Court of Appeal

A. v. R., 2015 NWTCA 9 A-1-AP2014000012

IN THE COURT OF APPEAL OF THE NORTHWEST TERRITORIES IN THE MATTER OF: N.A. Appellant

- vs. - HER MAJESTY THE QUEEN Respondent

_________________________________________________________ Transcript of the Decision on an Application for bail pending appeal by The Honourable Justice L. A. Charbonneau, at Yellowknife in the Northwest Territories, on May 15th A.D., 2015. _________________________________________________________

APPEARANCES: Mr. C. Davison: Counsel for the Appellant/Applicant Ms. K. Lakusta: Counsel for the Respondent

---------------------------------------- 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

An Order of the Court has been made prohibiting publication, broadcast, or transmission of information contained herein

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1 THE COURT: This is an application for 2 bail pending appeal by the Appellant Mr. 3 A. 4 The Appellant was convicted by a jury on 5 September 17, 2014 on a two-count Indictment 6 charging him with indecent assault and sexual 7 assault on his son in a timeframe between 8 September 1980 and December 1985. He was 9 sentenced to a term of five and a half years 10 imprisonment for these offences. He has filed 11 a Notice of Appeal of his conviction and 12 sentence on November 14th, 2014. 13 The Notice of Appeal from conviction 14 alleges two grounds. The first is that the 15 trial Judge erred in not granting a mistrial 16 application following certain comments made by 17 Crown counsel in her closing address. The 18 second is that the trial Judge erred in 19 supplementing her initial jury charge by 20 giving the jury additional instructions on the 21 topic of corroboration. 22 At the hearing of the application earlier 23 this week, the Appellant's counsel focused his 24 submissions on the error alleged in relation 25 to the comments of Crown counsel in her 26 closing address. He did not focus primarily 27 on the dismissal of the mistrial application

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1 but rather on the sufficiency of the 2 instruction that the trial Judge gave to 3 correct the problem arising from the Crown's 4 closing address. The Appellant's counsel 5 argues that this instruction was not 6 sufficient to fully address the problems and 7 prejudice flowing from the remarks made by 8 Crown counsel. 9 I should note at the outset that both 10 defence counsel appearing on this application 11 and Crown counsel appearing on this 12 application are counsel who are different than 13 the ones who actually were counsel at trial. 14 The first thing that I will do is talk 15 about the general principles that govern bail 16 pending appeal applications. Applications for 17 bail pending appeal are governed by 18 Section 679 of the Criminal Code. There is no 19 dispute about the legal principles that apply 20 in these kinds of requests. An Appellant may 21 be granted bail pending appeal if that 22 Appellant establishes three things: First, 23 that the appeal is not frivolous. Second, 24 that the Appellant will surrender himself or 25 herself as required if released. And third, 26 that the Appellant's detention is not required 27 in the public interest.

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1 Here, the Crown concedes that there are no 2 real concerns about the Appellant's 3 surrendering himself into custody if he is 4 released. 5 On the issue of whether the appeal is 6 frivolous, from the oral submissions I heard 7 on Monday I do not understand the Crown to be 8 forcefully arguing that the appeal is 9 frivolous. The Crown argues that the grounds 10 of appeal are very weak but acknowledges that 11 the threshold to demonstrate that an appeal is 12 not frivolous is quite low. In my view, the 13 Appellant has established that the appeal is 14 not frivolous, and I will just say a few words 15 about why. 16 This was a jury trial. In her closing 17 address to the jury, the prosecutor made 18 submissions which essentially invited the jury 19 to consider why the complainant would have 20 gone through the process of giving statements 21 to the police, testifying at the preliminary 22 hearing and testifying at the trial if the 23 complaint was not true. This amounted to a 24 suggestion that the fact that the complainant 25 pursued the complaint bolstered or gave more 26 strength to his credibility. As was 27 recognized immediately by the trial Judge,

