COURT OF APPEAL FOR ONTARIO DATE: 20241128 DOCKET: M55467 (COA-24-CR-1040)

van Rensburg J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent/Respondent

and

M.W. Appellant/Applicant

Counsel: Alexa Ferguson, for the applicant [2] Raoof Zamanifar, for the respondent

Heard: October 22, 2024

Endorsement

Introduction

[1] This is an application for bail pending appeal. The applicant was convicted after trial by judge alone of six sexual offences against two complainants. The complainants were his younger cousins. The offences occurred during the period when the applicant was living in the same household as the complainants.

[2] There is no question that the offences were extremely serious. The applicant was in a position of trust with both complainants. He repeatedly subjected them to non-consensual sexual acts by exploiting his authority over them. The abuse began when the complainants were 14 and 15 years old, and involved repeated acts of penetration, including sexual intercourse, that continued for a number of years.

[3] The applicant received a global sentence of 12 years’ imprisonment, allocated as follows: for counts 2, 4 and 6 (involving I.A.), seven years to be served concurrently on all three counts; for counts 1, 3 and 5 (involving V.E.), five years to be served concurrently on all three counts but consecutive to his sentence on counts 2, 4 and 6. The trial judge stated that he would have imposed a sentence of 17 years, but reduced the global sentence to 12 years, applying the principle of totality.

[4] The applicant is currently appealing his convictions and sentence. However, the notice of appeal and application materials only discuss the grounds for the conviction appeal.

[5] Pursuant to s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, the applicant must establish: (a) that the appeal is not frivolous; (b) that if granted bail he will surrender into custody in accordance with the terms of the release order; and (c) that his detention is not necessary in the public interest.

The Parties’ Positions

[6] The applicant asserts that his appeal has merit, that he is not a flight risk and that there are no public safety concerns. He is a first-time offender who has been on release without incident during the lengthy trial proceedings, and he now proposes a more onerous form of release for bail pending appeal.

[7] Bail is opposed by the Crown on the first and third grounds: that the grounds of appeal do not pass the “not frivolous” threshold, and that the applicant’s detention is necessary in the public interest.

Analysis

[8] The “not frivolous” threshold requires the applicant to establish that the proposed grounds of appeal raise arguable issues. Although the applicant need not establish a likelihood or certainty of success on appeal, they “must be able to point to a viable ground of appeal that would warrant appellate intervention if established”: R. v. Manasseri, 2013 ONCA 647, 313 O.A.C. 55, at para. 38. The applicant bears the onus of providing the evidentiary record necessary to assess whether a ground of appeal is not frivolous: R. v. Grant, 2021 ONCA 519, at paras. 11, 14.

[9] The public interest criterion under s. 679(3)(c) of the Code consists of two components: public safety and public confidence in the administration of justice: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23, 26; R. v. Farinacci (1993), 109 D.L.R. (4th) 97 (Ont. C.A.), at p. 113. It is the second component that the Crown relies on here. The public confidence component involves weighing the competing interests of reviewability and enforceability. In assessing these interests, the strength of an appeal and the seriousness of the offence play central roles: Oland, at paras. 37, 40. In R. v. D.G., at para. 12, Zarnett J.A. explained that if the offences are “very serious” – like sexual offences against children – then “this necessitates, on the issue of public confidence in the administration of justice, a more probing inquiry into the merits of the appeal”.

[10] Accordingly, the focus on this bail application is on the merits of the appeal. The applicant raises two grounds of appeal: first, that the trial judge erred in law in conducting the trial without an accredited or qualified interpreter, and second, that the trial judge erred by dismissing the applicant’s post-conviction application to quash the indictment for lack of jurisdiction or to declare a mistrial.

(1) First Ground of Appeal: Competent Interpretation

[11] No material has been filed in support of the first ground of appeal in this bail application. It is based on information provided by the applicant’s trial counsel that, at the end of the post-conviction defence application on August 2, 2024, she was told by the Cameroonian Pidgin interpreter that she was not accredited nor was she conditionally accredited as an interpreter by the Ministry of the Attorney General (“MAG”), although she did have accreditations elsewhere. Counsel for the applicant, citing R. v. Tesfai, 2013 ONSC 2772, at para. 20, contends that a competency voir dire was required, and trial counsel advises that none was conducted.

