WARNING

The court directs that the following should be attached to the file:

An order restricting publication in this proceeding under s. 486.4 of the Criminal Code shall continue. This section of the Criminal Code provides:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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).

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

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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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; and

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

486.4(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.

486.4(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); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

Section 486.6 of the Criminal Code provides:

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.

486.6(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

Date: 2017-10-20

Docket: M48385 (C64129)

Strathy C.J.O. (In Chambers)

Between

Her Majesty the Queen

Respondent

and

K.M.

Applicant/Appellant

Counsel:

• Matthew Gourlay, for the applicant/appellant
• David Friesen, for the respondent

Heard: October 16, 2017

STRATHY C.J.O.:

[1] Application for Review of Bail Decision

[1] This matter comes before me pursuant to s. 680 of the Criminal Code, R.S.C. 1985, c. C-46, seeking an order directing a review by a panel of this court of an order denying the applicant bail pending appeal.

Proceedings at Trial

[2] The applicant was found guilty of two counts of sexual interference and two counts of sexual assault in relation to his then minor daughters. [1] The circumstances involved repeated instances of sexual touching, while the girls were sharing a bed with the applicant. The offences took place in the family home, over a long time period. The trial judge noted that the acts never progressed to more egregious and invasive forms of sexual abuse.

[3] The trial judge sentenced the applicant to a penitentiary term of thirty-four months after deducting two months' credit for pre-trial custody and stringent bail conditions – an effective sentence of three years' imprisonment. In sentencing the applicant, the trial judge observed that the offences had "devastating personal consequences" for the complainants and a deep and lasting impact on their lives. He also noted that the applicant was a "mature first offender" with a significant history of gainful employment.

The Reasons of the Bail Judge

[4] On the day he was sentenced, the applicant sought bail pending his appeal to this court. The Crown opposed bail under the first and third factors of s. 679(3) of the Code.

[5] With respect to the first factor – that the appeal is not frivolous – the applicant advanced grounds of appeal based on innocent explanations for the sexual touching and innocent tainting of the complainants' evidence, thereby rendering it unreliable. Noting the absence of trial transcripts, the bail judge found the first proposed ground did not pass the "not frivolous" threshold. However, the ground based on innocent collusion and tainting, as it related to the reliability of the complainant's evidence, was not frivolous.

[6] On the third factor – that detention is not necessary in the public interest – the bail judge referred to the decision of the Supreme Court of Canada in R. v. Oland, 2017 SCC 17, 347 C.C.C. (3d) 257. The applicant had demonstrated that he was not a risk to public safety. The real issue was whether he had established that his detention was not necessary to maintain public confidence in the administration of justice. This, in turn, required a balancing of the public interest in reviewability against the public interest in enforceability. In accordance with the framework set out in Oland, at paras. 31-36, the bail judge then turned to a consideration of the four factors in s. 515(10)(c) of the Code, as adapted to the appellate context. [2]

[7] The bail judge rejected the applicant's submission that in the circumstances of this case, it was sufficient to merely meet a "not frivolous" standard when assessing the apparent strengths of the grounds of appeal. She found that, given the serious nature of the offences, a more probing inquiry into the merits of the appeal was required. Referring to Oland, at para. 44, she stated that the grounds of appeal in this case must "clearly surpass the minimal standard required to meet the 'not frivolous' criterion".

[8] The bail judge found that the innocent collusion ground did not meet this standard because it would depend on a successful challenge of the trial judge's weighing and assessment of the evidence. She was of the opinion that this would be a difficult ground of appeal, given the trial judge's detailed and thorough review of the evidence and careful findings of fact.

[9] Addressing the applicant's submission that he would have served most of his sentence before the appeal was heard, the bail judge noted that the submission was based on the premise that he would be granted parole after serving a third of his sentence, something that was not a certainty.

[10] Accordingly, the bail judge found that the applicant had not established that his detention was not necessary in the public interest. The public interest in immediate enforceability outweighed the public interest in reviewability. She indicated that she would be prepared to consider a motion to expedite the appeal, if requested.

R. v. Oland

[11] In Oland, the Supreme Court provided guidance concerning the public confidence factor. Moldaver J. noted, at para. 29, that this factor will "rarely" play a role in the decision to grant or deny bail. An analysis of the merits, beyond the "not frivolous" threshold, will not be required unless the case is likely to raise a concern about public confidence. Where that concern exists, however, a more pointed analysis of the strength of an appeal will be required for the purpose of assessing the reviewability interest. He observed, at paras. 44-45:

In conducting a more pointed assessment of the strength of an appeal, appellate judges will examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record. For purposes of this assessment, they will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the "not frivolous" criterion. In my view, categories and grading schemes should be avoided. Phrases such as "a prospect of success", "a moderate prospect of success", or "a realistic prospect of success" are generally not helpful. Often, they amount to little more than wordsmithing. Worse yet, they are liable to devolve into a set of complex rules that appellate judges will be obliged to apply in assessing the category into which a particular appeal falls.

