R. v. M.L., 2018 NLCA 75

M.L. (applicant/appellant) v. Her Majesty the Queen (respondent) (18/50) Indexed As: R. v. M.L. 2018 NLCA 75 3 C.A.N.L.R. 713 Court of Appeal of Newfoundland and Labrador Welsh J.A. December 21, 2018 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identity the person described in this judgment as the complainant shall not be published in any documents, broadcast or transmitted in any way.

Summary: The appellant applied for judicial interim release pending appeal. Held: Application dismissed. Welsh J.A.: The appellant has not satisfied the test set out in section 679(3) of the Criminal Code . While the appeal is not frivolous, the proposed grounds are weak. There is, however, no basis on which to conclude that the appellant would not surrender himself into custody as required. The criterion that the detention not be necessary in the public interest, requires consideration of two components: public safety and public confidence in the administration of justice.

The factors that inform public confidence include the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks. Where the grounds of appeal appear to be weak and the offence is serious, the public interest in enforcing the sentencing order will often outweigh the reviewability interest. The appellant has not established that his detention is not necessary in the public interest, given the role played by the public confidence component of the analysis, although the public confidence component will be engaged only in very limited or rare circumstances. Cases cited: R. v.

Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250 R. v. Greenham , 2018 NLCA 70 Counsel: Mark Gruchy, for the applicant/appellant; Sheldon Steeves, for the respondent. This application was heard on December 18, 2018 before Welsh J.A. The following reasons for decision were filed on December 21, 2018 by Welsh J.A. ______________________________________________________________ Welsh J.A.:

Welsh J.A.: [1] M.L. applies for judicial interim release pending disposition of his appeal against conviction for several offences. Theapplication is opposed by the Crown. [2] M.L. was convicted on March 7, 2018 of sexual interference, sexual exploitation and sexual assault contrary to sections 151, 153and 271 of the Criminal Code. The offences were committed against his step-daughter over a period of approximately three years whenshe was fifteen to eighteen years of age. On July 6, 2018, M.L. was sentenced to a term of six years imprisonment. [3] A notice of appeal against conviction was filed on May 18, 2018.

No notice of appeal against sentence was filed. On November14, 2018, M.L. filed an application seeking judicial interim release pending disposition of the appeal. The hearing of the application wasdelayed because M.L. wished to obtain and file a significant portion of the transcript of the trial for purposes of arguing the application. Although the transcript was expedited, it was not available until the day before the application was set to be heard.

Nonetheless, M.L.indicated he wished to proceed with the application on the date set. [4] To succeed in his application for judicial interim release pending determination of his appeal against conviction, M.L. mustestablish three criteria on a balance of probabilities (R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paragraph 19). The criteria areset out in section 679(3) of the Criminal Code: (

a) the appeal … is not frivolous, (

b) he will surrender himself into custody in accordance with the terms of the order, and (

c) his detention is not necessary in the public interest. [5] Regarding the first criterion, Moldaver J., for the Court in Oland, at paragraph 20, reiterated that “the “not frivolous” test iswidely recognized as being a very low bar”.

In this case, M.L. submits that the threshold is satisfied based on the grounds of appeal,particularly that the trial judge failed to consider and deal with inconsistencies in the complainant’s evidence, that he drew inferencesthat were not logical or supported by the evidence, and that he made errors in assessing M.L.’s credibility as well as that of thecomplainant and her mother. [6] The Crown submits that the appeal is frivolous and without merit.

Counsel points out that credibility was “the overriding issue”and the trial judge gave comprehensive reasons for disbelieving M.L., finding him not to be credible, while accepting the evidence of the complainantand other witnesses. [7] Upon reviewing the trial judge’s decision and considering M.L.’s grounds of appeal, I am not satisfied that the appeal should becharacterized as frivolous. I am satisfied, however, that the grounds appear to be weak.

