant the Crown's application and direct that Mr. Rosbergen's release order be reviewed by a division of the Court under s. 680 of the Code. "The Honourable Chief Justice Marchand"