R. v. Kennedy, 2020 NLCA 36

Robert Kennedy (applicant/appellant) v. Her Majesty the Queen (respondent) (20/57) Indexed As: R. v. Kennedy 2020 NLCA 36 6 C.A.N.L.R. 100 Court of Appeal of Newfoundland and Labrador Hoegg J.A. September 30, 2020

Summary: Robert Kennedy was convicted of sexual assault. At issue in this application is whether this Court has jurisdiction to order judicialinterim release pending appeal before sentencing, and if jurisdiction exists, the appropriateness of doing so in this case. Held: The application was dismissed, without prejudice to the applicant’s right to apply for judicial interim release after he is sentenced.

Hoegg J.A.: The Court has jurisdiction to grant a judicial interim release application only in respect of the custody to which the applicantis presently subject, such a release order would expire upon the imposition of a sentence (paragraphs 5-17). Exceptional circumstances and very good reasons would have to be present to vacate a judge’s lawful remand order pursuant to 523 ofthe Code by a

section 679 application for release (paragraphs 18-22). The judge’s exercise of discretion to remand Mr. Kennedy in custody was warranted and no exceptional or unusual circumstancesjustified interfering with the judge’s lawful exercise of discretion (e.g., a lengthy period of time between remand in custody andimposition of sentence) (paragraphs 23-29). Cases cited: R. v. Head, (SCC), [1986] 2 S.C.R. 684 R. v. Noftall, 2018 NLCA 63. 3 C.A.N.L.R. 464 R. v. Bencardino and De Carlo, (ON CA), [1973] O.J. No. 191, 11 C.C.C. (2d) 549 R. v. Smale, (ON CA), [1979], O.J. No. 1181, 51 C.C.C. (2d) 126 R. v.

Morris (1985), (ON CA), 10 O.A.C. 245, 21 C.C.C. (3d) 242 (Ont. C.A.) R. v. Hart, 1998 NSCA 17 R. v. N.A.A., (NS CA), [1995] N.S.J. No. 448, 145 N.S.R. (2d) 225 R. v. MacIntosh, 2010 NSCA 68 R. v. Osolin, [1989] B.C.J. No. 654, [1989] B.C.W.L.D. 1330 R. v. Sark, (NB CA), [2002] N.B.J. No. 429, 255 N.B.R. (2d) 201 R. v. Tulle (1989), (PE SCAD), 81 Nfld. & P.E.I.R. 308, 255 A.P.R. 308 R. v. Sharma, 2018 ABCA 373 R. v. I.M., 2019 QCCA 2135

R. v. Oland , 2017 SCC 17 , SCC, [2017] 1 S.C.R. 250 Statutes considered: Criminal Code , sections 523 , 679(1) Other: Gary T. Trotter, The Law of Bail in Canada , 3d ed. (Toronto, ON: Thomson Reuters Canada, 2010) Counsel: Brian D. Wentzell, for the appellant; Dana E. Sullivan, for the respondent. This application was heard on September 30, 2020 with decision rendered orally by Hoegg J.A.

The following judgment was filed on October 28, 2020 by Hoegg J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION Hoegg J.A.: INTRODUCTION [ 1 ] Robert Kennedy was arrested and charged with sexual assault on June 14, 2018 following which he was released on a Promise to Appear. He subsequently entered a not guilty plea to the charge and his trial took place at Provincial Court over eight days between October 7, 2019 and November 22, 2019. On March 4, 2020, he was convicted and his sentencing hearing was set for August 25, 2020.

After hearing sentencing submissions on that date, the Judge remanded Mr. Kennedy into custody pending imposition of sentence and set a return date of October 27, 2020 for imposition of the sentence. [ 2 ] On August 31, 2020, Mr. Kennedy filed a Notice of Appeal of his conviction and an application for judicial interim release (JIR) pending appeal. On September 8, 2020, he appeared by counsel before me, and sought directions as to how to proceed. I ordered a hearing to take place on September 30, 2020, and specified two questions to be addressed prior to proceeding to hear the JIR application on its merits.

Those questions were whether this Court has jurisdiction to order JIR pending appeal for an offender before their sentencing, and if jurisdiction exists to so order, the appropriateness of doing so in this case. [ 3 ] After hearing argument respecting the preliminary questions on September 30, 2020, and without hearing Mr. Kennedy’s application on its merits, I dismissed it without prejudice to his right to apply for JIR pending appeal after he is sentenced. What follows are my reasons for doing so.

