COURT OF APPEAL FOR ONTARIO
Wilson J.A. (Motions Judge)
BETWEEN
His Majesty the King
Responding Party
and
D.G.
Moving Party
Myles Anevich, for the moving party
Katie Doherty, for the responding party
Heard: February 26, 2025
ENDORSEMENT
Overview
1The applicant was convicted of assault causing bodily harm on October 9, 2024, after a trial in the Ontario Court of Justice. He received a six-month custody and supervision order, among other terms of sentence, on February 12, 2025. He appeals the conviction and seeks bail pending his appeal.
2The application is dismissed. The applicant’s persistent breach of his pretrial release terms makes it impossible to conclude that he will surrender in accordance with any order of this court. Those breaches involve physical violence and carrying knives, so they also raise significant public safety concerns. His release would therefore jeopardize public confidence in the administration of justice, and his appeal lacks the merit required to overcome that hurdle.
Background
3The events underlying the applicant’s conviction occurred on June 2, 2022. The applicant encountered a stranger at a mall in Windsor. The two had an argument, and the applicant assaulted the victim. After that, the applicant and an accomplice followed the victim to a motel. They confronted him in the motel courtyard and one of them stabbed him repeatedly. The trial judge concluded that the applicant was the stabber, but convicted him of assault causing bodily harm, because he had a reasonable doubt about his intention to kill.
Positions of the parties
4The applicant argues that his appeal has significant merit. He says that the trial judge failed to explain how he concluded that the applicant was the one who stabbed the complainant. He submits that the court should have no concerns that he will abide by the terms of its order, because his stepfather has agreed to act as his surety. Counsel points out that the applicant, who resides in British Columbia, flew to Windsor to surrender into custody for his sentencing. He says that this shows a willingness to comply with court orders. Also, the applicant’s sentence is short, so he will likely be released before his appeal is heard. Finally, the applicant suggests that public confidence would not be shaken by his release.
5The Crown argues that the applicant has not demonstrated that he will surrender in accordance with the terms of his release or that his detention is unnecessary in the public interest. The Crown submits that the applicant was not candid in the affidavit he filed and that he breached the terms of his pretrial release order. His conduct therefore raises serious compliance concerns, so this court should not grant him bail.
Analysis
6The applicant’s conviction deprived him of the presumption of innocence, so he now bears the onus of satisfying the court that he meets the criteria for release pending appeal: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 34-35.
7I disagree with the applicant’s suggestion that his appeal has significant merit, but I conclude that it surpasses the very low bar of non-frivolity under s. 679(3)(a) of the Criminal Code, R.S.C. 1985, c. C-46. In my view, the considerations set out in ss. 679(3)(b) and (c) determine the outcome of this application. The applicant has not satisfied me that he will surrender in accordance with the terms of a release order, nor that his detention is unnecessary in the public interest.
Will the applicant surrender into custody and abide by the terms of his release?
8The applicant submits that the proposed bail plan should instill confidence that he will surrender into custody according to its terms. I do not agree. It is true that the applicant returned to Ontario knowing that he would receive a custodial sentence. But that is about all that can be said in his favour on this point. The balance of his conduct while on pretrial bail overwhelms this factor.
9The applicant breached the terms of his pretrial release extensively, so much so that he was remanded to youth custody, where he had physical altercations with others and standoffs with staff. He failed, on three separate occasions, to comply with the terms of an order imposed for another youth court conviction, so a warrant was issued for his arrest. He fled from the police to avoid apprehension in early December 2024, and dropped what turned out to be a knife. Once again, he failed to attend court, leading to a bench warrant for his arrest. And when he was finally arrested in late December 2024, he was found in possession of a different eight-inch hunting knife.
10The applicant neglected to mention any of these events in the affidavit he filed in support of this application. Instead, he told the court that “other than [the charges under appeal] I have a finding of guilt for an assault stemming from a fight I was in when I was 13”. Then, in a supplementary affidavit he filed on February 20, he admitted that “[t]his was an incomplete and inaccurate picture of my criminal record”, which he “accidentally provided” because his “sentencing was scheduled for the following day and [he] was not thinking clearly”.
11In the supplementary affidavit, the applicant explains that he had “compliance challenges” with the orders imposed in the wake of his other youth court conviction. He says that since then, he has come to understand the importance of adhering to court-imposed conditions. He admits that he failed to surrender into custody on the warrants I referred to above, and that when he was eventually arrested, he had a knife. “I should not have had this item”, he explains. “It was a mistake”.
