R. v. Pope, 2022 NLCA 8

Craig Pope (applicant/appellant) v. Her Majesty the Queen (respondent) (19/95) Indexed As: R. v. Pope 2022 NLCA 8 7 C.A.N.L.R. 282 Court of Appeal of Newfoundland and Labrador Welsh J.A. February 10, 2022 Publication ban pursuant to

section 517 of the Criminal Code : The evidence taken, the information given or the representations made and the reasons given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as the trial is ended.

Summary: Craig Pope was convicted of second degree murder. An appeal to this Court resulted in an order for a new trial. The Crown appealed that decision to the Supreme Court of Canada. Mr. Pope applied for judicial interim release pending a decision from the Supreme Court of Canada, or depending on that decision, the determination of a new trial. (The Supreme Court dismissed the appeal.) Held: Application granted, with conditions. Welsh J.A.: Mr. Pope’s detention was not necessary to ensure his attendance in court, nor was it necessary for the protection or safety of the public. On balance, Mr.

Pope met the onus of showing why his detention in custody was not justified given the circumstances of the case. As such, Mr. Pope was granted judicial interim release, subject to conditions (paragraphs 8-21). Cases cited: R. v. Normore , 2018 NLCA 27 , 2 C.A.N.L.R. 753 R. v. St-Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328 Statutes considered: Criminal Code , sections 679(7.1) , 522(2) , 515(10) Counsel: Derek J. Hogan, for the appellant; Dana E. Sullivan, for the respondent. The application was heard on February 7, 2022 before Welsh J.A.

The following judgment was filed on February 10, 2022 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] Following a trial by jury, Craig Pope was convicted of second degree murder in the death of David Collins on September 7, 2017. An appeal to this Court resulted in an order for a new trial ( 2021 NLCA 47 ). The Crown’s appeal of that decision to the Supreme Court of Canada is scheduled to be heard on March 21, 2022. [ 2 ] Mr. Pope has been in prison since September 7, 2017.

He now applies for judicial interim release pending a decision from the Supreme Court of Canada or, depending on that decision, the determination of a new trial. BACKGROUND [ 3 ] On April 27, 2018, prior to his trial, Mr. Pope was denied judicial interim release ( 2018 NLSC 95 ). The judge reviewed Mr. Pope’s criminal record, which began in 2003 with a conviction for assault causing bodily harm. In

summary: [23] It is evident that the accused can go for substantial periods of time without encountering any contact with the criminal justice system. [24] It is also evident that the accused has, as an adult, seven convictions for breaches of undertaking or recognizances and five breeches of probation to his credit. In addition, he has been convicted of fraud, theft and breaking and entering – all crimes involving dishonesty. [ 4 ] Other factors the judge considered included: [46] I cannot be assured that anything the accused has averred to is, indeed, truthful and reliable. ... [47] ...

The accused does not have a good record for obeying Court orders. ... [49] The accused’s anger management skills do not impress me. I think that there is a substantial risk that he could fly off the handle over something quite insignificant ... . ... [51] When the instant offences are alleged to have been committed, the accused was on probation. He had been out of jail a little over a week. ... [52] Unfortunately, I have little faith that the accused’s sureties would assist in ensuring that the accused remained true to any terms and conditions of his release. ... [ 5 ] For purposes of this application, Mr.

Pope filed the affidavits of two sureties who were cross-examined, his mother and sister. I am not satisfied that Mr. Pope’s mother is a suitable surety. Without any basis or means to pay, she offered to pledge $6,000. Further, I am not convinced that she would perform the supervisory duties of a surety. [ 6 ] On the other hand, I am satisfied that Mr. Pope’s sister, Jennifer Pope, would take her supervisory responsibilities seriously, and that she has sufficient resources to pledge $10,000. [ 7 ] Mr. Pope also filed an affidavit on which he was cross-examined.

