Successful Newfoundland bail appeal for drug dealers

By John L. Hill ·

Law360 Canada (January 24, 2024, 10:15 AM EST) --
John Hill
Vincent Leonard, Wayne Johnson, and James Curran were convicted of trafficking in drugs, possession of the proceeds of crime over $5,000 and, in the case of Leonard and Johnson, participation in or benefitting from a criminal organization.

Leonard was sentenced to 6.5 years imprisonment, Johnson to 5 years, and Curran to 3.5 years (R. v. Leonard, 2023 NLSC 137). All three appealed their convictions and applied for judicial interim release pending their appeal under s. 679 of the Criminal Code.

The Newfoundland and Labrador Court of Appeal heard their application and granted appeal bail after a carefully written decision on Dec. 11, 2023 (R. v. Leonard 2023 NLCA 39). The court carefully reviewed the three criteria for release and found in favour of the accused in each instance.

The first criterion was the necessity of the accused showing on the balance of probabilities that an appeal was not frivolous (R. v. Oland 2017 SCC 17). The court acknowledged that following Oland, the criterion to meet this test is “very low.”

The argument supporting the appeal was that the thirty-month ceiling for trial within a reasonable time and upholding s. 11(b) of the Charter as set out in R. v. Jordan, 2016 SCC 27 had been breached. The accused argued that the trial judge had wrongly deducted from the delay seven weeks caused by illness of the prosecuting Crown Attorney and a further 10-week delay when Johnson’s counsel was unavailable. Adequate reasons were not delivered because the judge who considered the delay motion died, and the successor judge rendered shorter reasons denying the motion.

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Defence counsel were able to cite R. v. Hanan, 2023 SCC 12, confirming that defence delays are those caused solely by the defence or the defence’s conduct and that there is no “bright-line” rule that all delay until the next available date after the defence rejects a date offered should be characterized as defence delay. The delay caused by Crown's illness stands unless the Crown shows that it took steps to mitigate the delay. This position was the basis for restoring a stay of proceedings in R. v. Ghraizi, 2022 ABCA 96.

The second criterion is that the appellants must, if released, surrender themselves into custody as required. Here, the three accused have attended court as necessary throughout their trials and have significant ties to their communities. All have put forward release plans and made cash deposits of sizeable sums as security.

The final criterion was that it is necessary in the public interest to keep the accused detained. The first component of this concern is to ensure that public safety is protected. In this case, the Crown raised no concern that public safety was jeopardized. Neither Leonard nor Curran had breached the terms of the previously imposed judicial interim release. Johnson had violated a bail condition, but that occurred more than five years ago.

It is noteworthy that the Appeal Court recognized that the drug offences and the allegation of involvement with organized crime were serious. Such factors might weigh in favour of continued detention. Nonetheless, the court trusted its assessment that the risk of commission of future crimes is negligible. Further, a breach of s. 11(b) may entitle these men to a stay of proceedings when the matter comes on for decision by the Court of Appeal. Since risk is manageable in the community and there is a serious argument that the accused’s Charter rights have been breached, judicial interim release should be granted.

It is admirable that the Newfoundland Court of Appeal applied the law in a fair and balanced manner and not be swayed by public pressure to keep these men locked up when the charges involved drugs such as oxycodone, cocaine and fentanyl in connection with criminal organization allegations.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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