R. v. MacLeod, 2012 MBCA 27

Citation: R. v. MacLeod, 2012 MBCA 27 Date: 20120315 Docket: AR 12-30-07736 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) D. V. Gunn HER MAJESTY THE QUEEN ) for the Applicant ) Respondent ) K. C. Eyrikson ) for the Respondent - and - ) ) Chambers motion heard and ) Decision pronounced: JUSTIN MILES MACLEOD ) February 29, 2012 ) (Accused) Applicant ) Written reasons: ) March 15, 2012 MARC M. MONNIN J.A. 1 The accused seeks judicial interim release pending appeal of convictions on charges of possessing an unregistered, defaced and loaded firearm.

He received a sentence of 42 months’ incarceration before the Provincial Court. He has filed a notice of appeal challenging the convictions and seeks to be released pending the hearing of that appeal. 2 The Crown sought, and I granted, leave to adduce further evidence in the form of an expert report and viva voce evidence on that report. The expert was cross-examined by defence counsel. 3 After submissions of counsel, I denied the request for judicial interim release but ordered an expedited appeal. The matter has been set down for hearing on May 7, 2012.

I indicated at the hearing that I would provide short written reasons, which I am now doing. 4 The charges against the accused arise from a search conducted at his home. Police received information suggesting to them that a handgun would be located in a certain location at the rear of the house. Upon execution of a search warrant, they found the handgun buried three inches under the snow in a dog run located at the rear of the house and occupied by a large dog.

The handgun was found wrapped in plastic, approximately one foot from the edge of the closest fence. 5 The issue at trial was whether the accused could be said to be in possession of the gun that was found on the property, but not within the residence.

The Provincial Court judge, acknowledging that occupancy alone was not enough to establish knowledge of the presence of the handgun, found however that knowledge of the presence of the handgun could be inferred from the totality of the circumstances, including its location, the manner in which it was wrapped and the difficulty of accessing it given the presence of the dog. She convicted both the accused and another resident of the premises. She sentenced the accused to 42 months, with credit for time served. The co-accused remains to be sentenced.

The accused does not appeal the sentence. 6 Under s. 679(3) of the Criminal Code (the Code ), the accused may be released pending the determination of his appeal if he establishes:

a) the appeal is not frivolous;

b) he will surrender himself into custody; and

c) his detention is not necessary in the public interest. Analysis 7 In his notice of appeal, supplemented by his submissions, accused’s counsel argues that the learned trial judge misapprehended the evidence and erred in law in finding that the Crown had proven its case. In his forceful submission, counsel for the

accused argues that there is a strong likelihood that the decision will be overturned upon appeal. 8 Without acceding to that view, I nevertheless agree that the appeal is not frivolous and that the accused has met the first part of the test. 9 As to the issue of whether he will surrender himself, I note that he was on bail for a substantial period of time pending his trial and there is nothing in his background which would suggest that he has not respected court orders in the past.

I am satisfied that he would present himself when necessary. 10 The main issue on this application is the public interest, which has been recognized to include issues of “ public safety.” The Crown’s position, while not relevant for the appeal, but, in my view, relevant upon this type of application, is that the accused is a high-ranking member of the Redlined, a puppet organization of the Hells Angels.

At the Crown’s request, I allowed the presentation of evidence for the purpose of this application in the form of an expert report prepared by a detective of the Winnipeg Police Service, currently a member of the Organized Crime Unit, and allowed him to testify as to the background of the Redlined and to give an opinion as to the accused’s involvement. 11 The expert, after reviewing the history of the Hells Angels’ activities in Manitoba and the current members of its organization currently involved in gang activities in Manitoba, opined that the accused was a member of the Redlined, “a Friend Club” of the Hells Angels. 12 Accused’s counsel argues that one cannot rely upon the opinion evidence of the expert as it is based upon hearsay and not capable of direct challenge.

At best, he says, there is indication that the accused has some affiliations with individuals who may be associated with the Redlined, but there is no evidence of him having any direct involvement. 13 Considerations on an application for judicial interim release are different than those at a trial. I am not here asked to decide whether the evidence presented satisfies me beyond a reasonable doubt that the Redlined is a criminal organization according to the provisions of the Code .

However, I can certainly take into account evidence of this nature for the purposes of determining whether participation in an organization such as the Redlined, may place the accused at a greater risk of involvement in activities inimical to public safety. I can also take into consideration the ongoing activities, or “gang wars,” between the Hells Angels and its supporters and the Rock Machine, another gang in the City of Winnipeg, which raise concerns of public safety. 14 The accused does not come here with the presumption of innocence.

He has been convicted of an offence, the nature of which may be tied with gang activities. I have not reached the conclusion that it is so, but as indicated, on this type of application it is a consideration which I must keep in mind. I am of the view that his continued detention is necessary in the public interest. 15 For these reasons, I am dismissin g the application for judicial interim release. J.A.