R. v. Brake, 2020 NLCA 6

Dennis Brake (applicant/appellant) v. Her Majesty the Queen (respondent) (20/14) Indexed As: R. v. Brake 2020 NLCA 6 5 C.A.N.L.R. 351 Court of Appeal of Newfoundland and Labrador Butler J.A. February 21, 2020

Summary: Mr. Brake applied for judicial interim release pending the disposition of his appeal from conviction on one count of possession ofcocaine for the purpose of trafficking. Held: Application granted, with conditions. Butler J.A.: The application for judicial interim release pending the disposition of the appeal was granted. While the Crown initiallyobjected to Mr. Brake’s release, the Court was subsequently advised that the Crown consented to Mr. Brake’s release on certainconditions. Nevertheless, the Court considered the criteria in

section 679 of the Criminal Code. The Court was satisfied that: Mr. Brake’sappeal was not frivolous; Mr. Brake would surrender himself into custody; and that, while Mr. Brake was convicted of a serious offence,his detention was not necessary in the public interest. Mr. Brake’s application was granted, subject to the conditions as agreed to by theCrown (paragraphs 3-14). Cases cited: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 25 R. v. Parsons (1994), (NL CA), 117 Nfld. & P.E.I.R. 69 (Nfld. C.A.) R. v. Greenham, 2018 NLCA 70 R. v.

Farinacci (1993), (ON CA), 25 C.R. (4th) 350, 86 C.C.C. (3d) 32 Statutes considered: Controlled Drugs and Substances Act, section 5(2) Criminal Code, section 679(3) Counsel: Stephen P. Orr, for the applicant/appellant; Elaine Reid, for the respondent. The application was heard and decision rendered orally on February 21, 2020 by Butler J.A. The following memorandum of disposition was filed on February 26, 2020 by Butler J.A. ______________________________________________________________

Butler J.A.: [1] This was an application by Mr. Brake for judicial interim release pending the disposition of his appeal from conviction on acharge of possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, SC1996, c 19. Mr. Brake was convicted by the Provincial Court of Newfoundland and Labrador on October 10, 2019 and sentenced to twoyears plus a day incarceration on February 4, 2020.

He appealed the same day. [2] On an application for release pending appeal, the appellant must establish the following criteria under section 679(3) of theCriminal Code of Canada: 1. The appeal is not frivolous; 2. The appellant will surrender himself into custody in accordance with the terms of the order; and 3.

The appellant’s detention is not necessary in the public interest. [3] While initially contested (only on the first of the three criteria) the Crown advised the Registry in advance of the hearing that itwould consent to the Appellant’s release on conditions that were reflected in a draft Release Order. [4] However, the Crown’s consent does not alter the court’s role in the adjudicative process. On any application under section679(3), the Court is required to ensure that all three criteria have been established by the Appellant on a standard of a balance ofprobabilities (R. v.

Oland, 2017 SCC 17, [2017] 1 S.C.R. 25.) [5] The standard for the first criterion is “widely recognized as being a very low bar” (Oland at paragraph 20). [6] In this case the Appellant’s memorandum of fact and law provided details of the grounds of appeal. Mr. Brake asserts that thetrial judge used evidence of a third party’s actions in furtherance of a joint agreement without first establishing that there was a jointagreement or that Mr.

Brake was a party to that joint agreement. [7] The Appellant also asserts that the trial judge made inferences that were not supported by the evidence to find that the Appellanthad both knowledge and control of cocaine (in order to establish “possession” of the cocaine). In support thereof, the Appellant citedportions of the transcript which he relies upon to establish these inferences. [8] I was satisfied on the low threshold applicable to this criterion that Mr. Brake’s appeal rests on a ground rational enough toevoke the possibility that his appeal may be allowed (R. v.

Parsons, 1994 CarswellNfld 14). [9] As to the second criterion, Mr. Brake admits to a short criminal record but there is no contest to his submission that he hasalways attended past court appearances. Mr. Brake resided with his mother before being incarcerated and proposes to return there ifreleased. He is employed at the St. Lawrence shipyard and suggested that he does not hold a passport. His mother was agreeable toacting as surety.

On these facts, I was satisfied that he will surrender himself into custody in accordance with the terms of the order if hewere released. [10] Finally, as to the public interest element, I acknowledge that this requires consideration of both public safety and publicconfidence in the judicial system. [11] On public safety, I note that the appellant was convicted of a non-violent offence that involved no weapon. However it isnevertheless a serious offence. [12] As this Court stated in R. v.

Greenham, 2018 NLCA 70, at paragraphs 25-26, the public confidence element of this third criterionrarely plays a role in the decision to grant or deny bail but requires me to weigh two competing interests, namely enforceability andreviewability. I recognize that Mr. Brake no longer benefits from the presumption of innocence and that enforceability relates to thepublic’s interest in having orders of the court immediately enforced. Reviewability however relates to the public interest inacknowledging that the justice system is not infallible and people are entitled to a meaningful review process (R. v.

Farinacci, (1993), (ON CA), 86 CCC (3d) 32). [13] To the limited extent that the public confidence element requires consideration here, having regard to all the circumstances, Iwas also satisfied that the public would not have their confidence in the justice system undermined by the appellant’s release andtherefore the appellant’s detention is not necessary in the public interest. [14] I did require the addition of a final condition to the draft Release Order addressing Mr. Brake’s surrender into custody should hisappeal not be successful. I granted Mr.

Brake judicial interim release pending appeal on the following conditions:

a) Keep the peace and be of good behavior;

b) Remain within the Province of Newfoundland and Labrador;

c) Reside at 380 Ville Marie Drive, Marystown, NL, and notifies the Royal Canadian Mounted Police (“RCMP”) detachment inMarystown, NL, of any change in address within 24 hours;

d) Report on each and every Wednesday following the date thereof, between the hours of 9 a.m. and 5 p.m., NL time to the RCMPdetachment in Marystown in person or by telephone;

e) Notify the RCMP in Marystown where you are working and your work

schedule for the St. Lawrence Shipyard or any other place

of employment, in the province of NL;

f) Notify the RCMP detachment in Marystown of any change of your address, employment or occupation;

g) Do not have in your possession, nor be in a dwelling house with, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance;

h) Do not possess, consume or traffic in a controlled substance as defined by the Controlled Drugs and Substances Act , except in accordance with a physician’s prescription for him or a legal authorization;

i) Do not communicate, directly or indirectly, with any of the following persons, their places of residence or employment except through a lawyer: i Darren Pittman;

j) Forthwith deposit with the Registrar any passport you now possess or may hereafter acquire;

k) Appear in court if and as required by the court;

l) If you are unsuccessful on your appeal, you are to surrender yourself into custody within 24 hours after the decision is rendered to the nearest RNC or RCMP jurisdiction. Failure to do so will result in a warrant being issued for your arrest. Application granted, with conditions.