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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. T.S.D., 2020 ONCA 773

DATE: 20201203

DOCKET: M51923 (C68717)

Jamal J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

T.S.D.

Applicant

Jonathan Shulman, for the applicant

Jennifer Trehearne, for the respondent

Heard: November 13, 2020 by video conference, with supplemental submissions in writing

REASONS FOR DECISION

A. introduction

[1] The applicant pleaded guilty to sexual assault and distributing intimate images without consent. He and another male had videotaped each other sexually assaulting the complainant at a house party while she was unconscious. The applicant then circulated the video on a group chat on Snapchat. The applicant was sentenced to 18 months’ imprisonment followed by two years’ probation and various ancillary orders.

[2] The applicant now applies for bail pending his conviction and sentence appeal. He alleges that his guilty plea was not informed and claims ineffective assistance of counsel.

[3] For the reasons that follow, the application is dismissed.

B. background

(a) The sexual assault

[4] On May 19, 2018, the applicant (then aged 19) was at a house party attended by 15 to 20 people at the house of the complainant (then aged 18), whom he knew from high school. Her parents were away. Everyone was drinking, including the complainant. She had also been smoking marijuana. At about 1:40 a.m., she felt intoxicated and dizzy, so she went upstairs, lay on her parents’ bed, and fell asleep, fully clothed in jeans and a T-shirt.

[5] When she awoke, she was naked from the waist down. She had pain in her lower abdomen and was bleeding from her vagina. A friend told her he had received sexual videos of her and some males through a group chat on Snapchat. She did not recall engaging in sexual activity, but remembered seeing the applicant in the bedroom, and thought it must have been he who recorded the videos because she recalled seeing him through the flash of a camera. She also remembered waking up and seeing three or four people in the room laughing. She told them to get out and fell asleep again.

[6] The next day, the complainant reported the sexual assault to the police.

(b) The applicant is arrested and his phone is seized

[7] Two days later, the police arrested the applicant at his apartment. They charged him with gang sexual assault and distributing intimate images without consent.

[8] When the police arrested the applicant, they seized his cellphone incident to arrest and later obtained a warrant to search it. They found the videos on his phone, which showed the applicant penetrating the complainant’s vagina with a brush handle while laughing and another male digitally penetrating the complainant while the applicant filmed. The complainant appeared to be unconscious.

(c) The court appoints counsel for the applicant under s. 486.3 of the Criminal Code

[9] On June 10, 2019, at the Crown’s request, Botham J. of the Ontario Court of Justice appointed counsel for the applicant under s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46, to conduct any cross-examination of the complainant at the applicant’s preliminary inquiry, scheduled for July 8, 2019. The applicant previously had a lawyer but could no longer afford him.

(d) The applicant pleads guilty

[10] On July 8, 2019 — the first day of the applicant’s preliminary inquiry, scheduled before Maxwell J. of the Ontario Court of Justice — the applicant’s counsel asked for the matter to be held down until after a break to explore resolution. It appears from the record before me that by July 6, 2019, the applicant had personally retained her since she later issued an invoice to the applicant himself. On the afternoon of July 8, the applicant’s counsel advised the court that the applicant would plead guilty to the lesser included offence of sexual assault simpliciter (rather than gang sexual assault) and distributing intimate images without consent.

[11] The applicant’s counsel advised Maxwell J. that the applicant’s guilty plea was an informed plea, reached after the applicant had several opportunities to meet with counsel and review the Crown disclosure with her:

So, I can advise Your Honour that this is an informed plea; that Mr. [T.S.D.] has an opportunity, several opportunities to meet with me and review the disclosure. He does understand that in entering a guilty plea today he is giving up his right to a trial and any defences that may be available to him.

He does understand that whatever position on sentence the Crown takes is not going to be the same position as the defence and that ultimately the position on sentence is going to be up to Your Honour. He does understand that these convictions, likely convictions, that will result from his guilty pleas will form part of his criminal record. And he is doing so voluntarily without any pressure from any outside sources. Is all of that correct, Mr. [T.S.D.]?

