R. v. Moores, 2020 NLCA 7

Lloyd Moores (applicant/appellant) v. Her Majesty the Queen (respondent) (19/105) Indexed As: R. v. Moores 2020 NLCA 7 5 C.A.N.L.R. 355 Court of Appeal of Newfoundland and Labrador Goodridge J.A. February 13, 2020

Summary: Mr. Moores applied for judicial interim release pending the disposition of his appeal from conviction for one count of sexual assault, twocounts of uttering threats, and three counts of assault. Held: Application granted, with conditions. Goodridge J.A.: The application for judicial interim release pending the disposition of the appeal was granted. In his notice of appeal,Mr. Moores argued that the trial judge’s credibility assessment was based on inadmissible evidence. This ground of appeal satisfied the“not frivolous” criterion (paragraphs 4-6). Mr.

Moores also established that he would surrender himself into custody in the event that his appeal is dismissed, and thereforeestablished the second criterion in section 679(3) of the Criminal Code (paragraphs 7-10). The third criterion found in section 679(3) was also satisfied. Mr. Moores established that the public safety risk was low. While thegravity of the offences was relatively high and the circumstances of the offence were serious, Mr.

Moores established that the publicinterest in allowing a meaningful review outweighed the public interest in the immediate enforceability of the sentence (paragraphs 11-21). Cases cited: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 25 R. v. Allen, 2001 NFCA 44, 158 C.C.C. (3d) 225 R. v. Manasseri, 2013 ONCA 647, [2013] O.J. No. 6177 R. v. Ferwerda, 2018 NLCA 14 R. v. Farinacci, (ON CA), [1993] O.J. No. 2627, 109 D.L.R. (4th) 97 (Ont. C.A.) R. v. Payne, 2018 NLCA 2 Statutes considered: Criminal Code, section 679(3) Counsel: Derek Hogan, for the applicant/appellant;

Lisa Stead, for the respondent. The application was heard and decision rendered orally on February 13, 2020 by Goodridge J.A. The following memorandum of disposition was filed on February 26, 2020 by Goodridge J.A. ______________________________________________________________ Goodridge J.A.: INTRODUCTION [ 1 ] The applicant, Lloyd Moores, applied for bail pending his appeal. Following the hearing on February 13, 2020, bail was granted with written reasons to follow. [ 2 ] On April 10, 2019, Mr. Moores was convicted for sexual assault, uttering threats (two counts), and assault (three counts).

On November 21, 2019, Mr. Moores was sentenced for these crimes, with a custodial term of three and a half years less time served. He appeals the convictions, claiming that the trial judge made errors in arriving at the guilty verdicts. The appeal is set for hearing on May 21, 2020. release pending appeal [ 3 ] A person seeking release from custody pending an appeal must demonstrate on a balance of probabilities that he meets each of the three statutory criteria found in section 679(3) of the Criminal Code ( see R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250 , at paragraph 19 , and R. v.

Allen , 2001 NFCA 44 , 158 C.C.C. (3d) 225 , at paragraphs 26-30 ). That

section provides: 679(3) In the case of an appeal [against conviction], the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (

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. ANALYSIS Appeal is not frivolous ( section 679(3) (i)) [ 4 ] In Oland , at paragraph 20 , Moldaver J. (for the Court) stated that the "not frivolous ” threshold is a very low bar. At paragraph 38 of R. v. Man33asseri, 2013 ONCA 647 , [2013] O.J. No. 6177 , cited with approval at paragraph 20 of Oland , Watt J.A. described the “not frivolous” threshold as follows: An appeal is not frivolous if the proposed grounds of appeal raise arguable issues.

An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established. [ 5 ] In this matter, one of the grounds of appeal is that the trial judge erred in his credibility assessment by accepting and relying on unproven historical criminal convictions and criminal charges. The trial judge referred to Mr.

Moores’ criminal record and his involvement in the criminal law system when considering and rejecting his evidence, even though these historical allegations were not all proven. [ 6 ] In the trial of the charges now under appeal, the Crown’s case pitted Mr. Moores’ testimony against the complainants’ testimony. Mr. Moores denied all the allegations made against him. The credibility assessment was key. The Crown acknowledges that Mr. Moores’ criminal record and related involvement in the criminal law system were not all proven in the manner required by section 12(2) of the Canada Evidence Act , R.S.C. 1985, c.

C-5 , and that the trial judge referred to the criminal record as part of the credibility assessment and as part of the justification for rejecting Mr. Moores’ evidence. If the credibility assessment was based on inadmissible evidence, or unproven evidence, then that would warrant appellate intervention if established. Accordingly, this is a viable ground of appeal and passes the “not frivolous” threshold. Will Mr. Moores surrender himself into custody ( section 679(3) (ii)) [ 7 ] Under this second criterion, Mr.

Moores must show that he will surrender himself into custody in accordance with the terms of the release order, and not flee the jurisdiction. [ 8 ] Mr. Moores was granted bail following the charges and remained at liberty, on release conditions, until his convictions following trial. He had one breach of the release conditions when he exercised parenting rights to his youngest son in a manner inconsistent with the Court Order. He took his son to dinner, with the grandparents, at a restaurant 20 minutes outside of the community where the Court Order required him to exercise parenting rights.

