Roberts v. HMTQ, 2017 NWTCA 5           A-1-AP-2017-000003

             IN THE COURT OF APPEAL FOR THE NORTHWEST TERRITORIES

             IN THE MATTER OF:

                              RICHARD STANLEY ROBERTS

                                                       Appellant

                                      - and -

                               HER MAJESTY THE QUEEN

                                                       Respondent

             _________________________________________________________

             Transcript of the Decision on Judicial Interim Release

             Pending Appeal by The Honourable Justice K. Shaner,

             sitting in Yellowknife, in the Northwest Territories,

             on the 19th day of June, 2017.

             _________________________________________________________

             APPEARANCES:

             Mr. B. MacPherson:        Counsel for the Crown
             Mr. P. Falvo:             Agent for the Mr. K. Teskey,
                                       counsel for the Defence

               No information shall be published in any document or
             broadcast or transmitted in any way which could identify
             the victim or a witness in these proceedings pursuant to
                      s. 486.4 of the Criminal Code of Canada

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         1      THE COURT:             Good afternoon,

         2          Mr. MacPherson.  Mr. Falvo, you are appearing

         3          as agent for Mr. Teskey today?

         4      MR. FALVO:             Yes, that's correct, Your

         5          Honour.  I'm here as his agent.

         6      THE COURT:             All right, thank you.

         7          Good afternoon, Mr. Roberts.

         8      THE ACCUSED:           (NON-VERBAL RESPONSE).

         9      THE COURT:             I did have an opportunity

        10          to review the submissions, the supplemental

        11          submissions that both counsel for the Crown

        12          and defence submitted with respect to the reasons

        13          for the denial of the mistrial application, and

        14          of course I did have an opportunity to review

        15          Justice Smallwood's reasons.  So having heard

        16          the oral submissions and having read all of

        17          the written submissions and additional materials,

        18          I am now in a position to render a decision,

        19          and reasons therefore, in this application for

        20          judicial interim release pending appeal, which

        21          is brought pursuant to Section 679 of the

        22          Criminal Code.

        23               The appellant, Richard Stanley Roberts,

        24          was convicted of sexual assault and two counts

        25          of uttering threats on June 20th, 2016, following

        26          a judge alone trial in the Supreme Court.  He

        27          received a sentence of 42 months in jail, and

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         1          the sentencing took place on January 25th, 2017.

         2          The Notice of Appeal was filed on March 3rd,

         3          2017, and the appeal has not yet been set down.

         4          However, Mr. Roberts did depose in his affidavit

         5          that his lawyer will be available to argue the

         6          appeal at this Court's sittings in October of

         7          2017.

         8               Subsection 679(3) of the Criminal Code sets

         9          out three statutory criteria that an appellant

        10          must satisfy to obtain judicial interim release

        11          pending appeal, and these are as follows:  First,

        12          that the appeal is not frivolous; second, that

        13          the appellant will surrender him or herself

        14          into custody in accordance with the terms of

        15          the order; and third, that the appellant's

        16          detention is not necessary in the public

        17          interest.

        18               Both counsel at the hearing of this matter

        19          indicated that there is no concern about whether

        20          Mr. Roberts would surrender himself into custody.

        21          So the analysis in this decision focuses on the

        22          first and the third criteria.

        23               Turning to the first, two grounds of appeal

        24          are advanced.  First, Mr. Roberts argues the

        25          trial judge relied on stereotypes and myths

        26          about how a victim should or will conduct

        27          themselves following a sexual assault or

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         1          in the course of a sexual assault when she

         2          considered the matter and ultimately rendered

         3          a conviction.  This flows from her findings

         4          that it was implausible that the victim would

         5          have initiated all of the sexual activity.

         6               The second ground is that the trial judge

         7          erred in denying Mr. Roberts' application to

         8          re-open his case to allow the defence to call

         9          another witness or, alternatively, to declare

        10          a mistrial following the conviction but before

        11          the sentencing.

        12               In this case there was no question

        13          that Mr. Roberts and the victim had sexual

        14          intercourse.  The case turned on consent,

        15          and thus it turned on witness credibility.

        16          The victim's evidence was that she did not

        17          consent.  Mr. Roberts' evidence was that

        18          she did consent and, among other things,

        19          he testified that it was the victim who

        20          initiated the sexual contact.

