2014 SKCA 121 Date:, 2014 SKCA 121

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 121 Date: 2014-11-19 Between: Docket: CACR2518 Adrian Jerome Charles Applicant - and - Her Majesty the Queen Respondent Before: Whitmore J.A. (in Chambers) Counsel: Brad Mitchell for the Applicant W. Dean Sinclair for the Respondent Application: From: 2014 SKPC 76 and 2014 SKPC 189 Heard: November 12, 2014 Disposition: Order granted Written Reasons: November 19, 2014 By: The Honourable Mr. Justice Whitmore

Whitmore J.A. I. Introduction [ 1 ] Mr. Charles was convicted on April 7, 2014, of the following offences: being an occupant of a motor vehicle, knowing there was a firearm in the vehicle, contrary to s. 94 of the Criminal Code , RSC 1985, c C-46; possession of prohibited firearm, contrary to s. 95 of the Code ; and possession of a

Schedule I substance, namely cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]. He was sentenced to three years incarceration. [ 2 ] Mr. Charles has appealed his conviction and sentence and seeks an order that he be released from custody pending the determination of his appeal. II. Background [ 3 ] A brief

summary of the circumstances of the events is set out in the sentencing judgment ( R v Charles , 2014 SKPC 189 ) and is as follows: [3] … In October 2008, Saskatchewan police were notified that the accused was wanted on three outstanding warrants form Ontario in relation to an incident involving firearms. Officers from Ontario met with members of the Royal Canadian Mounted Police in Saskatoon, and the arrest was effected on October 9, 2008. A vehicle driven by the accused was followed and stopped; the accused was approached while he was behind the wheel of his vehicle and arrested.

Incident to his arrest, his car was searched and a loaded, 9 mm semi-automatic handgun was found beneath the floor mat on the front passenger side; the accused was seen leaning that way as the officer initially approached the car. Further, the vehicle search uncovered a film canister containing eight individual baggies of cocaine in the centre console. This incident occurred in downtown Saskatoon in the afternoon of a week day. III. Analysis [ 4 ] Section 679(3) of the Code provides as follows: Release pending determination of appeal … 679(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. [ 5 ] The applicant must establish each of these factors in order to be released. I will deal with each of those factors in turn. 679(3)(

a) Frivolous Appeal [ 6 ] Mr. Charles appeals from his conviction on the following grounds: (

a) The trial judge erred in law by finding that the appellant had fabricated his testimony that the witness Henwood (whose conflicting evidence the trial judge accepted as true) had confessed that the firearm in the vehicle belonged to him on the basis that if this were true, the appellant would have reported the alleged confession to the police prior to his trial testimony; (

b) The trial judge erred by shifting the burden of proof to the appellant to rebut a presumption of knowledge and control for the purposes of determining possession, based on the fact that the accused was the owner and operator of the vehicle in which the contraband was found …. (Notice of Appeal) [ 7 ] The threshold that Mr. Charles must meet is not high. He does not have to show that he will be successful on the appeal, he need only show that the appeal is not frivolous: see R v Switucka , 2009 SKCA 115 , 337 Sask R 218 [ Switucka ]. [ 8 ] The Crown submits Mr. Charles’s appeal has no merit whatsoever. Mr.

Charles was driving his own car and was with the witness Henwood prior to his arrest. A search of the car revealed a loaded handgun under the floor mat on the passenger’s side and eight packets of cocaine hidden under a cup holder. Mr. Charles was the only person to have driven the car. [ 9 ] Henwood testified and said that the gun and drugs were not his. Mr. Charles testified and said the gun and drugs were not his and that Mr. Henwood admitted to him that the gun belonged to him. Contrary to what Mr. Charles claims in the first ground of appeal, the trial judge did not disbelieve Mr.

Charles on the basis that if the allegations were true (that the witness Henwood had confessed the

gun was his), Mr. Charles would have reported it. [10] What the trial judge did say is set out at para. 40 of the conviction judgment (R v Charles, 2014 SKPC 76): [40] This is completely illogical in the face of his evidence that these charges disrupted his life and dissipated his career hopes. It isalso inconsistent with the aspersions which he attempted to cast upon Mr. Henwood. Without saying much, he hinted that Mr. Henwoodmade money in some nefarious way, and that he was known to possess cocaine, which I take as an invitation to the Court to concludethat Mr.

Henwood was a drug dealer and one who would possess a handgun and packets of cocaine. This again begs the question of whyhe would not have reported Mr. Henwood’s confession. [11] The trial judge went on at length and pointed out Mr. Charles’s lack of credibility. She pointed out his contradictions andinconsistencies, his vagueness in recollecting a very important aspect of his story, and other weaknesses which on the whole led the trialjudge to disbelieve Mr. Charles. [12] The trial judge’s credibility findings are subject to deference by this Court and are based not on one factor, as claimed byMr.

Charles in the Notice of Appeal, but on the totality of Mr. Charles’s evidence. [13] The trial judge stated at para. 41: [41] All in all, the Court finds that Mr. Charles’ evidence was unreliable, untrustworthy and in part, completely fabricated. I do notaccept it, nor does it raise a reasonable doubt with respect to his knowledge of the illicit items in his car. Having rejected the testimony ofMr. Charles, and the inference that Mr.

