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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.
Court of Appeal for Ontario
Date: 20230919 Docket: M54522 (COA-23-CR-0952) Hourigan J.A. (Motions Judge)
Between
His Majesty the King Respondent/Responding Party
and
J.C. Appellant/Applicant
Counsel: Janelle Belton, for the applicant Jason J. Wakely, for the responding party
Heard: September 18, 2023
Endorsement
[1] The applicant seeks bail pending appeal. After the hearing of the application, I dismissed the request for bail pending appeal, with reasons to follow. These are my reasons.
[2] The applicant was convicted of the following offences:
- Sexual assault and sexual interference for putting his hand into the pants of his nine-year-old niece, K., and touching her vagina.
- Sexual assault and sexual interference for masturbating into the diaper worn by his two-year old daughter in their family home.
- Accessing child pornography, which was recovered from two of his computer devices.
[3] The applicant was sentenced to 6.5 years’ imprisonment. Prior to these convictions, he had no criminal record.
[4] To be granted bail pending a conviction appeal, the applicant must establish that the following three elements enumerated in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, are met: (a) the appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the release order; and (c) his detention is not necessary in the public interest.
[5] I am satisfied that the applicant’s proposed appeal passes the low bar of not being frivolous. However, as I will discuss below, the merits of the appeal are weak. I am also satisfied – as the Crown concedes – that the applicant has met his onus of establishing that he will surrender into custody.
[6] The crux of this application is the issue of whether the applicant’s detention is not necessary in the public interest. I am persuaded that the public confidence ground is engaged in the circumstances, given the convictions for child sexual abuse and the imposition of a lengthy penitentiary sentence: R. v. M.S., 2022 ONCA 348, at paras. 12 and 15. A public confidence analysis requires a resolution of the tension between enforceability and reviewability considerations: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 28; M.S., at para. 13.
[7] 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) align with the following enumerated factors in s. 515(10)(c): the gravity of the offence (s. 515(10)(c)(ii)); the circumstances surrounding the commission of the offence (s. 515(10)(c)(iii)); and the potential for a lengthy term of imprisonment (s. 515(10)(c)(iv)): see Oland, at paras. 37-38; M.S., at para. 14.
[8] There is no doubt that the offences are objectively serious. As the Supreme Court observed in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 1, sexual offences against children involve “profound wrongfulness and harmfulness.” The circumstances of these offences are also clearly serious as they involve gross breaches of trust against the appellant’s infant daughter and niece. Further, the potential for a lengthy term of imprisonment is demonstrated by the sentence imposed at trial. Therefore, all three enforceability factors weigh strongly against the applicant’s position.
[9] Reviewability considerations under s. 679(3)(c) correspond with s. 515(10)(c)(i) – 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): M.S., at para. 16; Oland, at para. 40. In assessing the strength of an appeal, appellate judges “will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland, at para. 44. It is necessary, therefore, to consider the strength of the grounds of appeal raised by the applicant.
[10] The applicant’s first ground of appeal alleges that the trial judge “failed to consider an argument central to the defence.” According to the affidavit filed in support of the application, the trial judge “failed to consider counsel’s plausible explanation that the semen was smeared when the diaper was removed and taken into A.A.’s possession affecting the size and placement of the stain.”
[11] There is no transcript of counsel’s submission on this point at trial. Further, there is no reference to any evidence that is relevant to this submission or that establishes that this is a viable argument. As Moldaver J. stated in Oland, at para. 45, assessing the strength of the grounds of appeal “is not a matter of guesswork. It will generally be based on material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, along with relevant authorities.” I agree with the Crown’s submission that there is no reliable information placed before the court that supports the first ground of appeal. Thus, the submission that the trial judge failed to consider a central argument strikes me as weak.
[12] The applicant’s second ground of appeal alleges that the trial judge “failed to consider the whole of the evidence and misapplied the principles articulated in R. v. W.(D.).” Under this ground of appeal, the applicant challenges the trial judge’s credibility assessments of himself and the complainants. A trial judge’s credibility assessments “are accorded very considerable deference on appeal, as long as the trial judge has sufficiently explained how significant discrepancies that could undermine credibility and reliability have been resolved”: R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251, at para. 34; R. v. J.B., 2023 ONCA 264, at para. 21.
[13] In my view, this ground of appeal is weak. The trial judge provided thorough reasons to explain her credibility assessments. Further, on the credibility argument related to the assault on K., the applicant concedes that the trial judge was entitled to consider his credibility across-counts but submits that “this factor should not be determinative.” I also note that the trial judge articulated the principles underlying R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742, at the beginning of her reasons and applied them in her acquittal of the applicant on the charge related to the alleged assault of his wife.
[14] The applicant’s third ground of appeal is his sentence appeal. The applicant has not provided this court with the reasons for sentence or pointed to any error in principle committed by the sentencing judge. The sentence imposed appears to be consistent with the direction of the Supreme Court in Friesen regarding sentences for convictions involving the sexual abuse of children. In any event, even if the sentence appeal were successful, it is unlikely that the applicant will have served his sentence before his appeal is determined, thus bail is not required to avoid his sentence appeal becoming moot: Oland, at para. 48.
[15] In summary, the applicant’s grounds of appeal are weak.
[16] Having assessed the enforceability and reviewability factors, I must now balance them, keeping “in mind that public confidence is to be measured through the eyes of a reasonable member of the public”: Oland, at para. 47. In my view, the proposed grounds of appeal are weak and do not clearly surpass the not frivolous standard, and they are clearly outweighed by the strong enforceability considerations referenced above. Confidence in the administration of justice would be undermined, not maintained, by releasing the applicant. Given this conclusion, I need not address the Crown’s submission concerning residual public safety considerations.
[17] The application is dismissed.
“C.W. Hourigan J.A.”