WARNING
The Judge hearing this motion 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220429 DOCKET: M53343 (C70495)
Trotter J.A. (Motion Judge)
BETWEEN
Her Majesty the Queen Respondent
and
M.S. Applicant (Appellant)
Counsel: Myles Anevich, for the applicant Heather Fregeau, for the respondent
Heard: April 25, 2022 by video conference
REASONS FOR DECISION
Introduction
[1] The applicant/appellant applies for bail pending appeal. For the reasons that follow, I would dismiss the application.
Background
[2] After a 5-day judge-alone trial in the Superior Court, the appellant was found guilty of five counts of sexual interference in relation to three young girls in their early teens, contrary to s. 151 of the Criminal Code, R.S.C. 1985, c. C-46. Two of the victims were sisters; the third was their cousin.
[3] The appellant and his wife were friends with the girls’ families. The offences occurred when they lived under the same roof at various times. The allegations of the victims were not identical. The appellant’s offending ranged from sexual intercourse, attempted intercourse, touching their breasts, touching them with his penis, and forcing them to touch his penis. The victims were threatened to ensure their silence.
[4] The appellant and his wife testified at trial. The appellant denied any sexual improprieties. His wife indirectly supported his denials by minimizing his opportunities to commit the offences. Their evidence was rejected; it failed to raise a reasonable doubt.
[5] The appellant was sentenced to a total sentence of eight years’ imprisonment.
The Positions of the Parties
[6] Counsel for the appellant submits that he has met the threshold for all three criteria in s. 679(3) of the Criminal Code, thus entitling him to bail pending appeal. The appellant relies on the fact that he was on pre-trial release for five years without incident. He has a dated and unrelated criminal record – a minor property offence for which he received a suspended sentence. He submits that he has a credible release plan and strong grounds of appeal.
[7] The Crown resists the application on the basis of the public confidence component in s. 679(3)(c) of the Criminal Code. She contends that the appellant’s reviewability interest is low because his grounds of appeal are unlikely to succeed. She makes this submission in light of the fact that the appellant will not serve a significant portion of his sentence if his bail application is dismissed. The Crown further submits that there are residual public safety concerns based on a weak release plan that involves purported supervision by an individual who would live four hours away from where the appellant plans to live if released.
Analysis
[8] I accept the Crown’s concession that the appeal is not frivolous within the meaning of s. 679(3)(a) of the Criminal Code. This is a “very low bar” to meet: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. However, I will have more to say about the apparent strength of the appellant’s grounds of appeal below.
[9] I also agree that the appellant has established that he will surrender into custody in accordance with any release order made: s. 679(3)(b) of the Criminal Code. He has a good track record, demonstrated by his time on pre-trial release.
[10] The appellant has met his burden on the public safety component in s. 679(3)(c) of the Criminal Code; however, his application falters on the public confidence component. The appellant submits that the public confidence is not engaged in this case. He relies on the following passage from Oland, where Moldaver J. writes about the scope of the public interest ground, at para. 29:
Fortunately, cases like this tend to be more the exception than the rule. Appellate judges across the country deal with applications for bail pending appeal on a regular basis. Of those, only a fraction are likely to involve the public confidence component. Rarely does this component play a role, much less a central role.
[11] The appellant submits that, “[w]hile sexual offences against children are of course serious in the normal meaning of the word, they do not always rise to the meaning of ‘serious’ within the definition of Oland.” He says that the public confidence component is not automatically triggered in these circumstances.
[12] I need not address the appellant’s broader submissions about when s. 679(3)(c) of the Criminal Code is triggered because I am persuaded that the public confidence ground is easily engaged in the circumstances of this very serious case of child sexual abuse, which resulted in the imposition of a lengthy penitentiary sentence.
[13] However, merely because the public confidence arm is engaged does not mean that it will inevitably result in detention. Once engaged, s. 679(3)(c) of the Criminal Code requires a careful resolution of the tension between enforceability and reviewability considerations: Oland, at para. 28, R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.). Some cases will result in detention; others will not.
