R. v. Rodrigues, 2022 NLSC 145

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Rodrigues , 2022 NLSC 145 Date : October 07, 2022 Docket : 202204G0178 Jose Rodrigues v. his majesty the king Before: Justice George L. Murphy Reasons for Judgment Given Orally On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 1321A00708 dated the 20th day of June, 2022. Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: September 26 – 28, 2022 Date of Oral Judgment: October 04, 2022

Summary: The Court granted the application of the Appellant for release pending the determination of his appeal from a sentence imposed on him in the Provincial Court of Newfoundland and Labrador. Appearances:

Brenda Duffy, K.C. Appearing on behalf of His Majesty The King Shelley A. Senior, K.C. Appearing on behalf of Jose Rodrigues Authorities Cited: CASES CONSIDERED: R. v. Follett (1992), (NL SC), 101 Nfld. & P.E.I.R. 243, 17 W.C.B. (2d) 491 (Nfld. S.C.(T.D.)); R. v. Basha (2002), (NL SC), 221 Nfld. & P.E.I.R. 315, 57 W.C.B. (2d) 298 (Nfld. S.C. (T.D.)); Barry Oakev. Her Majesty the Queen, 2008 NLCA 68; and R. v. Oland, 2017 SCC 17 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] Jose Rodrigues pled guilty in Provincial Court to one count of accessing child pornography contrary to

section 163.1(4.1) ofthe Criminal Code, R.S.C. 1985, c. C-46. He was sentenced to a period of six months’ incarceration followed by twelve months ofprobation. Mr. Rodrigues has appealed his sentence and has applied under

section 816 of the Criminal Code seeking release fromcustody pending the determination of his appeal. legal test [2] In the case of sentence appeals in respect of indictable offences, which are governed by

Part XXI of the Criminal Code, thereis a specific provision, namely section 679(4) which deals with release pending determination of the appeal. It provides: 679(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 be releasedpending the determination of his appeal or until otherwise ordered by a judge of the court of appeal if the appellant establishes that (

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. [3] The appeal in this case is a

summary conviction appeal brought pursuant to

section 813 of the Criminal Code and the issue ofrelease pending such an appeal is governed by

section 816 of the Criminal Code. These sections provide: 813 Except where otherwise provided by law, (

a) the defendant in proceedings under this Part may appeal to the appeal court (

i) from a conviction or order made against him, (ii) against a sentence passed on him, or (iii) against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder; and (

b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court (

i) from an order that stays proceedings on an information or dismisses an information, (ii) against a sentence passed on a defendant, or (iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial,

and the Attorney General of Canada or his agent has the same rights of appeal in proceedings instituted at the instance of theGovernment of Canada and conducted by or on behalf of that Government as the Attorney General of a province or his agent has underthis paragraph. 816

(1) A person who was the defendant in proceedings before a

summary conviction court and who is an appellant under

section 813shall, if they are in custody, remain in custody unless the appeal court at which the appeal is to be heard makes a release order referred toin

section 515, the form of which may be adapted to suit the circumstances, which must include the condition that the person surrenderthemselves into custody in accordance with the order. Release of appellant

(1.1) The person having the custody of the appellant shall, if the appellant complies with the order, immediately release the appellant. Applicable provisions

(2) Sections 495.1, 512.3 and 524 apply, with any modifications that the circumstances require, in respect of any proceedings under thissection. [4] As can be seen from the wording of these sections, there is no prescribed test dealing with release pending determination of asentence appeal in respect of a

summary conviction offence as there is for such an appeal in respect of an indictable offence. [5] The absence of a prescribed test governing release pending the determination of an appeal under

section 813 in respect of asummary conviction offence has been considered in a number of previous decisions from this province. [6] In R. v. Follett (1992), (NL SC), 101 Nfld. & P.E.I.R. 243, 17 W.C.B. (2d) 491 (Nfld. S.C. (T.D.)), Green,J. (as he then was) refused to follow a line of cases which held that the legal test applicable in respect of appeals from indictable offencesshould be applied in respect of appeals from

summary conviction offences. After reviewing some of the different circumstancesapplicable to

summary conviction appellants, Green, J. said at paragraphs 14 – 17: [14] Accordingly, I believe that in not enacting guidelines to follow in s. 816, Parliament has given the appeal court judge a greaterlatitude to make determinations respecting release pending appeal from

