R. v. J.H., 2012 NLCA 77

Date: 20121213 Docket: 12/87 Citation: R. v. J.H. , 2012 NLCA 77

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 : J.H. APPLICANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Hoegg J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 2010 01G 4581 Application Heard: December 5, 2012 Judgment Rendered: December 13, 2012 Reasons for Decision by Hoegg J.A. Counsel for the Applicant: Randolph J. Piercey Q.C.

Counsel for the Respondent: Iain Hollett Hoegg J.A.: [ 1 ] J. H. is appealing his convictions for assault causing bodily harm, sexual assault and unlawful confinement. In this application, he is applying for judicial release pending his appeal. [ 2 ] The circumstances in which an appellant may be released pending his or her appeal are set out in section 679(3) of the Criminal Code :

(3) In the case of an appeal referred to in paragraph (1)(

a) or ( c ), 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. [3] The burden is on J.H. to establish, on the balance of probabilities, all three requirements of the sub-section (R. v. Parsons(1994), (NL CA), 117 Nfld. & P.E.I.R. 69 (Nfld.C.A.) per Marshall J.A. at para. 8 and R. v. Allen, 2001 NFCA 44,per Wells C.J.N. at paras. 26-30). [4] I will address each requirement separately.

Paragraph (b): Has J.H. established that it is likely he will surrender himself into custody? [5] J.H. was on judicial interim release subject to a recognizance for over two and one-half years between being charged andconvicted of the offences. His recognizance included a term that he appear for court as required. It is undisputed that J.H. appeared incourt as was necessary, and that he returned to St. John’s from Alberta at least four times to do so.

J.H. has no record, nor is there otherevidence, suggesting that he is a flight risk, or that he will not surrender himself into custody if and when required to do so. Accordingly,J.H. has established on a balance of probabilities that he will do so. Paragraph (c): Is J.H.’s detention necessary in the public interest? [6] The term “public interest” in section 679(3)(

c) is comprised of two parts: 1) the protection and safety of the public; and 2)whether release of the offender would diminish confidence in the administration of justice (Parsons, paragraphs 27 to 34 adopting R. v.Farinacci (1993), (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.)). [7] J.H.’s pre-conviction recognizance forbade contact with the complainant, who is a member of the public, and there is nosuggestion that he breached this condition.

The Crown did not voice any concern for the protection and safety of other members of thepublic. [8] Whether J.H.’s release would diminish confidence in the administration of justice involves balancing two interests: 1) that ofrespecting the regularity of convictions; and 2) that of taking care not to render an appeal moot by having an offender serve out his termonly to have his convictions overturned on appeal.

This balancing was described by Arbour J.A. in Farinacci at 47-48: … The concerns reflecting public interest, as expressed in the case law, relate both to the protection and safety of the public andto the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain thatbalance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice.The "public interest" criterion in s. 679(3)(

c) of the Code requires a judicial assessment of the need to review the conviction leading toimprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule ofimmediate enforceability of judgments. [9] The Crown has not argued that the public interest requires J.H. to be detained pending his appeal. As well, I am cognizant ofthe fact an injustice would be visited on J.H. if he were to be detained in custody and his appeal were to be successful. This would beespecially so if the hearing of his appeal is not timely.

Bearing in mind the protection and safety of the public, and the competing needsof maintaining public confidence in the administration of justice by reviewing judgments, particularly when liberty is at stake, andrespecting the immediate enforcement of judgments, I am not persuaded that J.H.’s detention is necessary in the public interest. Accordingly, J.H. has satisfied me that his detention is not necessary in the public interest. Paragraph (a): Is J.H.’s appeal “not frivolous”? [10] The key issue in this application is whether J.H. has demonstrated that his appeal is not frivolous.

This requirement wasdescribed by Marshall J.A. in Parsons at paragraph 11: 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 applicant for such release must establish that his or her appeal has sufficient strength and substance, or rests on someground 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. [11] In order to determine whether J.H. has established that his appeal is not frivolous, I must consider the grounds of appeal set outin J.H.’s notice of appeal to see if one of them establishes that it “has sufficient strength and substance, or rests on some ground rationalenough, to evoke the possibility that the appeal may be allowed” or presents “an arguable case with respect to his or her guilt”. [12] The grounds of appeal set out in J.H.’s notice of appeal are that: 1) the learned trial judge erred in law by refusing to permit the Appellant (J.H.) to cross-examine the complainant on relevantevidence; and 2) the learned trial judge erred in law by finding that post[sic] offence conduct led to a reduction in the Appellant’s credibility. [13] My task on this bail application is not to determine the relative merit of the grounds of appeal (Allen, para. 51) or to reach anyfinal conclusion on the strength of the grounds of appeal (Parsons, para. 11).

However, I must do some assessment of the grounds inorder to determine whether any one of them meets the test as described by Marshall J.A. in Parsons. The First Ground of Appeal [14] J.H.’s first ground of appeal rests on the argument that the trial judge erred in law by refusing to permit him to cross-examine

the complainant on what he says is relevant evidence. [ 15 ] J.H. made a pre-trial application pursuant to

section 276 of the Code to cross-examine the complainant 1) on matters respecting the complainant’s relationship with her ex-husband, and 2) on matters respecting her prior sexual history with J.H.. The trial judge allowed J.H., in part, to cross-examine the complainant respecting her prior sexual history with him (J.H.) but denied J.H.’s application regarding matters pertaining to the complainant’s former husband. The trial judge filed a separate decision, R. v.

J.H. , 2012 NLTD(G) 32, on the application, which addresses in detail the law respecting s. 276 applications and collateral evidence and its application to the facts before her. [ 16 ] This ground of appeal relates primarily, if not only, to J.H.’s conviction for sexual assault, and not to his convictions for unlawful confinement and assault causing bodily harm.

Nevertheless, the ground of appeal raises different issues respecting different pieces of evidence which may or may not be relevant in the final analysis. [ 17 ] While it appears to me that J.H. has an uphill battle to establish error on the part of the trial judge with respect to this ground of appeal, the breadth of the grounds and the complications involved in sorting out the law respecting the admissibility and relevance of the different pieces of evidence convinces me that this ground is at least arguable.

Therefore, I conclude that J.H. has met the onus of establishing that his first ground of appeal is not frivolous. [ 18 ] Given my decision respecting the first ground of appeal, there is no need for me to consider whether J.H. has demonstrated an arguable case with respect to his second ground. [ 19 ] Accordingly, I allow J.H.’s application for bail subject to his entering into a recognizance on conditions acceptable to him and the Crown. At the hearing, Crown counsel advised that should bail be granted, he anticipated that the parties could agree on acceptable judicial release conditions.

If J.H. and the Crown are unable to agree on acceptable conditions, the matter must be brought back before me by noon on December 19, 2012. [ 20 ] I add only that I urge the parties to bring the appeal on for hearing as soon as possible. L. R. Hoegg J.A.