RAYMOND MICHAEL STACEY APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT, 2016 NLCA 38

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation : R. v. Stacey , 2016 NLCA 38 Date: July 22, 2016 Docket : 201601H0052 Pursuant to

section 517 of the Criminal Code, the evidence taken, the information given, the representations made and the reasons given in this Court and in the Trial Division for detention of the accused in custody or his release shall not be published in any newspaper or broadcast before the end of the trial of the accused. BETWEEN: RAYMOND MICHAEL STACEY APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, Barry and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201601G2399 Appeal Heard: June 24, 2016 Judgment Rendered (Orally): June 24, 2016

Written Reasons Filed : July 22, 2016 Reasons for Judgment by Barry J.A. Concurred in by Rowe and White JJ.A. Counsel for the Appellant: Bob Buckingham and Jonathan McDonald Counsel for the Respondent: Frances Knickle Q.C. Barry J.A.: On June 24, 2016, this Court ordered that Raymond Stacey be granted judicial interim release, pending his trial on a charge of second- degree murder. These are the reasons for that decision. BACKGROUND FACTS [ 1 ] Mr. Stacey has been detained since January 11, 2015, following his being charged with the second-degree murder of Clifford Comerford.

On May 5, 2016, an applications judge denied his application for bail pending trial. [ 2 ] The deceased and Mr. Stacey worked together as chicken pickers at Country Ribbon’s chicken operations in the St. John’s area. The practice of the company was to pick up its employees in a company van and take them to the place of employment. [ 3 ] On Sunday, January 11, 2015, at about 9 p.m., the van picked up Mr. Stacey near his home. There were already five people, including Mr. Comerford, in the van. An altercation occurred and the deceased was stabbed.

He was declared dead shortly after arrival at hospital. [ 4 ] Eye witnesses provided conflicting evidence on how events had unfolded. Several witnesses testified that Mr. Stacey had been the initial aggressor in that he hit the deceased in the back of the head with his hand as Mr. Stacey entered the van and passed by where Mr. Comerford was seating. Witnesses differ as to whether Mr. Stacey had “tapped”, slapped or punched the deceased. [ 5 ] Witnesses confirmed that the two men left the van temporarily, with Mr. Comerford following Mr. Stacey, and voices were raised in anger.

Two witnesses outside the van testified that the deceased appeared to be the aggressor at that point and that in an aggressive posture he taunted Mr. Stacey to hit him, while Mr. Stacey said he wanted to go to work. These two witnesses also testified they heard a voice different than Mr. Stacey’s saying “I’ll gut you like a fish”. One of the two said she thought it was the deceased saying this. [ 6 ] Witnesses say Mr. Stacey and Mr. Comerford returned to the van, with Mr. Stacey going to the rear. Witnesses also say that Mr. Comerford then charged to the back of the van and jumped upon Mr. Stacey, that Mr.

Stacey yelled for the deceased to get off him, and that it was at this point, after a brief struggle, that Mr. Comerford was stabbed. One witness testified that he heard Mr. Stacey “whimpering” that Mr. Comerford was hurting him, while the deceased had Mr. Stacey pinned down. [ 7 ] Evidence received indicates that Mr. Stacey and Mr. Comerford had had a dispute the previous Friday when Mr. Stacey went to Mr. Comerford’s house to complain about the quality of drugs earlier purchased and a colleague of Mr. Comerford assaulted Mr. Stacey. Witnesses testified that Mr.

Stacey on the night of the stabbing referred to having been “set up” by Mr. Comerford. THE APPLICATIONS JUDGE’S DECISION [ 8 ] Mr. Stacey applied for judicial interim release pursuant to

Section 522 of the Criminal Code and a hearing was held on April 26 and April 28, 2016. A decision was rendered on May 5, 2016, refusing release. The applications judge, after noting that the relevant

section of the Code was section 515(10)(c), and after referring to the

interpretation of this

section in R. v. St-Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328, concluded: Having reviewed the circumstances of this case as set out in this decision, I find the following: One, the charge of Second Degree Murder is one of the most serious offences set out in the Criminal Code ; two, if convicted of Second Degree Murder, a sentence will be a term of imprisonment for life; three, the charge of the Crown that the accused killed Clifford Comerford by stabbing him with a knife is a very strong one.

