Supreme Court

St. John v. R., 2015 NWTSC 57 A-1-AP2015000008 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF: MICHAEL ST. JOHN Appellant/Applicant

- vs. - HER MAJESTY THE QUEEN Respondent _________________________________________________________ Transcript of the Decision on an Application for Bail pending Appeal by The Honourable Justice S. H. Smallwood, at Yellowknife in the Northwest Territories, on September 25th A.D., 2015. _________________________________________________________ APPEARANCES: Mr. P. Harte: 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

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1 THE COURT: The applicant, Michael 2 St. John, was convicted after a trial by a 3 jury of sexual assault and sexual interference 4 and sentenced on August 13th, 2015 to a term 5 of imprisonment of three years. 6 He has appealed his conviction and 7 sentence to the Court of Appeal and is seeking 8 his release pending determination of his 9 appeals. The applicant is seeking his release 10 on a recognizance with a $10,000 cash deposit 11 and a number of conditions. The respondent 12 Crown is opposed to the applicant's release. 13 The issue is whether the applicant has met the 14 requirements of Section 679(3) of the Criminal 15 Code. 16 Section 679 of the Criminal Code governs 17 release pending appeal. Section 679(1) 18 permits a Judge of the Court of Appeal to 19 release an appellant from custody pending 20 determination of his or her appeal where 21 notice of the appeal has been given. The 22 applicant in this case filed his notice of 23 appeal from conviction and sentence on 24 September 9th, 2015. 25 In considering whether the applicant 26 should be released pending his appeal, 27 Section 679(3) of the Criminal Code is

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1 applicable and states that a Judge of the 2 Court of Appeal may order that the appellant 3 be released pending the determination of his 4 appeal if the appellant establishes: 5 First, that the appeal or application for 6 leave to appeal is not frivolous; 7 Second, that he will surrender himself 8 into custody in accordance with the terms of 9 the order; and, 10 Thirdly, that his detention is not 11 necessary in the public interest. 12 In this case, the Crown concedes that the 13 appeal is not frivolous and that there is 14 little concern that the applicant will not 15 surrender himself into custody. However, the 16 Crown argues that the detention of the 17 applicant is necessary in the public interest. 18 The grounds of appeal contained in the 19 notice of appeal relate to the use of 20 testimonial aids during the course of the 21 trial. 22 During trial the Crown applied, pursuant 23 to Section 486.2(1), for the use of a screen 24 during the testimony of a witness (the 25 complainant in this case). At issue on appeal 26 is the placement of the screen during the 27 testimony of the complainant and whether

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1 another alternative should have been ordered 2 by the Court. The appeal will involve a 3 consideration of Section 486.2(1) and what it 4 means when a witness is permitted to testify 5 "behind a screen or other device that would 6 allow the witness not to see the accused". 7 With respect to the first step as 8 contemplated in Section 679(3) (that the 9 appeal is not frivolous). In that case, the 10 applicant need only establish that the ground 11 of appeal would not necessarily fail in order 12 to establish that the ground of appeal is not 13 frivolous. It is a low threshold to meet and 14 I am satisfied that there is a question to be 15 answered and that the appeal would not 16 necessarily fail. Therefore I am satisfied 17 that the appeal is not frivolous. 18 With respect to the second step, (that the 19 applicant will surrender himself into custody 20 in accordance with the terms of his release) 21 the applicant has no criminal record apart 22 from the convictions from which he appeals. 23 He was on release on this matter and another 24 outstanding matter since February 24th, 2014, 25 until he was placed into custody on being 26 sentenced on this matter. And there is no 27 suggestion that he has ever breached a term of

