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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.
Corrected decision: The text of the original judgment was corrected on June 13, 2023, and the description of the correction is appended.
Court of Appeal for Ontario
Date: 20230524 Docket: M54284 (COA-23-CR-0516)
Paciocco J.A. (Motion Judge)
Between
His Majesty the King Respondent (Respondent)
and
K.K. Applicant (Appellant)
Counsel: John Fennel, for the applicant Justin Reid, for the respondent
Heard: May 24, 2023
Reasons for Decision
Reasons for Decision
1K.K. seeks bail pending his appeal of sexual offence convictions involving two minor complainants, arising from events found to have occurred between September 2013 and February 2017.
2Mr. K.’s trial was long delayed, initially as the result of requests by him for adjournments, leading to an order on November 5, 2019, that his trial proceed with or without counsel. Mr. K. retained counsel. Trial dates were set but abandoned because of the COVID-19 pandemic, leading to a trial date of February 21, 2023.
3On February 21, 2023, Mr. K. failed to attend for his trial, as he was at the hospital after claiming to experience chest pains. In his absence, his counsel requested to be released from the record for “ethical” reasons, and in Mr. K.’s absence and without inviting his response, the trial judge released counsel from the record, issued a bench warrant for Mr. K.’s arrest, and asked his now-released counsel to urge his attendance later in the day.
4Mr. K., who was discharged from the hospital in time to attend, appeared before the trial judge in the afternoon. The trial judge made clear that the matter would be proceeding with Mr. K. representing himself. The matter was put over until the next day, February 22, 2023, and then again until February 27, 2023, for jury selection, as s. 486.3 counsel had to be appointed and given time to prepare, since Mr. K. would not be permitted to cross-examine the complainants directly.
5On February 27, 2023, Mr. K. asked for a brief adjournment, explaining that he had determined after discussions with s. 486.3 counsel that he could not represent himself effectively, and that s. 486.3 counsel was prepared to represent him, but Legal Aid would require 10 days to decide on funding. The adjournment request was denied for reasons that have yet to be transcribed and jury selection was set for that afternoon.
6During the recess the parties requested the appointment of a pretrial judge to assist with resolution discussions, with s. 486.3 counsel assisting Mr. K. A resolution agreement was reached, the jury was released, and Mr. K. entered his pleas. The matter was put over to sentencing on April 21, 2023.
7On April 21, 2023, Mr. K. asked to have his pleas struck, claiming that he felt pressured into pleading because he did not believe he could represent himself effectively, and the Crown was seeking a much longer sentence if he did not plead guilty before jury selection began. The trial judge denied the motion to have his pleas struck and sentenced Mr. K. to a global sentence of three years in prison.
8Mr. K. appeals his convictions, claiming that his pleas of guilty were involuntary as the result of extreme pressure brought about as a result of the trial judge’s erroneous decision to discharge his counsel without his input, and the denial of his short adjournment request, in circumstances where he was unprepared to represent himself, having reasonably expected that he would be represented by counsel. He is now applying for release on bail pending appeal, pursuant to s. 679(3) of the Criminal Code. The Crown opposes his release, and the onus is on Mr. K. to establish that he should be released.
9At the end of the oral hearing, I ordered Mr. K.’s release pending appeal, for reasons to follow. These are my reasons.
Ground of Appeal Not Frivolous
10I am satisfied that Mr. K.’s appeal meets the “very low bar” of the “not frivolous” standard identified in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20, notwithstanding the challenges that exist in successfully setting a plea of guilty aside. There is a reasoned basis, available on the evidentiary record, upon which a panel of this court could find that Mr. K.’s plea was not voluntary in the circumstances, including the pressure he was under as the result of decisions by the trial judge that a panel could potentially find error with.
Surrender into Custody
11I am satisfied that Mr. K.’s surrender into custody can be sufficiently assured with appropriate conditions. Although Mr. K. would now have greater incentive to abscond given that, absent success in a challenging appeal he will face a penitentiary sentence, he has complied with terms of release and probation terms for more than five years, surrendered for sentencing and attended court upon learning a bench warrant had been issued.
12In making this decision I have born in mind his previous ties to the United States and the unknown risk that he may face deportation as the result of his current convictions depending on his citizenship status. His mother, who is ill, is located in Ontario and Mr. K. assists in caring for her. She has limited means that she is prepared to put at risk to assure his attendance. He will be heavily incentivized to comply with his attendance requirements and other terms of his release.
Public Interest
13Finally, I am persuaded that Mr. K.’s detention is not necessary in the public interest.
14I agree with the Crown’s concession that his detention cannot be justified as a matter of public safety, notwithstanding the grave seriousness of the offences he has now been convicted of committing, and his commission in 2017, while on bail release on these charges, of a related sexual offence involving another complainant in breach of trust. The record before me supports an inference that Mr. K. has kept the peace and remained of good behaviour while under relatively lenient conditions for close to six years, and he has no other related convictions on his record. I appreciate the seriousness of sexual offences against children as well as the elevated importance of ensuring public safety in the case of a convicted sexual predator, but I cannot judge his risk of reoffending to be substantial while Mr. K. is under strict bail conditions.
15I also agree with Mr. K. that, in the circumstances, his detention is not required to maintain public confidence in the administration of justice by reasonable and informed persons. It will not damage the repute of the administration of justice to delay enforcement of sentences that could well be set aside, long enough to ensure that Mr. K.’s convictions are reviewed on appeal, bearing in mind that residual concerns about flight and public safety can be addressed with terms of release.
Conditions of Release
16I have asked the Crown to modify some of the strict conditions the Crown proposed for Mr. K.’s release in the event I ordered that release. Under the conditions that I have approved, Mr. K.’s mother will serve as surety after pledging her life savings. It is unnecessary that Mr. K. pledge an additional $20,000 that he does not have.
17Mr. K. will be under house arrest and strict conditions to restrict his movements and his access to children. I have concluded that GPS monitoring is not needed and will entail unnecessary expense and delay.
18I have also asked that the proposed surrender date be extended from two months to three months, to prevent unnecessary applications for extension.
19Although not a term of the release order, Mr. Fennel, Mr. K.’s counsel, has undertaken to have the appeal perfected by the end of October 2023. I am requesting the Crown to notify me if that perfection date is not met, and I am asking Mr. Fennel to advise me without delay if he is discharged as counsel or determines that he cannot meet the perfection date. In those events I will arrange a case conference with the parties to assure that the appeal is pursued without delay.
“David M. Paciocco J.A.”
Correction made on June 13, 2023: The first name of the appellant in the title of proceedings and in para. 1 was changed to first initial only.