[14] As recognized in Oland, this analysis draws on the statutory framework for pre-trial release in s. 515(10)(c) of the Criminal Code. Enforceability considerations under s. 679(3)(c) of the Criminal Code align with the following enumerated factors: the gravity of the offence (s. 515(10)(c)(ii)); the circumstances surrounding its commission (s. 515(10)(c)(iii)); and the potential for a lengthy term of imprisonment (s. 515(10)(c)(iv)): Oland, at paras. 37-39.
[15] The objective seriousness of the appellant’s offending is readily apparent: see R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 1, where the Supreme Court emphasized the “profound wrongfulness and harmfulness of sexual offences against children”; also see K.B. v. R., 2018 QCCA 1126, at para. 4 and R. v. P.M.W., 2022 ONCA 75, at paras. 24-30. The seriousness of the circumstances in which the offences were committed is equally apparent. The appellant’s offending involved egregious breaches of trust and the use of threats against the three young girls. The potential for a lengthy term of imprisonment was demonstrated by the sentence that was imposed, which is well grounded in applicable authority: see Friesen. Consequently, all three of these factors weigh significantly against the appellant in this case.
[16] Reviewability considerations correspond with s. 515(10)(c)(i) of the Criminal Code – the apparent strength of the prosecution’s case. In the appellate context, the measure is the strength of the grounds of appeal (beyond the “not frivolous” threshold): Oland, para. 40. In my view, this factor does not pull strongly in the appellant’s favour.
[17] The appellant submits that the trial judge erred in his application of the similar act evidence rule by failing to give proper effect to the clear evidence of tainting and/or collusion between the three victims. From my review of the trial judge’s detailed reasons for judgment, he directly addressed this issue. He also properly identified the inconsistencies in the victims’ accounts, but still found they were similar enough to warrant use as similar act evidence.
[18] Further, the trial judge properly identified the potential for prejudice in using admissible evidence in a similar act framework. The risk of reasoning or moral prejudice is significantly attenuated where, as was the case here, the trial is by judge alone and involves only the cross-count application of evidence already intrinsic to the indictment: R. v. Norris, 2020 ONCA 847, 398 C.C.C. (3d) 1, at para. 24. Moreover, a trial judge’s decision to admit similar act evidence is entitled to substantial deference on appeal: Norris, at para. 25, R. v. R.C., 2020 ONCA 159, at para. 59. In any event, in this case the trial judge’s ultimate findings of guilt did not lean heavily on similar act reasoning. As he said, “I find that the evidence of each complainant provides some limited support for the evidence of the other complainants.”
[19] The appellant also submits that the trial judge erred in his assessment of the victims’ evidence by unduly focusing on their credibility as opposed to whether their testimony was reliable. The trial judge made the following self-evident observation in his reasons: “In this case, the central issue is credibility. This is not a situation where the complainants may have honestly but mistakenly believed that [the appellant] sexually assaulted them.” Nonetheless, the trial judge’s reasons demonstrate that he addressed both reliability and credibility considerations.
[20] In R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, Karakatsanis J. wrote, at para. 82:
Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness' ability to observe, recall, and recount events accurately, and referring to credibility as the witness' sincerity or honesty: see, e.g., R. v. H.C. 2009 ONCA 56, 244 O.A.C. 288, at para. 41. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words "credibility" and "reliability" but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. [Emphasis added.]
In this case, it is clear from his reasons that the trial judge found the three young victims to be trustworthy witnesses.
[21] The appellant also points to other shortcomings in the trial judge’s analysis of the victims’ evidence and his failure to address collusion outside of the context of his similar act ruling. But the trial judge addressed collusion in this context as well. The appellant also submits that the trial judge did not address all of the internal/external inconsistencies in the victims’ accounts. He was not required to do so. The trial judge specifically said in his reasons that he would only be detailing some of the inconsistencies, but that he had considered all of them. This he was entitled to do.
[22] In the end, the proposed grounds of appeal seem weak at this stage. This must be balanced against the strong enforceability considerations engaged by the serious sexual abuse of three teenaged girls. Confidence in the administration of justice would be undermined, not maintained, by releasing the appellant. In the circumstances, I need not address the Crown’s submission concerning residual public safety considerations.
Conclusion
[23] The application is dismissed.
“Gary Trotter J.A.”