On the material before me, I am unable to assess the strength of the Defence of the accused that he acted in self- defence. Four, the circumstances surround the alleged commission of the offence in a van in full view of four fellow workers is particularly troublesome. Having considered the material before me, the provisions of the Criminal Code, the case law, and the submissions of counsel for the accused and the Crown, I find that the accused has not discharged the onus of establishing that his detention in custody is not justified within the meaning of Section 515(10) (

c) of the Criminal Code. The application of the accused for Judicial Interim Release is denied. THE RELEVANT PROVISIONS OF THE CRIMINAL CODE

[ 9 ] The Criminal Code provides: 515(10) 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, including any victim of or witness to the offence, or any person under the age of 18 years, 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; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. … 522

(1) Where an accused is charged with an offence listed in

section 469, no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial. …

(4) An order made under this

section is not subject to review, except as provided in

section 680. … 680(1) A decision made by a judge under

section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under

section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (

a) vary the decision; or (

b) substitute such other decision as, in its opinion, should have been made. [ 10 ] On May 19, 2016, Green C.J.N.L. ordered, pursuant to

section 680, that the decision of the applications judge be reviewed by a panel of this Court. THE STANDARD OF REVIEW [ 11 ] A

section 680 review is akin to an appeal on a record, not a de novo hearing. The reviewing court may exercise an independent discretion and substitute its own decision for that of the court of first instance, but the review must be based on the original judge’s evaluation of the evidence. R. v. Maparai, 2001 BCCA 508 , 45 C.R. (5th) 230 (B.C.C.A.). ANALYSIS [ 12 ] With respect, the applications judge in the present matter erred in that he completely omitted to refer to the conflicting evidence regarding who was the aggressor and how this might relate to the apparent strength of the prosecution’s case, as required by section 515(10)(

c) of the Code . The circumstances of the killing give rise to issues of provocation and/or self-defence. In St-Cloud , at paragraphs 59 and 61, after referring to the difficulties inherent in the assessment of the quality and the strength of the prosecutor’s evidence, the Court said: 59 On the other hand, the justice must also consider any defence raised by the accused. Rather than raising a defence at the initial hearing, the latter will most likely not do so before the release hearing held upon completion of the preliminary inquiry, and may not even raise one before trial.

If the accused does raise a defence, however, this becomes one of the factors the justice must assess, and if there appears to be some basis for the defence, the justice must take this into account in analyzing the apparent strength of the prosecution’s case. As the Quebec Court of Appeal noted in a relatively recent decision, [ translation ] “it would be unfair to allow the prosecution to state its case if the justice is not in a position to consider not only the weaknesses of that case, but also the defences it suggests”: R. v.

Coates , 2010 QCCA 919 , at para. 19 . … 61 Without drawing up an exhaustive list of possible circumstances surrounding the commission of the offence that might be relevant under s. 515(10)( c ), I will mention the following: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability).

If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.

[13] While in the present case the applications judge made a brief reference to the possibility of self-defence, he ignored thesignificance of the conflicting evidence relevant to this defence and, with respect, erred in failing to assess how this relates to the criticalquestion in section 515(10)(c): whether detention is necessary for maintaining confidence in the administration of justice.

Theapplications judge stated, at page 8 of his reasons: On the material before me, I am unable to assess the strength of the Defence of the accused that he acted in self-defence. [14] But St-Cloud held, at paragraph 59: If the accused does raise a defence, however, this becomes one of the factors the justice must assess, and if there appears to be somebasis for the defence, the justice must take this into account in analyzing the apparent strength of the prosecution’s case. (Emphasis added.) [15] The Court went on to adopt a comment in R. v.

Coates about the unfairness of allowing the prosecution to state its case if thejustice is not in a position to consider not only the weaknesses of that case, but also the defences it suggests. [16] The evidence presented to the applications judge establishes that this is not a case where a person with a knife has run amok andstabbed members of the public in a random fashion. The evidence suggests there was some history of bad feeling between Mr. Staceyand Mr. Comerford because of a drug deal gone bad and a beating of Mr. Stacey by an accomplice of Mr.

Comerford several days beforethe stabbing. [17] The Crown concedes that the primary and secondary grounds of Section 515(10) are not in issue. Mr. Stacey’s continueddetention is not necessary to ensure his attendance in court or to ensure the protection and safety of the public. [18] The issue before the applications judge, as noted previously, was whether Mr. Stacey’s continued detention was necessary tomaintain confidence in the administration of justice.

The prosecution’s position is that even though the primary and secondary groundsmay be satisfied, public confidence may be shaken if an accused murder is released without proper stipulation of a place of residence. [19] The trial judge erred in his analysis by omitting to consider how the conflicting evidence, regarding who was the aggressor andwhether at the time of the stabbing Mr. Stacey feared he might be seriously harmed by Mr. Comerford, related to the apparent strength ofthe prosecution’s case. Clearly, the case is strong regarding Mr. Stacey’s stabbing of Mr.

