R. v. Price, 2022 NLCA 25

Harvey Murlin Price (applicant/appellant) v. Her Majesty theQueen (respondent) (22/13) Indexed As: R. v. Price 2022 NLCA 25 7 C.A.N.L.R. 500 Court of Appeal of Newfoundland and Labrador Hoegg J.A. April 22, 2022

Summary: Harvey Murlin Price was convicted of pointing a firearm for the purpose of committing an offence, uttering threats, and offences relatedto the careless use, storage and carriage of a firearm. Having appealed the convictions, he applied for judicial interim release pending thedetermination of his appeal. Held: Application denied. Hoegg J.A.: Mr. Price’s first, second and fourth grounds of appeal did not pass the “not frivolous” criterion. However, Mr. Price’s thirdground of appeal regarding the application of the principles as set out in R. v. W.(D.) passed the “not frivolous” criterion (paragraphs 7-23).

On balance, a thoughtful, informed and reasonable member of the public would see Mr. Price’s release pending determination of hisappeal as an affront to the administration of justice. His appeal did not have sufficient strength to tip the balance in favour ofreviewability of the judge’s decision over its enforceability. Mr. Price did not establish that his detention was not necessary in the publicinterest (paragraphs 24-33). Cases cited: R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250 R. v. M.A., 2021 NLCA 41 R. v. Moores, 2020 NLCA 7 R. v.

Greenham, 2018 NLCA 70, 3 C.A.N.L.R. 599 R. v. Ferwerda, 2018 NLCA 14, 2 C.A.N.L.R. 592 R. v. Payne, 2018 NLCA 2, 2 C.A.N.L.R. 422 R. v. Manasseri, 2013 ONCA 647 R. v. Newman, 2008 NLCA 45, 278 Nfld. & P.E.I.R. 327 R. v. Genge, [1992] N.J. No. 238 (Nfld. C.A.) Walsh v. Johnson, 2010 NLCA 6, 293 Nfld. & P.E.I.R. 101 R. v. Farinacci, (ON CA), [1993] O.J. No. 2627, 109 D.L.R. (4th) 97 (Ont. C.A.)

Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759 Statutes considered: Canadian Charter of Rights and Freedoms,

section 8 Criminal Code, section 679(3) Counsel: Philip C.W. Whalen, for the applicant/appellant; Shawn I. Patten, for the respondent. The application was heard on March 30, 2022 before Hoegg J.A. The following memorandum of disposition was filed on April 22, 2022 by Hoegg J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION Hoegg J.A.: [1] On January 13, 2021, Harvey Murlin Price was convicted of pointing a firearm for the purpose of committing an offence,uttering threats, and offences relating to his careless use, storage and carrying of a firearm.

On March 2, 2022, he was sentenced to 14months and five days in jail with 18 months of probation to follow. Mr. Price appealed his convictions, and applied for judicial releasepending appeal. I heard his application on March 30, 2022, and reserved my decision. [2] I am dismissing Mr. Price’s application for judicial release pending the determination of his appeal for the following reasons. BACKGROUND [3] Mr. Price’s convictions arose from an incident involving his sister’s former husband, who is now partnered in a same-sexrelationship.

The former husband and his partner were checking on a cabin in the woods that the former husband owned with his formerwife. Mr. Price drove up to the cabin, knowing the two men were there, and when the former husband inquired as to his being there, hewas met with threats to his life and that of his partner along with vulgar and disparaging insults respecting their sexual orientation. Mr.Price got out of his truck and grabbed a firearm from the back seat of his truck, and pointed it at the two men, who were on the other sideof the truck pan. The men then got down on the ground and Mr.

Price fired two shots before driving away. The two terrified mensought refuge in a nearby cabin with the owner of the cabin and waited for police to arrive. [4] The police conducted an investigation in the course of which they seized several firearms belonging to Mr. Price. He wasconsequently charged and tried. During the trial, Mr. Price made a Charter application alleging a breach of his

section 8 Charter right,which the Judge allowed in part. Mr. Price was convicted after trial, and a pre-sentence report was requested. Before he was sentenced,he retained new counsel and applied to reopen his trial to tender fresh evidence, and alternatively, he applied for a mistrial alleging theineffective assistance of his trial counsel. The Judge dismissed both applications. On March 2, 2022, she sentenced Mr. Price to 14 months plus five days incarceration for the pointing the firearmconviction, and gave sentences for the other offences to be served concurrently. Mr. Price’s Grounds of Appeal [5] Mr.

