R. v. Chubbs, 2013 NLCA 30

Date: 20130 509 Docket: 13/22 Citation: R. v. Chubbs , 2013 NLCA 30 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL APPELLANT: GRANT ADAM CHUBBS APPLICANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Hoegg J.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St.

John’s Application Heard: May 1, 2013 Judgment Rendered: May 9, 2013 Counsel for the Applicant: Candace Summers Counsel for the Respondent: Robin Fowler Hoegg J.A.: [ 1 ] Grant Chubbs applies for judicial release pending determination of the appeal of his conviction for the aggravated assault of Holly Riche, who was injured by a beer bottle being thrown at her. [ 2 ] Section 679(3) of the Criminal Code sets out the circumstances in which an incarcerated appellant may be released pending

appeal: 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 releasedpending 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 Mr. Chubbs to establish, on the balance of probabilities, all three requirements of the

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 44,158 C.C.C. (3d) 225 per Wells C.J.N.L. at paras. 26-30. The Crown opposes Mr. Chubbs’ release on the basis of all three grounds. Is Mr.

Chubbs’ appeal “not frivolous”? [4] In Parsons, Marshall J.A. described this requirement 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. (Emphasis added.) [5] In determining whether Mr.

Chubbs’ appeal meets the test set out in Parsons, I must consider his grounds of appeal, not for thepurpose of assessing their merits (Allen, paragraph 51) or to reach a final conclusion on their strength (Parsons, paragraph 11), but to seewhether they have “sufficient strength and substance, or rest on some ground rational enough to evoke the possibility that the appeal maybe allowed”. [6] The grounds of appeal set out in Mr. Chubbs’ notice of appeal are: 1. The trial judge erred in law by failing to consider the defence of self-defence, per s. 686(1)(a)(ii) of the Criminal Code of Canada;and 2.

Such further grounds as a reading of the transcript discloses and this court permits. Mr. Chubbs has not requested consideration of any further ground of appeal pursuant to clause two. The sole ground of appeal for myconsideration alleges that the Provincial Court judge erred in law by failing to consider the defence of self-defence before convicting Mr.Chubbs. [7] At trial, Mr. Chubbs testified that it was not he, but another individual, who threw the beer bottle at the victim.

He did notraise self-defence as an issue, for his evidence was at odds with him “repelling or using force by assaulting the complainant with thebeer bottle while under the reasonable apprehension of death or grievous bodily harm from which he could not otherwise preservehimself.” (See sections 34 and 35 of the Criminal Code.) Mr. Chubbs acknowledges at paragraph 4 of his bail application that his trialtestimony precluded him from arguing self-defence at trial. [8] Mr.

Chubbs’ ground of appeal rests on the proposition that a trial judge, in a case where an accused is represented by counsel,has an obligation to consider and decide whether the accused can rely on the defence of self-defence when the accused has not argued it,and when it is in direct conflict with the accused’s own evidence and does not otherwise arise on the evidence. I have been shown noauthority in support of this proposition.

On the basis of the material before me and the submissions of counsel, I am unable to say thatthis ground of appeal has “sufficient strength and substance, or rests on some ground rational enough to evoke the possibility that hisappeal may be allowed.” In the result, Mr. Chubbs has not satisfied me that the ground on which his appeal is based is “not frivolous”. Has Mr. Chubbs established that it is likely that he will surrender himself back into custody if required? [9] Mr. Chubbs has a lengthy criminal record. He has been convicted of 28 breaches of court orders in addition to several othercharges.

However, he has no convictions for failing to appear for court when required to do so or for escaping lawful custody. As well,he reported to Her Majesty’s Penitentiary as required to serve an intermittent sentence over a period of several weeks in2011. There is no indication that Mr. Chubbs is otherwise a flight risk, or that he will not surrender himself into custody if and whenrequired to do so. [10] Accordingly, Mr. Chubbs has satisfied me, on a balance of probabilities, that he will surrender himself back into custody ifrequired. Is Mr.

Chubbs’ detention necessary in the public interest? [11] The term “public interest” in section 679(3) of the Criminal Code is comprised of two parts: 1) the protection and safety of thepublic; and 2) whether release of the offender would diminish confidence in the administration of justice (Parsons, paragraphs 27–34

adopting R. v. Farinacci (1993), (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.)). [12] The Crown argues that Mr. Chubbs’ detention in custody is necessary to protect the public interest because Mr. Chubbs “hascontinued, since 1998 (when he was a youth) to get into trouble – including [committing] violent offences and breaching court orders”. [13] Mr. Chubbs’ criminal record includes eight prior convictions for assault (in addition to the assault conviction which is thesubject matter of this appeal) and 28 breaches of court orders.

At the time he was involved in the incident which led to his conviction forthe aggravated assault, Mr. Chubbs was bound by his own recognizance to appear in relation to other charges. This recognizance, datedOctober 1, 2012, included 11 conditions, among which were that Mr. Chubbs was 1) to have no contact with Holly Riche, 2) to reside atthe Wiseman Centre, 3) to remain in his residence between 11 p.m. and 7 a.m. daily, and 4) not to consume alcohol. According to thetrial judge’s decision, Mr. Chubbs was in violation of at least these four conditions at the time of the aggravated assault incident.

Hewas subsequently charged with two breaches of his recognizance, to which he pleaded guilty. Moreover, Mr. Chubbs attempted to divertsuspicion from himself during the police investigation of the incident by telling the police, and convincing Ms. Riche to tell the policeand hospital officials, that the incident was as a result of a home invasion. Mr. Chubbs admitted doing this and pleaded guilty to aconsequential charge of mischief. [14] Mr. Chubbs testified at this bail hearing. He said that since February of this year, he has been receiving treatment forschizophrenia at Her Majesty’s Penitentiary.

He says the diagnosis was confirmed by the prison psychiatrist in March 2013 and that themedication is working. He says he has reformed and that he does not want to be back in trouble anymore. There was no other medicalevidence. However, I note two conditions on his October 1, 2012 recognizance relating to medical issues – one to take medication asprescribed and the other to attend on medical professionals as directed. [15] Mr. Chubbs has been a persistent offender for a long time. Most recently, he violated release conditions which were designed toafford him freedom on bail while awaiting trial on other charges.

Mr. Chubbs testified that he was under medical treatment prior to hisrecent diagnosis, and that the recent diagnosis did not change the treatment. His recognizance suggests that he was under medicaltreatment before October 1, 2012. In these circumstances, I am not persuaded that he will not re-offend if released. Accordingly, I am ofthe view that his detention in custody is necessary to protect the public. [16] Mr. Chubbs has been in custody since he was arrested in November 2012. On January 25, 2013 he was convicted of themischief charge, the breaches of his recognizance and aggravated assault.

On March 12, 2013 he was sentenced to time served for theseand other offences and 12 months incarceration for the aggravated assault, which sentence he has been serving since then. [17] Mr. Chubbs’ counsel informed the Court that a transcript of the trial proceedings was requested when the notice of appeal wasfiled. Neither Mr. Chubbs’ counsel nor Crown counsel was able to inform the Court when the prepared transcript can be anticipated. CONCLUSION [18] I deny Mr. Chubbs’ application for judicial release pending appeal on the basis of subsections 679(3)(

a) and (c). It isunderstood that priority is given to the preparation of transcripts relating to persons who are in custody. Nevertheless, I order that thetranscript of Mr. Chubbs’ aggravated assault trial be prepared on an expedited basis. L. R. Hoegg J.A.