Nova Scotia Court of Appeal
Citation: R. v. Robinson, 2023 NSCA 51
Date: 20230713
Docket: CA 522733
Registry: Halifax
Between:
Adam Percy Robinson
Appellant
v.
His Majesty the King
Respondent
Restriction on Publication: s. 486.4 of the Criminal Code of Canada
Judge: |
Bourgeois, J.A. |
Motion Heard: |
July 13, 2023, in Halifax, Nova Scotia in Chambers |
Written Decision: |
July 18, 2023 |
Held: |
Motion for bail pending appeal is dismissed |
Counsel: |
Adam Percy Robinson, on his own behalf Erica Koresawa, for the respondent |
Order restricting publication — sexual offences
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
Mandatory order on application
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
Victim under 18 — other offences
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
Mandatory order on application
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
Decision:
[1] On July 13, 2023, I heard a motion for bail pending appeal brought by Adam Percy Robinson. Following trial in the Provincial Court of Nova Scotia, Mr. Robinson was convicted of sexual assault. On March 16, 2023, Mr. Robinson was sentenced to a term of imprisonment of three years.
[2] Mr. Robinson filed a Notice of Appeal on April 6, 2023 in which he seeks to appeal his conviction and sentence. He has made a motion for bail pending appeal pursuant to s. 679 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The Crown opposes his release.
[3] In support of the motion, Mr. Robinson provided an affidavit, and a letter from his employer confirming, if released, he could return to full time employment. Further, the Crown provided the Court with a transcript of the trial judge’s reasons for conviction and sentence.
[4] Mr. Robinson was cross-examined at the hearing. After hearing submissions from Mr. Robinson and the Crown, and considering the evidence before me, I provided brief oral reasons for denying the motion. I promised written reasons to follow. These are my reasons.
Background
[5] In the trial judge’s sentencing decision, the events giving rise to Mr. Robinson’s conviction for sexual assault were described as follows:
On the day of this offence, Mr. Robinson had consumed at least 15 beers which, according to the pre-sentence report, is his stated consumption limit for between one and two weeks, and on this day, he’d had that all at once.
Mr. Robinson had been riding on an all-terrain vehicle with a group, and he and his friend had returned to his friend’s place of employment to a sort of workhouse or warehouse, and they were met there by the complainant who had come up to meet his friend, and then they sat around in that building for a period of time having more to drink. The complainant began to drink and then the three of them retired for the evening into the cab of a truck that was there for repairs.
This was a commercial vehicle. It had the standard two seats in the front, a driver’s seat and a passenger seat, and in the back was a very small bed, much smaller than a single bed.
At the point that Mr. Robinson entered the truck cab, this little bed was occupied already by a very large man and a young woman (the complainant) who were obviously a, a couple of some type.
Mr. Robinson determined that this, in fact, would be an ideal spot to sleep, in a sitting position, notwithstanding the open driver’s and passenger seat, the floor of the cab, the floor of the workshop where the three had been drinking. And during the night, the complainant woke up to being touched, and this is where the sexual activity began. She said it was Mr. Robinson. He had her perform oral sex on him briefly, he performed sexual intercourse upon her.
[6] The complainant was 17 years of age at the time of the offence.
[7] Mr. Robinson has a very dated criminal conviction for theft under $5,000. He has had no other involvement with the criminal justice system. He is married with two school-aged children. Although his wife works during the school year, he is the family’s main source of income. Mr. Robinson wants to be released so that he can continue to support his family.
[8] In his affidavit, Mr. Robinson set out his bail plan in which he proposed to stay in Nova Scotia, reside in the family home, continue with his employment, report to the RCMP any changes in his address or employment, have no contact whatsoever with the complainant, be subject to a weapons prohibition, and to pay $2,000 if he failed to comply with the terms of release.
[9] The plan did not contain a requirement to abstain from alcohol and non-prescription drugs, any type of curfew, or any form of supervision by a surety. During cross-examination, Mr. Robinson asserted he would agree with any condition imposed by the Court, including wearing an ankle bracelet. He said he could pay money into Court to secure his release if required, and that his wife was prepared to act as a surety. Mr. Robinson’s wife had not filed an affidavit, nor was she present in Court to speak to her willingness and suitability to act as a surety.
Legal Principles
[10] In order for Mr. Robinson to be released on bail pending appeal, he must establish, on a balance of probabilities, all of the criteria set out in s. 679(3) of the Criminal Code. It provides:
679 (3) In the case of an appeal [against conviction], 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 … 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.
[11] The above provision was considered by the Supreme Court of Canada in R. v. Oland, 2017 SCC 17. Unlike pre-trial detention, once a conviction has been entered, the presumption of innocence is displaced and s. 11(e) of the Canadian Charter of Rights of Freedoms[1] no longer applies. As such, it is an appellant who bears the burden of establishing detention is not warranted (Oland at para. 35; R. v. Al-Rawi, 2021 NSCA 6 at para. 7).
[12] The first criterion, establishing that the appeal is not frivolous, has been repeatedly recognized as engaging a low-threshold. In Oland, Justice Moldaver wrote:
[20] The first criterion requires the appeal judge to examine the grounds of
appeal with a view to ensuring that they are not “not frivolous” (s. 679(3)(a)).
