Court of Appeal for Ontario

Date: 20241213 Docket: COA-24-CR-0259 & COA-24-CR-0244

Before: Dawe J.A. (Motion Judge)

Docket: COA-24-CR-0259

Between His Majesty the King Respondent (Responding Party)

and

D.L. Appellant (Moving Party)

Docket: COA-24-CR-0244

And Between His Majesty the King Appellant (Responding Party)

and

D.L. Respondent (Moving Party)

Counsel: Lindsay Board and Robert Nanni, for the moving party Manasvin Goswami, for the responding party

Heard: in writing

Reasons for Decision

[1] D.L. was tried in the Ontario Court of Justice on a 20-count information. On January 24, 2024, he was convicted on sixteen counts and acquitted on four counts. On February 7, 2024, he received concurrent conditional sentences of two years less one day on all sixteen counts.

[2] D.L. is appealing against his sixteen convictions (COA-24-CR-0259). The Crown is appealing against both the acquittals and the sentence imposed on the convictions (COA-24-CR-0244). I have been case managing the appeals, and previously issued directions that they be heard together by the same panel. Both appeals have now been perfected.

[3] D.L. now brings a motion to have the Crown’s sentence appeal bifurcated from the other aspects of the appeals. Counsel have agreed that this motion would be brought before me as a motion in writing. D.L. seeks to have the Crown’s sentence appeal heard after a decision is rendered on his conviction appeal and the Crown’s appeal from his acquittals, which would still be heard together.

A. Factual background

[4] Some detail about the underlying charges and the appeals is required to give context to D.L.’s request for bifurcation.

[5] The charges against D.L. all arose out of allegations by his former common law spouse, who claimed to have been the victim of both sexual and non-sexual violence. D.L. was convicted on all of the sixteen charges alleging non-sexual violence or threats. [2] He is appealing these convictions. On eight of these counts he seeks to have acquittals substituted or, in the alternative, a new trial ordered. On the remaining eight counts he seeks a new trial.

[6] D.L. was acquitted on the four charges against him that alleged offences of a sexual nature. [3] Although the Crown stated in its Notice of Appeal that it was appealing all four acquittals, the Crown’s position in its factum on the appeal is that it is only seeking to have three of the four acquittals set aside. [4] The Crown requests that this court enter convictions on these three counts or, in the alternative, order a new trial on these charges.

[7] For convenience, I will refer to D.L.’s conviction appeal and the Crown’s appeal against his acquittals collectively as “the non-sentence appeals”.

[8] On its sentence appeal, the Crown makes three alternative submissions. First, it argues that if this court allows the Crown’s appeal from D.L.’s acquittals on the three sexual offence counts and substitutes convictions on these charges, his global sentence should be increased to six years’ imprisonment. Second, in the alternative, the Crown argues that if this court does not enter convictions on the three sexual offence charges where the Crown is appealing D.L.’s acquittals, and also dismisses D.L.’s conviction appeal, his global sentence on the non-sexual offence convictions should be raised to three years’ imprisonment. Third, in the further alternative, the Crown argues that the conditional sentence of two years less a day imposed for the non-sexual offences should be replaced by a reformatory sentence of 18 months’ imprisonment, which was the sentence Crown counsel at trial had requested.

B. Analysis

[9] This court ordinarily hears conviction and sentence appeals together. As Tulloch J.A. (as he then was) noted in R. v. M.W., 2015 ONCA 644, 340 O.A.C. 399, at para. 6:

It is preferable that the appeals be heard together. The advantages of this order of proceeding are clear. It enhances the efficient use of the court’s resources, avoids the possibility of contradictory outcomes, and ensures that the panel hearing the sentence appeal has the benefit of the full context for the appeal.

Tulloch J.A. also recognized that this rule is not absolute, but as he explained, “[a]ppeals from conviction and sentence should only be bifurcated where there are compelling reasons to do so”: M.W., at para. 6.

[10] D.L. argues that in the particular circumstances of this case there are compelling reasons to order that the Crown’s sentence appeal be heard after the non-sentence appeals have been heard and decided. He agrees that the non-sentence appeals should still be heard together.

[11] The core of D.L.’s argument is that if one or both of the non-sentence appeals is successful, either in whole or in part, this could significantly alter the sentencing landscape by changing the number or nature of his convictions. He submits that since counsel cannot anticipate or address all the possible permutations of potential outcomes, it would be both fairer and more efficient to postpone the sentence appeal hearing until counsel know exactly on what offences sentence is being imposed.

[12] There is some force to this argument, since there are indeed multiple possible sentencing scenarios that neither party has addressed in their appeal factums. As I have noted, the Crown’s appeal factum only addresses the sentences it seeks to have imposed if D.L.’s conviction appeal is dismissed in its entirety, and its own request to have his acquittals on three of the sexual offences set aside and convictions entered on these charges either succeeds or fails. D.L.’s appeal factum also only addresses these two scenarios, although he also invites the panel to request further submissions from counsel if it allows the Crown’s appeal from his acquittals.

