R. v. Greenham, 2018 NLCA 70

Tony Greenham (applicant/appellant) v. Her Majesty the Queen (respondent) (18/92) Indexed As: R. v. Greenham 2018 NLCA 70 3 C.A.N.L.R. 599 Court of Appeal of Newfoundland and Labrador White J.A. December 6, 2018

Summary: The appellant applied for judicial interim release pending his appeal of his conviction for trafficking in a controlled substance. Held: Application allowed. White J.A.: Section 679 (3) of the Criminal Code sets out the criteria that the appellant must meet in order to be granted judicial interim release: 1) the appeal is not frivolous; 2) the appellant will surrender into custody if required to do so; and 3) the appellant’s detention is not necessary in the public interest. It is a low bar for an appellant to establish that an appeal is not frivolous. The appellant has raised four grounds of appeal.

The first ground alleges that he received ineffective assistance from his counsel at trial. The remaining three grounds relate to alleged errors made by the trial judge in assessing the credibility of the complainant. The Crown argues that it is the appellant’s application, and the appellant bears the onus of placing a sufficient record before the Court to allow a threshold assessment on the merits of appeal and he has not done so.

Without concluding that counsel offered ineffective assistance, the affidavit evidence of the appellant supported by the written and oral argument of counsel is, in this case, sufficient to show that the appellant has at least an arguable case. As at least one of the grounds of appeal surpasses the not frivolous standard, it is not necessary for me to examine the remaining grounds of appeal. There is nothing in the record suggesting that the appellant would not surrender into custody, and he has a demonstrated history of attending court when required.

The public interest analysis includes two components: public safety, and public confidence in the administration of justice. In analyzing the public safety component the following non-exhaustive list of factors may be considered: 1) the seriousness and nature of the offence; 2) the surrounding circumstances of the offence and the offender; 3) the risk of harm to the victim; 4) the offender’s criminal record; and 5) the offender’s experience in abiding by conditions in prior court orders.

After the charges under appeal were laid, the appellant was released from custody for over three and a half years prior to his sentencing. There is nothing on the record indicating any issues with the appellant failing to abide by the condition to abstain from contacting the complainant or his family during this time. The appellant does not pose a risk to public safety.

The public confidence analysis involves a balancing of the enforceability and reviewability interests. A reasonable member of the public would not have their confidence in the justice system undermined by the appellant’s release. The appellant should be released subject to conditions. Cases cited: R. v. Oland, 2017 SCC 17 , [2017] 1 S.C.R. 250 R. v. G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 R. v. Passey , 1997 ABCA 343 , 209 A.R. 191 R. v. Genge , [1992] N.J. No. 238 (Nfld. C.A.) R. v. J.K ., 2013 NLCA 23 , 334 Nfld. & P.E.I.R. 236 R. v. Ferwerda , 2018 NLCA 14 R. v.

Payne , 2018 NLCA 2 Counsel: John Duggan, for the applicant/appellant; Elaine Reid, for the respondent. This application was heard and decision rendered orally on December 4, 2018 by White J.A. The following reasons for decision were filed on December 6, 2018 by White J.A. ______________________________________________________________ White J.A.: [ 1 ] Tony Greenham was convicted of trafficking in a controlled substance on June 22, 2017, and was sentenced to two years in custody on October 2, 2018. From March 20, 2015 to October 2, 2018, Mr. Greenham was released from custody on conditions. [ 2 ] Mr.

Greenham is appealing his conviction, and has applied for judicial interim release pursuant to

section 679 of the Criminal Code . The Crown is opposed to his application. ANALYSIS [ 3 ] Section 679(3) states that an appellant can only be granted judicial interim release if they meet three criteria. The appellant must show that: 1) the appeal is not frivolous; 2) the appellant will surrender into custody if required to do so; and 3) the appellant’s detention is not necessary in the public interest. [ 4 ] These criteria were recently considered by the Supreme Court of Canada in R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250 .

The Appeal is Not Frivolous [ 5 ] In Oland , the Supreme Court recognized that it is a “low bar” for an appellant to establish that an appeal is not frivolous (at para. 20). An appeal is frivolous if it has no arguable basis. [ 6 ] The appellant has raised four grounds of appeal. The first ground alleges that he received ineffective assistance from his counsel at trial.

