WARNING

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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); 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.

(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: 20201103

DOCKET: M51838 (C68686)

Zarnett J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

D.G.

Applicant (Appellant)

Joshua A. Clarke, for the applicant

Rebecca De Filippis, for the respondent

Heard: October 23, 2020 by video conference

REASONS FOR DECISION

Introduction

[1] The applicant was convicted, after a trial by judge alone, of committing the offences of indecent assault, sexual assault, and buggery, contrary to ss. 156, 246.1 and 155, respectively, of the Criminal Code R.S.C. 1985, c. C-46. The complainant was, at the time of the offences, a child who had been placed in the foster care of the applicant’s family.

[2] The trial judge sentenced the applicant to a total sentence of seven years imprisonment, in addition to making certain ancillary orders. In imposing sentence, the trial judge noted that the applicant had stood in a position of trust in relation to the complainant and “used his position as an adult role model and older ‘brother’ to prey on [the complainant], a vulnerable child, for his own sexual gratification” and that he “sexually assaulted [the complainant] for a lengthy period of time, at a minimum at least four to five years”.

[3] The applicant has appealed his conviction, and applies for bail pending appeal.

[4] In order to be granted bail pending appeal, the applicant must establish, under s. 679 (3) of the Criminal Code, that:

(a) the appeal … is not frivolous

(b) he will surrender himself into custody in accordance with the terms of the order; and

(c) his detention is not necessary in the public interest.

[5] For the reasons that follow, I dismiss the application. The applicant has failed to establish that his detention is not necessary in the public interest.

The Parties’ Positions

[6] The applicant argues that he meets all three criteria for bail pending appeal. He submits that his appeal is “not frivolous”, he is not a flight risk, and there are no public safety concerns. He has no other criminal record; the offences of which he was convicted were found to have taken place between 1974 and 1983. He was out of custody from the time he was arrested in April 2018 through to the time he was sentenced on October 9, 2020, without incident. He submits that his detention pending appeal is not necessary in the public interest.

[7] The respondent concedes that some of the grounds of appeal pass the not frivolous standard, but only barely, and that the applicant would surrender into custody as required. The respondent opposes bail pending appeal on the basis that the applicant has failed to show that his detention is not necessary in the public interest. The offences are serious and he has received a significant custodial sentence. There is a strong public interest in the immediate enforceability of the judgment. It outweighs the reviewability interest, since the grounds of appeal are weak and do not “clearly surpass” the not frivolous standard.

Analysis

Public Confidence in the Administration of Justice

[8] Whether the applicant has established that his detention is not necessary in the public interest generally turns on two considerations, public safety and public confidence in the administration of justice. In this case, the pivotal consideration is public confidence in the administration of justice:[^1] R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23, 26.

[9] Public confidence in the administration of justice involves balancing two components: the public interest in reviewability of judgments and the public interest in their enforceability. Factors to be considered are the strength of the grounds of appeal, the seriousness of the offences, the circumstances of their commission, and the period of imprisonment that has been imposed: Oland, at paras. 24-25, 31-39.

[10] The offences of which the applicant was convicted—repeated sexual violence over a lengthy period of time committed against a vulnerable child in respect of whom the applicant stood in a position of trust—are very serious offences, committed under aggravated circumstances, for which he has been sentenced to a lengthy period of incarceration. As the trial judge found in sentencing the applicant: “This is a case of significant sexual abuse. This case is filled with horrendous facts surrounding the repeated sexual abuse that [the complainant] suffered at the hands of [the applicant] over a number of years”. These are all factors which weigh in the direction of immediate enforceability of the judgment.

[11] The weight to be given to the reviewability interest is related to the strength of the grounds of appeal. In argument, counsel for the applicant maintained that the grounds of appeal meet the not frivolous threshold and their strength did not have to be considered beyond that. In his submission the fact that the grounds are not frivolous sufficiently engages the reviewability interest such that, when combined with the absence of public safety and flight risk concerns, the conclusion must be that the interest in immediate enforceability should not predominate. With respect, I do not agree that it is sufficient that the grounds not be frivolous, in light of the serious nature of the offences.

[12] This court has recognized that offences with characteristics analogous to those present here are aptly described, for the purpose of bail pending appeal, as very serious, and that this necessitates, on the issue of public confidence in the administration of justice, a more probing inquiry into the merits of the appeal: R. v. A.Z. (4 May 2017), C63647/M47771, at paras. 1, 11-12; R. v. K.M. (21 August 2017), C64129/M48169, at paras. 1, 23.

[13] This approach flows directly from Oland. There, the court held, on the question of public confidence in the administration of justice, and the necessary weighing of enforceability and reviewability, that where the offences are of a serious nature the grounds of appeal must be considered beyond determining that they are “not frivolous”, an initial hurdle which is a “very low bar”: at paras. 20, 41. In other words, even if the grounds of appeal pass the not frivolous hurdle, they must be subjected to a “more pointed assessment” of their “general legal plausibility and their foundation in the record. … to see if the grounds of appeal clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland, at para. 44 [Emphasis added.]; see also paras. 40-43.

The Strength of the Grounds of Appeal

[14] The applicant advances five grounds of appeal. In my view, the grounds of appeal are weak. They do not clearly surpass the not frivolous standard.