Comerford but there is also significantevidence upon which to base a case for self-defence or provocation. [20] In the circumstances, this Court has authority under

section 680 of the Code to overturn the decision refusing bail and tosubstitute the decision which in our opinion should have been made. It must be kept in mind that, at this stage of the criminalproceedings, the accused is still presumed innocent regardless of the gravity of the offence, the strength of the prosecution’s case or thepossibility of a lengthy term of imprisonment. See St-Cloud, at paragraph 56. Reasonable bail cannot be denied simply because thecharge is one of murder: R. v. LaFramboise, (ON CA), 203 C.C.C. (3d) 492 (Ont.

C.A.), at p. 31. [21] Giving proper consideration to the evidence regarding possible provocation and self-defence issues and keeping in mind thatthis evidence is conflicting on several significant points as noted above, I am of the opinion that this is a proper case for release fromdetention pending trial, provided it is upon the proper conditions. [22] Much of the focus at the initial bail application hearing related to whether Mr. Stacey had provided a proper release plan. Theprosecution stated that if Mr. Stacey presented a proper release plan, it would consider consenting to his release.

But the prosecutionsubmitted Mr. Stacey had not shown in sufficient detail where he would live. [23] A difficulty arose because of the “Catch-22” position in which Mr. Stacey found himself as a homeless person. Mr. Staceycould not access social housing or lodging provided by various community organizations for homeless people because he was regardedas having a residence in the penitentiary while he was incarcerated. He does not meet the test of “being without a residence”, adopted bythose organizations. [24] We have been presented now with evidence of an arrangement which will see Mr.

Stacey have a residence made available tohim upon his release at 115 Portugal Cove Road. This removes the need to determine whether public confidence in the administration ofjustice may be shaken in all cases by release of a person with no fixed address. [25] We order that Mr. Stacey be released upon the following conditions: (

a) He will keep the peace and be of good behaviour; (

b) He will reside at 115 Portugal Cove Road, St. John's, upon his release from custody and he will notify the Royal NewfoundlandConstabulary twenty-four (24) hours prior to any proposed change of address; (

c) He will not contact or communicate with, and remain away from the place of residence, schooling or employment of the followingpersons; Travis Kean, Kyle Buckland, Lloyd Williams, Joshua Hancock, Sherri Johnson, Diane Spurrell, Sherlock Stacey (brother),Margie Davis, David Lukianik, Ashley Welsh, Evelyn Hodder, Nancy Butler, Gail Holloway, Min Qiu, Beverley Welsh, BernardManning, Trevor LeDrew, Robert Kennedy, Raymond Power, Wayne Newell, Brian Herman, Elder Perez, or Kristian Perez; (

d) He will not consume alcohol or non-prescription drugs; (

e) He will report in person on Wednesdays of every week between 8:00 a.m. and 6:00 p.m. and sign the registration book at theRoyal Newfoundland Constabulary at Fort Townshend, St. John's, Newfoundland; (

f) He will remain in his place of residence between the hours of 8:00 p.m. and 8:00 a.m., subject to seeking a variation of this

condition for reasons of employment; (

g) He will remain in the Province of Newfoundland and Labrador; (

h) He will appear in Court and/or surrender himself into custody as required; (

i) He will not possess any firearms, nor conceal on his person any knife, or firearm, crossbow, prohibited ammunition or explosive substance and will surrender any such items as well as licenses and registration certificates relating to them to the RNC at a time and place and manner as specified by the police within twenty-four (24) hours of his release; (

j) He will not be in any dwelling where there is storage of a firearm, crossbow, prohibited ammunition or explosive substance and will surrender any such items as well as Licenses and registration certificates relating to them to the RNC at a time and place and manner as specified by the police within twenty-four (24) hours of his release.

SUMMARY AND DISPOSITION [ 26 ] In

summary:

i) The applications judge erred in refusing release from detention without proper consideration of the evidence related to possible defences of provocation and self-defence and how these relate to the apparent strength of the prosecution’s case and public confidence in the administration of justice, and the decision to refuse bail must be set aside. ii) Mr. Stacey has proven he meets the criteria of section 515(10) and has been released upon the conditions earlier set out. ___________________________ L. D. Barry J.A. I Concur: ___________________________ M. H. Rowe J.A. I Concur: ___________________________ C. W. White J.A.