R. v. A.M., 2012 NLCA 49

Date: 20120727 Docket: 12/41 Citation: R. v. A.M. , 2012 NLCA 49

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: A.M. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Harrington J.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General), 201104G0079 Application Heard: July 26, 2012 Decision Rendered: July 27 2012 (Orally) Memorandum of Disposition Filed: July 30, 2012 Counsel for the Appellant: Lori Marshall Counsel for the Respondent: Robin Fowler MEMORANDUM OF DISPOSITION

Harrington J.A.: BACKGROUND [ 1 ] The appellant (A.M.) who is 34 years of age seeks judicial release pending appeal under subsection 679(3) of the Criminal Code . On April 16, 2012, A.M. was convicted of two counts of sexual interference against J.W. and N.W., minor children, and two counts of uttering threats to cause death to them. At the time of the offences, N.W. was between four and five years old and J.W. was between 11 and 20 months old.

Two charges of sexual assault were stayed and an acquittal was entered on a charge of assault. [ 2 ] The convictions were primarily based on the testimony of N.W. who was nine years, eleven months old at the time of the trial. All offences are alleged to have occurred in a community in Newfoundland in 2007 while the appellant was involved in a common law relationship with C.W., mother of the minor children. The charges were not laid until 2010. On May 30, 2012 the appellant was sentenced to 27 months of incarceration for the four offences for which he was convicted.

At the hearing date of this application the appellant had already served approximately 17 months in custody at Her Majesty’s Penitentiary in St. John’s. [ 3 ] On the basis of the appellant’s prior criminal record which includes a history of outstanding warrants for the appellant’s arrest in both Alberta and Nova Scotia, the appellant’s application for pre-trial release was denied.

The appellant’s criminal record is a Crown exhibit in this application. [ 4 ] The Crown also contends that the serious nature of the offences for which A.M. was convicted combined with the pre-trial denial of bail based on his record including outstanding charges in other provinces for failures to attend court support the position that the judicial interim release should not be granted at this stage. [ 5 ] Appellant’s counsel submits that the appeal has substance since the credibility and reliability of the evidence of the complainant N.W. is the primary issue as it was at trial.

She points to the finding of the trial judge that certain allegations of sexual assault by N.W. were dismissed at trial in light of certain inconsistencies in the complainant’s evidence.

The appellant further submits that the trial judge did not give proper weight to the lack of recollection by N.W. at trial of having given two prior police statements at different times and significant inconsistencies which are alleged to exist when comparing the two statements. [ 6 ] Another ground of appeal is that the trial judge provided insufficient reasons to reconcile the acknowledged inconsistencies between N.W.’s evidence and the evidence of his mother with his acceptance of their evidence in respect of the offences for which the appellant was convicted. APPLICABLE LAW [ 7 ]

Section 679 of the Criminal Code provides for release pending determination of an appeal of conviction and/or sentence where the circumstances set out in subsection 679(3) are met. The subsection states:

(3) In the case of an appeal referred to in paragraph (1)(a) … [appeal against conviction], the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (

a) the appeal or application for leave to appeal is not frivolous, (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. ANALYSIS (

i) Is the appeal frivolous? [ 8 ] Consistent with the expiration of the presumption of innocence in light of the convictions entered against the appellant, the onus is on A.M. of establishing, on a balance of probabilities, the criteria for release under subsection 679(3) . The initial ground to be established by A.M. is that the appeal is not frivolous. [ 9 ] In his reasons, the trial judge held that the complainant N.W. who was the primary Crown witness was “generally a credible witness”.

He referred to certain inconsistencies between his evidence and that of his mother which led the trial judge to conclude that reasonable doubt had been established with regard to certain of the serious allegations against the appellant.

The appellant has also raised the delay in reporting the offences by C.W. to the authorities as a matter of prejudice to him. [ 10 ] There is also an issue raised as to whether the trial judge provided sufficient reasons to explain why the evidence of N.W. was credible and reliable given that he acknowledged inconsistencies with respect to certain evidence of N.W. in relation to that of his mother and with respect to two statements given by N.W. to the police. [ 11 ] The Crown concedes that the appeal is not frivolous.

Even without the Crown’s concession, I am satisfied that the appellant’s submission has established that the appeal is not frivolous and sets out substantive grounds of appeal for this Court to consider. (ii) Will the appellant surrender into custody? [ 12 ] The second ground under subsection 679(3)(

b) raises the issue of whether the appellant will surrender into custody. This is a reflection of the primary ground found under section 515(10) (

a) of the Criminal Code for pre-trial release. In Gary Trotter, The Law of

Bail in Canada, 3d ed. (Toronto: Carswell, 2010) the author comments at page 10-1: … In assessing whether the applicant will flee and fail to surrender into custody prior to hearing of the appeal, the fact that the appellanthas been found guilty may be significant. Also, just as the apparent strength of the case against an accused person is relevant to theapplication of the primary ground at the pre-trial phase of the process, the likelihood of success on appeal is an important consideration. Moreover, the applicant’s pre-trial release status is significant in this context.

While not determinative, if an accused was denied bailprior to trial, at a time when the presumption of innocence was operative, it ought to reduce his/her chances of obtaining release pendingappeal. … Thus, at this stage, the applicant must be prepared to demonstrate sufficient roots in the community, perhaps to a greaterextent than at the pre-trial stage. (Emphasis added.) [13] At the time of his arrest and detention in 2010, the appellant was engaged in a common law relationship with a woman and wasliving at her residence.

In her affidavit, R.W. confirmed that she has known the applicant for six years and has been in a committedrelationship with him for approximately five years. She has also confirmed her intention to have the appellant resume cohabitation withher if he is released pending disposition of this appeal and after he has served his sentences. [14] The appellant also relies on his work history since returning to this Province in 2006 and the continuing promise of employmentafter release by his former employer.

