R. v. Chandler, 2021 NLCA 7

Dustin Chandler (applicant/appellant) v. Her Majesty the Queen (respondent) (20/69) Indexed As: R. v. Chandler 2021 NLCA 7 6 C.A.N.L.R. 367 Court of Appeal of Newfoundland and Labrador Goodridge J.A. January 22, 2021 Restriction on Publication : By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcast or transmitted in any way.

Summary: Following his conviction for one count of sexual assault at trial, Mr. Chandler applied for judicial interim release pending the appeal of his conviction. For purposes of the application, Mr. Chandler relied on one ground of appeal – miscarriage of justice by virtue of ineffective assistance from trial counsel. Held: Application allowed, judicial interim release granted with conditions. Goodridge J.A.: The test under

section 679 of the Criminal Code for granting judicial interim release is met. The appeal could not be characterized as frivolous. The alleged ineffective assistance of counsel raised an arguable issue that would warrant appellate intervention if established (paragraphs 4-9). Mr. Chandler could be relied upon to surrender himself into custody and the Crown did not raise any issues in this regard (paragraph 10). Mr. Chandler’s detention was not necessary in the public interest. While the offence was serious, the risk to public safety was low, and this risk could be addressed through release conditions.

The public interest in meaningful appellate review favoured granting the application (paragraphs 11-16). 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. Greenham , 2018 NLCA 70 Statutes considered: Criminal Code , sections 271 , 679(3) Counsel: Robert Hoskins, for the applicant/appellant;

Dana Sullivan, for the respondent. The application was heard and decision rendered orally on December 1, 2020 by Goodridge J.A. The following memorandum of disposition was filed on January 22, 2021 by Goodridge J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION Goodridge J.A.: [ 1 ] Dustin Chandler applied for release from custody pending the appeal of his conviction on one count of sexual assault ( s. 271 of the Criminal Code ). On October 15, 2020, Mr.

Chandler was sentenced to three years imprisonment for that crime. [ 2 ] There were several grounds of appeal listed in the Notice of Appeal, but for the purpose of this application, Mr. Chandler relied on one ground only – miscarriage of justice by virtue of ineffective assistance from trial counsel. [ 3 ] To succeed with his application, Mr. Chandler 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. ANALYSIS Appeal is not frivolous [ 4 ] 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, Mr. Chandler has the burden to establish the facts underpinning his claim of ineffectiveness by counsel. Some of those facts flow from discussions that occurred between Mr. Chandler and his lawyer prior to the trial. [ 5 ] Mr.

Chandler will have to address both the performance (how counsel's representation was inadequate) and the prejudice (how those inadequacies resulted in a miscarriage of justice) aspects of his allegation of ineffective counsel ( see R. v. G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 , as referred to by White J.A., in R. v. Greenham , 2018 NLCA 70 , at paragraph 9 ). [ 6 ] At the time of the hearing of this application, there had not been disclosure of trial counsel’s file, and that left this Court with a limited foundation in assessing the potential merit.

Still, I was not satisfied that the appeal should be characterized as frivolous. There was enough in Mr. Chandler’s affidavit, and in the reasons of the trial judge, to conclude that the ground of appeal raised an arguable issue that would warrant appellate intervention if established. [ 7 ] In his affidavit Mr.

Chandler explained that the statement he provided to the police, a key piece of evidence in his conviction, was involuntary; that it was made under threats from police to give a statement or face detention; that his lawyer was advised of these circumstances; and that his lawyer waived a voir dire and consented to its admission as a voluntary statement. The alleged inadequate performance by counsel related mostly to her waiver of the voir dire in circumstances where the statement may have been found inadmissible.

The miscarriage of justice, is based on the trial judge’s reliance on that allegedly involuntary statement. In her reasons for convicting, at paragraph 115, the trial judge acknowledged that, if Mr. Chandler’s testimony about the police threat was true, then it “would undermine the admissibility of his statements to the police”.

The decision to convict centered on credibility, and the statement was a factor in that credibility assessment. [ 8 ] Similar to the situation Greenham , there is enough here, through the affidavit and counsel’s written submissions, to support an argument that the trial process was unfair and that there was a miscarriage of justice. [ 9 ] In the circumstances, I was satisfied that the first criterion was met. Will Mr. Chandler surrender himself into custody? [ 10 ] Regarding the second criterion, I was satisfied that Mr. Chandler will surrender himself into custody in accordance with the terms of a release order.

The Crown did not raise any concern on this second criterion, except to suggest that, if released, Mr. Chandler should remain within the jurisdiction. The proposed release plan from Mr. Chandler indicated that he would remain in the jurisdiction, and reside with his father, and step-mother, in Labrador City. Both of these individuals agreed to serve as sureties. Mr. Chandler is

twenty-one years old, and had no criminal record prior to this sexual assault conviction. He complied with the conditions of his release that were in place for the approximate two years prior to his conviction. Mr. Chandler’s detention is not necessary in the public interest [ 11 ] The third criterion, that Mr. Chandler’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 - 27 ). Public safety [ 12 ] Mr. Chandler has no prior convictions.

This sentence was his first interaction with the criminal justice system. He is a youthful first time offender who has shown no pattern of violence or history of breaches. I am satisfied that the public safety risk is low and can be adequately controlled through release conditions. Public confidence in the administration of justice [ 13 ] The public confidence in the administration of justice 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). [ 14 ] Moldaver J. noted, at paragraph 29 of Oland , that “rarely does this [public confidence] component play a role, much less a central role, in the decision to grant or deny bail pending appeal”.

Moldaver J. added however, at paragraph 50, that where the grounds of appeal appear to be weak and the offence is serious, the public interest in enforcing the sentence "will often outweigh the reviewability interest [release pending appeal]". The Crown maintained that the prospects for success on appeal are low and the offence is serious.

In the circumstances, the Crown suggested that this is one of those rare cases where the public confidence component plays a role, and justifies denial of release. [ 15 ] I agree with Crown’s position that the offence is serious, but at the same time, I am of the view that an arguable issue has been raised and it would warrant appellate intervention if established.

This does not mean that the prospect of success on that ground of appeal is good, but only to say that, in my opinion, based on the limited information now available, it clearly surpasses the "not frivolous" criterion. [ 16 ] Overall, I was satisfied that Mr. Chandler 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. [ 17 ] Steps will be taken to expedite the hearing of this appeal. DISPOSITION [ 18 ] I was satisfied that Mr.

Chandler demonstrated, on a balance of probabilities, that he met each of the three statutory criteria found in section 679(3) of the Criminal Code . His application was granted, with conditions, and subject to signed surety agreements from Byron Chandler and Tina Cassell. Application allowed.