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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.4(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.4(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.

486.4(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).

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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-10-20

Docket: M48306 (C64312)

Feldman J.A. (In Chambers)

Parties

Between

Her Majesty the Queen Respondent (Respondent)

and

R.C. Appellant (Applicant)

Counsel

Mark C. Halfyard, for the appellant

Andrew Hotke, for the respondent

Heard: October 17, 2017

Reasons for Decision

A. Introduction

[1] The appellant's application for bail pending appeal is opposed by the Crown on the public interest ground.

[2] The appellant was convicted in January 2017 of four counts: sexual assault; sexual interference; incest; and assault, all with respect to his biological daughter when she was 13-14 years old, in 2008-2009. The sexual assaults included full vaginal intercourse. He was sentenced on October 13, 2017 to eight years in penitentiary. His appeal is from conviction.

[3] The appellant was arrested in November 2012 and released on a promise to appear. He remained on that release without incident for over 4 years until his trial. Following his conviction in January of this year, he was initially detained pending obtaining sureties. After a hearing before the trial judge where release was opposed by the Crown, the appellant was granted bail pending sentencing. He remained on bail until his sentencing last week.

[4] For the reasons that follow, the application for bail pending appeal is granted on the terms contained in the draft order filed.

B. The Law

[5] Section 679(3) of the Criminal Code sets out the circumstances where an appellant may be released and provides that:

(3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for leave to appeal is not frivolous;

(b) he will surrender himself into custody in accordance with the terms of the order; and

(c) his detention is not necessary in the public interest.

[6] The applicant seeking bail pending appeal "bears the burden of establishing that each criterion is met on a balance of probabilities": see R. v. Oland, 2017 SCC 17, 409 D.L.R. (4th) 457, at para. 19.

[7] The public interest under s. 679(3)(c) includes public safety and public confidence in the administration of justice: see Oland, at paras. 23, 26; and R. v. Farinacci (1993), 67 O.A.C. 197 (C.A.). Public confidence involves weighing the two competing interests of enforceability and reviewability: see Oland, at paras. 24, 26; and Farinacci, at paras. 41, 44. The balancing of enforceability and reviewability is a qualitative and contextual exercise, with no precise formula: see Oland, at para. 49.

C. The Positions of the Parties

[8] In this case, the Crown does not oppose bail under ss. 679(3)(a) or (b). The Crown's position is that this is one of the cases referred to by the Supreme Court in Oland, where the public interest in enforceability outweighs the reviewability interest because of the seriousness of the offence and the length of the sentence imposed: see Oland, at para. 50. The Crown states that in those circumstances the grounds of appeal should be stronger than merely beyond frivolous and that in this case the grounds are weak.

[9] The appellant's position is that it is not in the public interest to deny bail in this case. He submits that although the offences are very serious and a long sentence was imposed, the grounds of appeal are strong enough to pass the Oland threshold. As well, the particular offender has been on release for almost five years without incident, the first four years and three months of which was on a simple promise to appear without sureties, and has shown himself to present no issue of public safety.

D. Analysis

[10] The grounds of appeal in this case relate to the sufficiency of the reasons for conviction – in particular the alleged failure of the trial judge to grapple with inconsistencies in the complainant's evidence, compared with a focus on minor problems with the appellant's evidence.

[11] In my view, the appellant has met his onus in this case. The reasons of the trial judge are apparently incomplete. They were given orally, and the trial judge indicated that he would be adding transcript references to "illustrate his areas of concern" regarding the appellant's evidence and his conclusion that it did not raise a reasonable doubt. However, he has not yet added those references. The appellant testified and denied all of the sexual allegations. The reasons for rejecting his evidence form a critical part of the basis for conviction.

[12] Therefore, as the reasons stand, the grounds of appeal raised by the appellant are in my view sufficiently strong to meet both the: (i) "not frivolous" test of s. 679(3)(a), which, per Oland, at para. 20, is a "very low bar"; and (ii) the "more pointed assessment" required by Oland under the reviewability part of the confidence component of public interest: see paras. 44-45.

[13] As noted, the Crown does not oppose bail under s. 679(3)(b). I also give weight to the appellant's lengthy history of bail compliance as: (i) part of the assessment of the public interest with its two components, confidence and safety; and (ii) an additional consideration under the balancing of enforceability and reviewability: see Oland, at paras. 23, 26, 39, 51.

[14] In my view, in the circumstances of this case, the balancing of enforceability and reviewability favours granting bail pending appeal.

E. Conclusion

[15] The application for bail pending appeal is granted on the terms contained in the draft order filed. In oral argument, counsel for the appellant agreed that if there is any untoward delay in perfecting the appeal, this order may be revisited when an extension is sought.

"K. Feldman J.A."