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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 20240502 Docket: M55045 (COA-24-CR-0412) Harvison Young J.A. (Motions Judge)

Between

His Majesty the King Respondent/Responding Party

and

P.R. Appellant/Applicant

Counsel: Paul Calarco, for the appellant/applicant Brent Kettles, for the respondent/responding party

Heard: April 29, 2024

Endorsement

[1] The applicant applies for bail pending appeal. For the reasons that follow, I would dismiss the application.

[2] Following a judge-alone trial, P.R. was found guilty of a number of counts of sexual assault, sexual interference and invitation to sexual touching. The victims of these assaults were his daughter and two nieces, who were between the ages of 5 and 16 when the assaults occurred. The trial judge found that while there were eight specific counts (one of which was stayed pursuant to R. v Kienapple, [1975] 1 S.C.R. 729), he also found that P.R. had assaulted two of the victims many more times. These assaults involved kissing, licking, the touching of the young victims’ chests and vaginas while they slept, and, for two of the victims, invitations to have them stroke or suck his penis. The trial judge imposed a total sentence of 10 years’ imprisonment.

[3] The applicant testified at the trial and denied that any of the incidents took place.

The Positions of the Parties

[4] Counsel for the applicant 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 applicant relies on the fact that he has been on bail for four years without incident, and the same surety (his brother-in-law) is willing to serve as surety if he is granted bail pending appeal. He has no prior convictions, and submits that he has solid grounds of appeal.

[5] The Crown opposes the application on the basis of the public confidence component in s. 679(3)(c), contending that the applicant’s reviewability interest is low because his grounds of appeal are weak. Even if the sentence appeal is allowed and the sentence reduced, he is unlikely to have served a significant portion of his appeal if his bail application is dismissed.

[6] Counsel for the Crown and the applicant agree that there is no concern as to whether the applicant will surrender into custody.

Analysis

[7] With respect to the first element of the test, the grounds of appeal advanced by the applicant are weak, though short of frivolous. Oral argument concentrated on the third ground, the assessment of whether the applicant has met his burden of showing that his detention “is not necessary in the public interest”. Under s. 679(3)(c) of the Code, the court must consider two elements: public safety and public confidence in the administration of justice.

[8] The Crown concedes that the applicant is not a risk to public safety, but argues that public confidence in the administration of justice would be undermined by the applicant’s release because even if the grounds of appeal clear the “not frivolous” bar, they are weak. This requires the court to attempt to strike a balance between enforceability and reviewability.

[9] The applicant argues that the strength of his grounds of appeal shift the balance in favour of reviewability such that the application for bail should be granted. He relies on two grounds of appeal. First, he argues that the trial judge erred in law in admitting the similar fact evidence because he failed to specifically consider whether the three complainants had “inadvertently” colluded. He acknowledges that the similar fact finding attracts deference. However, he cites the decision of R. v. Wilkinson, 2017 ONCA 756, 356 C.C.C. (3d) 314, per Trotter J.A. who found that the trial judge had erred in failing to specifically consider whether the complainants in that case had inadvertently colluded. Although Trotter J.A. found that this was an error, he also found that the error was cured in the circumstances of that case by the curative proviso. In that case, there were multiple complainants and the offences had typically taken place in the presence of a number of them together. They acknowledged discussing the offences and trying to get their stories straight.

[10] The Crown points to a part of the transcript where the trial judge, in his oral reasons for judgment, discusses the principles that are applicable to the question of the admissibility of similar fact evidence:

Cogency of the evidence can be significantly undercut by collusion. Similar fact evidence relies for its cogency on the unlikelihood of coincidence. Where evidence is not independent due to either intentional or unintentional tainting or collusion it loses its probative value. Where there is the opportunity for collusion the Crown must rebut collusion on a balance of probabilities in order for the similar fact evidence to be used. [Emphasis added.]

