CARL DOUGLAS SNELGROVE APPLICANT/APPELLANT AND: HIS MAJESTY THE KING RESPONDENT, 2023 NLCA 21

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : R. v. Snelgrove , 2023 NLCA 21 Date : July 28, 202 3 Docket Number : 202101H0078 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that could identify the person described in this judgment as the complainant shall not be published in any document or broadcast or transmitted in any way. BETWEEN: CARL DOUGLAS SNELGROVE APPLICANT/APPELLANT AND: HIS MAJESTY THE KING RESPONDENT Coram: F.J. Knickle J.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 201601G2389 Application Heard: July 28, 202 3 Judgment Rendered (Orally): July 28, 202 3 Memorandum of Disposition Filed: July 31, 2023 Counsel for the Applicant/Appellant: Janani Shanmuganathan Counsel for the Respondent: Kathleen O'Reilly Authorities Cited: CASES CITED: R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250; R. v. Price , 2022 NLCA 25 , 7 C.A.N.L.R. 500; R. v. Barrow , 1987

11 (SCC), [1987] 2 S.C.R. 694; R. v. Drabinksy, 2011 ONCA 647; R. v. Shaheen, 2022 ONCA 773; R. v. Iyer, 2021 ABCA 69;R. v. Czechowski, 2021 BCCA 19; R. v. E.(F.E.), 2011 ONCA 783; R. v. Simon, 2010 ONCA 754; R. v. Burnett, 2021 ONCA 856; R. v.Esseghaier, 2021 SCC 9; R. v. Cole, 2012 ONCA 347; R. v. T.(L.W.), 2008 SKCA 17; R. v. Iyamuremye, 2017 ABCA 276. STATUTES CONSIDERED: Criminal Code, RSC 1985, c. C-46, sections 271, 679(1)(c), 679(3), 650, 650.01, 515(10)(c), 686(1)(b)(iv). MEMORANDUM OF DISPOSITION F.J.

Knickle J.A.: [1] On May 15, 2021, after his trial by judge and jury in the Supreme Court of Newfoundland and Labrador, the applicant, CarlDouglas Snelgrove, a police officer with the Royal Newfoundland Constabulary, was convicted of sexual assault contrary to

section 271of the Criminal Code. The offence occurred while he was on duty, in uniform, and after he gave the victim a drive home from thedowntown area of the city of St. John’s, NL, in a marked police vehicle. Mr. Snelgrove was sentenced to four years imprisonment, lesstime served, together with a number of ancillary orders. [2] Mr. Snelgrove appealed his conviction. On December 21, 2021, he was released by this Court pending appeal (R. v. Snelgrove,2021 NLCA 60, 7 C.A.N.L.R. 194). On April 18, 2023, this Court dismissed Mr. Snelgrove’s appeal from conviction (R. v. Snelgrove,2023 NLCA 12). The next day, Mr.

Snelgrove surrendered himself into custody as required by the terms of his release. [3] On June 19, 2023, Mr. Snelgrove filed an application for leave to appeal to the Supreme Court of Canada. Mr. Snelgrove thenfiled an application in this Court to be released as per section 679(1)(

c) of the Criminal Code pending the application for leave to appealand, if that application is allowed, appeal of this Court’s decision respecting his conviction appeal. [4] The general rule is that individuals should be at large pending resolution of criminal matters.

The presumption of innocencerequires that no one be denied reasonable bail without just cause. [5] However, as an individual moves through the justice system, the emphasis on whether it is appropriate for the individual to beat large shifts. [6] Thus, when an individual is convicted and seeks to appeal that conviction, while the general rule is that persons should be atlarge, the appellant no longer enjoys the presumption of innocence and the onus shifts to him or her to establish that their detention is notnecessary pending an appeal. Notwithstanding this shift, I am satisfied Mr.

