R. v. K.R.F., 2011 NLCA 2

Editor’s Note: Corrigendum released on January 10, 2011. Original judgment has been corrected with text of corrigendum appended. Date: 20110105 Docket: 10/135 Citation: R. v. K.R.F. , 2011 NLCA 2

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : K.R.F. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, J.A Court Appealed From: Provincial Court of Newfoundland and Labrador Judicial Centre at Wabush Application Heard: December 22, 2010 Judgment Rendered: January 5, 2011 Reasons for Judgment by Rowe, J.A.

Counsel for the Appellant: Peter Ralph Counsel for the Respondent: Elaine Reid Rowe, J.A.: [ 1 ] On November 22, 2010, K.F. was sentenced for sexual assault contrary to s. 271(1) of the Criminal Code . The sentencing judge stated: [The offence] was committed against [S.C.] sometime between April 1st and April 30th 2002. At the time the offence was committed [K.F.] was 17 years old. At the time, S.C. was 10 years old. [ 2 ] K.F. is now 25 years old.

He was sentenced under the Youth Criminal Justice Act to six months secured detention, three months to be served in the community and one year probation. [ 3 ] K.F. pleaded guilty. The sentencing judge summarized the facts: The facts that have come before the court are as follows. In April of 2002, [S.C.] was ten years old. Her parents were out of town and [S.C.] was being cared for by [K.F’s] family. They were family friends. [K.F.] was then 17 years old and on the day in question [K.F.] was babysitting [S.C.] They were playing cops and robbers.

At the time [K.F.’s] family were taking care of a home in the area, which was owned by some other friends. The home was empty. The children were using the home as a jail during their games, particularly the game of cops and robbers. On the day that he was babysitting, [K.F.] took [S.C.] to jail. She said they locked the door and [K.F.] took her into a back room at the house. He pinned her down, started kissing her, he told her not to worry. He took her pants off and took his pants off. She told police that he stuck his penis in her, he proceeded to have intercourse with her.

She estimated that the whole event lasted about four minutes. She said the incident ended when people knocked on the door. She believed that the people in question were her sister and [K.F’s] sister. [S.C.] said that because the house was considered jail, [K.F.] had to come out when someone knocked. [S.C.] did not report this incident to anybody, nor did she speak to anybody about it for quite a period of time. A few days before she first reported it, she contacted [K.F.] He apologized. He said he didn’t know what he was doing and he asked her not to report it. She did report the event.

She reported to her guidance counselor and the information was passed on to police, but at the first time that this was reported to police, she was adamant that she did not want to pursue charges. She again approached the police in August of 2008 and sought to have a charge laid. At this point, the police interviewed [K.F.], who immediately acknowledged the incident. He did not try to minimize the incident, but stated he did not remember if the actions had been consensual or not.

Of course, in any event, [S.C.] was well below the age of consent at the time. [ 4 ] The sentencing judge stated later in her decision: … The next [consideration] is the reparation made by [K.F.] to the victim or the community, and in this case I do note that there has been an apology and the apology has certainly come at a reasonably early situation. I’m a little troubled by the fact that when [S.C.] first told [K.F.] about it, or first spoke to him about it, he asked her not to report it. By that point, he would not have been a youth but would have been an adult.

That puts his self-interest in perspective at that point.

However, when confronted with this by the police and when confronted with it by [S.C.] even, [K.F.] didn’t ever deny that it occurred, and certainly since the police have become involved and a charge was laid, he has continued to express his remorse and his level of distress has been apparent from the first time that he came before the court… [ 5 ] The sentencing judge also stated in her decision: [K.F.] has indicated through his counsel that he immediately felt regret on the following day, that he’s continued to express his regret as a result… [ 6 ] I would note the following from the Factum of the Crown: [S.C.] discussed this incident with [K.F] a few days prior to her making the complaint at which time she spoke with [K.F.] on the telephone.

She said, “he was crying, saying he was sorry and he didn’t know what he was doing when he was doing it, that it was just a stupid mistake and that he wanted to kill himself.” He asked her not to tell anyone. She also indicated that he said the same type of things to her on facebook. A copy of the facebook message was retrieved from [S.C.] and provided in the disclosure package to defence. [ 7 ] A Notice of Appeal was filed on December 13, 2010. That notice listed the grounds of appeal as: The sentencing judge erred by imposing a sentence which is demonstrably unfit.

