R. v. Dugas, 2011 NSCA 109

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Dugas , 2011 NSCA 109 Date: 20111202 Docket: CAC 362840 Registry: Halifax Between: Luke Earl Dugas Applicant/Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Madam Justice Linda Lee Oland Motion Heard: November 24, 2011, in Halifax, Nova Scotia, in Chambers Written Decision: December 2, 2011 Held: Motion for release on bail pending appeal dismissed. Counsel: Mr. Dell C. Wickens, Q.C., for the appellant Ms. Jennifer MacLellan, for the respondent Decision : [ 1 ] Judge Robert M.J.

Prince convicted the appellant, Luke Earl Dugas, for break and enter into a dwelling house with intent to commit an indictable offence contrary to s. 348 of the Criminal Code of Canada , R.S.C. 1985, c. C-46. At the sentencing hearing, the appellant sought a conditional sentence. He was sentenced to 33 months incarceration in a federal institution. [ 2 ] The appeal against conviction and sentence has been set down for hearing on March 28, 2012. The appellant applied pursuant to s. 679(1)(

a) of the Code for release pending the determination of his appeal. His motion was heard in Chambers last week. At that time, the appellant and his proposed surety, his father Mr. Earl Dugas, were cross-examined on their affidavits and the appellant ’ s counsel and the Crown, both of whom had filed written submissions, made their oral submissions. At the conclusion of that hearing, I dismissed the motion with reasons to follow. These are those reasons.

[3]

Section 679 of the Code provides in part: 679.

(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determinationof his appeal if, (

a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal ...

(3) 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. [4] In order to succeed on his bail application, the appellant must satisfy all three criteria set out in s. 679(3). In R. v. Barry,[2004] N.S.J. No 392 (NSCA in Chambers), Justice Fichaud explained the onus of proof in bail hearings before this court: 8 Mr. Barry has the onus to establish each of the three conditions stated by s. 679(3). The conviction has substituted his initialpresumption of innocence with a status quo of guilt.

Unlike a pre-trial bail applicant, a convicted appellant "seeks to reverse the statusquo by obtaining a reprieve from a court order for his detention following conviction" and, therefore, has the burden to prove theconditions for release pending determination of the appeal: R. v. Branco (1993), (BC CA), 87 C.C.C. (3d) 71(B.C.C.A.), at p. 75 per Finch, J.A.; R. v. Butler, [1997] N.S.J. No. 391 at paras. 4-5; R. v. Ryan, [2004] N.S.J. No. 332, 2004 NSCA 105at paras. 2-3.

Affidavit and Viva Voce Evidence [5] The appellant’s criminal record shows 24 prior Criminal Code convictions and one for possession contrary to s. 4(1) of theControlled Drugs and Substances Act, S.C. 1996, c. 19. Since 2006, he has been convicted of an assortment of offences, includingpossession of marijuana, theft, possession of stolen property, fraud, obtaining credit by false pretences, impaired driving and mischief. Significantly, his criminal record shows four previous convictions for break and enters, namely two in 2006, and a further two in 2007.

After he was charged with the June 5, 2011 break and enter under appeal, the appellant remained in custody on remand until thesentencing hearing in November 2011. [6] Eight of the appellant’s 24 Criminal Code convictions are for breaches of court orders: four breaches of release conditionspursuant to s. 145 of the Code in 2006, and three breaches of probation orders pursuant to s. 733.1(1) in 2007, and a fourth in 2008. It isnoteworthy that in March of 2007, the appellant received a conditional sentence for a break and enter.

By early April he had breachedconditions and, as a result, was incarcerated for the remainder of the 12-month sentence. He indicated that a relapse into drug use causedthis breach. [7] The appellant is pending trial on charges of, among other things, driving without a license, and flight from the police contraryto s. 249 of the Code. He believes that other pending charges relating to alleged offences against a family member, such as utteringforged documents and theft under $5,000, will be dropped.

[ 8 ] Except when he was 18 years old and worked out west for a year, the 24 year old appellant has lived in the Meteghan area. Most of his life he has lived with his father. [ 9 ] The appellant has worked largely in the fishing industry. He believed that, if released pending trial, he would have employment on a lobster boat on which he had worked last season. Lobster season runs from early December to the last week of May, the boat goes out about 12 miles, and he would be on the boat from early morning until suppertime.

When weather prevents the lobster boat from heading out, and after the end of January when lobster fishing slows, the appellant testified that he would work at a lobster pound where he had previously worked. He says that he can show up on days when he is not on the boat and get work. [ 10 ] According to the appellant, his addiction to crack cocaine ended five years ago. He saw an addictions counsellor for several years, has been in contact with her recently, and said she would be willing to see him if released. Last June, he was convicted for possession of marijuana.