Apart from that, there was compliance with the release conditions for the 33 months that they were in place. Mr. Moores has no prior conviction for a ‘failure to appear’ and he attended all court dates during the trial of the offences under appeal. He is 47 years old; he has family and roots in Newfoundland; he is in a stable relationship with

Wendy Griffiths; he plans to reside with Ms. Griffiths at her home in Kilbride, if released. [9] The Crown brought to the Court’s attention two unendorsed warrants naming Mr. Moores, issued in Alberta six years ago. Thevalidity of these warrants, and their status, is unknown. Mr. Moores claims to have no knowledge of the warrants or the background. Crown counsel has communicated with justice officials in Alberta and has been unable to verify the validity or status of these warrants. Under the circumstances, I give no weight to these six-year-old warrants. [10] Mr.

Moores has established that he will surrender himself into custody in the event that this appeal is dismissed, and he thereforemeets this second criterion. Mr. Moores’ detention is not necessary in the public interest (section 679(3)(iii)) [11] The third criterion that Mr. Moores must meet is that his detention is not necessary in the public interest. The public interestcriterion consists of public safety and public confidence in the administration of justice (Oland, at paragraph 23 and R. v. Ferwerda, 2018NLCA 14, at paragraph 54).

Public Safety [12] Public safety risk is high, the Crown submits, because the release plan has Mr. Moores residing with Ms. Griffiths (his newdomestic partner) and her two young daughters – which means return to an environment similar to where the offences under appealallegedly occurred. In my view, the public safety risk is low. This view is supported by Mr. Moores compliance with release conditionsduring the 33 months preceding conviction, and by the testimony of the surety, Ms. Griffiths, with whom Mr. Moores has maintained ahealthy relationship for the past 24 months. Ms.

Griffiths presented as a reasonable and sensible woman. She appears to be welleducated, and understands the responsibility she is accepting in acting as surety. Ms. Griffiths has observed no behaviour of Mr. Mooresthat might indicate a risk to her or her daughters. [13] The release conditions pending trial included protection for the complainants by prohibiting Mr. Moores from entering the townwhere they reside. That same condition can be maintained in release conditions pending appeal. [14] Mr. Moores has established that the public safety risk is low.

Public Confidence [15] Public confidence relates to the balance between enforceability and reviewability of the sentence. On the one hand, there is apublic interest in immediate enforceability of the sentence, and on the other hand, there is the public interest in allowing meaningfulappellate review. In R. v. Farinacci, (ON CA), [1993] O.J. No. 2627, 109 D.L.R. (4th) 97 (Ont. C.A.), at paragraph42 (adopted at paragraphs 25 and 26 of Oland), Arbour J.A. described this balancing act: The "public interest" criterion in s. 679(3)(

c) of the Code requires a judicial assessment of the need to review the conviction leading toimprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule ofimmediate enforceability of judgments. [16] Moldaver J. said (at paragraph 29 of Oland) that the public confidence component would rarely play a role, much less a centralrole, in the decision to grant or deny bail pending appeal. In the rare cases where public confidence is in play, section 515(10)(

c) of theCriminal Code identifies factors to guide the analysis: (

i) the apparent strength of the case (modified to relate to apparent strength of thegrounds of appeal), (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, and (iv) theduration of term of imprisonment. In drawing upon concepts in section 515(10)(c), Moldaver J. recognized the important policyconsideration of maintaining consistency when considering bail in the pre-trial context, and the appellate context — with appropriatemodifications.

At paragraph 33 of Oland he expressed the view that there is virtue in “promoting consistency and harmony between thetrial and appellate contexts so that, together, they may be seen as providing a cohesive and comprehensive statement of the lawgoverning bail in Canada”. [17] The Crown argues that the current matter may be one of those rare cases where the public confidence component plays a role,primarily because the offences include sexual assault and violence in a domestic setting, and secondarily because the appeal is (in theCrown’s view) without merit. [18] There is no precise formula that can be applied to resolve the balance between enforceability and reviewability, when addressingpublic confidence.

A qualitative and contextual assessment is required. In making that assessment I agree with comments of Crowncounsel that the gravity of the offences is relatively high and the circumstances of commission (as described by the complainants) areserious. I do not agree with Crown counsel that the appeal is without merit. Based on the material that counsel have provided, there is aviable ground of appeal that would warrant appellate intervention if established.

This is not to say that the prospect of success on thatground of appeal is good, but rather to say that it clearly surpasses the "not frivolous" criterion. [19] There is also the concern that seven months will have passed, since sentencing, before Mr. Moores’ appeal can be heard, andthere will be a further delay before an appeal decision is rendered. More time spent in custody prior to the appeal decision, rendersappellate review less meaningful. [20] I do not have concerns that Mr.

Moores is a flight risk; he has satisfied me that he will surrender himself into custody if theappeal is dismissed. [21] Overall, it is my view that Mr. Moores has established that the public interest in allowing meaningful appellate review tips the“public confidence” balance toward allowing a temporary suspension in the execution of his sentence. DISPOSITION

[ 22 ] Mr. Moores has demonstrated, on a balance of probabilities, that he meets each of the three statutory criteria found in section 679(3) of the Criminal Code . He is granted bail on the conditions set out in the draft order filed with this application, and subject to Ms. Griffiths entering into the surety arrangement. [ 23 ] In coming to this conclusion, I distinguish the decisions of R. v. Payne , 2018 NLCA 2 , and Ferwerda which the Crown had relied upon.

In Payne , the grounds of appeal were not strong; the offender had a history of failing to respect release conditions; and the public safety concerns were greater in comparison. In Ferwerda the grounds of appeal did not clearly surpass the “not frivolous” threshold; the public safety concerns were much greater (court described the safety concerns as significant based on a history of violent crimes and failure to respect release conditions); and there were lingering flight risk concerns. Application granted, with conditions.