The remaining three grounds relate to alleged errors made by the trial judge in assessing the credibility of the complainant. [ 7 ] The appellant alleges that he did not receive effective assistance of counsel due to the limited interaction he had with his trial counsel. He claims that his lawyer never advised him of certain legal issues, that his lawyer never provided him with the disclosure to review, and that his lawyer refused to let him testify in his own defence at trial.

[ 8 ] The Crown does not argue that the appeal is doomed to fail, per se . Rather, they argue that, based on the record currently available and the sworn affidavit of Mr. Greenham filed in support of the application, the appeal as it currently stands has no chance of success. The Crown argues that it is the appellant’s application, and the appellant bears the onus of placing a sufficient record before the Court to allow a threshold assessment on the merits of appeal. [ 9 ] The Crown refers to the Supreme Court of Canada’s judgment in R. v.

G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 for the proposition that an appeal based on ineffective assistance of counsel requires showing not only that the acts or omissions of counsel amounted to incompetence, but also that the acts or omissions resulted in a miscarriage of justice.

In the present application, the Crown argues that the failure to tie alleged acts or omissions to a miscarriage of justice is fatal to the ground of appeal, and renders the appeal, as it currently stands, frivolous. [ 10 ] The Supreme Court in Oland , in discussing the not frivolous standard, favourably cited paragraphs 6–8 of the Alberta Court of Appeal applications decision of R. v. Passey , 1997 ABCA 343 , 209 A.R. 191 .

These paragraphs discuss the level of information that should be before a court in making an assessment on whether an appeal exceeds the not frivolous threshold. [ 11 ] Passey quotes with approval the following comments of Justice Mahoney of this Court in R. v. Genge , [1992] N.J. No. 238 (Nfld.

C.A.) : There is a statutory obligation upon the applicant for release pending appeal to satisfy me that his appeal is not frivolous (without merit) and that there is at least some arguable ground and it is not sufficient for the appellant to simply recite the grounds of appeal contained in the Notice of Appeal filed by him. It is incumbent on him to place before me some information in depth as to the circumstances giving rise to the grounds of appeal relied on.

He must show me at this stage that he has at least an arguable case. (Emphasis added.) [ 12 ] As stated in Passey , when a judge is unable to make any determination on whether or not the appeal is frivolous based on the information available, then the appellant has failed to discharge their onus and release cannot be granted (at para. 8). However, Passey explicitly rejects the notion that an appellant must provide the court with a complete transcript on a judicial interim release application.

Rather, the decision endorses a contextual approach, where the appellant must provide the court with “enough information and argument to assess whether there is an arguable ground of appeal.” [ 13 ] I agree with the Crown that the appellant’s affidavit does not make specific reference to how the appellant’s trial was prejudiced due to the alleged acts and omissions of trial counsel.

However, it is clear from the brief filed in support of the application that the appellant’s position is that the overall effect of the conduct was a trial process that was fundamentally unfair. [ 14 ] The affidavit evidence of the appellant supported by the written and oral argument of counsel is, in this case, sufficient to show that the appellant has at least an arguable case. In making this finding, I am in no way concluding that the alleged conduct of trial counsel amounted to incompetence or that the appellant suffered a miscarriage of justice.

These matters are properly left for the panel hearing the appeal. [ 15 ] As at least one of the grounds of appeal surpasses the not frivolous standard, it is not necessary for me to examine the remaining grounds of appeal ( R. v. J.K . , 2013 NLCA 23 , 334 Nfld. & P.E.I.R. 236 , at para. 12 ). The Applicant will Surrender into Custody [ 16 ] The Crown concedes that the appellant meets this criterion. There is nothing in the record suggesting that the appellant would not surrender into custody, and he has a demonstrated history of attending court when required. As such, I find that the appellant has met this onus.

The Applicant’s Detention is not Necessary in the Public Interest [ 17 ] The Supreme Court in Oland confirms that the public interest analysis includes two components: public safety, and public confidence in the administration of justice ( Oland at paras. 23–26 ). In opposing the present application, the Crown argues that the appellant fails on both components. Public Safety [ 18 ] In this Court’s decision of R. v. Ferwerda , 2018 NLCA 14 , it was noted that the “public” in the public safety analysis refers to both the public in general, as well as specific individuals.

The following non-exhaustive factors were listed for consideration at paragraph 68 of Ferwerda : 1) The seriousness and nature of the offence; 2) The surrounding circumstances of the offence and the offender; 3) The risk of harm to the victim; 4) The offender’s criminal record; and 5) The offender’s experience in abiding by conditions in prior court orders. [ 19 ] An appellant will be ineligible for release under this heading if they fail to show that they do not constitute a “substantial risk” to the public ( R. v. Payne , 2018 NLCA 2 , at para. 17 ).