Snelgrove has met this onus. [7] The criteria for release pending appeal are as stated under section 679(3) of the Criminal Code: (

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. [8] The onus is on the accused to establish on a balance of probabilities that these criteria support that his detention is notnecessary pending appeal to the Supreme Court of Canada (R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19). (

a) The application for leave to appeal is not frivolous [9] The Supreme Court in Oland described the threshold for this criterion as “very low”. There must be an “arguable basis” to thegrounds (R. v. Price, 2022 NLCA 25, 7 C.A.N.L.R. 500, at para. 9). [10] I am satisfied that this criterion has been met. [11] The error alleged by Mr. Snelgrove is this Court’s

interpretation of sections 650 and 650.01 of the Criminal Code. Thesesections govern the presence of an accused at his or her trial. Mr. Snelgrove alleges that this Court has erred in its

interpretation of thescope of these sections and whether they permitted counsel to discuss matters regarding the jury charge in Mr. Snelgrove’s absence. [12]

Section 650 requires the physical presence of an accused for the “whole” of his trial, except in specific situations, including aspermitted by

section 650.01. [13]

Section 650.01 states that where a designation of counsel in writing is filed with the court, that designation permits counsel toappear on behalf of an accused for “any part of the proceedings” except in three specific situations: where oral evidence is taken, wherejurors are selected, and an application for habeas corpus. [14] While

section 650 states that it is “subject” to

section 650.01, Mr. Snelgrove argues that

section 650.01 does not qualify section650 to the extent he could be absent from discussions between counsel and the trial judge regarding the jury charge. Mr. Snelgrovesubmits these discussions affected his “vital interests” and he ought to have been present.

[15] The proper scope of these sections and their application to Mr. Snelgrove’s circumstances is a legal question requiringlegislative

interpretation. Although the Supreme Court of Canada considered

section 650 in R. v. Barrow, (SCC), [1987]2 S.C.R. 694, and described the presence of an accused at his trial and those points where his “vital interests” are at stake as a“fundamental right”, that decision predates the enactment of

section 650.01.

Section 650 has yet to be interpreted by the Supreme Courtin light of

section 650.01 which explicitly permits the absence of an accused at “any” part of the proceedings except for the threeexceptions as described above. [16] If the proper

interpretation of the sections is as alleged by Mr. Snelgrove, then he may be able to establish that an erroroccurred in his being absent during the discussions between counsel and the judge. [17] Given the above, I am satisfied this ground of appeal is not frivolous. (

b) Will the applicant surrender himself into custody? [18] The crown conceded this criterion, and I agree, there is no issue that Mr. Snelgrove will surrender himself into custody. Sincehis arrest in 2015, Mr. Snelgrove has remained at large without issue until his conviction in May, 2021. He was released without issue inDecember 2021; pending appeal of the conviction and upon the appeal being dismissed, Mr. Snelgrove did not need to be arrested butvoluntarily surrendered himself into custody. Throughout his period of judicial interim release, Mr.

Snelgrove has been permitted totravel to Québec to work and also provided a surety, his wife, Ms. Parsons. In this Court, Ms. Parsons confirmed she is prepared to post asignificant sum of money, $10,000 in cash if necessary. [19] Mr. Snelgrove has a reasonable plan proposed for his release, similar to his previous terms of release, and has no previouscriminal record. [20] I am satisfied he will attend court as required, will abide by any terms of release pending his application (or appeal) to theSupreme Court of Canada, and will surrender himself into custody if unsuccessful in his application, or appeal. (

c) Is the applicant’s detention necessary in the public interest? [21] The real issue in these circumstances is whether it is in the public interest to continue to detain Mr. Snelgrove pending hisapplication for leave to the Supreme Court of Canada. There are two aspects to the public interest criteria: whether there are concernsrelated to public safety, and maintaining confidence in the administration of justice. [22] In these circumstances, there is no issue of public safety that cannot be addressed by the terms of the release order. As statedabove, Mr.

Snelgrove has abided by the terms of his release, and possesses no previous criminal record. [23] The issue is whether it is necessary to detain Mr.