BACKGROUND [ 4 ] At the sentencing hearing on August 25, 2020, the Crown sought a four-year sentence in respect of Mr. Kennedy’s conviction. Mr. Kennedy, by his counsel, sought an 18-month sentence. The Judge advised that he intended to file a written decision and needed time to consider the matter and write a decision. Crown counsel then submitted to the Judge that it would be appropriate to remand Mr. Kennedy in custody forthwith, given that both counsels’ sentencing submissions called for an incarcerating sentence of some duration. The Judge did so, and explained to Mr.

Kennedy that he would receive credit for the time he spent on remand on an enhanced (1.5) basis. The Judge then set October 27, 2020 for imposition of sentence. ANALYSIS [ 5 ] The sentencing Judge’s power to remand Mr. Kennedy in custody pending imposition of sentence was exercised pursuant to section 523(2) (

a) of the Criminal Code . It reads: (2) …

(

a) the court, judge or justice before whom an accused is being tried, at any time, … may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused andmake any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judgeor justice considers to be warranted. The wording of section 523(2)(

a) indicates that the Judge could exercise his discretion to detain Mr. Kennedy upon cause being shown,but that such detention would expire when his trial was completed. [6] A trial is completed when the sentence for the offence is imposed (R. v. Head, (SCC), [1986] 2 S.C.R. 684 at698); see also R. v. Noftall, 2018 NLCA 63). The cause shown for the Judge to vacate the release order to which Mr. Kennedy wassubject on August 25, 2020 was that Mr. Kennedy had been convicted of a serious charge and both Crown and Defence counsel calledfor an incarcerating sentence.

While the Judge did not state his intention to impose an incarcerating sentence, it can be inferred from thecircumstances of the offence, as described in the Judge’s decision on conviction and from the Judge’s explanation to Mr. Kennedy thathe would receive enhanced credit against sentence for his remand time, that the Judge intended to sentence Mr. Kennedy to custody andalso that he may have thought that remanding Mr. Kennedy forthwith would be more favourable to him. There was no objection taken atthat time by Mr.

Kennedy, who might have expected to be incarcerated on that day in any event, as sentences are frequently imposeddirectly following submissions. [7] In his Notice of Appeal against conviction Mr. Kennedy states that he intends to seek leave to appeal from his sentence “oncethe same is imposed on 27 October 2020.” Mr. Kennedy’s application for judicial interim release pending appeal was made pursuant tosection 679(1)(

a) of the Code. That

section reads: 679

(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determinationof his appeal if, (

a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required,notice of his application for leave to appeal pursuant to

section 678; … [8] Section 679(1) does not touch on the timing of a JIR application with respect to whether an appellate court may grant such anapplication before sentence has been imposed on the applicant. The

section requires only that an appellant file a Notice of Appeal inorder for an appellate court to consider a JIR application under section 679(1). Accordingly, once an appellate court is assured that aNotice of Appeal has been filed, it has jurisdiction to consider an application for JIR under 679(1) and release an applicant from custody. [9] The words in section 679(1) “release an appellant from custody” beg the question as to the nature of the custody from which theapplicant seeks release pending appeal.

The nature of the custody from which the applicant seeks release may well affect an appellatecourt’s jurisdiction to grant the relief requested by an applicant. [10] The jurisdiction of an appellate court to grant JIR pending determination of an offender’s appeal but before the offender has beensentenced was considered by the Ontario Court of Appeal in R. v. Bencardino and De Carlo (ON CA), [1973] O.J.No. 191, 11 C.C.C. (2d) 549 and R. v. Smale, (ON CA), [1979], O.J. No. 1181, 51 C.C.C. (2d) 126.

Both cases standfor the proposition that the provisions of the section 608(1) (now 679(1)) respecting JIR pending appeal clearly give appellate courtsauthority to release applicants, who have been convicted but not yet sentenced, from custody pending determination of their appeals. Neither Bencardino nor Smale addressed the nature of the custody the respective applicants were serving when they made their JIRapplications or the nature of any JIR order which might be able to be made in such circumstances.

However, in Bencardino, the Courtnoted the circumstances of the trial judge’s cancellation of the applicant’s release order at page 551: While the sentence imposed does not affect jurisdiction, nevertheless, there is a serious question in each case as to whether or not releaseshould be granted before the sentence is imposed. In the case at bar, clearly, the trial judge did not think that the applicants should be atliberty at this time and he cancelled their conditional release and ordered that they be held in custody pending sentence. I have not hadthe benefit of his reasons which prompted him to take this step.

