Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2022-01-26 Docket: M53111 (C70112) Before: Sossin J.A. (Motion Judge)

Between: Her Majesty the Queen, Respondent/Responding Party And: P.M.W., Appellant/Moving Party

Counsel: Christopher Rudnicki, for the moving party Heather Fregeau, for the responding party

Heard: January 21, 2022 by video conference

Reasons for Decision

[1] The moving party was convicted of sexual assault, sexual interference, and invitation to sexual touching. He was sentenced to six years imprisonment on December 17, 2021.

[2] The moving party sought bail pending appeal before Miller J.A. in December 2021. Miller J.A. denied that application on the basis that the applicant’s proposed release plan was weak. Miller J.A.’s decision stipulated that it was without prejudice to the moving party bringing a subsequent motion for bail with a stronger release plan.

[3] The moving party now seeks bail pending appeal based on revised conditions. The Crown once again opposes his application.

[4] In order to succeed on an application for bail pending appeal, the moving party must establish, per s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, that: a) the appeal is not frivolous; b) the applicant will surrender himself into custody in accordance with the terms of the release order; and c) the applicant’s detention is not necessary in the public interest: see R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

[5] The Crown concedes that the moving party’s proposed grounds of appeal are not frivolous and that he does not pose a flight risk.

[6] The basis of the Crown’s opposition to bail is that the moving party’s detention remains in the public interest.

[7] For the reasons that follow, I deny the moving party’s application for bail.

Is Bail in the Public Interest?

[8] The public interest component of the Oland framework includes two aspects: public safety; and public confidence in the administration of justice.

A. Public safety

[9] At the first motion for bail pending appeal, Miller J.A. concluded that the moving party’s plan of release was “weak.” Since that time, the moving party has revised the plan of release.

[10] The parties have now agreed on the terms of an order which, if bail is granted, would include strict conditions such as restrictions on internet access, prohibitions on arranging for third parties to contact the complainant and her mother, and wearing an ankle monitoring device.

[11] The moving party highlights the additional conditions in the draft order as stronger than the release plan before Miller J.A. on the prior motion. Additionally, the moving party has proposed a different surety, whose affidavit sets out his commitment to ensuring the moving party abides by the terms of the release plan.

[12] While the moving party concedes the serious nature of the offences for which he has been convicted and his prior convictions for breaching court orders, he argues that none of these prior breaches involved threats of violence. The last breach for which he was convicted consisted of contacting his former spouse, the complainant’s mother, in 2019 contrary to a probation order. That probation order arose from a 2019 conviction for assault against his former spouse, uttering threats and breaching a recognizance.

[13] Most recently, occurrence reports have been produced alleging that the moving party has arranged for gifts to be sent to his former spouse. While these occurrence reports have not yet resulted in charges, and should therefore be treated with caution, the moving party asserts that the risk to public safety posed by such breaches, even if established, is low.

[14] The moving party relies on R. v. Jaser, 2020 ONCA 606, 396 C.C.C. (3d) 230, where this court found that, in assessing the risk posed by a person seeking bail, the question is not simply whether that person will respect court orders, but also whether the potential of non-compliance with court orders includes a threat to public safety. As Doherty J.A. stated, at para. 67:

Not only must there be a substantial likelihood of committing an offence, that substantial likelihood must endanger the protection or safety of the public. It is one thing to conclude there is a significant risk Jaser would deceive his parents and breach curfew terms of a bail order, and another to conclude Jaser, motivated by a terrorist ideology, would seek out and participate in terrorist-related activity. The former may or may not compromise public safety. The latter clearly does.

[15] In other words, the moving party argues that the assessment of risk should be undertaken with public safety in mind, and not simply based on whether the moving party is likely to comply with court orders or not.

[16] The Crown argues that, based on the moving party’s history of domestic assault and contacting his former family in breach of previous court orders, public safety requires his continued detention. The Crown underlines the evidence in the record showing both the harmful effects to which the moving party’s unwanted contact has given rise, and the likelihood this conduct will continue if he is released given his history of non-compliance with court orders.

[17] The Crown relies on R. v. L.D., 2021 ONCA 786, where this court denied a motion for bail pending appeal on the basis of public safety concerns. In his reasons, Trotter J.A. highlighted the fact that the surety proposed by the moving party had no track record with prior supervision, and the moving party in that case had a history of breaching court orders.

[18] The Crown also cites R. v. S.M., 2020 ONCA 427. In that case, Paciocco J.A. concluded that even strict release conditions, such as house arrest and electronic monitoring, could not compensate for the risk posed by an offender who had committed serious offences and had a history of breaching court orders.

[19] The cases raised by the moving party and the Crown are helpful, though in my view, none are determinative given the distinct circumstances of this case.

[20] While Jaser involved very different facts and consideration of a different prong of the Oland test, the principle set out by Doherty J.A. in that case is apposite. On this record, while the moving party’s prior breaches amount to far more harmful conduct than a breach of a curfew, he nonetheless poses a low risk of reoffending violently.

[21] By contrast, both L.D. and S.M. involved breaches of court orders through violence, the threat of violence, or breaches affecting the administration of justice. In L.D., the moving party had 40 criminal convictions and 19 convictions for breaching court orders, including probation orders, release orders and conditional sentencing orders. As Trotter J.A. highlighted, the moving party committed the very offences for which he was convicted, and which gave rise to the appeal, while he was on bail.