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1 that was not a proper submission for the 2 prosecutor to make to the jury. 3 As noted by the Ontario Court of Appeal in 4 R. v. A. (G. R.), 1994 CarswellOnt 120 (C.A.) 5 at paragraph 4, the fact that a complainant 6 pursued the complaint cannot be used to 7 bolster the credibility of that complainant as 8 a witness. 9 In dismissing the mistrial application, 10 the trial Judge concluded that a specific 11 instruction about what the prosecutor had said 12 could cure the error. Whether that was the 13 correct approach and whether the instruction 14 that she gave was sufficient is not an issue 15 that I can or should address in depth at a 16 bail pending appeal application stage. But in 17 circumstances where counsel has said something 18 erroneous and prejudicial to a jury, it would 19 be difficult to argue that an appeal based on 20 that error is not at least arguable and that 21 is the threshold. Therefore the outcome of 22 this application boils down to the analysis of 23 the third factor, which is whether the public 24 interest requires the continued detention of 25 the Appellant. The meaning of "public 26 interest" has been discussed in the case law. 27 In R. v. Farinacci (1993) 25 C.R. (4th)

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1 350 (Ont.C.A.), the Supreme Court of Canada 2 was examining the constitutional validity of 3 public interest as one of the factors to be 4 considered in deciding whether bail pending 5 appeal should be granted. In its analysis, 6 the Court explained what the notion of public 7 interest means and how it should be 8 approached. Those principles have been 9 applied in many cases since then and have not 10 substantially been altered. 11 The concerns relevant to public interest 12 are public safety first and, second, 13 maintaining the public's confidence in the 14 administration of justice. 15 Maintaining that confidence requires 16 balancing two important principles - the 17 enforceability of judgment and the 18 reviewability of judgments. As the Supreme 19 Court said in Farinacci: 20 The "public interest" criterion in Section 679(3)(c) of the Code 21 requires a judicial assessment of the need to review the conviction 22 leading to imprisonment, in which case execution of the sentence may 23 have to be temporarily suspended, and the need to respect the 24 general rule of immediate enforceability of judgments. 25

26 R. v. Farinacci, supra, paragraph 41. 27 The factors that are relevant in balancing

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1 these competing needs include the seriousness 2 of the offence that the Appellant was 3 convicted for, the background of the Appellant 4 including the existence of a criminal record, 5 any potential delay in the hearing of the 6 appeal (and this is especially relevant if the 7 sentence will have been served completely by 8 the time that the appeal can be heard) and the 9 relative strength of the ground of appeal. 10 Those factors were identified in the case of 11 R. v. Ussa, 2009 MBCA 71, referred to by the 12 Crown, and I agree with them. 13 Another question, of course, when 14 considering the issue of maintaining the 15 public's confidence in the administration of 16 justice is to identify which public should be 17 considered. As this Court and others have 18 said on a number of occasions, public 19 perception of the administration of justice 20 should be assessed by considering how an 21 objective reasonable person, fully informed 22 about the facts and the applicable principles 23 of law, will likely view the situation. 24 Examples of this approach being taken in this 25 jurisdiction can be found in the cases of 26 R. v. Larsen, 2011 NWTCA 5 at paragraph 27, 27 and R. v. Marlowe, 2006 NWTCA 5 at paragraph

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1 26. 2 Coincidentally, just this morning the 3 Supreme Court of Canada released an important 4 decision, R. v. St-Cloud 2015 SCC 27, which 5 did not deal with bail pending appeal but 6 deals with the interpretation of the tertiary 7 ground of detention provided for in 8 Section 515 of the Criminal Code. 9 Maintaining confidence in the 10 administration of justice is at the heart of 11 that ground for detention so I think the 12 comments that were made in that case are 13 relevant also to the notion of public interest 14 in the context of bail pending appeal because 15 maintaining the confidence of the public in 16 the administration of justice is clearly a 17 component of the public interest branch of the 18 test. The Supreme Court did discuss the 19 meaning of what "public" are we talking about 20 when we speak of this. 21 At paragraph 72 to 86 of St-Cloud, the 22 Supreme Court reiterated the importance for 23 courts not to base decisions on particularly 24 emotional or excitable members of the public, 25 while at the same time not rendering the term 26 "public" meaningless by imagining those 27 members of the public being people that are as

