R. v. Sutton, 2012 NLCA 42

Date: 20120703 Docket: 11/84 Citation: R. v. Sutton , 2012 NLCA 42 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : CHRISTOPHER WADE SUTTON APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh J.A.

Application Heard: July 3, 2012 Decision Rendered: July 3, 2012 (Orally) Memorandum of Disposition Filed: July 4, 2012 Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Robin Fowler MEMORANDUM OF DISPOSITION Welsh J.A.: [ 1 ] By decision dated June 13, 2006, Christopher Sutton’s appeal against conviction for break and enter into Greenwood Building Supplies was allowed, the conviction was set aside and a new trial was ordered. Pending a new trial, Mr. Sutton has applied for judicial interim release ( section 679(7.1) of the Criminal Code ). After hearing evidence from Corporal Ellis, Mr.

Sutton, and his parents, Carol Ann Sutton and Neil Burry, and having considered the submissions of counsel, I granted Mr. Sutton’s application for judicial interim release with conditions. [ 2 ] The application for judicial interim release was opposed by the Crown on two grounds as set out in section 515(10) of the Criminal Code : For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, …, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; …

[ 3 ] The Crown failed to show cause why the detention of Mr. Sutton is justified under either of these grounds. While Mr. Sutton has a criminal record beginning when he was a young offender, this is not sufficient to meet the standard of “substantial likelihood” that he would commit an offence if released from custody. His record of offences is somewhat sporadic. He is currently charged with one offence, theft of a vehicle and building materials from Greenwood Building Supplies which occurred in the early morning hours on May 18, 2010.

He maintains he is innocent of the charge. [ 4 ] In determining that it is appropriate to grant Mr. Sutton judicial interim release, I have taken into account the Crown’s submissions regarding his criminal record, including two convictions for failure to attend court, once in 2005 and once in 2007. [ 5 ] Mr. Sutton is twenty-six years old, single, with no dependents. If released, he would reside with his parents in Catalina, NL. In the past, he has been employed as an excavator operator and labourer. He provided the Court with a letter from a potential employer who indicated he would hire Mr.

Sutton as a labourer “as soon as possible”. In addition, Mr. Sutton provided a letter of acceptance, conditional upon completion of a CAAT test, from the Central Training Academy for a twenty-four week heavy equipment operator program, being conducted in Badger, commencing August 27, 2012. [ 6 ] Mr. Sutton agreed to restrictive conditions for his release including a daily curfew from 11:00 p.m. to 7:00 a.m. He agreed to post a $1,500 surety. As well, his parents each agreed to post a surety of $3,000. Mr. Sutton and his parents testified that they understood the obligations arising from giving a surety. [ 7 ] In

summary, taking all the relevant factors into account, I was satisfied that the Crown failed to show cause why Mr. Sutton’s detention pending trial would be justified. Accordingly, Mr. Sutton was granted judicial interim release with conditions. The conditions include the above noted curfew and a requirement that he reside with his parents, unless he proceeds with the heavy equipment operator course, in which case, he would reside with Robert Young. The Crown agreed to the conditions of release. ________________________________ B. G. Welsh J.A.