[22] In S.M., the moving party had breached his pre-trial bail conditions by not observing a curfew and attending hotels contrary to the conditions of his relief. While there does not appear to have been any potential for violence in these prior breaches, Paciocco J.A. stated that his prior conviction for an offence of obstruction of justice led to the conclusion that he posed a risk of reoffending against the administration of justice. Again, no similar risk has been identified in this case.

[23] To be clear, the moving party’s offence was a serious one which, in and of itself, raises public safety concerns. The moving party’s history of breaching court orders by contacting the complainant’s mother also raises the level of risk, but the fact those prior breaches have not involved violent or threatening behaviour is relevant to this analysis as well. On balance, I am satisfied the public safety risk posed by the moving party can be addressed by the strict conditions of the release plan.

B. Public confidence

[24] With respect to the public confidence aspect of the public interest prong, the court must balance the state’s interest in enforcing the sentence imposed on the one hand, with the reviewability interest in light of the strength of the moving party’s case on appeal, and right to have that appeal heard before serving the sentence imposed at trial, on the other.

[25] As Miller J.A. denied the moving party’s previous motion for bail pending appeal on the basis of public safety, he did not address the public confidence aspect of the tertiary public interest prong of the Oland framework.

(1) Enforceability interest

[26] With respect to the enforceability interest, the more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail pending appeal. In this case, the offences for which the moving party was convicted are serious and involve an abuse of trust and sexual assault against a child, resulting in a term of imprisonment of six years.

[27] Additionally, it is clear from the record, including the pre-sentencing report, that the moving party lacks insight into the harm resulting from his unwanted and unwelcome contact with his former spouse. He appears to remain fixated on restoring some relationship with her. It is equally clear that the impact of this contact, in violation of court orders, has been harmful for his former family.

[28] Given these circumstances, it is likely that the moving party will continue to attempt to re-establish contact with his former spouse in some way. This likelihood militates for a higher enforceability interest.

[29] While the seriousness of the offence bolsters the enforceability interest and favours continued incarceration, absence of risk to public safety may attenuate the enforceability interest: Oland, at para 39.

[30] In my view, all these circumstances, including the seriousness of these offences, the presence of a public safety risk, and the moving party’s lack of insight into the harm caused by his prior breaches, support a relatively high enforceability interest.

(2) Reviewability interest

[31] The Crown argues that while the enforceability interest in this case is high, the reviewability interest is low.

[32] The moving party’s grounds of appeal include that the trial judge misapprehended certain evidence which was material to his assessment of credibility, and that the trial judge improperly relied on a prior consistent statement bolstering one of the witnesses’ testimony. The moving party argues that the strength of the proposed grounds of appeal should lead to a high reviewability interest.

[33] The moving party alleges three pieces of evidence were misapprehended. First, the moving party asserts that the trial judge mischaracterized him as attempting to deceive the court about his prior breach of a court order to advise police of his change of address. The moving party argues that he clearly took responsibility for this breach by pleading guilty, and thus there was nothing misleading in his testimony.

[34] The second alleged misapprehension concerned the trial judge’s characterization of an altercation between the moving party and the complainant’s brother involving the theft of car tires. The trial judge referred to the moving party’s testimony as “concerning” but, in the moving party’s view, misconstrued that testimony. As transcripts have not yet been obtained, however, it is not possible to assess whether this evidence was understood correctly.

[35] To the extent there is some uncertainty with respect to the misapprehension of evidence ground pending a review of the trial transcripts, this does not favour the moving party. It is his burden to establish a sufficiently high reviewability interest based on the record on this motion, not the possibility of a stronger basis of appeal that might arise in the future.

[36] Third and finally, the moving party alleged that the trial judge incorrectly stated that the moving party had distanced himself from the complainant in an attempt to cover up the sexual assaults. The moving party argues that this finding was not available on the evidence.

[37] The Crown characterizes the moving party’s arguments with respect to the misapprehension of evidence as weak. The Crown does not agree that any of this evidence was misapprehended but, in any event, argues that the evidence in question was not material and would have made no difference to the trial judge’s finding of guilt.

[38] The second ground of appeal arises from a statement by the trial judge in his reasons relating to a prior statement of the complainant’s former boyfriend, which corroborated an alleged fact in the complainant’s testimony and contradicted the testimony of the moving party.

[39] The Crown argues that when the impugned reference is read together with the trial judge’s fuller assessment of the former boyfriend’s testimony later in his reasons, however, any concern regarding the trial judge improperly relying on a prior consistent statement is removed.

[40] The adjudication of this ground of appeal may depend on whether this passage in the trial judge’s reasons referring to the complainant’s boyfriend’s testimony is read on its own, or interpreted in light of the other comments by the trial judge elsewhere in his reasons for judgment.

[41] While these grounds of appeal are certainly arguable, I would not accept that they give rise to a high reviewability interest.

[42] Public confidence is assessed qualitatively and contextually, based on the standard of a reasonable member of the public: Oland, at para. 47-49.

[43] Balancing the relatively high enforceability interest with the relatively low reviewability interest, I conclude that the moving party has failed to meet his burden of establishing that public confidence does not favour continuing detention.

[44] In the result, in my view, a reasonable member of the public, “who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values” would be of the view that release pending appeal is not in the public interest: Oland, at para. 47.

Disposition

[45] For these reasons, the motion for bail pending appeal is denied.

[46] I wish to thank both counsel for their clear and helpful submissions.

“L. Sossin J.A.”