R. v. Noray, 2016 NLCA 76

Bradley Noray (applicant/appellant) v. Her Majesty the Queen (respondent) (16/117) Indexed As: R. v. Noray 2016 NLCA 76 1 C.A.N.L.R. 380 Court of Appeal of Newfoundland and Labrador Welsh J.A. December 23, 2016

Summary: The appellant, Bradley Noray, applied for judicial interim release pending the appeal of his conviction for possession of cocaine for the purpose of trafficking and conspiracy to traffic in cocaine, oxycodone and hydromorphone contrary to

section 5 of the Controlled Drugs and Substances Act and section 465(1) of the Criminal Code . Held: Application dismissed. Welsh J.A.: An applicant for release must satisfy the criteria in Section 679 (3) of the Criminal Code : that the appeal is not frivolous, the applicant will surrender himself into custody in accordance with the terms of the order, and the applicant’s detention is not necessary in the public interest. It was not necessary to deal with the first criterion because Mr. Noray failed to establish the second and third criteria on a balance of probabilities.

The applicant had several convictions for breaches of recognizances, including two instances when failure to comply with judicial interim release orders resulted in forfeiture of money posted to secure his release. He has also committed further drug-related offences while on judicial interim release. The lengthy sentence he now faced, compared with previous sentences, may be an incentive to avoid meeting court-imposed obligations. In the absence of an answer to these considerations, Mr.

Noray has failed to establish on a balance of probabilities that he would comply with conditions on his release and that he would attend court when required. In addition to the protection and safety of the public, public interest includes broader considerations such as the maintenance of respect for the system and administration of justice. In all the circumstances, Mr. Noray has failed to establish the third criterion. The criteria set out in section 679(3) of the Criminal Code have not been satisfied. In the result, the application for judicial interim release was dismissed. Counsel: Stephen P.

Orr, for the applicant/appellant; Andrew O. Brown, for the respondent. This application was heard on December 21, 2016 before Welsh J.A. The following judgment was delivered on December 23, 2016 by Welsh J.A.

______________________________________________________________ Welsh J.A.: [ 1 ] This is an application by Bradley Noray for judicial interim release. On November 21, 2016, he was convicted of possession of cocaine for the purpose of trafficking and conspiracy to traffic in cocaine, oxycodone and hydromorphone contrary to

section 5 of the Controlled Drugs and Substances Act and section 465(1) of the Criminal Code . On November 30, 2016, he was sentenced to a term of imprisonment of three and one-half years. Mr. Noray filed a notice of appeal against the convictions on December 7, 2016. His application for judicial interim release, filed on December 8, 2016, was opposed by the Crown. [ 2 ]

Section 679 of the Criminal Code governs judicial interim release pending appeal. Subsection (3) sets out three criteria all of which the applicant for release must satisfy: (

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. [ 3 ] In the circumstances of this case, it is not necessary to deal with the first criterion because Mr. Noray has failed to establish the second and third criteria on a balance of probabilities. The Crown filed an affidavit of Constable Field who was the lead investigator in Operation Renegade which involved surveillance of Mr. Noray and others. The affidavit sets out the numerous convictions for offences committed by Mr.

Noray, who is thirty-six years of age, over the years since approximately 2011. [ 4 ] There are several convictions for breaches of recognizances. On two occasions Mr. Noray was granted judicial interim release upon posting $10,000 cash. Of the $20,000, on June 9, 2016, $5,000 was ordered forfeited, and on December 9, 2016, an additional $6,000 was ordered forfeited. [ 5 ] On January 22, 2015, while he was on judicial interim release, Mr. Noray was arrested at a local pool hall for drug trafficking offences involving powdered and crack cocaine, oxycodone pills, methyphenidate pills and morphine pills.

On March 13, 2015, he pleaded guilty to the drug offences, two breaches of a recognizance and one breach of probation. He was sentenced to approximately eighteen months imprisonment for those offences. [ 6 ] Mr. Noray submits that he has a history of appearing in court when required and that there is no reason to conclude that he would not continue with this practice. In response, Crown counsel submits that Mr. Noray’s connection to this Province is tenuous and is mainly related to his trafficking in drugs. He is now facing a lengthy sentence.

This is different from his previous circumstances involving lighter sentences. A lengthier sentence may be an incentive to avoid meeting court-imposed obligations. Indeed, he has repeatedly failed to comply with recognizance conditions and committed further drug-related offences while on judicial interim release. Mr. Noray has been content to act in a manner that resulted in his forfeiting several thousand dollars paid to secure his release on other occasions. In the absence of an answer to these considerations, Mr.

Noray has failed to establish on a balance of probabilities that he would comply with conditions on his release and that he would attend court when required. [ 7 ] As to the third criterion, Mr. Noray submits that there is no indication that he has committed acts of violence and, on that basis, “his detention is not necessary in the public interest”. This limited view of public interest fails to take into account its broader implications. In addition to the protection and safety of the public, public interest includes the maintenance of respect for the system and administration of justice. Mr.

Noray has a long, virtually unbroken history of failing to comply with the law and orders of the courts. He has been convicted of drug trafficking offences involving “hard drugs” which pose a danger to the community. Indeed, he committed such offences while awaiting trial on the offences that are the subject of this appeal. In all the circumstances, Mr. Noray has failed to establish the third criterion under section 679(3) of the Criminal Code . [ 8 ] It is expected that Mr. Noray’s appeal will proceed expeditiously. The transcript is expected by February 28, 2017.

Counsel agreed to file their facta during March and the hearing of the appeal has been set for April 10, 2017. [ 9 ] Having reviewed counsel’s written and oral submissions, I conclude that the criteria set out in section 679(3) of the Criminal Code have not been satisfied. In the result, the application for judicial interim release is dismissed. Application dismissed.