[13] In his factum on this motion, D.L. goes further and argues that if the Crown’s appeal from his acquittals is allowed and convictions are entered on the three disputed sexual offence charges, “[t]he evidentiary record from the sentencing hearing would be insufficient”, and he would “very likely request leave from this Court to pursue and adduce fresh evidence to support submissions for this entirely different sentencing landscape.” He also contends that the panel would likely require further submissions from counsel if his own conviction appeal were allowed in part and acquittals were entered on only some, but not all, of the non-sexual offence counts.

[14] In essence, D.L.’s argument is that because there is a possibility that the panel may decide to hear further submissions on sentence, or receive further evidence, after the non-sentence appeals have been heard and decided, it would be more efficient to bifurcate the sentence appeal from the non-sentence appeals in advance, rather than requiring the panel “to be reconstituted at a later date to review further materials, including potential fresh evidence, and possibly for oral argument.” D.L. also points out that since there are possible scenarios in which the sentence appeal is not reached at all – e.g., if a new trial is ordered – ordering bifurcation now could avoid the panel having to review materials for what turns out to be a moot sentence appeal.

[15] While I agree with D.L. that there are imaginable scenarios in which having the sentence and non-sentence appeals heard together by the same panel could prove to be more cumbersome and inefficient than bifurcating the non-sentence and sentence appeals, the potential advantages of bifurcating the appeals from the outset must be balanced against the potential disadvantages.

[16] Among other things, if the sentence appeal ultimately does have to be decided on its merits, bifurcating the appeals would require two different panels to review the same trial record. This would be particularly inefficient if none of the scenarios materialize that might require the panel hearing the sentence appeal to request further submissions or permit further evidence to be adduced. Moreover, as Crown counsel points out, delaying the hearing of the Crown’s sentence appeal to a time when D.L. will have already served a substantial portion of his conditional sentence may make it more difficult for the Crown to successfully argue that he should now be incarcerated: see e.g., R. v. M.M., 2022 ONCA 441, at para. 20.

[17] Another significant consideration that weighs against D.L.’s argument for bifurcating the sentence appeal from the non-sentence appeals is that even if the panel hearing the combined appeals were to decide that it cannot properly or fairly decide the sentence appeal without receiving further submissions or permitting the parties to adduce fresh evidence, the panel will have the option of remitting any further sentencing proceedings to be conducted in the trial court.

[18] The scenarios where D.L. maintains that bifurcating the appeals would be more efficient are all ones where at least one of the non-sentence appeals is not entirely dismissed. If his own conviction appeal is allowed in its entirety and all of the non-sexual offence convictions are set aside, the Crown’s sentence appeal will become moot. If D.L.’s conviction appeal is only partly successful, and only some of the non-sexual offence convictions are set aside, the panel will have the option of remitting his case to the trial court for resentencing pursuant to ss. 686(1)(b)(i) and 686(3)(b) of the Criminal Code, R.S.C. 1985, c. C-46. Similarly, if the Crown’s appeal from D.L.’s acquittals is allowed and the panel substitutes convictions on one or more of the sexual offences, the panel would also have the option of remitting the matter to the trial court for sentencing pursuant to s. 686(4)(b)(ii) of the Criminal Code.

[19] Accordingly, I do not agree with D.L. that on these scenarios the sentence appeal would inevitably need to be adjourned for a further hearing before the same panel at a later date. Even if the panel decides that further sentencing submissions or evidence are necessary – which is itself not a certainty – the panel will have the choice of remitting the case to the trial court for further sentencing proceedings.

[20] It follows that I am not persuaded that the significant potential disadvantages of bifurcating the appeals are outweighed by the potential advantages. In my view, this is not a case where there are “compelling reasons” for having the sentence appeal heard separately from the non-sentence appeals: M.W., at para. 6.

C. Disposition

[21] In the result, D.L.’s motion for an order bifurcating the Crown’s sentence appeal from the non-sentence appeals is dismissed. My original case management direction that all aspects of the two appeals be heard together by the same panel remains in effect. Since both appeals have now been perfected, counsel may contact the scheduling office to arrange a hearing date.

“J. Dawe 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] These charges consisted of six counts of assault by choking; three counts of assault with a weapon; one count of assault causing bodily harm; three counts of common assault; and three counts of uttering death threats.

[3] These charges consisted of three counts of sexual assault and one count of extortion, particularized as an allegation that D.L. had extorted sex from the complainant.

[4] Specifically, the Crown challenges two of the three sexual assault acquittals, and the acquittal on the extortion charge.