summary convictions than in cases of appeals respectingindictable offences. [15] In my view, the indictable appeal criterion in s. 679(4)(

a) that the appeal must have “sufficient merit” so that it wouldcause unnecessary hardship if the appellant were detained in custody, is too high. That sort of requirement appears to be tied up with therequirement in appeals from indictable sentences (which is not applicable in

summary conviction appeals) that the appellant must obtainleave to appeal. In

summary conviction appeals, the appellant has an automatic right to appeal from sentence. I conclude therefore thatthe only thing that has to be apparent, in terms of the merits of the appeal, is that the appeal is not completely frivolous. I agree with thesecond criterion set out in s. 679(4)(

b) that the court must be satisfied that the appellant must surrender himself into custody whenrequired to do so. I see nothing wrong, however, in the court presuming that the appellant will comply with the law unless there arecircumstances either in the appellant’s past history or otherwise which indicate to the contrary. Finally, with respect to the criterion in s.679(4)(

c) that the detention must not be necessary in the public interest, I note that in indictable appeals it is generally recognized thatthe judge has a wide and unfettered discretion to determine what constitutes the public interest and that “public interest” has been given acomprehensive meaning to include anything which may detrimentally affect the public confidence and respect in the courts: R. v.Demyen (1975), (SK CA), 26 C.C.C.(2d) 324 (Sask. C.A.). In

summary conviction appeals, in my view, theoverriding consideration with respect to the public interest is whether or not the

summary conviction appeal would be rendered nugatoryif the appellant were to remain in custody pending the hearing of his appeal. To that extent public confidence in the justice of the systemand the respect of the particular offender for the justice of the system would be seriously undermined.

Beyond that, however, I believeconsiderations as to public interest should be less emphasized, except, of course, where there are indications of a potential danger to thepublic. [16] Accordingly, in my view, so long as it is not apparent on the face of the appeal documents that the appeal is completelyfrivolous and so long as there is nothing to indicate that the appellant will not surrender himself into custody when required to do so, inthe event of an unsuccessful appeal, and in the meantime will not be a danger to the public the appellant should be prima facie entitled torelease pending his appeal.

It is to be noted that s. 816 does not specifically place the onus on the appellant (unlike s. 679, which requiresthe appellant to “establish” the criteria set out therein). All that s. 816 says is that the appellant shall remain in custody unless the appealcourt orders that he be released. This, as I indicated this morning, could be simply designed to make it clear that the filing of a notice ofappeal does not stay the original sentence and that before release can be affected, a

summary conviction appeal court judge has to reviewthe matter and consider all of the circumstances. I recognize that Borins, Co. Ct. J., in the Simpson case expressed the view that s. 816was not to be interpreted as providing for an automatic release because, as he reasoned, if that were so the

section would be renderedalmost meaningless. I agree; however, to say that the judge has a discretion to determine whether release should be granted is not thesame as to say that there is a particular onus on the appellant to establish a set of specific criteria which are not set out in the Code. All

that can be said, therefore, is that when an application for release pending appeal is made, the appeal court judge must look at all of thecircumstances and in his discretion applying the minimal standards that I have indicated, decide whether or not release is appropriate. Inote as well that in a decision of the Prince Edward Island Supreme Court in R. v.

Wells (R.) (1989), (PE SCTD), 79Nfld. & P.E.I.R. 28; 246 A.P.R. 28(P.E.I.T.D.), MacDonald, C.J.T.D., commented that because s. 679 has not been made applicable tosummary conviction appeals it must be assumed that the strictness of s. 679 is not to be considered. In that case the court merely used thematters set forth in s. 679 as a “general guideline” in considering the accused’s application. [17] Accordingly, I conclude that on an application for release pending a

summary conviction appeal, the

summary convictionappeal court should, after considering the circumstances presented by the appellant and by the respondent and, giving consideration towhether or not the appeal is completely frivolous, and whether or not it is likely the appellant will surrender himself into custody whenrequired to do so and whether or not the failure to release the appellant might render his ultimate appeal nugatory, should be disposed togrant a release order absent any other special circumstances indicating the contrary. [7] LeBlanc, J. also dealt with this same issue in R. v.

