R v Delaire, 2020 ABCA 380
On October 28, 2020, the Alberta Court of Appeal in Calgary released a bail decision in the case R v Delaire, in which the accused was convicted at trial of manslaughter, for abetting the murder of two victims by one Christian Ouellette. Specifically, the accused counselled the person who actually committed the murders on how best to go about them to avoid arrest. The accused was recorded saying the following to a friend, who was wearing a wire:
Even Christian … I was, like, “Dude, don’t do it”. I was like, “If you’re gonna do it”, I was like, “Be smart about it”. Like I was like, “Don’t just go fuckin’ message him and be like let’s meet up, and fuckin’ shoot him. Like, be smart about it. Do your investigation. Find out where he lives. Like guy gets to his condo or whatever, like, just pop him in his car. Like, do it. Smart.
The Court of Appeal observed that prior to trial, it’s almost always the prosecutor’s responsibility to establish that an accused person should be detained without bail. However, the Court stated, after conviction there is no further presumption of innocence; bail becomes more difficult to achieve.
Instead, the onus is on the accused to establish that:
- his appeal is not frivolous;
- he will surrender himself into custody in accordance with the terms of the order; and
- his detention is not necessary in the public interest.
To establish that an appeal is not frivolous, it is critical to be able to read a trial transcript and identify real errors made by either the prosecutor or the judge. The Court of Appeal does not necessarily have to agree with the accused that those errors occurred, but the Court must believe there is some possibility that they did. Not all of those errors will be obvious to an accused without legal training, or to a lawyer without the bail expertise that the Alberta Bail Office has.
In this case, the accused raised both factual concerns and, with the assistance of his bail lawyer, a compelling argument regarding the definition of what constitutes “abetting” under section 21(1)(c) of the Criminal Code. The accused pointed out that the trial judge did not aid in the commission of the offence: the accused did not advocate for the victim’s murder, nor did he deliberately encourage Ouellette to kill the victim. In fact, he pleaded with Ouellette not to do so. The Court found this argument by the accused’s counsel persuasive, and the first element necessary for the accused to be released on bail was satisfied.