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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way .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: 20210115 DOCKET: M52084 (C68717)

Before: Jamal J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent

and

T.S.D. Applicant

Counsel: Jonathan Shulman, for the applicant Jennifer A.Y. Trehearne, for the respondent

Heard: January 11, 2021 by video conference

REASONS FOR DECISION

[1] This is the applicant’s second application for bail pending appeal. A few weeks ago, on December 3, 2020, I dismissed his first application: R. v. T.S.D. , 2020 ONCA 773 . The applicant submits that a material change of circumstances since my earlier decision now justifies granting bail pending appeal. For the reasons that follow, I disagree, and therefore dismiss the application.

Background

[2] I reviewed the background facts and relevant legal principles in my earlier decision. I will not repeat that discussion, except to highlight a few key facts and to include additional facts from materials filed on this second application.

(i) The applicant sexually assaults the complainant

[3] On May 19, 2018, the applicant and another male videotaped each other sexually assaulting the complainant at a party at her house while she was unconscious. There is no dispute that the applicant can be seen on the video inserting a hairbrush handle into the complainant’s vagina while another male filmed, and the other male can be seen digitally penetrating the complainant while the applicant filmed. The next day the applicant circulated the video to a group chat on Snapchat.

(ii) The applicant is arrested

[4] Two days later the police arrested the applicant, seized his cellphone incident to arrest, and charged him with gang sexual assault and distributing intimate images without consent. They later obtained a search warrant to search the cellphone, which contained the video.

(iii) The proceedings leading to the applicant’s guilty plea

[5] Two counsel were involved in some capacity in the applicant’s case before the Ontario Court of Justice. The scope of the retainer, if any, of his first counsel (“First Counsel”) is unclear. On January 31, 2019 and May 2, 2019, First Counsel advised the court that he was not retained. The applicant’s preliminary inquiry was scheduled to proceed in July 2019. Crown counsel stated on the record that the preliminary inquiry was scheduled to proceed “with or without counsel”.

[6] On June 10, 2019, the applicant advised the court that he had been unable to perfect the retainer of First Counsel. He stated that he had applied for Legal Aid but his application had been denied. The Legal Aid office at the courthouse recommended that he appeal this decision. The court expressed concern about the applicant being “steamrolled into going ahead unrepresented”. Because the preliminary inquiry was approaching, the court proposed to appoint counsel (“Second Counsel”) for the applicant under s. 486.3 of the Criminal Code , R.S.C., 1985, c. C-46, for the purpose of cross-examining the complainant and several other witnesses at the preliminary inquiry. The court proposed to give the applicant time to meet with Second Counsel to decide whether he would be prepared to proceed with her. The court also made clear to him that he did not have to proceed with Second Counsel if he was uncomfortable with her. The applicant agreed with this proposal. The court then appointed Second Counsel under s. 486.3 of the Criminal Code to conduct cross-examinations at the preliminary inquiry, subject to the applicant being content with her.

[7] The matter returned to court on June 17, 2019. Second Counsel and the applicant could not attend because the Toronto Raptors’ parade that day made it hard to access the courthouse. Crown counsel told the court that she had been advised that the applicant was content to accept the appointment of Second Counsel as s. 486.3 counsel. She also said she had been advised that Legal Aid Ontario would expedite a Legal Aid appeal to allow the applicant, if approved, to obtain a Legal Aid certificate for a full retainer, but he had not filed an appeal.

[8] On June 28, 2019, both the applicant and Second Counsel attended court. The applicant advised that he had not appealed the decision to refuse him Legal Aid. He also stated that “after speaking with [Second Counsel] I personally would want her to represent me at the preliminary hearing”. Second Counsel advised the court that she would act at the preliminary inquiry either as s. 486.3 counsel or under a full retainer. The court asked the applicant, “given the fact that you’d be willing to retain [Second Counsel] I take it you feel confident having her represent your interest…”. He responded, “Yes”.

[9] Between June 28 and early July 2019, it appears the applicant personally retained Second Counsel beyond the terms of the s. 486.3 retainer because she invoiced him for legal work as of July 6, 2019.

(iv) The applicant pleads guilty

[10] On July 8, 2019, the first day of the preliminary inquiry, the applicant pleaded guilty to sexual assault simpliciter (rather than gang sexual assault) and distributing intimate images without consent. Second Counsel advised the court that the applicant’s guilty plea was an informed plea, reached after the applicant had several opportunities to meet with her. The applicant confirmed that he agreed. The presiding justice then conducted a comprehensive plea inquiry to ensure 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 that he 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 be 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 him, such as immigration consequences, being unable to work in certain fields, or restrictions on travel, all of which he had considered.

[11] 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. The court then found the applicant guilty.

