Court of Appeal for Ontario

Date: 2025-07-18
Docket: M56126 (COA-25-CR-0404)
Judge: Peter Lauwers (Motions Judge)

Between:
His Majesty the King (Respondent/Responding Party)
and
B.N. (Appellant/Applicant)

Appearances:
Mark Halfyard, for the appellant/applicant
Jennifer Epstein, for the respondent/responding party

Heard: 2025-07-15

Endorsement

[1] On December 1, 2024, a jury found the applicant guilty of eight offences relating to his intimate partner: sexual assault, pointing a firearm, assault with a weapon (x3), assault, uttering a threat, and breach of a non-communication order. He was also convicted of driving while prohibited. He received a global sentence of 6.2 years. He appeals his conviction.

[2] The applicant puts forward four grounds of appeal, which I address below.

A. The Governing Principles

[3] For bail pending a conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code, R.S.C., 1985, c. C-46:
(1) that the appeal or application for leave to appeal is not frivolous;
(2) that he will surrender himself into custody in accordance with the terms of the order; and
(3) that his detention is not necessary in the public interest.

[4] The Crown concedes that the grounds of appeal are not frivolous but submits that the applicant should remain incarcerated on the third ground alone: that his detention is necessary in the public interest on the basis both of public safety and public confidence in the administration of justice.

[5] As the Supreme Court observed in R. v. Oland, 2017 SCC 17, at paras. 23-26, the public interest element must be tested under the framework set out by this court in R. v. Farinacci, 86 C.C.C. (3d) 32 (Ont. C.A.), [1993] O.J. No. 2627, per Arbour J.A. (as she then was).

[6] Under s. 679(3)(c) of the Criminal Code, there are two components to consider: public safety and public confidence in the administration of justice: Oland, at para. 23; Farinacci, at paras. 41-44. As Arbour J.A. said in Farinacci, at para. 42:

The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice.

[7] I am obliged to weigh the factors of public safety, reviewability, and enforceability. Although neither Farinacci nor Oland delved into public safety on the facts, Moldaver J. noted, at para. 27 of Oland:

“To be sure, there will be cases where public safety considerations alone are sufficient to warrant a detention order in the public interest.”

[8] In striking the balance between enforceability and reviewability,

“appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public”, being, “someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, at para. 47.

(1) Public Safety

[9] This court has built at length upon Moldaver J.’s comment in Oland that there will be cases where public safety considerations alone will prevent judicial interim release on appeal. See, for example, R. v. Abdullahi, 2020 ONCA 350, at paras. 19-24; R. v. McRae, 2020 ONCA 498, at paras. 27-28; R. v. Bailey, 2021 ONCA 3, at paras. 15, 26-29; and R. v. J.J., 2020 ONCA 280, at paras. 12-28.

(2) Enforceability

[10] With respect to enforceability,

“[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at para. 43.

As noted in Oland, at para. 37, the seriousness of the crime figures in the assessment of the enforceability interest. The applicant’s offences are undoubtedly serious.

(3) Reviewability

[11] Reviewability acknowledges that the “justice system is not infallible” in its results, such that

“persons who challenge the legality of their convictions should be entitled to a meaningful review process” that does not “require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful”: Oland, at para. 25.

The court noted in Oland that

“in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40.

The grounds of appeal must

“clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, at para. 44.

The applicant no longer benefits from the presumption of innocence: Oland, at para. 35.

B. The Governing Principles Applied

(1) Do the grounds of appeal clearly surpass the “not frivolous” standard?

[12] I address each of the grounds of appeal, which are expressed in the applicant’s counsel’s own words.

• First, the trial judge failed to provide the jury with an instruction on the potential misuse of the complainant’s prior consistent statements, particularly where in the audio recording – played for the jury – she discussed several aspects of the allegations.
• Second, the trial judge failed to provide the jury with an adequate instruction about the significant impact on the complainant’s credibility of the perjured affidavit, if the jury were to find that it was not made under duress.
• Third, the applicant was provided ineffective assistance by his s. 486.3(2) lawyer, in failing to cross-examine the complainant on her prior police statement, where she told the police she had never seen the applicant with a gun.
• Fourth, when the applicant raised the issue about the complainant’s prior police statement not being used in cross-examination, the trial judge failed to provide him adequate assistance, specifically in not advising him that he could move to have the Crown’s case reopened and to recall the complainant for further cross-examination to address this issue.

[13] I focus my analysis on the third ground – the alleged ineffective assistance of counsel (“IAC”). The applicant was self-represented at trial. However, counsel was appointed to cross-examine the complainant under s. 486.3(2) of the Criminal Code. I note that appointed counsel was not there to represent the applicant. The same principles apply to counsel appointed under s. 486.3(2) as to ordinary counsel who render ineffective assistance: R. v. N.H., 2023 ONCA 586.

[14] The Crown concedes that the ineffective assistance ground of appeal is the strongest and that it is not frivolous.

[15] The complainant gave two statements to the police. There are differences between the two. The first statement was less pointed about the use of a gun by the applicant than the second. After giving the first statement to the police, which was audio-recorded, the complainant told the applicant she had spoken with the police. She gave the second statement to the police the next day at the police station, which was video-recorded. The applicant points out that,

“[d]espite these inconsistencies on the face of the two statements, the s. 486.3(2) lawyer never put this to the complainant in cross-examination.”
He argues that this failure, coupled with the complainant’s other credibility issues, impaired the justice of the trial.

