Publication Ban Warning

The motion 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 File and Parties

Court of Appeal for Ontario Date: 2023-05-05 Docket: M54240 (COA-23-CR-0450)

Before: Feldman J.A. (Motion Judge)

Between: His Majesty the King Respondent (Respondent)

And: W.W. Applicant (Appellant)

Counsel: Myles Anevich, for the applicant Mark Luimes, for the respondent

Heard: May 3, 2023 by video conference

Reasons for Decision

[1] The applicant/appellant was convicted of four counts of sexual interference against four young girls who are the appellant’s step grandchildren. There was vaginal intercourse with one of the girls at age 8 or 9. [^1] The appellant received a sentence of 6 years 3 months. He has appealed his convictions and seeks bail pending appeal. [^2] The Crown opposes bail on the public interest ground.

[2] Under s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, a judge of the court of appeal may order the release of an appellant pending appeal if the appellant satisfies three conditions: 1) the appeal is not frivolous; 2) the appellant will surrender into custody under the order; and 3) detention is not necessary in the public interest.

[3] The “not frivolous” standard has been held to be a low bar: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. The Crown’s position is that the two grounds of appeal raised by the appellant, while not frivolous, are at best very weak grounds.

[4] The first ground is that the trial judge implicitly invited the jury when assessing the evidence of the appellant, to consider his bias as a witness. He did this by explaining with respect to the assessment of the credibility of any witness that the jury could consider whether there was any reason why the witness would not be telling the truth and whether the witnesses’ evidence was tainted by bias. Then later, with respect to assessing the appellant’s evidence, the trial judge told the jury to assess his evidence as they would assess the evidence of any other witness.

[5] The appellant acknowledges that the case law does not create an absolute prohibition against considering an accused’s bias in his own favour, but the Supreme Court of Canada has stated in R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 14 that “in most cases” this factor has no place in decision-making: see also R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 117.

[6] The second ground of appeal is that the trial judge erred by failing to charge the jury on the potential effect of inadvertent collusion or tainting in respect of the complainants. In particular, ER spoke to another complainant, her sister, AR, before AR gave her first statement to the police. In her first statement to the police, AR alleged tickling that she described in cross-examination as “weird”. In fact all the girls, including ER, gave evidence of the tickling, which the appellant acknowledged occurred. Three weeks after she gave the first statement, AR gave a second statement to the police where she claimed that the appellant had sexually assaulted her repeatedly over a number of years. The appellant submits that these conversations and others among the girls, created the reasonable possibility of collusion, whether advertent or inadvertent.

[7] The trial judge did not charge on the possibility of collusion, nor was he asked to do so. He did tell the jury not to use the evidence regarding each count in respect of the other counts but to treat them separately. He also told them to take into account “parental and other influences” on the girls in assessing their evidence. Again there was no request for a charge on collusion and no objection.

[8] Both counsel agree that the grounds meet the “not frivolous” test. I accept the submission of the Crown that the two grounds raised are weak grounds in law. The trial judge did not directly tell the jury that they should consider bias of the accused, and the case law does not preclude it in any event. On the potential for indirect collusion or tainting, again the trial judge mentioned the effect of other influences, and that the jury must be mindful that younger people may perceive the world differently and may not be accurate as to details but that their evidence must be carefully assessed. The errors raised while not frivolous, do not, at this stage, appear strong.

[9] The second condition has been met. Both counsel agree that the appellant will surrender himself into custody in accordance with the terms of the order.

[10] The third condition is the public interest ground consisting of public safety concerns as well as public confidence in the administration of justice. The Crown relies on the fact that the offences are extremely serious being sexual interference with young girls with whom the appellant was in a position of trust, including intercourse in one case, resulting in a significant sentence of 6 years and 3 months.

[11] The Crown submits that when balancing the interests of reviewability and enforceability, given that the appeal grounds are relatively weak, and the offences are very serious, the balance weighs in favour of enforceability: Oland, at paras. 49-50.

[12] On the other side is the fact that the appellant has been on release on an undertaking for approximately 3 years without incident. In addition, the parties have worked out a strict release plan where he will live with his elderly parents who will pledge security for him, and he will be prohibited from any contact with children except his son’s children with supervision. The appellant submits that these factors suggest that the balance weighs in favour of reviewability.

[13] I agree with the observation of Trotter J.A. in the case of R. v. M.S., 2022 ONCA 348, at para. 22 that in circumstances where the grounds of appeal appear to be weak, and where there has been a conviction for serious sexual abuse of a number of young people, “[c]onfidence in the administration of justice would be undermined, not maintained, by releasing the appellant.” I add that, given the length of the sentence, this is not a case where a significant part of the sentence will be served before the appeal is heard.

[14] The application for bail pending the appeal is dismissed.

“K. Feldman J.A.”

Footnotes

[^1]: The reasons for sentence were delivered on May 1, 2023. The court was not advised whether the trial judge made a finding on the issue of vaginal intercourse for the purpose of sentencing, but the sentence on the counts dealing with the charges relating to the complainant, AR, was 5 years while the sentences for the others are 5 months each, consecutive. [^2]: The appellant’s Notice of Appeal dated April 25, 2023 states that the appellant also seeks leave to appeal his sentence.