R. v. K.M.F., 2018 NSCA 58

Nova Scotia Court of Appeal Citation: R. v. K.M.F. , 2018 NSCA 58 Date: 20180628 Docket: CAC 470357 Registry: Halifax Between: K.M.F. Appellant v. Her Majesty the Queen Respondent Restriction on Publication: pursuant to s. 110(1) and s. 111(1) of the Youth Criminal Justice Act Judge: Farrar, J.A. Motion Heard: June 14, 2018, in Halifax, Nova Scotia in Chambers Held: Leave to appeal granted; Motion for bail pending appeal dismissed. Counsel: Michelle D.

James, for the appellant Jennifer MacLellan, Q.C., for the respondent PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 110 (1) and s. 111(1) OF THE YOUTH CRIMINAL JUSTICE ACT , S.C. 2002, c. 1 APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. 110. (1) – Identity of offender not to be published – Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. 111. (1) – Identity of victim or witness not to be published – Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Decision: Overview [ 1 ] K.M.F. pled guilty to attempted arson contrary to s. 433 (

a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. On October 12, 2017, Provincial Court Judge Claudine MacDonald sentenced her to a 24-month Custody and Supervision Order less six months for the time she spent in remand. The end result was 12 months in custody and six months community service. [ 2 ] The appellant appealed from sentence only and sought bail pending appeal pursuant to s. 679 of the Criminal Code . [ 3 ] I heard the bail motion in Chambers on June 14, 2018. After hearing evidence and the submissions of counsel I dismissed the motion with reasons to follow. These are those reasons.

Background [ 4 ] The appellant was convicted of a serious offence, the facts of which are disturbing. [ 5 ] On May 2, 2017, K.M.F.’s adoptive parents and her younger sister were sleeping in the family home. K.M.F. locked them in their rooms and attempted to burn down the house. She told a psychologist who assessed her that she had decided in the days before the offence that she was going to kill her family. [ 6 ] In attempting to burn the house down, K.M.F. used an accelerant, which she had tested prior to spreading it.

She created an “effigy” of herself which she left in her bed, hoping it too would burn and distract the authorities. She spread the accelerant outside the locked doors of her sister’s and parents’ bedrooms and along the possible escape route. She then set a paper towel on fire, threw it on the accelerant, took her cat and left the house.

Fortunately, her plan was not successful – no one was injured and the house survived. [ 7 ] The Pre-sentence Report and an Assessment Report provided to the sentencing judge describe a very troubled young person who has a challenging history and significant emotional and behavioral issues. [ 8 ] In addition, at the hearing of the bail motion, there was evidence from K.M.F.’s treating psychologist at the Nova Scotia Youth Centre in Waterville, Nova Scotia, both by way of affidavit and cross-examination during the hearing. [ 9 ] The psychologist explained that K.M.F. suffers from complex trauma issues which require lengthy ongoing treatment.

She suffered profound trauma as a child in the hands of her biological parents. She was introduced to prostitution by an older male at 12 or 13 years of age. She has a history of drug abuse. [ 10 ] Her treatment to date has focused on prevention of self-harm. The psychologist testified that K.M.F. employs self-harm behaviour as a coping strategy. Although new coping strategies have been introduced to try to offset the self-harm, K.M.F. has continued to self-harm herself.

While at the Youth Centre she used staples from scribblers and improvised items (a sharpened plastic knife) to scratch on her arms and cut herself. She also broke her eyeglasses to use the pieces to cut herself. [ 11 ] The psychologist was of the view that K.M.F. requires significant, ongoing treatment during and after custody. [ 12 ] Her treatment team at Waterville wanted to apply for Non-Intensive Rehabilitation Custody and Supervision Order (NIRCS), which would have provided $50,000 per year worth of funding to K.M.F.’s ongoing treatment and rehabilitation in the community.

K.M.F. declined to participate in NIRCS. [ 13 ] The release plan, if K.M.F. was granted bail, was for her to live with S.T. in Debert, Nova Scotia. S.T. was also prepared to act as her surety. S.T.’s sister is married to K.M.F.’s older brother. Issue [ 14 ] The only issue to be determined was whether K.M.F. should be granted bail pending appeal? Analysis [ 15 ]

Section 679 of the Criminal 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, … (

b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; or …

(4) In the case of an appeal referred to in paragraph (1)(b), 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. [ 16 ] Nova Scotia Civil Procedure Rule 91.24(1) states: 91.24

(1) An appellant who appeals against sentence only, is in custody, and wishes to be released pending appeal must make a motion to a judge of the Court of Appeal for leave to appeal, which motion may be heard together with a motion for an order for release under

section 679 of the Code and be determined before or at the same time as the motion for release is determined. Leave to Appeal [ 17 ] K.M.F. is only appealing her sentence. Before she can seek bail pending appeal I must grant leave to appeal. [ 18 ] In R. v. DeYoung , 2017 NSCA 13 , this Court set out the test for leave to appeal as follows:

