R. v. Terry, 2015 NLCA 15

Date: 201504 02 Docket: 201501H0018 Citation: R. v. Terry , 2015 NLCA 15 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: ROBERT TERRY APPLICANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Hoegg J.A. Court Appealed From: Provincial Court, Grand Falls-Windsor Application Heard: March 25, 2015 Reasons Rendered: April 2, 2015 Reasons for Decision by Hoegg J.A. Counsel for Intended Appellant: Self-Represented Counsel for Her Majesty the Queen: Frances J. Knickle Q.C. Friend of the Court: Barbara A. Barker Hoegg J.A.: INTRODUCTION [ 1 ] Robert F.

Terry applied for judicial interim release (JIR) pending determination of his sentence appeal. His application was heard and denied on March 25, 2015. The following are my reasons for decision. BACKGROUND [ 2 ] On January 29, 2015, Mr. Terry was convicted of two counts of break and entry, possession of housebreaking instruments, being in possession of stolen property, a breach of probation and failing to appear in relation to the above charges. The failing to appear charge was laid in 2015; all of the other charges arose from offences committed in 2011. Mr. Terry was given an incarcerating sentence

of nine months and 27 days on the same date. He appeals his sentence saying that he ought to have been able to serve his sentence in thecommunity like his friend who was sentenced for similar charges, or that he ought to have received a shorter sentence. [3] Mr. Terry was represented by counsel at his sentencing hearing but represented himself at his JIR hearing in this Court. LegalAid counsel Barbara A. Barker appeared as a friend of the Court in relation to Mr. Terry’s application.

She informed the Court that Mr.Terry had applied to the Legal Aid Commission for representation, but that Legal Aid had not been able to obtain the informationnecessary to evaluate Mr. Terry’s request in time for the hearing. Ms. Barker also advised the Court that senior Legal Aid counsel hadspoken with Mr. Terry and advised him to seek a two-week postponement, and that she attended court on the understanding that the JIRhearing would not be proceeding. [4] Mr. Terry, who appeared by video from the Bishop’s Falls Correctional Centre, was adamant that his JIR hearing proceed. Iexplained to Mr.

Terry that it may be in his best interests to adjourn the matter until Legal Aid was able to deal with his request forrepresentation, but Mr. Terry insisted on being heard. Ms. Barker, although she remained present, had no instructions or indeed abilityto act as counsel, for she had never spoken with Mr. Terry and had no information concerning the issues raised by his application. Crown counsel was prepared to proceed with the hearing and also indicated that the Crown was prepared to have Mr. Terry’s sentenceappeal heard as soon as possible. Relevant Criminal Code Provisions [5]

Section 679 of the Criminal Code sets out the circumstances in which an incarcerated appellant may be judicially releasedpending his or her appeal. As Mr. Terry is appealing his sentence only, the relevant parts are paragraph 679(1)(

b) and subsection679(4): 679(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determinationof his appeal if, … (

b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; … …

(4) In the case of an appeal referred to in paragraph (1)(b), the judge of the court of appeal may order that the appellant bereleased pending the determination of his appeal or until otherwise ordered by a judge of the court of appeal if the appellant establishesthat (

a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (

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. [6] It is apparent from paragraph 679(1)(

b) that an appellant who is seeking judicial interim release pending his or her sentenceappeal must have leave to appeal his or her sentence prior to an appeal court ordering his or her release. Mr. Terry does not have leave toappeal his sentence. Neither did he apply for leave to appeal his sentence. [7] Mr. Terry was clearly distressed by the prospect of not being heard respecting his JIR application, and he implored the Courtto hear it. In these circumstances and with the concurrence of the Crown and acknowledgement of Ms.

Barker, I agreed to hear Mr.Terry’s JIR application together with the leave to appeal issue in the same way as leave to appeal is often heard together with an appeal. Mr. Terry, being self-represented, did not seem to appreciate the requirement to have leave to appeal prior to the Court being able torelease him (even though it may well have been discussed with him by senior Legal Aid counsel prior to the hearing). As well, time wasof the essence in that Mr. Terry had already served two months of a nearly ten-month sentence and his application for JIR as well as hissentence appeal would soon be moot.

Recognizing that I may not have been correct to proceed in this manner, I did so for the abovereasons and on the stated understanding that any decision I would make respecting leave would not bind another judge or panel of thisCourt. [8] In regard to the procedure I followed, I note that Barry J.A. of this Court appears to have proceeded in the same manner in R. v.Strowbridge, 2013 NLCA 57, 341 Nfld. & P.E.I.R. 144, which involved an application for judicial interim release pending a sentenceappeal where no leave had been previously granted. In that case, the requirement of paragraph 679(1)(

b) was not addressed. ANALYSIS [9] It goes without saying that an applicant who is seeking JIR pending his appeal, like Mr. Terry, no longer enjoys thepresumption of innocence (R. v. Farinacci, 2010 ONSC 585). As well, given that Mr. Terry’s appeal is one of sentence only, anyapprehension related to a wrongful conviction is alleviated. [10] It is well established that an incarcerated applicant seeking JIR who is appealing his convictions must meet all threerequirements set out in subsection 679(3) (R. v. Parsons (1994), (NL CA), 117 Nfld. & P.E.I.R. 69 (Nfld. C.A.), para.8 and R. v.

