R v CD, 2021 NUCA 10

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v CD, 2021 NUCA 10 Date: 20210607 Docket: 02-21-006-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - C.D. Applicant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the victims must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Frans Slatter _______________________________________________________ Application for Release Pending Appeal

_______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Frans Slatter _______________________________________________________ [ 1 ] The applicant pled guilty to two counts of touching his granddaughters for a sexual purpose and was sentenced to nine months imprisonment: R. v C.D. , 2021 NUCJ 20 . He seeks judicial interim release pending the hearing of his sentence appeal, as otherwise the appeal is likely to become moot before it can be heard. [ 2 ] The Crown proceeded summarily, so this is a

summary conviction appeal, which in Nunavut is heard by a single judge of the Nunavut Court of Appeal: Criminal Code , s. 812(2) . The applicant does not need leave to appeal, as he has a right to appeal his sentence under s. 813 (a)(ii). He has a right to apply for interim release under s. 816(1). Procedural Issues [ 3 ] This application was dealt with under the new Rules of the Court of Appeal for Nunavut Respecting Criminal Appeals which came into force on June 1, 2021.

All applications are to be brought in compliance with the general provisions in R. 22, subject to the rules that follow it that apply to specific types of applications. [ 4 ] As the Crown pointed out when the application was first brought, R. 24(3) requires that “unless otherwise ordered” an application for interim release must be supported by an affidavit of the applicant. Such an affidavit was subsequently provided.

However, if the applicant proposes to seek leave to proceed without such an affidavit, relief from the provisions of R. 24(3) should be claimed in the application, and the other filed material should explain why an exemption is appropriate.

Rule. 24(3), however, does not contemplate a separate preliminary application for relief from the need to file an affidavit; all of the issues on an application for release should be dealt with at once. [ 5 ] Where, in appeals from sentences in indictable matters, an application for leave to appeal and an application for judicial interim release are required under 679(1)(b), the two applications should be combined together and argued at the same time.

As a general rule, the Court hears applications for leave to appeal sentence together with the actual sentence appeal: R. 4(4)(b). [ 6 ] In support of the application, the applicant filed an “Affidavit of Merit” of a staff lawyer at the Legal Services Board of Nunavut, deposing that the “errors in this case are significant”, that six proposed grounds of appeal are “highly arguable”, and that there is a “strong likelihood the Court of Appeal will vary the sentence”. Such an affidavit on issues of law is inappropriate and inadmissible.

Whether an appeal has arguable merit is a question of domestic law on which evidence, even expert evidence, is not admissible: Brine v Industrial Alliance Insurance and Financial Services Inc , 2016 SCC 9 at para. 9 , [2016] 1 SCR 72; R. v Comeau , 2018 SCC 15 at para. 40 , [2018] 1 SCR 342.

The identification of viable grounds appeal arises from examining the court record, the reasons for sentencing, and the applicable statutory and case law. [ 7 ] The affidavit is also full of hearsay, and the affiant offers her opinion that the ongoing detention of the applicant pending his appeal would be “an unnecessary hardship”. This too is inadmissible opinion evidence. A third party, who might be a lawyer, might file an affidavit of source-identified factual evidence, for example based upon personal attendance at the institution in question. Some hearsay from reliable sources might be permitted.

But all evidence must be “considered credible or trustworthy” under s. 518(1) (

e) and 795 of the Criminal Code . [ 8 ] I have considered this inadmissible affidavit as if it was the memorandum of argument required by R. 22(2)(

d) and 22(4), even though it is considerably longer than the permitted 10 pages. The Test for Release [ 9 ] As noted, interim release in this matter is provided for under s. 816(1) of the Criminal Code . Section 822(1) provides that s. 683 to 689 (which deal with appeals involving indictable offences) apply with the necessary modifications to

summary conviction appeals. Section 679(1)(b), which provides that an appellant who appeals his sentence in an indictable matter may not obtain judicial interim release unless he has leave to appeal his sentence, is not one of the sections that applies to

summary conviction appeals. Since this is not an appeal of a sentence with respect to an indictable offence, the precondition that the applicant must obtain leave to appeal his sentence before he can be released therefore does not apply. The applicant has a right to appeal his sentence to a single judge of the Court under s. 813(a)(ii). [ 10 ] The Criminal Code does not specify the test to be applied on an application for release pending a

summary conviction appeal.