Snelgrove to maintain public confidence in the administration of justice. [24] As explained by Moldaver J. in Oland at paragraphs 25-26, whether detention is necessary in the public interest to maintainconfidence in the administration of justice requires a balancing between two competing interests: the enforceability of the convictionagainst the reviewability of the conviction on appeal. [25] Ensuring the enforceability of the conviction respects “the general rule of the immediate enforceability of judgments” (Oland,at para. 25). [26] Against the need to respect the enforceability of judgments is the acknowledgement that the justice system is not “infallible”and that the availability of appellate review must be “meaningful” (Oland, at para. 45).

The stronger the case for an appeal, the more it isin the public interest that the individual not be detained. As stated in Oland, at paragraph 25, a meaningful review process would notrequire an individual to serve their sentence pending appeal, only to learn that the conviction upon which the sentence is based was“unlawful”. [27] It is not always an easy task for appellate judges to balance these competing interests.

As stated by Moldaver J. at paragraph 28of Oland: … Appellate judges continue to have difficulty resolving the tension between enforceability and reviewability, especially in cases likethe present one, where they are faced with a serious crime on the one hand, and a strong candidate for bail pending appeal on the other. [28] In assessing the reviewability and enforceability of the conviction, Oland suggests that the criteria under section 515(10)(

c) ofthe Code are instructive, with modifications, in the appellate context. This

section governs whether detention is warranted in order tomaintain confidence in the administration of justice prior to trial. Considerations under section 515(10)(

c) include: (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [29] Applying those considerations to the present circumstances, as recommended in Oland, I am satisfied Mr.

Snelgrove’s releaseis warranted, pending his application for leave to appeal. [30] With respect to the “gravity of the offence”, there is no dispute the offence is serious. Mr. Snelgrove has been found guilty ofcommitting a serious sexual assault in his capacity as a police officer. Having committed this offence while on duty as a police officer,

constitutes a violation of the public trust. As stated by Justice Khaladkar, in sentencing Mr. Snelgrove ( R. v. Snelgrove , 2021 NLSC 149 , at para. 33 ): Police officers take an oath to serve and protect members of the public. They swear that, in doing so, they will uphold the law and that they will abide by the values of the community that they serve. In performing their functions as police officers the community reposes in them a great deal of trust and power.

When a police officer commits a criminal offence the community’s trust suffers. [ 31 ] As well, the impact of the assault on the victim has been lasting. [ 32 ] I accept the gravity of the offence supports that Mr. Snelgrove’s continued detention from an enforceability standpoint is necessary. The more serious the offence, the more important the enforceability of the conviction to maintaining confidence in the administration of justice. [ 33 ] As well, it has been several years since the commission of the offence. As stated in R. v.

Drabinsky , 2011 ONCA 647 , at paragraph 9 , public confidence in the administration of justice may suffer if years go by before an accused serves his or her sentence. [ 34 ] On the other hand, there is no doubt that if Mr. Snelgrove is unsuccessful on either the leave application or appeal, he will be returned to custody to complete the remainder of his sentence.

The certainty of his return to custody should his application fail, helps to mitigate enforceability concerns. [ 35 ] With respect to the “strength of the prosecution’s case”, Oland “translated” this as an assessment of the strength of the grounds of appeal.

This consideration addresses the reviewability interest of the conviction. [ 36 ] While the strength of the grounds of appeal are considered for the purposes of the first criterion under section 679(3) (a), that is, whether the appeal is “not frivolous”, the grounds are reassessed more thoroughly as they relate to whether detention is required in the public interest. Moldaver J. stated, at paragraphs 41 and 42: In my view, allowing a more pointed consideration of the strength of an appeal for purposes of assessing the reviewability interest does not render the “not frivolous” criterion in s. 679(3) (

a) meaningless. On the contrary, the “not frivolous” criterion operates as an initial hurdle that produces a categorical “yes” or “no” answer, allowing for the immediate rejection of a release order in the face of a baseless appeal. Justice Donald put the matter succinctly, and in my view correctly, in Porisky , at para. 37: The express mention of “not frivolous” in s. 679(3)(

a) and “sufficient merit” in s. 679(4)(

a) does not, in my view, foreclose consideration of the merits for a purpose other than a threshold test. Once over the threshold, the applicant faces the question of the public interest, a phrase not defined in the legislation but which had to be given some limits if it was to survive constitutional scrutiny. That is what Farinacci did. In setting boundaries for the public interest criterion, in particular the public confidence element, Farinacci employed the merits assessment for a purpose different from the threshold test.

