R. v. Clarke, 2022 NLCA 26

Shane Clarke (applicant/appellant) v. Her Majesty the Queen as represented by the Attorney General (respondent) (22/28) Indexed As: R. v. Clarke 2022 NLCA 26 7 C.A.N.L.R. 508 Court of Appeal of Newfoundland and Labrador Welsh J.A. April 26, 2022

Summary: Shane Clarke was convicted of conspiracy to traffic in cocaine and trafficking in cocaine. He applied for judicial interim release pending his appeal against conviction and sentence. Held: Application granted, with conditions. Welsh J.A.: The three criteria for judicial interim release stipulated in

section 679 of the Criminal Code were satisfied; the appeal is not frivolous, there is no reason to believe that Mr. Clarke would not surrender himself into custody in accordance with the terms of the order, and Mr. Clarke’s detention is not necessary in the public interest (paragraphs 1-5). Cases cited: R. v. Snelgrove , 2021 NLCA 60 Statutes considered: Criminal Code ,

section 679 Counsel: Jonathan E. Noonan, for the applicant/appellant; R. Neil Smith, for the respondent. The application was heard and decision rendered orally on April 26, 2022 by Welsh J.A. The following memorandum of disposition was filed on April 27, 2022 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] Shane Clarke was convicted on September 21, 2021 of conspiracy to traffic in cocaine and trafficking in cocaine. He was sentenced on April 21, 2022 to 42 months imprisonment. Mr. Clarke sought judicial interim release pending his appeal against

conviction and sentence. The Crown consented to his release on conditions. At the hearing, based on the oral and written submissions, I was satisfied that the three criteria stipulated in

section 679 of the Criminal Code were satisfied. In particular, I was satisfied that the appeal is not frivolous, Mr. Clarke will surrender himself into custody in accordance with the terms of the order, and his detention is not necessary in the public interest. ( See: R. v. Snelgrove , 2021 NLCA 60 .) [ 2 ] While the charges are serious, the grounds of appeal have an arguable basis. I noted that Mr.

Clarke, who is twenty-eight years of age, has no criminal record except for a conviction for impaired driving in 2015; he has complied with strict release conditions since September 20, 2018, except for one minor breach; and he received a positive pre-sentence report. [ 3 ] Accordingly, at the hearing, I granted Mr. Clarke’s application. [ 4 ] The agreed conditions of release are: 1. Keep the peace and be of good behaviour. 2. Appear in Court if and as required by the Court. 3. Report to the RNC at Fort Townshend in person on Tuesdays between the hours of 9 AM and 5 PM and sign the Registration Book. 4.

Reside at 22 Donovan Street, Mount Pearl, or notify the RNC in writing of any change of residence 24 hours in advance of any change. 5. Remain within your residence between the hours of 12:00 A.M. & 6:00 A.M. daily and present yourself at the door upon request. 6.

Do not conceal on your person any knife and do not possess or be in any dwelling where there is storage of any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance and surrender any such items as well as licenses and registration certificates relating to them to the RNC at a time and place and manner as specified by the police within 24 hours of your release. 7. Do not possess, consume or traffic in any illegal drug or substance. 8.

Do not contact or communicate, directly or indirectly, in any manner with Dustin Etheridge, Bradley Squires, John Squires, Brandon Glasco, Joseph Connolly, Corey (CJ) Stevens, Susan Squires, Jessica Squires and Natasha George and remain away from any place of residence, employment or schooling you know to be frequented by such persons. 9. Do not leave the Province of Newfoundland and Labrador. 10. Do not possess any pager, data enabled cell phone, Blackberry, cellular enabled tablet or similar mobile communication device. Except that you may possess a cellular phone that does not have data capabilities. 11.

Surrender yourself into custody in accordance with the terms of any order of the Court. Under the Release Order Mr. Clarke is required to make a deposit of $10,000. Application granted, with conditions.