R. v. Grenkow

R. v. Grenkow Court Court of Appeal Date 1993-08-06 Citation 1993 NSCA 7 Docket CAC 02898 Judge/Registrar/Adjudicator Matthews, Kenneth M., (Honourable Justice) Document Type Decision Decision Content C.A.C. No. 02898 NOVA SCOTIA COURT OF APPEAL Cite as R. v. Grenkow, 1993 NSCA 7 B E T W E E N: IRENE GAIL GRENKOW ) Norman J. Rose ) for the applicant applicant ) ) - and - ) ) ) HER MAJESTY THE QUEEN ) Robert E. Lutes, Q.C. ) for the respondent respondent ) ) ) Application Heard: ) July 29, l993 ) ) ) Judgment Delivered: ) August 6, 1993 ) ) BEFORE: THE HONOURABLE JUSTICE K. M. MATTHEWS IN CHAMBERS MATTHEWS, J.A.: This is an application pursuant to s. 679 of the Code for judicial release pending appeal. It is opposed by the Crown. The applicant was convicted of arson following a five day trial before Justice K. Peter Richard sitting with a jury. The charge reads: "THAT Irene Gail Grenkow of Halifax, in the County of Halifax, at or near Halifax, in the County of Halifax, Nova Scotia, on or about the 12th day of September, 1991, did intentionally cause damage by fire to property, to wit: 45 Vimy Avenue, knowing that the property was occupied, contrary to Section 433(a) of the Criminal Code." Section 679(3) of the Code provides: "(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." The applicant is now 39 years of age. At the time of the offence she resided in a condominium at Granbury Place, 45 Vimy Avenue, Halifax. The building consists of 12 floors. The fire was discovered on the ninth floor in an elevator servicing the building. It was the only elevator in service at the time. The trial judge considered the offence to be very serious. It had the potential of endangering the lives and safety of the occupants. On June 21, l993 he sentenced the applicant to three years' incarceration. She has appealed both conviction and sentence. This is her first criminal conviction. She has operated a taxi and, as well, an entertainment business. The applicant accepts the summary of the facts as set out by the Crown at the time of sentencing: " Ms. Grenkow was convicted by Jury on March 08, 1993 on a charge of S.433(a) of the Criminal Code. Briefly, the facts are that Ms. Grenkow, upset by the disappearance of her cat sent two notes to the Property Manager, of Granbury Place threatening trouble in the condominium complex if her cat was not returned. Two days later when the cat did not show up Ms. Grenkow set fire to an elevator at Granbury Place. This caused an estimated $30,000.00 physical damage. The complex was occupied by approximately 400 people, some of whom were elderly and suffering from various physical ailments. The building had to be evacuated due to heavy smoke." The burden is upon the applicant to establish all three of the conditions set out in s. 679(3) of the Code. The proof that is required is that of a preponderance of evidence. She must prove each of the three conditions to "the reasonable satisfaction of the court on a balance of probabilities." R. v. Moore (1979), 33 N.S.R. (2d) (631). The Crown in opposing the application argues that the applicant has not demonstrated that (1) the appeal is not frivolous and (2) that her detention is not necessary in the public interest. Prior to, and at the time of trial, the applicant has at all times appeared when required. However, the fact that she has now been found guilty of the offence must be considered. She no longer enjoys the presumption of innocence. Chief Justice Culliton of the Saskatchewan Court of Appeal in R. v. Demyen (1975), 26 C.C.C. (2d) 324 considered the question respecting when detention is or is not in the public interest. Demyen had been sentenced to life imprisonment after his conviction for non-capital murder at trial before a judge and jury. On his application for release from custody pending appeal, the Chief Justice remarked at p. 326: " In my opinion, in the determination of what may constitute the public interest Parliament intended to give to the Judge a wide and unfettered discretion. To attempt to define with particularity what constitutes public interest would not only be difficult but would likely result in restricting by judicial pronouncement the unfettered discretion which Parliament intended to confer. The proper application, in my view, is to give to public interest a comprehensive meaning and to decide in the circumstances of each case whether or not the public interest requires the prisoner's detention. I am convinced that the effective enforcement and administration of the criminal law can only be achieved if the Courts, Judges and police officers, and law enforcement agencies have and maintain the confidence and respect of the public. Any action by the Courts, Judges, police officers, or law enforcement agencies which may detrimentally affect that public confidence and respect would be contrary to the public interest. I think it can be said that the release of a prisoner convicted of a serious crime involving violence to the person pending the determination of his appeal is a matter of real concern to the public. I think it can be said, as well, that the public does not take the same view to the release of an accused while awaiting trial. This is