VINCENT LEONARD APPLICANT/ APPELLANT AND: HIS MAJESTY THE KING RESPONDENT v. BETWEEN:, 2023 NLCA 39

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : R. v. Leonard , 2023 NLCA 39 Date : December 11, 2023 Docket Number : 202301H0058, 202301H0059 and 202301H0061 BETWEEN: VINCENT LEONARD APPLICANT/ APPELLANT AND: HIS MAJESTY THE KING RESPONDENT AND BETWEEN: WAYNE JOHNSON APPLICANT/ APPELLANT AND: HIS MAJESTY THE KING RESPONDENT AND BETWEEN: JAMES CURRAN APPLICANT/ APPELLANT AND: HIS MAJESTY THE KING RESPONDENT Coram: K.J. O’Brien J.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 201801G2086 ( 2023 NLSC 70 and 2023 NLSC 137 ) Application Heard: December 11, 2023 Judgment Rendered (Orally): December 11, 2023 Memorandum of Disposition Filed: December 13, 2023 Reasons for Judgment by: K.J. O’Brien J.A. Counsel for Mr. Leonard: Jason A. Edwards Counsel for Mr. Johnson: Mark J. Gruchy Counsel for Mr. Curran: Candace G. Summers Counsel for the Respondent: Elaine M. Reid Authorities Cited: CASES CITED: R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250 ; R. v. Price , 2022 NLCA 25 , 7 C.A.N.L.R. 500; R. v.

Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631; R. v. G.F. , 2021 SCC 20 ; R. v. Godin , 2009 SCC 26 , [2009] 2 S.C.R. 3; R. v. King , 2018 NLCA 66 , 3 C.A.N.L.R. 516; R. v. Klassen , 2018 ABCA 258 ; R. v. Hanan , 2023 SCC 12 ; R. v. Ghraizi , 2022 ABCA 96 . STATUTES CONSIDERED: Criminal Code ,

section 679 ; Canadian Charter of Rights and Freedoms ,

section 11(b) . MEMORANDUM OF DISPOSITION K.J. O’BRIEN : [ 1 ] Vincent Leonard, Wayne Johnson and James Curran have applied for judicial interim release pending appeal under

section 679 of the Criminal Code . [ 2 ] Following trial by judge alone in the Supreme Court of Newfoundland and Labrador, the men were convicted of the following offences ( R. v. Leonard , 2023 NLSC 70 ):

a) Mr. Leonard: trafficking in oxycodone; conspiracy to traffic oxycodone; trafficking in cocaine; trafficking in cannabis resin; possession of proceeds of crime in excess of $5,000.00; participating in or contributing to the activities of a criminal organization; and committing an indictable offence for the benefit of or in the association with a criminal organization.

b) Mr. Johnson: trafficking in cocaine (2 counts); possession of proceeds of crime in excess of $5,000.00; and participating or contributing to the activities of a criminal organization.

c) Mr. Curran: trafficking in cocaine; trafficking in fentanyl; and possession of proceeds of crime in excess of $5,000.00. [ 3 ] The men were sentenced to global periods of imprisonment of: Mr. Leonard, 5.5 years; Mr. Johnson, 5 years; and Mr. Curran, 3.5 years ( R. v. Leonard , 2023 NLSC 137 ). [ 4 ] All three have appealed their convictions only. [ 5 ] The criteria for release pending appeal under section 679(3) of the Criminal Code are:

a) the appeal is not frivolous;

b) the appellant will surrender himself into custody in accordance with the terms of the order; and

c) the appellant’s detention is not necessary in the public interest. [ 6 ] The onus is on each of the appellants to establish these criteria on a balance of probabilities ( R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250, at para. 19 ). [ 7 ] Each of the appellants filed separate applications for judicial interim release but, with the agreement of the parties, the applications were heard at the same time. [ 8 ] I have decided that each of the appellants should be released subject to conditions pending their appeals. I will now give my reasons for so deciding. A.

Is the appeal not frivolous? [ 9 ] Although each of the appellants filed separate Notices of Appeal, there is significant overlap among their grounds of appeal. For the purpose of this application, all three appellants focused their arguments primarily on one ground, although Mr. Johnson addressed other grounds as well. They each need to establish that at least one ground of appeal is not frivolous in order to meet the first criterion for release. [ 10 ] The threshold for this criterion is “very low” ( Oland , at para. 20 ). There need only be an “arguable basis” to the grounds of appeal ( R. v.