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1 well versed in the law as lawyers, judges, or 2 professors of law might be. The Court summed 3 up its view at paragraph 80 of the decision, 4 which I will just quote: 5 [The person] is a thoughtful person, not one who is prone to 6 emotional reactions, whose knowledge of the circumstances of 7 a case is inaccurate or who disagrees with our society's 8 fundamental values. But he or she is not a legal expert familiar 9 with all the basic principles of the criminal justice system, the 10 elements of criminal offences or the subtleties of criminal intent 11 and of the defences that are available to accused persons. 12

13 I do not think this recent discussion 14 alters fundamentally the analysis for the 15 purposes of this case, but it certainly 16 provides additional clarity on what kind of 17 public we should be thinking about when we 18 discuss issues like maintaining the confidence 19 of the public in the justice system. Those 20 are the principles that apply to an 21 application like this one, and I will now turn 22 to the application of those principles in the 23 specific circumstances of this case. 24 The first factor I have considered is the 25 seriousness of the circumstances of the 26 offences. 27 The offences that the Appellant was

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1 convicted for were a series of very serious 2 sexual assaults on his son dating back to the 3 years 1982 to 1985. The son's evidence at 4 trial was that the abuse started happening 5 when he was around three or four years old and 6 continued to happen many times over the course 7 of years. He said that the Appellant would 8 give him something to drink, which he now 9 believes was home-brew, which would make him 10 feel dizzy and fall asleep. He would wake up 11 to being sexually assaulted by his father. 12 These acts involved repeated acts of anal 13 intercourse. 14 It was undisputed at the sentencing 15 hearing that these were very serious sexual 16 assaults and that there were many aggravating 17 factors, such as the young age of the victim, 18 the repeated nature of the acts, the fact that 19 the Appellant gave his victim home-brew, 20 thereby making him even more vulnerable. 21 The trial Judge, as I have already said, 22 imposed a global sentence of five and a half 23 years (five and a half years on each count to 24 be served concurrently). 25 The Appellant had been on process between 26 the time he was charged and the time of his 27 conviction.

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1 The second factor that I have examined is 2 the anticipated delay in this appeal being 3 argued. This is not a particularly complex 4 matter and there is no reason to expect a long 5 delay in the appeal being heard. It could 6 likely have been set for the June sittings of 7 this Court but the Appellant's counsel was not 8 available on the date those sittings will take 9 place. In all likelihood, this appeal will 10 proceed at the October sitting of the Court. 11 This is not an inordinate delay, especially 12 considering that the appeal books were filed 13 in April 2015. 14 The next factor is the Appellant's 15 criminal record. 16 The Appellant has a criminal record. 17 While the charge under appeal is the most 18 recent entry on the criminal record, it is 19 chronologically the first when considering 20 offence dates. The convictions on the 21 Appellant's record, apart from the one under 22 appeal, are as follows: 23 On May 13, 1985, he was convicted of two 24 counts of sexual assault and received a jail 25 term of 12 months imprisonment on each to be 26 served concurrently. 27 On October 19th, 1990, he was convicted of

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1 failing to comply with a recognizance and 2 received a fine. 3 On April 15th, 1994, he was convicted of 4 sexual assault and sentenced to five and a 5 half years imprisonment. He was also 6 convicted of an assault on that same date and 7 received a jail term of one month concurrent. 8 On March 13th, 2002, he was convicted 9 again of sexual assault, and his sentence was 10 time served. The record does not indicate how 11 much time he spent on remand before receiving 12 this sentence of time served so it is 13 difficult to gauge the level of seriousness of 14 that particular assault. 15 In its written materials on this 16 application, the Crown has provided some 17 particulars, though, about those convictions, 18 and the Appellant has not taken issue with 19 those particulars. 20 The 1985 convictions involved acts of 21 forced intercourse against his 14-year-old 22 stepsister. The 1995 conviction pertained to 23 a series of forced intercourse involving 24 threats and intimidation against his 25 13-year-old stepdaughter. And the 2001 26 conviction related to the sexual assault of 27 his 17-year-old stepdaughter while she was

