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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

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 Information

Court of Appeal for Ontario

Date: 2019-11-04

Docket: M50723 (C67303)

Motion Judge: Lauwers J.A.

Parties

Between

Her Majesty the Queen Respondent (Respondent)

and

M.S. Appellant (Applicant)

Counsel

For the Applicant: James Lockyer

For the Respondent: Kevin Rawluk

Hearing

Heard: September 19, 2019

Reasons for Decision

Introduction

[1] The applicant was convicted of assault (x4), assault with a weapon (x4), choking (x2), sexual assault (x2), and assault causing bodily harm, after a jury trial. He was sentenced to nine-years' imprisonment.

[2] He seeks judicial interim release pending conviction appeal.

A. The Governing Principles

[3] For bail pending 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: that the appeal or application for leave to appeal is not frivolous; that he will surrender himself into custody in accordance with the terms of the order; and that his detention is not necessary in the public interest.

[4] The Crown submits that the applicant should remain incarcerated on the ground that his detention is necessary in the public interest on the basis of public safety and public confidence in the administration of justice.

[5] As the Supreme Court observed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element must be tested under the framework set by this court in R. v. Farinacci (1993), 86 C.C.C. (3d) 32, [1993] O.J. No. 2627, per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability. As Arbour J.A. said in Farinacci, 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.

[6] In Oland, Moldaver J. reflected on Farinacci and added analytical details. He noted, at para. 31, that an appeal judge considering an application for bail pending appeal should consider the factors stipulated for bail pending trial by s. 515(10)(c) of the Criminal Code, with necessary modifications to account for the fact that the presumption of innocence has been displaced by the conviction. The onus of establishing that the applicant should not be detained in custody is reversed and placed on the applicant: at para. 35. The factors to be considered are: the apparent strength of the prosecution's case; the gravity of the offence; the circumstances surrounding the commission of the offence; and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.

[7] Moldaver J. also considered the enforceability and reviewability interests and explained how, with appropriate modifications, the public confidence factors listed in s. 515(10)(c) are to be taken into account by the appeal judge in identifying the factors that make up the public confidence component in s. 679(3)(c).

[8] First, he noted, at para. 37: "In considering the public confidence component under s. 679(3)(c), I see no reason why the seriousness of the crime for which a person has been convicted should not play an equal role in assessing the enforceability interest." He added, at para. 38, that the appeal judge should have regard to the sentencing judge's reasons, and not repeat that evaluation afresh.

[9] Second, Moldaver J. considered the "reviewability interest," which he identified, at para. 40, as "the strength of the prosecution's case (s. 515(10)(c)(i))." This "translates into the strength of the grounds of appeal … [and] in assessing the reviewability interest, the strength of an appeal plays a central role." Specifically, Moldaver J. endorsed the view expressed by my colleague Trotter J.A. in his article entitled, "Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion" (2001), 45 C.R. (5th) 267 at 270, where he explained:

[R]ealistically, most cases do not raise strong claims regarding the public interest, at least not beyond the general concern that all criminal judgments ought to be enforced.... However, when an offence is serious, as with murder cases, such that public concern about enforceability is ignited, there should be a more probing inquiry into the chances of success on appeal. It is in this context that the balancing required by Farinacci requires some assessment of the merits, separate from the question of whether the appeal is frivolous or not. [Footnotes omitted.]

[10] Moldaver J. added, at para. 44 of Oland, that:

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.

[11] Having assessed the enforceability and reviewability factors, the appeal judge is required to balance them, keeping "in mind that public confidence is to be measured through the eyes of a reasonable member of the public": at para. 47. Moldaver J. added: "This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values." There is no precise formula, but a "qualitative and contextual assessment is required": at para. 49. However, he observed, at para. 50: "where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak."

B. The Principles Applied

[12] As outlined above, 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 he will surrender himself into custody in accordance with the terms of the order; and that his detention is not necessary in the public interest.

(1) Not Frivolous

[13] The applicant raises several grounds of appeal. The primary ground of appeal, elaborated upon by defence counsel at the oral argument of this application, is that the trial judge failed to instruct the jury on the use of cross-count similar fact evidence. Although the trial judge did provide some guidance when answering a question from the jury concerning two of the counts, the applicant's counsel submits that the direction was wholly insufficient, as it was limited to only a pair of charges and still allowed the jury to engage in propensity reasoning since there were multiple counts and multiple complainants. The other grounds of appeal relate to other purported problems with the jury charge and the decision to permit video evidence of two witnesses to be sent to the jury room.

