R. v. Publicover, 2011 NSCA 83

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Publicover , 2011 NSCA 83 Date: 20110915 Docket: CAC 348345 Registry: Halifax Between: Corey Publicover Applicant/Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders Motion Heard: September 15, 2011, in Halifax, Nova Scotia, in Chambers Written Decision: September 15, 2011 Held: Motion for release on bail pending appeal dismissed. Counsel: Applicant/appellant in person Mark Scott for the respondent Decision : (Orally) [ 1 ] This is a prisoner appeal. Mr. Publicover is self-represented.

He has applied for release on bail pending his appeal. [ 2 ] The record discloses that on March 24, 2011, the appellant appeared before Nova Scotia Provincial Court Judge Marc C. Chisholm to answer to a series of charges alleged to have been committed between May 2010 and February 2011 and which included theft, breach of probation, public mischief and possession of stolen property. Mr. Publicover personally entered pleas of guilty to the consolidation of charges, while represented by his defence lawyer.

After considering the submissions of the defence and the Crown, together with the personal representations made by the appellant at the hearing, Chisholm, P.C.J. sentenced the appellant to a series of concurrent and consecutive sentences, for a total of nine months’ incarceration consecutive to the sentence that he was already serving at the time. [ 3 ] On May 4, 2011, the appellant filed a handwritten notice of appeal by which he seeks leave to appeal and appeals the sentence. Essentially, the appellant makes two claims; first, that his sentence is too long, and second, that it should be reduced on the

basis that certain extant charges (not on the docket) were not withdrawn by the Crown following the consolidation, guilty pleas, and sentencing before Judge Chisholm last March. [ 4 ] Mr. Publicover’s appeal is scheduled to be heard by a panel of this Court on November 30, 2011. [ 5 ] On August 26th he filed a notice of motion seeking his release from custody pending the hearing of his appeal.

Attached to his notice of motion was an “affidavit” bearing his signature but neither dated nor sworn, to which he attached two handwritten letters, dated March 25th and August 26th, respectively. [ 6 ] The Registrar sent letters to Mr. Publicover at the institution in which he is incarcerated in which she provided explicit directions outlining the requirements for such a motion and explained in detail why the appellant’s documentation was deficient. The matter was set down to be heard in Chambers on today’s date. [ 7 ] The Crown opposes the appellant’s request for bail pending appeal.

Its reasons are thoroughly articulated in the excellent pre-hearing brief filed by Mr. Scott. [ 8 ] At the hearing Mr. Publicover confirmed receiving the Registrar’s letters and the Crown’s brief. After I explained certain procedural matters and reviewed with him what the law requires, Mr. Publicover chose to take the stand to solemnly affirm the contents of his affidavit, and to testify in support of his sought-after release. [ 9 ] This being an appeal against sentence only, the provisions of s. 679(4) of the Criminal Code apply. The

section provides:

(4) In the case of an appeal referred to in paragraph (1)(b) [i.e. an appeal to the court of appeal against sentence only], the judge of the court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by a judge of the court of appeal if the appellant establishes that (

a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (

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. [ 10 ] As I explained to the appellant, he has the onus of establishing all of these legal requirements in order to secure his release. [ 11 ] For the reasons that follow I would dismiss the appellant’s motion. I need not comment on the merits, if any, of Mr. Publicover’s intended appeal.

Rather, my decision to dismiss is based on his failure to persuade me that his continuing detention would cause unnecessary hardship; that he would surrender himself into custody in accordance with the terms of any prescribed order; or that his continuing detention would not be in the public interest. Hardship [ 12 ] The appellant cites his mother’s financial difficulties and the illness of his common law wife as amongst the reasons for his release. Other than Mr. Publicover’s assurances, there is no independent evidence to confirm either of these assertions.

Indeed, according to the comments of the Crown attorney at the sentencing hearing, the appellant’s common law wife is one Kristin Rau. She is

not only the co-accused of Mr. Publicover and the subject of numerous breach conditions on the record, but the extant matters scheduled for trial on October 26, 2011, allege an assault upon Ms. Rau and a breach of Recognizance which obliged the appellant to have no contact directly or indirectly with her. Consequently, a Recognizance is currently in place which prohibits any contact between the two. [ 13 ] Further, the appellant is seeking a reduction of approximately two months in his prison sentence.

Keeping in mind that at the time of sentencing approximately 90 days remained on his other sentences [to which the sentence under appeal runs consecutive], the warrant expiry – even if Mr. Publicover were successful on his appeal – may well be after the hearing is held, or a decision rendered. The Crown has indicated in its pre-hearing memorandum that Mr. Publicover’s early release date appears to be October 9, 2011, but that it is uncertain whether release on that date will be automatic. Surrender into Custody [ 14 ] Mr. Scott’s pre-hearing brief meticulously tracks Mr.

Publicover’s extensive criminal record and the routine recidivism that attends his release. I accept his submission and will quote it verbatim: The Applicant’s criminal record consists of sixty-two convictions since 1995. Within these sixty-two convictions there are twenty-four breaches of Court Orders, twenty-two property-related offences, nine violent offences (including robbery), two escaping lawful custody, and one misleading a peace officer. A review of his circumstances from early 2010 until present reveal the imposition of three intermittent sentences which were collapsed by virtue of swift reoffending.

Many sentences came days after the offence date. This would indicate quick arrest and guilty pleas following remand. On the Applicant’s most recent intermittent sentence, (February 14, 2011) he reoffended on 18 February, before the start date of his first period of intermittent incarceration. Moreover, a review of the Applicant’s total record confirms the comments by his counsel that he has been incarcerated for much of the past thirteen years.

Not only do the CDSA offences and numerous breaches belie his assertion that he was doing well on his methadone program; recent escaping lawful custody and the plethora of breaches cannot satisfy this Court that he will surrender into custody. Indeed, it appears that a mere matter of days is all that is required for re-offending. [ 15 ] In the face of such a record, I have no confidence that Mr. Publicover would comply with any terms I might impose. The Public Interest [ 16 ] On the material before me the appellant has no true release plan and no sureties proposed. His employment “chances” are not substantiated.

The appellant’s vague references to potential part-time work with a “Mr. Morash” without any evidence from the man himself are hardly a foundation upon which to build a suitable release plan. Mr. Publicover’s professed success in following his methadone treatment for the past five years as being the basis for his guarantee to me that he would comply with any terms I might impose, does not stand up to scrutiny. In the past year and a half the appellant’s liberty has been short-lived due to his own criminal re- offending.

Even sanctions involving intermittent sentences appear to have been collapsed with alarming speed and frequency, on account of his tendency to quickly re-offend. In such circumstances, Mr. Publicover’s release would not be in the public interest, even if his earliest possible release date may pass before the merits of his appeal are considered. [ 17 ] For all of these reasons, Mr. Publicover’s motion for release on bail pending appeal is dismissed. Saunders, J.A.