R. v. Downey, 2021 NSCA 38

Nova Scotia Court of Appeal Citation: R. v. Downey , 2021 NSCA 38 Date: 20210429 Docket: CAC 487434 Registry: Halifax Between: Daniel Downey Appellant v. Her Majesty the Queen Respondent Judge: Beveridge, J.A. Motion Heard: April 29, 2021, in Halifax, Nova Scotia in Chambers Written Decision: May 7, 2021 Held: Motion granted Counsel: Peter Planetta, for the appellant Glenn Hubbard, for the respondent Decision: [ 1 ] On April 29, 2021, I heard Mr. Downey’s application for bail pending appeal. Two of the proposed four sureties were cross- examined. At the end of argument, I reserved my decision.

I returned to announce the bottom line: the applicant had met his onus under s. 679(3) of the Criminal Code , and I granted a Release Order on the proposed stringent conditions of house arrest with a pledge of real and personal property of $110,000. I promised written reasons would follow. These are they. [ 2 ] On March 15, 2019, a jury found the applicant guilty of unlawful confinement and kidnapping of Liam Thompson, and of being an accessory after the fact to Shawtez Downey’s murder of Tyler McInnis.

All of these offences were committed during the evening of August 22, 2016. [ 3 ] The evidence found to have been accepted by the jury is disturbing and reveals serious criminal conduct. Tyler McInnis went to North Preston to meet the applicant’s older brother, Shawntez Downey, to trade cocaine for a handgun. A witness described how Shawntez Downey announced his intention to rob Mr. McInnis. [ 4 ] Mr. McInnis showed up with Liam Thompson. During the robbery, Shawntez Downey had a handgun. Ronald Sock told Mr. Thompson to get out of the car and lay down on the ground; he said this decision was his alone. [ 5 ] Mr.

McInnis ran away after Shawntez Downey struck him with the handgun. Shawntez Downey, the applicant and others pursued. Ronald Sock tied up Liam Thompson with a dog leash. Sometime later, the applicant returned and told Sock they had to get Thompson into the car and move it. The applicant drove the car to a different location, and then left. [ 6 ] Ronald Sock heard a shot. Fifteen minutes later, the applicant returned and moved the car to a new location where they saw Tyler McInnis’ body wrapped in plastic. Sock, Shawntez Downey and another put the body into the trunk.

With Liam Thompson in the backseat and the victim in the trunk, Shawntez Downey drove to a local graveyard. Once there, Shawntez Downey used a large calibre rifle to shoot at Liam Thompson at very close range. Miraculously, he suffered no serious injury. At trial, Mr.

Thompson professed no memory of any of the events after their arrival in North Preston. [ 7 ] On November 25, 2019, the trial judge sentenced the applicant to four years’ incarceration for the kidnapping offence and three years’ consecutive incarceration for being an accessory after the fact to murder, less credit for pre-sentence custody ( 2019 NSSC 384 ). She judicially stayed the unlawful confinement conviction based on the rule against multiple convictions for the same wrongful conduct. [ 8 ] The applicant appealed from conviction and sentence. Shawntez Downey appealed from conviction.

Both appeals were to be heard on December 9, 2020. On November 25, 2020, the Court adjourned the hearing to March 17, 2021 at the request of Alan Gold, who had just assumed carriage of Shawntez Downey’s appeal. [ 9 ] The March 17, 2021 hearing did not go ahead. It is important to understand why as it impacts on the mandated requirement for the Court to balance the applicant’s right to effectively challenge his conviction and sentence and society’s interest in immediate enforcement of the Court’s decision. [ 10 ] In early December 2020, Mr.

Gold sent to the Crown a witness statement that had been in possession of former defence counsel

for some time. No specific details are known. What has been disclosed is that this witness apparently describes a scenario other than Shawntez Downey having murdered Tyler McInnis. Other differences, if any, between what Ronald Sock had described and the witness statement are unknown. [ 11 ] The Crown appropriately forwarded the witness statement to the police in December 2020 for investigation. The applicant is not privy to the status of that investigation. The only detail provided by the Crown was that investigators have carried out a detailed interview of the witness.

Amendments of the grounds of appeal for both Daniel Downey and Shawntez Downey are anticipated. With this background, I turn to the principles that guide an application for bail pending appeal and their application. The Principles [ 12 ] There is no dispute between the parties about the test or the principles that inform its application. In R. v. Oland , 2017 SCC 17 , the Supreme Court of Canada in its unanimous decision, reinforced the approach already applied by the Nova Scotia Court of Appeal as well as a host of other appellate courts.

