R. v .M.A.

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. M.A., 2021 NLCA 41 Date: June 30, 2021 Docket Number: 202101H0001 BETWEEN: M.A. APPLICANT/APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Restriction on Publication: By court order made under subsections 486.5 and 486.7 of the Criminal Code, information that may identify the persons described in this judgment as the Offender and the Complainant shall not be published, broadcasted, or transmitted in any manner. Coram: Hoegg J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 201801G5448 (2020 NLSC 93) Application Heard: June 8, 2021 Judgment Rendered: June 30, 2021 Reasons for Judgment by: Hoegg J.A. Counsel for the Applicant/Appellant: Robert Buckingham Counsel for the Respondent: Sheldon Steeves Page 2 Authorities Cited: CASES CITED: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250; R. v. C.L., 2018 ONCA 470; R. v. Hewitt, 2018 ONCA 293; R. v. D.S.C., 2017 ABCA 258; R. v. Mohsenipour, 2020 BCCA 205. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46, section 679(1). Hoegg J.A.: [1] On July 2, 2020, M.A. was convicted of attempted murder and remanded into custody pending his sentencing. On December 10, 2020, he was sentenced to serve a four-year prison term, less credit for the time he spent in pre-sentence custody on a 1.5 basis. M.A. appealed his conviction, and now seeks to be released pending his appeal. The Crown opposes his release. [2] The incident which gave rise to M.A.’s conviction took place on April 7, 2017. He was arrested and charged shortly thereafter and released on his own recognizance with conditions on May 1, 2017. [3] His trial began on September 9, 2019. On September 5, 2018 while M.A. was on judicial interim release pending trial, he was charged with the theft of goods valued at over $600.00 from a local department store as well as breaching his recognizance by carrying a pocket knife and failing to keep the peace and be of good behavior. He was arrested and released on his own recognizance. [4] In November, 2019, M.A. was arrested and charged with sexually assaulting a female acquaintance, which assault is alleged to have taken place in November of 2017 when he was on judicial interim release pending trial. At the time of his arrest in 2019 for this offence, he was found in possession of a cell phone. He was charged with breaching his recognizance in that regard as well as for failing to keep the peace and be of good behavior. M.A. was again released on his own recognizance, supported by two sureties. [5] The circumstances of the attempted murder are unique. The trial judge found that M.A. planned a murder-suicide which was staged to look like he and the victim accidentally fell off the edge of a cliff on Signal Hill. The inter- personal relationship between M.A. and the victim was intimate and complicated, and M.A. was also suffering from depression at the time. Page 3 [6] The factors governing judicial interim release pursuant to section 679(1) of the Criminal Code were set out by the Supreme Court of Canada in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250. In short, the onus is on the appellant to meet three criteria in order to secure release. First, the appellant must demonstrate that the appeal is not frivolous, meaning that the appeal “is arguable” or “not baseless”. This bar is very low. Second, the appellant must establish that he will surrender himself into custody as required and that he will not flee the jurisdiction. Third, the applicant must establish that “his detention is not necessary in the public interest”. [7] The public interest criterion involves both public safety and public confidence in the administration of justice. Public safety concerns generally lend themselves to a straight-forward analysis based on the record or other evidence. However, public confidence in the administration of justice is more involved, and can be challenging to assess. It is composed of two conflicting public interests – the general need for trial judgments to be respected and enforced and the need for reviewability of decisions, which acknowledges that our legal system is not perfect and that mistakes must be able to be corrected through the appeal process. When the public interest criterion is in issue, these two interests must be balanced in order to decide an application for release pending appeal. [8] The enforceability interest focusses on the gravity of the offence, the circumstances of the offence, and the potential length of the imprisonment involved. It can also include lingering concerns about public safety and flight risk which do not rise to the level of substantial risk. The reviewability interest primarily concerns the strength of the grounds of appeal. It is also engaged when it appears as though all or a significant portion of the appellant’s sentence will be served before the appeal can be heard and decided. As stated in Oland, “where it appears that all, or a significant portion, of a sentence will be served before the appeal can be heard and decided, bail takes on greater significance if the reviewability interest is to remain meaningful” (para. 48). [9] The Crown does not argue that M.A.’s appeal is frivolous, or that he is a flight risk. As well, the Crown has no concerns about public safety within the public interest criterion. The Crown’s opposition to M.A.’s release is based on two arguments pertaining to the public confidence in the administration of justice component of public interest. First, the Crown maintains that the release of an offender convicted of the serious offence of attempted murder could seriously erode public confidence in the justice system. Second, the Crown argues that M.A. has shown that he would be unable to abide by release Page 4 conditions by virtue of having been charged with other offences while on judicial interim release pending trial. In this latter regard, the Crown relies on R. v. C.L., 2018 ONCA 470, wherein the appellate Court ruled that fresh charges while on bail were a relevant and important consideration to the determination