[11] The trial judge was clear that the Crown bore the burden of rebutting collusion and that this included both intentional and unintentional collusion. His review of the evidence includes the role that the complainants’ cousin (in whom one of the complainants had confided) played in providing support for them to go to the police, and also considers the fact that all three complainants were aware that one of them (a niece of the applicant) had made a complaint to a teacher a number of years earlier which had been investigated but not believed, leading to their reluctance to come forward due to repercussions she had experienced. He considered their evidence in some detail and found that:

…in my view it does not contain those types of similarities that suggest collusion or rehearsal. I do not suggest that this detail makes it more compelling or believable. It does, however, in my view, rebut the suggestion that they colluded or that their discussions prior to reporting to police tainted their narratives. The dissimilarities in their testimony and their report is telling in this regard.

[12] In light of the earlier statement I have quoted above, it is clear to me that the trial judge was considering both inadvertent and advertent collusion, and I do not see merit in this ground.

[13] The applicant also submits that the trial judge erred in making the following statement:

But before turning to the evidence of the complainants, on the basis of the concerns I have outlined with [P.R.’s] evidence, and on the basis that I accept the evidence of the complainants, I reject [P.R.’s] evidence. It also does not leave me with a reasonable doubt. [Emphasis added.]

[14] Read in isolation, I would agree that this paragraph is problematic because it could suggest that the trial judge was simply weighing the applicant’s evidence against that of the complainants’, which of course violates the presumption of innocence as articulated in W.(D.), [1991] 1 S.C.R. 742. Counsel for the applicant particularly emphasized the word “and” in the quotation just cited. However, read as a whole, that is not what the trial judge has done. He cited W.(D.) at the outset and emphasized the Crown’s burden of proof beyond a reasonable doubt. He referred to W.(D.) a number of times throughout the reasons. The paragraph quoted above appears much later in the reasons after the trial judge had undertaken a detailed and thorough consideration of the applicant’s evidence and why he found that it lacked credibility. He expressly found that the applicant’s evidence did not leave him with a reasonable doubt. In making that assessment, he sets out the considerations he took into account, which triers of fact should take into account, in assessing the credibility and reliability of witnesses. The applicant takes no issue with those. It is only at the end of that discussion that the trial judge made the impugned comment. He then continued to consider the evidence of the complainants, and he did so thoroughly, taking inconsistencies and resolving them along the way. As I have discussed, he also considered issues such as collusion and motive to fabricate. He accepted the evidence of each of the three complainants and made the necessary findings of fact. He expressly found that the Crown had proven the offences beyond a reasonable doubt.

[15] The parties agree that the applicant will surrender into custody. However, I am of the view that if the applicant’s grounds of appeal surpass the s.679(3)(a) “not frivolous” bar, they nevertheless are weak. This is relevant to determining the appropriate balance between reviewability and enforceability. In striking this balance, this court must embark on a “more pointed assessment of [the] strength of the appeal…with an eye to [the appeal grounds’] general legal plausibility and their foundation in the record”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 44. Assessing public confidence in the administration of justice requires this court to consider not only the apparent strength of the grounds of appeal, but the seriousness of the offence, the circumstances surrounding the commission of the offence and the term of imprisonment.

[16] As I have already discussed, the grounds of appeal are weak. The offence, as this court has recognized, was serious. This court has been consistently treating sexual offences against children as very serious for the purpose of considering the balance between reviewability and enforceability: R. v. J.B., 2023 ONCA 264, at para 17; R. v. M.S., 2022 ONCA 348, at para 15; R. v. Bowman, 2024 ONCA 313, at para. 12. The victims were young and vulnerable. The applicant, as father and uncle, was in a position of trust to all of them. The assaults went on over a significant period and the fact that one of them had made a similar complaint to a teacher that ultimately was not believed served to deter them all from coming forward for some time. While the sentence was severe, it was within the general range and it is highly unlikely that the applicant could serve his sentence, even if reduced, before the appeal is heard.

[17] I conclude that for these reasons, the public interest in enforceability outweighs that of reviewability.

[18] The application for bail pending appeal is dismissed.

“A. Harvison Young J.A.”