Court of Appeal
Decision Information
Transcript of the Decision on Judicial Interim Release Pending Appeal
Decision Content
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
Official Court Reporters
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
Official Court Reporters
1
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
Official Court Reporters
2
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
Official Court Reporters
3
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,
Official Court Reporters
4
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
Official Court Reporters
5
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
Official Court Reporters
6
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
Official Court Reporters
7
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.
Official Court Reporters
8
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
Official Court Reporters
9
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.
Official Court Reporters
10
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
Official Court Reporters
11
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
Official Court Reporters
12
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.,
Official Court Reporters
13
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
Official Court Reporters
14