[T.S.D.]: Yes, ma’am.

[12] Maxwell J. then conducted a plea inquiry to ensure that the applicant was pleading guilty “with full knowledge of what you’re giving up.” The applicant confirmed to the court that he understood that:

• He was pleading guilty to sexual assault and distributing intimate images of someone without her consent, that he had had sexual contact with someone without her consent, and then distributed or allowed to be distributed intimate images of her without her consent;

• The Crown would likely seek an upper reformatory sentence (which was explained to him as in the range of 18 months to two years less a day), though the sentence imposed by the court could he higher;

• The convictions would form part of his criminal record and he would have to register with a sex offender registry and be subject to reporting requirements; and

• There might be other consequences for the applicant, such as immigration consequences, being unable to work in certain fields, or restrictions on travel, all of which he had considered.

[13] The applicant was then arraigned and pleaded guilty. An agreed statement of facts was read into the record, which the applicant admitted was substantially correct. Maxwell J. then found the applicant guilty.

(e) The applicant is sentenced

[14] Sentencing submissions were made on March 3, 2020. The Crown sought a sentence of imprisonment of two years less a day followed by two years’ probation, and various ancillary orders, including a mandatory order for 20 years under the federal Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”), because the Crown had proceeded by indictment: Criminal Code, s. 490.022(3)(b). The applicant’s counsel urged a sentence of 9 to 12 months’ imprisonment, followed by two years’ probation. She noted the applicant would be subject to “a lengthy SOIRA order. Mr. [T.S.D.] likely won’t be able to work in his chosen field [of health and fitness] or face an extremely uphill battle to do so”.

[15] After submissions on sentence, the sentencing was adjourned to April 14, 2020, but did not proceed then because of the pandemic. The applicant was on bail throughout this period.

[16] The court ultimately pronounced sentence on September 22, 2020. The applicant was sentenced to 18 months’ imprisonment, followed by two years’ probation, a weapons prohibition for 10 years, a SOIRA order for 20 years, and a DNA order.

(f) The applicant appeals and applies for bail pending appeal

[17] The applicant is represented by new counsel before this court. His notice of appeal, dated October 16, 2020, asserts that his guilty plea was not informed and alleges ineffective assistance of counsel. His notice of appeal states the following grounds:

1. July 08^th, 2019 Change of election and guilty plea over lunch time break; Incompetency of 486 counsel;

2. The 486 counsel failed to have one judicial pre-trial on behalf of the appellant prior to, or after changing his election.

3. Submission of counsel and Book of authorities were completely absent material for an 18 month sentence. S.486 Counsel was under prepared.

4. S.486 Counsel did not spend time, presenting all mitigating circumstances but rushed through submission.

5. Charter defenses were not presented to the court or the appellant. Moreover, it was not considered a mitigating factor by the [sentencing] judge in her reasoning.

[18] During the oral hearing of this application, applicant’s counsel referred to several documents not filed on the application, some of which the Crown had not seen before. The Crown did not object to applicant’s counsel providing these documents to the court after the hearing. I therefore allowed them to be filed and both parties filed further written submissions on their import.

[19] I should add that the applicant’s current counsel and Crown counsel have been unable to resolve whether or under what conditions Crown counsel should be permitted to speak to the applicant’s former counsel to explore the claim of ineffective assistance of counsel. Applicant’s current counsel also advised that the applicant’s former counsel obtained the applicant’s instructions in writing for the guilty plea, but a copy of those instructions has not been filed because the applicant claims they are privileged and he has been unable to agree with the Crown on how to address this issue.

C. discussion

[20] To obtain bail pending appeal under s. 679(3) of the Criminal Code, the applicant must establish that: (1) the appeal is “not frivolous” (s. 679(3)(a)); (2) he will surrender himself into custody in accordance with the terms of the order (s. 679(3)(b)); and (3) his detention is not necessary in the public interest (s. 679(3)(c)).