Basha (2002), (NL SC), 221 Nfld. & P.E.I.R. 315, 57W.C.B. (2d) 298 (Nfld. S.C. (T.D.)). After reviewing the decision of Green, J. in Follett and cases which had found that the criteria insection 679(4) could be applied as well in the case of

summary conviction appeals, he said at paragraphs 12 – 14: 12 Where I tend to differ from the Follett case is in the emphasis to be placed on the public interest in such cases. Green J. suggested thatthe overriding consideration with respect to such appeals is whether the appeal would be rendered nugatory or ineffectual if the appellantremains in custody.

While he goes on to state that other considerations such as to the public interest should be less emphasized exceptwhere there are indications of potential danger to the public, I am not satisfied that these other considerations, including the publicinterest, should in fact be less emphasized. As was recognized by Green J. in Follett, public safety concerns must be carefully consideredeven over and above the question as to whether or not the appeal is rendered nugatory by the continued detention of the appellant.

Aswell, in my opinion, the public's confidence in the criminal justice system also bears equal consideration. While what is in the publicinterest is not subject to certain and accurate description at all times (see R. v. Morales, (SCC), [1992] 3 S.C.R. 711(S.C.C.)), there is no infringement on the appellant's rights to consider the public interest as s. 11(

e) of the Charter does not apply to therelease of the appellant pending appeal (see R. v. Farinacci (1993), (ON CA), 25 C.R. (4th) 350 (Ont. Ct.), and R. v.Branco (1993), (BC CA), 25 C.R. (4th) 370 (B.C.C.A.)). Furthermore, as held recently by the Supreme Court ofCanada in R. v. Hall, 2002 SCC 64 , [2002] S.C.J. No. 65, the object of maintaining confidence in the administration of justiceis a proper consideration even where the presumption of innocence applies, which, as I noted earlier, is not the situation on an appealapplication. 13 While, as Green J. put it in Follett, a more "liberal" test towards release is to be applied in applications involving release pendingappeal in

summary conviction matters than in the case of indictable appeals, it is my view that the release of the appellant is an issuewhich must be carefully considered taking into account issues of possible flight as well as the public interest, including public confidencein the criminal justice system. Due to changes to the Criminal Code related to the expansion of the number of dual procedure offencesand longer terms of potential imprisonment and higher fines on conviction, offences of a

summary nature are not necessarily in allsituations less serious or of a minor nature. In fact, this is one of those cases where the offences can properly be considered as serious. 14 Therefore, I am of the opinion that the following propositions or criteria should be applied when considering an application forrelease pending determination of a

summary conviction appeal: 1.

The appellant has the onus to show that he/she should be released pending appeal by: (a)putting forth sufficient grounds to show that the appeal is not frivolous; (b)putting before the appeal court sufficient evidence to show that he or she will surrender himself or herself as provided by the court'sorder; and (c)placing before the appeal court the necessary facts for the judge to decide that the appellant's release will not represent a danger to thepublic and that release pending the determination of the appeal will not be detrimental to the reasonable public's confidence in thecriminal justice system based upon the particular circumstances of the case and of the appellant. 2.

The appeal court shall exercise its discretion to release the accused where possible considering the previously referred to criteria andso as to avoid a situation where the appeal would be rendered nugatory by the appellant's continued detention. 3. The onus is on the appellant to establish these matters and that onus is on a balance of probabilities. [8] The Crown argues that the decision of Welsh, J.A. in Barry Oake v. Her Majesty the Queen, 2008 NLCA 68 establishes theapplicable test to be applied when considering an application for release pending the determination of a

summary conviction appeal. Mr.Oake had appealed the sentence imposed on him in Provincial Court on certain

summary conviction offences directly to the Court ofAppeal pursuant to

section 830 of the Criminal Code. On the issue of the criteria to be considered in assessing an application for interimrelease, counsel for Mr. Oake had referred to section 679(3) of the Criminal Code. Welsh, J.A. noted that the criteria in section 679(3)applied where there was an appeal from conviction and she went on to say at paragraph 7: 7 . . . In the absence of submissions to the contrary, it seems to me that the relevant provision would be section 679(4) which deals with

release pending an appeal as to sentence. I note that, while two of the factors in sections 679(3) and (4) are the same, the remaining factor sets a higher standard in respect of release pending a sentence appeal. Again, this issue was not canvassed by counsel, and must, therefore, be deferred to another day. However, in the circumstances of the case before this Court, I am satisfied that the more stringent requirements enumerated in section 679(4) are satisfied. Those factors are: (

