R. v. Grant, 2018 NLCA 49

David Grant (applicant/appellant) v. Her Majesty the Queen (respondent) (18/37) Indexed As: R. v. Grant 2018 NLCA 49 3 C.A.N.L.R. 229 Court of Appeal of Newfoundland and Labrador Hoegg J.A. August 8, 2018

Summary: The appellant applied for bail pending his appeal of his conviction for indecent assault that occurred approximately 30 years ago. Held: Application dismissed, expedited dates set for the appeal. Hoegg J.A.: Section 679(3) of the Criminal Code sets out the criteria for granting bail pending appeal. They have not been satisfied in this case. The appellant’s g rounds of appeal articulate arguable issues, and are not frivolous, which is a low bar. The appellant has shown that he would surrender himself into custody as required.

He has a related criminal record, but it is dated, and he has no convictions for breaching court orders. However, he has not shown that his detention is not necessary in the public interest. The public interest has two components: (1) public safety, and (2) public confidence in the administration of justice. It is the public confidence in the administration of justice aspect of this third criterion which gave the Court pause in this case. Consistency and harmony between trial and appellate processes is important to the administration of justice.

In balancing the public interest in enforceability and reviewability so as to determine whether a release order pending appeal will affect public confidence in the administration of justice, the following factors should be considered: 1) the seriousness of the crime; 2) public safety concerns that do not rise to the level required by section 679(3) (ii); and 3) the apparent strength of the grounds of appeal. While there is no public safety concern, the crime was serious. A preliminary assessment of the grounds of appeal suggests they do not clearly surpass the not frivolous threshold.

Balancing these considerations indicates the public interest criterion is not met. Section 679(10) authorizes a judge to give direction to expedite the hearing of an appeal when bail pending appeal has been denied, and this should be done in this case. Cases cited: R. v. Oland, 2017 SCC 17 , [2017] 1 S.C.R. 250 R. v. Payne, 2018 NLCA 2 , 143 W.C.B. (2d) 596 R. v. Ferwerda , 2018 NLCA 14 , 144 W.C.B. (2d) 583 Counsel: Mark Mills, for the applicant/appellant; Dana Sullivan, for the respondent. This application was heard and decision rendered orally on July 24, 2018 by Hoegg J.A.

The following reasons for decision were filed on August 8, 2018 by Hoegg J.A. ______________________________________________________________ Hoegg J.A.: [ 1 ] On January 24, 2018, David Grant was convicted of indecent assault upon a young boy. The assault occurred approximately 30 years ago when the boy was approximately 12 years old and unable to consent to sexual activity. On April 13, 2018 Mr. Grant was sentenced to 18 months incarceration. He is appealing his conviction and applied for judicial interim release pending the outcome of his appeal.

On July 24, 2018, I dismissed his application with reasons to follow. These are those reasons. [ 2 ] Section 679(3) of the Criminal Code lists three criteria which an applicant seeking bail pending appeal must satisfy: 1) the appeal is not frivolous; 2) the applicant will surrender himself or herself into custody if required to do so; and 3) the applicant’s detention is not necessary in the public interest. The criteria for bail pending appeal were recently considered and clarified by the Supreme Court of Canada in R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250 .

As noted in Oland an applicant for bail has the onus of showing that the statutory conditions have been met. Not Frivolous [ 3 ] In order to pass the “not frivolous” criterion, Mr. Grant must establish that his appeal is at least arguable. This is a very low bar. In Oland , Moldaver J. described the bar as an initial hurdle that produces a categorical “yes” or “no” answer, allowing for the “immediate rejection of a release order in the face of a baseless appeal” (paragraph 41). Mr. Grant’s grounds of appeal articulate arguable issues, and therefore pass this bar. Accordingly, he satisfied the first criterion.

Surrender into Custody if Required [ 4 ] Mr. Grant also meets the second criterion in that he satisfied me that if he were released he would surrender himself into custody as required. He was not incarcerated for the several months between when he was convicted and when he was sentenced and no problems in this regard were brought to my attention. [ 5 ] Mr. Grant does have a related criminal record. However, it is dated, and he has no convictions for breaching court orders. As well, he has been living in the same community for many years and has provided the court with a surety.

The Public Interest [ 6 ] Lastly, Mr. Grant must establish that his detention is not necessary in the public interest. In R. v. Payne , 2018 NLCA 2 , 143 W.C.B. (2d) 596 , I summarized the Supreme Court of Canada’s decision in Oland on this point: [10] … In Oland , at paragraphs 23 to 55 , the Supreme Court has clarified the meaning of “necessary in the public interest”. In

summary, public interest has two components: (1) public safety and (2) public confidence in the administration of justice. Public safety relates to the protection and safety of the public.

Public confidence in the administration of justice comprises two competing interests: (1) enforceability, which involves “the need to respect the general rule of the immediate enforceability of judgments”, and (2) reviewability, which involves “society’s acknowledgement that our justice system is not infallible and that persons who challenge the legality of their convictions should be entitled to a meaningful review process … which [does] not require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction on which it was based was unlawful” ( Oland at paragraphs 25-26 ).

The Court explained that the public safety and public confidence components should not be treated as silos and said that “where the public safety threshold has been met … residual public safety concerns or the absence of any public safety concerns remain relevant and should be considered in the public confidence analysis” ( Oland at paragraph 27 ). [11] The Court, noting that Parliament did not provide direction as to how section 673(3)(iii) could affect confidence in the administration of justice, ruled that the factors Parliament set out in section 515(10)(

c) in relation to bail pending trial, modified to the post-conviction context, “should be accounted for in considering how, if at all, a release pending appeal order is likely to affect public confidence in the administration of justice”.