However, he has presided over a lengthy trial, heard all of the evidence,formed opinions as to these two men; and I have no doubt having regard to considerations, including the likelihood of their appearancefor sentence and the public interest, he concluded that detention was necessary. The Court dismissed the application on the basis that the applicant failed to prove that their detention was not in the public interest.

Theapplication in Smale was denied because the Court felt it was not appropriate to deal with the application on its merits given that theapplicant was scheduled to be sentenced shortly thereafter. [11] A few years later in R. v. Morris (1985), (ON CA), 10 O.A.C. 245, 21 C.C.C. (3d) 242 (Ont. C.A.), the sameappellate court considered the authority of an appellate court to release an offender from custody before they had been sentenced. Indoing so, the Court addressed the nature of the custody the applicant was serving when he applied for JIR and the duration of any JIRorder the Court could make.

The Morris Court agreed that an appellate court has jurisdiction to consider a pre-sentence JIR application,but held that the nature of the custody an applicant for JIR is serving when making their application defines the extent of the power anappellate court has to grant JIR under section 679(1), saying “that the power relates only to the release of the applicant from the custodyto which he is then subject and not to some future custody which may, or may not, be subsequently imposed” (at 244).

The Morris Courtconcluded that the jurisdiction to grant JIR before sentence is therefore restricted to the custody to which the applicant is subject at thetime their application is decided, saying it was not “logical or practical to interpret the s. 608(1) [now 679(1)] any more widely than this”(at 244). The Court further explained at 244-245: I do not think that it is reasonable to interpret a power to release from custody imposed on a particular legal basis (s. 457.8(1)(b)(ii))

to extend to a possible future custody of necessarily unknown terms, i.e. the sentence, which would rest on a different legal basis. Further, and this is possibly more of a practical than a logical consideration, after the sentence is imposed the terms of the sentenceand the trial judges’ reasons for it are of vital concern to the judge of the Court of Appeal in deciding what powers, if any, to exerciseunder s. 608. See R. v.

Bencardino and De Carlo, supra, at p. 551. … …in the rare case where a judge of the Court of Appeal grants release before sentence is imposed the judge is required to provide that theorder expires at the time of sentencing or the disposition of the appeal, whichever is earlier, and normally should provide that theappellant surrender into custody the day before either of these events. [12] The Nova Scotia Court of Appeal similarly reasoned in R. v.

Hart, 1998 NSCA 17, and dismissed the applicant’s request for pre-sentence release “on the sole ground that the appellant has not demonstrated unusual circumstances which would warrant … interferingwith the discretion exercised by the trial judge – in refusing to continue the appellant’s bail pending the sentencing hearing – andgranting his interim release at this stage” (at 4). [13] Granting JIR pending appeal before sentence has been considered by several other appellate courts: the Nova Scotia Court ofAppeal in R. v. N.A.A., (NS CA), [1995] N.S.J. No. 448, 145 N.S.R. (2d) 225, and R. v.

MacIntosh, 2010 NSCA 68;the British Columbia Court of Appeal in R. v. Osolin, [1989] B.C.J. No. 654, [1989] B.C.W.L.D. 1330; the New Brunswick Court ofAppeal in R. v. Sark, (NB CA), [2002] N.B.J. No. 429, 255 N.B.R. (2d) 201; the Prince Edward Island Court ofAppeal in R. v. Tulle (1989), (PE SCAD), 81 Nfld. & P.E.I.R. 308, 255 A.P.R. 308; the Alberta Court of Appeal in R.v. Sharma, 2018 ABCA 373; and the Quebec Court of Appeal in I.M. v. R., 2019 QCCA 2135.

All of these courts concluded, eitherexpressly or by default, that section 679(1) gave jurisdiction to appellate courts to grant JIR to applicants who had been convicted but notyet sentenced (see also Gary T. Trotter, The Law of Bail in Canada,3d ed. (Toronto, ON: Thomson Reuters Canada, 2010) at 10-9). Several of the above-referenced cases specifically noted that the nature of the custody from which an applicant seeks release informs therelease from custody an appellate court has authority to order.

In MacIntosh, the Nova Scotia Court of Appeal referenced Morris andHart, and stated the issue was whether it ought to exercise its discretion to release the applicant pending his sentencing. In Tulle, the PEICourt of Appeal quoted the Morris reasoning “that release pending sentence … would expire at the time of the sentencing or dispositionof the appeal, whichever occurred earlier” (para. 2).