He maintains that he will not abuse drugs if granted release, and that he will seek employment. He says he has a welding certificate and that he worked for Seadrill in the offshore oil fields from 2011 to 2015. He says that he will abide by all the conditions of his release. ANALYSIS The Law [ 8 ] Judicial interim release pending a new trial is governed by section 679(7.1) of the Criminal Code , which provides: Where, with respect to any person, the court of appeal or the Supreme Court of Canada orders a new trial,

section 515 or 522, as the case may be, applies to the release or detention of that person pending the new trial or new hearing as though that person were charged with the offence for the first time, except that the powers of a justice under

section 515 or of a judge under

section 522 are exercised by a judge of the court of appeal. [ 9 ] Pursuant to section 522(2) of the Code , Mr. Pope has the onus to show cause why his detention in custody is not justified within the meaning of section 515(10) . Section 515(10) specifies grounds on which detention would be justified: For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(

b) where the detention is necessary for the protection or safety of the public, ... having regard to all the circumstances including anysubstantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration ofjustice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances,including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, ... and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment ... . (Emphasis added.) [10] General principles that assist in the application of these grounds are discussed in R. v. Normore, 2018 NLCA 27, 2 C.A.N.L.R.753.

Green J.A. commented on the distinction between an application for release pending appeal and release pending a new trial: [24] One of the main differences between bail pending trial and bail pending appeal is, of course, that the accused seeking bail pendingtrial has the benefit of the presumption of innocence whereas in the appellate context where it is the convicted accused seeking bail, he orshe is not presumed to be innocent.

This difference may well have an impact on how resolution of the competing tensions involved inmaintaining confidence in the administration of justice will be achieved in the two scenarios. [11] Regarding the second ground set out in section 515(10), Green J.A. explained: [26] There is a presumption against preventive detention as a means of addressing dangers to public safety. As Lamer C.J.C. noted inMorales [ (SCC), [1992] 3 S.C.R. 711], the “danger or likelihood that an individual will commit a criminal offence doesnot in itself provide just cause for detention.

In general, our society does not countenance preventive detention of individuals simplybecause they have a proclivity to commit crime.” (p. 736). [27] Section 515(10)(

b) requires the coalescing of three things before detention can be justified on this ground: (

i) detention must be forthe “protection or safety” of the public and not for extraneous reasons; (ii) detention must be “necessary” to achieve protection or safetyof the public; and (iii) to the extent that it is alleged that it is likely that the accused, if released from custody, will commit an offence orinterfere with the administration of justice indicates the need for protection or safety of the public, those risks must be “substantial”(Morales, p. 737). [12] With respect to the third ground, maintenance of confidence in the administration of justice, it is the perception of the “calm,well-informed, rational and reasonable citizen” that must be considered (Normore, at paragraph 40).

In particular, in Normore, GreenJ.A. noted: [43] The primary focus in determining whether detention is necessary to maintain confidence in the administration of justice is on thefour factors listed (Hall [2002 SCC 64], para. 41). It is their “combined effect” which must be considered in the context of a “balancingexercise” (St-Cloud [2015 SCC 27], para. 55). As well, it is “all” relevant circumstances that must be considered, so the list ofcircumstances is not exhaustive. ... See also: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paragraph 87.

Application of the Law [13] Regarding the first ground, I am satisfied that Mr. Pope’s detention is not necessary to ensure his attendance in court. Onrelease, he would be required to surrender his passport. All his family and community connections are here. I have accepted his sister’sundertaking as surety that she will take her supervisory responsibilities seriously. The Crown did not seriously contend that Mr. Pope’sdetention was necessary on this ground. [14] With respect to the second ground, Mr. Pope’s criminal record is a concern.

However, as referenced in Normore, there is apresumption against preventive detention. The language of section 515(10) provides assistance in establishing the scope of this ground. What is required is a “substantial likelihood” that, if released, Mr. Pope would commit a criminal offence or interfere with theadministration of justice. That threshold is not cleared in this case. [15] Other than a conviction for assault in 2003, Mr. Pope’s previous offences for fraud, theft, breaking and entering, and breaches ofcourt orders have not involved violence against a person.

