R. v. Stewart (D.G.), 2015 NSCA 70

• Judge: Fichaud, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 09, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 70;(2015), 363 N.S.R.(2d) 148 (CA)

R. v. Stewart (D.G.) (2015), 363 N.S.R.(2d) 148 (CA);

    1143 A.P.R. 148

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.023

Dennis Garry Stewart (appellant) v. Her Majesty the Queen (respondent)

(CAC 419615; 2015 NSCA 70)

Indexed As: R. v. Stewart (D.G.)

Nova Scotia Court of Appeal

Fichaud, J.A.

July 10, 2015.

Summary:

The accused pleaded guilty to a number of summary conviction and indictable offences involving predatory sexual activity against six males under the age of 16. The offences included: (1) inviting sexual touching (indictable); (2) inviting sexual touching (summary conviction); (3) two counts of touching for a sexual purpose (summary conviction); (4) touching for a sexual purpose (indictable); (5) two counts of breaching undertakings (indictable); (6) internet luring (indictable); and (7) trafficking in a controlled drug or substance (clonazepam) (indictable).

The Nova Scotia Provincial Court, in a judgment reported (2013), 332 N.S.R.(2d) 336; 1052 A.P.R. 336, sentenced the accused as follows: six months' imprisonment for inviting sexual touching (summary conviction); three months' imprisonment (consecutive) for each touching for sexual purpose (summary conviction); six months' imprisonment (consecutive) for touching for a sexual purpose (indictable); six months' imprisonment (consecutive) for breach of an undertaking (indictable); three years' imprisonment (consecutive) for internet luring (indictable); two years' imprisonment (concurrent) for inviting sexual touching (indictable); one year's imprisonment (consecutive) for breach of undertaking (indictable); and two years' imprisonment (concurrent) for trafficking in clonazepam (indictable). The global sentence was six years' imprisonment, less one year's credit for pre-trial custody, leaving a go-forward sentence of five years' imprisonment. The accused appealed against conviction and sentence. He declined the assistance of Legal Aid counsel and brought a motion under s. 684 of the Criminal Code claiming an unqualified right to have state-funded counsel for his appeal.

The Nova Scotia Court of Appeal, per Bryson, J.A., in a judgment reported (2014), 345 N.S.R.(2d) 224; 1092 A.P.R. 224, dismissed the motion. The accused's grounds of appeal lacked merit, he had the intellectual ability to represent himself, and he failed to show that he lacked financial resources to obtain private counsel. There was no unqualified right to state-funded counsel. The accused applied under s. 679 for interim release pending his conviction and sentence appeal.

The Nova Scotia Court of Appeal, per Fichaud, J.A., denied interim release.

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 3301

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary for protection of public (i.e., secondary ground) - [See Criminal Law - Topic 3310 ].

Criminal Law - Topic 3303

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary to ensure attendance (i.e., primary ground) - [See Criminal Law - Topic 3310 ].

Criminal Law - Topic 3310

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release pending appeal - The 71 year old accused pleaded guilty to offences involving predatory sexual activity with six males under the age of 16 - He groomed them for sexual activity with promises of alcohol, tobacco and drugs - The offences included: (1) inviting sexual touching (indictable); (2) inviting sexual touching (summary conviction); (3) two counts of touching for a sexual purpose (summary conviction); (4) touching for a sexual purpose (indictable); (5) two counts of breaching undertakings (indictable); (6) internet luring (indictable); and (7) trafficking in a controlled drug or substance (clonazepam) - The accused performed oral sex on one boy several times and admitted having oral sex with another (no charge laid), but considered in sentencing under s. 725(1)(c) of the Criminal Code - The accused lured two boys to a motel with promises of alcohol and drugs, but police intervened before sexual activity occurred - A prescription drug (clonazepam) was found in the room - The accused was in poor health - He was a moderate to high risk to reoffend sexually - He exhibited psychotic and narcissistic traits - He had a deviant sexual preference for sexual assault against passive and coerced children - The global sentence was six years' imprisonment, less one year's credit for pre-trial custody, leaving a go-forward sentence of five years' imprisonment - The accused appealed against conviction and sentence - He applied under s. 679 for interim release pending appeal - The Nova Scotia Court of Appeal, per Fichaud, J.A., denied interim release - The accused met the low threshold of his appeal not being frivolous, but the court was not satisfied that he would surrender himself into custody if his appeal was dismissed - There was no evidence of a release plan except the bald statement that he would live with his son - Further, detention was necessary in the public interest.

Cases Noticed:

R. v. MacIntosh (E.F.) (2010), 295 N.S.R.(2d) 179; 935 A.P.R. 179; 2010 NSCA 77, refd to. [para. 9].

R. v. MacLean (J.K.), [2013] N.S.R.(2d) Uned. 230; 2013 NSCA 108, refd to. [para. 9].

R. v. J.P., [2013] O.A.C. Uned. 396; 2013 ONCA 505, refd to. [para. 10].

R. v. Ryan (J.D.P.) (2004), 226 N.S.R.(2d) 247; 714 A.P.R. 247; 2004 NSCA 105, refd to. [para. 16].

Counsel:

Appellant, on his own behalf;

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

Scott Millar, for the Federal Public Prosecution Services;

Stacey Gerrard, for Robert Sutherland and Pavel Boubnov.

This application was heard on July 9, 2015, at Halifax, N.S., in Chambers before Fichaud, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on July 10, 2015.