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1 his release or failed to attend court when 2 required to do so on this or any other matter. 3 Therefore I am satisfied that the applicant 4 would surrender himself into custody in 5 accordance with any release conditions that he 6 might be subjected to. 7 The third step is whether it is necessary 8 for the applicant to be detained (whether it 9 is necessary in the public interest). 10 As referred to in the case of R. v. Ussa, 11 a 2014 decision of the Manitoba Court of 12 Appeal, at paragraph 8, the public interest 13 referred to in the third branch of the test, 14 under Section 679(3), is concerned with the 15 protection and safety of the public as well as 16 public confidence in the administration of 17 justice. 18 In order to maintain public confidence, a balance has to be 19 struck between reviewing the conviction that led to the 20 imprisonment for error and enforcing the judgment. 21

22 In that case, a number of factors were 23 listed to be considered in the assessment of 24 reviewability versus enforceability. They are 25 listed at paragraph 9, and they are, first, 26 the seriousness of the offence. Secondly, the 27 background of the applicant, particularly any

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1 criminal record. Thirdly, the potential delay 2 of the hearing of the appeal, particularly 3 whether the sentence will expire before the 4 appeal will be heard. And fourthly, the 5 relative strength of the ground or grounds of 6 appeal. 7 It is important to remember that at this 8 point the decision that is being made is 9 whether the applicant is being released 10 pending his appeal being determined. The 11 Court does not have a full record of the trial 12 and any comments made do not prejudge the 13 outcome of the appeal. Counsel have not 14 presented their full argument or filed their 15 facta which would be considered at the appeal 16 itself. 17 With respect to the seriousness of the 18 offence, in the case of Gingras, a BC Court of 19 Appeal from 2012 which is referred to in the 20 notes of Martin's Criminal Code, held that the 21 greater the seriousness of the offence, the 22 stronger the grounds are required to shift the 23 balance from enforceability to reviewability. 24 In this case, the applicant was convicted 25 following a jury trial of sexual assault and 26 sexual interference and sentenced to a term of 27 imprisonment of three years. While I do not

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1 have the full details of the offences for 2 which the applicant was convicted, I 3 understand that they involve multiple sexual 4 assaults over a lengthy period of time on a 5 child for which the applicant was in a 6 position of trust. 7 I am satisfied that the offence is a 8 serious one. It involved the sexual abuse of 9 a child by a person who was in a position of 10 trust and the applicant has received a 11 significant term of imprisonment. 12 With respect to the background of the 13 applicant, the applicant, as previously 14 stated, has no prior criminal record before 15 being convicted of these offences. He does 16 have another outstanding charge which is 17 scheduled for trial in November of this year. 18 However, that charge arose around the same 19 time as the matters which are before me today. 20 And there is nothing otherwise in the 21 background of the applicant which raises any 22 specific concerns with respect to that factor. 23 With respect to the potential delay in the 24 hearing of the appeal, the applicant's appeal 25 is not yet ready to be heard. And as I 26 stated, the appeal books have not been filed 27 and the factums have not been filed by either

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1 party. The Court of Appeal sits four times a 2 year in Yellowknife. They sit next in October 3 and, following that, sit again in January, 4 April, and June of 2016. 5 It is apparent that this matter cannot be 6 heard in October. The next available date 7 would be January of 2016. Counsel for the 8 applicant advises the Court that he is not 9 available in January so unless the applicant 10 were to retain new counsel, the earliest his 11 appeal could be heard would be April of 2016. 12 Balanced against this is a sentence that 13 was imposed for these offences, which was a 14 significant one, one of three years 15 imprisonment. It appears to me that the 16 appeal could easily be heard before the 17 sentence imposed would expire so that there is 18 little risk that the sentence would expire 19 before the appeal could be heard. 20 With respect to the relative strength of 21 the appeal, the appeal itself relates to 22 Section 486.2(1) of the Criminal Code which 23 states that the Judge shall, on application of 24 the prosecutor, the witness, who is under the 25 age of 18 years, order that the witness 26 testify outside the courtroom or behind a 27 screen or other device that would allow the

