COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Shevalev,

 

2018 BCCA 388

Date: 20181015

Docket: CA45443

Between:

Regina

Respondent

And

Alexander Shevalev

Appellant

Before:

The Honourable Mr. Justice Groberman

(In Chambers)

On appeal from:  An order of the Supreme Court of British Columbia, dated
June 30, 2018 (R. v. Shevalev, Vancouver Docket 26839).

Oral Reasons for Judgment

Counsel for the Appellant:

R.C.C. Peck, Q.C.

G.A. Orris, Q.C.

M. Shah

Counsel for the Respondent:

M.T. Ainslie, Q.C.

B. Petherbridge, Articled Student

Place and Date of Hearing:

Vancouver, British Columbia

October 11, 2018

Place and Date of Judgment:

Vancouver, British Columbia

October 15, 2018


 

Summary:

The appellant was convicted of second degree murder. He applied for bail pending appeal. The judge who heard the bail application characterized the offence as “extremely serious” and the grounds of appeal as “not particularly strong”. She considered that the appellant’s situation was one where there was a “lingering flight risk”. In the circumstances, she found that the public interest required his continued detention pending appeal. After receipt of the full trial transcript and preparation of a draft factum, the appellant made a second application for bail. He filed new affidavits expanding on his release plan and discussing his limited ties to Russia. He contended that the improved articulation of the grounds of appeal, the addition of a third ground of appeal, and the new affidavits constituted material changes in circumstances. Held: Bail application dismissed. While the receipt of the transcript allowed the appellant to articulate his grounds of appeal more precisely, the grounds considered by the chambers judge were not strengthened. Similarly, the additional evidence on the appellant’s situation does not constitute a change of circumstances. While the new ground of appeal might be characterized as a change in circumstances, it does not substantially alter the strength of the appeal. Further, the new ground relates only to the question of whether the appellant might have been found guilty of manslaughter rather than murder. The public interest continues to favour enforceability.

[1]            GROBERMAN J.A.: This is the appellant’s second application for bail pending appeal.

[2]            On June 30, 2018, the appellant was convicted of the second degree murder of his father. He was given the mandatory sentence of life imprisonment, without eligibility for parole for ten years. He has brought an appeal from conviction.

[3]            On July 20, 2018, in reasons indexed as 2018 BCCA 333, my colleague, Dickson J.A. denied an application for bail pending appeal under s. 679 of the Criminal Code, R.S.C. 1985, c. C-46. The relevant subsection reads:

(3)        [A] judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

(a)  the appeal … is not frivolous

(b)  he will surrender himself into custody in accordance with the terms of the order; and

(c)  his detention is not necessary in the public interest.

[4]            Applying the law as discussed in R. v. Oland, 2017 SCC 17, she found that Mr. Shevalev’s appeal was not frivolous, and that he had shown, on the balance of probabilities, that he would surrender himself as required. She found, however, that his continued detention was necessary in the public interest. While she was satisfied that releasing Mr. Shevalev would not threaten public safety, she found that his release would undermine public confidence in the administration of justice.

[5]            In doing so, the judge characterized the offence as “extremely serious” and the circumstances of the crime as “very disturbing”. After reviewing the material provided and the judge’s written charge to the jury, she concluded that the grounds of appeal were “not … particularly strong”. She also had “concerns regarding lingering flight risks”. In discussing the flight risk, she noted the considerable financial resources available to the appellant and to his mother, the existence of strong ties to Russia, and the appellant’s history of untruthfulness and experience in acquiring funds illicitly. In balancing the interests of enforceability and reviewability the judge found that the balance tipped in favour of enforceability.

[6]            Since the hearing before my colleague, the appellant has obtained full trial transcripts, including pre-charge submissions by counsel to the judge, the closing addresses of counsel to the jury, the judge’s full instructions to the jury, the submissions of counsel and the instructions of the judge following a question from the jury, and the reasons for sentence.

[7]            The appellant and his mother have also filed additional affidavits clarifying their financial positions and indicating that their ties to Russia are limited.

[8]            The appellant has now filed a second application for bail pending appeal. The law is clear that such an application may be brought if there has been a material change in circumstances since the first bail application: R. v. Daniels (1997), 35 O.R. (3d) 737; R. v. Wilder, 2006 BCCA 290.

[9]            A material change in circumstances is generally the result of an event that serves to shift the assessment of the strength of the case or the public interest in continued incarceration pending appeal. In Daniels, however, the Ontario Court of Appeal recognized that, in rare cases, the opportunity to re-articulate legal arguments can amount to a material change in circumstances:

[43]      Usually, subsequent applications based on an alleged change in circumstances depend upon some event which occurred between the initial application and the subsequent application. On occasion, subsequent applications are brought when a part of the trial record becomes available and adds significant weight to the merits of the appeal. Here, the alleged change in circumstances rested in large measure on the restatement in a more comprehensive form of legal arguments made on the first application. In addition, one new argument was put before Laskin J.A. I agree with Laskin J.A. that these kinds of arguments will seldom amount to a material change in circumstances justifying release. I would not, however, interfere with the conclusion of Laskin J.A. that this was one of those rare cases where a rearticulation of arguments previously made supplemented by a new ground of appeal amounted to a material change in circumstances which affected the outcome of the public interest inquiry required under s. 679(3)(c).