understandable, as in the latter instance the accused is presumed to be innocent, while in the former he is a convicted criminal. The automatic release from custody of a person convicted of a serious crime such as murder upon being satisfied that the appeal is not frivolous and that the convicted person will surrender himself into custody in accordance with the order that may be made, may undermine the public confidence in and respect for the Court and for the administration and enforcement of the criminal law. Thus, in my opinion, it is incumbent upon the appellant to show something more than the requirements prescribed by paras. (a) and (b) of s. 608(3) to establish that his detention is not necessary in the public interest. What that requirement is will depend upon the circumstances of each particular case." Demyen has been cited with approval by this Court in R. v. Moore, supra, R. v. White (1982) 50 N.S.R. (2d) ll3, R. v. Benson 101 N.S.R. (2d) 267 and R. v. F.F.B. 112 N.S.R. (2d) 423, among others. It is of course obvious to say, but important to emphasize, that the circumstances of each case differ from others and must be examined to determine whether or not the public interest requires the prisoner's detention, keeping in mind that the burden is upon the applicant to establish that it is not so necessary. Here, although the applicant has no previous record, the crime is serious and understandably deep concern has been expressed by the witnesses called by the Crown. The confidence and respect of the public must be maintained if the effective enforcement and administration of the criminal law is to be achieved. See the comments of Justice Tallis in R. v. Kingwatsiack (1976), 31 C.C.C. (2d) 213 at pp. 217-8 and those of Justice Wilson, then of the Ontario Court of Appeal, in R. v. Morenstein (1977), 40 C.C.C. (2d) 131 at pp. 133-4. "Public interest" includes both the safety of the public and the confidence of the public in the judicial system. On this application counsel for Ms. Grenkow called three witnesses including the applicant. The Crown called five. Briefly put, the applicant says not only has she always appeared in the proceedings when required, but that after conviction she was released under conditions, to which she adhered. She stresses that her detention is not necessary in the public interest. She points out that, after the fire, her handgun was seized by the police, but returned to her, thus indicating that the police could not have considered her to be a danger to the public. She denies ever making threats to anyone saving on one occasion which she explained. The evidence adduced by the Crown contradicted that of the applicant in several pertinent aspects. If the testimony of the Crown's witnesses were to be accepted then the inescapable conclusion is that the applicant has not discharged the onus upon her in respect to s. 679(3)(c). It is my opinion that the overwhelming weight of the evidence is to that effect. I accept that the applicant has made threats affecting the safety of others and further that the residents of the condominium and others have good reason to fear for their safety should the applicant be released. The evidence concerning the tapes indicates the length to which the applicant was willing to go to threaten and bribe. The testimony of the two lawyers demonstrates the fears generated by other threats. None of this evidence, I understand, was before the trial judge at time of sentencing and did not come to the attention of the Crown until after the notice of the bail application was served. Although it appears that the sentencing judge was aware of some of the concerns of the occupants of the condominium, the evidence before me was in greater detail and in particular that of one of the witnesses who stated that the applicant informed her that she was going to get even with the people at Granbury Place. That witness had no doubt that the applicant would do so. The thrust of all of this evidence is that, if released, the applicant would carry out her threats. I repeat: the onus rests upon the applicant to justify her release. I have considered the serious nature of this offence; the circumstances surrounding it, the fire set in an elevator on the ninth floor of the building with a potential of tragedies had not the fire been quickly located and extinguished; the threats allegedly made by the applicant prior to the fire; the apparent reason for the arson; the danger to the lives and safety of the occupants of the building, particularly keeping in mind the ages and infirmities of many of them; the threats after the fire; the fears and concerns expressed should the applicant be released pending appeal; the public interest in such a release as expressed in the cases cited; and have concluded that the applicant has not established that her detention is not necessary in the public interest. Having reached my conclusion respecting s. 679(3)(c), it is not necessary to consider s. 679(3)(a). The application is dismissed. Matthews, J.A. C.A.C. No. 02898 NOVA SCOTIA COURT OF APPEAL B E T W E E N: IRENE GAIL GRENKOW ) REASONS FOR ) applicant ) JUDGMENT BY: ) - and - ) MATTHEWS, J.A. ) HER MAJESTY THE QUEEN ) (IN CHAMBERS) ) respondent )