So I see no redundancy; nor do I doubt our authority to consider the merits as part of the public confidence question. [ 37 ] Looking more “pointedly” at the grounds articulated, I accept that several hurdles will need to be overcome before Mr.

Snelgrove is successful in his bid to challenge this Court’s upholding of his conviction. [ 38 ] As observed in several decisions from across the country, the public interest in the reviewability of a conviction by an individual who seeks leave to appeal to the Supreme Court of Canada is not on quite the same footing as an individual who has not yet had their issues addressed by a court of appeal: see Drabinsky , at paragraphs 10 and 13 ; R. v. Shaheen , 2022 ONCA 773 , at paragraph 13 ; and R. v. Iyer , 2021 ABCA 69 , at paragraph 10 . [ 39 ] Not only has the complaint of error alleged by Mr.

Snelgrove been addressed, this Court was unanimous in its conclusion that Mr. Snelgrove’s absence from discussions about the jury charge did not run afoul of

section 650. The Court was also unanimous that the language of both

section 650 and 650.01 was “straightforward and unambiguous” ( R. v. Snelgrove , 2023 NLCA 12 , at para. 55 ). [ 40 ] Mr. Snelgrove will have to establish to the Supreme Court of Canada not only that this Court’s conclusion regarding

section 650 was in error, but also that it is an issue that warrants an audience, and is of national importance. This further hurdle is a legitimate consideration of the merits of the appeal ( R. v. Checkowski , 2021 BCCA 19 , at para. 13 ). [ 41 ] Mr. Snelgrove pointed to other appellate decisions, in particular, R. v. E.(F.E.) , 2011 ONCA 783 ; R. v. Simon , 2010 ONCA 754 ; and R. v. Burnett 2021 ONCA 856 , as support for his argument that

section 650 required Mr. Snelgrove’s presence for discussions between counsel and the trial judge in chambers. He asserts that these decisions are contrary to the conclusion of this Court. However, as observed by this Court, none of these decisions addressed

section 650.01, and the effect of the designation of counsel. [ 42 ] Even if Mr. Snelgrove establishes that there is sufficient merit to his application for leave to be afforded a hearing before the highest court, he will then need to convince the Court of the alleged error. Even if he is successful in establishing that his absence from the discussions was in error, he will still need to convince the Supreme Court of Canada that this Court was wrong to conclude that the curative proviso in section 686(1) (b)(iv) applied to rectify any error permitted by his absence from those discussions.

In so concluding, this Court considered and found support in: R. v. Esseghaier , 2021 SCC 9 , Simon , Burnett , R. v. Cole , 2012 ONCA 347 , R. v. T. (L.W.) , 2008 SKCA 17 , and R. v. Iyamuremey , 2017 ABCA 276 . [ 43 ] Thus, while the grounds are by no means frivolous, success is also by no means assured at this point. [ 44 ] However, when I balance the merits of the interests in the enforceability of the conviction with the reviewability of the conviction, and the fact that there is a good plan in place to address the terms of release, and that there are no safety concerns, the balancing favours release.

I also do not ignore that the process of challenging this Court’s decision will take time, possibly longer than

the sentence Mr. Snelgrove is serving. As stated, the enforceability concern is mitigated by the fact that there is no doubt that if unsuccessful, Mr. Snelgrove will be returned to custody. [ 45 ] For the above reasons, the application for judicial interim release is allowed and Mr. Snelgrove will be released on the terms as proposed by his counsel. Ms. Parsons will act as surety and will promise $10,000 to secure Mr. Snelgrove’s release. There is no need to require a cash deposit in these circumstances. _____________________________ F.J. Knickle J.A.