Henwood was the owner of the gun and cocaine, there is no need for the Court to considerconstructive or joint possession. [14] At para. 42, the Court went on to state: [42] However, that does not end the matter as the Court is obliged to determine whether, on the evidence which is accepted, that theCrown has proven, beyond a reasonable doubt, all of the elements which constitute possession, and indeed all of the elements of theoffences charged. [15] Thus, in my view, based on the transcript material, Mr.

Charles’s first ground of appeal has little chance of success. [16] With respect to the second ground of appeal, namely that the trial judge erred by shifting the burden of proof to Mr. Charles, thereis nothing of this sort set out in the judgment. What the trial judge said at para. 43 of the conviction judgment is not a reversal of theonus.

She said, “It is undisputed that the accused was the owner and operator of the vehicle at the time that the contraband was foundand therefore, prima facie in possession of the vehicle contents: see Gallant (supra), Nicholson (supra) and Chesterman (supra).” Uponmy review of the evidence, this ground of appeal is also without much merit. [17] However, as stated, the threshold is low with respect to this factor. I cannot say with certainty that the appeal is frivolous.Mr. Charles has satisfied this factor. 679(3)(

b) Surrender Himself into Custody [18] The Crown does not dispute that Mr. Charles has satisfied the Court with respect to the second factor. 679(3)(

c) Public Interest [19] Richards J.A. (as he then was) stated the following in Switucka: [13] The “public interest” referred to in s. 679(3)(

c) comprehends a variety of considerations including the nature of the offence, thesituation of the offender, the circumstances surrounding the offence, the strength of the appeal, post-charge conduct, the likelihood theappellant will re-offend if released and the need to maintain public confidence in the administration of justice. See: R. v. Benson (1992), (NS CA), 73 C.C.C. (3d) 303 (N.S.C.A.); R. v. Nguyen (1997), (BC CA), 119 C.C.C. (3d) 269(B.C.C.A.); R. v. L.S.R., 2008 SKCA 77; R. v. Schoenthal, supra.

It involves a careful balancing of all the relevant circumstances and“will depend upon the circumstances of each particular case,” as Culliton C.J.S. pointed out in R. v. Demyen (1975), (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.) at 326. [20] Mr. Charles is 28 years old and has no criminal record. He has been employed in Whitby, Ontario, for the past three years andearns approximately $2000 per month. His former employer will hire him if he is released. He resides with his mother, in Whitby, whowill monitor him to ensure his compliance with any release conditions and will act as a surety.

His girlfriend is a nurse in Pickering,Ontario, and is pregnant with Mr. Charles’s child. She also will supervise and monitor Mr. Charles and will act as a surety. [21] Mr. Charles has a six-year-old daughter, who lives with her mother near Mr. Charles. He has a good relationship with his daughterand her mother. In short, he appears to have a strong family support and is employed. While facing these charges there have been noissues of any kind. [22] The Crown, however, opposes the release of Mr. Charles on the third factor.

This Court said the following in R v Toy, 2009 SKCA32, 331 Sask R 1: [26] The more difficult issue is whether the applicant has established that his detention is not necessary in the public interest withinthe meaning of s. 679(3)(

c) of the Code. In determining that issue, the predominant question is whether the applicant’s interest in thereviewability of his conviction outweighs the public’s interest in the enforceability of the sentence he is now serving. (See: R. v.Farinacci.) The tension is between two competing but entirely legitimate objectives. Enforceability is concerned with the immediate anduninterrupted execution of the sentence so that the public may have confidence that those who are adjudged guilty will bear the

meaningful consequences of their actions. Reviewability, on the other hand, refers to the legitimate societal interest in scrutinizing judgments for error to ensure that any deprivation of an offender’s liberty is the product of a just and lawful conviction. [Footnotes omitted] [ 23 ] The Crown submits that when the gravity of the crimes is considered, crimes involving guns and drugs, the public interest is further advanced by seeing that Mr. Charles remains in custody. [ 24 ] While I view his chances of success are modest, the situation of Mr. Charles and his post-charge conduct lead me to the view that Mr.

Charles’s release, pending determination of his appeal, is not against the public interest. IV. Conclusion [ 25 ] Therefore, Mr. Charles is released upon the following conditions: (

a) That he shall keep the Peace and be of good behaviour; (

b) That he shall attend at the Court of Appeal for Saskatchewan whenever required to do so by the Court, including on the date(

s) set for the hearing of this appeal, understanding and acknowledging that failure to attend personally at the appeal hearing will be deemed to constitute abandonment of the appeal; (

c) He shall reside at 24 Davidson Street, Whitby, Ontario and not change that residence without prior permission of the Court; (

d) He shall comply with a curfew of 11:00 PM to 7:00 AM daily; (

e) He shall personally present himself on demand at the door of his approved residence to any police officer or probation officer or designate thereof who may be checking compliance with the residence and curfew conditions of this order; (

f) He shall file his factum in this matter within 60 days of the filing of the transcript with the Court; and (

g) He shall surrender himself into custody forthwith upon the release of the Court’s decision on the appeal in the event his conviction is upheld. (

h) He shall report whenever required to do so by the Court. (

i) He shall post cash bail of $2500. (

j) He shall execute a recognizance in the required form containing Patricia Sharon Charles and Rochelle Beale as sureties each in the amount of $5000. DATED at the City of Regina, in the Province of Saskatchewan, this 19th day of November, 2014. “Whitmore J.A.” Whitmore J.A.