Review of tertiary ground on bail release

R. v. Gale, 2011 ONCA 144, which arises in the context of a bail release following a murder charge, is useful for its discussion of the tertiary ground for release:

[24]         Bearing in mind the nature of the s. 680 review and the standard of review to be applied, I turn to the arguments advanced by the Crown on its application for the order directing a review.  The Crown does not allege an error in law or any misapprehension of the evidence.  Nor does the Crown indicate that it will seek to produce additional material relevant to the question of bail.  The Crown argues that in considering the tertiary ground, the bail judge failed to give sufficient weight to certain features of the evidence, … [the balance of this paragraph refers to evidence adduced at the bail hearing and has been edited pending completion of the proceedings to comply with the non-publication order of  Justice Rogin. The full text of the decision is available at the Registry of the court.] 

[25]         The motion judge's determination that the respondent's detention was not justified on the primary or secondary ground is not challenged.  The tertiary ground is to be used sparingly to justify detention:  R. v. R.D. (2010), ONCA 899, at paras. 51-55.  A bail judge, in considering the tertiary ground, must take the pulse of the reasonable, informed member of the community.  A judge sitting within the community where the homicide occurred and hearing the bail application in that community is in a better position to perform that function than a panel of this court.  That is not to say that bail orders that turn on the tertiary ground are immune from review under s. 680.  However, where it is not suggested that the bail judge misapplied the law, misapprehended the evidence, or reached an unreasonable conclusion, I think it unlikely that a panel will "second guess" the bail judge on the proper application of the tertiary ground.

[26]         Accepting that s. 680 contemplates a correctness standard of review that does not mean that every decision can be reviewed on a correctness standard.  Some decisions involve the exercise of a broad discretion based on the application of general principles to a specific fact situation.  In some fact situations, the exercise of that broad discretion will quite properly admit of different decisions.  Those decisions cannot be classified as either "right" or "wrong", but only as a proper exercise of the discretion. 

[27]         A decision to grant or refuse bail based on the tertiary ground involves a careful assessment of the interaction of subtle factors that are difficult to measure and which readily admit of different assessments by reasonable people.  An appellate court reviewing that decision must take into account the nature of the decision and recognize the clear advantage that the local judge has over the appellate court in making the kinds of assessments required by the criteria relevant to the tertiary ground. 

[28]         This was a close call on bail.  This is a case that falls into that category of cases where reasonable judges could reach different conclusions on the question of bail.  However, absent any claim that the bail judge fell into legal error, misapprehended material evidence, or reached an unreasonable result, I do not think there is any realistic prospect that a panel of this court would reverse the bail judge's exercise of his discretion on the tertiary ground.