        21               Justice Smallwood rejected Mr. Roberts'

        22          evidence on this point, stating the following,

        23          which is found at pages 12 and 13 of her

        24          decision:

        25

        26               On the accused's evidence every

        27               aspect of the sexual contact

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         1               between the accused and [L.C.]

         2               is instigated by [L.C.]  While

         3               that is not impossible, it certainly

         4               seems improbable.  [L.C.] goes from

         5               upset, mad and crying, to happy

         6               and giggling in a short period of

         7               time, and then initiates multiple

         8               sexual encounters with the accused,

         9               whom she barely knows.  It seems

        10               implausible.

        11

        12               I will just note at this point that I have

        13          substituted the victim's initials for her name

        14          in that quote because of the publication ban.

        15               Justice Smallwood's conclusion followed an

        16          analysis of the evidence of several witnesses,

        17          including Mr. Roberts, the victim, the victim's

        18          partner and a family friend.

        19               The circumstances of the second ground of

        20          appeal can be summarized as follows:  Just under

        21          two months following the conviction, but before

        22          sentencing, defence counsel obtained a statement

        23          from a neighbour which, in defence counsel's

        24          opinion (and I am referring to defence counsel

        25          at the trial) suggested the victim's relationship

        26          with Mr. Roberts was much closer than how she

        27          had characterized it in her testimony.  Thus,

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         1          in the appellant's counsel's view it cast her

         2          credibility into question.

         3               It should be noted that the defence counsel

         4          knew of this witness before the trial, but did

         5          not take a statement from her.  He was concerned

         6          about putting her under subpoena and having her

         7          attend and give evidence because he was unsure

         8          of what her testimony would be and whether it

         9          would be helpful.  Thus, she was not summonsed

        10          to give evidence.  Justice Smallwood denied the

        11          application, indicating, among other things,

        12          that it did not satisfy the criteria set out

        13          in R. v. Kowall, 1996 CanLII 411 (ONCA) and

        14          Palmer v. The Queen [1980] 1 SCR 759.

        15               The Supreme Court of Canada has confirmed

        16          recently in the case of R. v. Oland, 2017 SCC

        17          17, that the "not frivolous" test is a very low

        18          bar.  It is a threshold requirement which does

        19          not involve an in-depth analysis of the merits

        20          of the appeal.  Parenthetically, however, a more

        21          pointed assessment of the strength of the appeal

        22          is required in analyzing the public interest

        23          aspect of the application when the Court gets

        24          to that phase.  (Oland, paras 40-46).

        25               I will address the merits of the appeal

        26          as Oland directs when we get to that stage.

        27               Among other things, the Supreme Court of

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         1          Canada in Oland cited R. v. Xanthoudakis, 2016

         2          QCCA 1809.  There, at paragraph 5 Justice Bich

         3          summarized descriptions of frivolous from leading

         4          cases on the issue as follows:

         5

         6               More recently in R. v. Gill,

         7               Dickson J.A. wrote that "the term

         8               'frivolous' has been described as

         9               'trifling with the Court or wasting

        10               its time, or if the appeal is not

        11               capable of reasoned argument.'

        12               R. v. Dhanda, 2003 BCCA 550 at

        13               para 19; "doomed to failure" or

        14               (devoid of merit); R. v. Stewart,

        15               2001 BCCA 749 at para 5; or having

        16               'no possibility of success.'"

        17               R. v. Hanna [1991] BCJ No 2551

        18               (CA).

        19

        20               Having regard to these various descriptions

        21          of frivolous, and bearing in mind the role that

        22          the grounds of appeal play at this stage of the

        23          analysis, I conclude that the grounds of appeal

        24          which Mr. Roberts' appellate counsel intends to

        25          advance are not, on their face, "frivolous" in

        26          the sense that they are devoid of merit or doomed

        27          to fail, and thus, they meet the not frivolous

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         1          threshold found in Section 679(3) of the Criminal

         2          Code.

         3               I will now turn to the bigger question,

         4          which is whether releasing Mr. Roberts would

         5          be contrary to the public interest.  As set

         6          out in Farinacci v. The Queen, 1993 CarswellOnt

         7          132 (CA) and reiterated in Oland, there are two

         8          aspects to the public interest.  The first is

         9          public safety, the second is public confidence

        10          in the administration of justice.