[21] Parliament saw fit to place the onus on the applicant for bail pending appeal because the applicant has now been convicted and sentenced, and therefore no longer benefits from the presumption of innocence: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 35.

[22] I will address each of these three elements below.

(1) Has the applicant established the appeal is “not frivolous”?

[23] The first element requires the applicant to establish that the grounds of appeal are “not frivolous”. This is a “very low bar”: Oland, at para. 20. The applicant must establish that “the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established”: R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38.

[24] The purpose of the “not frivolous” threshold is to require the applicant to “demonstrate that the appeal has some merit. If this were not so, the appellate process could be abused by those intent on forestalling the execution of a custodial sentence”: Justice Gary T. Trotter, The Law of Bail in Canada, loose-leaf, 3rd. ed. (Toronto: Thomson Reuters, 2017), at pp. 10-13 (footnote omitted).

[25] The Crown contends the applicant has not established any arguable grounds of appeal. As I explain below, based on the material before me, I agree.

[26] I will first deal with the applicant’s claim that his guilty plea was not informed, and then address his claim of ineffective assistance of counsel.

(i) Is it arguable the guilty plea was not informed?

[27] In his affidavit on this application, the applicant alleges that his guilty plea was not informed because he and his counsel “did not discuss SOIRA or how long I could be designated a sexual offender”. He also claims he was “not aware of what the maximum penalty was for each offence” for which he pleaded guilty.

[28] To be valid, a guilty plea must be voluntary, unequivocal, and informed. To be informed, the accused “must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea”: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 3, citing R. v. T.(R) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at p. 519. The consequences of the plea include the criminal consequences and the legally relevant collateral consequences: Wong, at para. 4.

[29] An accused seeking to withdraw their guilty plea because they were unaware of criminal consequences at the time of the plea “must demonstrate prejudice by filing an affidavit establishing a reasonable possibility that [they] would have either (1) pleaded differently, or (2) pleaded guilty, but with different conditions”: Wong, at para. 19. An accused “need not show a viable defence to the charge in order to withdraw a plea on procedural grounds”: Wong, at para. 23.

[30] The applicant’s affidavit on this application focuses mainly on the alleged ineffective assistance of counsel. As the Supreme Court of Canada cautioned in Wong, however, the ineffective assistance of counsel framework is not relevant to whether a guilty plea is informed. The ineffective assistance of counsel framework “focuses on the source of the misinformation (or incomplete information) rather than the misinformation itself. Assessing whether prejudice arises from misinformation does not depend upon its source”: Wong, at para. 24 (emphasis in original); see also para. 60, per Wagner J. (as he then was) (dissenting, but not on this point). I will therefore focus on the misinformation the applicant alleges.

[31] As noted, the specific misinformation the applicant alleges is: (1) he was unaware he would be subject to a SOIRA order or for how long; and (2) he did not know the maximum penalty for the offences for which he pleaded guilty.

[32] Neither claim raises an arguable ground of appeal.

[33] The trial judge canvassed the SOIRA issue with the applicant at length at the time of his plea:

THE COURT: … One of the other things that will flow from these convictions is that you’ll have to register on a Sex Offender Registry. Did you know that?

[T.S.D.]: No, I did not.

THE COURT: Okay. So, you should know that because it’s an important consequence of the things that you’re pleading guilty to. Do you want to take some time to speak to your counsel about what that means and —

[T.S.D.]: If that is possible, then yes.

THE COURT: Yes.

[T.S.D’s counsel]: So, Your Honour, we had discussed it under another name but he is aware. Thank you.

THE COURT: Okay. Alright. So, now you’ve refreshed your thoughts on what you’ve discussed before, do you understand what that means?

[T.S.D.]: Yes, ma’am.

