R. v. Pitts (J.T.), (2016) 373 N.S.R.(2d) 194 (CA)

• Judge: Van den Eynden, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 24, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 373 N.S.R.(2d) 194 (CA);2016 NSCA 31

R. v. Pitts (J.T.) (2016), 373 N.S.R.(2d) 194 (CA);

    1175 A.P.R. 194

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. AP.048

Jason Troy Pitts (appellant) v. Her Majesty the Queen (respondent)

(CAC 439939; 2016 NSCA 31)

Indexed As: R. v. Pitts (J.T.)

Nova Scotia Court of Appeal

Van den Eynden, J.A.

April 28, 2016.

Summary:

The accused pled guilty to a number of offences including possession of child pornography, making of child pornography and conspiracy to commit an indictable offense (sexual assault). He was sentenced to a total of seven years' imprisonment. The accused wanted to appeal his sentence, suggesting that it was too harsh and "outside the range of sentence for similar offenders in similar circumstances". The accused did not file his Notice of Appeal within the required period. He brought a motion to extend the time for filing.

The Nova Scotia Court of Appeal, per Bourgeois, J.A., allowed the motion. See (2015), 365 N.S.R.(2d) 154; 1151 A.P.R. 154. The accused brought motions for: (1) a release pending appeal under s. 679(4) of the Criminal Code; and (2) state-funded counsel under s. 684 of the Criminal Code.

The Nova Scotia Court of Appeal, per Van den Eynden, J.A., dismissed the motions.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 3304

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary in the public interest - [See Criminal Law - Topic 3310.1 ].

Criminal Law - Topic 3310.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending sentence appeal - Pitts pled guilty to a number of offences including possession of child pornography, making of child pornography and conspiracy to commit an indictable offense (sexual assault) - He was sentenced to a total of seven years' imprisonment - He sought judicial interim release pending his sentence appeal - The Nova Scotia Court of Appeal, per Van den Eynden, J.A., dismissed the motion - The court stated that "Mr. Pitts' release plan was vague and insufficient. He was unable to present any sureties. He did not offer any alternate supervisory plan other than he believed a few friends were willing to check in on him. Although he indicated he hoped to find employment where he would not be in contact with children, no concrete options were presented. Given the seriousness of the offences, his prior conviction, his lack of a sufficient release plan together with the potential level of risk Mr. Pitts presents to the public, particularly vulnerable children, it is not in the public interest to release Mr. Pitts." - See paragraphs 10 to 17.

Criminal Law - Topic 4974

Appeals - Indictable offences - Powers of Court of Appeal - Power to appoint counsel for accused - Pitts pled guilty to a number of offences including possession of child pornography, making of child pornography and conspiracy to commit an indictable offense (sexual assault) - He was sentenced to a total of seven years' imprisonment - He sought the appointment of state-funded counsel for his sentence appeal under s. 684 of the Criminal Code - The Nova Scotia Court of Appeal, per Van den Eynden, J.A., dismissed the motion where it was not in the interests of justice that counsel be appointed for Pitts - The court stated that "1. The underlying facts do not appear to be in dispute, and the record is neither complicated nor lengthy. In short, although this sentence appeal is a serious matter, this is not a complex appeal; 2. It appears Mr. Pitts is able to comprehend the applicable legal principles and apply them. He demonstrated an ability to communicate well and clearly, both orally and in writing. Mr. Pitts' ability to effectively communicate is supported by both his education and employment credentials. He was able to articulate the issues he raised in his Notice of Appeal and in his two motions before me. I also note he was successfully able to argue his extension of time motion before Justice Bourgeois without counsel; 3. The Court's role is important. The appeal panel will be well-positioned to address the issues raised by Mr. Pitts. The panel will have the benefit of and will have reviewed the record. Even if Mr. Pitts might not present his appeal as effectively or efficiently as if he had counsel, the panel will recognize whether the appeal has merit. (See Miller and Martin); 4. The Crown's role and obligations are important. As the Crown stated in its response to Mr. Pitts' motion: The Crown will continue to assist the Court and will show conscientious regard for their role to see that the offender is treated fairly. Should Mr. Pitts omit an important point or argument, the Crown will bring that to the Court's attention. ... The Crown's obligation in this regard is affirmed in Miller and Martin; and 5. Based on the above factors, there is nothing to suggest that Mr. Pitts cannot have a fair appeal hearing without the assistance of counsel." - See paragraphs 18 to 22.

Criminal Law - Topic 6208.1

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - General principles - The accused pled guilty to a number of offences including possession of child pornography, making of child pornography and conspiracy to commit an indictable offense (sexual assault) - He was sentenced on February 4, 2015 to a total of seven years' imprisonment - The accused wanted to appeal his sentence, suggesting that it was too harsh and "outside the range of sentence for similar offenders in similar circumstances" - The accused did not file his Notice of Appeal within the required period - He brought a motion to extend the time for filing - Bourgeois, J.A., allowed the motion - She rejected the Crown's argument that the accused's appeal was clearly devoid of merit - He had raised an arguable issue regarding the appropriateness of the sentence imposed - On sentencing, the Crown had argued that seven years was a fit disposition - The accused's counsel suggested three years - It was clear from the transcript that the Crown in preparing for sentencing had difficulty in identifying an established range of sentence for the conspiracy charge - The sentencing judge similarly acknowledged a lack of precedent in his sentencing decision - The accused sought a release pending appeal under s. 679(4) of the Criminal Code - The Nova Scotia Court of Appeal, per Van den Eynden, J.A., in deciding whether to grant leave to appeal sentence, adopted Bourgeois, J.A.'s reasoning and articulation of the "arguable issue" finding - See paragraphs 8 and 9.

Criminal Law - Topic 6211

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - Grounds - [See Criminal Law - Topic 6208.1 ].

Counsel:

Jason Troy Pitts, in person;

James Gumpert, Q.C., for the respondent;

Edward Gores, Q.C., for the Attorney General (Nova Scotia).

These motions were heard in Halifax, N.S., on March 24, 2016, by Van den Eynden, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on April 28, 2016.