WARNING: Publication Restriction Order
The judge hearing this motion 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
BEFORE: van Rensburg J.A. DATE: January 25, 2022
DISPOSITION OF COURT HEARING:
COURT FILE NO.: m53103 (c69218) TITLE OF PROCEEDING: R. v. D.L.
Overview
The Crown brought a motion to cancel D.L.’s bail pending appeal, or alternatively for a bail review, after D.L. was charged for offences alleged to have been committed while he was released on a promise to appear and undertaking pending his sentencing in the Superior Court. At the conclusion of the motion I ordered, with written reasons to follow, that the matter was properly proceeding as a bail review based on a material change in circumstances, and I ordered D.L.’s release pursuant to more restrictive terms and conditions. The following are my reasons for the disposition of the Crown’s motion and the imposition of a new release order.
Background
D.L. is on bail pending his appeal to this court of his conviction and sentence. He was convicted of sexual offences against an 8-year-old child. The offences were committed between December 2016 and January 2017. In the Superior Court D.L. was subject to a promise to appear and undertaking dated the date of his arrest, April 18, 2017. He was convicted on November 27, 2019 and sentenced to one year in prison and three years’ probation on March 29, 2021. The next day he was released on bail pending appeal by Thorburn J.A., which order was extended by me on September 23, 2021. Both orders in this court were on consent of the Crown.
On December 16, 2021, D.L.’s counsel contacted the Crown Law Office – Criminal to advise that D.L. had been arrested for new offences. The notification was required by the conditions of D.L.’s bail pending appeal. The Crown obtained information and documentation concerning the new charges. D.L. was charged by Québec authorities with sexual offences in relation to a young child. The offences are alleged to have occurred between December 1, 2020 and March 31, 2021. It is acknowledged that the offences likely took place entirely before D.L. was released on bail pending appeal. D.L. was released by the Québec authorities on conditions similar to those imposed by this court.
The Crown relies not only on D.L.’s arrest, but on information concerning the new offences, including a video interview in which D.L. is alleged to have admitted to certain acts of sexual assault against the victim, as well as to a sexual interest in children that is like an addiction. The Crown also relies on information concerning the circumstances leading to a s. 810.1 peace bond. Although aware of the peace bond at the time it consented to D.L.’s bail pending appeal, after the Crown reviewed the Québec police synopsis concerning the recent charges, it obtained further information confirming that the peace bond related to episodes of alleged criminal conduct relating to young children.
The Crown's Motion
With the objective of terminating D.L.’s bail pending appeal, the Crown brought a motion to this court seeking two alternative forms of relief. First, the Crown sought to have D.L.’s bail cancelled pursuant to s. 679(6) of the Criminal Code (which makes s. 524 applicable to an order for release pending appeal, with any modifications that the circumstances require). In the alternative, the Crown seeks a bail review under s. 680, on the basis of a material change in circumstances. Fairburn A.C.J.O. directed that the motion be heard, with the consent of the parties, by a single judge, pursuant to s. 680(2).
D.L. contends that this court lacks jurisdiction to cancel the current release order based on his arrest on charges for an offence that is alleged to have been committed while he was bound by an undertaking to appear in the court below. The Crown contends that this court has jurisdiction because the matter in respect of which D.L. was on an undertaking is still before the courts. The Crown relies on the decision of Charron J.A. in R. v. Dosch (2000), 2000 ONCA 4367, 48 O.R. (3d) 481.
Jurisdiction under Section 524
In my view, a plain reading of s. 524 would not permit this court to cancel the release order in the present circumstances. I agree with D.L. that the word “it” used in s. 524(2)(a) and (b) refers to the order that the accused (in this case the appellant) is alleged to have breached or to which he was subject when he committed a new offence. The circumstances in Dosch were quite different: the appellant had committed an indictable offence while subject to an order for interim release pending appeal that had been superseded by a new release order. As Charron J.A. noted, the appellant’s appeal was still pending before the court and his release pending the hearing of his appeal was still subject to an order of this court. The fact that the release order had been superseded by a subsequent order did not deprive the court of its jurisdiction: at para. 10. By contrast, the undertaking to appear in the Superior Court was spent once D.L. was sentenced. He was then released by order of this court pending his appeal. While counsel for the Crown may be correct that the sexual assault charges for which D.L. was released on an undertaking have not been finally determined, it would unduly stretch the wording of s. 524 to permit this court to cancel the pending release order because of D.L.’s arrest on charges alleged to have been committed while bound by an undertaking that has expired.
Bail Review under Section 680
I turn now to the bail review under s. 680. D.L. concedes that the circumstances of the new charges constitute a material change in circumstances. Accordingly, the court must consider all three of the statutory prerequisites to determine whether D.L. is still able to meet his onus for release under s. 679(3). Only the third condition is at issue. The Crown asserts that D.L. cannot meet his onus to show his detention is not necessary in the public interest because D.L.’s release would raise concerns about both public safety and public confidence in the administration of justice. D.L. relies on the fact that he has been released without significant conditions by the Québec authorities and that there have been no violations of his release pending appeal. If necessary, any residual concerns are addressed by the terms of the draft order which will require D.L. to reside with his sister, who is his surety, under “house arrest” conditions.
I agree that the current release order is inadequate to meet the public safety concerns that are raised by the fresh evidence. As I explained orally, however, I am satisfied that these concerns, as well as the public interest in the administration of justice, are addressed by the additional provisions proposed by D.L., subject to the requirement that the order specify the address where the surety lives, and deletion of the term contemplating notification of a change of address. These provisions will reasonably attenuate the risk of re-offence by D.L. pending the hearing of the appeal. I also take into consideration the fact that D.L. has been on release pending appeal since March 30, 2021 without incident, and that the Québec authorities saw fit to release him on the current charges (although this, of course, is not determinative in the evaluation of risk: see R. v. Daye, 2021 ONCA 671). There is also the fact that, if he is not released, there is a likelihood that D.L. will have served a large part of his sentence prior to the hearing of the appeal, which has yet to be perfected.
Disposition
For all of these reasons, I ordered D.L. to be released on the terms set out in the draft order, subject to the changes noted above.
“K. van Rensburg J.A.”