COURT OF APPEAL FOR ONTARIO

DATE: 20131126 DOCKET: M43069 (C57800) Gillese J.A. (In Chambers) BETWEEN Her Majesty the Queen Responding Party and Maria Figliola Applicant Michael Lacy, for the applicant Philip Perlmutter, for the responding party Heard: November 19, 2013 On application for judicial interim release pending appeal from the conviction entered by Justice Alan C. R. Whitten of the Superior Court of Justice, sitting with a jury, on September 28, 2013.

Gillese J.A.: [1] The applicant Maria Figliola stands convicted of first degree murder in the

death of her husband. In the early morning hours of August 7, 2001, Frank Figliola was found beaten to death on a wooded path. It is alleged that the applicant hired a third party Daniele Di Trapani to carry out her husbands killing or to arrange for others to carry out the killing. Her motive was alleged to

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be either financial profit from his death or the freedom to continue her relationship with the man with whom she was having an affair. [2] The applicant was originally tried and convicted for her husbands murder

in 2006 together with Di Trapani. On appeal, those convictions were quashed by this court in 2011, and new, separate, trials were ordered: R. v. Figliola, 2011 ONCA 457. [3] The applicants re-trial commenced in March 2013 and lasted

approximately seven months. On September 28, 2013, she was again convicted by a jury of first degree murder and sentenced that same day to life imprisonment with no eligibility for parole for 25 years. She has filed a notice of intention to appeal her conviction and brings this application for judicial interim release pending the determination of her appeal. [4] Under s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, an applicant

who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of a judge of this court that: 1. the appeal is not frivolous; 2. the applicant will surrender into custody in accordance with the terms of the release order; and 3. the applicants detention is not necessary in the public interest.

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[5]

The Crown opposes the application largely on the basis of the third

criterion. ANALYSIS [6] [7] I am satisfied that the first two criteria are met. As for the first criterion, an appeal is not frivolous if the proposed grounds

of appeal raise arguable issues. An applicant need not establish a likelihood of success on appeal, but must point to a viable ground of appeal that would warrant appellate intervention if established: see R. v. Manasseri, 2013 ONCA 647, at para. 38. Having read the notice of appeal and the letter by the

applicants counsel, addressed to Legal Aid Ontario, which contains counsels opinion on the merits of the appeal (the Opinion Letter), I am satisfied that the appeal raises arguable issues. [8] As for the second criteria, in light of Ms. Figliolas release history, she does

not appear to be a flight risk. Ms. Figliola was initially released on bail in 2003, pending her first trial. After a brief period of detention that commenced in 2004 due to the withdrawal of one of her sureties, she was re-released in 2005. She remained on bail until her May 2006 conviction. In August 2011, she was again released on bail pending her re-trial. The record shows that she has consistently abided by the conditions of her bail. Thus, I am satisfied that the second criterion is met.

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[9]

However, the applicant has not satisfied me in respect of the third criterion

in s. 679(3), namely, the public interest criterion. [10] In reaching this conclusion, I considered the following principles recently

set out by Watt J.A. in Manasseri, at paras. 40-43, which were drawn largely from R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48, and R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A. in Chambers), at paras. 1920: 1. The public interest criterion requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other. 2. Public confidence in the administration of justice requires that judgments be enforced. Thus, the public interest may require that a person convicted of a very serious offence, such as first or second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal. 3. However, public confidence in the administration of justice also requires that judgments be reviewed, and that any errors be corrected, especially where an appellants liberty is at state.

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4. The public interest ground assumes greater prominence in cases in which the applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration. 5. Release of an applicant pending appeal of a murder conviction is rare. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release. [11] I assessed the strength of the grounds of appeal from the record before

me, which includes the notice of appeal, the Opinion Letter to Legal Aid Ontario on the merits of the appeal, the defences written objections to the jury charge, the trial judges ruling on the voir dire dated July 17, 2013, and the draft jury charge. [12] As a preliminary matter, I would observe that the fact that Ms. Figliola has

been convicted twice does not mean that her present appeal has any less chance of success than her first appeal: see R. v. West, 2006 NSCA 103, 246 N.S.R. (2d) 372 (in Chambers), at para 15. [13] Two points lead to my determination that this is not one of those rare

situations in which the public interest favours release after a conviction for first degree murder.

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[14]

First, on my reading of the motion record, it appears that the grounds of

appeal were the subject matter of defence objections at trial, each of which was fully argued and carefully disposed of. [15] Second, in my view, the grounds of appeal do not raise such a serious In saying

concern about the accuracy of the verdict that release is warranted.

this, I have focussed on the grounds of appeal relating to Ms. Mascia and Mr. Gonsalves. From the large number of grounds of appeal that have been raised (the Opinion Letter runs some 22 pages), I understand these to be the most significant. [16] The applicants first appeal was allowed partly because of problems

flowing from the Crowns cross-examination of Ms. Mascia (then Ms. Pignatelli). The applicant alleges that a similar error took place in her re-trial. [17] At the re-trial, the trial judges ruling on the voir dire, in which he granted

the Crown application to cross-examine Ms. Mascia pursuant to s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, shows that he was alert to the dangers that could emerge from Ms. Mascias cross-examination. He appears to have monitored the scope of the Crowns cross-examination and he included in the jury charge an instruction designed to avoid the dangers and errors in the first trial. Accordingly, in my view, this ground of appeal is of muted strength.

Page: 7 The applicants ground of appeal in relation to Mr. Gonsalves videotaped

[18]

statement rests on the assertion that the Crown improperly invited the jury to use the evidence in an impermissible way. However, the jury charge instructed that the evidence could only be used to consider the process by which the witness arrived at his ultimate story, not to buttress his credibility or for the truth of its contents. [19] While I cannot assess the propriety of the Crowns allegedly impermissible

suggestions to the jury because I do not have the transcripts, it is generally assumed that where the trial judges final charge to the jury is accurate, it will predominate in the jurys deliberations. As Cory J. stated in R. v. Finta, [1994] 1 S.C.R. 701, at pp. 851-52: At the conclusion of a long, difficult, and emotional trial it is only natural that a jury would turn to a trial judge as the impartial arbiter for instructions and directions with regard to the case It is those instructions that they would hear last and take with them to the jury room and rely upon during the course of their deliberations. The final instructions of the trial judge are rightly assumed to be of great significance to the jury. [20] Ms. Figliola has been convicted of murder for hire, a particularly odious

form of first degree murder, which is itself arguably the most serious offence in the Criminal Code. It is only in unusual circumstances, where the grounds of appeal appear to be strong, that this court has released an appellant pending appeal from conviction for first or second degree murder: R. v. Klymchuk, 2008

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ONCA 854, at para. 18 (emphasis added). In my view, the grounds of appeal in this matter do not appear sufficiently strong that the public interest favours release. DISPOSITION [21] Accordingly, the application is dismissed.