[12] The right to a competent interpreter is provided under s. 14 of the Canadian Charter of Rights and Freedoms. While a breach of this right may amount to trial unfairness and constitute a reversible error on appeal, the onus of proof is on the party alleging such a breach to demonstrate on a balance of probabilities that they required the assistance of an interpreter and that any assistance that was provided fell short of the constitutionally guaranteed benchmark: R. v. Tran, [1994] 2 S.C.R. 951, at p. 998. Where the complaint is lack of accreditation, fresh evidence in support of this ground must show a nexus between the accreditation flaw and the interpreter assistance provided in the case: R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, at paras. 96, 98, leave to appeal refused, [2008] S.C.C.A. No. 311.

[13] Even assuming that the interpreter was not MAG accredited and that a competency voir dire was not conducted, these factors alone would not be sufficient to impugn the applicant’s convictions. While the absence of transcripts at this early stage may be understandable, there is nothing before this court by way of an affidavit of the applicant or trial counsel to suggest that the applicant received incompetent interpretation. There is also no suggestion of a complaint relating to the quality of interpretation having been raised before the trial judge during the 16-day trial. Accordingly, this ground of appeal does not pass the “not frivolous” threshold.

(2) Second Ground of Appeal: Jurisdiction to Amend Counts 2 and 6

[14] The second ground of appeal is that the trial judge erred in law in dismissing the applicant’s post-conviction application. For two counts, involving complainant I.A., the dates set out in the indictment spanned a period of time when the applicant was both younger and older than 18. The applicant’s counsel argued that the proceedings were required to have been taken under the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”), and asked the trial judge to quash the indictment due to lack of jurisdiction or in the alternative that he declare a mistrial. The trial judge dismissed the application and instead, at the request of the Crown, pursuant to s. 601(1) of the Criminal Code, amended the time periods covered by counts 2 and 6 to begin on the applicant’s 18th birthday, [3] finding that there was no prejudice to the applicant.

[15] The trial judge relied on R. v. L.L. (2003), 169 O.A.C. 373 (C.A.). In L.L., the accused was charged with having committed offences spanning a time frame when he was between the ages of 14 and 20. At the opening of trial, the accused brought an application to quash the indictment for lack of jurisdiction, and the application judge did so, holding that the proper procedure was to commence proceedings in youth court. On appeal, this court held that this was an error, and that the indictment was “not a nullity, and was therefore capable of amendment” under s. 601(4). This court allowed the appeal, amended the time frame on the indictment and remitted the matter to the Superior Court for trial.

[16] The applicant makes two arguments in support of this second ground of appeal.

[17] First, he contends that the trial judge erred by requiring the defence to demonstrate prejudice. He argues that, because the court did not have jurisdiction to try counts 2 and 6, the court was never properly constituted, and the proceeding was a nullity ab initio. He relies on R. v. P.M.C., 2016 ONCA 829, for the proposition that a single accused cannot be tried jointly on youth and adult counts.

[18] Second, and in the alternative, the applicant submits that the trial judge erred in finding there was no prejudice and denying the mistrial application. Specifically, he argues that amending the time frames for counts 2 and 6 converted cross-count similar fact evidence into extrinsic misconduct similar fact evidence, which is subject to a more demanding test, relying on R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 68. The applicant also argues that had the time frames for counts 2 and 6 been different, he might not have testified about the period of time pre-dating his 18th birthday, or he might not have testified at all.

[19] On this bail application the Crown advances a different argument than was raised in the Superior Court. The Crown contends that it was not necessary for the trial judge to amend the indictment, and that ss. 13, 16, 67(1)(d) and 67(2) of the YCJA are a “complete answer” to the applicant’s arguments. In essence, the Crown asserts that when the applicant appeared in the Ontario Court of Justice (which is designated as a youth justice court under s. 13(1) of the YCJA and s. 38(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43), he validly elected to be tried by judge and jury in the Superior Court (he subsequently re-elected to be tried by judge alone) and he received the trial that he had elected.

[20] In my view the second ground of appeal, while not frivolous, is not very strong.