[15] The trial judge convicted the applicant on the basis of factual findings for which she gave detailed reasons. For the most part the applicant’s grounds of appeal challenge factual findings on which a trial judge is afforded deference on appeal.

[16] The applicant’s first ground of appeal concerns how the trial judge dealt with evidence about whether the complainant had a financial motive to fabricate his complaint against the applicant. The complainant denied a financial motive. The trial judge found that the complainant was probably motivated by a desire to obtain closure and financial compensation when he reported to the Criminal Injuries Compensation Board (the “Board”). She also found that there was no evidence that the complainant went to the police due to any financial motivation. The applicant argues that the trial judge failed to explain how the denial of any financial motivation, and her finding of a probable motivation for his Board reporting, affected the complainant’s credibility.

[17] The problem with this ground of appeal is that trial judge expressly considered whether the evidence about financial motivation, and her findings about the presence or absence of financial motivation, affected the complainant’s credibility. She found that it did not, and gave reasons for her conclusion. Given the trial judge’s careful attention to this evidence, and the broad deference afforded to a trial judge in making evidentiary and credibility assessments, I do not consider that this ground of appeal rises above the not frivolous standard.

[18] The applicant’s second ground of appeal is that the trial judge applied uneven scrutiny to the Crown evidence and the defence evidence; that she dismissed impeachments of Crown witnesses as minor but made adverse credibility findings against the applicant based on irrelevant evidence from the defence. As an example, the applicant submits that the trial judge gave harsh treatment to the applicant’s evidence about whether he had ever left his house, over an approximate 30 year period, without his wife, as compared to her more lenient treatment of an inconsistency in the evidence of the complainant’s mother-in-law about her knowledge of the complainant’s claim to the Board.

[19] Uneven scrutiny is generally a difficult ground of appeal on which to succeed. The trial judge gave numerous and detailed reasons for disbelieving the applicant’s evidence. Her concerns about his evidence that he never left his home without his wife over a thirty-year period were noted, but there is no indication they were given any special weight in her credibility analysis. Similarly, she gave careful and detailed reasons for accepting the evidence of the complainant and other Crown witnesses, including the complainant’s mother-in law, after noting and considering inconsistencies in their evidence and assessing whether they were important, or peripheral. In that regard she considered the inconsistency concerning the complainant’s mother-in-law’s knowledge of his complaint to the Board to be peripheral. Again, given the trial judge’s careful approach to the evidence and the deference accorded on appeal, this ground of appeal does not clearly surpass the not frivolous standard.

[20] The applicant’s third ground of appeal is that the trial judge engaged in inappropriate propensity reasoning arising out of evidence of the applicant having taken naked photos of the complainant and his brother. The trial judge’s reasons do not disclose that she engaged in the propensity reasoning that the applicant suggests. Accordingly, I am not persuaded that this ground of appeal clearly surpasses the not frivolous standard.

[21] The applicant argues that he was denied a “discovery” right because the complainant’s wife would not meet with his counsel prior to trial, and the trial judge erroneously refused to draw an adverse inference from the failure to meet. The complainant’s wife testified at trial. There is no basis in law that is suggested to support an obligation on a witness to meet with defence counsel, or of any requirement to draw an adverse inference from a refusal to meet. This ground of appeal does not clearly surpass the not frivolous standard.

[22] Finally, the applicant argues that the trial judge’s reasons are insufficient with respect to her assessment of the complainant’s credibility because she did not consider how his delay in reporting the offences impacted his credibility. The trial judge referred to the principle that a delay in reporting, standing alone, will never give rise to an adverse inference against the credibility of the complainant, and the applicant does not challenge the correctness of that principle. The trial judge considered the defence theory that the complainant had come forward with a complaint that was a recent, financially motivated, fabrication, and it is clear from her reasons that she rejected that theory. This ground of appeal does not surpass the not frivolous standard.

The Final Balancing

[23] The enforceability interest in this case is high, commensurate with the gravity of the offences and the circumstances of their commission: Oland, at paras. 37-38.

[24] On the other hand, while this case does engage the interest in reviewability, given that the grounds of appeal are not frivolous, the grounds of appeal do not clearly surpass the not frivolous standard.

[25] The enforceability interest must be balanced with the reviewability interest. The factors that inform public confidence in the administration of justice, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risk must be measured through the eyes of a reasonable member of the public, who is “informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, at para. 47.

[26] In Oland, the Supreme Court rejected “a categorical approach to murder or other serious offences”: at para. 49. It noted that “where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the ‘not frivolous’ criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences”: at para. 51 [Emphasis added.].

[27] Here, the grounds of appeal are weak; they do not clearly surpass the not frivolous standard. It is unlikely that the applicant will have fully served his sentence before the appeal is heard. A reasonable member of the public would conclude that the interest in the immediate enforcement of the applicant’s lengthy sentence, imposed for serious offences, outweighs the interest in releasing him pending an appeal of his conviction on weak grounds, notwithstanding the absence of flight risk and public safety concerns. Accordingly, the applicant has not met his onus of demonstrating that his detention is not necessary in the public interest: R. v. Ruthowsky, 2018 ONCA 552, at paras. 4, 47.

Conclusion

[28] The application is dismissed.

“B. Zarnett J.A.”

[^1]: The respondent does not advance public safety concerns.