The sentencing judge over-emphasized general deterrence. Such other grounds that may become apparent once the transcript of proceedings … is prepared. [ 8 ] On December 20, 2010, an amended Notice of Appeal was filed adding the following: The Appellant submits that the guilty plea should be set aside because the Appellant was wrongly advised that he was eligible to receive a deferred sentence. The Appellant pled guilty to avoid incarceration.

The Appellant was convinced by his counsel that he would be convicted if the matter went to trial and he was also convinced that he would not be incarcerated if he pled guilty. [ 9 ] In his affidavit of December 20, 2010, K.F. stated:

4. During the course of the police investigation into this alleged offence, I was interviewed by Cst. K. Sheppard, badge ID # 631, ofthe Royal Newfoundland Constabulary on 26 January 2009 at which time I denied committing the alleged offence. I understand thenotes of Cst. Sheppard do not reflect my denial of the charge. I am advised, and do verily believe, Cst. Sheppard was subsequentlydischarged as a police officer for breaching her duties in an unrelated matter. 5. Following my arrest on 31 January 2009, I retained Derek Ford as my legal counsel in the defence of the charges.

During thecourse of my meetings with Mr. Ford, I was advised if I pled guilty to the offence I would receive a deferred sentence, or “house arrest”or possibly weekend detention. I was never advised by Mr. Ford that secured detention was the penalty for the alleged offence pursuantto the Young Offender’s Act and I believed “house arrest” to be a possible outcome if I entered a guilty plea to the alleged offence. 6. I did not commit this alleged offence and advised my legal counsel I wished to enter a plea of “not guilty” to the charges.

Mr.Ford advised that the evidence, including Facebook communications with the Complainant, would not be helpful to the defence and Iwould likely face a longer sentence, including incarceration, if I did not plead guilty. For this reason, to protect my family, I agreed toenter a guilty plea to the charges as I understood I would receive a deferred sentence, or “house arrest”. I did not appreciate orunderstand, nor was I ever advised, that a deferred sentence was not an eligible sentence as a young offender for an offence of this nature. 7.

My spouse, [N.S.], was present for some of my meetings with my legal counsel, Derek Ford, and neither of us was ever advisedthat a deferred sentence was not a possibility if I entered a guilty plea to this alleged offence. My spouse and I discussed our options andagreed it would be the best course to plead guilty, even though I did not commit this offence, as I would be able to continue to supportmy family. 8.

Prior to the sentencing hearing, I met with a Court officer to prepare a pre-sentence report and admitted to her that I committedthe alleged offence as my legal counsel had advised me that this was the only option in order to receive a deferred sentence. [10] On December 15, 2010, K.F. applied for bail pending his appeal. The hearing of the bail application was delayed pendingreceipt of the transcript of the sentencing judge’s decision. The bail application was heard on December 22, 2010. [11] Counsel for K.F. stated as follows at para. 4 of his Factum: In R. v. Murphy [2010] N.J. No. 286, C.K.

Wells J.A. summarized the correct approach to release pending appeal. ANALYSIS 9

Section 679 of the Criminal Code authorizes a judge of this Court to release, “in accordance with this section”, an appellant fromcustody pending determination of his appeal. Subsection (3) sets out the circumstances in which an appellant may be released. It reads:

(3) In the case of an appeal referred to in paragraph (1)(

a) or (c), the judge of the court of appeal may order that the appellant be releasedpending the determination of his appeal if the appellant establishes that (

a) the appeal or application for leave to 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. Thus, the statutory provision permits this Court to release an appellant only if the appellant establishes the three requirements specified inthat subsection. Unless the appellant establishes all three, this Court has no jurisdiction to grant judicial interim release on the basis thathe needs to work in order to earn money to hire a lawyer to pursue his appeal against conviction, even in circumstances where legal aidhas been denied and legal assistance, applied for pursuant to

section 684, has also been denied. This was explained in detail to theappellant at the hearing of this application and he pursued his application on the basis of seeking to establish the three statutoryrequirements. (

a) The appeal is not frivolous 10 Judges of this Court have consistently concluded that on hearing an application for judicial interim release, it is not appropriatefor a judge of this Court to make a determination respecting the relative merits of the case on appeal beyond finding that the appeal is notfrivolous (See R. v. Parsons (1994), (NL CA), 117 Nfld. & P.E.I.R. 69; R. v. Wiscombe, 2008 NLCA 1; and R. v.Newman, 2008 NLCA 45).