In I.M., the Quebec Court of Appeal effectively characterized the applicant’s JIRapplication as a request for release pending sentencing. [14] In consideration of the above-referenced jurisprudence, I agree that an appellate court’s jurisdiction to release an applicant fromcustody pending determination of his appeal applies only to the custody to which the applicant is subject when the appellate court’srelease order is made, and not to any future custody which may or may not be subsequently imposed. [15] In this case, Mr. Kennedy was convicted and had filed a Notice of Appeal.

He therefore met the requirement of the

section tohave his application considered by this Court. It is worth mentioning that as an applicant for JIR pending appeal, he no longer enjoyedthe presumption of innocence, and he bore the onus of establishing that his release was justified. [16] It was clear from Mr. Kennedy’s appearance seeking directions on September 10, 2020 and from his appearance on September30, 2020 that he was applying for an order relieving him from custody until his conviction appeal was determined. Yet, his custodialsentence had not been imposed. He was in custody pursuant to the Judge’s remand order under

section 523 of the Code which wouldexpire upon his sentence being imposed. [17] After hearing the parties on the preliminary questions on September 30, 2020, I concluded that my authority to release Mr.Kennedy applied only to the custody he was subject to under

section 523 of the Code, and any order that I could make would expire uponthe Judge’s imposition of sentence. The issue therefore became whether I should exercise my discretion under section 679(1) to vacatethe Judge’s remand order and release Mr. Kennedy from custody until his sentence was imposed. [18] The appropriateness of ordering pre-sentence release was addressed in several of the cases referred to above. In Smale, the Courtcautioned that jurisdiction to release an applicant from pre-sentence custody ought to be exercised only “in unusual and limitedcircumstances” (at 128).

In MacIntosh, the Court described the issue as “whether unusual circumstances exist at present, that is, afterconviction and before sentencing, which would justify …” the court considering whether the offender ought to be released at that stageof the proceedings (para. 12). In Sark, the Court stated that the circumstances pertaining to a pre-sentence JIR application must be“sufficiently unusual” before an appellate court is warranted in interfering with a trial judge’s exercise of discretion to remand (para. 11).

The Morris Court described cases where a judge of the Court of Appeal could grant pre-sentence release as “rare” (at 245). [19] The Quebec Court of Appeal made a very strong statement regarding pre-sentence bail in I.M.: [5] It has been the constant and unanimous view of this Court that exceptional circumstances are required to grant such an applicationfor release before sentencing: Lévesque c. R., 2019 QCCA 1368; Mukendi Wa Bukole c. R., 2019 QCCA 1192; Guérard c. R., 2018QCCA 424; D.V. c. R., 2017 QCCA 934; P.G. c. R., 2017 QCCA 811; Vallières c. R., 2016 QCCA 1922; Leboeuf c. R., 2016 QCCA 534;Ménard c.

R., 2013 QCCA 1215; Piccini c. R., 2011 QCCA 1844; Imbeault c. R., 2008 QCCA 1964. ... [9] Consequently, this Court has rarely granted applications for release pending appeal, but before sentencing. Of the abundantdecisions of this Court referred to by the parties, only two have granted such an application, but the facts in each were quite different thanin the case at hand. In Mukendi Wa Bukole v. R., supra, no sentencing hearing had been set and it was feared that the actual sentencingprocess would last an indefinite period. In Dumont v. R., (Q.C.

C.A.), the sentencing process had stretched out over aperiod of close to six months. Yet, in Ménard v. R., 2013 QCCA 1215, a similar six-month sentencing process was not deemed in thatcase to constitute an exceptional circumstance.

The Court then added: [10] Each case must, of course, be determined on its own facts. In this case, taking into account the objective gravity of the offences and the expected time for reaching an appropriate sentence, the appellant has failed to convince me that he meets the high threshold of an exceptional circumstance which would justify overturning, at this juncture, the decision of the trial judge to revoke bail. [ 20 ] The jurisprudence on this issue begs the question of why exceptional circumstances are required?

In Morris , Sark and Osolin , the Courts stated that in deciding whether to grant pre-sentence JIR pending appeal, an appellate court does not have all of the necessary information to inform its consideration. The respective Courts explained that in that circumstance an appellate court lacks the sentencing Judge’s reasons for sentence which bear on aspects of the criteria for JIR.