Price , 2022 NLCA 25 , 7 C.A.N.L.R. 500, at para. 9 ). [ 11 ] All three appellants have appealed on the basis that the trial judge erred in law when he dismissed their application for a judicial stay of proceedings based on a breach of their right to trial within a reasonable time, protected by

section 11(

b) of the Canadian Charter of Rights and Freedoms , because the proceedings had surpassed the threshold ceiling of 30 months established in R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631. [ 12 ] Specifically, the appellants allege that the judge did not use the proper timeline for determining the total amount of delay and that his oral reasons for dismissing the application are insufficient to allow appellate review. The appellants allege that the judge erred by deducting seven weeks of delay caused by discrete events of illness at the Crown office. Mr.

Johnson further alleges that the judge erred by deducting from the overall delay a 10-week period, which the judge attributed to the unavailability of Mr. Johnson’s counsel. Finally, the appellants all allege the judge improperly or insufficiently considered the complexity of the case. [ 13 ] The judge gave his decision on the

section 11(

b) application orally. In doing so, he said, “I’ll prepare a longer decision and make it available to the parties within the next couple of weeks” (Mr. Leonard’s Interlocutory Application, Tab 4, at 11). Unfortunately, the judge became ill before this was done. He later passed away. Another judge was assigned to the file and ultimately presided at the trial and sentencing. The result is that the judge’s reasons on the

section 11 (

b) application are shorter than those the judge had planned to release. [ 14 ] The appellants have filed caselaw in support of the errors they allege with respect to the

section 11(

b) application, including caselaw addressing the sufficiency of reasons and the availability of counsel. ( R. v. G.F. , 2021 SCC 20 ; R. v. Godin , 2009 SCC 26 , [2009] 2 S.C.R. 3; R. v. King , 2018 NLCA 66 , 3 C.A.N.L.R. 516; and R. v. Klassen , 2018 ABCA 258 ) [ 15 ] The Supreme Court of Canada has affirmed the Jordan ceiling numerous times since it was introduced in 2016. Most recently in R. v.

Hanan , 2023 SCC 12 , the Supreme Court confirmed that defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” ( Hanan , at para. 9 ; and Jordan , at para. 66 ). Relevant to the judge’s deduction of 10 weeks for the unavailability of Mr. Johnson’s lawyer, the Supreme Court also stated in Hanan that there is no “‘bright-line’ rule according to which all the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay” (para. 9). [ 16 ] Here the Crown submits that Mr.

Johnson’s argument with respect to the attribution of a 10-week delay because of his lawyer’s availability is a bit of a red herring, because the deduction for the illness of Crown counsel was sufficient to bring Mr. Johnson’s delay below the 30-month threshold. However, depending on the outcome with respect to the issue of Crown counsel’s illness, the merits of the deduction for Mr. Johnson’s lawyer’s unavailability may be important as that issue would affect how far from the threshold the delay in Mr. Johnson’s case was.

As the Crown noted, the judge also gave consideration to the trial’s complexity and his analysis in that regard may be relevant on appeal if other deductions do not bring the delay below the threshold. Mr. Johnson has raised arguments regarding the availability of disclosure and the availability of other counsel during this 10-week period that I am satisfied are well beyond being without merit. [ 17 ] With respect to the judge’s decision to deduct time during which Crown counsel was ill, I note that this issue was recently dealt with by the Alberta Court of Appeal in R. v. Ghraizi , 2022 ABCA 96 .

In Ghraizi , the Court of Appeal overturned a

summary conviction appeal judge and restored a stay of proceedings for delay. The Court of Appeal agreed with the trial judge’s decision not to deduct a period of delay for Crown counsel illness because, although it was an exceptional circumstance, that alone was not sufficient.

The Crown had to show that it took steps to mitigate the delay resulting from a discrete exceptional circumstance (see also Jordan , at para. 75 ). [ 18 ] The Crown acknowledges that the judge’s reasons did not specifically address mitigation, but she submits that the Crown mitigated at least some portion of the delay and that the judge’s reasons are sufficient to show that he considered the relatively brief delay to be reasonable.

She may ultimately be correct, but the judge’s reasons are sparce and at this early stage, I am satisfied that there is both a general legal plausibility and a foundation in the record for the appellants’ appeal of the

section 11(

b) decision. Further, I am satisfied that this ground of appeal clearly surpasses the minimal standard required to meet the “not frivolous” criterion. [ 19 ] Because I have found that at least one ground of appeal is not frivolous, I need not assess the other grounds of appeal raised.

