R. v. H, 2012 NLCA 30

Date: 20120607 Docket: 12/09 Citation: R. v. H . 2012 NLCA 30

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : R.J.H. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT/APPLICANT Coram: Green C.J.N.L., Welsh and Rowe JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (

G) Happy Valley/Goose Bay, 201008T0022 Application Heard: June 6, 2012 Decision Rendered: June 6, 2012 Memorandum of Disposition Filed: June 7, 2012 Appellant represented himself Counsel for the Respondent: Stephen Dawson MEMORANDUM OF DISPOSITION

Green C.J.N.L.: [1] The Crown applied, pursuant to s. 680 of the Criminal Code, for a review of a portion of a decision of Wells J.A. of thisCourt which had denied the appellant judicial interim release, pending his appeal. The application for review was limited to a request forvariation of a condition imposed pursuant to s. 679(10) of the Code. [2] Under s. 680, the Chief Justice must, as a preliminary step, consider whether to direct that a review be undertaken. Idetermined that such a review should occur because it could not be said, within in R. v. Allen, 2001 NFCA 44, 158 C.C.C. (3d) 225 andR. v.

A.J.B. (1991), (NL CA), 97 Nfld. & P.E.I.R. 76 (NFCa) that there was “no hope of success” on, or “no point” to,the review. The matter was set to be heard by a panel of the Court. [3] The original decision of Wells J.A. (2012 NLCA 27), though denying judicial interim release, imposed a number ofconditions to expedite the hearing of the appeal.

One of those conditions read: Crown counsel will ensure that, in a timely fashion: … Either the computer equipment seized from [the appellant’s] home be returned to him or copies of the hard drives are made and providedto [the appellant], together with access to computer facilities sufficient to enable him to view the contents of the hard drives. [4] On the application for review, the Crown contended that it would not be able to return the computer equipment or providecopies of the hard drives to the appellant without effectively aiding and abetting the commission of a further offence by the appellantbecause it had been discovered that the computer contained what was believed to be child pornography.

Counsel therefore submitted thatthe condition in question be varied to allow it to be satisfied by copying and providing to the appellant selected portions that did notcontain the offending material. [5] The appellant took issue with the suggestion that there was child pornography on the computer that had been seized from him(a Toshiba) and insisted instead that the police may have confused another computer (an Acer) belonging to another witness in the casewith his.

Through discussion, it became apparent that the appellant in any event only really required, for the purpose of assisting him inpreparation for his appeal, access to chat logs that were stored on his computer.

Counsel for the Crown confirmed that providing copiesof that material could be easily accomplished within 24 hours. [6] Accordingly, on consent, the Court ordered that the order of Wells J.A. made on May 28, 2012 be varied by deleting thecondition in question and substituting the following: Crown counsel will ensure that, in a timely fashion: … Electronic copies of all chat logs found on the Toshiba computer seized from the appellant be provided to the appellant together with anaffidavit verifying the foregoing and together with access to computer facilities sufficient to enable him to view that material. [7] Counsel for the Crown is hereby requested to take all necessary steps to expedite the transfer of the computer information tothe appellant and to liaise with the Labrador Correctional Centre to ensure that arrangements are made expeditiously to enable theappellant to access the necessary computer facilities to view the material.

J. D. Green C.J.N.L.