Those factors are: (1) the seriousness of the crime – the more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the appellant is released on bail ( Oland at paragraphs 37 and 39 ), (2) public safety concerns that fall short of the substantial risk mark and lingering flight risks that do not rise to the risk level in 679(3)(ii) ( Oland at paragraph 39 ), and (3) the apparent strength of the appellant’s grounds of appeal. [12] The Court elaborated on the factor involving the assessment of the apparent strength of the grounds of appeal, endorsing Donald J.’s reasoning at paragraph 37 of R. v.

Porisky , 2012 BCCA 467 , 293 C.C.C. (3d) 100 to the effect that assessment of the merits of an appellant’s grounds of appeal is not foreclosed by a determination that an appeal is not frivolous ( Oland at paragraph 42 ), as well as that of Gary T. Trotter in his

article “Bail Pending Appeal: the Strength of the Appeal and the Public Interest Criterion” (2001), 45 C.R. (5th) 267 , who said “when an offence is serious … public concern about enforceability is ignited, [and] there should be a more probing inquiry into the chances of success on appeal ... separate from the question of whether the appeal is frivolous or not”. [ 7 ] It is the public confidence in the administration of justice aspect of this third criterion which gave me pause in Mr. Grant’s case. Consistency and harmony between trial and appellate processes is important to the administration of justice, as the Supreme Court of

Canada stated at paragraph 33 of Oland . Our trial courts must enjoy presumptive respect for their decisions and it must be acknowledged that the presumption of innocence no longer applies. This enforceability consideration, vital to public confidence in the administration of justice, must be tempered with the right to have a conviction and/or sentence meaningfully reviewed.

Error correction is also vital to public confidence in the administration of justice ( Oland at paragraphs 33-35 ). [ 8 ] In balancing the public interest in enforceability and reviewability so as to determine whether a release order pending appeal will affect public confidence in the administration of justice, Moldaver J. wrote that the following factors be considered: 1) the seriousness of the crime 2) public safety concerns that do not rise to the level required by section 679(3)(ii); and 3) the apparent strength of the grounds of appeal.

The Seriousness of the Crime [ 9 ] Sexual offences involving children typically engage public interest in the administration of justice. Gross indecency committed by a man upon a child who is not old enough to consent to sexual activity is a serious crime. It is a violation of the child’s bodily and psychological integrity which in many if not most cases leaves a damaging effect on the child for the rest of his or her life. The fact that this case was brought forward by a mature military man many years after the crime occurred lends credit to this statement.

Public Safety Concerns [ 10 ] For the reasons expressed in paragraphs 4 and 5 above, my concerns about public safety are minimal. While Mr. Grant’s related criminal record poses a lingering concern, his age, his current living circumstances, and the fact that his related convictions are dated, alleviate it considerably. The Grounds of Appeal [ 11 ] Mr. Grant essentially advances two grounds of appeal. One is that the Judge misapprehended the impact of defence evidence going to the likely date of the sexual activity between the complainant and Mr. Grant.

The date was critical to the Judge’s conviction for she found that the incident of gross indecency of which Mr. Grant was convicted occurred when the complainant was 12 or 13 years old and unable to consent. The second ground is that the Judge took Mr. Grant’s statement to the police as evidence of guilt without considering the element of non-consent. [ 12 ] The Judge explained in her reasons why the evidence of the defence witnesses who claimed to be around Mr. Grant’s cabin with the complainant when he was over the age of consent did not matter to the conviction. Mr.

Grant’s assertion that the complainant testified that the defence witnesses were around Mr. Grant’s cabin when the complainant was 12 or 13 does not rest on a solid foundation. [ 13 ] Mr. Grant’s statement to the police was entered into evidence by consent. In her reasons, the Judge referred to Mr. Grant’s statement when comparing it to his viva voce evidence at trial, and noted differences which ultimately caused her to have misgivings about Mr. Grant’s trial evidence. The Judge did nothing improper in observing the inconsistencies between the statement and the viva voce evidence.

And, in any event, the Judge was not precluded from drawing inferences from Mr. Grant’s statement evidence which was properly before the court. [ 14 ] In the result, my “preliminary assessment” of Mr. Grant’s grounds of appeal, based on the record and submissions before me and my “knowledge and experience” is that they do not “clearly surpass” the “not frivolous” threshold ( Oland at paragraphs 44-45 and 51 and R. v. Ferwerda , 2018 NLCA 14 , 144 W.C.B. (2d) 583 at paras. 98-99 ). Accordingly, the strength of the grounds of appeal asserted by Mr.

Grant does not assist him in his application for bail. [ 15 ] Considering the seriousness of the crime, the grounds of appeal, and the overall circumstances of the case, it is my view that a reasonable and informed member of the public would lose confidence in the administration of justice if Mr. Grant were granted bail while awaiting his appeal. [ 16 ] Section 679(10) authorizes a judge to give direction to expedite the hearing of an appeal when bail pending appeal has been denied.

Depending on the circumstances such direction can further the public interest in the reviewability of decisions. [ 17 ] Being mindful of the delays associated with appealing a decision and the length of Mr. Grant’s sentence, I set his appeal to be heard on October 18, 2018 at 10:00 a.m., which was the earliest date the Court and counsel were available. Application dismissed .