THE COURT: Okay. And there’ll be, you know, reporting requirements as a result of that which I’m sure your counsel has explained to you but you understand how that will work?

[T.S.D.]: Yes, ma’am.

THE COURT: Okay. And then lastly, I don’t know your personal circumstances so, you know, for some people when they’re pleading guilty to offences it might have immigration consequences, for example. It might not apply to you if you’re a citizen but it could have other consequences related to being able to work in certain fields, being able to travel, things like that. Have you thought about those kinds of consequences other than the fact that there’s going to be entries on your record or give you a record if you don’t have one?

[T.S.D.]: Yes, ma’am.

THE COURT: Okay. And, if having thought about all those other potential consequences and the registering on the Sex Offender Registry, are you still prepared to go forward with your plea?

[T.S.D.]: Yes, ma’am.

[34] I accept that this exchange did not mention the SOIRA order being for 20 years, but neither did it misinform the applicant about its duration. Instead, the applicant acknowledged to the court he understood how the reporting requirements of the sex offender registry worked and that he had discussed this issue with his counsel.

[35] Even though I must assess the applicant’s awareness of the criminal consequences of his conviction at the time of his guilty plea on July 8, 2019, I am fortified in my conclusion that there is no arguable ground of appeal by what was said during sentencing submissions on March 3, 2020. Crown counsel stated: “Given that the Crown has proceeded by indictment, a SOIRA order is also mandatory for 20 years.” The applicant’s counsel then reiterated this: “we also need to take into account the other consequences of this conviction; a criminal record and a lengthy SOIRA order.” The sentence was not imposed until September 22, 2020 — seven months later. Yet there is no evidence that between the sentencing submissions and when the sentence was imposed the applicant expressed any concern about the SOIRA order. To the contrary, at the close of the sentencing submissions, the applicant apologized and expressed remorse for the offence.

[36] The applicant has thus not raised an arguable issue of misinformation or incomplete information. Nor has he expressly stated that absent any such misinformation or incomplete information he would have pleaded differently or insisted on different conditions.

[37] I reach the same conclusion about the applicant’s claim that his guilty plea was not informed because he allegedly did not understand his maximum sentence exposure. When he pleaded guilty, the applicant acknowledged he understood the sentence to be sought by the Crown, and that, as Maxwell J. explained to him, “[i]t could go higher than what the Crown is asking for.”

[38] The applicant has therefore not raised an arguable issue that his guilty plea was not informed.

(ii) Is it arguable there was ineffective assistance of counsel?

[39] The applicant’s second principal ground of appeal alleges ineffective assistance of counsel. He says that he did not receive competent legal advice about whether to plead guilty.

[40] The legal principles governing a claim of ineffective assistance of counsel were recently summarized in R. v. Hartling, 2020 ONCA 243, 150 O.R. (3d) 224, at paras. 72-74:

An ineffective assistance of counsel claim has two components: performance and prejudice. The appellant must show that (i) trial counsel’s acts or omissions amounted to incompetence, and (ii) a miscarriage of justice occurred: R. v. Prebtani, 2008 ONCA 735, 243 O.A.C. 207, at paras. 3-4.

To establish a claim of ineffective assistance of counsel, the appellant must establish:

1. The facts that underpin the claim;

2. That counsel’s representation was inadequate; and,

3. That counsel’s inadequate representation resulted in a miscarriage of justice.

This test presents a high bar that is not easily met: R. v. Cherrington, 2018 ONCA 653, at para. 25. As Watt J.A. explained, once the first step of the test is established, the analysis turns to the third step, or the prejudice component, of whether there was a miscarriage of justice. If there was no prejudice, then it is “undesirable” for the court to proceed to the second step, or the performance component, of the test: R. v. Girn, 2019 ONCA 202, 373 C.C.C. (3d) 139, at para. 92. The analysis under the performance component “proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.B.D., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. The presumption of competence “is tested against a standard of reasonableness, and accords no place to hindsight”: Cherrington, at para. 26; see also G.B.D., at para. 27.