(a) No Prejudice to the Applicant

[21] I begin with the applicant’s second, alternative argument about prejudice. In the context of continuing assaults that occurred repeatedly over many years, a fraction of which pre-dated the applicant’s 18th birthday, it is not clear to me how excluding that fraction of time would have had any material impact on the similar fact evidence application, the applicant’s decision to testify, or the content of his testimony. The trial judge found that the applicant subjected the complainants to repeated acts of sexual abuse over a period of many years. I.A.’s testimony, which the trial judge believed, was that the assaults happened at least once a week and sometimes multiple times a week over several years, and that every time was essentially the same. The trial judge’s amendment to the time frame of counts 2 and 6 delayed the start date by approximately five months, from November 1, 2009 to March 23, 2010. While it is conceivable that the applicant might be able to demonstrate prejudice on the appeal proper on a full record, the prejudice argument on the record before me is weak.

[22] The applicant relies on MacCormack to argue that the similar fact application factors are weighed differently when the similar fact evidence concerns conduct extrinsic to the counts alleged on the indictment. But this is not a case where the assaults that occurred before the applicant’s 18th birthday were of a significantly different nature or more prejudicial to him than the assaults that occurred after. Even if some of the similar fact evidence had been extrinsic to the counts alleged, this is not a case where such evidence would “[lug] with it inflammatory claims of greater gravity or moral depravity” as compared to the conduct alleged in the indictment: MacCormack, at para. 68.

(b) Any Remaining Jurisdictional Error Would Only Affect Counts 2 and 6

[23] Second, I see little merit to the argument that the indictment was not capable of amendment irrespective of prejudice. Like the trial judge, I am not persuaded by the applicant’s attempts to distinguish L.L. The applicant highlights that in L.L., the objection arose before trial. But s. 601(3) of the Criminal Code authorized the trial judge to amend the indictment “at any stage of the proceedings”, subject to prejudice and the other factors set out in s. 601(4).

[24] I also do not consider P.M.C. to be of much assistance to the applicant. In P.M.C., the applicant was tried in the same court for both youth and adult charges that were unrelated and separated by many years. In this case, the Crown did not propose to try the applicant in the same court for both youth and adult charges – rather, the Crown proposed to amend the indictment to exclude the period of time when the applicant was a young person. P.M.C. does not address remedy, nor does it address the power to amend under s. 601.

[25] I agree with the Crown that, given the weaknesses identified in the grounds of appeal, the reviewability interest is diminished. Even if there were an arguable jurisdictional issue relating to counts 2 and 6, it is not clear how this could realistically taint the validity of the convictions on the remaining four counts. The applicant was sentenced to five years concurrent for counts 1, 3, and 5 regarding the offences against V.E., running consecutively to his seven-year sentence for count 4 regarding I.A. The applicant argues that these remaining counts are tainted by prejudice, and by ineffective interpretation, but as discussed above I see little merit to those arguments at this stage. Therefore, even if I had concluded that the applicant’s jurisdictional argument with respect to counts 2 and 6 was strong, the overall reviewability interest would still be weak. This is because the likely remedy on appeal for a jurisdictional error with respect to counts 2 and 6 would still leave the applicant with a lengthy penitentiary sentence for counts 1, 3, 4, and 5: Oland, at para. 46.

[26] In light of the above, it is not necessary to address the Crown’s argument that the Superior Court in fact had jurisdiction over counts 2 and 6 because it was a deemed youth court.

Conclusion

[27] Without question the seriousness of the applicant’s offences weighs in favour of the enforceability interest. When the strong enforceability interest is balanced against the diminished reviewability interest in this case, I am satisfied that the applicant has failed to establish the third requirement of s. 679(3) – that his detention pending appeal is not necessary in the public interest.

[28] For these reasons the application for bail pending appeal is dismissed.

“K. van Rensburg J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46. [2] Alexa Ferguson appeared for Sonya Shikhman, counsel of record for the applicant. [3] The applicant’s 18th birthday was March 24, 2010. However, it appears the trial judge amended counts 2 and 6 to begin one day earlier, on March 23, 2010. Counsel did not advert to or make submissions about this discrepancy in their argument before me.