That factor and the nature of the offences areproperly considered under the third criterion, the public interest as discussed in Oland. [8] Regarding the second criterion in the analysis, I accept M.L.’s submission that he complied with the conditions of his judicialinterim release during approximately four months between the date of conviction and the imposition of sentence, and during that time, hewas aware that he would be sentenced to a lengthy period of imprisonment.

In all the circumstances, I am satisfied that there is no basison which to conclude that he would not surrender himself into custody as required. [9] The third criterion, that M.L.’s detention is not necessary in the public interest, requires consideration of two components: publicsafety and public confidence in the administration of justice (Oland, at paragraphs 23 to 27). The latter component requires the court toweigh two competing interests: enforceability and reviewability.

Moldaver J. explained: [25] According to Arbour J.A., the enforceability interest reflected the need to respect the general rule of the immediate enforceabilityof judgments. Reviewability, on the other hand, reflected society’s acknowledgement that our justice system is not infallible and thatpersons who challenge the legality of their convictions should be entitled to a meaningful review process – one which did not requirethem to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based wasunlawful (pp. 47-49 [R. v.

Farinacci (1993), (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.)]). [10] Regarding the public confidence component, Moldaver J. cautioned: [29] Fortunately, cases like this tend to be more the exception than the rule. Appellate judges across the country deal with applicationsfor bail pending appeal on a regular basis. Of those, only a fraction are likely to involve the public confidence component. Rarely doesthis component play a role, much less a central role, in the decision to grant or deny bail pending appeal.

As Donald J.A. observed inPorisky, at para. 47: Not every offence is serious enough to engage an assessment of the merits. There is no need to go beyond the frivolous threshold incases unlikely to arouse a concern about public confidence. … [W]e should expect Crown counsel to recognize that the continuum runsfrom petty theft to first degree murder and to exercise good judgment in raising public confidence only in those cases where the offenceis at the serious end of the scale. See: R. v.

Greenham, 2018 NLCA 70. [11] In circumstances where the public confidence component is engaged, Moldaver J. cautioned that, even with serious offences,judicial interim release may be available, and that the analysis must be conducted objectively:

[47] Appellate judges are undoubtedly required to draw on their legal expertise and experience in evaluating the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks. However, when conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values: R. v.

St-Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328 , at paras. 74-80 . In that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not. [ 12 ] Moldaver J. went on to state that, where the grounds of appeal appear to be weak and the offence is serious, the public interest in enforcing the sentencing order “will often outweigh the reviewability interest [release pending disposition of the appeal]” ( Oland , at paragraph 50 ).

That said, the decision whether to grant judicial interim release pending appeal requires a contextual analysis accounting for all the relevant factors. [ 13 ] I am satisfied that this case is one in which it is necessary to consider the public confidence component of the analysis. It is significant that, while the grounds of appeal cannot be characterized as frivolous, they, nonetheless, appear to be weak.

M.L. challenges factual and credibility findings of the trial judge who provided comprehensive reasons for his decision. [ 14 ] That factor must be considered in the context of the offences for which M.L. was convicted. The offences are serious, involving a serious breach of trust against his step-daughter, and resulting in a sentence of six years in prison. [ 15 ] I note that M.L. did not make an application for judicial interim release until November 14, 2018, approximately four and one- half months after he was sentenced.

The further delay until this application was heard on December 18, 2018 resulted from M.L.’s request for the transcript, which was dealt with on an expedited basis.

The hearing of the appeal has been set for February 20, 2019 with the objective of disposing of the appeal as soon as possible. [ 16 ] Measuring the relevant factors through the eyes of a reasonable member of the public, as discussed in Oland , I am satisfied that, in these particular circumstances, M.L. has not established that his detention is not necessary in the public interest, given the role played by the public confidence component of the analysis.

I reach this conclusion recognizing, as discussed above, that the public confidence component will be engaged only in very limited or rare circumstances. [ 17 ] Accordingly, the application for judicial interim release pending appeal is denied. Application dismissed.