Allen, 2001 NFCA 44, 158 C.C.C. (3d) 225, para. 5). Given that the individual requirements of both subsection 679(3) and(4) are conjunctive and set out in a like manner, Mr. Terry is required to meet, on the balance of probabilities, all three requirements ofsubsection 679(4) in order to be released. [11] However, the requirements of subsections 679(4) and 679(3) are different. In particular, paragraph 679(4)(

a) requires Mr.Terry to establish that his appeal “has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained

in custody” whereas section 679(3)(

a) requires only that an applicant demonstrate that his appeal is not frivolous. I am of the view that the merits assessment in paragraph 679(4)(

a) is of a higher standard than that in 679(3)(a). In this regard, I agree with the Saskatchewan Court of Appeal in R. v. Leis , 2008 SKCA 93 , wherein Jackson J.A. stated at paragraph 15: 15 It seems generally accepted that the threshold for establishing the merit of a sentence appeal under s. 679(4) (

a) of the Criminal Code is set higher than that for establishing the merit of a conviction appeal under s. 679(3) (a). This is so because the person does not deny the conviction, but questions the nature, length or terms of the punishment only. In The Law of Bail in Canada , Professor Trotter, as he then was, writes: Section 679(4) (

a) of the Criminal Code requires the applicant to demonstrate that the appeal has sufficient merit such that detention in custody pending the appeal would cause “unnecessary hardship.” The Ouimet Committee discussed the intimate link between merit and hardship in the following passage: In the view of the Committee, it would not be sufficient for the applicant to show that his appeal is not frivolous, but he should be required to show not only that there are substantial grounds to be argued, but that refusal of bail might work a prejudice to him by virtue of the length of time that would elapse before his appeal could be heard. Thus, the standard established in s. 679(4) (

a) of the Criminal Code is much more stringent than the test for leave to appeal. [Footnote omitted.] See, as well, the judgment of Prowse J.A. and the authorities to which she refers in R. v. Wilder . When considering the question of merits alone under s. 679(4) (a), the reviewing judge considers the strength of the grounds of appeal in conjunction with the nature, length and terms of the sentence that must be served before the matter can be heard by the Court. (Footnotes omitted.) (See also R. v. Tataquason , 2008 SKCA 135 , paras. 2 and 6 , and R. v.

Wilder , 2007 BCCA 344 , paras. 13 and 14 .) [ 12 ] The test for leave to appeal sentence in this jurisdiction is whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit ( R. v. Saunders , 2014 NLCA 39 , 356 Nfld. & P.E.I.R. 45, para. 4 ). Given that paragraph 679(1)(

b) requires that leave to appeal sentence must be granted before JIR can be granted and given the wording of paragraph 679(4) (

a) the merits of a sentence appeal for the purposes of JIR under paragraph 679(1)(

a) appear to require an applicant to meet a higher standard for JIR than he or she would be required to meet to obtain leave to appeal sentence (see Gary T. Trotter, The Law of Bail in Canada , loose leaf, 3rd ed. (Toronto: Carswell, 2010), ch. 10 , p. 36). [ 13 ] Mr.

Terry states his grounds of appeal as follows: I want to appeal my sentence of 9 months 27 days to house [arrest] or a lighter sentence because the other convicted only got house [arrest] and he had [a lot] more charges than me. [His] name is [Cody] [Legge]. [Also] I have two children that I [care for] and want to be with them as they want to be with me. The mother of my [youngest] is [an] unfit mother and [cannot] [care] for him. [ 14 ] At the hearing, Mr. Terry made no mention that his younger son’s mother is unfit. He did express the desire to be with and support her and their child. Mr.

Terry said that his younger son is with the boy’s mother at her mother’s home in Central Newfoundland, and that they had three weeks “to get out.” As regards his older child, whom Mr. Terry has not seen for a long time, the evidence concerning whether he supports him was vague. In any event, Mr. Terry’s desire to be with his family is not a recognized ground of appeal. [ 15 ] Mr. Terry argues that he should receive the same sentence as the friend with whom he committed the offences leading to most of his convictions and sentence.

He submits that his friend received roughly the same sentence as he did, but the friend was permitted to serve all or part of it in the community, and that he (Mr. Terry) should have also received a conditional sentence. Mr. Terry advised his friend’s name but provided no particulars to the Court about their respective involvements in the offences or his friend’s convictions sentence or other circumstances.

The Crown did advise that the friend, Cory Legge, received a conditional sentence of two months and 10 days for offences related to the same criminal enterprise, but it was part of a longer conditional sentence plus probation. [ 16 ] One distinguishing feature between the sentencing circumstances of Mr. Terry and those of his friend did emerge from the hearing. Mr. Terry’s friend was convicted and sentenced in the normal course during 2012. Mr.