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1 sleeping. 2 The next factor I have considered is the 3 Appellant's pending charge - one that has not 4 yet gone to trial. 5 The Appellant faces another charge of 6 sexual assault. He was released on process on 7 that matter as well. Unlike the matter under 8 appeal and the entries on the criminal record, 9 the allegations that resulted in that charge 10 are not historical; in other words, they do 11 not date back to the '80s or '90s. 12 The charge that the Appellant is awaiting 13 trial on relates to a series of events alleged 14 to have occurred in November 2012 while the 15 Appellant was awaiting trial on the matter 16 presently on appeal. The complainant is the 17 Appellant's 16-year-old step-granddaughter. 18 The allegations are that he wanted to have sex 19 with her, she refused, and that he punched her 20 a number of times causing her to fall and then 21 had forced intercourse with her. 22 The trial for that matter had been 23 scheduled to proceed in February of 2015 but 24 was adjourned when the defence counsel on that 25 matter discovered that he had a conflict of 26 interest and could no longer represent the 27 Appellant. New counsel has been assigned and

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1 a new trial date is expected to be set once 2 counsel provide their dates of availability. 3 The next factor to consider is the release 4 plan itself. 5 The Appellant has filed an affidavit in 6 support of his release application. He 7 proposes to be released on a recognizance with 8 conditions. He has proposed some conditions 9 but indicated that he would be prepared to 10 comply with any conditions the Court chooses 11 to impose. He is prepared to deposit $500 in 12 cash which, I accept, in his situation 13 represents a serious financial commitment. No 14 sureties are being offered. 15 While the Appellant deposes that he is 16 prepared to abide by any terms that the Court 17 might impose, including a curfew, he is not at 18 this stage able to identify a specific address 19 where he would reside. Matters are rendered 20 complicated for him in that respect because he 21 has lost his housing in his home community in 22 Ulukhaktok after he was taken into custody. 23 There is a shortage of houses there, and the 24 process for him to obtain new housing cannot 25 be undertaken while he is in custody; or 26 unless, as I understand it, he knows he would 27 be released if he had an address to provide.

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1 And this is why his counsel has approached 2 this matter by making the application now; and 3 if he is successful in convincing the Court at 4 least in principle, that the Appellant should 5 be released, then he could move forward with 6 specific steps to identify a place for the 7 Appellant to live. As of now, it is unclear 8 whether the Appellant would go back to live in 9 Ulukhaktok or would instead live somewhere in 10 Yellowknife. 11 The next factors that I have considered 12 have to do with the Appellant's age and his 13 medical issues. 14 The Appellant is now 68 years old. His 15 affidavit talks about various medical problems 16 that he has had and still has. 17 He had heart surgery in 2001 and has a 18 pacemaker. He deposes that his heart 19 continues to get weaker and that because of 20 this he had not worked for several years prior 21 to his incarceration. He also deposes that he 22 suffered a head injury about two years ago, 23 that this is affecting his memory and balance 24 and that it has become worse since his 25 incarceration. The fact that he suffers from 26 vertigo was referred to at his sentencing 27 hearing so it is not a new problem but in the

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1 affidavit, as I have just said, he deposes 2 that this has become worse in the recent past. 3 There are various medical reports and 4 documents that are attached to his affidavit. 5 Without those documents being interpreted and 6 explained by a medical expert, it is a little 7 difficult to know exactly what to make of 8 them. It does seem clear, and I accept, that 9 problems, such as lesions on the Appellant's 10 brain, have been identified and there is no 11 reason to not accept the Appellant's evidence 12 in the affidavit about some of how the 13 problems manifest themselves. But at this 14 stage there does not appear to be a clear 15 diagnosis or prognosis on his condition. 16 All of these circumstances and factors 17 that I have just been talking about must be 18 taken into account in deciding whether the 19 Appellant's detention is required or not 20 required in the public interest. 21 Going back to the various factors that 22 were mentioned in the Ussa case which I 23 referred to, and find quite helpful, this is 24 not a case where the delay in the appeal being 25 heard can be characterized as unreasonable or 26 inordinate. It is certainly not a case where 27 the appeal will be rendered somewhat moot by