        11               Concerns about public safety can often

        12          be addressed through a well-structured release

        13          plan supported by appropriate conditions.  The

        14          conditions that Mr. Roberts proposes are that

        15          he would reside with his parents and his three

        16          children in his parents' home, which I heard

        17          at the hearing, through the evidence of Kerry

        18          Roberts, is alcohol free.  Mr. Roberts would

        19          abide by a curfew.  Kerry Roberts, who is his

        20          mother, is prepared to act as a surety with

        21          a cash deposit of $10,000.  Mr. Roberts would

        22          work for his father's company and be supervised

        23          at work by his father or by the company manager.

        24               As I said, Kerry Roberts testified at

        25          the hearing.  It was evident to me that she

        26          understands what would be expected of her as a

        27          surety, and in particular, she knows she would

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         1          have to call the police if Mr. Roberts was in

         2          breach of the release conditions.  She would be

         3          supported in her supervision by her husband, and

         4          she would be prepared to stop acting as a surety

         5          if that was necessary.

         6               I have no concerns about her suitability

         7          as a surety, but that said, a suitable surety

         8          is not the only requirement.  Mr. Roberts

         9          himself has to be prepared to adhere strictly

        10          to the release conditions that are imposed,

        11          otherwise public safety can be compromised.

        12          Unfortunately, I am not confident that

        13          Mr. Roberts will comply with conditions, and

        14          that is based on his conduct while on release

        15          awaiting trial on the matters that are now

        16          the subject of this appeal.

        17               Despite similar conditions, that is,

        18          having his father as a surety, a monetary

        19          commitment, albeit $1,000 dollars and not

        20          $10,000, and a curfew, Mr. Roberts breached

        21          the general condition that he keep the peace

        22          and be of good behavior on three separate

        23          occasions.  Specifically, he was charged

        24          with, and ultimately convicted of, impaired

        25          driving, theft and driving while disqualified.

        26          He also sustained a conviction for breaching

        27          his conditions.

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         1               I realize that it is not always fair or

         2          just to conclude that when someone has breached

         3          conditions in the past they are destined to

         4          do so in the future.  That said, these were

         5          not minor breaches which could be explained

         6          as matters of inadvertence or a failure to

         7          appreciate consequences.  They were deliberate

         8          acts which either created risks for, or resulted

         9          in harm to, other members of society.  They

        10          occurred on more than one occasion while

        11          Mr. Roberts awaited trial, which is demonstrative

        12          of a disrespectful attitude towards the law and

        13          an unwillingness to comply.

        14               I note as well that this was not the

        15          first time Mr. Roberts had been on and failed

        16          to comply with bail conditions.  His criminal

        17          record includes a conviction for failing to

        18          comply with conditions sustained in 2010.

        19          Accordingly, I conclude that Mr. Roberts

        20          poses a public safety risk.

        21               Sometimes the public safety risk can

        22          be overcome with strong grounds of appeal.

        23          However, I find that granting release would

        24          also undermine public confidence and that the

        25          grounds of appeal are not particularly strong.

        26          I say this for two reasons:  First, the facts

        27          found by the trial judge in this case put it

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         1          squarely in the realm of a serious offence;

         2          and second, as I said, the grounds of appeal,

         3          viewed in light of the record before me, are

         4          weak.

         5               As set out in Oland, in analyzing the

         6          public confidence aspect, the Court has to

         7          weigh two competing interests, namely the

         8          interest in the immediate enforceability

         9          of a judgment and society's interest in

        10          ensuring a meaningful review process for

        11          an appellant in an imperfect legal system.

        12               Oland also tells us that the factors

        13          identified in Section 515(10)(c) of the

        14          Criminal Code, which inform decisions on

        15          the justification for pre-trial detention

        16          on the public confidence ground, apply, with

        17          modification, to the public confidence analysis

        18          in applications for release pending appeal.

        19               The gravity of the offence, the

        20          circumstances of its commission and

        21          the punishment, all of which inform the

        22          seriousness of the offence, are relevant to

        23          the enforceability interest.  The remaining

        24          factor, being the strength of the prosecution's

        25          case or, in the case of release pending appeal,

        26          the strength of the grounds of appeal, are

        27          relevant to the reviewability interest.

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         1               There is no doubt in my mind about the

         2          seriousness.  Mr. Roberts was convicted of

         3          sexually assaulting the victim and uttering

         4          threats, and these convictions arose out of

         5          facts which are disturbing.  They are that

         6          he forced sexual intercourse upon the victim

         7          and when she tried to push him away he punched

         8          her in the face some five or six times to the

         9          point that she was knocked out.  When the victim

        10          regained consciousness Mr. Roberts was still

        11          having intercourse with her.  It was a prolonged

        12          and brutal assault and when Mr. Roberts finally

        13          stopped he threatened the victim that if she

        14          told authorities he would burn her house down.