The appellant agreed that he was drinking at the time of the offence. He does not have a passport. [ 11 ] The appellant testified that if released from custody, he would reside with his father in Meteghan. Under cross-examination, he was forthright in stating that his father cannot control him when he leaves the house. [ 12 ] The appellant ’ s father responded to questions directly. According to Mr. Earl Dugas, his son is welcome to reside with him. He confirmed the work opportunity on the lobster boat that the appellant would have if released pending appeal. Mr.

Dugas has already signed as surety on a $1,500 recognizance in relation to other charges the appellant is facing. He is willing to sign as surety for $1,500 in support of this motion. [ 13 ] Mr. Dugas acknowledged that the offences for which his son has been convicted over the past several years were all committed by the appellant while he lived with him. He testified that he had expressed his strong displeasure to his son. His evidence did not substantiate the appellant ’ s testimony that he no longer used drugs and seldom drank.

According to the father, although the appellant doesn ’ t drink when around him, his son had started drinking while out west, hadn ’ t shaken his drinking habit, and can ’ t handle his booze. He stated that the appellant is sometimes easily led by friends whom he suspects may be supplying his son with drugs. [ 14 ] Mr. Dugas confirmed his affidavit evidence that he would report the appellant if he breached any of the release conditions. His evidence was that a $1,500 recognizance was all he could afford, and he had told his son that he wasn ’ t going to lose any money on him.

When the appellant is not working, Mr. Dugas cannot take time off work to be at home to supervise him. [ 15 ] I turn then to the three criteria set out in s. 679(3) which the appellant must establish in order to be granted release pending his appeal.

Not Frivolous [ 16 ] The appellant ’ s grounds of appeal submit that the judge erred in applying the law with respect to circumstantial evidence and reasonable doubt, and the nature and extent of the trial judge ’ s questioning of the appellant created at least an appearance of unfairness in the trial process. [ 17 ] The Crown concedes that, given the low threshold involved, the appeal is not frivolous. I agree.

Surrender Into Custody [ 18 ] The appellant ’ s record of eight breaches within the last five years of the terms of his release or probation give me no assurance that he will comply with the terms of any release he might be granted. On the stand, the appellant was very matter of fact in confirming these breaches. There was no suggestion in his evidence that he regretted his failures to abide by court orders or that he had learned anything and would comply. It is apparent to me that, in the words of Crown counsel, court orders “ do not bind his conscience. ”

[19] On the other hand, the appellant has lived, worked, and enjoyed family support most of his life in the Meteghan area. He hasno real continuing links out west. I do not think that he is likely to go elsewhere and there is no indication that he has ever failed toappear in court. [20] On balance, I am persuaded that the appellant would surrender himself into custody. Public Interest [21] However, I am not persuaded that the appellant has met the onus of demonstrating that his release pending the hearing of hisappeal would be in the public interest. [22] In R. v.

Janes 2011 NSCA 10, Beveridge, J.A. reviewed the principles in regard to this requirement that must be consideredand balanced. His decision reads in part: 27 The competing interests at play in assessing public interest has been the subject of considerable judicial comment.

In Nova Scotia,it has been accepted that the Court must be concerned about a number of factors, both from the perspective of public safety in the senseof what is the likelihood of the appellant committing further offences or posing a danger to himself or others if released, and also, whatwould be the potential impact on the public image of the administration of justice if the appellant was required to remain in custody or isreleased. 28 This approach was described by Cromwell J.A., as he then was in R. v. Ryan, 2004 NSCA 105: [21] I agree with former Chief Justice McEachern when he wrote in R. v.

Nugyen (1997), (BC CA), 119 C.C.C.(3d) 269 (B.C.C.A. Chambers) at paras. 15-16 that the public interest requirement in s. 679(3)(

c) means that the court should consider anapplication for bail with the public in mind. He went on to add that doing so may mean different things in difference contexts: In some cases, it may require concern for further offences. In other cases, it may refer more particularly to public respect for theadministration of justice. It is clear, however, that the denial of bail is not a means of punishment.