[31] In Nova Scotia the test for leave requires that the grounds of appeal raise “arguable issues” or are “not frivolous” (See R. v.Johnston, 2014 NSCA 78 and authorities cited therein). [19] The grounds of appeal as set out in the Notice of Appeal are as follows: The Sentencing Judge committed errors in principle/law by failing to consider or give sufficient weight to relevant sentencing principlesunder the Youth Criminal Justice Act, leading to a manifestly unfit sentence; The Sentencing Judge failed to give appropriate credit for pre-trial custody in these circumstances; The Sentencing Judge deducted credit for pre-trial custody from the global sentence, rather than from the custodial portion of thesentence; And any other ground of appeal that may arise from a complete review of the transcript. [20] In her brief, however, the appellant only argued one ground of appeal: that was, whether the sentencing judge erred in failing todeduct credit for pre-trial custody from the custodial portion of the sentence.

The argument in the appellant’s brief is short and I willreproduce it here: With respect to the Motion for Leave to Appeal Sentence, it is respectfully submitted that the Learned Sentencing Judge incorrectlyapplied the credit given for Ms. [F.]’s pre-sentence custody. The credit given was subtracted from the entirety of the custody andsupervision order that was deemed appropriate. This is found at Page 178, Line 4 through 8 of the sentencing decision.

Pursuant to theprovisions of the Youth Criminal Justice Act, a custody and supervision order is served by the young person being in custody for the first⅔ of the order, followed by ⅓ on conditions in the community. To subtract the remand credit from the total length of the order is toeffectively reduce the credit given by ⅓.

The Appellant submits that the remand credit should have been deducted from the custodialportion of the sentence. [Emphasis added] [21] There were no submissions in the brief on the ground of appeal which alleged the sentence was manifestly unfit. [22] During oral argument, appellate counsel said the appellant would also be arguing that the sentence is manifestly unfit as aground of appeal, separate and distinct from the remand credit issue. No legal argument was submitted or case law provided whichwould suggest that the sentence was manifestly unfit.

As a result I was not prepared to consider it when determining leave. [23] However, I was satisfied that there was an arguable issue on the remand ground of appeal. In R. v. D.M.T., 2012 ABCA 142,the Alberta Court of Appeal takes the approach being suggested by the appellant in this case, that is, the remand credit should bededucted from the custodial sentence and not the overall sentence. I would also point out there are three other courts of appeal whichtake a different view.

As the issue has not been considered by this Court, I was satisfied it was arguable and granted leave to appeal. [24] I will now turn to the other requisites to granting bail. Criminal Code ~

Section 679 [25]

Section 679 requires me to consider the following: 1. Whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if she were detainedin custody; 2. Whether she would surrender herself into custody in accordance with the terms of the bail order; and 3. Whether her detention is not necessary in the public interest. [26] It is not necessary for me to address the first two parts of the test. In my view, the motion fails when the public interest isconsidered. Her detention is not necessary in the public interest [27] Recently, in R. v.

Oland, 2017 SCC 17, the Court said the following when discussing how appellate judges should approachthe final balancing of the public interest criteria: (

a) The Final Balancing [47] Appellate judges are undoubtedly required to draw on their legal expertise and experience in evaluating the factors that informpublic confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks.However, when conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to bemeasured through the eyes of a reasonable member of the public.

This person is someone who is thoughtful, dispassionate, informed ofthe circumstances of the case and respectful of society’s fundamental values: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras.74-80. In that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about thecase, which has no role to play in the decision to grant bail or not. [48] In balancing the tension between enforceability and reviewability, appellate judges should also be mindful of the anticipateddelay in deciding an appeal, relative to the length of the sentence: R. v.

Baltovich (2000), (ON CA), 47 O.R. (3d) 761(C.A.), at paras. 41-42. Where it appears that all, or a significant portion, of a sentence will be served before the appeal can be heard anddecided, bail takes on greater significance if the reviewability interest is to remain meaningful. In such circumstances, however, where a

bail order is out of the question, appellate judges should consider ordering the appeal expedited under s. 679(10) of the Code . While this may not be a perfect solution, it provides a means of preserving the reviewability interest at least to some extent. [Emphasis added] [ 28 ] In R. v. McCormick , 2012 NSCA 58 , Justice Beveridge provided a more expansive list of what should be considered when determining whether release would be in the public interest: [33] The competing interests at play in assessing public interest has been the subject of considerable judicial comment.