        15          The convictions attracted a sentence of nearly

        16          four years.  The seriousness of the crimes weighs

        17          heavily in favour of the enforceability interest.

        18               In Oland, at paragraph 44, the Court

        19          indicated that the strength of an appeal plays

        20          a central role in assessing the reviewability

        21          interest, and accordingly, this is where the

        22          "more pointed" assessment is warranted.

        23               While I found that the two grounds of appeal

        24          met the "not frivolous" threshold for the purpose

        25          of moving on and considering the public interest

        26          criterion, they do not go much further than that.

        27          This opinion is, of course, qualified, and it is

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         1          a preliminary assessment, limited to what is on

         2          the record before me and without the benefit of

         3          a full hearing with argument.

         4               Justice Smallwood denied the application

         5          for the mistrial because the requirements in

         6          Palmer and Kowall were not met.  She found

         7          that the defence counsel knew of the witness's

         8          existence and he had her name.  Defence counsel

         9          made a tactical decision not to call the witness.

        10          Justice Smallwood also explained that what was

        11          before her in the application did not allow

        12          her to assess the proposed evidence against

        13          the Palmer criteria and, although the appellant

        14          submitted in his supplemental brief that she

        15          did not provide sufficient reasons for reaching

        16          that conclusion, it is clear from the context

        17          that she did.  She clearly identified the

        18          deficiencies she found and cited judicial

        19          authority on the foundation required for a

        20          proper assessment.

        21               Justice Smallwood also concluded that

        22          the proposed evidence would not have affected

        23          the result in any event, noting that the

        24          relationship between the victim and her spouse,

        25          and Mr. Roberts and his partner, was just one

        26          of many factors taken into account in assessing

        27          credibility.  This is borne out in the reasons

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         1          for conviction.  Justice Smallwood analyzed the

         2          evidence of each of the witnesses and was aware

         3          of and articulated the frailties and strengths

         4          of the evidence of each, including a number

         5          of inconsistencies in the victim's evidence.

         6          But, as she noted in her reasons for denying

         7          the mistrial application, which is found at

         8          page 15 of her decision, and as is clear from

         9          her reasons for conviction, her conclusions about

        10          what happened between the victim and Mr. Roberts

        11          on the night in question were not based on the

        12          closeness of the relationship between them.

        13               Based on what is before me I conclude that

        14          this ground of appeal is weak.  Similarly, I do

        15          not find that the other ground of appeal, i.e.

        16          that Justice Smallwood relied on stereotypes

        17          and myths about how sexual assault victims

        18          should behave, is particularly compelling.

        19          Again, read in context, the conclusion she

        20          reached was not rooted in a stereotype, but

        21          rather, it appears to be a logical and rational

        22          conclusion based on the evidence that was before

        23          her.  She cited evidence from the victim, the

        24          victim's husband, and another Crown witness

        25          about how the victim was feeling and her

        26          outward demeanor.

        27               One Crown witness, whose initials are M.S.,

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         1          observed the victim was crying, upset and mad,

         2          which was apparently precipitated by having had

         3          an argument with her husband and him leaving

         4          the house with the children and M.S.  As Crown

         5          Counsel pointed out, Mr. Roberts' version of

         6          what happened, that the victim greeted him at

         7          the door, giggling and happy, and invited him

         8          in and initiated multiple sexual encounters,

         9          is highly inconsistent with that narrative.

        10               Although Mr. Roberts' appeal has not been

        11          scheduled he did indicate that his lawyer, as

        12          I said, would be available to argue the appeal

        13          at this Court's next sittings in October, and

        14          accordingly, any concern about delay in bringing

        15          the appeal forward is not at the forefront.

        16               In my view, the reviewability interest does

        17          not overcome the enforceability interest, nor the

        18          public safety concerns I have cited, and thus,

        19          in all of the circumstances the application

        20          for release pending appeal is denied.

        21                           -----------------------------

        22

        23                           Certified to be a true and
                                     accurate transcript, pursuant
        24                           to Rules 723 and 724 of the
                                     Supreme Court Rules.
        25

        26
                                     _____________________________
        27                           Joel Bowker
                                     Court Reporter

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