R. v. Kennedy, 2020 NLCA 41

Robert Kennedy (applicant/appellant) v. Her Majesty the Queen (respondent) (20/57) Indexed As: R. v. Kennedy 2020 NLCA 41 6 C.A.N.L.R. 142 Court of Appeal of Newfoundland and Labrador Welsh J.A. December 3, 2020

Summary: Robert Kennedy was convicted of one count of sexual assault contrary to

section 271 of the Criminal Code and sentenced to 1,183 days imprisonment. He applied for judicial interim release pending disposition of his appeal against conviction and sentence. Held: Application allowed. Welsh J.A.: To grant judicial interim release pending appeal the three criteria set out in section 679(3) of the Criminal Code must be established on a balance of probabilities ( R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250) (paragraphs 1-2). The first criterion, that the appeal is “not frivolous”, is widely recognized as a low bar, which is met in the present instance (paragraph 3).

Under the second criterion there was no indication that Mr. Kennedy would not surrender himself into custody as required. He had no past criminal record, he was residing with his sister who was acting as his surety, he had not travelled, and he has no family outside the Province (paragraph 4). Under the third criterion, the public interest requires consideration of both public safety and public confidence in the administration of justice. The administration of justice factor engages the competing interests of enforceability and reviewability (paragraphs 5-7).

In this case, the criteria for release were met and Mr. Kennedy’s application for judicial interim release was granted (paragraph 8). Cases cited: R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250 Statutes considered: Criminal Code , sections 271 , 679(3) Counsel: Brian D. Wentzell, for the applicant/appellant; Dana E. Sullivan, for the respondent.

The application was heard on December 3, 2020 with decision rendered orally by Welsh J.A. The following memorandum of disposition was filed on December 4, 2020 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] On March 4, 2020, Robert Kennedy was convicted of one count of sexual assault contrary to

section 271 of the Criminal Code . He was sentenced on October 27, 2020 to 1,183 days imprisonment. He is appealing both the conviction and sentence. The hearing of the appeal has been set for April 7, 2021. Mr. Kennedy also applied for judicial interim release pending disposition of the appeal. At the hearing, I granted that application, with conditions. [ 2 ] To succeed with his application, Mr. Kennedy 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 , at paragraph 20 , reiterated that “the ‘not frivolous’ test is widely recognized as being a very low bar”. In this case, the grounds of appeal relate largely to questions of fact. However, despite the rigorous standard of review that will apply, I was not satisfied that the appeal should be characterized as frivolous. [ 4 ] Regarding the second criterion, I was satisfied that there is no basis on which to conclude that Mr.

Kennedy would not surrender himself into custody as required. He will be residing with his sister, who is supportive and who has agreed to be a surety. He is forty- five years old, has not traveled and has no family outside the Province. He has no criminal record and complied with the conditions of his release prior to conviction. [ 5 ] The third criterion, that Mr. Kennedy’s detention is not necessary in the public interest, requires consideration of two components: public safety and public confidence in the administration of justice ( Oland , at paragraphs 23 to 27 ).

The administration of justice factor engages two competing interests: enforceability and reviewability. In Oland , Moldaver J. explained: [25] According to Arbour J.A., the enforceability interest reflected the need to respect the general rule of the immediate enforceability of judgments.

Reviewability, on the other hand, reflected society’s acknowledgement that our justice system is not infallible and that persons who challenge the legality of their convictions should be entitled to a meaningful review process – one which did not require them 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 was unlawful (pp. 47-49). [ 6 ] 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 applications for bail pending appeal on a regular basis. Of those, only a fraction are likely to involve the public confidence component. Rarely does this component play a role, much less a central role, in the decision to grant or deny bail pending appeal. ... [ 7 ] 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. [ 8 ] In this case, after a careful review of all the factors, including the seriousness of the offence, and consideration of the submissions of counsel, I was satisfied that the criteria for release had been met and that Mr. Kennedy’s application for judicial interim release should be granted. Application allowed.