[14] The not frivolous test "is widely recognized as being a very low bar": Oland, at para. 20. I am satisfied that the appeal is not frivolous.

(2) Surrender into Custody in Accordance with the Terms of the Order

[15] Before his conviction, the applicant had been on bail for several years. Compliance was not an issue. The applicant identified his mother and brother as prospective sureties. If he is granted bail pending appeal, the applicant proposes that he live with his brother, who was his surety while he was on bail pending trial.

[16] I am satisfied that the applicant will surrender into custody in accordance with the terms of his release.

(3) The Public Interest

[17] Under s. 679(3)(c), there are two components to consider: public safety and confidence in the administration of justice.

(a) Public Safety

[18] The Crown opposes release on the ground of public safety. Crown counsel places significant weight on the trial judge's revocation of bail immediately upon conviction. The trial judge found that the convictions constituted a material change that created a substantial risk of harm to the victims of the offences. She also found that, given the severity of the offences, revocation of bail was necessary to maintain confidence in the administration of justice. On public safety alone, the Crown submits that continued detention would be justified.

[19] While the offences are undoubtedly serious, I find the public safety concern to be slight, but not negligible. There might have been a material change post-conviction that increases the concern, as the trial judge reasoned. However, as he did in complying with his pre-trial bail, the applicant has a strong incentive to abide by the terms of any release, given the appeal.

[20] I am satisfied that the applicant has demonstrated on a balance of probabilities that he is not a public safety threat and will not likely commit further offences if released on bail pending his appeal.

(b) Public Confidence in the Administration of Justice

[21] As discussed above, consideration of the public confidence component involves striking the balance between enforceability and reviewability.

Enforceability

[22] With respect to enforceability, "[p]ublic confidence in the administration of justice requires that judgments are enforced": Farinacci, at para. 42. In this case, there are several factors that weigh heavily in favour of enforceability and against the release of the applicant. As noted in Oland, the seriousness of the crime figures in the assessment of the enforceability interest.

[23] The applicant was convicted, on multiple counts, of violently assaulting members of his family. At sentencing, the trial judge, at para. 51, found that "the offences were serious and warrant significant sentences at the upper ends of the ranges." The trial judge ultimately sentenced the applicant to a nine-year prison sentence, with the sentences allocated as follows:

Count	Charge	Victim	Date	Conviction	Sentence
1	Assault	Child One	October 28, 2008	Yes	9 months
2	Assault with a weapon	Child Two	June 1, 2011 – June 1, 2013	Yes	9 months
3	Assault with a weapon	Child One	June 1, 2011 – June 1, 2013	Yes	9 months
4	Assault with a weapon	Child Two	June 1, 2013 – Sept. 30, 2015	Yes	9 months
5	Assault	Child One	Aug. 1, 2015 – Nov. 1, 2015	Yes	6 months
6	Assault	Spouse	Jan. 1, 2000 – July 11, 2002	Yes	20 months (concurrent with count 7)
7	Choking	Spouse	Jan. 1, 2000 – July 11, 2002	Yes	20 months (concurrent with count 6)
8	Assault	Spouse	June 1, 2010 – Aug. 31, 2010	Yes	20 months (concurrent with count 9)
9	Choking	Spouse	June 1, 2010 – Aug. 31, 2010	Yes	20 months (concurrent with count 8)
10	Assault	Spouse	Oct. 1, 2012 – June 1, 2013	No	N/A
11	Sexual Assault	Spouse	Oct. 1, 2012 – June 1, 2013	Yes	—
12	Assault causing bodily harm	Spouse	Aug. 1, 2015 – Nov. 1, 2015	Yes	26 months (concurrent with count 13)
13	Sexual Assault	Spouse	Aug. 1, 2015 – Nov. 1, 2015	Yes	26 months (concurrent with count 12)

[24] The trial judge does not seem to sentence the applicant on the conviction for count 11, unaccountably. There were 13 counts, and 12 convictions. However, there are only 11 counts referred to in the sentencing. I believe the applicant was ultimately convicted of two counts of sexual assault, as noted on the indictment.

