R. v. Pitcher, 2013 NLCA 14

Date: 20130214 Docket: 12/57 Citation: R. v. Pitcher , 2013 NLCA 14 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: ROBERT JAMES PITCHER APPLICANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: White J.A. Application Heard: February 7, 2013 Judgment Rendered: February 14, 2013 Reasons for Judgment by White J.A. Counsel for Appellant: Stephen Orr Counsel for the Respondent: Robin Fowler White J.A.

[1] On September 6, 2012 this Court dismissed Mr. Pitcher’s application for judicial interim release pending appeal: see R. v.Pitcher, 2012 NLCA 58. Mr. Pitcher now applies to have the Court revisit that decision. Background [2] Mr. Pitcher was convicted of break and enter, and theft; possession of break-in instrument; breach of recognizance; breach ofprobation; and mischief. The offences arose from the theft of an automated teller machine. [3] Mr. Pitcher has been in custody since his arrest in the early hours of May 9, 2012. His trial took place on June 7 and June 19,2012.

The convictions were entered on June 22, with sentence imposed on August 15. The total sentence imposed was 12 months, aftertime served, and probation of one year. He did not seek judicial interim release until immediately after filing his appeal with this Courton August 21, 2012. As noted, his application for judicial interim release was denied on September 6, 2012. His factum in relation tohis appeal of conviction was filed on January 29, 2013 and the hearing of his appeal is scheduled for February 26, 2013. Analysis [4] Mr. Pitcher originally framed his application under

section 680, and to that end, there is a direction from the Chief Justiceunder subsection 680(1) and the consent of the Crown under subsection 680(2). But in oral and written argument, he acknowledges thatthe Court’s previous decision was correct. In now applying to revisit that decision, he argues that the earlier decision has been overtakenby a material change of circumstances. He has prepared a factum and adds new grounds of appeal, and he believes that these make hiscase much stronger than it was. [5] Mr. Pitcher’s argument is not entirely compatible with the procedure he has chosen. This Court decided in R. v. Turner (1999), (NL CA), 171 Nfld. & P.E.I.R. 333 (NFCA) that

section 680 does not allow it to reverse a correct decision based onchanged circumstances alone. The Court can vary a correct decision or reverse an incorrect one, but to reverse a correct decision, theaccused must reapply, in this case under

section 679: see R. v. Daniels (1997), (ON CA), 119 C.C.C. (3d) 413(ONCA). However, he has applied to the right court; the Crown has suffered no prejudice; and there is no jurisdictional impediment tomy granting relief. His application is in substance a

section 679 application, and I will treat it as such. [6] In order to be considered for release on bail pending appeal, the applicant must satisfy the Court that all three requirements ofsubsection 679(3) of the Criminal Code can be met. These are: (

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. [7] In the first decision, I concluded that Mr. Pitcher’s appeal is not frivolous in the sense that there is no arguable case havingbeen satisfied that the threshold under paragraph 679(3)(

a) had been met. As stated by Marshall J.A. in R. v. Parsons (1994), (NL CA), 117 Nfld. & P.E.I.R. 69 (Nfld. C.A.), the appellant need only establish that his or her appeal “rests on someground rational enough to evoke the possibility that the appeal may be allowed”. [8] As to subsections (

b) and (

c) of section 679(3), there are references in the first decision to an extensive history of not attendingcourt, breaches of probation and undertakings, and many convictions for breaking and entering in relation to the conclusion that Mr.Pitcher had not discharged the onus that he will surrender into custody if released and that, as a multiple offender in relation to breakingand entering, his detention is necessary in the public interest. [9] Mr. Pitcher argues in support of review that there has been a material change in circumstances since the denial of judicialinterim release on September 6, 2012.

He says that the denied application was brought without benefit of the trial record and that he isnow able to make a more comprehensive legal argument. In support he cites Daniels. [10] In Daniels, the appellant was initially refused bail. While his appeal was not quite frivolous, it was not strong enough forreleasing him to be in the public interest. He filed new grounds and reapplied successfully: the new grounds were a material change ofcircumstances. [11] The Crown challenged the decision to release the appellant before a full panel under

section 680. Doherty J.A. concluded forthe Ontario Court of Appeal that appellants can apply more than once under

section 679 and that, in “rare” cases, improved grounds ofappeal can amount to a material change of circumstances. [12] This Court followed Daniels in Turner. The accused had been refused bail before trial and challenged the decision undersection 680. Drawing on Doherty J.A.’s analysis in Daniels, the panel concluded that

section 680 did not authorize reversing the originalorder because of a material change of circumstances. The accused would have to reapply before a Trial Division judge. [13] In this case, while Mr. Pitcher sets out additional grounds of appeal and argues that these are overwhelming, I do not see themas anything more than additional arguments to that put forward at the first judicial interim release hearing. The new arguments suggestthat the trial judge misapprehended the evidence and made erroneous findings of fact in respect of additional aspects of the evidence. AsWells J.A. said in R. v.

Murphy (No. 2), 2010 NLCA 58, 300 Nfld. & P.E.I.R. 288: [10] Judges of this Court have consistently concluded that on hearing an application for judicial interim release, it is not appropriate fora judge of this Court to make a determination respecting the relative merits of the case on appeal beyond finding that the appeal is notfrivolous (See R. v. Parsons (1994), (NL CA), 117 Nfld. & P.E.I.R. 69; R. v. Wiscombe, 2008 NLCA 1; and R. v.Newman, 2008 NLCA 45). …

All of Mr. Pitchers’s arguments can be made before the panel that will soon hear the appeal on its merits. [ 14 ] As in Daniels , there may be a “rare” case where additional arguments and new grounds of appeal can amount to a material change in circumstances affecting the outcome of the public interest inquiry required under section 679(3) (c). For instance, new arguments might turn a frivolous appeal into an arguable one. This is not such a case. Mr.

Pitcher’s appeal was arguable before, and further improvements do not significantly change the analysis. [ 15 ] In any event, this case is readily distinguished from Daniels where the applicant had a minor criminal record and an appeal months from being heard. [ 16 ] As well, the appellant in Daniels was not considered a flight risk. This factor standing alone would be fatal to Mr. Pitcher’s application, as all three criteria subsection 679(3) must be met: See R. v. Phelan , 2012 NLCA 57 , 326 Nfld. & P.E.I.R. 50 and R. v. Allen , 2001 NFCA 44, 158 C.C.C. (3d) 225 . [ 17 ] Mr.

Pitcher’s history of failing to attend court, breaches of probation, extensive criminal record, and near appeal date also take him outside the parameters of Daniels . This is not a “rare” case in which new grounds of appeal change the initial bail decision. Conclusion [ 18 ] Accordingly, I confirm the first decision denying judicial interim release. C.W. White J.A.