of bail pending appeal, notwithstanding that the charges had not been proved and that the appellant enjoys the presumption of innocence respecting them. In C.L., Trotter J.A. reasoned that the fresh charges, coupled with the appellant’s failure to mention them and other concerning information undermined his faith in the appellant’s promise to obey conditions which could be placed on him in a release order. [10] M.A. has already spent a considerable portion of his sentence in custody. He has been incarcerated since July 2, 2020 – a full year of his less than four- year sentence. Given that early release can obtain after service of one-sixth of one’s sentence, and full parole can obtain after service of one-third of one’s sentence, M.A. has already spent more of his sentence in custody than he would have if he had been able to secure an early release, and almost as much time as he would have if he would be able to secure full parole. [11] This information caused me to inquire of counsel as to the reasons why M.A. saw fit to apply for bail in this Court as opposed to applying for early release through the parole system. In particular, I wondered whether there were public safety concerns about which I had not been advised. My concern in this regard was informed by the circumstances of the offence and the several references to mental illness (depression) in the record. I was advised by M.A.’s counsel that M.A.’s hearing for early release had been originally scheduled for March, 2021, but that it had been postponed twice since (not by him), and is currently scheduled for September, 2021. The reason I was given for the postponements was that M.A. is subject to deportation and detention orders issued by the Canada Border Services Agency of the Government of Canada, given that he is in a foreign national convicted of a serious offence which is punishable by a prison term of at least ten years. (He is an Iranian citizen resident in Newfoundland and Labrador/Canada on a work/study permit.) I was given no other reason for the postponements of the early release hearings and the Crown could not provide any additional information. [12] I also inquired about the status of M.A.’s mental health. I was informed by counsel that M.A. was doing well and was no longer being treated for depression, although he has been counselled and treated for prison anxiety while incarcerated. Page 5 [13] The Crown did not object to my inquiries respecting M.A.’s parole status and mental health. [14] M.A. swears in his affidavit that if he is released he will appear before the courts as required, that he is prepared to abide by strict conditions including being subject to a curfew, geographical limitations, regular sign-ins with police, and no contact orders respecting various persons. He says he will live at the same address as his sureties. He says he has been accepted into the Business Faculty at Memorial University of Newfoundland (MUN) for September, 2021 and that he would like to continue with his studies while awaiting his appeal. He also provides three sureties who are prepared to deposit $5000.00 each into this court in support of M.A.’s application for release. [15] At the hearing of M.A.’s application, the Crown cross-examined two of M.A.’s three proposed sureties, Ma.A., the applicant’s brother, and A.A., a friend. Both men are associated with the engineering faculty at MUN – A.A. is a post-doctoral fellow, and Ma.A. is a research assistant and also works at a local restaurant. They each testified that they understood their responsibilities as sureties, that they would each post $5000.00 bail in this Court, and that they would carefully watch over M.A. if this Court were to release him. ANALYSIS [16] My task is whether to release M.A. from custody under the provisions of s. 679(1) of the Code. Matters respecting proceedings taken by the federal immigration authorities are beyond my jurisdiction. Accordingly, this decision is made solely for the purpose of deciding M.A.’s s. 679(1) application for release from the custody related to his criminal conviction pending the determination of his appeal. [17] As stated above, the Crown has no public safety concerns. And, based on the record before me and the answers to my inquiries during the hearing of the application, I do not have any public safety concerns. The controversial issue relates to the public confidence in the administration of justice component of public interest, which requires resolving the tension between the enforceability interest and the reviewability interest in that regard. [18] The Crown argues for enforceability of the trial judge’s sentence, saying public confidence in the administration of justice would be lost if the Court were to release M.A. because he has been convicted of a very serious crime and because he has demonstrated that he cannot abide by release conditions by virtue Page 6 of having been charged with other offences while on bail pending trial. The Crown also argues that M.A.’s case for appeal is not strong. [19] M.A. argues that the reviewability interest outweighs the enforceability interest in his case because his grounds of appeal are strong and his proposed release plan is adequate to protect the public. He emphasizes that he has not been convicted of any of the outstanding charges and that he plans to fully defend them. [20] Attempting to take the life of an innocent person is never okay. M.A.’s actions, which the judge found to be deliberate, are very serious and cannot be minimized. Bearing in mind that “the more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined” if the offender is released pending appeal (Oland, at para. 37), I agree with the Crown that releasing an offender who has been convicted of such a serious crime raises the issue of public confidence in the administration of justice. However, Oland also clearly rejects “a categorical approach to [bail pending appeal respecting] murder or other serious offences” (para. 49), which diminishes the Crown’s argument that M.A. should not be released because the offence