He has been in prison for more than four years where, it is hoped, he has beguna period of rehabilitation. As stated in Normore: [28] The emphasis on necessity and substantiality makes it clear that there must be more than a slight or theoretical risk of danger to thepublic before release will be denied. The analysis is essentially an exercise in prediction. There will always be some risk associated withany release. Exact predictions cannot be made. As Lamer C.J.C. stated in Morales, it is sufficient to establish a “substantial likelihood”of future criminal activity (pp. 739-740). In R. v.

Manasseri, 2017 ONCA 226, Watt J.A. described the threshold as a substantialprobability or “significantly likely” (para. 87). [16] With respect to the third ground, maintenance of confidence in the administration of justice, Mr. Pope concedes that murder is aserious offence with liability for imprisonment for life. However, he submits that the circumstances surrounding the offence consideredtogether with the lengthy period of imprisonment he has served support the conclusion that his detention in custody pending a new trial

is not justified. Regarding the circumstances surrounding the commission of the offence, he submits that it would be open to the trier of fact to determine that manslaughter is more consistent with one stab wound inflicted during a fight that occurred without warning between Mr. Pope and the victim. He submits that the Crown will have to prove that he was the combatant who wielded the knife. [ 17 ] If he was convicted of manslaughter, given the circumstances surrounding the offence, he would argue that a sentence of approximately seven years imprisonment would fall within an appropriate range.

He has already served a term of more than four years, a portion of which has been on remand for which he may be credited more than straight time. It will be some months before a new trial can be scheduled, during which Mr. Pope will remain on remand if his application for release fails. [ 18 ] The Crown submits that Mr. Pope does not have an appropriate release plan. He intends to reside with his mother. This raises some concerns. She was put forward, but rejected as a suitable surety. The residence is near the street where other family members reside as well as some of the Crown witnesses.

The Crown submits that this will make it difficult for the surety, Mr. Pope’s sister, to exercise her supervisory role, and will increase the likelihood that Mr. Pope will fail to comply with the condition that he must not be in contact with Crown witnesses. Counsel points out that Mr. Pope has seven convictions for breaches of court orders indicating a propensity not to take his responsibilities to the court seriously. [ 19 ] While I agree with the concerns raised by the Crown, on balance, I am satisfied that Mr. Pope has met the onus of showing cause why his detention in custody is not justified.

If he fails to comply with the conditions of his release, he will face a return to prison. [ 20 ] Accordingly, Mr. Pope’s application for judicial interim release is allowed, subject to the following conditions which were discussed with counsel at the hearing: 1. Mr. Pope shall provide as a surety his sister, Jennifer Pope (DOB 1994/08/08) of 14A Alderberry Lane, St. John’s, NL, who shall pledge the amount of $10,000; 2. He shall keep the peace and be of good behaviour; 3. He shall appear in court if and when required by the court; 4.

He shall not contact or communicate, directly or indirectly with any Crown witness (to be listed by the Crown, not to include Mr. Pope’s father) or any member of the family of David Jonathan Collins; 5. He shall not possess, consume or traffic in any illegal substance or any drug that has not been prescribed for him by a physician; 6. He shall reside at 331 Blackmarsh Road, St. John’s, NL; 7. He shall not conceal any knife on his person; 8. He shall not possess a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance; 9.

He shall not leave the Province of Newfoundland and Labrador, except for the purpose of work in the offshore oil fields of that Province; 10. He shall deposit his passport, if any, in the place specified by the Crown; 11. If the Crown’s appeal to the Supreme Court of Canada is granted, he shall surrender himself to the Royal Newfoundland Constabulary, Fort Townsend, St. John’s, NL within 24 hours of the decision being rendered. [ 21 ] Counsel have leave to make a written request or an application if clarification is necessary regarding any of the above conditions. Application granted, with conditions.