Price listed four grounds of appeal in his Amended Notice of Appeal. He asserts: 1. that the learned Trial Judge erred in law in her assessment and dismissal of his application to reopen his case after convicting himso he could tender fresh evidence; 2. that the learned Trial Judge erred in law in her assessment and dismissal of his post-conviction application for a mistrial which wasbased on his claim of ineffective trial counsel; 3. that the learned Trial Judge erred in law by failing to apply the principles set out in R. v.

W.(D.), (SCC), [1991] 1S.C.R. 742, to his evidence on the voir dire, which was adopted into the trial evidence with the consent of both counsel; and 4. that the learned Trial Judge erred by misapprehending the trial evidence which resulted in a miscarriage of justice. The Law

The law respecting bail pending appeal was set out in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, and has been applied by this Courtnumerous times since (see, for example, R. v. M.A., 2021 NLCA 41; R. v. Moores, 2020 NLCA 7; R. v. Greenham, 2018 NLCA 70, 3C.A.N.L.R. 599; R. v. Ferwerda, 2018 NLCA 14, 2 C.A.N.L.R. 592; and R. v. Payne, 2018 NLCA 2, 2 C.A.N.L.R. 422). Simply put, inorder for Mr.

Price’s application to prevail, he must establish three criteria, that (1) his appeal is not frivolous; (2) he will surrender intocustody if and when required; and (3) his detention is not necessary in the public interest. [6] The Crown does not challenge Mr. Price’s contention that he will surrender himself into custody if and when required, butopposes his release on the basis that he has not established the first and third criteria. I agree with Mr. Price and the Crown that thesecond criterion is not in issue. Accordingly, I will address the parties’ positions respecting the first and third criteria. Is Mr.

Price’s Appeal “Not Frivolous”? [7] The “not frivolous” criterion is generally regarded to be a very low bar (Oland, at para. 20). In Moores, at para. 4, GoodridgeJ.A. of this Court, quoting from R. v. Manasseri, 2013 ONCA 647, at para. 38, ruled that an appeal is not frivolous if it raises an arguableissue. In R. v. Newman, 2008 NLCA 45, 278 Nfld. & P.E.I.R. 327, Barry J.A. of this Court released the applicant on bail pending appealbecause he had put forward an arguable basis for his appeal. In R. v. Genge, [1992] N.J. No. 238 (Nfld.

C.A.), this Court denied bailpending appeal to the applicant on the basis that the grounds of appeal he had put forward contained no detailed information to supportthe allegations of error, and said that it was “not sufficient for the appellant to simply recite grounds of appeal”, that it was incumbent onhim to provide information as to the circumstances giving rise to the grounds of appeal, and that he must show “at this stage that he hasat least an arguable case”. [8] In the context of a civil case, Green C.J.N.L. described a frivolous appeal as one that has no substance (Walsh v.

Johnson, 2010NLCA 6, 293 Nfld. & P.E.I.R. 101, at paras. 18-22). Lack of substance was also stated as a basis for denying bail at the “not frivolous”stage in R. v. Farinacci, (ON CA), [1993] O.J. No. 2627, 109 D.L.R. (4th) 97, at para. 15 (Ont. C.A.). [9] In

summary, an applicant seeking bail pending appeal must show that the appeal has at least an arguable basis, or somesubstance. [10] The Crown argues that Mr. Price’s first and second grounds of appeal are frivolous because he does not assert any error that theJudge made in her decisions. In particular, the Crown’s argument continues, Mr. Price makes no submissions respecting how the Judgeerred in law or in fact in deciding not to reopen the case to permit him to adduce fresh evidence and not to declare a mistrial based on Mr.Price’s assertion of ineffective trial counsel. The Crown maintains that Mr.

Price simply states that he applied to the court to reopen hiscase after he was convicted but before he was sentenced to permit him to adduce fresh evidence, or alternatively, to have the Judgedeclare a mistrial on the basis of alleged ineffective assistance of counsel, and that the Judge erred in denying his applications. Likewise,the Crown argues that Mr. Price simply states (in his fourth ground of appeal) that the Judge misapprehended the trial evidence whichresulted in a miscarriage of justice.

He does not argue any error of law or fact on which his allegation rests, and he does not referenceany trial evidence which the Judge misapprehended or identify the miscarriage of justice that he alleges resulted. [11] The Crown maintains that Mr. Price’s third ground is also frivolous, essentially saying that there is no substance to the ground. [12] The fresh evidence Mr. Price sought to tender was from Mrs. Smith, who owned a bed and breakfast cabin near the cabin wherethe incident respecting the pointing of the firearm and threats took place, and from a man who was a land surveyor. Mr. Price wantedMrs.