Justice Moldaver’s reasons provide useful additional guidance. [ 13 ] A judge of a court of appeal is given the power to release an appellant pending determination of his appeal by s. 679 of the Criminal Code . The relevant parts of the

section are: 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; ...

(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. [ 14 ] The applicant must establish to my satisfaction all three criteria: the appeal is not frivolous; he will surrender himself into custody in due course; and, his detention is not necessary in the public interest. The burden is the civil one, the balance of probabilities. The appeal is not frivolous [ 15 ] The applicant’s Notice of Appeal sets out a number of grounds of appeal.

They contend: the verdict is unreasonable or cannot be supported by the evidence; the trial judge should have granted his motion for a directed verdict and her reasons were inadequate; the trial judge’s jury instructions on forcible confinement and kidnapping were flawed; and, the trial judge committed legal error in imposing consecutive as opposed to concurrent periods of incarceration for the counts of accessory after the fact to murder and kidnapping. [ 16 ] The Crown does not suggest the appeal is frivolous. As noted by Moldaver J. in R. v.

Oland , the not frivolous test is widely recognized as a very low bar. Even without the prospect of an amendment of the grounds in response to the ongoing police investigation, I am satisfied the grounds are not frivolous. [ 17 ] That is not the end of the potential role for the apparent strengths of the grounds of appeal. I will return to this issue later. Will the applicant surrender himself into custody? [ 18 ] The Crown raises no concerns about this criterion, nor whether the applicant will abide by the terms of his release. [ 19 ] The applicant is from Nova Scotia.

His family, including his current partner and their 18-month-old child, live in Dartmouth. He has no history of a failure to appear. The proposed Release Order would require him to live with his partner, their young son, and his partner’s mother on virtual house arrest, except for scheduled employment or education, and to have no contact with named individuals. [ 20 ] When he committed these offences, the applicant was just 18 years of age. He had recently graduated from high school.

The trial judge commented favourably on the applicant’s family and community connections, his efforts to pursue programming while in custody, and his acceptance into NSSC. [ 21 ] The applicant was on judicial interim release without incident from August 22, 2018 to March 15, 2019, with his grandmother and father acting as sureties. [ 22 ] I am satisfied that whatever the outcome of the appeal proceedings, the applicant will surrender himself into custody. Is the applicant’s detention not necessary in the public interest? [ 23 ] It is this issue that is the real battleground between the applicant and the Crown.

The criterion whether detention is not “necessary in the public interest” poses difficult questions. What is meant by the “public interest”? How is it to be assessed, and when can it be said denial of bail is necessary as opposed to unnecessary?

[24] Arbour J.A. (as she then was) in R. v. Farinacci (1993), (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), found thepublic interest criterion had two components: public safety and public confidence in the administration of justice. Public safety relates tothe protection and safety of the public. Public confidence requires the Court to engage in a balancing exercise as between immediateenforceability of the trial judgment and the need for appellants to have a meaningful right of review. This has been the approachrepeatedly adopted in Nova Scotia (see for example: R. v. Ryan, 2004 NSCA 105; R. v.

Innocente, 1999 NSCA 161; R. v. Barry, 2004NSCA 126; R. v. Cox, 2009 NSCA 15; R. v. McCormick, 2012 NSCA 58). [25] Moldaver J., in R. v. Oland, endorsed Justice Arbour’s public interest framework.

He summarized the public confidence aspectof the public interest criterion and stressed its two components—safety and confidence are not separate silos; residual public safetyconcerns or the absence thereof remain relevant and should be considered in the public confidence analysis: [25] According to Arbour J.A., the enforceability interest reflected the need to respect the general rule of the immediate enforceability ofjudgments.

Reviewability, on the other hand, reflected society’s acknowledgement that our justice system is not infallible and thatpersons who challenge the legality of their convictions should be entitled to a meaningful review process – one which did not requirethem to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based wasunlawful (pp. 47-49). [26] Almost a quarter of a century has passed since Farinacci was decided. The public interest framework which it established haswithstood the test of time.

It has been universally endorsed by appellate courts across the country: see, e.g., R. v. Matteo, 2016 QCCA2046, at para. 20 ; R. v. Sidhu, 2015 ABCA 308, 607 A.R. 395, at paras. 5-6; R. v. Porisky, 2012 BCCA 467, 293 C.C.C. (3d)100, at paras. 8 and 14-15; R. v. Parsons (1994), (NL CA), 117 Nfld. & P.E.I.R. 69 (C.A.), at paras. 30-34. Moreover,all of the parties and interveners in this appeal are content with the Farinacci framework. None has spoken against it; none has asked usto revisit it - and I see no reason to do so.

