R. v. Payne

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. Payne, 2018 NLCA 2 Date: 20180116 Docket Number: 201701H0062 BETWEEN: KELLY PAYNE APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Hoegg J.A. Court Appealed From: Corner Brook Provincial Court Application Heard: December 20, 2017 Decision Rendered: December 20, 2017 Reasons Filed: January 16, 2018 Reasons for Judgment By: Corner Brook Provincial Court Counsel for the Appellant: Robby Ash Counsel for the Respondent: Trisha McCarthy Corrected Decision: The text of the original judgement was corrected on January 17, 2018. A description of the correction is appended. Page: 2 MEMORANDUM OF DISPOSITION Hoegg J.A.: [1] On April 11, 2017, Kelly Payne was convicted of two counts of sexual interference, one count of sexual exploitation, four counts of sexual assault, and one breach of probation. He was sentenced to six years in prison on May 31, 2017. Mr. Payne appeals both his convictions and his sentence. [2] Mr. Payne applied for bail pending appeal in November 2017 and his application was heard on December 20, 2017. I denied his application with reasons for my decision to follow. What follows are my reasons. [3] I would first observe that Mr. Payne has been convicted of several serious offences. Despite appealing his convictions, he no longer enjoys the presumption of innocence (R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250 at paras. 34-35). [4] In order for Mr. Payne to be released on bail pending determination of his appeal, he must satisfy the criteria set out in section 679(3) of the Criminal Code. They are: (i) the appeal or application for leave to appeal is not frivolous; (ii) he will surrender himself into custody in accordance with the terms of the order; and (iii) his detention is not necessary in the public interest. [5] The burden is on Mr. Payne to demonstrate on the balance of probabilities that he meets all three criteria (Oland at paragraph 19). See also R. v. Allen, 2001 NFCA 44, 158 C.C.C. (3d) 225 at paragraphs 26-30. Section 679(3)(i) [6] The first criterion requires Mr. Payne to demonstrate that his appeal has an arguable basis. This is a low threshold to meet (Oland at paragraph 20). In the words of Moldaver J. at paragraph 44 of Oland the threshold “operates as an initial hurdle that produces a categorical ‘yes’ or ‘no’ answer, allowing for the immediate rejection of a release order in the face of a baseless appeal.” Page: 3 [7] Mr. Payne’s application alleged that the trial judge failed to apply the W.D. analysis and that he subjected the evidence of the accused to a greater degree of scrutiny than that of the complainant. These grounds require considerable analysis in order to assess, but given their nature in the context of the case and the record before me, I am of the view that Mr. Payne’s appeal is not frivolous. Section 679(3)(ii) [8] Section 679(3)(ii) requires Mr. Payne to satisfy the Court that he will surrender himself into custody if and when required should he be granted bail. [9] The Crown argues that Mr. Payne has shown “serious disregard” for court orders, and points to his convictions for twice breaching his recognizance, once violating his parole, and his refusal to engage in treatment or programming if ordered by the court (as referenced in his pre- sentence report). While I agree that the above indicates that Mr. Payne’s respect for court orders is more than suspect, I do not regard his disrespect as showing, on its own, sufficient cause for concern that he would abscond from the jurisdiction or otherwise fail to surrender himself into custody. Section 679(3)(iii) [10] The third criterion which Mr. Payne must meet is that his detention is not necessary in the public interest. In Oland, at paragraphs 23 to 55, the Supreme Court has clarified the meaning of “necessary in the public interest”. In summary, public interest has two components: (1) public safety and (2) public confidence in the administration of justice. Public safety relates to the protection and safety of the public. Public confidence in the administration of justice comprises two competing interests: (1) enforceability, which involves “the need to respect the general rule of the immediate enforceability of judgments”, and (2) reviewability, which involves “society’s acknowledgement that our justice system is not infallible and that persons who challenge the legality of their convictions should be entitled to a meaningful review process … which [does] not require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction on which it was based was unlawful” (Oland at paragraphs 25-26). The Court explained that the public safety and public confidence components should not be treated as silos and said that “where the public safety threshold has been met … residual public safety concerns Page: 4 or the absence of any public safety concerns remain relevant and should be considered in the public confidence analysis” (Oland at paragraph 27). [11] The Court, noting that Parliament did not provide direction as to how section 673(3)(iii) could affect confidence in the administration of justice, ruled that the factors Parliament set out in section 515(10)(c) in relation to bail pending trial, modified to the post-conviction context, “should be accounted for in considering how, if at all, a release pending appeal order is likely to affect public confidence in the administration of justice”. Those factors are: (1) the seriousness of the crime – the more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the appellant is released on bail (Oland at paragraphs 37 and 39), (2) public safety concerns that fall short of the substantial risk mark and lingering flight risks that do not rise to the risk level in 679(3)(ii) (Oland at