Section 816 does refer to the form of release in s. 515, although not specifically to the test for release in s. 515(10), but the test forjudicial interim release on a

summary conviction appeal respecting sentence only could by analogy be: (

a) Is detention necessary to secure the appellant’s attendance in court? (

b) Is detention necessary for the protection of the public or any victim or witness? (

c) Is detention necessary to maintain confidence in the administration of justice, having regard to all the circumstances, includingthe apparent strength of the appeal? The apparent strength of the appeal is admitted to be a relevant factor. A key point of contention in this application was the test thatshould be applied. [11] One possible test would be to simply apply s. 515(10): “maintaining confidence in the administration of justice, having regardto all the circumstances, including the apparent strength of the appeal”.

Another option would be the “not frivolous” standard applicableto release in conviction appeals in indictable matters, found in s. 679(3)(a), which is widely recognized as being a very low bar: R. vOland, 2017 SCC 17 at para. 20, [2017] 1 SCR 250. Yet another would be the standard of “sufficient merit” balanced against“unnecessary hardship”, applicable to release in sentence appeals in indictable matters, found in s. 679(4)(a). The Crown also referred tothe approaches taken in R. v G.H., 2020 NUCA 16 at para. 9-10, 19, and R. v Yassine, 2004 ABQB 406 at para. 11, fn 7 (which was nota sentence appeal).

On balance, all of these tests are aimed at screening out applications for release pending unmeritorious appeals. It isnot particularly helpful to seek semantic precision beyond saying that the “apparent strength of the appeal” is a relevant factor, and that“unnecessary hardship” is properly considered among “all the circumstances”. [12] To obtain release the applicant should therefore be able to demonstrate that the appeal has some “apparent strength” orarguable merit.

This is a low standard, above the “not frivolous” test, and comes down to whether the appeal presents an arguable case,signifying an appeal with some merit and some realistic chance of success: see by analogy R. v Amin, 2010 MBCA 15 at paras. 4-10,[2010] 5 WWR 226; R. v Johnston, 2014 NSCA 78 at para. 10, 349 NSR (2d) 122; and R. v Ewanchuk, 2000 ABCA 303 at paras. 5-6,271 AR 118.

The stringent standard of review applicable to sentence appeals is important: R. v Lacasse, 2015 SCC 64 at paras. 41, 44,[2015] 3 SCR 1089; R. v Friesen, 2020 SCC 9 at para. 26. [13] On balance, I have concluded that the applicant’s proposed grounds of appeal are not overwhelming, but they do meet the low“apparent strength” or arguable merit standard.

One proposed ground arises from differences between the oral reasons for sentencinggiven in the community on the day of sentencing, when compared to the written reasons for sentencing issued about seven weeks later.The appeal is, of course, from the sentence, not from the reasons for decision: R. v Chaisson, (SCC), [1995] 2 SCR1118 at para. 6; R. v McDonald, 2011 ABCA 307 at para. 73, 515 AR 82.

Nevertheless, the applicant is entitled to point out anydifferences between the oral and written reasons and argue their significance: R. v Vander Leeuw, 2021 ABCA 61 at para. 9. [14] The written reasons for decision contain considerable obiter discussion of the constitutionality of the mandatory minimumsentence for these offences.

However, there does not appear to be a live constitutional issue in this case. [15] The other proposed grounds of appeal argue that the trial judge considered as aggravating factors that are not properly socharacterized, and improperly weighed the relevant factors, with the result that the sentences are demonstrably unfit. The burden facingthese grounds of appeal will be the standard of review, but they are arguable. [16] The applicant has established that his detention pending the oral argument of the appeals will cause unnecessary hardship.

Animportant factor is that the appeal will become moot if release is not granted. In addition, the applicant’s health, the challenges he facesas a unilingual Inuktitut inmate, and the other factors pointed out in the materials demonstrate hardship. The applicant is doublevaccinated, and the Covid pandemic is not a compelling factor here. [17] In

summary, the applicant can be released on the terms proposed, excepting that no surety is required. The applicant’s wife’soffer to act as a surety is commendable but would do nothing to enhance the public interest or public safety. The terms of release shouldnot limit the applicant’s ability to leave the community or the jurisdiction for necessary medical care. If counsel are unable to agree onthe terms of release, submissions may be made to me in writing through the Registry. [18] This appeal should be perfected so that it is ready to be placed on the September list.

If the parties wish to arrange a differenttime for oral argument, they may contact the Registry. Application heard on June 4, 2021 Reasons filed at Iqaluit, Nunavut this 7th day of June, 2021 Slatter J.A.

Appearances: E.K. Baasch for the Respondent V.S.B. Perrie for the Applicant