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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

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.

(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 OF APPEAL FOR ONTARIO

DATE: 20211103 DOCKET: M52884/C69894

Trotter J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Respondent

and

L.D. Applicant/Appellant

Counsel: Michael Crystal, for the applicant/appellant Manasvin Goswami, for the respondent

Heard: October 29, 2021 by video conference

REASONS FOR DECISION

[1] After a trial in the Ontario Court of Justice, the applicant was convicted of sexual assault (Criminal Code, R.S.C. 1985, c. C-46, s. 271), uttering death threats (s. 264.1), and breaching a release order (s. 145). He was sentenced to three and a half years’ imprisonment.

[2] The applicant seeks bail pending appeal. For the following reasons, the application is dismissed.

Background

[3] The applicant was found guilty of sexually assaulting his former intimate partner. Although they had broken off their relationship, they remained in contact. They shared the same bed when the offences took place. The victim said that she awoke to find the appellant penetrating her vagina. The appellant then moved himself towards the victim’s face and ejaculated in her mouth.

[4] The next day, the victim was on the phone with a male friend. The applicant was angry because a bail condition prohibited him from having a phone. When the victim said, “It’s not my fault … that you’re not allowed a phone”, he became angry and started punching himself in the temple area. He told the victim that he would tie up his mother and step-father and slit their throats; he also said he would slit the victim’s throat. At the time, the applicant was on bail while awaiting trial on charges of uttering threats, distributing intimate messages, and criminal harassment.

The Applicant

[5] The applicant is 38 years old. He has an extensive criminal record. Excluding the offences for which he now seeks bail, the applicant has approximately 40 convictions, including entries for sexual assault (x 1), uttering threats (x 3), and criminal harassment (x 2). Most notably for bail purposes, he has 19 convictions for breaching various types of court orders – release orders, probation orders, and a conditional sentence order.

The Release Plan

[6] The applicant proposes a single surety – his new intimate partner. They have been together for over two years. The proposed surety is aware of the applicant’s most recent convictions. Although she was not his surety with respect to these offences, she swears that the applicant abided by all of his bail conditions when they were together. She also said: “I have no concerns that if this court sees fit to release him, he will comply with all conditions imposed upon his release this time. I will be there to support him and to ensure that he complies with his conditions.”

Grounds of Appeal

[7] The applicant submits that the trial judge erred by admitting a statement the appellant gave to the police. The trial judge rejected the submission that the police breached the applicant’s rights under s. 10(b) of the Charter by denying him access to his counsel of choice. He submits that he should not have been forced into consulting with duty counsel when he had his own lawyer. The police should have allowed him more time to consult his counsel of choice.

Discussion

[8] The criteria for bail pending appeal of a conviction are set out in s. 679(3) of the Criminal Code. An applicant must establish that: (a) the appeal is not frivolous; (b) he will surrender into custody in accordance with the terms of any bail order; and (c) detention is not necessary “in the public interest.”

(1) Not Frivolous (s. 679(3)(a))

[9] In R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20, Moldaver J. said that the “not frivolous” test “is widely recognized as being a very low bar.” The Crown does not assert that the proposed ground of appeal is frivolous; instead, he submits that it is weak and, in any event, overcome by enforceability considerations in the public interest equation (s. 679(3)(c)). I agree that the appeal is not frivolous.

(2) Surrender into Custody (s. 679(3)(b))

[10] Despite the applicant’s many breaches of court orders, absconding does not appear to be a problem. The Crown does not submit otherwise. The applicant has met his onus on this criterion.

(3) The Public Interest (s. 679(3)(c))

[11] There are two components to public interest branch under s. 679(3)(c) of the Criminal Code – public safety and public confidence in the administration of justice. This bail application fails on public safety considerations.

[12] As noted already, the applicant’s criminal record is extensive. The applicant has convictions for sexual assault and criminal harassment in relation to former intimate partners. This must be seen in the light of his track record for breaching court orders of various kinds. This is an important factor in gauging how the applicant can be expected to perform if released on bail pending appeal: see R. v. S.H., 2020 ONSC 4041, at para. 33. So too is the fact that the applicant was on bail when he committed the sexual assault in this case: see R. v. Le, 2006 MBCA 68, 240 C.C.C. (3d) 130, at paras. 34-35.

[13] Set against the applicant’s criminal history is the evidence of his proposed surety, being his new intimate partner. She observed no breaches during his time on bail, a factor that weighs in the applicant’s favour on this ground: R. v. Walters, 2020 ONCA 825, at para. 11.

[14] Although the proposed surety has not witnessed any compliance problems, she was not his surety at the time. Like many good people willing to assume the important role of a surety, she has no track record in actually supervising the applicant. Her chances of success are considerably weakened by the applicant’s proven unwillingness or inability to comply with court orders.

[15] In all of the circumstances, the applicant has failed to discharge his onus on this aspect of s. 679(3)(c). Given my finding on the public safety component of this ground, it is not strictly necessary to address public confidence considerations. However, I make the following observations.

[16] I am not persuaded that reviewability interests ought to trump enforceability considerations in this case. The offence was serious. The trial judge’s thorough reasons for judgment demonstrate that, although there were inconsistencies between the applicant’s statement and his testimony, there were significant internal testimonial inconsistencies. The prospect of overturning his conviction on this basis seems doubtful.

[17] Even if the applicant could establish a favourable balance between reviewability and enforceability considerations under s. 679(3)(c), this is one of those cases where “residual public safety concerns” prevent release: Oland, at para. 27.

Conclusion

[18] The application is dismissed.

“Gary Trotter J.A.”