Smith, who had already testified at trial respecting the two victims taking refuge at her cabin, to testify again to say that she had notheard the two shots that the victims said had been fired. Mr. Price wanted the land surveyor to testify to his measurement of the distancebetween the cabin where the incident took place and Mrs. Smith’s cabin. [13] The Judge considered Mr. Price’s submission to reopen the case so he could adduce fresh evidence and denied it on the basis thatthe criteria set out in Palmer v.

The Queen, (SCC), [1980] 1 S.C.R. 759 were not met, and that there were reasonablypossible explanations for why Mrs. Smith would not have heard the shots (the Judge referenced that she had testified that she had beenchatting over tea with a visiting friend and that her dogs were barking for reasons unknown to her when the complainants arrived at herdoor), and that in any event Mrs.

Smith’s evidence would have been of marginal relevance to the credibility of the victims’ evidence andwould not have affected the result. [14] The proposed fresh evidence from the land surveyor who measured the distance between the cabin where the incident took placeand Mrs. Smith’s bed and breakfast cabin was for the purpose of suggesting that Mrs. Smith was near enough to where the shots werefired that she ought to have heard them, and because she did not hear the shots, they must not have been fired as the victims testified.

Again, the Judge explained that the surveyor’s evidence would make no difference to why Mrs. Smith would not have heard the shots,and would not impact the credibility of the two victims’ testimony. She concluded that the Palmer criteria were not met because thesurveyor’s evidence was not sufficiently relevant to a decisive or potentially decisive issue in the trial to warrant it being adduced as freshevidence. [15] Mr. Price’s allegation respecting the ineffective assistance of his trial counsel appears to have been based on his trial counsel’sfailure to ask Mrs.

Smith whether she heard the gunshots when she testified and his failure to appreciate her evidence. The Judge ruledthat Mrs. Smith’s proposed evidence would not have had any reasonable possibility of affecting the result, and that Mr. Price had notsuffered any prejudice or unfairness as a result of his counsel not asking whether she had heard shots being fired, and that no miscarriageof justice resulted. [16] I have reviewed Mr. Price’s grounds of appeal, and considered his counsel’s oral submissions. Mr.

Price has not identified anyerror in the Judge’s statement or application of the law, or any way in which she misapprehended the evidence or its import, or any errorof fact respecting his allegations that she erred in her assessment and dismissal of his applications to reopen his case or have a mistrialdeclared. Neither does he identify any other evidence the Judge misapprehended, or the miscarriage of justice he says resulted. In short,his first, second and fourth grounds of appeal have no substance and they are not arguable. My determination in this regard does notprevent Mr.

Price from arguing these grounds on appeal.

[ 17 ] Accordingly, I agree with the Crown that Mr. Price’s first, second, and fourth grounds of appeal do not pass the “not frivolous” criterion. [ 18 ] My determination respecting whether Mr. Price’s third ground of appeal is “not frivolous” is different. [ 19 ] The context is as follows. Mr. Price did not testify at the trial proper, or give any evidence respecting the charge of pointing a firearm for the purpose of committing an offence, which was the principal charge against him and for which he was convicted and sentenced to 14 months and five days.

However, he did testify in a voir dire respecting his application that evidence (firearms) seized in a search be excluded from the trial evidence on the basis that his

section 8 Charter right to be secure against unreasonable search and seizure had been breached. The Judge granted his Charter application respecting some, but not all, of the seized evidence. [ 20 ] In the course of Mr. Price testifying on the voir dire , he was reminded twice by his trial counsel not to speak about the incident involving pointing the firearm, which was what led to the police investigation. Mr. Price followed his counsel’s advice, and did not do so. However, he did say that when he was arrested by police that he did not know why he was being arrested until the police told him.

At trial, Crown and defence counsel agreed that any evidence given on the voir dire could be treated as evidence in the trial proper. [ 21 ] On Mr. Price’s application for bail pending appeal, he referred to statements in his voir dire evidence respecting his lack of knowledge as to why the police were arresting him which he maintains support an inference that he was denying the pointing the firearm charge. He says that the Judge ought to have to drawn this inference and then conducted a W.(D.) analysis before convicting him. [ 22 ] In support of this ground of appeal, Mr.

Price’s counsel identified three short statements from the transcript of Mr. Price’s voir dire evidence, as well as the part of the Judge’s decision where she addresses counsel’s agreement for her to consider the voir dire evidence as trial evidence, to support his argument. This is in contrast to Mr. Price’s position respecting his first, second, and fourth grounds of appeal in respect of which no evidence or support for his argument is referenced. Given this circumstance, I am unable to conclude that Mr.

