R. v. Phelan, 2012 NLCA 57

Date: 20120904 Docket: 12/52 Citation: R. v. Phelan , 2012 NLCA 57 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DARRELL BENJAMIN PHELAN APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe J.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General), 201101G4516 Application Heard: August 28, 2012, Decision Rendered: September 4, 2012 Reasons for Decision by Rowe J.A. Counsel for the Appellant: Stephen Orr Counsel for the Respondent: Sheldon Steeves Rowe J.A.:

FACTS [1] Mr. Phelan was convicted of aggravated assault and breach of probation; he was sentenced to 30 months for the aggravatedassault and 60 days concurrent for the breach of probation, followed by three years probation. He is appealing his conviction. [2] The trial judge found that Mr. Phelan had used a syringe of his blood to seek to infect his former girlfriend with Hepatitis C. Mr. Phelan contracted Hepatitis C from intravenous drug use. [3] Mr. Phelan is seeking bail pending his appeal. He was remanded in custody at the time of his arrest in February 2011. Hewas subsequently denied bail.

He was sentenced in June 2012. In July, he filed his Notice of Appeal. On August 20, he applied for bailpending appeal. To date, aside from the Notice of Appeal and materials relating to the bail application, no materials have been filed. Atranscript has been requested. [4] As Mr. Phelan has been in custody since his arrest, he has about 14 months remaining in his sentence. THE LAW [5] I would adopt the following statement of the law as set out in the Crown’s Factum: Any application for bail pending appeal begins with the recognition that the Applicant no longer enjoys the benefit of the presumption ofinnocence.

The application proceeds on the assumption that the Applicant is guilty, as Arbour J.A. (as she then was) stated in Farinacci. Indeed, the presumption of innocence is spent by the verdict, be it a conviction or an acquittal. A conviction does not create apresumption of guilt. It constitutes a legal, conclusive finding of guilt. Like an acquittal, it is enforceable unless and until reversed. After a conviction, there is no presumption left, one way or the other. There is an enforceable finding of guilt. Reference: R. v.

Farinacci (1983) (ON CA), 86 C.C.C. (3d) 32 (O.C.A.) In order to be considered for release on bail pending appeal, the Applicant must establish the three prerequisites found at section 679(3)of the Criminal Code, i.e.: (

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. In Allen, Wells, C.J.N. emphasized that it was imperative that the Applicant satisfy all three of the prerequisites set out in s. 679(3). Thus, it falls to the Applicant to establish that the appeal is not frivolous, he will surrender himself into custody, and that his detention isnot necessary in the public interest. Reference: R. v. Allen (2001) 2001 NFCA 44 , 158 C.C.C. (3d) 225 (NLCA) Section 679(3)(a) – Not Frivolous The jurisprudence recognizes that frivolous in s. 679(3)(

a) is not interpreted using the dictionary definition of that word. Rather, theApplicant is required to demonstrate that the appeal has some arguable basis. Marshall J.A. expressed the threshold requirement, in R. v.Parsons: In casting the first prerequisite for bail pending appeal in terms of the frivolity or arguability of the appellant’s case, the law is in effectdirecting that the application for such release must establish that his or her appeal has sufficient strength and substance, or rests onsome ground rational enough to evoke the possibility that the appeal may be allowed.

The applicant, therefore, is not required to refuteconclusively the presumption of regular conviction but only to establish what has generally been described as an arguable case withrespect to his or her guilt. Reference: R. v. Parsons [(1994), (NL CA), 117 Nfld. & P.E.I.R. 69 (Nfld. C.A.)] Section 679(3)(b) – Will Surrender Himself into Custody As Wells, C.J.N. pointed out in Allen, the court has to be provided with positive evidence that the pre-condition of 679(3)(

b) will be met. This requires more than a simple assertion that the Applicant has roots in the community or that he has accommodation where he canreside. Section 679(3)(c) – Public Interest Even if the criteria from sections 679(3)(

a) and (

b) are met, the law requires more from a convicted offender seeking release afterconvictions. ... That residual requirement is encompassed with the “public interest” aspect of section 679(3)(c). As Marshall, J.A. noted in Parsons(supra) [para. 34] this requirement has two branches: (1) the protection and safety of the public, and (2) whether the offender’s release would adversely diminish public confidence in the administration of justice.

