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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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 File and Parties

Court of Appeal for Ontario

Date: 20240923 Docket: M55297 (COA-24-CR-0638) Lauwers, Paciocco and Harvison Young JJ.A.

Between

His Majesty the King Respondent/Responding Party

and

J.P. Appellant/Applicant

Counsel: Mark C. Halfyard, Lindsay Board and Colleen McKeown, for the applicant Michael S. Dunn, for the responding party

Heard: September 4, 2024

Reasons for Decision

Overview

1J.P., convicted of a single count of sexual assault and sentenced to a global sentence of three and a half years incarceration, was denied release pending the determination of his appeal by a single judge of this court, pursuant to s. 679 of the Criminal Code, R.S.C., 1985, c. C-46. After obtaining a s. 680(1) direction authorizing a panel review of that decision, he is asking this panel to substitute a release order.

2In order to succeed, J.P. bears the onus of establishing that the motion judge’s decision was “clearly unwarranted” or that she committed an error in principle that was material to the outcome or committed a palpable and overriding error: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 61. Failing that, we must defer to the motion judge’s decision, even if we disagree with any of the specific conclusions the motion judge reached or the outcome.

3J.P. does not argue that the decision denying his release was “clearly unwarranted”. He claims that the motion judge made several errors in principle that were material to the outcome, and that she made a palpable and overriding error in finding that “there is a serious issue of compliance by [J.P.]”. As the following reasons explain, we are not satisfied that J.P. has met his burden of establishing any of these errors. Deference is therefore required and the request for review is dismissed. We approach the alleged errors in an analytically convenient order.

Ground for Review 1 – Reliance on Public Safety

4The motion judge detained J.P. on the basis that he failed to show that his detention was not required in the public interest, as he was required to do as a necessary condition to obtaining his release pending appeal: Criminal Code, s. 679(3)(c). The public interest requirement has two components, the “public safety” component and the “public confidence” component: Oland, at para. 23. To achieve release, an appellant must satisfy the motion judge that neither of these two public interest components requires their detention.

5J.P. argues that the motion judge erred in legal principle by detaining him pursuant to the public safety component without applying the correct measure of public safety. He relies on the fact that, as a matter of law, an appellant may be detained on the public safety component alone only if they fail to show that there is no “substantial likelihood” that their release would endanger the protection or safety of the public: R. v. Jacko, 2023 ONCA 38, at para. 19. He argues that the motion judge failed to apply the “substantial likelihood” standard, making no mention of it in her decision. He also argues that reliance on the public safety branch was unfair, given the Crown’s position that it was not seeking detention on this ground. Finally, he argues that the motion judge erred by failing to consider whether bail release conditions were available to ameliorate her public safety concerns.

6We are not persuaded by these submissions because we are not satisfied that the motion judge relied on the public safety component of the public interest test in detaining J.P. She relied instead on the public confidence component.

7To be sure, the motion judge did address the public safety component of the public interest test, and, under the heading “Public Safety”, she did note that she had “public safety concerns.” But she did not say she was detaining J.P. on this basis. Indeed, after noting her public safety concerns, she said correctly as a matter of law (see Oland, at para. 27; R. v. I.W., 2021 ONCA 628, 412 C.C.C. (3d) 542, at para. 24.), that “[s]uch concerns are also relevant in the public confidence analysis.” She then immediately moved on to engage the public confidence component of the public interest requirement, which requires a balancing between the enforceability interest (“that judgements should be immediately enforceable”) and the reviewability interest (“that a person is entitled to a meaningful review process before having to serve all or a substantial part of their sentence”): R. v. I.W., at para. 16. Then, in expressing her conclusion on the bail application in the ultimate paragraph of her decision she said:

In my view, the enforceability interest is a strong one in this case and significantly outweighs the reviewability interest. The applicant has been convicted of sexual assault and there is no presumption of innocence. He has not satisfied his onus in proving that detention is not necessary in the public interest and his application for bail pending appeal is dismissed.

8When the decision is read as a whole, it therefore becomes apparent that the motion judge detained J.P. on the public confidence component of the public interest requirement, not the public safety component, and that she relied on her public safety concerns as part of her public confidence analysis, as the Crown had requested. It bears consideration, in this regard, that in order to have based her decision on the public safety component, the motion judge would have had to have ignored the Crown’s clear position that it was not relying on this ground of detention and then based her decision on a ground of detention that was not argued. This is improbable, and judges are presumed to know the law.

9Given that the motion judge was not relying on “public safety” as a standalone basis for detention we see no error in her failure to apply the “substantial likelihood” standard; that standard does not operate when considering the impact of public safety concerns on the impact that bail release would have on public confidence. Similarly, since we are not persuaded that the motion judge relied on the public safety component to justify J.P.’s detention, we cannot accept J.P.’s submission that the motion judge acted unfairly by using a ground of detention the Crown did not rely upon.

10We also reject J.P.’s submission that the motion judge erred by failing to consider whether bail release conditions were available to ameliorate her public safety concerns. First, the motion judge addressed at some length the compliance concerns she had relating to J.P. That discussion makes plain that she did not have confidence that bail conditions would control J.P.’s behaviour. Moreover, since J.P. was detained because of public confidence considerations, and not based on pure public safety concerns, the potential for bail conditions to secure public safety was not as central a concern as it otherwise would have been. Put simply, given the motion judge’s basis for detention, the effect that bail conditions could have on the public safety risk is not a question that cried out for overt consideration by the motion judge. In these circumstances, J.P. has not established that the motion judge gave no consideration to the impact that bail conditions could have on public safety. We deny this ground of review.