In the end, appellate judges can be counted on to form their own "preliminary assessment" of the strength of an appeal based upon their knowledge and experience. This assessment, it should be emphasized, is not a matter of guesswork. It will generally be based on material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, along with relevant authorities. In undertaking this exercise, appellate judges will of course remain mindful that our justice system is not infallible and that a meaningful review process is essential to maintain public confidence in the administration of justice. Thus, there is a broader public interest in reviewability that transcends an individual's interest in any given case.

[12] Moldaver J. also held, at para. 48, that in the final balancing of the factors informing public confidence, appellate judges should be mindful of the anticipated delay in deciding an appeal, noting that where all or a significant portion of the sentence will be served before the appeal can be decided, "bail takes on greater significance if the reviewability interest is to remain meaningful."

[13] Finally, Moldaver J. gave guidance to panels of appellate court judges reviewing decisions of single judges on bail, and to chief justices in deciding whether to direct a panel review. As to the former, he observed, at paras. 61-62:

Ultimately, in my view, a panel reviewing a decision of a single judge under s. 680(1) should be guided by the following three principles. First, absent palpable and overriding error, the review panel must show deference to the judge's findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.

This approach allows for meaningful review while extending a measure of deference to the judge's decision.

[14] He addressed the responsibility of the Chief Justice, at para. 64:

The test, as I see it, should be relatively straightforward in its application. It flows from the principles the panel is required to apply when conducting a review. In short, the chief justice should consider directing a review where it is arguable that the judge committed material errors of fact or law in arriving at the impugned decision, or that the impugned decision was clearly unwarranted in the circumstances.

[15] With this background, I turn to the submissions of counsel.

Applicant's Submissions

[16] The applicant argues that the bail judge erred in law by misapplying the Supreme Court's decision in Oland. In particular, he argues that the bail judge adopted an overly expansive reading of the "public confidence" test and permitted the apparently weak merits of the appeal to overwhelm the balance of the analysis. He also asserts that the bail judge's decision was "clearly unwarranted", in the sense used in Oland.

[17] The applicant submits that the Supreme Court in Oland instructed courts to adopt a restrained approach to the public confidence ground; it will only merit consideration where the offence is especially serious, and therefore will rarely play an important role in the decision to grant or deny bail pending appeal. He suggests that someone who is convicted of an offence that is not at the high end of the spectrum, who is an excellent candidate for bail, has an appeal that is not frivolous, and is subject to a sentence that will largely be served before the appeal can be decided, should as a general rule be granted bail pending appeal unless there is something about the case that raises genuine public confidence concerns. The applicant submits that nothing about this case other than the nature of the offences, sexual abuse of children, could justify invoking the public confidence ground. The sentence imposed in this case is below the sentencing range for this type of offence. If the bail judge is correct, the applicant says, any offence of sexual abuse in relation to children would engage the public confidence ground.

[18] The applicant also contends that the bail judge erred in giving too much weight to the perceived weakness of the appeal in her assessment of the public confidence ground and, in particular, that she placed too much emphasis on the lack of trial transcripts. She should have followed the approach in R. v. Badgerow, 2017 ONCA 670, by focusing on the broader context of the case, rather than delving into a detailed analysis of the proposed grounds of appeal. The applicant points to what he suggests are inconsistencies between the bail judge's decision and Badgerow in submitting that a panel review would provide needed clarification and guidance on the public confidence ground post-Oland.

[19] The applicant also argues that the bail judge erred by dismissing concerns that he will have served a significant amount of his sentence by the time his appeal is decided on the basis that he may not be granted parole. By any measure, he will have inevitably served at least a large part of his custodial sentence before his appeal can be decided. Under Oland, this factor should weigh heavily in the balance of enforceability and reviewability.

[20] Finally, the applicant argues that his detention was unwarranted in the circumstances. He acknowledges that the phrase "clearly unwarranted" in Oland indicates that a degree of deference is owed to the determination of the bail judge, but argues that this deference is not unlimited.

Respondent's Submissions

[21] The respondent submits that the bail judge made no factual or legal errors that would justify directing a panel to review her decision, nor was her decision unwarranted. She applied the test from Oland correctly and this application should be denied.