of which he was convicted is so serious. I also share the Crown’s concern about M.A. being charged with other offences while on bail pending trial. However, I note that he was released on his own recognizance both times after he was arrested on these charges. As well, on the basis of what I understand the circumstances of those alleged offences to be (from the record before me), I do not have any public safety concerns. I add that I see M.A.’s situation as very different from that of the appellant in C.L., where the new charges related to lack of disclosure and dishonesty. In short, while I agree with the Crown that new charges arising during judicial interim release are a relevant factor in deciding an application for judicial release pending appeal, I do not regard that argument on the facts of this case to be strong. [21] I regard M.A.’s release plan, summarized in in paragraph 14 above, as strong. [22] There is no indication that M.A. is desirous of returning to Iran or leaving this province. His passport is already in the custody of the Supreme Court and his support system appears to be in St. John’s, Newfoundland and Labrador. [23] I was impressed with the evidence from Ma.A. and A.A., both of whom are connected with MUN and the community. It appeared to me that they are grateful to be in this province to further their academic careers, that they are Page 7 decent law-abiding people, and that they are unlikely to leave the jurisdiction themselves. As well, both men are prepared to risk jeopardy to their reputations as well as significant financial loss should M.A. not abide by release conditions imposed by this Court. It also appeared to me that both of these men care deeply for M.A. and will do their best to watch over him if he is released. Overall, their testimony showed their faith in M.A.’s ability and desire to abide by release conditions, which in turn gives me a level of confidence in his ability and desire to do so. [24] The reason given for the postponements of M.A.’s early release hearings is plausible to me. There is no indication that he is responsible for these delays, like the appellant in R. v. Hewitt, 2018 ONCA 293, or that he has deliberately delayed the hearing of his appeal, like the appellant in R. v. D.S.C., 2017 ABCA 258. M.A.’s case is more akin to that of the appellants in R. v. Mohsenipour, 2020 BCCA 205, where delay in the hearing of their appeal, which was not their fault, made it unlikely that their appeals could be heard before the appellants passed their full parole eligibility dates, was a significant factor in securing the appellants’ release on bail pending appeal. [25] I recognize that early release and full parole are not certainties. However, given that M.A. has been incarcerated since July 2, 2020, if he is not released he will quite possibly spend more time in custody than he would if he had never appealed his conviction. It is not that M.A.’s appeal might succeed, it is that he risks spending more time in custody than he would even if his appeal does not succeed. [26] In these circumstances, and despite my concerns about the strength of M.A.’s appeal, I do not find it necessary to address this point in detail (Oland, at para. 45). [27] While I agree that the Crown makes a good case for enforceability of the trial judge’s sentence, in my view M.A.’s case for release is better. His strong release plan and the lack of public safety concerns, coupled with the fact that he would likely spend more time in custody if he is not released than he would if he had not appealed, tips the balance in favor of reviewability in the public confidence component of public interest and justifies his release pending determination of his appeal. It is my opinion that a “thoughtful, dispassionate [person] informed of the circumstances of the case and respectful of society’s fundamental values” would not disagree (Oland, at para. 47). Page 8 [28] In the result, I release M.A. under s. 679(1) of the Code subject to the following conditions: 1. He shall keep the peace and be of good behavior; 2. He shall appear before the Courts of Newfoundland and Labrador as required; 3. He shall sign-in at the Royal Newfoundland Constabulary at Fort Townshend, St. John’s, Newfoundland and Labrador, in person, on Mondays and Fridays between the hours of 9:00 a.m. and 4:30 p.m.; 4. He shall reside at the address of 13 Beauford Place, St. John’s, NL or notify the Royal Newfoundland Constabulary at Fort Townshend in St. John’s, NL, in writing, 24 hours prior to any change of address; 5. He shall remain in his residence nightly between the hours of 11:00 p.m. and 6:00 a.m. and shall present himself at the door upon request by a peace officer; 6. He shall not conceal on his person any knife, and will not possess or be in any dwelling where there is storage of any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, and will surrender any such items to the Royal Newfoundland Constabulary at Fort Townshend, St. John’s, at a time and place as specified by the police within 24 hours of his release. 7. He shall not possess or consume alcohol or enter any licensed drinking establishment; 8. He shall not possess, consume or traffic in any illegal drug or substance; 9. He shall consult with his family physician forthwith upon release and thereafter as required. 10. He shall not contact or communicate, directly or indirectly, in any manner with M.K., H.S., R.S., M.J.M., F.D., V.D., E.N., M.F., J.M. Page 9 and remain away from any place of residence, employment or schooling he knows to be frequented by such persons; 11. He shall surrender his passport into the custody of the Court of Appeal of Newfoundland and Labrador. 12. He shall not leave the Province of Newfoundland and Labrador. 13. He shall surrender himself into custody forthwith upon the rendering of judgment by the Court of Appeal of Newfoundland and Labrador. 14. He shall provide Surety Declarations from Ma.A., A.A. and M.T., each depositing $5000.00 into the Court of Appeal of Newfoundland and Labrador. _____________________________ L.R. Hoegg J.A.