[25] The trial judge pointed out numerous aggravating factors, including the applicant's use of sexual violence "as a means of punishment and control" and that "the emotional and psychological impacts on all of the victims of the assaults has been devastating": at para. 32. The graphic description of the applicant's degrading and violent assaults on his spouse are set out in paras 21, 59 and 60 of the sentencing reasons, which bears repeating:

The assaults, beatings, choking and sexual assaults of [his spouse] and the assaults and assaults with a weapon against the children increased when [the applicant] had [his spouse] and their children move in with him … and continued to escalate when they moved into the basement of his mother's home. The beatings were brutal and left physical marks and emotional scars, the latter of which have not healed. Indeed, as regards the last sexual assault against [his spouse], which was the most egregious, [the applicant] brutalized [his spouse] for over an hour, anally raping her, choking her to unconsciousness several times, kicking, closed fist punches and pummeling her, leaving her with what she believed were cracked ribs, bruising and an inability to get out of bed for several days. The beatings were overheard by the three children, and [one child] witnessed her mother's injuries in the middle of these assaults and testified as regards what she witnessed. It was this last beating that propelled [his spouse] to overcome her significant fear of leaving and taking her children, and which propelled her to flee the home at night when [the applicant] went out for a haircut. Her fear had been born of the fact that [the applicant] had told her more than once that if she ever left and took the children with her, he would kill her. She believed that he was capable of and would do that.

The final counts of assault causing bodily harm and sexual assault were in the context of a particularly brutal beating, which lasted over an hour. The beating consisted of punching, kicking, choking to unconsciousness (for which no charge was laid) and anal sex, used as punishment. [The applicant's spouse] was bedridden for days thereafter and testified that it was difficult to move. She felt as though ribs had been cracked and she had difficulty getting up without assistance to go to the bathroom. She testified that she had never been previously experienced such a prolonged and brutal beating.

It was after this last beating that [his spouse's] resolve to flee the home with her children was solidified, despite being told by [the applicant] on numerous occasions that if she ever did take the children, he would kill her.

[26] The enforceability interests weigh heavily against release. The offences were very serious, there were numerous aggravating factors, and the applicant was sentenced to a lengthy term of imprisonment.

Reviewability

[27] As Oland notes, "in assessing the reviewability interest, the strength of an appeal plays a central role": at para. 40. A preliminary assessment of the strength of the appeal reveals that, while the grounds of appeal are arguable, in my view they do not "clearly surpass the minimal standard required to meet the 'not frivolous' criterion" (emphasis added): Oland, at para. 44.

The Strength of the Appeal

[28] Counsel for the applicant focused on the lack of a cross-count similar fact evidence instruction. I note that the Crown did not apply to use evidence across counts as similar fact evidence. Defence counsel did not seek an instruction in the jury charge and did not object to its absence after the charge was delivered. The issue appeared to occur to counsel only when the jury question arrived and was not pressed.

[29] After the charge and during deliberations, the jury sent the following question to the trial judge:

We are looking for clarification on courts six and seven. The charges have the same date range between January 1, 2000 and January 1, 2002. We have heard in evidence that [the applicant's spouse] and [child one] moved … in 2001. The charge is also specific to [a specific address]. Can we consider evidence that exists outside of the [specific address] but inside the date range? Are the two exclusive or linked? Are dates and addresses of no material value and we are simply to focus on evidence within the general time and location specified.

[30] In the absence of the jury, the applicant's trial counsel noted that "there's something kind of in that question that's a little concerning, cause obviously there's no similar fact application between counts." The trial judge proposed that the she emphasize that the jury is "to focus on all the evidence related to that incident." Crown counsel and defence counsel agreed.

[31] The jury was brought in and the trial judge answered the jury's question, emphasizing that the jury was to consider: "All of the evidence that there may be related to those, to that one incident". The jury retired but were brought back shortly thereafter so that the judge could further emphasize that the dates and addresses are "not material in the sense that you don't have to worry about whether those things were proven or not."

[32] Before the jury retired again, the jury foreperson sought further clarification: "The question from the Jury is whether or not we are supposed to focus on the evidence in totality only in relation to [the applicant's] and [his spouse's] testimony on an event, or whether we are looking at the totality of the full date range of that charge." The trial judge asked the jury to put the question in writing. After the jury retired, defence counsel again expressed concerns about a similar fact instruction. The trial judge agreed to give a similar fact instruction.

[33] While awaiting the jury's written question, it subsequently came to the trial judge's attention that the jury resolved their own question and decided to go on. The trial judge decided to bring the jury back and deliver a charge relating to cross-count evidence and propensity reasoning. Crown counsel and defence counsel agreed.

