NOVA SCOTIA COURT OF APPEAL
Citation: R. v. MacEachern, 2007 NSCA 64
Date: 20070524
Docket: CAC 275432
Registry: Halifax
Between:
John David MacEachern
Appellant
v.
Respondent
Judge: The Honourable Justice M. Jill Hamilton
Application Heard: May 17, 2007, in Halifax, Nova Scotia, In Chambers
Written Decision: May 24, 2007
Held: Application for continuation of bail pending appeal denied; Applicant to be held in custody pending outcome of appeal
Counsel: Brian V. Vardigans, for the appellant
Daniel MacRury, Q.C., for the respondent
Decision (Orally):
[1] The appellant, John David MacEachern, has appealed to this Court the two year custodial sentence imposed on him on December 6, 2006 by Judge Claudine MacDonald of the Nova Scotia Provincial Court in response to his guilty plea of being unlawfully in a dwelling-house contrary to s.349(1) of the Criminal Code, R.S., 1985, c. C-46. He previously applied for release pending appeal, the Crown consented and he was granted bail on December 28, 2006 with conditions. One condition was that he abstain from the consumption of alcohol. Another condition was that his bail would be reviewed in Chambers if the appeal hearing did not take place on the date set, March 30, 2007.
[2] The appeal hearing did not take place on March 30, 2007. An adjournment was sought by Mr. MacEachern’s counsel and was granted with the new date for the appeal hearing set for May 14, 2007. At the time of the adjournment, Mr. MacEachern’s release pending appeal was reviewed in Chambers, the Crown consented to it continuing and the Chambers judge ordered his bail to continue on the same conditions.
[3] In April 2007 Mr. MacEachern’s then counsel was suspended from the practice of law. His new counsel has now applied for new dates for the hearing of his appeal to allow time to prepare and for a continuation of his bail. This application came before me in Chambers. The Crown opposed Mr. MacEachern’s continued release based on charges laid against him in April 2007 for impaired driving and breach of his bail condition that he abstain from the consumption of alcohol.
[4] In Mr. MacEachern’s affidavit sworn May 14, 2007 he swears that he was charged on April 13, 2007 under s.253(a) and (b) and s.145(3) of the Code and that he was scheduled to enter his plea on these charges on May 23, 2007.
[5] Attached to the May 15, 2007 affidavit of Kenneth W. F. Fiske, filed on behalf of the Crown, is a copy of a report of the Lunenburg County R.C.M. Police titled “Confidential Instructions for Crown,” which sets out the factual allegations pertaining to the April charges against Mr. MacEachern:
On April 13, 2007 at approximately 0150 hours Cst Morrison was driving on westbound on the 103 highway from exit 11. Cst Morrison was approaching a small dark Mazda truck bearing Nova Scotia plate #EGD 327. The vehicle was travelling west bound in front of Constable Morrison. Cst Morrison observed the vehicle drive toward the shoulder of the highway then toward the centre line and over the line into the oncoming lane. Cst Morrison noticed the vehicle do this a couple of times then Cst Morrison activated lights and sirens in attempt to pull the vehicle over.
The Mazda truck made no attempt to stop then moved into the oncoming lane and continued to travel westbound. The driver was accelerating then slowing as the vehicle was travelling in the oncoming lane. Cst Morrison called Cst McCallion to assist as Cst Morrison was concerned the driver was going to harm himself or others. Cst Morrison observed a vehicle approaching in the oncoming lane and the mazda truck was still in the oncoming lane. Cst Morrison allowed for distance between the mazda truck and the police car as it appeared the truck was going to be involved in a head on collision with the approaching vehicle.
The approaching vehicle pulled off to the shoulder of the road to allow the mazda truck to continue in the oncoming lane. The mazda truck narrowly missed the oncoming vehicle but continued to drive in the opposing lane.
Soon thereafter a transport truck was approaching in the oncoming lane and was forced to pull over to the shoulder of the highway.
Finally the mazda truck pulled back into the west bound lane and within a minute the truck pulled to the shoulder of the highway and Cst Morrison approached the driver who was the lone occupant.
The driver identified himself as John MacEachern and stated he was going home to Windsor. Cst Morrison told him he was going the wrong way. Cst. Morrison observed slurred speech, smell of liquor on breath, red glossy eyes and an open case of beer in on the passenger side of the truck.