At the time of his arrest the appellant was employed as a drywall and insulation installer by acontractor who has been supportive of him since his original arrest and detention. Consistent with his position at the pre-trial bailapplication which was dismissed, this employer continues to be willing to provide a cash surety and full- time employment for A.M. ifand when he is released.

He confirmed in his direct evidence and on cross-examination that he considers the appellant to be a diligent,reliable and honest tradesman. [15] The Crown contends that A.M.’s criminal record which includes four outstanding arrest warrants for failure to attend court,with the most recent one issued in 2006 in the Province of Alberta, should militate against a finding that the requirement in subsection679(3)(

b) has been met. Counsel submits that since he returned to this Province in 2006 and prior to his arrest A.M. had not beenpursued by authorities in Alberta and Nova Scotia regarding the outstanding charges and this conveyed a message that he had nointention to plead guilty to any of the alleged offences.

The Crown criticizes A.M.’s failure to return to these provinces to deal with theoutstanding warrants and suggests that this reflects poorly on his submission that he has sufficient roots in the community so as not topose a continuing flight risk. [16] While A.M. has a somewhat lengthy criminal record for offences committed in his mid to late twenties, the circumstances of thelast arrest warrant for failure to attend court which was issued in 2006 are rather murky since the complainant who alleged a physicalassault was the same person who the appellant testified on this application had paid his airline fare to return to this province. [17] I reject the Crown’s submissions that there is no assurance that the appellant will remain in the Province pending his appeal ifhe is granted interim release.

Crown counsel submits that the appellant’s girlfriend R.W. with whom he would resume cohabitationsuffers from a serious heart condition which could jeopardize whether he will have a place of residence during interim release. Theevidence before the Court is that the appellant’s relationship with R.W. began five years ago and remains intact despite his convictionand incarceration.

She remains committed to him and while her heart condition prohibited her from testifying in court on the pre-trialbail hearing, there is no medical evidence that her life is in any immediate jeopardy. [18] The Crown also argues that the appellant’s employer who will also act as surety has no personal relationship with him and thuswill have no influence on whether the appellant will remain in the jurisdiction. The evidence at this hearing from A.M.’s employer oncross-examination, however, is that he remains committed to employ A.M. notwithstanding the convictions and to act as a cash surety forthe appellant.

I do not consider it to be material that the employer has no personal relationship with A.M. outside of the work place. What is significant is that he considers A.M. to be a reliable and skilled tradesman who he is prepared to rely on for jobsite supervisionof a work crew in his absence. [19] The Crown argues that A.M. has had two previous relationships which appears to have collapsed in a violent fashion instigatedby A.M. These incidents occurred more than five years ago when A.M. has admitted to serious alcohol and drug abuse problems.

A.M.says he does not consume prescription or non-prescription drugs and he had refrained from the consumption of alcohol when cohabitingwith R.W. prior to his arrest in 2010. [20] I am satisfied that the appellant has established sufficient roots within the community to satisfy the requirements of subsection679(3)(

b) of the Criminal Code. (iii) Is detention in the public interest? [21] The third consideration under subsection 679(3)(

c) of the Criminal Code is the somewhat vague reference to “public interest”and whether the appellant’s detention is necessary. [22] The decision of a five judge panel of the Ontario Court of Appeal in R. v. Farinacci (1993), (ON CA), 86C.C.C. (3d) 32 (ONCA) has provided guidance on the balancing of factors that arises under this subsection.

Trotter comments at page10-22: Concern for the public’s reaction to the swift release of those convicted of serious crimes is a familiar refrain in the appellatejurisprudence. [23] In Farinacci, Arbour J.A., writing for the court, discussed the tension between the enforceability and reviewability where sheexplained: Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person

convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, bedenied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability. On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, becorrected. This is particularly so in the criminal field where liberty is a stake… [24] Trotter notes that the seriousness of the appellant’s crime is the most cited factor triggering the public interest.

In that regard,he makes particular references to the decision of this Court in R. v. Parsons (1994) (NL CA), 117 Nfld. & P.E.I.R. 69(Nfld. C.A.) at paras. 35-36 and R. v. Baltovich (2000), (ON CA), 144 C.C.C. (3d) 233 (ONCA) at para. 19. There isno doubt that there are serious offences for which the appellant was convicted that are at issue on this appeal. [25] This concern is to be weighed against the important question of the lapse of time here between the offences and the charges andsubsequently between the charges and the trial.

There is a real prospect that an appeal could be rendered futile or “nugatory” by thepassage of time in this case. The delay in the reporting of the offence to the authorities and the laying of the charges continues to be afactor linked to the merits of this appeal. The appellant’s arrest and detention occurred in 2010. The offences occurred in 2007 but werenot brought to trial until 2012. [26] The appellant was sentenced to 27 months imprisonment. At this stage, the appellant has been in custody for approximately 17months, leaving approximately ten months to be served.

There is a genuine risk that even if the appellant is successful on appeal, theresult may be nugatory by virtue of the passage of time. While the offences for which the appellant has been convicted are serious, thereis good reason to believe that the grounds of appeal raise substantive issues which justify concluding that it is not in the public interest toinsist upon detention pending appeal in these circumstances.

Even if the grounds of appeal have no merit, there is a risk that given thestatutory release date that would be applicable here, the sentences will be served prior to the hearing and disposition of this appeal. [27] In the result, I conclude that the appellant has met the requirements of section 679(3) of the Criminal Code. A.M. will thereforebe granted interim release on the strict terms set out in the order issued July 27, 2012. _________________________________ M. F. Harrington J.A.