Farinacci remains good law in my view. [27] In so concluding, I should not be taken to mean – nor do I understand Farinacci to have said – that the public safety component andthe public confidence component are to be treated as silos. To be sure, there will be cases where public safety considerations alone aresufficient to warrant a detention order in the public interest..

However, as I will explain, where the public safety threshold has beenmet by an applicant seeking bail pending appeal, residual public safety concerns or the absence of any public safety concernsremain relevant and should be considered in the public confidence analysis [Emphasis added] [26] The factors relevant to the importance of immediate enforcement are those adapted from those legislated for pre-trial judicialrelease (para. 31).

This engages a consideration of the seriousness of the crime, informed by the gravity of the offence, thecircumstances surrounding its commission, and the length of imprisonment imposed (para. 38). [27] Relevant to public confidence is the appellant’s and the public’s interest in the effective reviewability of the trial judgment.

This re-introduces the apparent strengths or weaknesses of the grounds of appeal. [28] Finally, Moldaver J. instructed appellate judges to carry out a final balancing of the factors that inform public confidence,including the strengths of the appeal grounds, the seriousness of the offence, public safety and flight risk.

These factors must bemeasured through the eyes of a reasonable member of the public, a thoughtful, dispassionate person, informed of the circumstances ofthe case and respectful of society’s fundamental values (para. 47). [29] Importantly, Moldaver J. stressed the importance of being mindful of the anticipated delay in deciding an appeal relative to thelength of the sentence.

If all or a significant portion of the sentence will be served, bail becomes more important if the reviewability ofthe trial judgment is to be meaningful: [48] In balancing the tension between enforceability and reviewability, appellate judges should also be mindful of the anticipated delayin 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 abail order is out of the question, appellate judges should consider ordering the appeal expedited under s. 679(10) of the Code.

While thismay not be a perfect solution, it provides a means of preserving the reviewability interest at least to some extent. [30] Where an applicant has been convicted of murder or some other serious crime, immediate enforceability will be heightened andwill often outweigh reviewability, especially where there are lingering public safety or flight concerns or the appeal grounds appearweak (para. 50). [31] However, where public safety or flight concerns are negligible and where the grounds of appeal clearly surpass the “notfrivolous” label, the public interest in reviewability may overshadow immediate enforcement—even if the conviction is for murder orother very serious offences: [51] On the other hand, where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the “notfrivolous” criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder orother very serious offences. [32] With these principles in hand, I turn to my assessment of whether detention is not necessary in the public interest. [33] At the time of the commission of these offences, the applicant had just turned 18.

He had two minor brushes with the law as a15-year-old youth for which he received conditional discharges. [34] Yet, after the commission of the subject offences, he pled guilty to a charge of assault causing bodily harm. Nothing is knownabout this offence except it was committed in January 2016, and while on remand for the subject offences he received a sentence on

January 12, 2017 of 52 days’ incarceration. In addition, while on remand pending sentence, he pled guilty to simple possession ofcocaine and was sentenced to 30 days’ incarceration. [35] On the other hand, while on bail pending trial, he abided on all terms of his release, which included virtual house arrest withtwo sureties. The proposed terms of release included the requirement he reside with his partner, their young child, and his partner’smother under virtual house arrest, except for scheduled employment or education, and on notification to the police of his whereabouts.

He would also be allowed out for three hours on each Saturday to attend to personal needs, but only in the presence of one of hissureties. The same two sureties again pledge property. Two more join. [36] Although the offences are serious, they do not demonstrate involvement in ongoing criminal conduct in the community. Foursureties pledge cash, personal and real property in the total amount of $110,000 to secure the applicant’s promise to surrender himselfinto custody and comply with the strict release conditions. This includes his grandmother who has put up her home.

There can be nodoubt his conscience is engaged by these pledges. [37] I am satisfied that detention is not necessary for the protection and safety of the public. [38] The Crown argues the grounds of appeal are not strong. I need not try to engage in an in-depth analysis. One of the grounds ofappeal (as they are presently framed) relates to the jury charge underlying the unlawful confinement and kidnapping convictions. Theground is at least arguable, although at this stage I find to difficult to categorize the ground as strong.

But as Moldaver J. urged, puttinglabels on grounds of appeal to determine bail applications should be avoided. [39] The applicant argues the potential for new evidence to call into question Shawntez Downey’s murder conviction “wouldnecessarily vitiate” the applicant’s conviction for being an accessory after the fact. The Crown strenuously disagrees, citing cases it saysdemonstrates that even if new evidence puts Shawtez Downey’s conviction in jeopardy, an accessory after the fact can still be convicted(R. v. McAvoy (1981), (ON CA), 60 C.C.C. (2d) 95 (Ont. C.A.); R. v.

