C.A.C. No. 02898
NOVA SCOTIA COURT OF APPEAL
Clarke, C.J.N.S.; Hart and Hallett, JJ.A.
Cite as: R. v. Grenkow, 1993 NSCA 189
BETWEEN:
IRENE GAIL GRENKOW ) The Applicant
) in person
Applicant )
)
)
- and - ) Robert E. Lutes, Q.C.
) for the Respondent
)
HER MAJESTY THE QUEEN )
)
Respondent )
)
) Application Heard:
) October 15, 1993
)
) Decision Delivered:
) October 19, 1993
)
)
THE COURT: Application dismissed upon the review of a decision denying judicial interim release pending appeal per reasons for judgment of Clarke, C.J.N.S., Hart, J.A. and Hallett, J.A.
THE COURT:
This is an application by Ms. Irene Grenkow, under s. 680 of the Criminal Code, for a review of the decision of Mr. Justice Matthews delivered August 6, 1993. He refused her application for release from custody pending the determination by this Court of her appeal from conviction and, with leave, her sentence. The Crown opposes the application.
On March 8, 1993, after her trial before a judge and jury, Ms. Grenkow was found guilty of intentionally causing damage by fire to property at 45 Vimy Road, Halifax, knowing that the property was occupied, contrary to s. 433(a) of the Criminal Code. Briefly put, she was found guilty of arson by having caused a fire in the only elevator in service at the time at Granbury Place. It is a large building of condominiums consisting of twelve floors and estimated to be occupied by about 400 persons. Some are elderly and others suffer from physical impairments. Due to the volume of smoke, the building was evacuated.
Ms. Grenkow owns, and at that time occupied, one of the condominium units.
On June 21, 1993 Ms. Grenkow was sentenced to serve three years. Pursuant to s. 100(1) of the Criminal Code a firearms prohibition for ten years was also imposed.
The Criminal Code, by s. 679(3) provides,
" In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that
(a) the appeal or application for leave to appeal is not frivolous;
(b) he will surrender himself into custody in accordance with the terms of the order; and
(c) his detention is not necessary in the public interest."
Ms. Grenkow made application to introduce, as fresh, the evidence of several persons. These included some who had already testified at the hearing before Justice Matthews, where she was represented by counsel, and others either to contradict or supplement, or both, evidence, exhibits and submissions before the Court.
After hearing the submissions of both Ms. Grenkow and Mr. Lutes, Q.C., on the fresh evidence application, the Court, upon consideration, concluded the application was dismissed. (See Palmer and Palmer v. The Queen (1979), 50 C.C.C. (2d) 193, [1980] 1 S.C.R. 759; R. v. Stolar (1988), 40 C.C.C. (3d) 1, [1988] 1 S.C.R. 480.)
While s. 679(3) requires the appellant to establish proof of three conditions by a preponderance of evidence, if she is to be released, the thrust of the evidence and argument before Justice Matthews was on her proof of the third condition, namely, that "(her) detention is not necessary in the public interest".
After hearing the evidence of Ms. Grenkow, on her own behalf and two others, and several witnesses called by the Crown, and the submissions of Ms. Grenkow's counsel and that of the Crown, he concluded she had not met the burden of proof by a preponderance of evidence.
The evidence of Ms. Grenkow and that of witnesses called by the Crown was contradictory in several respects. Of this, Justice Matthews stated (at p. 5):
" The evidence adduced by the Crown contradicted that of the applicant in several pertinent aspects. If the testimony of the Crown's witnesses were to be accepted then the inescapable conclusion is that the applicant has not discharged the onus upon her in respect to s. 679(3)(c). It is my opinion that the overwhelming weight of the evidence is to that effect. I accept that the applicant has made threats affecting the safety of others and further that the residents of the condominium and others have good reason to fear for their safety should the applicant be released."
Having had the benefit of seeing and hearing the witnesses give their evidence, he, similar to that of a trial judge, was in a much better position than we are to assess their credibility and the weight to be given their testimony. It is evident that on the matters to which he referred as credible and worthy of weight, he accepted the evidence of those persons called by the Crown and not the evidence of Ms. Grenkow. A review of the record of the proceedings satisfies us that there was evidence upon which Justice Matthews could so find.
Justice Matthews reviewed the applicable law and the whole of the evidence at some length and then concluded at p. 6 of his decision:
" I repeat: the onus rests upon the applicant to justify her release. I have considered the serious nature of this offence; the circumstances surrounding it, the fire set in an elevator on the ninth floor of the building with a potential of tragedies had not the fire been quickly located and extinguished; the threats allegedly made by the applicant prior to the fire; the apparent reason for the arson; the danger to the lives and safety of the occupants of the building, particularly keeping in mind the ages and infirmities of many of them; the threats after the fire; the fears and concerns expressed should the applicant be released pending appeal; the public interest in such a release as expressed in the cases cited; and have concluded that the applicant has not established that her detention is not necessary in the public interest."
Ms. Grenkow is 39 years old. Prior to this offence she had no criminal record. In our opinion the crucial issue is the significance and impact of the words "public interest" in s. 679(3)(c). At this point in the proceedings she does not have the presumption of innocence on her side for the reason that she stands convicted of arson. Whether she has been wrongly convicted, as she asserts, will be considered by this Court when her appeal is heard on November 25, 1993. Until then she is guilty of arson.
Determining what is in the public interest has been described as giving the judge a "wide and unfettered discretion" (R. v. Kingwatsiak (1976), 31 C.C.C. (2d) 213 at pp. 217-8). She owns a condominium unit in a building occupied by some 400 people. After making threats prior to the fire that if her cat is not returned dead or alive by Monday morning at 9:00 a.m. "there is going to be trouble in this building" and "the trouble will grow worse day by day and will not stop until the cat is returned", Ms. Grenkow was found to have committed an act of arson which potentially endangered the lives and safety of those who occupy Granbury Place. The interests of the residents in their safety and security is a reasonable ingredient of what is in the "public interest" for the purposes of s. 679(3)(c). This is not a case of interim release being sought before trial. It is release being sought after a trial and a conviction by a jury of a serious criminal offence.
Undesirable though it may be in principle to detain a person unnecessarily, we are persuaded after considering the circumstances that Justice Matthews did not err. Accordingly his decision of August 6, 1993 is confirmed and the application for review is dismissed.
Clarke, C.J.N.S.
Hart, J.A.
Hallett, J.A.