As Barry J.A. concluded in Newman, at paragraph 13: The decisions in Allen and Parsons confirm for me that a judge presiding over a bail application should consider only whether theapplicant has provided sufficient detail regarding his grounds of appeal to establish that he has a reasonable “possibility” of success orthat the Court of Appeal “could” come to the conclusion that the trial judge erred.

The applicant need not establish a probability ofsuccess. [Emphasis added.] I accept the foregoing as a good statement of the law. [12] At the bail hearing, K.F.’s counsel emphasized appeal against conviction rather than appeal against sentence. He conceded thatthe sentencing judge’s decision was well-researched and did not emphasize general deterrence. (His Notice of Appeal was preparedbefore he had seen the transcript of the sentencing judge’s decision.) He nevertheless maintained that the appeal against sentence wasnot frivolous. [13] I cannot agree.

Even for a young offender with no criminal record, where the offence is the rape of a child, a sentence of sixmonths incarceration, three months served in the community and one year probation is remarkably lenient and I foresee no “reasonable

possibility of success” on an appeal against sentence. [14] Regarding the appeal against conviction, much of the argument between counsel related to R. v. Stockley, 2009 NLCA 38. Inhis Factum at paras. 6-10, counsel for K.F. stated: The Appellant has appealed conviction and has asked this court to set aside his guilty plea. In R. v. Stockley, [2009] N.J. No. 239, theCourt of Appeal considered an appeal in which the Appellant sought to have a guilty plea set aside. D. M.

Roberts J.A. wrote thedecision and identified five factors that must be considered: The factors to be taken into account on an application to set aside a guilty plea were considered by the Nova Scotia Court of Appeal in R.v. Nevin (2006), 2006 NSCA 72 , 210 C.C.C. (3d) 81. There Bateman J.A., quoting the British Columbia Supreme Courtdecision in R. v. Joseph, [2000] B.C.J. No. 2850, stated: In R. v. Joseph, … Taylor, J. summarizes the factors to be considered on an application to set aside a guilty plea. While he is addressingan application to the trial judge, I find the

summary helpful here as well: The law with respect to changing pleas is well established. In Adgey v. The Queen (1973) (SCC), 13 C.C.C. (2d) 177,the Supreme Court of Canada held that the onus is upon an accused to satisfy the court that there are valid reasons for a court to exerciseits discretion to permit a guilty plea to be withdrawn. In considering whether the exercise of a court’s discretion to allow an applicationto be withdrawn should be exercised, there are a number of factors to be considered. These included firstly, was the accused representedby experienced counsel.

Secondly, was the accused apprised of his position in law, based upon his disclosure of the facts to his counsel, and thus can be said tohave understood the nature of the charge to which he pled. Thirdly, did the accused on those facts have a defence, if proved, that wouldbe consistent with a valid defence. Fourthly, was the plea given in circumstances that amounted to pressure upon him to do so, or wasthe decision to enter the plea one made in the circumstances of reasonable time for contemplation.

Fifth, what was the experience of theaccused with the criminal justice system, and was the plea entered by the accused himself or simply by counsel appearing on his behalf. Those various factors are contained within the Adgey decision and the following cases: R. v. Atlay (1992), (BC CA),70 C.C.C. (3d) 553, R. v. Read, 1994 BCCA 1 , [1994] B.C.J. No. 1491, R. v. Temple, [1995] B.C.J. No. 331, and R. v. Wally,[1985] Y.J. No. 60. In an affidavit filed with this court, the Applicant has stated that he did not commit the offence for which he [pled] guilty and for whichhe was convicted.

The Applicant states in his affidavit that he [pled] guilty despite being innocent of the charge because his counseladvised him that he would not be incarcerated if he [pled] guilty but would likely face incarceration if he [pled] not guilty. TheApplicant’s counsel advised him that he was eligible and would receive a deferred custody disposition. This advice was not correct. Section 42(5) of Youth Criminal Justice Act, S.C. 2002, c. 1 reads as follows: Deferred custody and supervision order

(5) The court may make a deferred custody and supervision order under paragraph (2)(

p) if (

a) the young person is found guilty of an offence that is not a serious violent offence; and (

b) it is consistent with the purpose and principles set out in

section 38 and the restrictions on custody set out in

section 39. The facts that were accepted by the sentencing judge was that the Applicant had sexual intercourse with the complainant when theApplicant was 17 and the complainant was 10. This clearly is a serious violent offence and a deferred custody sentence was notavailable. The advice provided by counsel for the Applicant demonstrates inexperience or negligence. The Applicant clearly had a valid defence. His defence was denial of the acts itself that formed the basis of the charge. It is also evidence that the Applicant was coerced intopleading guilty.