[41] Under the prejudice component, the applicant need not establish a viable defence to the charges against him. He need only show that, had he received competent legal advice, he would not have pleaded guilty: R. v. Cherrington, 2018 ONCA 653, at para. 46; R. v. Quick, 2016 ONCA 95, 129 O.R. (3d) 334, at paras. 36-38.

[42] Here, the applicant raises several complaints in his affidavit about counsel’s representation, but does not expressly state that had he received competent legal advice he would not have pleaded guilty. Even had the applicant so stated, nothing in the evidence before me at this stage raises an arguable issue that counsel’s competence was inadequate or that it caused a miscarriage of justice:

• The Crown had a formidable case. The applicant was recorded on videos sexually assaulting the complainant and distributed the videos to others. The complainant herself recalled seeing the applicant through the flash of the camera. The videos were found on his phone, which the police seized incident to his arrest and then searched only after obtaining a search warrant.

• The applicant’s counsel’s dockets reveal that she reviewed the Crown disclosure with the applicant several times, met with him to prepare for the preliminary inquiry, and spent time preparing to cross-examine witnesses. She reviewed the law on consent, intoxication, and voluntariness. She discussed the applicant’s jeopardy with him “at length”. Her dockets also record his instructions to her to plead guilty on the day of his plea. She then prepared for sentencing and delivered what, in my view, was an effective sentencing submission.

• By negotiating a plea before the preliminary inquiry began, the complainant did not have to testify, which even the Crown acknowledged was “incredibly mitigating” for the applicant. The applicant was then sentenced to 18 months’ imprisonment, which was below the sentence sought by the Crown and at the low point of the range mentioned to him at the time of his plea.

[43] I thus conclude that the applicant’s claim of ineffective assistance of counsel, like his claim of an uniformed guilty plea, does not raise an arguable ground of appeal. These two conclusions provide a sufficient basis for me to dismiss this application. Even so, I will consider the two other branches of the test for bail pending appeal.

(2) Has the applicant established he will surrender himself into custody in accordance with the terms of any release order?

[44] I am satisfied the applicant has established that he would surrender himself into custody in accordance with the terms of any release order. The Crown accepts that the applicant was on bail pre-sentence without incident. Under the applicant’s release plan, he proposes to live with his parents under their supervision. He also proposes to wear an ankle monitor. On this basis, I conclude that the applicant meets the second criterion for bail pending appeal.

(3) Has the applicant established his detention is not necessary in the public interest?

[45] The Crown also opposes bail on the third criterion for bail pending appeal, the public interest criterion under s. 679(3)(c). The Crown submits that the applicant has failed to establish that his detention is not necessary in the public interest.

[46] The “public interest” criterion under s. 679(3)(c) has two elements: public safety and public confidence in the administration of justice: Oland, at paras. 23, 26.

(a) Public safety

[47] Public safety considerations under s. 679(3)(c) relate to the protection and safety of the public, which tracks the secondary ground requirements of s. 515(10)(b) governing an accused’s release pending trial: Oland, at para. 24. To be denied bail for public safety considerations: (i) an individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 737; R. v. Stojanovski, 2020 ONCA 285, at para. 18.

[48] Public safety considerations alone can justify refusing bail in the public interest. And even when an applicant meets the public safety threshold, residual public safety concerns or the lack of any public safety concerns should still be considered as part of the public confidence analysis: Oland, at para. 27.

[49] I am satisfied that public safety considerations alone do not justify the applicant’s continued detention. Nor does the Crown contend this. The applicant is a first-time offender. There is no evidence of a substantial likelihood that he would commit another offence or interfere with the administration of justice. However, his offences were serious, so I cannot say his release would pose no public safety concerns. In any event, I am satisfied that his proposed release plan would address any residual public safety concerns.