Price’s third ground of appeal is not arguable. [ 23 ] Section 679(3) of the Criminal Code stipulates that it is the appeal that requires assessment for frivolousness, and not the individual grounds of appeal. Given that one ground of Mr. Price’s appeal passes the “not frivolous” criterion, I conclude that his appeal is not frivolous. [ 24 ] It now falls to me to consider Mr. Price’s third ground of appeal to determine whether his detention is necessary in the public interest ( Oland , at para. 19 ). As will be shown below, I am of the view that it is not in the public interest to release Mr.

Price pending the determination of his appeal. [ 25 ] On the voir dire Mr. Price carefully told his story about his arrest so as to support his Charter argument, and did not stray into commenting on the incident leading to the pointing the firearm charge. Regardless of why Mr. Price did not want to testify respecting the incident, he made that choice for his own benefit. Yet on appeal, and aside from whether the inference Mr.

Price suggests the Judge ought to have drawn was a reasonable one to draw, he now argues that the Judge ought to have drawn the very inference he had been trying to avoid leaving for her consideration. In short, Mr. Price wants it both ways. I find this position troublesome. Moreover, it may be a stretch to consider Mr. Price’s voir dire words to be a denial so as to warrant a W.(D.) analysis, especially when the Judge was not pressed to do so at trial. She had Mr. Price’s voir dire evidence before her, and did not treat it as evidence of a denial of the incident such that she had to address it.

Given the warnings to Mr. Price from his counsel during his voir dire testimony, she was careful to avoid considering it on the main issue. Had she done so, Mr. Price might well be arguing on appeal that she erred by considering it. [ 26 ] The public interest criterion of the test for bail pending appeal comprises both public safety and public confidence in the administration of justice. [ 27 ] The public safety component includes lingering concerns respecting flight risk that fall short of the section 679(3)(

b) level, or public safety concerns that fall short of a substantial risk to public safety. I have no lingering flight risk concerns respecting Mr. Price. However, while I agree that Mr. Price appears not to pose a risk to public safety in that he has complied with judicial interim release conditions throughout the lengthy period of time between his arrest and sentencing, I have a lingering concern about public safety given that his threats and actions toward the victims appear to have been a form of vigilante justice motivated by prejudice respecting sexual orientation.

That said, I would not deny him bail on the basis of these lingering concerns. Rather, I am denying him bail on the basis of the enforceability interest within the public confidence in the administration of justice component of public interest. [ 28 ] In Oland , at para. 29 , the Court observed that cases in which public confidence in the administration of justice plays a central role in the decision to grant or deny bail are rare, but they do arise.

To my mind, this is one such case. [ 29 ] As Oland states , public confidence in the administration of justice involves weighing two competing interests: the enforceability of judgments and their reviewability (paras. 23-28). In resolving the tension between these two competing interests, the seriousness of the offences, the circumstances surrounding their commission, the strength of the appeal, whether a firearm is involved, and the length of the sentence are all factors to be considered.

In Oland , the Court stated that the more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail pending appeal (para. 37). In this case, the offences are serious and the circumstances surrounding them are very concerning.

I also note that firearms were used. [ 30 ] The Oland Court also stated that the strength of the grounds of appeal, which would relate to the reviewability interest, plays a central role, and in a serious case, a more probing inquiry into the strength of the appeal is warranted ( Oland , at para. 43 ). In this regard, as may be drawn from my comments above respecting Mr. Price’s third ground of appeal, my preliminary assessment, based on my knowledge and experience, is that Mr. Price’s appeal is not strong.

I do not see it as having general legal plausibility or much foundation in the record. [ 31 ] In all of the circumstances, I do not see Mr. Price’s appeal as having sufficient strength to tip the balance in favour of reviewability of the Judge’s decision over its enforceability.

[ 32 ] In the result, and on balance, I am of the view that a thoughtful, informed and reasonable member of the public would see Mr. Price’s release on bail pending determination of his appeal as an affront to the administration of justice. Accordingly, I find that Mr. Price has not established that his detention is not necessary in the public interest. I am therefore dismissing his application. [ 33 ] Mr. Price was sentenced to 14 months and five days, of which he has already served some seven weeks. Accordingly, an early appeal date is indicated. The Court is prepared to hear Mr.

Price’s appeal on May 11, May 17, or June 13, 2022. If counsel cannot accommodate either of these dates, they can otherwise agree on a date in consultation with the Registrar of the Court of Appeal. Application dismissed.