R. v. Snelgrove, 2021 NLCA 60

Carl Douglas Snelgrove (applicant/appellant) v. Her Majesty the Queen (respondent) (21/78) R. v. Snelgrove 2021 NLCA 60 7 C.A.N.L.R. 194 Court of Appeal of Newfoundland and Labrador Welsh J.A. December 21, 2021 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant shall not be published in any document or broadcast or transmitted in any way.

Summary: Carl Snelgrove was found guilty by a jury and convicted of one count of sexual assault contrary to

section 271 of the Criminal Code for which he was sentenced to a term of imprisonment of four years. A notice of appeal against conviction has been filed. Mr. Snelgrove applied for judicial interim release pending determination of his appeal. Held: Application granted. Welsh J.A.: Mr. Snelgrove was required to establish, on the balance of probabilities, that the appeal is not frivolous, he will surrender himself into custody in accordance with the terms of the order, and his detention is not necessary in the public interest ( section 679(3) of the Criminal Code ) (paragraphs 1-2). In R. v.

Oland it is recognized that the bar to establish that an appeal is not frivolous is a very low one. In R. v. Clarke the test discussed is “whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit”. Mr. Snelgrove’s two principle grounds of appeal relate to his right to be present for the whole of his trial under

section 650 of the Criminal Code , and the instruction to the jury in respect of the mens rea component of the offense, considering the definition of consent in

section 273.1(2) (

c) of the Criminal Code . The appeal satisfied the first criterion (paragraphs 3-8). The second criterion was satisfied. Mr. Snelgrove has no criminal record and has complied with all the terms of release previously imposed. The Crown did not seriously argue that there was a basis on which to conclude that he would fail to surrender himself into custody in accordance with the terms of the order (paragraph 9). The third criterion, the public interest, is comprised of two components: public safety and public confidence in the administration of justice.

Public confidence in the administration of justice requires a balancing between enforcing the decision of the jury and allowing for review of the conviction by means of an appeal. This analysis is conducted through the eyes of a reasonable member of the public who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values. The public interest weighed in favour of granting the application (paragraphs 10-13). Cases cited: R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250 R. v. Clarke , 2021 NLCA 8

R. v. Greenham , 2018 NLCA 70 , 3 C.A.N.L.R. 599 Statutes considered: Criminal Code , sections 271 , 679(3) , 650 , 273.1(2) (c), 273.1(1) Counsel: Janani Shanmuganathan, for the appellant; Kathleen O’Reilly, for the respondent. The application was heard on December 21, 2021 with decision rendered orally by Welsh J.A. The following judgment was filed on December 30, 2021 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] On May 15, 2021, Carl Snelgrove was found guilty by a jury and convicted of one count of sexual assault contrary to

section 271 of the Criminal Code . On November 12, 2021, he was sentenced to a term of imprisonment of four years. A notice of appeal against conviction was filed on December 13, 2021. At a hearing on December 21, 2021, Mr. Snelgrove was granted judicial interim release pending determination of his appeal. Following are the reasons for that decision. [ 2 ] To succeed with his application, Mr. Snelgrove was required to establish three criteria on a balance of probabilities ( R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250 , at paragraph 19 ). The criteria are set 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. [ 3 ] Regarding the first criterion, Moldaver J., for the Court in Oland , concluded that “the ‘not frivolous’ test is widely recognized as being a very low bar” ( Oland , at paragraph 20 ). This Court has described the test as “whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit” ( R. v. Clarke , 2021 NLCA 8 , at paragraph 4 ; R. v. Greenham , 2018 NLCA 70 , 3 C.A.N.L.R. 599 , at paragraph 5 ). [ 4 ] It is Mr. Snelgrove’s submission that he has two significant grounds of appeal that will necessitate a new trial.