[50] I now turn to the public confidence component.

(b) Public confidence in the administration of justice

[51] The public confidence component involves weighing two competing interests: enforceability and reviewability. Enforceability concerns the need to respect the general rule of the immediate enforceability of all judgments. Reviewability concerns the need to provide for a meaningful review process, one that does not require persons convicted of offences to serve all or a significant part of their sentence only to have their conviction overturned on appeal: Oland, at paras. 24-26.

(i) The enforceability interest

[52] In assessing the enforceability interest, the seriousness of the crime plays an important role. The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: Oland, at para. 37. The absence of flight or public safety risks will attenuate the enforceability interest. Other factors should also be considered where appropriate: Oland, at para. 39.

[53] Here, I find the enforceability interest is significant. The applicant was convicted of two serious sexual offences. He sexually assaulted the complainant when she was incapacitated and vulnerable. He assaulted her in her home, a place where she should have felt safe. He used an implement to violate her in a way that was especially degrading and humiliating. He did so with others, recorded the encounter, and then circulated it to a group. He revealed a callous demeanour during the assault, laughing and smiling as he continued. All this has had a lasting impact on the complainant, as she revealed in her victim impact statement. The applicant disputes none of these essential facts.

[54] The enforceability interest is, however, attenuated somewhat by the lack of flight risk and the substantially reduced public safety risk that I have mentioned.

[55] I now turn to consider the reviewability interest.

(ii) The reviewability interest

[56] In assessing the reviewability interest, the strength of the appeal plays a central role: Oland, at para. 40. A preliminary assessment of the strength of the appeal is made by reviewing the grounds in the notice of appeal for their general legal plausibility and foundation in the record, to determine whether those grounds clearly surpass the “not frivolous” criterion: Oland, at para. 44. A broader public interest in reviewability transcends an individual’s interest in any given case: Oland, at para. 45.

[57] Here, the reviewability interest is weak. Even if I am wrong in my earlier conclusion that the grounds of appeal are not arguable, they do not clearly surpass the “not frivolous” criterion.

(iii) Balancing the public interest in enforceability and reviewability

[58] In conducting a final balancing of the enforceability and reviewability interests, public confidence in the administration of justice is measured through the eyes of a reasonable member of the public, someone who is “thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, at para. 47. Anticipated delay in deciding an appeal, relative to the length of the sentence, is also a consideration, to ensure that the reviewability interest remains meaningful: Oland, at para. 48.

[59] The COVID-19 pandemic is also a factor that may be considered as part of the public interest criterion, though the weight to be given to it depends on the particular circumstances of each case: see e.g., R. v. Kazman, 2020 ONCA 251, 386 C.C.C. (3d) 424, at paras. 17-21; R. v. Omitiran, 2020 ONCA 261, at para. 26; and R. v. Jesso, 2020 ONCA 280, at para. 36. Here, the applicant is young and in apparently good health. This factor was not invoked, and I give it little weight.

[60] On the record before me, I conclude there is a strong public interest in enforceability and only a weak interest in reviewability. That tips the scales decisively in favour of the applicant’s continued detention pending appeal.

[61] I appreciate that the anticipated delay in scheduling and deciding the appeal relative to the length of the sentence (18 months) must be considered to ensure that the applicant’s reviewability interest remains meaningful. I therefore order this appeal to be expedited under s. 679(10) of the Criminal Code. The parties may arrange an expedited date with the court’s Appeal Scheduling Unit.

[62] While this application was under reserve, counsel for the applicant emailed the court and sought to rely on new grounds of appeal and new evidence on this application. The Crown objected. As noted above, I have already permitted the applicant to adduce additional evidence and submissions after the oral argument. In the context of this application, I am not prepared to do so again.

D. disposition

[63] The application for bail pending appeal is dismissed. The appeal is expedited under s. 679(10) of the Criminal Code.

“M. Jamal J.A.”