[34] The trial judge directed the jury with respect to the two particular counts, a count of assault and a count of choking, which arose out of the same transaction. The trial judge stated:

And I will tell you that as regard count six and seven, the evidence to be considered is only the evidence related to the event, or the incident in question which was that incident about the interrogation and [the applicant] coming across the room and choking and hitting [his spouse]…. So, and we just wanted to, I would like to emphasize no other evidence outside the evidence related to that incident is to be considered, and no evidence say for instance which may suggest that [the applicant] may have been more likely to commit the offence related to the incident I've just described again, is to be considered.

[35] The trial judge made no effort to generalize this to any other charges. The applicant was ultimately sentenced to a concurrent sentence of one year eight months for these two counts.

[36] Counsel for the applicant relies heavily on this court's decision in R. v. M.(B.), 42 O.R. (3d) 1, [1998] O.J. No. 4359 (C.A.), in which the accused was charged with a multiple count indictment of sexual offences relating to nine people, including his four daughters, an ex-wife, two other relations, a babysitter, a family friend, and two dogs. This court allowed the appeal, holding that the trial judge erred by failing to clearly explain that the jury could not use evidence of all the counts to prove any single count and by failing to provide a limiting instruction to guard against improper propensity reasoning regardless of the admissibility of similar fact evidence: at paras. 41-43.

[37] I acknowledge that there are cases taking a similar view of the gravity of a faulty jury instruction on this issue: R. v. B.(F.F.), [1993] 1 S.C.R. 697; R. v. N.(R.K.), 32 O.R. (3d) 537; and R. v. Tsigirlash, 2019 ONCA 650, 157 W.C.B. (2d) 46.

[38] However, I am of the view that there are material distinctions between the circumstances in M.(B.) and the circumstances of the applicant. It is not the law that every failure to instruct a jury against propensity reasoning automatically results in a reversal of the conviction. In R. v. N.P.C., 2007 ONCA 457, 86 O.R. (3d) 571, at para. 23, leave to appeal refused, [2008] S.C.C.A. No. 144, Gillese J.A. observed: "It is unlikely that the jury would infer that because the appellant physically abused his wife, he also sexually assaulted his stepdaughters – a completely different type of wrongdoing." In R. v. Sandhu, 2009 ONCA 102, 242 C.C.C. (3d) 262, at para. 14, Laskin J.A. distinguished M.(B.), noting that it involved multiple offences against multiple victims and evidence of discreditable conduct outside the scope of the indictment. M.(B.) might similarly have limited application to a case where the most serious charges relate to one victim and there is no material evidence outside the scope of the indictment.

[39] The possibility of propensity reasoning by the jury was present in this multiple count, multiple complainant case. But it is not clear that a jury would infer that a father who disciplined his children excessively would be more likely to rape his spouse.

[40] I turn to the factors to be considered. I see the Crown's side in this appeal as strong, and the applicant's appeal weak. The gravity of the most vile and violent crimes cannot be overstated, in the circumstances surrounding their commission. The applicant has been sentenced to a lengthy term of imprisonment.

[41] As noted by Arbour J.A. in Farinacci, at para. 43, "entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes." Ultimately, although the reviewability interest still weighs in favour of release, the applicant's conviction on two serious counts where the jury was charged about the impropriety of propensity reasoning and cross-count similar fact evidence mitigates the strength of the reviewability interest.

[42] I am mindful that it is relatively rare for a bail pending appeal application to be resolved based on public confidence considerations. That said, this is one of the "difficult cases … in which the public confidence component is raised": Oland, at para. 30. The interest in enforceability is very strong. The interest in reviewability is not. As my colleague, Fairburn J.A., concluded in R. v. Iraheta, 2018 ONCA 229, 145 W.C.B. (2d) 282, at para. 21: "Although the grounds of appeal are not frivolous, there is nothing that currently suggests that, pending his appeal, the appellant is at risk of continuing to serve a sentence that he will not have to serve one day." In my view, this conclusion aptly applies to the circumstances of the applicant.

[43] The balance of the competing interests of enforceability and reviewability in this case come down in favour of enforceability. I have no hesitation in saying that a reasonable member of the public, informed of the egregious circumstances, would lose confidence in the administration of justice if the applicant were released pending appeal.

Disposition

[44] I find that the detention of the applicant is necessary in the public interest and dismiss the application for bail pending appeal. Pursuant to s. 679(10) of the Criminal Code, I order that the appeal be expedited.

P. Lauwers J.A.