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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 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. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.P., 2013 ONCA 505

DATE: 20130801

DOCKET: M42726 (C57400)

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

J. P.

Appellant/Applicant

James Foord, for applicant

Grace Choi, for respondent

Heard: July 30, 2013

On application for release pending the appeal from the conviction entered on December 4, 2012 and the sentence imposed on January 6, 2013 by Justice Douglas J. Rutherford of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The applicant was convicted of the offence of invitation to sexual touching under s. 152(a) of the Criminal Code of Canada. She was sentenced to 24 months incarceration.

[2] The applicant and her co-accused boyfriend, Gregory Ganong, befriended an eleven-year-old neighbourhood boy, S.R. Over the course of one-and-a-half to two months, S.R. was sexually exploited by the couple through numerous incidents of various sexual acts. The trial judge found that Mr. Ganong took the lead in the offences but that the applicant participated. Mr. Ganong was sentenced to five years imprisonment for a number of sexual assaults, and to a concurrent sentence of three months for invitation to sexual touching.

[3] S.R. testified that the applicant touched his penis. Mr. Ganong encouraged him to touch her breasts and vaginal area. S.R and the applicant engaged in French kissing.

[4] For bail pending conviction appeal, the appellant must establish the three elements set out in s. 679(3) of the Criminal Code: that the appeal or application for leave to appeal is not frivolous; that she will surrender herself into custody in accordance with the terms of the order; and that her detention is not necessary in the public interest. I find that the applicant would surrender herself into custody. I now turn to the other two grounds.

[5] I must first be persuaded that the appeal is not frivolous. I adopt the interpretation of Hoy J.A. in R. v. Brown, [2012] O.J. No. 3605, at para. 4:

The requirement that the appeal "is not frivolous" has been interpreted to mean that there must be an arguable case with respect to the applicant's guilt. The applicant “must establish that his or her appal has sufficient strength and substance, or rests on some ground rational enough, to evoke the possibility that the appeal may be allowed”: see R. v. Parsons (1994), 1994 CanLII 9754 (NL CA), 30 C.R. (4th) 169, at p. 173 (Nfld. C.A.); see also R. v. Di Guiseppe, 2008 ONCA 223, 78 W.C.B. (2d) 249, at paras. 11 and 17.

[6] I must also consider the public interest, taking into account the fact that the appellant was convicted of a serious crime against the person. I am obliged to weigh the values of reviewability and enforceability. As Arbour J.A. said in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 67 O.A.C. 197, at paras. 41-43:

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. The “public interest” criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.

On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes.

[7] Epstein J.A. noted in R. v. Love, [2012] O.J. No. 4083, at para. 10:

Several grounds are relevant to the public interest determination. These include the seriousness of the offence, the strength of the appeal, and the delay inherent in perfecting and listing an appeal: R. v. Daniels (1997), 1997 CanLII 3670 (ON CA), 35 O.R. (3d) 737 (C.A.) The more serious the crime, the less likely bail will be granted. Strong grounds of appeal will favour reviewability over enforceability. Concern for public protection will favour enforceability over reviewability: R. v. Porisky, 2012 BCCA 309, [2012] B.C.J. No. 1440, at paras. 10-16.

The Conviction Appeal

[8] The conviction appeal rests on two grounds. The first is that there is no evidence that the applicant actually invited S.R. to touch her. On this issue, the trial judge said:

The elements of the offence, including invitation of sexual touching as described, are manifestly made out by her actions as described by S.R.; even if, unlikely as may be, she had remained mute throughout. On the evidence, any suggestion that no invitation to S.R. to touch her body for a sexual purpose as proven is simply untenable. [Emphasis added.]

[9] Applicant’s counsel submits that the invitation was that of Mr. Ganong, not the applicant, and that the word “manifestly” is too vague and non-descriptive to amount to a safe basis for conviction.

[10] This is a difficult argument to sustain, in view of the case-law that interprets s. 152 to extend beyond express communication to implicit invitation by act or gesture: R. v. Legare, 2008 ABCA 138, [2008] A.J. No. 373 (C.A.), at paras. 32-33.

[11] The second ground of appeal is that the trial judge relied on a videotape of S.R.’s statement that S.R. admitted was somewhat untrue. On a voir dire, the trial judge found that the interview tape and the transcript met the threshold criteria contemplated by s. 715.1 of the Criminal Code, even though S.R. did not expressly adopt his earlier statement. Based on his assessment of S.R.’s testimony, the trial judge concluded that the statement was truthful but incomplete. There was nothing in the statement that was wrong. More detail was added by S.R. in his testimony, and the trial judge relied on that testimony. The Crown submits that the proviso would apply, if necessary.

[12] In my view, the invitation to sexual touching to a child is a serious crime against the person. The grounds for the conviction appeal are arguable but weak, and on such a serious offence the balance favours continued enforcement of the sentence, not judicial interim release.

The Sentence Appeal

[13] The applicant submits that the sentence of two years is grossly disproportionate to the sentence of three months received by her co-accused, who was the lead according to the trial judge, for two reasons. First, the applicant’s sentence is outside of the normal range for this crime. Second, Mr. Ganong’s sentence was three months concurrent with a five year prison term for sexual assault while the applicant’s was multiples of his three-month concurrent sentence.

[14] Applicant’s counsel did not provide me with comparable cases to assist in establishing a range of appropriate sentence. I can understand the problem; the cases often involve invitation to sexual touching as one of a number of more serious crimes, so that separating out the specific element is difficult if not impossible.

[15] The sentence does not appear to be an outlier. A trial judge is permitted, under s. 725(1)(c) of the Code, to consider the overall context, including the applicant’s conduct that could well have established a more serious charge. See R. v. Edwards (2001), 2001 CanLII 24105 (ON CA), 54 O.R. (3d) 737 (C.A.), at para. 35. Sentences related to the sexual abuse of children are rising as courts become more familiar with the horrific consequences for the victims, an element to which the trial judge alluded in referring to the victim impact statements. See Moldaver J.A. in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at paras. 34-38, R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 72, and R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721, at para. 38.

[16] Further, it does not strike me that the two sentences are truly comparable. Mr. Ganong’s conviction on the more serious charges tempers his overall sentence somewhat on the totality principle, which does not apply to the applicant. I am not persuaded that his concurrent three months sentence for the invitation to sexual touching is an appropriate comparator for the applicant.

[17] The practical issue is that the applicant has served a substantial proportion of her sentence. Refusing this bail application might render her sentence appeal moot which would thereby cause her unnecessary hardship; see s. 679(4) of the Criminal Code. The appeal has not yet been perfected, so it cannot be expedited.

[18] Despite this reality, in my view the application fails on the public interest analysis undertaken above in relation to the conviction. On balance, this is a case in which public confidence in the administration of justice requires that the judgment be enforced. I am especially troubled by the long term nature of the applicant’s personal abuse of the child victim, which was described by the trial judge as “extensive and persistent,” and the very serious breach of trust in which she participated.

[19] The application is therefore dismissed.

“P. Lauwers J.A.”