Concerns that fall short of this threshold may still be relevant to the public confidence component ( Oland at para. 39 ).

[ 20 ] The appellant was convicted of trafficking in oxycodone pills—a

Schedule I listed substance under the Controlled Drugs and Substances Act —to a minor. He was sentenced to the mandatory minimum of two years’ incarceration. While drug trafficking is unquestionably a serious matter, there is little in the record indicating that the appellant poses a risk to the public, let alone a “substantial risk.” [ 21 ] The appellant has a lengthy criminal record, but it does not demonstrate a pattern of behaviour.

The author of his pre-sentence report—in finding him a medium risk to re-offend—described the appellant as “talkative, respectful, and generally cooperative.” [ 22 ] The appellant’s proposed living arrangements are with his mother, and his two children.

The appellant’s mother is now living a significant distance away from where the events giving rise to the conviction took place, which serves to mitigate any concerns regarding the individual complainant. [ 23 ] Of the greatest relevance to my analysis under this heading is the fact that, after the charges under appeal were laid, the appellant was released from custody for over three and a half years prior to his sentencing.

There is nothing on the record indicating any issues with the appellant failing to abide by the condition to abstain from contacting the complainant or his family during this time. [ 24 ] I am unable to accept the Crown’s submission that, despite this lengthy period of release proceeding without incident, the appellant’s present release would constitute a risk to the public that would justify his detention pending appeal.

Public Confidence in the Administration of Justice [ 25 ] The Supreme Court in Oland elaborated on how the public confidence analysis involves a balancing of the enforceability and reviewability interests. This involves balancing the public’s interests in seeing court orders enforced against the public’s interests in seeing court orders subject to a meaningful review process. [ 26 ] The Oland decision also provided guidance on when the public confidence analysis is even necessary.

In explaining the public confidence analysis, Justice Moldaver remarked: 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. As Donald J.A. observed in Porisky , at para. 47: Not every offence is serious enough to engage an assessment of the merits.

There is no need to go beyond the frivolous threshold in cases unlikely to arouse a concern about public confidence.... [W]e should expect Crown counsel to recognize that the continuum runs from petty theft to first degree murder and to exercise good judgment in raising public confidence only in those cases where the offence is at the serious end of the scale. … 43 Gary Trotter, now a Justice of the Court of Appeal for Ontario, reached a similar conclusion in his

article "Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion" (2001) 45 C.R. (5th) 267 , where he explained: ... realistically, most cases do not raise strong claims regarding the public interest, at least not beyond the general concern that all criminal judgments ought to be enforced.... However, when an offence is serious, as with murder cases, such that public concern about enforceability is ignited, there should be a more probing inquiry into the chances of success on appeal.

It is in this context that the balancing required by Farinacci requires some assessment of the merits, separate from the question of whether the appeal is frivolous or not. [Footnotes omitted; p. 270.] (Emphasis added.) [ 27 ] As noted above, drug trafficking is unquestionably a serious matter. Trafficking in the circumstances described are sufficiently serious that Parliament saw it fit to impose a mandatory minimum sentence.

However, I do not accept that trafficking in the circumstances of this case should fall within the rare exception where public confidence in the administration of justice plays a central role in the judicial interim release analysis. In the circumstances, I do not find it necessary to conduct a detailed assessment on the merits of the appeal to balance the enforceability and reviewability interests. [ 28 ] Under this heading, it is appropriate to include any residual considerations from the other components of the section 679(3) analysis.

While this will frequently include flight risk or public safety risks that do not meet the “substantial risk” thresholds, the Supreme Court in Oland also found that the absence of these residual concerns “will attenuate the enforceability interest” (at para. 39). [ 29 ] To the limited extent that the current matter warrants an analysis on the public confidence in the administration of justice, I am satisfied that a reasonable member of the public would not have their confidence in the justice system undermined by the appellant’s release.

The Crown should be circumspect in objecting to judicial interim release (on the public confidence ground) where, as here, common sense would indicate that the public would show no concern whatsoever in release on conditions similar to those that had already been in place and observed by the appellant for a very lengthy period of time. CONCLUSION [ 30 ] The appellant has met the statutory conditions for release under section 679(3) of the Criminal Code , and is entitled to be released from custody pending his appeal. He is released from custody subject to conditions agreed by counsel, and approved by the Court.

Application allowed.