[10]        It is important to recognize that a judge hearing a second bail application under s. 679 of the Criminal Code is not reviewing the decision of the earlier judge, as a panel of the Court would do on a review brought under s. 680. Rather, a judge hearing a second bail application premised on material changes in circumstances is called upon only to determine whether the changes that are said to be material are such as to shift the evaluation made by the judge who heard the earlier application. Thus, in examining this application, I am not re-evaluating the facts relied upon by Dickson J.A., nor am I replacing her evaluation of the circumstances or exercises of discretion with my own. I am simply looking at the changes in circumstances between the hearing before her and the hearing before me, to determine whether they shift the evaluation of the public interest sufficiently to grant bail.

[11]        In Daniels, at para. 40, it is said that it will usually be preferable for the judge who heard the initial bail application to also entertain any subsequent applications for bail pending appeal. I agree that that procedure will often be most efficient, and also more appropriate in terms of protocol. I made inquiries of Dickson J.A. before embarking on this application, to determine her availability. It was impractical for her to hear this application, and she indicated that she had no objection to me proceeding with it.

[12]        Counsel for the appellant have argued that the availability of the full trial transcript has enabled them to fully consider the grounds of appeal that were evaluated by Dickson J.A. and to state them in a way that increases their strength.

[13]        I have had the opportunity to consider their submissions and to look at the material that they now rely on. While the availability of the additional material assists in the articulation of the arguments, and makes them easier to follow and understand, I am not persuaded that the re-articulation of the arguments constitutes a material change in circumstances justifying a renewed bail application. Further, I am of the view that the arguments are not appreciably stronger than they were when Dickson J.A. evaluated them. I am satisfied that, with respect to the grounds of appeal she considered, the re-articulation would not alter her conclusion that the grounds are not particularly strong.

[14]        I have also considered the new affidavits filed by the appellant and by his mother. Again, in my view, they do not constitute a material change in circumstances. I would add that the new affidavits do not, in my view, alleviate the “lingering flight risks” identified by Dickson J.A.

[15]        I turn, then, to the new ground of appeal. Since the hearing before my colleague, counsel for the appellant have had the opportunity to fully examine the transcript of the judge’s charge to the jury. They note that the charge did not contain any instruction to the jury on the prohibited uses of post-offence conduct. They say that the charge may have left the jury with the impression that the post-offence conduct in this case was relevant to the issue of intent to commit murder. They say, therefore, that if a proper charge on post-offence conduct had been given, it is possible that the jury would have returned a verdict of not guilty on the murder charge, and found the appellant guilty only of manslaughter.

[16]        I agree with the appellant that the addition of a ground of appeal can constitute a material change in circumstances. In this case, I am of the view that the new ground, being quite distinct from the grounds argued in front of my colleague, should be considered a change in circumstances justifying a second bail application.

[17]        The new ground of appeal is not frivolous, but it is also not a particularly strong one. I acknowledge that it is strongly arguable that the jury charge would have been improved by the inclusion of further instructions on the use of post-offence conduct. The argument that the absence of such an instruction could have had an effect on the verdict is, however, much less powerful. The trial was mainly concerned with completely different accounts of events given by the accused and by a friend of his, who was an eyewitness. On one version of events, the appellant was not guilty of any crime, while on the other, he committed murder. While the judge was required to, and did charge the jury on the included offence of manslaughter, it was an entirely unlikely verdict.

[18]        I note that neither counsel suggested to the trial judge that any further instruction on post-offence conduct was necessary in the circumstances of the trial.

[19]        I also note the limited nature of the new ground of appeal. While I acknowledge that success on the new ground of appeal would result in a new trial, and hence, in the possibility of an outright acquittal, I also note that the argument itself can logically only go to the question of whether the appellant was guilty of murder or manslaughter. In my view, this factor is of some importance in evaluating whether the appellant has shown that his continued detention is not necessary in the public interest.

[20]        In summary, I am of the view that the only circumstances before me that could constitute a “material change in circumstances” justifying a second bail application is the discovery and formulation by the appellant of a new ground of appeal. Having considered the new ground, however, I am not of the view that it changes Dickson J.A.’s overall evaluation that the continued detention of Mr. Shevalev is necessary in the public interest.

[21]        Accordingly, I am denying this second application for bail pending appeal.

[22]        During argument there was some suggestion that if bail were denied the appeal should be expedited, do you wish to deal with that now, have the matter put over for case management, or simply left for later consideration?

[Discussion with counsel re dates]

[23]        GROBERMAN J.A.: In accordance with our discussions, I am ordering that the appellant’s factum will be filed on or before November 13, 2018. The Crown’s factum in response will be filed on or before December 19, 2018. Any reply factum by the appellant will be due January 7, 2019, though, obviously, it would be helpful to have it filed earlier, if possible. I am setting the hearing of the appeal for January 23 and 24, 2019.

“The Honourable Mr. Justice Groberman”