B. Will the appellants surrender themselves into custody? [ 20 ] To meet this criterion, each appellant must establish that he will not flee the jurisdiction and will surrender into custody as required ( Oland , at para. 21 ). [ 21 ] The Crown acknowledges that this criterion is met for the three appellants. I agree. All three have attended court as required throughout their trials. All have established homes in Newfoundland and Labrador and significant ties to their communities. Further, all three have put forward release plans that include substantial cash deposits as security (Mr. Leonard: $45,000.00; Mr.

Johnson: $10,000.00 now and $22,000.00 more if his money currently deposited with the Supreme Court of Newfoundland and Labrador is released; and Mr. Curran: $20,000.00). I am satisfied that the appellants will surrender themselves into custody as required if released pending their appeals. C. Is detention necessary in the public interest? [ 22 ] There are two components to the public interest criterion: public safety and public confidence in the administration of justice ( Oland , at paras. 23, 26 ).

Public safety [ 23 ] The public safety component concerns whether detention is necessary for the protection or safety of the public having regard to all of the circumstances, such as the likelihood that the appellant will commit a criminal offence or interfere with the administration of justice, if released. [ 24 ] The Crown does not raise any concern with the public safety component. [ 25 ] Until he was remanded into custody following his sentencing on these charges, Mr. Leonard was on judicial interim release for seven years without any known breaches of his conditions.

He has a criminal record, but it is dated. [ 26 ] Mr. Curran is in a similar position. There were no known breaches of his conditions during the seven years he was on judicial interim release for these charges. He also has a dated criminal record. [ 27 ] Mr. Johnson did breach his release conditions, but he has not done so within the last five years and five months.

He also has a criminal record which reflects the breaches in 2017 and 2018 but with no offences since that time. [ 28 ] Given each appellant’s recent record of good behaviour and abiding by release conditions, I am satisfied that the risk to public safety of their release under conditions is low. Public confidence in the administration of justice [ 29 ] The public confidence component involves weighing two competing interests: (

i) the need to respect the general rule of the immediate enforceability of judgments; and (ii) society’s acknowledgement that our justice system is not perfect and that people who challenge the legality of their convictions are entitled to a meaningful review process.

This latter interest is often referred to as “reviewability” and it recognizes the inherent unfairness of requiring someone to serve all, or a significant part, of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful ( Oland , at para. 25 ). [ 30 ] The seriousness of the crimes being appealed from is an important consideration under the enforceability interest. Here, the appellants have been convicted of

Schedule I drug offences, and in the cases of Mr. Leonard and Mr. Johnson, offences involving organized crime. There is no doubt that these are serious crimes and this factor weighs in favour of continued detention. However, as already noted, I am satisfied that the appellants will surrender themselves to court as required and so, if they are not successful on their appeal, they will ultimately serve their sentences.

I have also assessed their risk of committing further crimes while released to be low, which means that the delay in them serving those sentences is not expected to increase the risk of criminality during the release period. [ 31 ] With respect to the reviewability factor, I have already assessed the merits of appeal with respect to the first criterion for release. I will not repeat the analysis, but I concluded that the appeal of the

section 11 (

b) decision has a foundation that well surpasses the “not frivolous” standard. This does not mean that the prospect of success on that ground of appeal is good. I do not have enough information before me now to determine that. The merits of the appeal will be determined by a panel of this Court after a full hearing. However, if the appellants are ultimately successful on this ground of appeal, and they establish a

section 11(

b) Charter breach, they may be entitled to a stay of proceedings. Appeals take time to prepare, hear, and decide. Even with the appeals proceeding expeditiously, if not released, the appellants would be expected to serve substantial portions of their sentences before their appeals are decided. [ 32 ] Balancing the enforceability interest against the reviewability interest, I am satisfied that the public confidence in the administration of justice is better served by releasing the appellants. Although they have been convicted of serious crimes, they have a right to meaningful appellant review of their convictions.

They have proposed good release plans, with substantial cash security, and they each have a strong recent history of compliance with court-imposed conditions and respect of court processes. DISPOSITION [ 33 ] Each of the appellants have demonstrated, on a balance of probabilities, that he meets each of the three statutory criteria found in section 679(3) of the Criminal Code . They will be released subject to conditions, including the cash security deposits. __________________________________ K.J. O’Brien J.A.