(v) The applicant is sentenced

[12] The Crown acknowledged during sentencing submissions that by negotiating a plea before the preliminary inquiry began, the complainant did not have to testify, which was “incredibly mitigating” for the applicant.

[13] On September 22, 2020, the applicant was sentenced to 18 months’ imprisonment, followed by two years’ probation, and various ancillary orders. This was less than the sentence sought by the Crown and at the low point of the range mentioned to him at the time of his plea.

(vi) The applicant appeals

[14] By notice of appeal dated October 16, 2020, the applicant — now represented by new counsel who appeared on this application — appealed from his conviction and sentence. The notice of appeal claimed that the applicant’s guilty plea was uninformed and alleged ineffective assistance of counsel by Second Counsel.

[15] On November 6, 2020, the applicant applied for bail pending appeal. I heard the application on November 13, 2020 and I allowed further written submissions and additional evidence to be filed the following week.

(vii) The first application for bail pending appeal

[16] On December 3, 2020, I dismissed the first application for bail pending appeal. I concluded that the applicant had not met even the very low bar of establishing that his grounds of appeal were “not frivolous”, because he advanced no arguable issue that his guilty plea was uninformed or that there was ineffective assistance of counsel by Second Counsel.

[17] I also concluded that even if the grounds of appeal were arguable, public confidence in the administration of justice required the applicant’s continued detention because the enforceability interest outweighed the reviewability interest: R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250, at paras. 24-25 . The enforceability interest was significant because: (i) the applicant was convicted of two serious sexual offences; (ii) he sexually assaulted the complainant when she was incapacitated and vulnerable; (iii) he assaulted her in her home, where she should have felt safe; (iv) he used an implement to violate her in a way that was especially degrading and humiliating; (v) he did so with others, recorded the encounter, and circulated it to a group; (vi) he showed a callous demeanour by laughing during the assault, as recorded on the video; (vii) the incident had a lasting effect on the complainant, as evidenced in her victim impact statement; and (viii) the applicant disputed none of these essential facts. Even though the enforceability interest was attenuated somewhat by the applicant’s lack of flight risk and the low public safety risk, achievable through release conditions, it outweighed the weak reviewability interest.

[18] However, to ensure that the reviewability interest remained meaningful, I ordered the appeal expedited under s. 679(10) of the Criminal Code .

(viii) This second application for bail pending appeal

[19] On December 30, 2020, the applicant filed this second application for bail pending appeal, based on a material change of circumstances. The material change of circumstances is said to arise from newly available transcripts of appearances before the Ontario Court of Justice and a new affidavit from the applicant. The applicant has also filed a further amended notice of appeal dated December 30, 2020. He continues to allege ineffective assistance of Second Counsel and that his guilty plea was uninformed. He now alleges ineffective assistance of First Counsel as well.

[20] The applicant provided no waiver of privilege until January 5, 2021 — less than a week before this application was argued and the day before the Crown filed its factum. Even then, the written waiver provided was limited to Second Counsel and excluded “any signed written instructions”. This precluded any disclosure of the applicant’s written instructions to Second Counsel before pleading guilty, which were referred to in the dockets of Second Counsel that have been disclosed. An email from applicant’s current counsel to Crown counsel purported to circumscribe this limited waiver further: “Current waiver is for the communication not documents release.” The applicant did not waive privilege over First Counsel’s file.

[21] Then, during reply oral argument on this application, applicant’s counsel advised that his client has now given instructions to waive privilege over the entire file of both First and Second Counsel, and that he would confirm this to Crown counsel in writing by end of the day on January 11, 2021.

Applicable principles

[22] The principles governing successive original applications for bail pending appeal were reviewed by Rosenberg J.A. in R. v. Baltovich (2000), 2000 ONCA 5680 , 47 O.R. (3d) 761 (C.A.), at paras. 5-7 , and may be summarized as follows:

1. “The scheme of Part XXI of the Criminal Code is that ordinarily there will be one opportunity to apply for release pending appeal”: at para. 5. An applicant may bring a further original application for release pending appeal under s. 679 of the Criminal Code when there has been a “material change of circumstances” after the initial application: at para. 6.
2. A judge hearing a subsequent original application has jurisdiction to deal with the application only if they are satisfied that there has been a material change of circumstances. A material change of circumstances requires “additional information that could lead the judge hearing the application to alter the assessment of one or more of the statutory factors set out in s. 679(3), namely, (a) whether the appeal is frivolous; (b) whether the applicant will surrender into custody in accordance with the terms of the release order; and (c) whether the applicant’s detention is necessary in the public interest. If there is a material change in circumstances, the judge must then consider all of the statutory grounds and must be satisfied that the applicant has met the onus in s. 679(3)”: at para. 6.
3. “[T]he parties must accept the correctness of the decision of the first judge”: at para. 7. This means that “the parties and the judge hearing the subsequent application accept that on the basis of the material that was before the first judge, the decision was correct”: at para. 7. If the material change in circumstances threshold is met, “the judge’s reasons on the initial application will be of assistance in determining whether the case is a proper one for release”: at para. 7.