a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if [Oake] were detained in custody; (b) [Oake] will surrender himself into custody in accordance with the terms of the order; and (c) [Oake's] detention is not necessary in the public interest. [ 9 ] I do not read Welsh, J.A.’s comments as a direction by her that the criteria set out in section 679(4) of the Criminal Code apply when considering the issue of release pending determination of an appeal for all

summary conviction appeals. Instead, in my view, Welsh, J.A. was merely pointing out that in respect of appeals to the Court of Appeal from sentence, it was section 679(4) as opposed to 679(3) of the Criminal Code that was applicable. [ 10 ] It is significant, in my view, that the appeal in Oake was brought directly to the Court of Appeal pursuant to

section 830 of the Criminal Code . It was not an appeal under

section 813 of the Criminal Code . As such,

section 816 would not have been applicable to the application for release as its wording indicates that it applies only to appeals taken under

section 813 of the Code . [ 11 ]

Section 679 on the other hand does not have language that limits its applicability to appeals brought pursuant to a certain Criminal Code provision. Instead, it applies in the case of appeals to the Court of Appeal as indicated by section 679(1) which states: 679

(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, (

a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to

section 678; (

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

c) in the case of an appeal or an application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, where leave is required, his application for leave to appeal. [ 12 ] This would seemingly include both appeals in respect of indictable offences made under

section 675 of the Criminal Code and direct appeals to the Court of Appeal pursuant to

section 830 of the Criminal Code in respect of

summary conviction offences which was the situation before Welsh, J.A. in Oake . [ 13 ] Admittedly I have difficulty understanding why the legal test to be applied on an application for release pending determination of a

summary conviction appeal should be different depending on if the application is heard in this Court sitting as an appeal court or the Court of Appeal; however, that, in my view, is the combined effect of the wording of sections 679 , 816 and 830 of the Criminal Code . In any event, it is my conclusion that the comments of Welsh, J.A. apply only in respect of appeals to the Court of Appeal.

She was merely pointing out that in respect of sentence appeals to the Court of Appeal it was section 679(4) that applied to applications for release pending determination of the appeal while for such applications in the case of conviction appeals, section 679(3) was applicable. [ 14 ] Thus, I do not accept the argument of the Crown based on Oake that the test outlined in section 679(4) of the Criminal Code applies to applications to this Court under

section 816 of the Criminal Code for release pending the determination of a

summary conviction sentence appeal. Instead, it is my view that the test outlined by LeBlanc, J. in Basha , which I referred to earlier, outlines the correct approach in respect of

summary conviction sentence appeals to this Court. [ 15 ] The Crown opposed Mr. Rodrigues’ application solely on the basis of the strength of his appeal. It argued that an examination of the grounds of appeal in light of the decision of the sentencing judge should lead the Court to conclude that this case did not meet the “sufficient merit” test set forth in section 679(4) (

a) of the Criminal Code . As I noted earlier, I do not accept that section 679(4) applies here and therefore do not agree that the “sufficient merit” test is applicable. Instead, my view is that the lower bar provided for in the “not frivolous” test applies. [ 16 ] I will move on to examine whether the facts of this case meet the “not frivolous” test. There is little doubt that counsel for Mr. Rodrigues could have taken greater care in outlining the grounds of appeal rather than stating them in very general terms.

The essence of the grounds of appeal set forth in the Notice of Appeal were that the sentencing judge erred by: a. failing to consider the Appellant’s considerable mitigating circumstances; and b. imposing a demonstrably unfit sentence in light of the facts constituting the offence and the circumstances of the Appellant. [ 17 ] Counsel for the Appellant clarified when questioned by the Court at the hearing of the application that one of her arguments on the appeal would be that the significant mitigating circumstances of this case were such that the sentencing judge ought to have imposed a conditional sentence as opposed to incarceration.

This argument was certainly not apparent from a review of the Notice of Appeal and

the grounds of appeal outlined therein. Counsel for the Appellant also advised the Court that her other primary argument would be that the period of incarceration imposed was too long given the significant mitigating circumstances. [ 18 ] On the application there was very little put before me against which to assess the grounds of appeal. I was provided with the decision of the sentencing judge and some limited case law. An appellant bears the onus of proof to the civil standard and must put before a court sufficient information to allow a judge to assess whether the applicable criteria for release have been met.