Bail is distinct from the sentenceimposed for the offence and it is necessary to recognize its different purpose which, in the context of this case is largely to ensure thatconvicted persons will not serve sentences for convictions not properly entered against them. (Emphasis added) [22] I also think it important to remember in applying the public interest criterion that it must not become a means by which publichostility or clammer is used to deny release to otherwise deserving applicants: see Gary Trotter, The Law of Bail in Canada, 2nd ed.(Carswell, 1999) at p. 390. [23] Underlying the law relating to release pending appeal are the twin principles of reviewability of convictions and the enforceabilityof a judgment until it has been reversed or set aside.

These principles tend to conflict and must be balanced in the public interest. AsArbour, J.A. (as she then was) pointed out in R. v. Farinacci (1993), (ON CA), 86 C.C.C. (3d) 32 at 48: Public confidence in the administration of justice requires that judgments be enforced. ... On the other hand, public confidence in theadministration of justice requires that judgments be reviewed and errors, if any, be corrected. This is particularly so in the criminal fieldwhere liberty is at stake. [24] Justice Arbour then went on to discuss how these two competing principles may be balanced in the public interest:

Ideally judgments should be reviewed before they have been enforced. When this is not possible, an interim regime may need to be put inplace which must be sensitive to a multitude of factors including the anticipated time required for the appeal to be decided and thepossibility of irreparable and unjustifiable harm being done in the interval. This is largely what the public interest requires to beconsidered in the determination of entitlement to bail pending appeal. [25] This statement was cited with approval by my colleague Chipman, J.A. in R. v.

Innocente, supra. 29 This approach has been relied upon in numerous cases. See R. v. Barry, 2004 NSCA 126, para. 10; R. v. Cox, 2009 NSCA 15, para.11; and most recently by Fichaud J.A. in R. v. MacIntosh, 2010 NSCA 77. 30 Chief Justice MacEachern in R. v.

Nugyen (1997) (BC CA), 119 C.C.C. (3d) 269 reviewed a number ofauthorities and concluded: [18] ...The principle that seems to emerge is that the law favours release unless there is some factor or factors that would cause "ordinaryreasonable, fair-minded members of society" (per O'Grady at 4 [p. 139 C.C.C.]), or persons informed about the philosophy of thelegislative provisions, Charter values and the actual circumstances of the case (per R. v.

K.(K.), at 54), to believe that detention isnecessary to maintain public confidence in the administration of justice. 31 Factors that should be considered are the circumstances of the offence, as far as they are known, the circumstances of the offender,the seriousness of the offence, and the degree to which the public can feel protected by appropriate terms of release. [23] My concerns include the safety of the public, the possibility that, if released, the appellant will commit an offence, and themaintenance of public confidence in the administration of justice. [24] The appellant is appealing his conviction for break and enter into a dwelling.

At age 24, he already has a considerable criminalrecord. This was not his first, but his fifth conviction in five years for the serious offence of break and enter. [25] The appellant shows a cavalier attitude with regard to breaching earlier court orders. As I stated earlier, his history of eightbreaches in five years substantially reduces any confidence that, unless closely supervised, he will comply with the terms of any release. [26] The appellant submits that, if released, he would be busy on the lobster boat. He argues that, as a result, he would stay out oftrouble.

However, the evidence is that the lobster season will slow considerably within two months. The appeal will not be heard forfour months. If he should not be able to obtain work daily at the lobster pound, his only alternative, the appellant would not be engagedduring the daytime. [27] I am satisfied that Earl Dugas would report the appellant if he were aware of any breaches of release conditions. Theappellant’s father is willing, once again, to act as surety for his son. However, the evidence from both the son and the father makes itclear that, despite his best and continuing efforts, Mr.

Dugas has little influence over his son and what he does. The appellant himselftestified that his father cannot control him once he leaves his house. The father’s views have not served to persuade the son to change hisways. The offences and breaches were all committed while the appellant lived in his father’s residence, which is exactly what isproposed again.

Because of his work obligations, the father cannot be there when his son is not working. [28] The recent conviction for possession of marijuana, the oral evidence regarding the appellant’s use of drugs and alcohol, and thefact that he had been drinking when an offence was committed, indicate that the appellant lacks self-control. [29] The jurisprudence requires that I consider an application for bail with the public in mind. The facts before me show thepossibility of irreparable harm being done if the appellant is released pending appeal.

He has not convinced me that he will comply withrelease terms on his own, and he cannot be well supervised during the entire period until his appeal is heard and decided. Havingconsidered the circumstances of the offence and of the offender, the seriousness of the offence and the degree to which the public can

feel protected by the proposed terms of release, it is my view that detention pending appeal is necessary to maintain public confidence in the administration of justice. Disposition [ 30 ] The appellant ’ s motion for release pending the determination of his appeal is dismissed. Oland, J.A.