R. v. Dow, 2013 NSCA 50

Nova Scotia Court of Appeal Citation: R. v. Dow , 2013 NSCA 50 Date: 20130425 Docket: CAC 414277 Registry: Halifax Between: Scott Vincent Dow Applicant/Appellant v. Her Majesty the Queen Respondent Restriction on Publication: 486 of the Criminal Code of Canada Judge: The Honourable Mr. Justice Jamie W.S. Saunders Motion Heard: April 25, 2013, in Halifax, Nova Scotia, in Chambers Held: Motion for judicial interim release granted. Counsel: Eugene Y.S. Tan, for the appellant Kenneth W.F. Fiske, Q.C., for the respondent Order restricting publication – sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii).

Decision: [ 1 ] After a trial before Nova Scotia Provincial Court Judge Alanna Murphy, Mr. Dow was convicted on October 12, 2012, on a charge of committing an indecent act contrary to s. 173 of the Criminal Code of Canada , R.S.C. 1985, c. C-46 and two charges of invitation to sexual touching contrary to s. 152 of the Criminal Code . [ 2 ] Judge Murphy’s lengthy decision (unreported) recites the facts and I need not repeat them here. Essentially, the judge was satisfied that Mr.

Dow had exposed himself and masturbated in a parked Ford SUV on a city street in Dartmouth and had invited two young girls to touch him during the act. The girls, aged 9 and 11 at the time, ran home and gave a description of the man and the vehicle to their mothers who alerted the police. At his trial Mr. Dow denied the allegations, saying that he had become lost while driving through an unfamiliar part of the city on route to his brother’s camp near Musquodoboit Harbour and was simply trying to loop back to the main highway when he was pulled over by the police. [ 3 ] In convicting Mr.

Dow Judge Murphy said she accepted the evidence of the two young complainants as to what had transpired, did not believe the testimony of the accused, rejected his explanation of how he happened to be in the area, and was not left in any reasonable doubt by the whole of the evidence. At the sentence hearing on March 4, 2013, Judge Murphy sentenced him to three months on the first charge; five months consecutive on the second charge and five months concurrent on the third charge, for a total sentence of five months “on a go forward basis”. She also imposed other corollary orders. [ 4 ] On April 11, 2013, Mr.

Dow, through his counsel, filed a notice of appeal from both his conviction and his sentence. He asks that his convictions be quashed and acquittals entered or, in the alternative, that his sentence be reduced or a new trial ordered. His grounds of appeal allege a series of errors centering around the trial judge’s consideration of the evidence as well as issues relating to credibility and identification. [ 5 ] This morning Mr. Dow moved in Chambers for judicial interim release pending his appeal pursuant to s. 679 of the Criminal Code .

In his affidavit filed in support of his request for bail the appellant swears that prior to these convictions under appeal he had never been convicted of a criminal offence. Counsel have since corrected that to reflect one prior conviction of failing to comply with an undertaking contrary to s. 145(3) for which he was sentenced to a single day, deemed served by his appearance in court.

He asserts that immediately following these allegations he separated from his former fiancé; that they have a son who resides with his mother; and that it is impossible for him to maintain any relationship with his son or meet his child support obligations while incarcerated. His continued imprisonment will, he says, permanently damage any relationship he has with his son.

He told me he immediately intends to seek employment at an industrial park outside Truro. [ 6 ] He proposes that he be released on a Recognizance to reside with his parents at their home in Truro, Nova Scotia bound by sureties posted by his mother and sister. [ 7 ] The application is not opposed by the Crown. [ 8 ] Section 679(1)(

a) of the Code provides: 679.

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

a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave is required, notice of his application for leave to appeal pursuant to

section 678; [ 9 ] Section 679(3) states the three prerequisites for release under s. 679(1)(a): Circumstances in which appellant may be released

(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 released pending 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. [ 10 ] It is obvious, but bears repeating that Mr. Dow’s status changed dramatically upon conviction. Whereas before, he was presumed innocent, he is now a convicted sex offender. That changes everything. Judge Murphy’s decision displaced the initial presumption of innocence with the reality of proven guilt. As a consequence, Mr. Dow now has the burden of satisfying me on a balance of probabilities that all three of the requisite statutory conditions for judicial interim release are met in his case. (For example, R. v. Barry , 2004 NSCA 126 ; R. v.

Cox , 2009 NSCA 15 ; R. v. MacIntosh , 2010 NSCA 77 ; R. v. Janes , 2011 NSCA 10 ; R. v. MacDonald , 2011 NSCA 46 ; and R. v. Publicover , 2011 NSCA 83 ). [ 11 ] Counsel for the appellant and the Crown are to be commended for working together and reaching an agreement of the terms and

conditions of Mr. Dow’s proposed release. Of course I must still be satisfied that the appellant ought to be released pending his appeal and that the prescribed terms are appropriate. [ 12 ] After considering counsels’ submissions, reviewing the record and completing my own rather extensive questioning of counsel, the appellant and his proposed sureties, I am so satisfied and will grant the appellant’s motion and approve the form of order and ancillary documents as drafted. Saunders, J.A.