R. v. Kennedy, 2019 NLCA 47

Nicholas Kennedy (applicant/appellant) v. Her Majesty the Queen (respondent) (19/65) Indexed As: R. v. Kennedy 2019 NLCA 47 4 C.A.N.L.R. 679 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L July 25, 2019

Summary: Mr. Kennedy applied for judicial interim release pending the appeal of his conviction for two counts of assault and one count of unlawful confinement. He was sentenced to 90 days imprisonment, to be served intermittently, with two years of probation. Mr. Kennedy initially appealed to the

summary conviction appeal court, where the appeal against the two assault convictions was allowed, while the appeal against his conviction for unlawful confinement was dismissed. Held: Application for judicial interim release granted with conditions. Fry C.J.N.L.: The criteria for judicial interim release under section 679(3) of the Criminal Code were established. The appeal was not frivolous, Mr. Kennedy could be relied upon to surrender himself into custody, and Mr. Kennedy’s detention was not necessary in the public interest.

Counsel for the Crown conceded that all three criteria for judicial interim release were satisfied. Mr. Kennedy’s application for judicial interim release was granted. The conditions of Mr. Kennedy’s release were imposed in accordance with a draft order submitted by Mr. Kennedy and agreed to by the Crown (paragraphs 3-11). Statutes considered: Criminal Code , sections 679 and 515 Counsel: James Hughes Q.C., for the applicant/appellant; Lisa Stead, for the respondent. The application was heard and judgment rendered orally on July 24, 2019 by Fry C.J.N.L.

The following memorandum of disposition was filed on July 25, 2019 by Fry C.J.N.L. ______________________________________________________________ Fry C.J.N.L.: [ 1 ] This was an application by Mr. Kennedy for judicial interim release pending the disposition of his appeal in this Court. Mr. Kennedy was convicted in Provincial Court of Newfoundland and Labrador of unlawful confinement contrary to section 279(2) and two counts of assault contrary to

section 266 of the Criminal Code on October 31, 2016. He was sentenced on January 20, 2017 to a period of incarceration of 90 days intermittent with two years of probation.

[ 2 ] Mr. Kennedy appealed his convictions and was released pending appeal with the consent of the Crown following his execution of a recognizance with conditions. On July 16, 2019, his appeal to the Supreme Court of Newfoundland and Labrador, sitting as a

Summary Conviction Appeal Court, was allowed for the two assault convictions and dismissed for the unlawful confinement conviction with his term of imprisonment to commence on July 20, 2019. [ 3 ] On an application for release pending appeal, the applicant must establish three criteria under section 679(3) of the Code : 1) The appeal is not frivolous; 2) The applicant will surrender himself or herself into custody in accordance with the terms of the order; and 3) The applicant’s detention is not necessary in the public interest. [ 4 ] In making an order for interim release, a judge has broad authority to order conditions on the applicant’s undertaking to surrender into custody in accordance with the order.

Alternatively, a judge can also require the applicant to enter into a recognizance, either with or without sureties and a deposit (section 679(5) of the Code ). [ 5 ] Specifically, section 679(5.1) authorizes a judge to utilize the conditions contained in the conventional pre-trial judicial interim release powers under sections 515(4), (4.1) and (4.2) that the judge considers appropriate. [ 6 ] Having considered the submissions of counsel, I was satisfied that Mr. Kennedy meets the criteria for judicial interim release pending disposition of the appeal.

In reaching this conclusion, I applied the three-part test in

section 679 of the Code . The applicant’s Notice of Appeal raises issues of law and principles of fundamental justice such that I was satisfied that the appeal is not frivolous as contemplated by

section 679 of the Code . This was conceded by counsel. [ 7 ] I was satisfied that Mr. Kennedy can be relied upon to surrender himself into custody if so required. Mr. Kennedy owns property and currently des in Bishop’s Falls and has employment in Alberta. He works 15 days on and 13 days off. He has attended all court appearances. He has joint custody of his son and pays child support to the child’s mother. He has access to their child when he returns home from Alberta. Mr.

Kennedy was released previously pending the hearing of his appeal from the Provincial Court and he complied with all conditions of his release. Again, this portion of the analysis was conceded by counsel. [ 8 ] Finally, I was satisfied that Mr. Kennedy’s detention pending disposition of the appeal is not necessary in the public interest. The 90 day sentence to be served intermittently reflects that incarceration on a continuous basis is not necessary in the public interest. In addition, the custodial sentence would be served before the appeal could be determined. Release pending appeal permits Mr.

Kennedy to continue employment and provide support for his family. This factor was also conceded by counsel. [ 9 ] Accordingly, Mr. Kennedy’s application for judicial interim release was granted. [ 10 ] Finally, I was satisfied that the draft order submitted by Mr. Kennedy and agreed to by the Crown provides for the appropriate conditions. [ 11 ] In the result, I ordered that Mr. Kennedy be granted judicial interim release pending the disposition of his appeal, in accordance with the conditions as ordered. Application granted.