Camponi (1993), (BC CA),82 C.C.C. (3d) 506 (B.C. C.A.); R. v. Shalaan, 1997 NSCA 87, affirmed (SCC), [1998] 1 S.C.R. 88). The outcomemay not be so simple (see R. v. Duong (1998), (ON CA), 108 O.A.C. 378, and R. v.

Duong (2001), (ON CA), 152 O.A.C. 293). [40] This issue is canvassed in Halsbury’s Laws of Canada (online), Criminal Offences and Defences, “Who Can Be HeldCriminally Liable: Parties to the Offence: Accessory to an Offence After the Fact” (I.5.(3)(c)) at HCR-20 (Reissue 2020) (Gold), wherethe author suggests the allegation of being an accessory after the fact must be particularized and proven, and that this Court’s decision inR. v. Shalaan, supra may have been decided per incuriam.

In this case, the Indictment charged the applicant that he “…knowing thatShawntez Neco Downey had murdered Tylor McInnis, did assist Shawntez Neco Downey for the purpose of enabling Shawntez NecoDowney to escape, contrary to

Section 240 of the Criminal Code”. The decision tree and jury charge reflected these elements asnecessary for the Crown to prove beyond a reasonable doubt. [41] If Shawntez Downey’s murder conviction is overturned based on fresh evidence, I am not prepared to rule out how thateventuality, and the potential fresh evidence, could impact on the applicant’s conviction. It is an arguable issue beyond the “notfrivolous” criterion. [42] The Crown rightly points out this issue is rife with speculation. To some extent that is correct. The Crown is aware of whatthis new witness has to offer.

The Crown has not provided this information to me, nor the outcome of the police investigation of thiswitness. I mean no criticism. But what is not speculative is the fact this development has caused the appeal proceedings to be adjournedwithout day. [43] A status update conference is scheduled for May 19, 2021.

The earliest the applicant’s appeal could be heard would be nextfall, let alone the additional time needed for the Court to deliver reasons. [44] Although the applicant was sentenced to a total of seven years’ incarceration on November 25, 2019, the announced sentencewas less credit for time spent in pre-sentence custody. This left a go-forward sentence of 43 month’s incarceration. The applicantacknowledges that as of January 2021 he was eligible for full parole.

I am left to wonder whether the conditions of release the applicantproposed to this Court would be as strict as those by Correctional Services Canada should it grant parole. What is obvious is that if theapplicant is not released on bail pending appeal, he will have served well in excess of 24 months’ incarceration out of a maximum time of43 months before his appeal is heard and decided. [45] As Moldaver J. stressed in R. v.

Oland, appellate judges should be mindful of the anticipated delay in deciding an appealrelative to the length of the sentence, and: [49] In the final analysis, there is no precise formula that can be applied to resolve the balance between enforceability and reviewability.A qualitative and contextual assessment is required. In this regard, I would reject a categorical approach to murder or other seriousoffences, as proposed by certain interveners.

Instead, the principles that I have discussed should be applied uniformly. [46] In this case, the proposed terms of release more than provide for the protection and safety of the public. In the particularcontext of this case, I am satisfied the public safety and flight concerns are negligible and the public interest in reviewabilityovershadows the immediate enforceability interest. It does not mean that the trial judgment will never be enforced.

If the applicant’sappeal is ultimately unsuccessful, he will still have to serve the remainder of his sentence. [47] Bail pending appeal is not a get out of jail free card, nor any kind of moral judgment about the applicant’s conduct. This waseloquently put by Fichaud J.A. in R. v. MacIntosh, 2010 NSCA 77: [21] … An interim release, pending a conviction appeal, is not a moral judgment that absolves, condones or mitigates the judicialreaction to the reprehensible conduct for which the individual was convicted. Neither is an interim release a reduction of the sentence.

If,after a conviction appeal is heard and determined, the Court of Appeal overturns the conviction, then the individual is freed, as any

innocent person should be freed, and his imprisonment thankfully will have been reduced by his earlier interim release. If, on the other hand, the Court of Appeal dismisses Mr. MacIntosh’s appeal, then the conviction and sentence will stand, and he will serve that full sentence without any reduction for the additional seven months house arrest that I will order here.

Should his appeal fail, the house arrest under this ruling will add to his total period of lost freedom from the incarceration ordered by the sentencing judge. [ 48 ] I am therefore satisfied on a balance of probabilities that the appeal is not frivolous, the applicant will surrender himself into custody, abide by the terms of his release and, despite the seriousness of the charges, his detention is not necessary in the public interest. Beveridge, J.A.