R. v. Northrup, 2012 NLCA 70

Date: 20121113 Docket: 12/46 Citation: R. v. Northrup , 2012 NLCA 70 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : LEE GORDON NORTHRUP APPELLANT/APPLICANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe J.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Judicial Centre of Stephenville Application Heard: November 8, 2012 Decision Rendered: November 13, 2012 Reasons for Decision by Rowe J.A.

Counsel for the Appellant/Applicant: Sandi MacKinnon Counsel for the Respondent: Lloyd Strickland Rowe J.A.: [ 1 ] Lee Gordon Northrup was convicted of mischief causing endangerment of life, contrary to s. 430(2) of the Criminal Code , as well as uttering threats, contrary to s. 264.1(1) (b). He is appealing his convictions. In this application, he is seeking bail pending his appeal. [ 2 ] Mr. Northrup was convicted of loosening the lug nuts on the wheel of a pick-up owned by Fintan Legge. The wheel came off on the Trans Canada Highway and the vehicle ended up in the ditch.

A passenger was injured. [ 3 ] The main evidence against Mr. Northrup was given by Clifford Dubay. He testified that Mr. Northrup had told him that he (Mr. Northrup) had loosened the lug nuts on Mr. Legge’s pick-up to get back at Mr. Legge for putting Mr. Northrup out of the house that he had occupied.

[ 4 ] Subsection 679(3) of the Criminal Code governs bail in such circumstances: …[T]he judge of the court of appeal may order that the appellant be released pending determination of the appeal or until otherwise ordered by a judge of the court of 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. [ 5 ] The burden of demonstrating the three requirements set out in s. 679(3) rests upon the appellant; R. v. Allen , 2001 NFCA 44, 158 C.C.C. (3d) 225 , per Wells C.J.N.L. at paras. 26-30. [ 6 ] The requirement in s. 679(3)(

a) to show that the appeal is “not frivolous” has been interpreted to mean that it has an arguable basis. R. v. Parsons (1994), 117 Nfld. v.

P.E.I.R. 69 (NFCA), para. 11, per Marshall J.A. [ 7 ] The requirement in s. 679(3)(c) (the “public interest”) was interpreted by Marshall J.A. in Parsons , supra , paragraph 34 as being comprised of two elements: (1) the protection and safety of the public, and (2) whether the offender’s release would adversely diminish public confidence in the administration of justice. [ 8 ] In this application, the Crown conceded that the requirement in s. 679(3) (b) (“will surrender himself into custody”) is not in issue. Regarding the requirement in s. 679(3) (c) (“public interest”), Crown counsel conceded that releasing Mr.

Northrup on bail would not pose a threat to the public nor would it “diminish public confidence in the administration of justice”. [ 9 ] The key issue in this application is whether Mr. Northrup has outlined an “arguable case” for appeal of his conviction. Counsel for Mr. Northrup set out four areas where she took issue with the trial judge’s decision: (1) the absence of forensic evidence; (2) reliance on circumstantial evidence; (3) inconsistencies relating to the Crown’s key witness, Mr. Dubay; and (4) failure to believe alibi evidence. [ 10 ] In no instance did counsel for Mr.

Northrup set out a basis for saying the trial judge had committed an error of law vis-à-vis his handling of the evidence. (The rule in Hodge’s Case referred to by counsel for Mr. Northrup is not relevant as it relates to convictions based solely on circumstantial evidence, as opposed to a mixture of direct and circumstantial evidence, as we have here.) Rather, counsel for Mr. Northrup takes issue with aspects of the trial judge’s assessment of credibility and the weight accorded to various pieces of evidence.

Appellate courts show considerable deference to trial courts in such matters. [ 11 ] In the appeal, counsel for Mr. Northrup will be seeking to have this Court set aside the verdict on the basis that it was “unreasonable or cannot be supported by the evidence”, as per s. 686(1) (

a) of the Criminal Code . That is an uphill battle in the absence of some clearly demonstrable error by the trial judge, none of which was shown in this application. [ 12 ] Mr. Northrup not having shown an arguable case for an error of law by the trial judge or that the guilty verdict is “unreasonable or not supported by the evidence”, the requirement in s. 679(3) (

a) has not been met. [ 13 ] Mr. Northrup’s application for bail pending the hearing of his appeal is denied. _____________________________ M. H. Rowe J.A.