Terry, however, absconded to Alberta before his scheduled court date in September 2012, and he did not communicate with the Court until he was arrested on a warrant a day or two after he returned from Alberta in late January 2015. As a result, Mr. Terry was charged and convicted for failing to appear, an additional and different charge from those his friend faced. The transcript of Mr.

Terry’s sentencing hearing reveals that the sentencing judge viewed this factor as aggravating and it may account in some measure for the differences in the sentence. [ 17 ] While I accept that the principle of parity, which provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” ( Criminal Code , paragraph 718.2(b)) could provide a legitimate basis for a successful appeal, the sentencing of an offender is a highly individualized exercise. This was held by Lebel J. on behalf of the Supreme Court in R. v.

L.M. , 2008 SCC 31 , [2008] 2 S.C.R. 163: 36 Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. The principle of parity does not preclude disparity where warranted by the circumstances , because of the principle of proportionality (see Dadour, at p. 18). As this Court noted in M. (C.A.) , at para. 92, “there is no such thing as a uniform sentence for a particular crime”.

From this perspective, an appellate court is justified in intervening only if the sentence imposed by the trial judge “is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes” ( M. (C.A.) , at para. 92). (Emphasis in original.)

This principle was confirmed in R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206, at paragraphs 43 and 44 , and is well established in this jurisdiction. [ 18 ] The hardship aspect of subsection 679(4) requires comment. Detention in custody generally causes hardship, and Mr. Terry’s distress, which was obvious at the hearing, shows general hardship which could in time prove to have been unnecessarily suffered if his appeal is granted. It is this type of hardship that the

section refers to and not the kind of hardship that a particular offender may suffer because of that particular offender’s circumstances. According to Trotter, this was recognized by the Ouiment Committee, when it stated that an applicant for JIR under subsection 679(4) “…should be required to show not only that there are substantial grounds to be argued, but that refusal of bail might work a prejudice to him by virtue of the length of time that would elapse before his appeal could be heard” (ch. 10, p. 36). This point was agreed with by Justice Jackson in Leis at paragraphs 15 and 16 .

It was also accepted by the British Columbia Court of Appeal in R. v. Wilder at paragraph 15 . I also agree. [ 19 ] In conclusion on the first criterion, the evidence and submissions before me do not provide me with a sufficient basis to evaluate the merits of Mr. Terry’s appeal.

Accordingly, he has not demonstrated that his sentence appeal has sufficient merit that, in the circumstances, would work unnecessary hardship were he to remain detained in custody until his sentence appeal is heard. [ 20 ] Although it is not necessary for me to address the second criterion of subsection 679(4) , given my decision respecting the first, I will do so in the circumstances. [ 21 ] Paragraph 679(4)(

b) requires Mr. Terry to establish that he will surrender himself into custody if required. In R. v. Phelan , 2012 NLCA 57 , 326 Nfld. & P.E.I.R. 50, para. 5 , Rowe J.A. of this Court accepted that in order to meet the requirements of paragraph 679(3)(b), which is identical to paragraph 679(4) (b), more than a simple assertion that an applicant has roots in the community or that he has accommodation where he can reside is required. In this case, Mr. Terry has offered no more than bald statements that he has relatives in the community and a place to live.

He has offered no deposit or sureties to support a recognizance to appear. He testified that he has no personal funds available. It was unclear whether he either no longer has any money or needs the money he does have for other purposes. He said that he had a conversation with his grandfather, who lives in St. John’s, about providing a surety, but that nothing has materialized in that regard. [ 22 ] Even Mr. Terry’s connection to the Grand Falls-Windsor area appears to be tenuous.

He says that he could live with his grandmother who resides there, but also that she is in the United States at present and that she recently had emergency surgery. Mr. Terry said that his grandmother is agreeable to his moving into a downstairs apartment in her home, but that she is unaware that Mr. Terry would be bringing his girlfriend and their child with him. When asked how he would access his grandmother’s home given her being out of the country at present, Mr. Terry said that he could get a key from his aunt. There was no communication from the grandmother to the Crown or to the Court.

These circumstances, combined with Mr. Terry’s previous failure to appear for court, and his previous convictions for breaching probation orders do not meet the Phelan test by some measure, and they do not satisfy me that he would surrender himself into custody if he were required to do so. [ 23 ] In the result, I deny Mr. Terry’s application for judicial interim release on the basis of grounds 679(4)(

a) and (b). It is not necessary for me to consider the third criterion. As well, given my denial of his JIR application, I do not have to decide whether Mr. Terry ought to be granted leave to appeal his sentence. His right to pursue his sentence appeal is therefore fully preserved. [ 24 ] With the concurrence of the Crown, Mr. Terry and Ms. Barker, I order Mr. Terry’s leave to appeal sentence and sentence appeal to be heard on April 15, 2015 at 10:00 a.m., at which time I understand he will be represented. ______________________________ L. R. Hoegg J.A.