R. v. Brake

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. Brake, 2020 NLCA 6 Date: February 21, 2020 Docket Number: 202001H0014 BETWEEN: DENNIS BRAKE APPLICANT AND: HER MAJESTY THE QUEEN as represented by the Attorney General RESPONDENT Coram: Butler, J.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s Application Heard: February 21, 2020 Decision Rendered: February 21, 2020 (Orally) Memorandum of Disposition Filed: February 26, 2020 Counsel for the Appellant: Stephen P. Orr Counsel for the Respondent: Elaine Reid Page 2 MEMORANDUM OF DISPOSITION Butler J.A.: [1] This was an application by Mr. Brake for judicial interim release pending the disposition of his appeal from conviction on a charge of possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19. Mr. Brake was convicted by the Provincial Court of Newfoundland and Labrador on October 10, 2019 and sentenced to two years plus a day incarceration on February 4, 2020. He appealed the same day. [2] On an application for release pending appeal, the appellant must establish the following criteria under section 679(3) of the Criminal Code of Canada: 1. The appeal is not frivolous; 2. The appellant will surrender himself into custody in accordance with the terms of the order; and 3. The appellant’s detention is not necessary in the public interest. [3] While initially contested (only on the first of the three criteria) the Crown advised the Registry in advance of the hearing that it would consent to the Appellant’s release on conditions that were reflected in a draft Release Order. [4] However, the Crown’s consent does not alter the court’s role in the adjudicative process. On any application under section 679(3), the Court is required to ensure that all three criteria have been established by the Appellant on a standard of a balance of probabilities (R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 25.) [5] The standard for the first criterion is “widely recognized as being a very low bar” (Oland at paragraph 20). [6] In this case the Appellant’s memorandum of fact and law provided details of the grounds of appeal. Mr. Brake asserts that the trial judge used evidence of a third party’s actions in furtherance of a joint agreement without first Page 3 establishing that there was a joint agreement or that Mr. Brake was a party to that joint agreement. [7] The Appellant also asserts that the trial judge made inferences that were not supported by the evidence to find that the Appellant had both knowledge and control of cocaine (in order to establish “possession” of the cocaine). In support thereof, the Appellant cited portions of the transcript which he relies upon to establish these inferences. [8] I was satisfied on the low threshold applicable to this criterion that Mr. Brake’s appeal rests on a ground rational enough to evoke the possibility that his appeal may be allowed (R. v. Parsons, 1994 CarswellNfld 14). [9] As to the second criterion, Mr. Brake admits to a short criminal record but there is no contest to his submission that he has always attended past court appearances. Mr. Brake resided with his mother before being incarcerated and proposes to return there if released. He is employed at the St. Lawrence shipyard and suggested that he does not hold a passport. His mother was agreeable to acting as surety. On these facts, I was satisfied that he will surrender himself into custody in accordance with the terms of the order if he were released. [10] Finally, as to the public interest element, I acknowledge that this requires consideration of both public safety and public confidence in the judicial system. [11] On public safety, I note that the appellant was convicted of a non-violent offence that involved no weapon. However it is nevertheless a serious offence. [12] As this Court stated in R. v. Greenham, 2018 NLCA 70, at paragraphs 25- 26, the public confidence element of this third criterion rarely plays a role in the decision to grant or deny bail but requires me to weigh two competing interests, namely enforceability and reviewability. I recognize that Mr. Brake no longer benefits from the presumption of innocence and that enforceability relates to the public’s interest in having orders of the court immediately enforced. Reviewability however relates to the public interest in acknowledging that the justice system is not infallible and people are entitled to a meaningful review process (R. v. Farinacci, (1993), 86 CCC (3d) 32). [13] To the limited extent that the public confidence element requires consideration here, having regard to all the circumstances, I was also satisfied that the public would not have their confidence in the justice system undermined Page 4 by the appellant’s release and therefore the appellant’s detention is not necessary in the public interest. [14] I did require the addition of a final condition to the draft Release Order addressing Mr. Brake’s surrender into custody should his appeal not be successful. I granted Mr. Brake judicial interim release pending appeal on the following conditions: a) Keep the peace and be of good behavior; b) Remain within the Province of Newfoundland and Labrador; c) Reside at 380 Ville Marie Drive, Marystown, NL, and notifies the Royal Canadian Mounted Police (“RCMP”) detachment in Marystown, NL, of any change in address within 24 hours; d) Report on each and every Wednesday following the date thereof, between the hours of 9 a.m. and 5 p.m., NL time to the RCMP detachment in Marystown in person or by telephone; e) Notify the RCMP in Marystown where you are working and your work schedule for the St. Lawrence Shipyard or any other place of employment, in the province of NL; f) Notify the RCMP detachment in Marystown of any change of your address, employment or occupation; g) Do not have in your possession, nor be in a dwelling house with, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance; h) Do not possess, consume or traffic in a controlled substance as defined by the Controlled Drugs and Substances Act, except in accordance with a physician’s prescription for him or a legal authorization; i) Do not communicate, directly or indirectly, with any of the following persons, their places of residence or employment except through a lawyer: i Darren Pittman; j) Forthwith deposit with the Registrar any passport you now possess or may hereafter acquire; Page 5 k) Appear in court if and as required by the court; l) If you are unsuccessful on your appeal, you are to surrender yourself into custody within 24 hours after the decision is rendered to the nearest RNC or RCMP jurisdiction. Failure to do so will result in a warrant being issued for your arrest. _______________________________________ G. D. Butler J.A.