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1 witness not to see the accused unless the 2 Judge or Justice is of the opinion that the 3 order would interfere with the proper 4 administration of justice. 5 The issue in this case is the placement of 6 the screen which was placed in front of the 7 accused during the trial. 8 There have been excerpts of transcripts 9 filed which demonstrate the discussion that 10 was had between counsel and the trial Judge 11 regarding the application itself and then 12 subsequently the placement of the screen. 13 The initial discussion relating to the 14 placement of the screen was that it would 15 ensure that the witness did not have to see 16 the accused during her testimony but also 17 ensuring that the view of the witness with 18 respect to counsel or the jury was not 19 obscured. Ultimately when the screen was 20 placed, it was placed in front of the 21 accused - something that was different than 22 earlier contemplated as there is a reference 23 to the screen being wheeled in on a trolley. 24 Ultimately it was placed on a table in front 25 of the accused. 26 Counsel for the applicant raised concerns 27 at trial with respect to this placement. It

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1 was clear from the discussions that the trial 2 Judge's concerns were the placement of the 3 screen so that it obscured the witness's view 4 of the applicant while at the same time 5 ensuring that counsel and the jury could see 6 and also hear the witness while testifying. 7 Subsequent discussions relating to the 8 placement of the screen also seem to reflect 9 this concern. Counsel for the applicant 10 raised the placement of the screen again (once 11 the screen had been placed in front of the 12 applicant) and at that time the discussion 13 related around the drawing -- that the screen 14 would draw attention to the applicant in the 15 courtroom and also that communication with his 16 client was also of concern. The trial Judge 17 confirmed with counsel that he was able to 18 communicate with the applicant although it was 19 less convenient than if the screen was not 20 present. 21 Also during trial, the trial Judge advised 22 the jury when the witness testified, and later 23 again during the jury charge, about the screen 24 and advised the jury that it was a testimonial 25 aid used to help facilitate the evidence of 26 child witnesses and was something that was 27 allowed by the Criminal Code.

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1 She also clearly advised the jury that the 2 use of the screen had no bearing on the guilt 3 or innocence of the applicant and also clearly 4 that it had no bearing on the credibility of 5 the witness. So the issue on appeal will 6 involve a consideration of Section 486.2(1) 7 and the use of testimonial aids in the 8 courtroom, as well as the placement of those 9 testimonial aids. 10 The importance of ensuring that witnesses 11 are able to provide their testimony in a 12 courtroom has been the subject of amendments 13 to the Criminal Code, and as recently as 2014. 14 It is considered in the public interest to 15 take steps to ensure that matters reach the 16 courtroom and decisions regarding criminal 17 charges are made in the courtroom - that 18 accused persons receive a fair trial on the 19 merits while at the same time ensuring that 20 witnesses are able to provide their evidence 21 before the trier of fact. 22 Obviously my role is not to determine the 23 outcome of the appeal, simply to consider the 24 relative strength of the appeal based on the 25 arguments that have been presented to me by 26 counsel. By the time of the appeal, counsel 27 will have the benefit of the full transcript

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1 of the trial and present full arguments on the 2 issue. But in my view, the relative strength 3 of the appeal is not as strong given some of 4 the factors that I have referred to and the 5 arguments that have been presented by counsel 6 in argument the other day. 7 In the circumstances, given the 8 seriousness of the offence, the sentence of 9 imprisonment that was imposed, the 10 availability of a hearing date (albeit not the 11 soonest date) all tend toward the public 12 interest being in the enforceability of the 13 sentence that was imposed after trial rather 14 than reviewability of the decision. 15 Therefore, I am dismissing the applicant's 16 application. 17 If there is nothing else, counsel, we will 18 adjourn. 19 (ADJOURNED) 20 ------------------------------------- 21 22 23 24 25 26 27

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1 2 Certified to be a true and accurate transcript pursuant 3 to Rules 723 and 724 of the Supreme Court Rules, 4

5 6 7 8 ____________________________ 9 Lois Hewitt, Court Reporter 10

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