[6] The court must always be mindful of the possibility that someone who is serving a term of imprisonment may be successfulon appeal of conviction. It would be contrary to the ends of justice for such a person to have been held in custody for a significant periodpending their appeal, such that a successful appeal would lack meaningful effect. ANALYSIS [7] Regarding s. 679(3)(a), counsel for Mr. Phelan set out a series of arguments that relate to errors in the trial judge’sconsideration of the evidence, including that he placed the burden of proof on the accused.

I have read closely the trial judge’s decisionin light of Defence counsel’s arguments. I see no reversal of the burden of proof. [8] In other respects, Defence counsel takes issue with the trial judge’s assessments of credibility and his use of forensicevidence.

Defence counsel failed to persuade me that there is an arguable case to be made that the trial judge committed any reviewableerror in his consideration of the evidence. [9] In the written application, Defence counsel referred to new evidence that he would seek to place before the court. (I note therequirements for new evidence on appeal set out by the Supreme Court of Canada in Palmer v.

The Queen, (SCC), [1980]1 S.C.R. 759 at 775.) However, in oral argument he indicated he was not relying on this for the purposes of the bail application. [10] Finally, in oral argument, Defence counsel submitted that based on the facts as found by the trial judge, a conviction foraggravated assault could not follow, as a matter of law, but rather only a conviction for attempted aggravated assault.

In support of this,Defence counsel noted that, the complainant not having contracted Hepatitis C, no harm was inflicted on her, thus only a conviction onlyfor attempted aggravated assault was possible, having regard to the Supreme Court of Canada’s decision in R. v. Williams, 2003 SCC 41,[2003] 2 S.C.R. 134. Defence counsel submitted that the trial judge erred in law in relying on the Supreme Court of Canada’s decision inR. v.

Cuerrier (SCC), [1998] 2 S.C.R. 371 at para. 95, to the effect that harm sufficient to make out the offence ofaggravated assault is inflicted when the accused’s acts “endanger the life of the complainant”. I have read R. v. Williams and R. v.Cuerrier and I do not see an arguable case for the Defence position.

Williams affirmed Cuerrier, but came to a different conclusion as aresult of a critical factual difference, i.e. in Cuerrier (as here) the accused knew that he was endangering the complainant at the time ofthe actus reus, while in Williams the accused was not aware initially that he was endangering the complainant, as he was not awareinitially that he was HIV positive and by the time that the accused became aware that he was HIV positive (and then continued to haveunprotected sex with the complainant), it was possible that he had already infected her with HIV. [11] Beyond this, even if the argument regarding attempted aggravated assault were to be successful, one could anticipate a more orless similar sentence, given that all the same aggravating factors would be relevant to such a conviction as are relevant to the convictionunder appeal. [12] Given my conclusion that no arguable case for appeal of conviction has been set out on Mr.

Phelan’s behalf, I need not considerthe other two factors. However, in the circumstances of this case, I will. [13] The Crown argued that, having regard to s. 679(3)(

c) and this Court’s decision in Parsons, it is not in the “public interest” thatMr. Phelan be released on bail pending his appeal, as there is a strong likelihood that he would re-offend while on bail. [14] Crown counsel referred to Mr. Phelan’s extensive criminal record; he is a 31 year old and has (by my count) an astounding 93criminal convictions. These include myriad instances of failure to comply with court orders, numerous assaults and multiple thefts,among other offences. The Crown submits that Mr. Phelan would be a threat to the public. [15] In cross-examination by Crown counsel, Mr.

Phelan admitted his criminal past, but said that this was part of his life as a drugaddict. He testified that he wants to turn the page, work and help care for his young son; he is on methadone therapy for his addiction. [16] I very much hope that Mr. Phelan is both sincere in what he says and that he has to resolve to follow through in changing hislife. However, aside from his testimony, I have no basis for concluding that he is a changed man. Rather, I see an unbroken record ofcrime throughout his adolescence and adult life.

That causes me to conclude that, on the balance of probabilities, if he were released onbail, he would re-offend. Accordingly, Mr. Phelan has failed to show (as he is required) that “his detention is not necessary in the publicinterest”. Thus, on this basis, as well as under s. 679(3)(a), I deny Mr. Phelan’s application for bail pending his appeal. CONCLUSION [17] I deny the application for bail. However, I would order that the transcript of his trial be prepared on an expedited basis. Thedocket is full for September, but sitting days remain to be assigned in October.

By diligence on the part of counsel, it should be possibleto have the appeal heard in October. Where there is an appeal against conviction and the appellant is incarcerated, the court makesevery effort to render its decision expeditiously; I am confident the court will do so in this case. __________________________________ M. H. Rowe J.A.