WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(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).
(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.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(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.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Thorburn J.A. (Motions Judge)
BETWEEN
Her Majesty the Queen
Respondent
and
Helder Sousa
Appellant/Applicant
Mark C. Halfyard, for the applicant
Michael Fawcett, for the respondent
Heard: June 24, 2020 by teleconference
REASONS FOR DECISION
1The applicant, Helder Sousa seeks to vary the terms of his bail pending appeal.
Background Facts
2At trial, the Crown lead evidence to support the theory that Mr. Sousa was guilty of a violent sexual assault. That evidence is as follows: Mr. Sousa left a party with a heavily intoxicated woman who was in and out of consciousness. The two were strangers. He drove her to a wooded area and had forced vaginal and anal sex with her. The victim was unable to stop the assault. He then put the victim back in the car and drove her to an unfamiliar area and removed her from the car. She began to scream and nearby residents came to her assistance. A 911 call was made and police interviewed the complainant. She could not identify her attacker other than to say he was a male with short “regular style” hair and was six feet tall. A year after the incident, police obtained a DNA sample that matched that of Mr. Sousa at 15 STR loci.
3Mr. Sousa’s defence was that the police planted the DNA to frame him. He claimed the police could have planted his DNA on the swab because he was their main suspect, they had no identification evidence, and the case was getting cold.
4Mr. Sousa represented himself at trial with the assistance of a friend of the court.
5He was found guilty of sexual assault. He was sentenced on January 13, 2020, by Ramsay J. to ten years in custody minus a few months to take into account time spent in presentence custody.
6He has appealed that conviction and seeks leave to appeal his sentence.
The Present Terms of Mr. Sousa’s Bail Pending Appeal
7Mr. Sousa was granted bail pending appeal by Trotter J.A. Pursuant to the terms of that order. Mr. Sousa is required to be in the presence of his surety at all times.
Mr. Sousa’s Request to Vary the Terms of his Bail and Conditions to be Satisfied
8Mr. Sousa seeks to vary the terms of his bail to permit him to work, and travel to and from his place of work, without his surety. Mr. Sousa intends to travel to and from work with his father who works for the same company, but his father is not a surety.
9An applicant may apply to vary bail conditions so long as they “satisf[y] the conditions of s. 679(3) namely, it is not a frivolous appeal, the terms of the release are not contrary to the public interest and the appellant can be expected to surrender himself prior to the hearing”: R. v. White (1994), 1994 7207 (ON CA), 72 O.A.C. 300, at para. 7. Section 679(3) of the Criminal Code,R.S.C., 1985, c. C-46, provides as follows:
… the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the applicant establishes that
(a) the appeal or application for leave to 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.
10The Crown concedes that this appeal is not frivolous and that the applicant will surrender into custody when required. The only issue is whether it is necessary in the public interest to maintain to current strict bail conditions. For reasons that follow, I find that it is.
The First Factor: The Strength of the Appeal
11Mr. Sousa’s principal ground of appeal is that the trial judge erred in determining that a recent federal law (“Bill C-75”) removing peremptory challenges applied retrospectively to criminal proceedings that had started but not finished, before Bill C-75 came into force.
12At the time his jury was selected, Mr. Sousa was not advised of the amendments to the Criminal Code in Bill 75, nor was he given the opportunity to challenge jurors peremptorily. The trial judge rather than triers, heard the challenges for cause to prospective jurors.
13After his trial concluded, this court rendered its decision in R. v. Chouhan, 2020 ONCA 40, 149 O.R. (3d) 365, leave to appeal granted, [2020] S.C.C.A. No. 19. In that case, Watt J.A. at paras. 5 and 217 held as follows:
[T]he abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019. But I conclude the amendment making the presiding judge the trier of all challenges for cause applied retrospectively, that is to say, to all cases tried on or after September 19, 2019….
[T]he abolition of peremptory challenges affected the substantive rights of the appellant, thus it should not have applied to the selection of the jury in his case nor should it apply to the selection of the jury in other cases if the accused had a vested right before September 19, 2019 to a trial by judge and jury as it existed in the prior legislation. [Emphasis added.]
14The relevant temporal factors are the same in this case as in Chouhan.
15This same issue was addressed in R. v. MacMillan, 2020 ONCA 141. In that case, Macpherson J.A. held that “[t]his argument is far removed from being frivolous. Indeed it is almost the opposite; it is almost certain to succeed.”