First, he submits that the trial judge erred by conducting discussions with counsel in his chambers, off the record, relative to determining the instructions to the jury and responses to questions from the jury. He submits that this procedure is inconsistent with the requirements of

section 650 of the Criminal Code , which provides that the accused “shall be present in court during the whole of his or her trial”. Mr. Snelgrove submits that any exceptions to this requirement do not apply in this case. [ 5 ] Mr. Snelgrove’s second principal ground of appeal is that the trial judge failed to properly instruct the jury on the essential elements of sexual assault and on the operation of

section 273.1(2) (

c) of the Criminal Code .

Section 273.1(1) defines consent to mean “the voluntary agreement of the complainant to engage in the sexual activity in question”.

Section 273.1(2) (

c) addresses particular circumstances when consent may be negated: For the purpose of subsection (1), no consent is obtained if ... (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; ... [ 6 ] Mr. Snelgrove submits that the judge failed to provide guidance to the jury regarding the mens rea , or mental element, required for the offence of sexual assault, as well as the type of behaviour necessary to vitiate or negate consent pursuant to

section 273.1(2) (c). [ 7 ] It is Mr. Snelgrove’s submission that, in light of the questions asked by the jury during their deliberations, it is apparent that they were confused by the judge’s instructions. Further, he submits, the judge did not address their concerns because he gave “wrong or

incomplete answers” to questions from the jury. [ 8 ] I was satisfied that these grounds of appeal would clearly surpass the threshold set by the first criterion. The appeal has an arguable basis, and could not be characterized as frivolous. [ 9 ] Regarding the second criterion, the Crown did not seriously argue that there was a basis on which to conclude that Mr. Snelgrove would fail to surrender himself into custody in accordance with the terms of the order. He has no criminal record and has complied with all the terms of release during the proceedings.

This includes the period of time from May, when he was convicted, to November when he was sentenced. Accordingly, I concluded that the second criterion was established on a balance of probabilities. [ 10 ] The analytical approach to the third criterion is discussed in Oland . The public interest at issue for purposes of the analysis comprises two components: public safety and public confidence in the administration of justice.

In this case, the Crown relied on the second of these, public confidence in the administration of justice. [ 11 ] This factor requires a balancing between enforcing the decision of the jury and allowing for review of the conviction by means of an appeal; in other words, the balance between enforceability and reviewability ( Oland , at paragraphs 47 to 49 ). The analysis is conducted “through the eyes of a reasonable member of the public”; that is, “someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values” ( Oland , at paragraph 47 ).

Uninformed public opinion plays no role. [ 12 ] In Oland , Moldaver J. addressed the tension between enforceability and reviewability: [49] In the final analysis, there is no precise formula that can be applied to resolve the balance between enforceability and reviewability. A qualitative and contextual assessment is required. In this regard, I would reject a categorical approach to murder or other serious offences, as proposed by certain intervenors.

Instead, the principles that I have discussed should be applied uniformly. [50] That said, where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak: ... [51] On the other hand, where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the “not frivolous” criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences. [ 13 ] In this case, I concluded that public safety and flight concerns were negligible.

I was also satisfied that the grounds of appeal, as outlined above, would “clearly surpass the ‘not frivolous’ criterion”. While the offence at issue is serious, the seriousness must be considered using a contextual assessment based on the particular facts. I considered factors such as the anticipated delay in deciding the appeal, relative to the length of the sentence, a factor referenced in Oland , at paragraph 48 ; Mr. Snelgrove’s lack of a criminal record; and the nature of the offence. If his appeal is unsuccessful, Mr. Snelgrove will serve his sentence.

I have directed that the appeal is to proceed without delay. In the result, I was satisfied that, on balance, the public interest weighed in favour of granting Mr. Snelgrove judicial interim release pending determination of his appeal. [ 14 ] In

summary, for the above reasons, I concluded that Mr. Snelgrove had established on a balance of probabilities the three criteria enumerated in section 679(3) of the Criminal Code . Accordingly, at the hearing, I granted his application for judicial interim release pending determination of his appeal. Application granted.