R. v. J.K., 2013 NLCA 23

Date: 201303 22 Docket: 13/19 Citation: R. v. J.K. , 2013 NLCA 23

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.K. APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: White J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 201101G7057 Application Heard: March 21, 2013 Decision Rendered: March 22, 2013 Reasons for Oral Decision: March 26, 2013 Counsel for J.K.: Peter Ralph Q.C. Counsel for Her Majesty the Queen: Robin Fowler

REASONS FOR ORAL DECISION White J.A.: [1] These are written reasons relative to an application for bail pending appeal. The application was granted on March 22, 2013. [2] The Appellant, J.K., was convicted on June 29, 2012 of sexual assault, having been tried before a justice of the Trial Division.

He was sentenced on March 15, 2013 to two years less one day incarceration and to probation for a period of 18 months. [3] Until the time of sentencing, J.K. was free on an undertaking dated April 1, 2011, the terms of which included that he “abstainfrom communicating with S.W. (the complainant) or from going to her place of residence, school, or employment”. [4] At the date of hearing of this application, J.K. had been incarcerated for less than one week. [5] The applicable law is succinctly set out on the Crown’s Memorandum of Fact and Law filed in this matter. This

summary ofthe law has been adopted by this Court in reasons given in previous bail applications (see R. v. Phelan, 2012 NLCA 57 and R. v. Pitcher,2012 NLCA 58). [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 Phelan, Rowe J.A. noted: [6] The court must always be mindful of the possibility that someone who is serving a term of imprisonment may be successful onappeal 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. [8] The onus, nevertheless, remains on the bail applicant to meet all three prerequisites of section 679(3). - appeal not frivolous [9] Counsel for J.K. sets out eight grounds of appeal, each of which, he argues, independently meets the requirement that theappeal is not frivolous. [10] The Crown acknowledges that the threshold under section 679(3)(

a) is low. 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” (paragraph 11). [11] Counsel for J.K. raises issues relating to admissibility of prior consistent statements, hearsay evidence, evidence as expert froman unqualified witness, and non-probative forensic screening results.

He also raises issues relating to reliance on DNA evidence notlinked to J.K. and issues touching on the competence of trial counsel. [12] While counsel for J.K. argues that none of his grounds are frivolous, the exercise is not cumulative. Having concluded thatthere is at least one ground which “evoke[s] the possibility that the appeal may be allowed”, it is inappropriate for me to commentfurther.

When a panel of this Court hears the appeal all grounds will be considered and tested on a much more rigorous basis than isnecessary to meet the low threshold of “not frivolous” under section 679(3)(a). - surrender into custody [13] The Crown took no issue with this requirement. - the public interest [14] Since being charged some two years ago, and until his recent sentencing, J.K. was free on conditions imposed by a ProvincialCourt judge. He is presently subject to a charge of breaching the condition that he not contact the complainant.

It is alleged that J.K.sent two brief text messages to an account on a web based dating page belonging to the complainant. He has denied the allegationstating that he did not realize that the account he contacted was the complainant’s account. The matter has not yet been heard. [15] Both counsel agreed that it was relevant for me to consider existence of the charge despite the fact that there has been no findingof guilt.

The Crown expressed concern that, if released, J.K. will attempt to contact the complainant. [16] While any allegation of prohibited contact by a convicted sexual offender with a victim is a serious matter, the circumstances inthis case do not warrant denial of release on the public interest ground. [17] The elapse of time before the hearing of the appeal is also a public interest consideration, as the effect of a successful appeal

would be considerably diminished if a substantial portion of the sentence had been served. The time factor is significant as it appears that there is no realistic possibility of the appeal being heard until at least September 2013. [ 18 ] As the onus under section 679(3) of the Criminal Code was met, J.K. was released subject to conditions, pending his appeal. _______________________ C.W. White J.A.