R. v. Noftall, 2017 NLCA 70

Charles Shannon Noftall (applicant/appellant) v. Her Majesty the Queen (respondent) (17/99) Indexed As: R. v. Noftall 2017 NLCA 70 2 C.A.N.L.R. 370 Court of Appeal of Newfoundland and Labrador Welsh J.A. November 29, 2017

Summary: The applicant applied for judicial interim release pending his appeal of his conviction for conspiracy to traffic in cocaine and marihuana for which he was sentenced to a term of imprisonment of three years. Held: Application allowed. Welsh J.A.: The test for release pending appeal against conviction is governed by section 679(3) of the Criminal Code which requires the appellant to establish that: (

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. The Crown conceded the criteria in paragraphs (

a) and (b). The Court was satisfied that Mr. Noftall’s detention is not necessary in the public interest. The application was therefore allowed. The Court also suspended the enforcement of two ancillary sentencing orders: a DNA order and a victim surcharge, but not a forfeiture order and a firearms prohibition. The Court also gave some directions for the orderly processing of the appeal. Counsel: Erin K. Breen, for the applicant/appellant; Elaine Reid, for the respondent. This application was heard and decision rendered orally on November 28, 2017 by Welsh J.A.

The following Memorandum of Disposition was filed on November 29, 2017 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] On June 30, 2017, Charles Noftall was convicted of conspiracy to traffic in cocaine and marihuana. On November 16, 2017, he was sentenced to a term of imprisonment of three years. On November 22, 2017, he filed a notice of appeal against his convictions. At a

hearing on November 28, 2017, I granted his application for judicial interim release pending disposition of his appeal. [ 2 ] The test for release pending appeal against conviction is governed by section 679(3) of the Criminal Code which requires the appellant to establish: (

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 ] The Crown conceded the criteria in paragraphs (

a) and (b). In the circumstances, I was satisfied that Mr. Noftall’s detention is not necessary in the public interest. [ 4 ] Accordingly, I granted Mr. Noftall’s application for judicial interim release subject to conditions as agreed between counsel and approved by me. These are the same conditions as were imposed since his arrest. [ 5 ] Mr. Noftall also requested that enforcement of ancillary sentencing orders be suspended pending disposition of the appeal. With the Crown’s consent, I suspended enforcement of two items: (1) “DNA order pursuant to

section 487.051 of the Criminal Code ”; and (2) “Victim fine surcharges of $200.00”. I did not suspend: (1) “Forfeiture order for all offence related property pursuant to

section 16 of the Controlled Drugs and Substances Act ”; and (2) “Firearms prohibition pursuant to

section 109 of the Criminal Code ”. [ 6 ] There will be some delay in proceeding with this appeal because Mr. Noftall was charged jointly with Rodney Noseworthy. Initially the charges against the two men were dealt with together. Subsequently, the prosecution against Mr. Noftall was severed from Mr. Noseworthy’s. The Crown has appealed Mr. Noseworthy’s acquittal. The transcript in that appeal is expected to be completed by February 28, 2018. Counsel for the Crown expects her factum in that matter to be filed not later than April 25, 2018.

Meantime, there is some additional transcription necessary in respect of the proceedings against Mr. Noftall after the severance. It is expected that that transcript will be prepared by March 30, 2018. [ 7 ] Mr. Noftall’s factum is to be filed not later than May 7, 2018, and the Crown’s factum not later May 28, 2018. The hearing of the Noftall appeal has been set for June 4, 2018 at 10:00 a.m. [ 8 ] The Noseworthy appeal has not yet been set for a hearing. While the Noseworthy and Noftall appeals will be heard separately, it is expected that the Noseworthy appeal will be heard in May or June, 2018.

Counsel for the Crown is asked to take the necessary steps, and to coordinate with counsel for Mr. Noseworthy, in order to have the hearing set for that time. Application allowed .