WARNING

The motions judge hearing this application 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

COURT OF APPEAL FOR ONTARIO DATE: 20230926 DOCKET: M54509 & M54510 (COA-23-CR-0930) Hourigan J.A. (Motions Judge)

BETWEEN

His Majesty the King Respondent/Responding Party

and

D.W. Appellant/Applicant

Counsel: Alan D. Gold and Ellen C. Williams, for the applicant Davin Michael Garg, for the responding party

Heard: September 19, 2023

ENDORSEMENT

A. Introduction

1The applicant was convicted of sexual exploitation following a guilty plea before Justice Strasberg of the Ontario Court of Justice and was sentenced to imprisonment for 3.5 years. The applicant seeks: (1) bail pending the sentence appeal; (2) leave to appeal sentence; and (3) a stay of the SOIRA order. The Crown opposes bail on the basis that the appeal has insufficient merit such that detention would not cause unnecessary hardship. Leave to appeal sentence is not opposed. Regarding staying the SOIRA order, the Crown submits that I do not have jurisdiction to make the order.

2At the conclusion of the hearing, I dismissed the application for bail, granted leave to appeal sentence, and adjourned the stay application to the panel hearing the sentence appeal, with reasons to follow. These are my reasons.

B. Analysis

(1) Bail Pending Appeal

3The facts of the conviction briefly stated are that during his mid-twenties, the applicant began to engage in sexual activity with a 13-year-old girl who was living at the house where he was residing. This activity began in 1988 and was repeated and re-occurring. It started with massages and the applicant touching the complainant’s breasts. It then progressed to digital penetration and oral sex. This sexual activity occurred on numerous occasions, sometimes two times a week and sometimes more often, over the course of approximately two years.

4On the guilty plea, the Crown sought a sentence of four to five years’ incarceration. The appellant sought a conditional sentence of between 18 months and two years less a day.

5A judge may order that an applicant be released pending the determination of a sentence appeal or until otherwise ordered by a judge of the Court of Appeal if the applicant establishes the three elements set out in s. 679(4) of the Criminal Code, R.S.C. 1985, c. C-46: (a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant were detained in custody; (b) the applicant will surrender into custody in accordance with the terms of the order; and (c) the applicant’s detention is not necessary in the public interest.

6As noted, the Crown opposes bail in this case on the basis that the applicant has not met his onus on s. 679(4)(a). Under that subsection, the applicant must demonstrate that the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant were detained in custody. The link between sufficient merit and unnecessary hardship in s. 679(4)(a) is inextricable. The applicant must demonstrate that the appeal is sufficiently meritorious such that, if not released from custody, the applicant will have already served the sentence as imposed, or what would have been a fit sentence, prior to the hearing of the appeal: R. v. Hewitt, 2018 ONCA 293, at para. 10, citing Justice Gary T. Trotter, The Law of Bail in Canada, 3rd ed (Toronto: Thomson Reuters, 2010) (loose-leaf updated 2017, release 2), at pp. 10-39 to 10-40.

7Regarding the merits of the proposed sentence appeal, the applicant advances two primary grounds of appeal. First, it is submitted that the sentencing judge erred by relying on R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 and subsequent amendments to the Criminal Code in sentencing for historical sexual abuse. Second, it is submitted that the sentence is excessive and that the sentence was influenced by a series of false statements made by the sentencing judge in her reasons.

8During oral submissions, counsel for the applicant placed most of his emphasis on the first ground of appeal. He argued that this case raises for the first time the important issue of whether the principles in Friesen can be applied in the context of historical sexual abuse cases. With respect, that is not accurate. In R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, an historical sexual abuse case, Huscroft J.A. instructed, at para. 61, citing R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 57, “Nevertheless, it was incumbent on the sentencing judge to impose a sentence with regard to the jurisprudence and understanding of sexual offending as it exists today. Previous sentencing decisions are historical portraits, not straitjackets.” Similarly, in R. v. Solomon, 2022 ONCA 706, which I am advised was also an historic sexual abuse case, this court relied on Friesen in finding that the sentence imposed was fit.

9I do agree that, in the course of her sentencing reasons, the sentencing judge cited current provisions of the Criminal Code that were not in effect at the time of the offence, but I do not believe that much turns on that reference. It is evident that the sentencing judge was aware that the maximum sentence for the offence had been increased to 14 years and that the applicant faces the maximum sentence in effect at the time of the offence, being five years’ incarceration. In my view, while this ground of appeal is not frivolous, it is weak.

10I am not satisfied that the appeal is sufficiently meritorious such that, if not released from custody, the applicant will have already served the sentence as imposed, or what would have been a fit sentence. I note as well that I have offered counsel dates for the hearing of the appeal and that the parties have agreed on an appeal date of February 12, 2024. Even if successful on appeal, it is highly unlikely that the applicant will have served a fit sentence by the time the appeal is heard.

11The only possible contingency where that would not be the case is if this court were to impose a conditional sentence. However, as this court noted in R. v. M.M., 2022 ONCA 441, at para. 16, “Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility.” The chances of the applicant receiving a conditional sentence are remote and, therefore, do not meaningfully impact my assessment under s. 679(4)(a).

12The ground of appeal regarding the harshness of the sentence overlaps with the first ground of appeal, in that it too is centred on the submission that the sentence is unfit. Again, while this ground of appeal is not frivolous, I also consider it to be weak. The statements complained of are primarily factual findings made by the sentencing judge. On the materials before the court, it does not appear clear that these findings were not available to the sentencing judge.

(2) Leave to Appeal Sentence

13The Crown does not oppose the granting of leave to appeal sentence. Given that the grounds of appeal are not frivolous, leave to appeal sentence is granted.

(3) SOIRA Stay

14I agree with the submission of counsel for the applicant that it has not been determined by this court whether a panel or a single judge of the court have jurisdiction to stay a SOIRA order pending an appeal. He suggests that this issue be referred to the panel hearing the sentence appeal. I agree that this is a sensible course of action and so order.

C. DispoSItion

15The applicant has failed to establish that his appeal has sufficient merit such that detention in custody would cause him unnecessary hardship. Therefore, the application for bail is dismissed. The application for leave to appeal sentence is granted. The application for a stay of the SOIRA order is referred to the panel hearing the sentence appeal.