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1 reason of the sentence having been completely 2 served by the time the appeal is heard - far 3 from it. 4 The seriousness of the crime for which the 5 Appellant has been convicted is beyond 6 dispute. 7 The criminal record of the Appellant also 8 raises significant concerns. While the 9 convictions are dated, they demonstrate a 10 disturbing pattern of serious sexual abuse of 11 young family members, at times involving 12 extraneous violence, threats, and 13 intimidation. 14 The pending charge is also of concern from 15 the point of view of public safety. Of course 16 on that matter, unlike the matter under appeal 17 and the matters reflected in the criminal 18 record, the Appellant still benefits from the 19 presumption of innocence. But pending 20 charges, especially when the allegations are 21 serious, are a factor that Courts take into 22 account when dealing with pre-trial bail. It 23 would make no sense for them not to have some 24 bearing or relevance in dealing with an 25 application for bail pending appeal. In this 26 regard, I agree with the conclusion reached by 27 the Ontario Court of Appeal in

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1 R. v. Louangrath, 2014 ONCA 880 referred to by 2 the Crown. 3 The factors that relate to the timing 4 within which the appeal will be heard, the 5 circumstances of the offence which form the 6 subject matter of the appeal, the criminal 7 record of the Appellant, and the fact that he 8 faces another charge, are all factors that 9 tend to favor enforceability over 10 reviewability. 11 The merit of the appeal is another factor 12 to consider. A ground of appeal that is very 13 very strong will favor reviewability over 14 enforceability and, conversely, reviewability 15 is not as strongly favored or engaged if a 16 ground of appeal appears very weak. 17 Judges sitting on bail pending appeal 18 applications must be very careful in 19 approaching this factor. Full arguments have 20 not been presented in support of the Crown and 21 defence's respective positions. But in 22 assessing the public interest, the fact 23 remains, as counsel have recognized, that the 24 merit of the appeal is a factor that the Court 25 must consider. 26 The issue on this appeal, it appears, will 27 primarily be the sufficiency of the

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1 instruction that was given by the trial Judge. 2 The trial Judge did refer to the prosecutor's 3 impugned submissions specifically in her 4 charge and she did tell the jury that they 5 should entirely disregard those impugned 6 submissions. That was a strong instruction 7 and whether it was strong enough to encompass 8 the full breadth of the potential prejudicial 9 impact of the Crown's comments will be for a 10 full panel of the Court to decide. I will 11 simply say that at first blush this does not 12 strike me as the most compelling of cases for 13 the Appellant. And although admittedly not 14 determinative, I note as well that the trial 15 Judge herself raised the issue after the 16 closing addresses of counsel, invited 17 submissions on how the error could be cured, 18 and before charging the jury discussed what 19 she proposed to tell the jury. I also note 20 that trial counsel did not raise any issue 21 about the sufficiency of the instruction after 22 it was given. 23 To be fair, the defence was very clear in 24 its trial position, even after the charge, 25 that no instruction could cure this error. 26 This was said in the context of the mistrial 27 application, and it was reiterated when the

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1 trial Judge invited comments about the charge. 2 But if, as counsel now representing the 3 Appellant argued on this application, the core 4 issue to be advanced on appeal is the 5 sufficiency of what the trial Judge said, the 6 fact that counsel did not ask for any 7 additional instructions at the time may be a 8 factor. I agree with defence counsel that it 9 would not be the determinative factor but it 10 could somewhat weaken the Appellant's argument 11 on appeal. 12 To the extent of the trial Judge's refusal 13 to grant a mistrial may also be challenged in 14 this appeal, it is also an issue on which the 15 Appellant is likely to face somewhat of an 16 uphill battle given the highly deferential 17 standard of review that applies to the 18 exercise of the trial Judge's discretion in 19 that area as was noted in Lamirande 2002 MBCA 20 41 Chiasson 2009 ONCA 789 cases, referred to 21 by the Crown. 22 There are circumstances, and I have given 23 this careful thought, where evidence about an 24 Appellant's medical condition might weigh 25 significantly in favour of release. There may 26 be situations where both public safety 27 concerns and concerns about maintaining