He was advised that he would go to jail if he pled not guilty and would not go to jail if he pled guilty. This advice wasnot correct but put the Applicant in a very difficult position. The Applicant was inexperienced with the criminal justice system and reliedupon the advice of counsel which was not correct. The Applicant submits that, based upon the factors elucidated in Stockley, is[sic] can be concluded that the Applicant’s guilty plea wasnot voluntary. Furthermore, it cannot be concluded that the Applicant understood the effect of the plea.

Therefore, the Applicantsubmits that the conviction appeal is not frivolous. [15] There is a fatal flaw in the foregoing. As the sentencing judge stated, K. F. repeatedly confessed to raping S.C. He confessed toher shortly after the crime when he implored her not to tell anyone. He confessed to her when she later informed him she intended toreport the offence. He did so not only by spoken words but also by writing to her on Facebook. After S.C. made her complaint, K.F.then confessed to the police. [16] K.F. sat in open court when these confessions were referred to by counsel and by the sentencing judge.

He then confessed tothe person who prepared the pre-sentence report. That report reads in part: [K.F.] states that he feels regret for his actions and appeared very uncomfortable discussing this offence. [He] stated several times that itwas a “one time thing” that would never happen again. [He] reports that immediately after he committed the offence he felt like “anidiot”. When [S.C.] pressed charges in December, 2008, [he] reported that he was scared and ashamed. He rarely left his home becausehe felt so ashamed and felt depressed and suicidal. At one point, he admitted to attempting suicide by hanging.

The rope broke and heblacked out temporarily. …

[K.F.] reports that there is nothing he can “do” to avoid committing any future sexual offences, as he made a grave mistake which he would never do again. [He] reports that the incident, which occurred seven years ago, was the biggest mistake of his life and he feels much regret over his actions. [ 17 ] On December 13, K.F. sought to appeal his sentence only. An innocent man who had been duped by incompetent counsel to plead guilty to a serious crime that he had not committed, and now was seeking to reverse that injustice, would he not straight away assert his innocence?

It was only later (December 20), when K.F. sought to overturn his conviction, that he said he did not commit the offence and he did not make the confessions referred to in his presence in open court. [ 18 ] While he says now that he was duped and overborne by incompetent counsel, what of what he wrote to S.C. on Facebook? That was before S.C. made her complaint. That cannot have been affected by anything that K.F.’s counsel later said to him.

On this, he is silent. [ 19 ] K.F.’s pattern of conduct is that of a man who recognized he had made a serious mistake and, when confronted with it, admitted what he had done and was remorseful, until the time when he went to prison, at which point he reversed himself. [ 20 ] I find the position advanced on K.F.’s behalf to be so implausible and so contrived that, in my view, there is no “reasonable possibility of success” in his appeal against conviction. Accordingly, the requirement in s. 679(3) (

a) of the Criminal Code is not met and bail is denied. M. H. Rowe, J.A. Date: 20110105 Docket: 10/135 Citation: R. v. K.R.F. , 2011 NLCA 2 err 1

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : K.R.F. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, J.A

Court Appealed From: Provincial Court of Newfoundland and Labrador Judicial Centre at Wabush Application Heard: December 22, 2010 Judgment Rendered: January 5, 2011 Reasons for Judgment by Rowe, J.A.

Counsel for the Appellant: Peter Ralph Counsel for the Respondent: Elaine Reid CORRIGENDUM [ 21 ] In paragraph [16] in the first quotation, in the second line, “[He] stated several times that it as a “one time thing” that …” should read ‘[He] stated several times that it was a “one time thing” that …” [ 22 ] In paragraph [16] in the second quotation, the last line, “mistake of his like and he feels much regret …” should read ‘mistake of his life and he feels much regret …”. ________________________________ M. Rowe, J.A.