[22] The bail judge did not err in finding that the offences in this case were serious. She considered the factors set out in Oland and noted that the applicant sexually abused his daughters over a period of years when they were young and particularly vulnerable.

[23] The bail judge then applied the correct test from Oland after deciding that the offences were serious enough to warrant a more probing inquiry into the merits of the appeal. She did not err in finding that the merits of this case were far from strong. The grounds of appeal in this case do not clearly surpass the not frivolous threshold because they depend on a successful challenge of the trial judge's assessment and weighing of the evidence.

[24] The respondent further argues that the bail judge did not err in concluding that it was far from certain that the applicant would get parole, particularly in light of the trial judge's conclusion that he lacked remorse.

Analysis

[25] The question before me, then, is whether it is arguable that the bail judge committed material errors of fact or law in arriving at her decision, or whether her decision was "clearly unwarranted".

[26] The applicant has not identified any material error of fact or law. In determining whether the offences were serious, the bail judge applied the factors set out in Oland. She identified aggravating factors, including: the frequency and long-term nature of the assaults; the vulnerability of the young victims; and the egregious breach of trust by a parent. The bail judge's assessment of the seriousness of the offences is consistent with the trial judge's conclusions and does not reflect an error.

[27] As the respondent notes, there are several decisions of this court, both before and after Oland, in which bail was denied in cases of sexual offences against children, which were described as "serious": see R. v. R.B., 2014 ONCA 772; R. v. H.B. (13 February 2015), C59960/M44723 (Ont. C.A.); R. v. V.J. (16 September 2016), C62416/M46931 (Ont. C.A.); R. v. A.Z. (4 May 2017), C63647/M47771.

[28] As well, the applicant has identified no error of fact or law in the bail judge's conclusion that the merits of the appeal did not surpass the "not frivolous" standard. As the respondent points out, the defence at trial appears to have been based on the assertion that the complainants deliberately invented false allegations against their father to punish him for past acts of violence or other parental misconduct.

[29] In the absence of transcripts or some other evidence as to what was at issue at trial, it is not apparent that the theory of innocent collusion was put forward by the defence. If it was not advanced at trial, it would be difficult to fault the trial judge for failing to address this theory in his reasons. In any event, the trial judge addressed the circumstances in which the abuse came to light and found that the complainants had not colluded at all, for any reason.

[30] I would add that I do not see that the absence of a trial transcript should curtail the scope of the merits factor, as submitted by the applicant. As Moldaver J. noted in Oland, at paras. 44-45, the assessment of the strength of an appeal must be based on the materials in the record. Where necessary, this can be provided through an affidavit of trial counsel, setting out the pertinent evidence and the submissions at trial. Alternatively, digital recordings of the evidence and submissions can be obtained in a fraction of the time and cost of obtaining transcripts.

[31] Based on the record that existed before her, I can see no arguable error of fact or law in the bail judge's conclusions on the merits of the appeal.

[32] Nor has the applicant demonstrated an arguable error in the bail judge's conclusions as to the likelihood of parole, a finding that is entitled to deference.

[33] I turn to the issue of whether the bail judge's decision was clearly unwarranted. I agree with the observation of Slatter J.A. in R. v. Beairsto, 2017 ABCA 254, at para. 5:

It is worth noting that the "clearly unwarranted" standard of review mentioned in Oland is not engaged just because one judge, or one panel of judges, might have come to a different conclusion than some other judge or panel. "Clearly unwarranted" is more closely analogous to finding that the decision to be reviewed is so contrary to the facts and the law that no reasonable judge could have made it. The standard of "clearly unwarranted" is not an invitation for the applicant to simply reargue the initial application for release, in the hope that a different result might emerge from a different balancing of the relevant factors: R. v St-Cloud, 2015 SCC 27, at paras. 117-9, [2015] 2 SCR 328.

[34] While different judges might have come to a different decision on the facts of this case, that is the very essence of judicial discretion. I cannot say that the decision here was "clearly unwarranted".

[35] In my view, the bail judge's decision is not inconsistent with Badgerow, a case that counsel concedes is one of a kind. Nor do I see the need to refer this matter to a panel for the purpose of clarifying the approach to Oland.

[36] For these reasons, the application is dismissed.

"G.R. Strathy C.J.O."

Footnotes

[1] Conditional stays of proceedings were entered on the sexual assault counts, pursuant to the rule against multiple convictions.

[2] The bail judge characterized them, for appellate purposes, as: (i) the apparent strength of the grounds of appeal; (ii) the gravity of the offences; (iii) the circumstances surrounding the commission of the offences; and (iv) the fact that the appellant has been sentenced to a potentially lengthy term of imprisonment.