12This extreme disregard for recent release orders – to say nothing of the lack of candor in his initial affidavit – makes it difficult to accept that the applicant will abide by any order this court issues, let alone surrender in accordance with its terms. Nothing in the application record changes that. The proposed plan has the applicant living with his stepfather, who has agreed to post $1,000 as a surety. The terms of the applicant’s pretrial release also required him to live with his stepfather. And as I have just explained, that did not go well. The applicant’s difficulty complying with court orders, and his persistent possession of a knife, occurred during that time.
13The applicant’s stepfather’s affidavit fails to address any of this. Nothing in it provides any assurance that the applicant will abide by the proposed release terms or that he will surrender into custody as required. But the circumstances require that assurance: the applicant’s defiance of court orders has been consistent and stretches into the very recent past. He was arrested in possession of a knife barely two months ago.
14His stepfather’s affidavit suggests that the applicant will not breach his bail because the resulting financial hardship would compromise their relationship. But the affidavit does not explain what, if any, supervision he provided during the applicant’s pretrial release. Nor does it detail any concrete measures to ensure compliance with the terms imposed. The applicant’s history of defiance is simply too substantial and too recent to accept that his relationship with his stepfather will ensure compliance.
Is the applicant’s detention necessary in the public interest?
15The application also falters on the public interest branch of the analysis.
16The public interest inquiry under s. 679(3)(c) has two components: public safety and public confidence in the administration of justice: Oland, at para. 23. The public safety component asks whether there is a substantial likelihood that the applicant will commit an offence or interfere with the administration of justice: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 737. A risk alone is not enough. Detention must be necessary for public safety, not “merely convenient or advantageous”: Morales, at p. 737.
17Meanwhile, the public confidence branch requires the court to weigh the public interest in the enforceability of convictions against the public interest in convicted persons’ access to a fair review process: Oland, at para. 24. The “enforceability interest” reflects the need to respect the immediate enforceability of the judgment below. As the seriousness of the offence increases, so does the risk that release pending appeal would undermine public confidence: Oland, at para. 37.
18The “reviewability interest” acknowledges the fallibility of the administration of justice, and facilitates a review process that avoids unnecessary incarceration: Oland, at paras. 40, 45. Here, the bail judge performs a more exacting review of the strength of the appeal. The stronger the grounds, the stronger the reviewability interest: Oland, at para. 44.
19This application raises significant public safety concerns. The applicant was convicted of further offences while on bail for the attempted murder charge. He ran from the police, failed to attend court, and when he was finally arrested, he was found with a large knife. Much of this conduct post-dated his conviction for assault causing bodily harm. All of it took place against the backdrop of an attack on a stranger that required “surveillance and planning” and involved a weapon. This conscious disregard of court orders leads me to conclude that there is a substantial likelihood that the applicant will commit an offence, or interfere with the administration of justice, if he is released pending appeal. He has failed to discharge his onus under the public safety component of s. 679(3)(c).
20Even if I had reached a different conclusion on public safety, I would have concluded that the public interest in enforcement outweighs the reviewability interest. The facts of the conviction under appeal are serious: a planned assault of a stranger with what could easily have been a lethal weapon. And, as I have explained, the applicant’s conduct demonstrates an unwillingness to comply with court orders. In my view, it would significantly compromise public confidence in the administration of justice to release him under these circumstances. The enforceability interest weighs heavily against release.
21The reviewability interest, on the other hand, is not a strong counterweight. The appeal is not frivolous, but nor is it strong. The applicant argues that the trial judge failed to explain how he concluded that he – as opposed to his accomplice – was the one holding the knife. I do not agree. The trial judge gave careful and thorough reasons and that finding was his to make. And even if I did agree with the applicant on this point, the trial judge concluded that he would be liable as a party were he not the stabber, and that presents a further barrier. The non-stabber would not have had to know about the knife to be liable for assault causing bodily harm, given that he and the stabber jointly executed a planned assault on the victim.
22It is true that the applicant will likely serve his sentence before his appeal can be heard. That weighs in his favour for purposes of the reviewability interest. But given the significant public confidence concerns with his release, and the uphill battle he faces on appeal, it is not enough. Enforceability outweighs reviewability here.
Disposition
23The application is dismissed.
“D.A. Wilson J.A.”