STEPHEN TRIMM APPLICANT/APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT, 2022 NLCA 49

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. Trimm, 2022 NLCA 49 Date: August 8, 2022 Docket Number: 202201H0050 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify theperson described in this judgment as the complainant or a witness shall not be published in any document or broadcast or transmitted inany way. BETWEEN: STEPHEN TRIMM APPLICANT/APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Boone J.A. Court Appealed From: Provincial Court of Newfoundland and Labrador, St.

John’s Application Heard: August 8, 2022 Judgment Rendered (Orally): August 8, 2022 Memorandum of Disposition Filed: August 9, 2022 Counsel for the Applicant/Appellant: Iain R.W. Hollett Counsel for the Respondent: Sheldon B.J. Steeves Authorities Cited: CASES CITED: Kienapple v. R., (SCC), [1975] 1 S.C.R. 729; R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250; R. v.Manasseri, 2013 ONCA 647.

STATUTES CONSIDERED: Criminal Code, RSC 1985, c. C-46, sections 163.1(3), 172.1(1)(a), 172.1(1)(b), 679(3). MEMORANDUM OF DISPOSITION Boone J.A.: [1] A Provincial Court judge convicted Stephen Trimm of distribution of child pornography, contrary to

section 163.1(3) of theCriminal Code, RSC 1985, c. C-46, and of child luring, contrary to

section 172.1(1)(

b) of the Code (an offence in which the victim wasalleged to have been under the age of 16). [2] The trial judge stayed a charge of child luring, contrary to

section 172.1(1)(a) (involving the same victim but alleging that thevictim was under the age of 18), on application of the Kienapple principle because the child luring counts involved the same conduct andthe second count was therefore duplicitous (see Kienapple v. R., (SCC), [1975] 1 S.C.R. 729). [3] The trial judge imposed a sentence of 12 months for distribution of child pornography and 22 months for child luring with thesentences to be served consecutively. [4] Mr. Trimm has appealed both his convictions and sentence. His Notice of Appeal set out the following grounds:

a) That the trial judge erred by admitting into evidence a conversation between Mr. Trimm and his counsellor, notwithstandingMr. Trimm’s assertion that the conversation was subject to privilege;

b) That the trial judge erred by failing to consider his police statement which was tendered by the Crown and admitted intoevidence;

c) That the trial judge erred in interpreting the elements of the offence of child luring; and

d) That the trial judge imposed a sentence which was demonstrably unfit. [5] Mr. Trimm applies for judicial interim release pending appeal. The Crown opposes his application. [6] Section 679(3) of the Criminal Code provides that in order to persuade this Court to grant bail the person appealing conviction(or conviction and sentence) must establish each of the following: (

a) the appeal is not frivolous; (

b) the appellant will surrender into custody in accordance with the terms of release; and (

c) detention is not necessary in the public interest. [7] Those criteria have been considered and explained in numerous decisions of this Court, which have recognized that the leadingrelevant authority is the decision of the Supreme Court of Canada in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250. In that case, theSupreme Court directed the appropriate

interpretation and application of each of the three criteria and confirmed that the standard bywhich to measure whether the appellant has established the criteria is the balance of probabilities. Whether the appeal is not frivolous [8] In Oland, at para. 20, Moldaver J. noted that the threshold expressed in the first criterion is “widely recognized as being a verylow bar”. Moldaver J. cited with approval this more particular description of the threshold by Watt, J.A. in R. v. Manasseri, 2013 ONCA647: [38] An appeal is not frivolous if the proposed grounds of appeal raise arguable issues.

An applicant need not establish a likelihood,much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellateintervention if established. [9] There is no requirement that all of the proposed grounds of appeal meet this threshold; it is sufficient if any of the proposedgrounds meets that bar. The question is whether the appeal is or is not frivolous. [10] The trial judge admitted the testimony of Mr. Trimm’s counsellor, rejecting the assertion that discussions with the counsellorwere privileged.

An appeal from that decision of the trial judge is not frivolous. [11] Further, the appellant says that the trial judge erred by failing to find the specific offence underlying the charge of child luring. An appeal which raises the question whether the trial judge ought to specify the underlying offence in convicting an accused of childluring is not frivolous. [12] The appellant has established this criterion. Whether Mr. Trimm will surrender himself into custody as required [13] Mr. Trimm must establish that he will surrender himself into custody as required by the terms of his release. [14] Mr.

Trimm has no prior criminal record. The police released him, on an undertaking, after he was charged. He remained in thecommunity, followed his release conditions, attended his trial and was taken into custody following his conviction. Two sureties have

undertaken to ensure that he complies with the terms of his release, and each has agreed to pay money in the event that he violates the terms of his release. [ 15 ] The Crown says that Mr. Trimm no longer enjoys the benefit of the presumption of innocence and could be a flight risk because he will want to avoid the prospect of returning to jail. If that argument, without evidentiary foundation, was sufficient to preclude the appellant from release, then this Court would never release a convicted appellant pending appeal. [ 16 ] Mr. Trimm has satisfied this requirement. Whether Mr.

Trimm’s detention is necessary in the public interest [ 17 ] The public interest criterion has two components: public safety and public confidence in the administration of justice. Determining whether this criterion has been established requires a balance between enforceability and reviewability of the decision of the trial court.

As explained by Moldaver J. in Oland : [50] … where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak: R. v.

Mapara , 2001 BCCA 508 , 158 C.C.C. (3d) 312 , at para. 38 ; Baltovich , at para. 20; Parsons , at para. 44. [51] On the other hand, where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the "not frivolous" criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences. [ 18 ] Although the appellant was convicted of serious offences, those convictions must also be considered in context. There is no evidence that Mr.

Trimm presents a continued danger to the public if he is released on conditions. His appeal raises viable grounds that, without passing on the likelihood of success, clearly surpass the “not frivolous” standard. His release plan adequately provides for public safety during the period before his appeal is determined. If he is unsuccessful in his appeal, then he will serve his sentence. I have directed that the appellant file the appeal book and his factum within 60 days after the transcript has been prepared, and the Crown response be filed within 30 days thereafter.

Once the appeal is perfected, then the parties shall seek a hearing date without delay. [ 19 ] I am satisfied that the public interest, viewed through the eyes of “a reasonable member of the public… who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values” ( Oland , at para. 47 ) favours granting Mr. Trimm judicial interim release pending determination of his appeal. He is entitled to appeal and he has presented viable grounds for this Court to consider.

Public confidence in the administration of justice would not be undermined if he is released pending the resolution of that appeal. [ 20 ] Pursuant to

section 679 of the Criminal Code , the Applicant is released on conditions set out in a release order pending the determination of his appeal. _____________________________ D. M. Boone J.A.