paragraph 39), and (3) the apparent strength of the appellant’s grounds of appeal. [12] The Court elaborated on the factor involving the assessment of the apparent strength of the grounds of appeal, endorsing Donald J.’s reasoning at paragraph 37 of R. v. Porisky, 2012 BCCA 467, 293 C.C.C. (3d) 100 to the effect that assessment of the merits of an appellant’s grounds of appeal is not foreclosed by a determination that an appeal is not frivolous (Oland at paragraph 42), as well as that of Gary T. Trotter in his article “Bail Pending Appeal: the Strength of the Appeal and the Public Interest Criterion” (2001), 45 C.R. (5th) 267, who said “when an offence is serious … public concern about enforceability is ignited, [and] there should be a more probing inquiry into the chances of success on appeal ... separate from the question of whether the appeal is frivolous or not”. [13] Justice Moldaver then explained at paragraphs 44 and 45 of Oland: [44] In conducting a more pointed assessment of the strength of an appeal, appellate judges will examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record. For purposes of this assessment, they will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the “not frivolous” criterion… [45] In the end, appellate judges can be counted on to form their own “preliminary assessment” of the strength of an appeal based upon their knowledge and experience. This assessment, it should be emphasized, is not a matter of guesswork. It will generally be based on material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, Page: 5 along with relevant authorities. In undertaking this exercise, appellate judges will of course remain mindful that our justice system is not infallible and that a meaningful review process is essential to maintain public confidence in the administration of justice. Thus, there is a broader public interest in reviewability that transcends an individual’s interest in any given case. [14] In the matter before the Court, Mr. Payne has been convicted of several serious offences involving a child in respect of whom he was in a position of trust by virtue of his relationship with the child’s mother and living in their family. [15] Mr. Payne was intending to live with his mother if released. Mr. Payne’s mother’s house is directly across the street from the high school attended by the complainant’s sister, who was a witness in the case. All of the people involved in this matter live in close proximity to each other in small communities on the Great Northern Peninsula. [16] Mr. Payne has also been convicted of “domestic abuse” of the complainant’s mother, from whom he is now estranged. He also has, in addition to the conviction relating to the complainant’s mother and those mentioned in paragraph 9 above, convictions for trafficking in a controlled substance and careless storage of a firearm. The complainant’s mother has expressed her fear in writing to Victim Services that Mr. Payne “may do something to the girls” and “kill her” if he is released. [17] All of the above are concerns that do not necessarily mean that Mr. Payne poses a “substantial risk” to public safety which, without more, would necessarily preclude a release order. However, in my view, these concerns are more than lingering, and remain relevant to the public confidence in the administration of justice component of section 679(3)(iii) as Justice Moldaver explained at paragraphs 27 and 39 of Oland. Mr. Payne’s Grounds of Appeal: [18] In accordance with the Supreme Court’s direction in Oland, I based my decision on the “material that counsel … provided, including aspects of the record that are pertinent to the grounds of appeal raised, along with relevant authorities” (Oland at paragraph 45). [19] Mr. Payne’s bail application with respect to his W.D. argument focused on the ground that the Judge did not mention or correctly apply the W.D. analysis but did not explain how this provided a basis for finding error Page: 6 in the Judge’s assessment of the evidence or reasoning so as to allow the appeal and order a new trial. I would note that Mr. Payne did not testify at trial so the Judge’s assessment of Mr. Payne’s evidence would have to have been based on the statement he gave to police which was admitted into evidence by consent. While Mr. Payne describes the case as a “he said she said” case, I would also note that there was corroborative evidence respecting one of the serious assaults of which Mr. Payne was convicted. [20] In the result, my “preliminary assessment” of Mr. Payne’s grounds of appeal is that they are not strong. This is not to say that they are without merit. Rather, it is only to say that “based on material that counsel have provided, including aspects of the record [before me] that are pertinent to the grounds of appeal raised, along with relevant authorities” and upon my “knowledge and experience”, they are not strong (Oland at paragraph 45). [21] Taking the strength of the grounds of appeal, the seriousness of the offences, public safety and flight risk into consideration, enforceability of the Judge’s decision outweighs Mr. Payne being released pending reviewability of his case on appeal. It is my view that a reasonable and informed member of the public would lose confidence in the administration of justice if Mr. Payne were to be granted bail (Oland at paragraph 47) while awaiting his appeal. Accordingly, I denied bail. [22] Being mindful of delays in deciding appeals, and of the fact that Mr. Payne’s sentence appeal was not argued on his bail application, I set the appeal to be heard on March 6, 2018. Correction Notice: Correction made on January 17, 2018: 1. On page 2, paragraph 3, last line has been changed to read: … at paras. 34-35). _________________________ L. R. Hoegg J.A.