R. v. R.J.H., 2012 NLCA 27

Editor's Note: Corrigendum released on May 31, 2012. Original judgment has been corrected with text of corrigendum appended. Date: 201205 28 Docket: 12/09 Citation: R. v. R.J.H. , 2012 NLCA 27 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : R.J.H. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Wells J.A.

Court Appealed From: Supreme Court of Newfoundland & Labrador, Happy Valley/Goose Bay, 201008T0022 Application Heard: May 28, 2012 Judgment Rendered: May 28, 2012 Memorandum of Disposition filed: May 30, 2012 Counsel for the Appellant: Self Represented Counsel for the Respondent: Stephen Dawson MEMORANDUM OF DISPOSITION Wells J.A.: [ 1 ] Mr. R.J.H. was convicted in the Trial Division at Goose Bay on two counts of sexual assault ( subsection 671(1) (

a) of the Criminal Code ), and four counts of breach of probation (sub-

section 733.1(1) of the Criminal Code ). He was sentenced to 30 days on one sexual assault charge and 12 months consecutive on the other, thirty days consecutive on one of the breach of probation charges and thirty days on each of the other breach of probation charges to be served concurrently with the sentence imposed for the sexual assault

charge in respect of which it arose. [ 2 ] Mr. R.J.H. appeals the conviction and has been denied Legal Aid in respect of that appeal. The Crown has cross-appealed the sentence and Mr. R.J.H. has been provided Legal Aid counsel in respect of the cross-appeal. He applied for judicial interim release pending the hearing of his appeal. The only ground of appeal expressed in his notice of appeal is “I am not guilty”.

The Crown opposes judicial interim release. [ 3 ] When asked to explain the basis on which he was seeking bail he replied that “being incarcerated impairs my ability to conduct my appeal.” He further says that one of the witnesses lied at trial and he was in the process of getting proof of that but, with the limitations imposed by the prison authorities, he cannot do this while incarcerated.

He also says it is necessary for him to get out and get work so he can hire a lawyer to take his appeal. [ 4 ] The Court explained that bail could not be granted on the basis of the reasons he put forward, and explained the requirements of

section 679 of the Code . In particular, respecting the requirement that the appeal not be frivolous, it was emphasized that this would require him to demonstrate that his appeal was based on arguments sufficient to establish that there is at least a reasonable possibility that the Court, on hearing his appeal, could conclude that the trial judge made an error in finding him guilty of the offences. [ 5 ] His explanation of the grounds he proposed to put forward did not meet the standard required by

section 679 and he was advised judicial interim release could not be granted. Upon his arguing further that the actions of prison authorities made it very difficult for him to contact the persons necessary to enable him to gather the information, and to do the work, necessary to prepare for his appeal, and that he required the assistance of a lawyer, it was ordered, pursuant to subsection 10 of

section 679, that: 1. Crown counsel will ensure that, in a timely fashion: • Mr. R.J.H. is provided with a copy of the statement he gave to the police in relation to the subject matter of the conviction, and • either the computer equipment seized from Mr. R.J.H.’s home be returned to him or copies of the hard drives are made and provided to Mr. R.J.H., together with access to computer facilities sufficient to enable him to view the contents of the hard drives. 2. The transcript of the trial is to be completed without delay and a copy provided to Mr. R.J.H. immediately on completion. 3.

Responsible officials at the Labrador Correctional Centre shall ensure that all steps necessary to enable Mr. R.J.H. to prepare his appeal for presentation to the court are taken in a timely manner and, in particular, that • Mr. R.J.H. is made aware of the provisions of

section 684 of the Criminal Code and provided with an opportunity to make and present, without delay, any application that he might wish to make pursuant to that section; • Mr. R.J.H. is provided with access to such privacy as is reasonably available to enable him to review the transcript and prepare materials for submission to the court; • Mr. R.J.H. is provided with telephone access to such persons as may reasonably be necessary to enable him to prepare his appeal; and • Mr.

R.J.H. be provided with access to such telephone and facsimile facilities as may be necessary to enable him to prepare and file materials with the court, Crown counsel and Legal Aid counsel. 4. That the Deputy Registrar will provide a copy of this order to Legal Aid counsel representing Mr. R.J.H. on the Crown’s cross- appeal respecting sentence in order to facilitate coordination of the hearing of the cross-appeal, if required, immediately following hearing of the appeal against conviction. 5. That the Crown shall file its materials within seven days of receipt of Mr.

R.J.H.’s materials, and Legal Aid counsel shall file any materials responding to the Crown’s cross-appeal within seven days of the Crown filing, and the Deputy Registrar shall set a date for the hearing of the appeal at the earliest possible time thereafter. _________________________________ C.K. Wells J.A. Date: 20120528 Docket: 12/09 Citation: R. v. R.J.H. , 2012 NLCA 27, err1

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : R.J.H. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Wells J.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Happy Valley/Goose Bay, 201008T0022 Application Heard: May 28, 2012 Judgment Rendered: May 28, 2012 Memorandum of Disposition filed: May 30, 2012 Counsel for the Appellant: Self Represented Counsel for the Respondent: Stephen Dawson CORRIGENDUM [1] In paragraph [1], line 6, “consecutive to” should be replaced with “concurrently with the sentence imposed for”. ________________________ C.K. Wells, J.A.