Courts have used different language to describe this standard. While not in issue
on this appeal, the “not frivolous” test is widely recognized as being a very low bar: see R. v. Xanthoudakis, 2016 QCCA 1809, at paras. 4-7 (CanLII); R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38; R. v. Passey, 1997 ABCA 343, 121 C.C.C. (3d) 444, at paras. 6-8; G. T. Trotter, The Law of Bail in Canada (3rd ed. (loose-leaf)), at pp. 10-13 to 10-15.
[13] Further, with respect to the second criterion:
[21] The second criterion requires the applicant to show that “he will surrender himself into custody in accordance with the terms of the [release] order” (s. 679(3)(b)). The appeal judge must be satisfied that the applicant will not flee the jurisdiction and will surrender into custody as required.
[14] It is the third criterion, detention is not necessary in the public interest, which was the focus of the Court in Oland. The Court endorsed the continuing applicability of the Farinacci framework (R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.)), in which Justice Arbour (as she then was) opined the public interest criteria consisted of two components: public safety and public confidence in the administration of justice.
[15] Public safety relates to the protection and safety of the public, whereas the public confidence component involves the weighing of two competing interests, the enforceability of judgments and reviewability. In R. v. W.B.G., 2023 NSCA 49, Justice Derrick contrasted these competing interests as follows:
[43] The public confidence component involves “the weighing of two competing interests: enforceability and reviewability”. The enforceability component reflects “the need to respect the general rule of the immediate enforceability of judgments”. In other words, it is expected the appellant will be held to account by continuing to serve the sentence imposed on him. The reviewability component reflects a recognition that our criminal justice system is not fail-safe and that appellants challenging the legality of their convictions “should be entitled to a meaningful review process…”.
(Footnotes removed)
[16] In considering the enforceability interest, the seriousness of the crime, including the circumstances surrounding the commission of the offence, is central. However, other factors can be taken into account where appropriate. “Public safety concerns that fall short of the substantial risk mark—which would preclude a release order—will remain relevant under the public confidence component” (Oland at para. 39).
[17] The reviewability interest engages a consideration of the strength of the grounds of appeal. Justice Moldaver explained:
[45] In the end, appellate judges can be counted on to form their own “preliminary assessment” of the strength of an appeal based upon their knowledge and experience. This assessment, it should be emphasized, is not a matter of guesswork. It will generally be based on material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, along with relevant authorities. In undertaking this exercise, appellate judges will of course remain mindful that our justice system is not infallible and that a meaningful review process is essential to maintain public confidence in the administration of justice. Thus, there is a broader public interest in reviewability that transcends an individual’s interest in any given case.
[18] In balancing the two competing factors, appellate judges “should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values” (Oland at para. 47).
Analysis
The appeal is not frivolous
[19] In his Notice of Appeal, Mr. Robinson sets out a single ground of appeal: “Error of Law”.
[20] The Crown acknowledges that demonstrating the appeal is not frivolous carries a low burden, but submits that Mr. Robinson has failed to do so. I agree.
[21] The ground of appeal plead provides no detail as to the nature of the alleged error committed by the trial judge. Mr. Robinson provided no further detail in this regard at the hearing. It is impossible to ascertain whether the appeal passes the low threshold of not being frivolous on the basis of the information before me. It is the burden of an appellant seeking bail to establish the appeal is not frivolous – Mr. Robinson has not done so.
[22] Although I could end my analysis here, I will address the two remaining factors.
Surrender into custody
[23] Mr. Robinson must demonstrate he would surrender himself into custody in accordance with the terms of a release order. In other words, he is not a flight risk.
[24] I am satisfied from the evidence before me, notably his familial ties, that Mr. Robinson would not abscond should he be released on bail pending his appeal.
Detention is not necessary in the public interest
[25] With respect to the public safety component, Mr. Robinson, with an appropriate bail plan, would not likely pose a risk to the community. However, the plan he proposed does not provide, in my view, for his adequate supervision in the community. Although he expressed a willingness to be subject to more restrictive conditions and to be supervised by his wife, based on the evidence before me, I am unable to conclude Mrs. Robinson is a willing or appropriate supervisor.
[26] With respect to the enforceability interest, Mr. Robinson was convicted of sexual assault. The complainant was, as found by the trial judge, an intoxicated 17 year old who was asleep when the assault commenced. The offence is serious and the context in which it occurred troubling. The release plan proposed by Mr. Robinson was inadequate.
[27] Regarding the reviewability interest, the Crown suggests the appeal is not a strong one. I agree. In addition to the non-descript ground of appeal, it appears as if credibility was the central determinant at trial. The complainant said the sexual assault occurred. Mr. Robinson said the conduct described by the complainant did not happen. The trial judge reviewed the evidence of the three witnesses at trial, and explained why he was left with no doubt as to Mr. Robinson’s guilt.
[28] The credibility assessments of trial judges are afforded deference. I do not have the entirety of the trial transcript, but based on the reasons for conviction which I have reviewed, I see no obvious error. Although a panel of this Court, with the benefit of a full record may ultimately take a different view, at this stage the appeal appears to be weak.
[29] Based on the above, I am satisfied the enforceability interest outweighs reviewability and that a reasonable, thoughtful and dispassionate member of the public would view it as necessary to continue Mr. Robinson’s detention pending the outcome of his appeal.
Conclusion
[30] For the reasons set out above, the motion for bail pending appeal is dismissed.
Bourgeois, J.A.
[1] Section 11: Any person charged with an offence has the right . . . (e) not to be denied reasonable bail without just cause.