Docket: CACR2425 John Hilary McLeod Prospective Appellant - v. -, 2014 SKCA 49

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 49 Date: 2014-04-24 Between: Docket: CACR2425 John Hilary McLeod Prospective Appellant - and - Her Majesty the Queen Prospective Respondent Before: Whitmore J.A. (in Chambers) Counsel: Robert Skinner , for the prospective appellant Anthony Gerein, for the prospective respondent Application: From: Q.B.N.J. No. 42 of 2012, J.C. of Saskatoon Heard: April 23, 2014 Disposition: Application allowed Written Reasons: April 24, 2014 By: The Honourable Mr. Justice Whitmore

Whitmore J.A. I. Introduction [1] Mr. McLeod was found guilty after trial of two counts of fraud contrary to s. 380(1)(

a) of the Criminal Code, R.S.C., 1985, c. C-46. He was sentenced to 20 months incarceration. He has appealed both his conviction and his sentence and now applies, pursuant to s.679 of the Code, for release pending determination of his appeal. II. Background of Offence [2] According to the trial decision, the applicant defrauded the complainant by (

i) asking her to invest in the development of someland that he owned when, in fact, he did not own the land; and (ii) inducing the complainant to purchase a car for the applicant to use toenable him to repay the complainant. III. Analysis [3] Section 679(3) of the Code sets out the test which an applicant must meet in order to secure his release: 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 bereleased 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. A. The Application Is Not Frivolous (s. 679(3)(a)) [4] Mr. McLeod argues his conviction should be overturned on the basis that had repaid the money loaned to him by thecomplainant, but that this was not referred to in the judgment. Thus his defence was not considered. [5] The Crown submits that this position is without merit and states the applicant introduced no evidence at trial and there is noevidence of the applicant’s allegations that the money was repaid. [6] Section 679(3)(

a) of the Code is not a demanding standard. The question is not whether the appeal will be successful; theapplicant must only establish that the appeal is not frivolous (see R. v. D.M.P., 1997 ABCA 343, 121 C.C.C. 3rd 444; R. v. Schoenthal,2006 SKCA 71, 285 Sask. R. 144 at para. 8; R. v. Toy, 2009 SKCA 32 at para. 24, 331 Sask. R. 1). [7] On the basis of the material before me, Mr. McLeod’s grounds for appeal do not appear to be compelling. However, it cannot besaid that the grounds are frivolous. I am of the view that Mr. McLeod has met the appropriate standard. B.

Will Surrender Himself Into Custody (s. 679(3)(b)) [8] The applicant submits that, if released, he will, with his wife, live in the home of a neutral friend, Ms. Myrna Jamont at 418 3rdAvenue North in Saskatoon. He will continue to work with his son in a gravel hauling and snow removal business, where he has beenworking since he was released after being charged in December 2011. Since December 2011, the applicant has complied with all theterms and conditions of his release until he was sentenced and returned to custody.

He has undertaken to surrender himself into custody ifthe appeal is unsuccessful. [9] I am satisfied that Mr. McLeod is not a flight risk and will surrender himself into custody if released. I see no reason why the riskof Mr. McLeod failing to surrender himself into custody should be any greater now than it was after he was convicted and prior to hisbeing sentenced. C. The Public Interest (s. 679(3)(c)) [10] The public interest requirement was considered by this Court in R. v. Tcho, 2011 SKCA 113, where the accused was convicted ofsexual assault.

Justice Richards, in granting the release of the accused pending an appeal, said the following: 8 Third and finally, I turn to the public interest. This factor can take account of a range of factors including the appellant’s risk toreoffend, the strength of his or her case, the nature and circumstances of the offence, the circumstances of the appellant himself orherself, delay and its impact, post-charge conduct, the possible terms of release, and the impact of release on the confidence of the publicin the administration of justice. See: L.S.R. v. R., 2008 SKCA 77, 311 Sask. R. 142; R. v.

Toy, 2009 SKCA 32, 331 Sask. R. 1. [11] This Court also dealt with the public interest requirement in R v. Switucka, 2009 SKCA 115, 337 Sask. R. 218: 13 the nature of the offence, the situation of the offender, the circumstances surrounding the offence, the strength of the appeal,post-charge conduct, the likelihood the appellant will re-offend if released and the need to maintain public confidence in theadministration 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 acareful 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. [12] Mr. McLeod has no criminal record other than the convictions under appeal. [13] The Crown submits that it is unlikely the appeal will be held in the near future due to the applicant’s counsel’s schedule. [14] As stated, Mr. McLeod has no previous record and he has complied with his previous release orders. I am of the view the risk thathe will re-offend, pending his appeal, if he is released is minimal. In the event that Mr.

McLeod’s appeal ultimately fails, the sole effectof any interim release would simply be that his sentence was delayed, pending the appeal. He has established that his detention is notnecessary in the public interest. IV. Conclusion [15] Accordingly, Mr. McLeod shall be released upon the following conditions: 1. Keep the peace and be of good behavior. 2. Attend at the Court of Appeal for Saskatchewan whenever required to do so by the Court, including on the date(

s) set forthe hearing of this appeal. Failure to attend personally at the appeal hearing will be deemed to constitute abandonment of the appeal. 3. Reside at 418 3rd Avenue North in Saskatoon and not change that address without prior approval of the Court. 4. Notify the Court of any change in employment/occupation. 5. File his factum in this matter within 60 days of the filing of the transcript with the Court. 6. Surrender himself into custody forthwith upon the release of the Court’s decision on the appeal in the event hisconviction/sentence is upheld. 7.

Surrender his passport and undertake not to apply for a passport until the conclusion of the appeal. 8. Abstain from communicating directly or indirectly with the complainant, Qian Liu. DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of April, A.D. 2014. “Whitmore J.A.” Whitmore J.A.