[23] See also R. v. Daniels (1997), 1997 ONCA 3670 , 35 O.R. (3d) 737 (C.A.), at pp. 744-751, per Doherty J.A.; Justice Gary T. Trotter, The Law of Bail in Canada , loose-leaf, 3rd ed. (Toronto: Thomson Reuters, 2017), at pp. 8-41 to 8-43.

Application to this case

[24] On this application the applicant asserts essentially three additional grounds of appeal that he submits amount to a material change of circumstances.

[25] First, the applicant asserts that First Counsel provided ineffective assistance by failing to move to withdraw as counsel of record. He says the judge presiding at the Ontario Court of Justice also failed to protect his interests by not insisting on a motion to withdraw and by not forcing First Counsel to represent him at the preliminary inquiry. He claims that had he known that First Counsel could not withdraw without a motion he would not have pleaded guilty.

[26] This is not an arguable ground of appeal, and thus not a material change of circumstances. The applicant’s conduct shows that ultimately he did not want First Counsel to represent him at the preliminary inquiry — he did not appeal the refusal of Legal Aid to allow him to engage First Counsel but instead advised the court that he wanted Second Counsel to represent him at the preliminary inquiry. Further, the preliminary inquiry did not proceed because the applicant pleaded guilty after a comprehensive plea inquiry. I therefore see no arguable basis to conclude that the applicant was prejudiced or that there was any miscarriage of justice.

[27] Second, the applicant asserts that Second Counsel provided ineffective assistance by failing to respond to, or provide him with, the Crown’s testimonial aid application for the complainant to testify at the preliminary inquiry behind a screen.

[28] This too is not an arguable ground of appeal. The record shows that Second Counsel consented to the testimonial aid application, which was a reasonable concession in the circumstances. In any event, there was no prejudice to the applicant: the testimonial aid was not used because the preliminary inquiry did not proceed.

[29] Third, the applicant asserts that Second Counsel failed to inform him that the seizure of his cellphone without a warrant could be challenged under s. 8 of the Canadian Charter of Rights and Freedoms and that he might be subject to a period of probation as part of his sentence. He says that had he known this he would not have pleaded guilty.

[30] I give little credence to this argument. Besides the fact that the applicant pleaded guilty only after a full plea inquiry, he has presented only a one-sided picture of what he says he was informed because he has refused to produce his written instructions to Second Counsel. Moreover, both the Crown and Second Counsel addressed the probation period during sentencing submissions, yet the applicant raised no concern about it then or during the intervening months before he was sentenced. In all these circumstances, the applicant has not established the facts to raise even an arguable issue that his plea was uninformed or that there was ineffective assistance of counsel.

[31] Because the new grounds of appeal do not rise to the “not frivolous” threshold set in Oland , at para. 20 , the applicant has shown no material change in circumstances. I therefore have no jurisdiction to deal with this second application for bail pending appeal.

[32] Even had I found a material change of circumstances, I would still have refused to grant bail pending appeal. Largely for the reasons I previously gave, I would have concluded that the applicant has not established that his detention is not necessary in the public interest. The reviewability interest is weak, while the enforceability interest remains significant. A reasonable member of the public who is thoughtful, dispassionate, informed of all the circumstances, and respectful of society’s values would conclude that public confidence in the administration of justice requires the applicant’s continued detention pending appeal: Oland , at para. 47 .

[33] This application for bail pending appeal is therefore dismissed.

[34] Finally, the Crown asked, in the event that I denied bail pending appeal, for an order requiring the applicant to comply with s. 17(10) of the “Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario”, (March 1, 2017), which provides that when an appellant asserts a claim of solicitor-client privilege regarding materials in the trial file, appeal counsel shall “forthwith” provide the Crown with (i) an inventory identifying the materials alleged to be privileged, to the extent it is possible to do so without compromising the privilege, and (ii) a brief written statement of appeal counsel’s position on the basis of the claim of the solicitor-privilege and the extent or scope of any waiver of the privilege arising from the allegation of ineffective assistance at trial. The Crown asked me to order the applicant to comply with this provision by January 22, 2021, so that the Crown could understand the limits of any waiver of solicitor-client privilege and move for directions if necessary.

[35] Because of the applicant’s position that he has waived privilege over the entire file of both First and Second Counsel, this issue is now moot. However, I order the parties to schedule a case conference promptly with Justice Tulloch, who has been case managing the appeal, to discuss the further progress of this appeal and to seek any further direction they may require.

Disposition

[36] The application for bail pending appeal is dismissed. The parties shall schedule a case conference with Justice Tulloch promptly.

“M. Jamal J.A.”