In Nova Scotia it is accepted that a judge must be concerned about a number of factors in assessing “public interest”, chiefly in terms of public safety, in the sense of what is the likelihood of the appellant committing further offences or posing a danger to himself of others if released .

But also, what would be the potential impact on the public’s perception of the administration of justice if the appellant was required to remain in custody or is released. … [36] In my opinion, the factors that should be considered in carrying out this analysis 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 and the apparent strength of the grounds of appeal and hence the risk of possibly unwarranted deprivation of liberty should release not be granted. [Emphasis added] [ 29 ] I am satisfied K.M.F.’s detention is necessary when the public interest is taken into consideration.

To explain why some further context is necessary. [ 30 ] At the hearing of this motion, K.M.F. swore an affidavit and was cross-examined extensively. During her cross-examination, she denied setting the fire in her parents’ home saying that an individual by the name of “Dylan” did it and she took the fall for him. [ 31 ] There was no ground of appeal advanced against conviction, no request to introduce fresh evidence and no suggestion that she wished to resile from her guilty plea. Yet, she now denies having committed the offence.

I was left with the impression that she was attempting to lessen her involvement in the offence in an attempt to downplay the seriousness of it. [ 32 ] She also said, more than once, that her feelings for her parents goes beyond dislike, she “hates them”. [ 33 ] S.T. , her proposed surety and guardian, filed an affidavit and was cross-examined by the Crown. Her evidence revealed she lives in Debert and works as a security guard working shifts from 4 p.m. to 2 a.m., three days on, three days off. [ 34 ] S.T. lives with her husband and younger daughter.

Her husband is a truck driver who works 9 to 5, Monday to Friday. [ 35 ] In cross-examination it became clear to me that S.T. had very little insight into the seriousness of K.M.F.’s condition or the treatment she requires. For example, in discussing K.M.F.’s drug use, and the charges for which she was before the court, S.T. suggested that it was because she was “stuck in a rut and made stupid decisions”. She also blames the peers K.M.F. was hanging around with as being a problem for her.

She said that she believed K.M.F. about her involvement in the offence, that is, that “Dylan” had committed it and that K.M.F. had taken the fall for him. [ 36 ] She also said that her relationship with K.M.F. was “more or less based on trust” saying “I trust what [K.M.F.] says”. [ 37 ] She also believed K.M.F. had been abused by her adoptive parents and shared K.M.F.’s dislike of her parents.

When informed in cross-examination the police had cleared [K.M.F.]’s adoptive parents of any abuse charges she still said she believed K.M.F. [ 38 ] Finally, she said she didn’t believe that K.M.F. wanted to burn the house down, despite K.M.F. advising a psychologist, shortly after committing the offence, she wanted to kill her family. [ 39 ] With respect to treatment, S.T. had made no contact with anyone in an effort to get treatment for K.M.F. At one point she said she would like to get “one person to help her with everything”. [ 40 ] The closest services that would be available would be in Truro.

No thought had been given by S.T. as to what arrangements would need to be put in place to provide K.M.F. with continuing treatment. [ 41 ] I should point out that K.M.F.’s treating psychologist took it upon herself to make a tentative appointment with a psychologist in Truro in the event bail was granted. [ 42 ] The treating psychologist, in her affidavit, questioned S.T.’s suitability as a placement. So do I.

Her lack of insight into the issues, her trust and belief in anything K.M.F. says and the lack of recognition of the seriousness of the offence calls into question her ability to adequately address the issues in K.M.F.’s life and to adequately monitor K.M.F.’s behaviour. [ 43 ] There is also the added concern about K.M.F. moving to a new home, with a new family in a new community, with new peers and she would be doing so with less structure.

K.M.F. had never lived in Debert and, at best, may have visited one night, with her adoptive parents, at S.T.’s house. [ 44 ] K.M.F. also attempted to downplay her role in this very serious offence clearly in an effort to obtain her release. [ 45 ] K.M.F. is suffering from complex issues that require continuing treatment. She is continuing to self-harm and continues to express a deep hatred of her parents. The plan put before me for releasing K.M.F. back into the community lacks structure. Looking at

S.T. and her husband’s work schedules and the fact they have to care for another child leads me to have concerns that K.M.F. will get the kind of supervision she requires. S.T. displayed a complete lack of understanding and naivety with respect to K.M.F.’s issues. If released, I had concerns that K.M.F. would cause harm to herself and others, potentially S.T., or her family. [ 46 ] To borrow from the words of the Supreme Court of Canada in R. v.

Oland ; in looking at public confidence through the eyes of a reasonable member of the public, someone who is thoughtful, dispassionate and informed of the circumstances of this case, a reasonable person would conclude K.M.F.’s detention is necessary in the public interest. [ 47 ] For these reasons, I denied bail. Farrar, J.A.