. . .
0225 hrs Cst Morrison arrived MacEACHERN to cells where checks were completed and discovered MacEACHERN to have an indefinite suspension from driving
0233 hrs MacEachern spoke to legal aid
0240 hrs MacEachern hung up with lawyer and went into the breath room with Cst MacDonald and provided 2 breath samples. 0302 hrs 200 mgs alcohol/100 ml of blood 0323 hrs 190 mgs alcohol/100 ml of blood
[6] The Crown argued that Mr. MacEachern’s release should not be continued in light of these charges. It argued his detention in custody is necessary in the public interest, both in the sense that the continuation of his bail may endanger the public safety and in the sense that continuing bail would diminish the confidence of the public in the administration of justice.
[7] Counsel for Mr. MacEachern agreed that the April charges are serious and would normally support revocation of bail but argued that they must be considered in context, the context being that Mr. MacEachern has abided by the terms of the several recognisances he has been subject to since the charges underlying his appeal first arose in August 2004 and that this is the first breach in over two and one-half years. He suggested this indicates that Mr. MacEachern’s detention is not necessary in the public interest.
[8] He pointed to the fact Mr. MacEachern is currently employed as an apprentice mechanic, lives with his common law wife and has one child who visits with him every second weekend and for whom he pays child support in the amount of $160 per month. He indicated Mr. MacEachern told him he has been under great stress during the past few months and noted that the R.C.M. Police released Mr. MacEachern on a promise to appear following his charges for impaired driving.
[9] He indicated he may seek leave to amend the notice of appeal to appeal Mr. MacEachern’s conviction as well as sentence and include a ground of involuntary guilty plea among others.
[10] This Court previously issued two bail orders for Mr. MacEachern with respect to this appeal. Since those orders were issued Mr. MacEachern has been charged with impaired driving and breach of his current bail order. The April charges do not affect the merit of his appeal, unnecessary hardship or the likelihood of Mr. MacEachern surrendering himself into custody in accordance with the terms of his bail order. However, the April charges do affect the issue of whether his detention is necessary in the public interest.
[11] There are two aspects of the public interest factor, public safety and confidence in the administration of justice. Under the first aspect I must consider whether Mr. MacEachern may act in such a way as to endanger the public safety if his bail continues and, if I am not satisfied of that, under the second aspect I must consider whether informed fair-minded members of the community would think it reasonable to allow Mr. MacEachern’s bail to continue in light of the April charges.
[12] The April charges, if proved, would not be a minor technical breach of Mr. MacEachern’s bail order. If the alleged facts are proved, Mr. MacEachern could have caused the death of himself and others. His blood alcohol level is alleged to have been over two times the legal limit. He is alleged to have had an open case of beer on the seat beside him. He is alleged to have been driving in the wrong direction if his indication of his destination was accurate. He is alleged to have been driving on the wrong side of the road, on a main highway, in the middle of the night and to have forced two vehicles onto the shoulder of the road to avoid the truck he was driving before he pulled over in response to the lights and sirens on the R.C.M. Police car. This alleged behaviour suggests that Mr. MacEachern is either unable to control himself, has contempt for the judicial process or both. These alleged facts satisfy me that a failure to detain Mr. MacEachern in custody may endanger the public safety.
[13] I considered whether it was possible to remove this danger to the public safety by adding a condition to Mr. MacEachern’s bail that he refrain from driving. For three reasons I am satisfied that it would not. First, the alleged facts suggest Mr. MacEachern disregarded the existing condition that he refrain from the use of alcohol. There is nothing to indicate he would not do so again. Second, the alleged facts suggest Mr. MacEachern was driving on April 13 while his licence was indefinitely suspended. Third, his criminal record indicates six offences of driving without a licence between 1997 and 2000 and two of driving without insurance between 1997 and 2004. It is unlikely a condition in his bail order requiring him to refrain from driving would receive anymore attention from Mr. MacEachern than his prior suspensions did. The conditions of his bail order and the suspension of his licence appear to be ineffective in deterring Mr. MacEachern.
[14] Being satisfied that Mr. MacEachern may be a risk to the public safety if he is not detained in custody, it is not necessary for me to consider the second aspect of public interest.
[15] Accordingly, I order that Mr. MacEachern’s bail not be continued and that he be held in custody pending the outcome of his appeal.
Hamilton, J.A.