In terms of the criterion which examines the merit of the appeal and the argument in this case that the sentence imposed was too high, I would have expected that counsel would point the Court to case law supporting that argument; however, that did not occur. If this were the sole ground of appeal, it might not even meet the “not frivolous” test based on the record before me.

It is not necessary for me to decide that as will be seen shortly. [ 19 ] While it was only during argument on the application that this became apparent, I am prepared to consider when deciding the application that one of the arguments on appeal will be that a conditional sentence ought to have been imposed. The circumstances of the offence here were less egregious than all but one of the sentencing precedents relied on by the sentencing judge and there were significant other mitigating circumstances of the Appellant including, in particular, how the offence came to the attention of the police.

There was also case law put before the Court on this application which would support a conditional sentence for an offence such as that for which the Appellant was convicted where there are exceptional circumstances. Considering the foregoing, it is my conclusion that this argument meets the “not frivolous” threshold. [ 20 ] In terms of the second of the criteria outlined by LeBlanc, J., counsel for Mr.

Rodrigues argued that the fact he had no prior record and that there had been no issue with his compliance with his Undertaking that he was placed on after being charged with the subject offence should satisfy the Court that he would surrender himself if necessary as provided for in an order of the Court. The Crown did not argue there was any concern regarding the Appellant with this second criteria.

Based on the evidence, I am satisfied that there is no concern that the Appellant will not surrender himself as provided by the Court’s order. [ 21 ] In terms of the third of the criteria outlined in Basha , in my view, it involves considerations similar to the public interest factor set forth in section 679(3) (

c) of the Criminal Code which was considered by the Supreme Court of Canada in R. v. Oland , 2017 SCC 17 . The Supreme Court of Canada confirmed that the public interest criterion in section 679(3) (

c) consisted of two components, namely public safety and public confidence in the administration of justice. In terms of public confidence in the administration of justice, the Court found that the factors outlined in

section 515(10(

c) for assessing public confidence in the pre-trial context were useful in assessing the public confidence component on applications for release pending appeal provided that such factors were modified to take into account the different considerations in assessing bail pending trial versus release pending appeal. [ 22 ] The Court in Oland also set forth the standard to be applied in evaluating the various factors that inform public confidence.

At paragraph 47, the Court said: [47] Appellate judges are undoubtedly required to draw on their legal expertise and experience in evaluating the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks. However, when conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public.

This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values: R. v. St-Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328, at paras. 74-80 . In that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not. [ 23 ] In assessing this third criterion, I am satisfied that there would be no public safety concern arising from the release of the Appellant.

I base this conclusion on the fact that the Appellant has no prior record other than for the subject offence and there was no issue with him complying with his Undertaking referred to earlier. In terms of public confidence, there is no doubt that the offence to which the Appellant plead guilty is a serious one; however, in terms of the range of conduct covered by the offence, the facts of this case are significantly less serious than most of the reported cases which I have reviewed, including all but one of those relied on by the sentencing judge.

There are also some very significant mitigating factors present in this case. Further, the Appellant has already served over three months of the six month sentence imposed on him. There is no doubt that his sentence would be long served even if he had to serve the full six months by the time his appeal is heard thus rending his appeal nugatory if successful. The strength of the grounds of appeal also comes into play here; however, all I am prepared to say on that issue at this point is that the argument regarding the conditional sentence is not frivolous.

When I balance all of these factors and measure them through the eyes of a reasonable member of the public, it is my determination that the public interest favours release. conclusion [ 24 ] The application of Mr. Rodrigues under

section 816 of the Criminal Code is granted and he shall be released from custody pending the determination of his appeal subject to the following conditions: a. Keep the peace and be of good behaviour. b. Remain within the territorial jurisdiction of the province of Newfoundland and Labrador. c. On release he shall reside at 15 Mount Bernard Avenue, Corner Brook, NL. d. Notify the R.C.M.P. by telephone or in person of any change in his place of residence, employment or occupation and such notification shall be given at least 24 hours in advance of any such change. e.

Not use the internet except for purposes of online banking. f. Surrender yourself into custody to complete the sentence imposed on you should your appeal be dismissed or if otherwise ordered by the Court.

_____________________________ George L. Murphy Justice