[16] The details of the applicant’s complaint were explained by appeal counsel in the following terms:

[T]he complainant made two statements to the police leading up to the Applicant’s arrest. Her first statement, given on March 22, 2022 at 3:43 p.m., was audio-recorded by Cst. Smethers and was 12 transcribed pages in length. In the first statement, the complainant only disclosed the uttering threats allegation (count #1), which involved an alleged threat by the Applicant to shoot up her car. In that statement, the complainant was specifically asked by the police if the Applicant had access to a gun. The complainant responded: “I do not know for sure.” She was then asked: “…[h]ave you known him to have access to guns in the past?” To which she replied: “[n]o…” (see p. 4, line 14-18). Towards the end of the statement, she was asked if there was anything else she wanted to add; she replied “No.” The complainant provided a second statement the following day – March 23, 2022 – which was video-recorded at the police station and later transcribed. In that statement, the complainant mentioned various allegations involving the Applicant having a gun and using a gun:

• That he had held a gun to her head (p. 18);
• That he had pulled the gun on her when he asked her if she slept with his friend (p. 25);
• He called his gun his “baby nine”, which was the same one he had waved at her and threatened her with (p. 32);
• She described the gun as a “brown” and a “small revolver” (p. 35); and,
• That she had seen the Applicant with the gun “multiple times” (p. 36). [Emphasis in original.]

[17] In the immediate aftermath of appointed counsel’s failure to cross-examine the complainant, and in the absence of the jury, the applicant voiced his strong concern about the way the cross-examination had been conducted. Appointed counsel seems then to have withdrawn.

[18] The trial judge minimized the effect of the failure to cross-examine the complainant, noting that in such circumstances witnesses often change their evidence. The trial judge did little, which led to the fourth ground of appeal noted above.

[19] The Crown responds by noting that the burden of proving ineffective assistance of counsel is heavy. She adds that

“the applicant is unlikely to be able to show that either alleged error would have impacted the verdict in this very strong Crown case with unusually ample corroboration.”
She adds that cross-examination on the inconsistency would not have damaged the complainant’s credibility. Even if the trial judge had reopened the case to permit cross-examination by another appointed counsel, it would not have elicited
“any material evidence from the complainant that would have changed the jury’s view of her credibility.”

[20] The applicant argues, and I agree, that an IAC claim can be based on counsel’s failure to understand that a prior statement existed and/or the failure to put a statement that contains material inconsistencies to the witness at trial, citing R. v. D.M.G., 2011 ONCA 343, at para. 106; R. v. P. (T.), at paras. 18, 27-28.

[21] In my view the IAC ground clearly surpasses the minimal standard required to meet the “not frivolous” criterion. But this conclusion does not lead automatically to bail.

(2) Is the applicant’s detention necessary in the public interest?

[22] The Crown submits that

“there is a substantial likelihood that the applicant will endanger the public by committing an offence or interfering with the administration of justice if he is released on bail pending appeal.”

[23] Although the applicant spent about 30 months out on bail pending trial without incident, the Crown argues that his past poor performance gives a better sense of what he will do if he is released. She points out that the applicant’s extensive criminal record spans 30 years, and that he has breached

“almost every available order under the Criminal Code: recognizances, undertakings, probation, YCJA orders, [and] various prohibitions.”
She adds that the applicant has
“failed to attend court/appear three times, fled from police twice, obstructed a police officer, and escaped lawful custody.”
Further, he
“has two convictions for possessing a gun or ammunition contrary to a prohibition, and he drove while disqualified 15 times.”

[24] The applicant was the subject of a probation order and a firearms prohibition at the time that he committed the offences before this court. Most recently, the complainant alleged that

“while the applicant was in jail pending trial for these offences, he sent third parties to threaten her, force her to visit him, and frighten her into swearing a false affidavit recanting some of her allegations.”
The Crown emphasizes that
“his conviction for breaching the non-communication order stems from his repeated conduct while incarcerated pending trial for the present offences.”
There is, she argues, no reason to believe his compliance will improve.

[25] The Crown cites R. v. R.B.-M., 2024 ONCA 787, at para. 36, where Zarnett J.A. noted:

Although there is an uninterrupted record of compliance with the terms of the applicant’s bail pending trial for the offences that are the subject of the appeal, he has a record of non-compliance with the terms of his bail and probation for the prior assault – that record is recent, not dated. Importantly, he committed the offences that are the subject of the appeal while in violation of a prior order.

The applicant committed the offences underlying this appeal in similar circumstances.

[26] In the context of serious intimate partner violence, public safety, particularly the safety of the victim, looms especially large. Public safety is, as the cases hold, a stand-alone basis for refusing bail, even if the grounds of appeal have possible merit. In the circumstances of this case, I would give little weight to the applicant’s bail compliance while awaiting trial. He was on his absolute best behaviour given the stakes. But with the lengthy sentence imposed on him, things might well have changed. His past willingness to breach court orders is plain, and his penchant for violence might well have been stirred.

[27] I take no comfort from the release plan. The Crown notes that GPS monitoring would be of little assistance in controlling the applicant. This court has recognized that GPS monitoring reveals where a person is, not what they are doing, and will be of little assistance in preventing non-compliance in the circumstances of this case: R. v. Stojanovski, 2020 ONCA 285, at para. 24; J.J., 2020 ONCA 280, at para. 27.

[28] The application for judicial interim release pending appeal is dismissed.

“P. Lauwers 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.