G.M. APPLICANT/APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT, 2022 NLCA 43

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : R. v. G.M ., 2022 NLCA 43 Date : July 18, 2022 Docket Number : 202201H0045 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant shall not be published in any document or broadcast or transmitted in any way. BETWEEN: G.M. APPLICANT/APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Goodridge J.A.

Court Appealed From: Provincial Court of Newfoundland and Labrador, Happy Valley-Goose Bay Application Heard: July 12, 2022 Judgment Rendered (Orally): July 12, 2022 Memorandum of Disposition Filed: July 18, 2022 Reasons for Judgment by: Goodridge J.A. Counsel for the Appellant: Self-Represented Counsel for the Respondent: Dana E. Sullivan Authorities Cited:

CASES CITED: R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250; R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631. STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46, sections 151 , 679(3) . MEMORANDUM OF DISPOSITION Goodridge J.A. : [ 1 ] G.M. was convicted on November 23, 2021 of sexual interference ( s. 151 of the Criminal Code , R.S.C. 1985, c. C-46 ) of a 14- year girl who was in the foster care of his common-law partner. He was sentenced on May 31, 2022 to 12 months imprisonment. [ 2 ] G.M. sought judicial interim release – bail – pending his appeal against conviction.

At the hearing, the application was dismissed. [ 3 ] An applicant like G.M. who seeks bail pending an appeal must establish, on a balance of probabilities, the three criteria set out in section 679(3) of the Criminal Code (see R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250, at para. 19 ): (

a) the 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. [ 4 ] This application fails to pass the very low threshold of the first criterion. G.M. has not established that the appeal is not frivolous. [ 5 ] G.M.’s grounds of appeal allege that the trial judge erred in two respects: (1) the judge quoted, and relied upon, statements of G.M. that he did not make; and (2) undue delay between laying of the charge and completion of the trial. [ 6 ] The trial judge’s reasons for decision and the voluntary statement of G.M. were filed as part of the record for this bail application.

The statements quoted by the trial judge in her reasons match verbatim with G.M.’s voluntary statements. The judge accurately re-produced what G.M. said. G.M. has failed to establish that there is any arguable basis or merit on this first ground of appeal. [ 7 ] The time delay from the laying of charges to completion of trial was twenty-two and a half months – December 18, 2018 to October 15, 2020. This is higher than the presumptive ceiling of eighteen months for provincial court matters as established in R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631.

The endorsements on the back of the Information initiating this criminal charge indicate that G.M. was responsible for five months of this delay, with him or his counsel requesting postponements. Even if one ignores this defence delay of five months, the provincial court’s temporary suspension of trials at the outset of the COVID-19 pandemic (March 16, 2020) is an exceptional circumstance that rebuts any presumption of unreasonable delay. [ 8 ] G.M.’s trial had been set for April 2, 2020, and would have been completed well inside the presumptive ceiling of eighteen months but for the pandemic.

G.M.’s matter was recalled immediately after the courts reopened, and the new trial date of October 15, 2020 was assigned. The six and a half month delay between these two dates was caused by the COVID-19 pandemic; it is an exceptional circumstance over which the Crown had no control. I note also that G.M., while represented by experienced counsel, did not raise delay as an issue at trial.

In these circumstances, G.M. has failed to establish that there is any arguable basis or merit on this second ground of appeal. [ 9 ] It is unnecessary to address the remaining two criteria set out in section 679(3) of the Criminal Code . [ 10 ] The application is dismissed. _____________________________ W.H. Goodridge J.A.