Ground for Review 2 – Assessment of the Strength of the Appeal

11J.P. argues that the motion judge erred in assessing the reviewability element of the public confidence component by again imposing an erroneous standard, this time relating to the strength of the appeal. The reviewability interest requires only that the grounds of appeal “clearly surpass the minimal standard required to meet the ‘not frivolous” criterion” for gaining bail release”: Oland, at para. 44. Instead of referring to this standard in considering the reviewability component, the motion judge spoke of not being “persuaded” by proposed appeal grounds, and of not being “persuaded” that those grounds are “strong”.

12We accept that the language used by the motion judge creates an apprehension that she may have imposed too high a standard for reviewability to gain bail release pending appeal, but we are not persuaded on the balance of probabilities that she did so. Once again, the motion judge is presumed to know the law, and given the Crown concession that the appeal was not frivolous, there was no pressing need for her to speak in her reasons about the threshold requirement for the reviewability standard.

13Moreover, a finding that grounds of appeal clearly surpass the “not frivolous” threshold does not, in every case, end all further consideration of the strength of an appeal. In Oland, at paras. 43–44, Moldaver J. called for a more pointed assessment of the strength of the appeal when assessing the reviewability component. He cited with approval a passage from Gary T. Trotter, “Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion”, (2001), 45 C.R. (5th) 267, where Professor Trotter (as he then was) commented that where the public concern about enforceability “is ignited, there should be a more probing inquiry into the chances of success on appeal” (and see R. v. I.W., at para. 25). This more probing inquiry is sensible where public confidence is at issue because the task at hand in such cases is to weigh the relative importance of the reviewability consideration against the competing enforcement consideration. The stronger the appeal, the more likely it is that reviewability will overcome the enforcement consideration. A fair reading of the motion judge’s decision is that when she described the persuasiveness and the strength of the appeal, she was doing no more than engaging in this weighing exercise.

14We recognize that motion judges conducting bail pending appeal hearings have been encouraged to confine their comments on the strength of grounds of appeal to the “general legal plausibility and their foundation in the record” without employing the kind of language used by the motion judge: see Oland, at para. 44. But it is not an error in principle to do so, no doubt because it is difficult to avoid more precise evaluative language when closely assessing the impact that the strength of the grounds of appeal has in the weighing process. We deny this ground of review, as well.

Ground of Review 3 – The Seriousness of the Offence

15J.P. alleged an additional error of principle, namely, that the motion judge erred in considering the public confidence component of the public interest requirement because the sexual assault he was found to have committed was not a serious enough offence to justify detention as a matter of public confidence. In making this submission, he relies on Moldaver J.’s admonition in Oland that “only a fraction [of cases] are likely to involve the public confidence component. Rarely does this component play a role, much less a central role”: at para. 29. In Oland, Moldaver J. went on to quote an observation by Donald J.A. in Porisky, 2012 BCCA 467, 293 C.C.C. (3d) 100, at para. 47, that public confidence should be raised “only in those cases where the offence is at the serious end of the scale”: at para 29. Although J.P. recognizes all sexual assaults to be “serious”, it is his submission that, on the continuum of offences, sexual assaults such as the one he was found to have committed are not uncommon or aggravated enough to engage public confidence issues if he was released.

16We see no basis for interfering with the motion judge’s decision on this basis. She understood the need to examine the seriousness of the offence as part of the public confidence inquiry, and she did so. There is therefore no error in principle. In substance, J.P.’s complaint is with her decision that the particular sexual assault J.P. was convicted of committing was serious enough to raise public confidence issues. That determination was for the motion judge to make, and we must defer to it.

17We would make a related observation. The ultimate issue under the public confidence component is the impact of bail release on perceptions about the administration of justice. Although an offence must be at the serious end of the spectrum before release is likely to raise significant public concern about the administration of justice, it stands to reason that the degree of seriousness needed to warrant detention on this basis may be reduced where there are additional public confidence considerations at play, such as residual public safety concerns, or compliance concerns. That was the case here.

Ground of Review 4 – The Finding of Compliance Concerns

18The motion judge found that “there is a serious issue with compliance by the appellant”, which J.P. submits is a palpable error on the record, and an overriding one given the role it played in the motion judge’s decision. He points out that at the time the sexual assault was allegedly committed, J.P. had no criminal record. He was not only a youthful 21 years of age at the time of the offence, but he was a first offender, who has not been found to have breached any of the terms of his bail release.

19All of this is true, but while on bail release for this offence, J.P. was charged and convicted of committing the offence of battery in Illinois. Although the commission of this offence was not technically a breach of his bail conditions, the commission of another offence while on bail release is a serious matter, raising concerns about how governable the individual is. In addition, J.P. faces a newly acquired criminal harassment charge involving another woman, again, a relevant consideration in assessing the prospect of compliance. Although he is presumed innocent of this newly acquired but pending charge, “outstanding criminal charges are important for bail purposes”: R. v. C.L., 2018 ONCA 470, at para. 15.

20In these circumstances, we cannot find that the motion judge made a palpable error in finding there to be serious compliance concerns. Even though this conclusion was not inevitable on the evidence, that, too, was the motion judge’s determination to make and it warrants deference.

Conclusion

21The request that we substitute a release order for the decision of the motion judge is dismissed.