The Morris Court characterized a sentencing judge’s reasons to be “of vital concern” to an appellate court when considering JIR pending appeal (at 245). [ 21 ] In all but one of the cases referenced above, the courts declined to grant the offenders’ applications for pre-sentence JIR. In MacIntosh , Hart , Tulle and Sark , the respective appellate courts found that the circumstances were not so exceptional as to justify interfering with the discretion exercised by the judge who remanded the offender in custody. The only case in which an offender’s application for pre-sentence JIR was granted was N.A.A.

In N.A.A. the Court effectively reasoned that an applicant who applies for pre- sentence release should not have a higher burden to meet than an offender who seeks JIR after sentencing.

Of note, the MacIntosh Court dealt with the conflict between N.A.A. and the other Nova Scotia authorities respecting the issue, and stated “to the extent the test applied in N.A.A. is contradictory to the more recent statement of the law in Hart and the authorities cited by Flinn J.A., Hart is to be preferred (para. 14 ). [ 22 ] I agree that an appellate court could benefit from a sentencing judge’s reasons for the sentence they impose on an offender because the reasons are likely to touch on the criteria applicable to a JIR application as set out in R. v. Oland , 2017 SCC 17 , SCC, [2017] 1 S.C.R. 250.

I also agree that circumstances would have to be exceptional in order to vacate a judge’s lawful remand order, imposed pursuant to

section 523 of the Code . In short, a lawful court order should not be displaced by a section 679(1) application for JIR without very good reason. [ 23 ] In this case there was nothing put before me to suggest that the Judge did not have cause to vacate Mr. Kennedy’s Promise to Appear, nor that the Judge’s exercise of discretion to remand Mr. Kennedy in custody was unwarranted. Mr. Kennedy’s conviction of a serious charge, along with the sentencing submissions of both counsel on August 25, 2020, provided sufficient reason for the Judge to vacate the Promise to Appear binding Mr.

Kennedy and to remand him in custody. Neither was I shown any circumstance pertaining to Mr. Kennedy personally or otherwise that could be characterized as exceptional or unusual so as to justify interfering with the Judge’s lawful exercise of discretion to remand him. [ 24 ] Some cases suggest that a lengthy period of time between remand in custody and imposition of sentence (scheduled or unscheduled), could be an exceptional circumstance so as to justify JIR release before sentence is imposed ( see I.M. , at para. 9 ). I agree.

In Mukendi , no date for a sentencing hearing had been set, leaving the offender in a state of limbo. In Dumont , there was a period of six months delay in sentencing, which the Quebec Court of Appeal found an exceptional circumstance, although in Ménard , the same appellate court found a six-month hiatus not to constitute an exceptional circumstance. [ 25 ] The hearing of Mr. Kennedy’s application for JIR in this Court on September 30, 2020 was the very earliest time that he could have been released, meaning that there was less than one month from then until his scheduled sentencing date.

I did not consider this four-week period of time to constitute an unusual or exceptional circumstance so as to warrant interfering with the Judge’s lawful remand order and proceeding to a merits hearing on the Oland criteria. [ 26 ] In any event, if I had been persuaded to hear Mr. Kennedy’s JIR application on its merits and grant it, I could only have released him from the custody he was serving at the time, pursuant to the Judge’s remand order under

section 523 of the Code and which would expire upon Mr. Kennedy being sentenced. I had no authority to release him from a custody that did not exist, or an anticipated custodial sentence scheduled to be imposed on October 27, 2020. A court cannot make orders based on speculation or anticipation. [ 27 ] Given that a release order made pre-sentence would be valid only until Mr. Kennedy was sentenced, he would have to apply for bail again after his sentencing.

In addition to the draw on judicial and court resources and the expenses associated with two hearings, the possibility arises of two different conclusions, grounded on different legal bases but on very similar facts, by two different Justices of this Court ( see Hart , at 4)]. The above circumstances present practical considerations which, in my view, ought to be avoided in the absence of exceptional circumstances.

SUMMARY [ 28 ] While jurisdiction exists under section 679(1) of the Code for an appellate court to grant JIR to an applicant who has been convicted but not yet sentenced, the jurisdiction is curtailed by the inability of an appellate court to make an order that transcends the sentencing process and releases the applicant from a custody not yet imposed. Where a lawful court order remanding an offender in custody pending imposition of his sentence is in place, exceptional circumstances must exist in order for it to be displaced by an order made under section 679(1). [ 29 ] For the above reasons, I dismissed Mr.

Kennedy’s application without prejudice to his reapplying for JIR after he is sentenced. Application dismissed.