16Since those decisions were released, the Supreme Court has granted leave to appeal the Chouhan decision relied on in MacMillan, but that appeal has not yet been heard. Until then, Chouhan is the law in Ontario and must be applied.
17Mr. Sousa also argues that the trial judge erred in denying him the right to present the jury with the complainant’s inconsistent descriptions of her attacker. He points out that in R. v. Mullin, 2019 ONCA 890, 383 C.C.C. (3d) 16, at para. 41, the court held:
The law permits the introduction of excited or spontaneous utterances as an exception to the rule against hearsay: a “statement relating to a startling event or condition … may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement cause[d] by the event or condition”: David M. Paccioco & L. Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 191.
18These statements by the complainant were made fairly soon after this vicious attack on the complainant.
19For these reasons, this appeal is not frivolous; on the contrary, based on the current law the applicant has a strong chance of success on appeal to secure a new trial. The basis for the appeal however is not one that goes to guilt or innocence but primarily relates to the technical selection of jurors.
The Second Factor: Whether the Applicant will Surrender into Custody when Required
20The Crown concedes that the second factor to be considered in s. 679(3) of the Criminal Code, whether Mr. Sousa will surrender into custody when required, is not at issue on this appeal. Mr. Sousa has complied with his bail conditions pending and throughout the trial and to date while on bail pending appeal.
The Third Factor: Whether Maintenance of these Strict Conditions is Necessary in the Public Interest
21The central question is whether Mr. Sousa has shown, on a balance of probabilities, that his detention is not necessary in the public interest: see R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19; R. v. Iraheta, 2018 ONCA 229, at para. 4.
22The “public interest” factor in s. 679(3) of the Criminal Code has two parts -public safety and public confidence in the administration of justice: See Oland, at para. 23, and R. v. Farinacci (1993), 1993 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48. While public confidence in the administration of justice is rarely a central factor in the test, it ought to be considered when an offence is serious: Oland, at paras. 29, 43.
23Public confidence requires a balancing of reviewability and enforceability. In determining whether public confidence requires detention, the relevant factors include: (1) the seriousness of the crime, taking into account the gravity of the offence, the circumstances surrounding its commission, and the potential for a lengthy term of imprisonment; and (2) the strength of the appeal: see Oland, at paras. 37-46.
24Mr. Sousa has been convicted of a very serious and violent sexual assault and the circumstances surrounding the commission of the offence are hair-raising. The potential for a lengthy term of imprisonment is clear and Mr. Sousa has been sentenced to ten years’ imprisonment.
25Public confidence in the administration of justice is important in this case.
26I note that in MacMillan, a case that also involved a very serious sexual assault, the appellant was kept on a strict house arrest pending appeal notwithstanding the strong chances of success on appeal.
27In this case, prior to his conviction, Mr. Sousa’s bail terms only required that he reside with his surety. His fiancée swore that “He was working [at the same place of employment suggest on this application] before he went into custody” without incident.
28His existing bail conditions require Mr. Sousa to remain in the presence of his surety at all times. His surety is his domestic partner. He may leave his home for any reason provided he is with his surety at all times.
29Mr. Sousa seeks to vary those terms to permit him to drive over one hour to and from work and work fulltime without supervision by his surety. Mr. Sousa notes that his father works at the same facility and that he would drive with him to and from work and that his surety has an obligation to notify the authorities if he does not leave or return home as scheduled.
30This however, does not address the fact that Mr. Sousa’s father is not his surety and has no obligation to account for his son’s whereabouts. Not is there any provision is Mr. Sousa’s father cannot go to work. Most importantly, there are no repercussions if the applicant fails to do what he says he will do as the surety is not with him going to and from or at work.
31Unlike most appeals, a new trial will likely be ordered, at which point he will again benefit from the presumption of innocence.
32However, given the very serious nature of this crime and the importance of public safety and public confidence in the administration of justice, residual concerns about public safety are important under s. 679(3)(c): Oland, at paras. 27, 39. Thus, although the chances of success on appeal are strong, it is not appropriate to loosen the bail conditions presently in place as Mr. Sousa’s father is not a surety. In an application for bail pending appeal, the applicant does not benefit from a presumption of innocence: Oland, at para. 34. Public confidence would be undermined if Mr. Sousa were to come and go from work and work unsupervised for 12 hours a day without supervision from a surety.
33For these reasons, the request to vary Mr. Sousa’s bail conditions is denied.
34At the request of both parties, I will remain seized of this matter in respect of the issue of bail pending appeal.
“J.A. Thorburn J.A.”