Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210819 DOCKET: M52206 (C69070)

Before: Strathy C.J.O. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent (Respondent)

and

Jeffrey Scott Visscher Applicant (Appellant)

Counsel: Phillip Dinis, for the applicant Alysa Holmes, for the respondent

Heard: August 16, 2021 by video conference

Endorsement

[1] Mr. Visscher applies pursuant to s. 679 of the Criminal Code for bail pending his appeal from his convictions for break and enter with intent and assault of his then wife.

[2] The trial judge found that the applicant broke into his former wife’s home and assaulted her in the presence of their young daughter at a time when he was bound by a recognizance not to attend at the home. The invasion and attack were preceded by a stream of abusive and threatening text messages.

[3] The applicant was sentenced to a term of imprisonment of two years less a day and three years’ probation with respect to these offences and three months concurrent on each of three counts of breach of recognizance, to which he pleaded guilty.

[4] The applicable test is set out in s. 679(3) of the Criminal Code, as explained in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250. The applicant must establish that (a) the appeal is not frivolous; (b) he will surrender into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. The applicant bears the onus of establishing each of these factors on a balance of probabilities.

[5] I am satisfied that the appeal meets the low threshold of “not frivolous”. That being said, on the material available to me, its prospects of success are slim.

[6] The applicant raises three grounds of appeal. He asserts that the trial judge: (a) failed to adequately address material inconsistencies in the evidence; (b) erred in his treatment of the complainant’s motive to fabricate; and (c) erred in admitting an excessive volume of text messages when their prejudicial effect exceeded their probative value.

[7] As regards the first ground, the trial judge accepted the evidence of the complainant and of an independent witness, a friend, who corroborated her evidence. He found both witnesses to be “clear, candid and … credible”. He described the friend as a “compelling and impressive witness.”

[8] While the trial judge found that there were some inconsistencies in the witnesses’ evidence, both internally and as between them, he did not find that these inconsistencies undermined their credibility. The internal inconsistencies were explained by the passage of time and were not significant. He found that the inconsistencies between the evidence of the two witnesses did not detract from their credibility. He noted that the evidence of the two Crown witnesses was not contradicted by any other witness. In my view, the inconsistencies were understandable, particularly because the complainant’s friend did not observe the break-in or the initial stages of the assault. The complainant and the witness had different perspectives on a dynamic assault, and it is not at all surprising that there were inconsistencies in some aspects of the evidence. The trial judge had no obligation to address every inconsistency in their evidence.

[9] The issue of motive to fabricate was the subject of defence cross-examination of the complainant. It was suggested that her delayed reporting of the assault was motivated by a matrimonial dispute concerning the applicant’s access to their child. The trial judge found that the complainant had a motive to put restrictions on the applicant’s access to the child, but that this was driven by a desire to protect the child, rather than a desire to “get back” at the applicant. It can be inferred that the trial judge accepted the complainant’s evidence that she ultimately found the courage to report the incident.

[10] As to the third proposed ground of appeal, the applicant asserts that the trial judge erred in not limiting the volume of abusive text messages and emails sent by the applicant prior to the assault. This was a judge-alone trial. The applicant does not contend that the evidence was admitted over the objection of the defence. The evidence was admitted as probative of the applicant’s state of mind prior to the attack and was consistent with the language he used during the attack, as described by the complainant. The trial judge’s admission of the evidence necessarily involved a balancing of its probative value as against its prejudicial effect and is entitled to deference. There is nothing in the reasons or the record to suggest that the texts and emails constituted unreasonable “piling on” of prejudicial evidence in the context of a judge-alone trial.

[11] In sum, while none of the individual grounds of appeal can be described as “frivolous”, neither can any be considered, at this stage, to be anything more than weak.

[12] Turning to the second Oland factor, I am satisfied, on a balance of probabilities, that the applicant would surrender into custody in accordance with any bail order.

[13] On the third factor, I am not persuaded that Mr. Visscher’s detention is not necessary in the public interest. There are two components of the public interest criterion: public safety and public confidence in the administration of justice.

[14] As to public safety, I accept the respondent’s submission that Mr. Visscher has engaged in a pattern of domestic violence and harassment of the complainant, both before and after the index offences. It bears repeating that the index offences occurred while the applicant was bound by a recognizance ordering that he not have contact with the complainant.

[15] There is evidence that the applicant’s actions have caused emotional harm to the complainant and to the child. On the basis of all the evidence, I am not persuaded that the applicant will not engage in further abusive behaviour in relation to the complainant. I am satisfied that there is a real risk that he will do so again, given his past conduct.

[16] I note in this regard that, although Mr. Visscher had previously proposed that his current spouse would serve as a residential surety, he has now separated from her and she is unwilling to stand as his surety. Instead, he proposes to live with his parents, who will serve as residential sureties. His father was his surety at the time of the index offences and has acknowledged that he failed to notify the police concerning those offences, even though he had an obligation to do so. In light of the history of this matter, I am not satisfied that the sureties are able to provide appropriate supervision of Mr. Visscher.

[17] In balancing public confidence in the administration of justice against the reviewability interest, I note that the applicant was convicted of serious offences involving intimate partner violence, which cannot be described as isolated or out of character. I also note that Mr. Visscher’s jealousy and rage have not been controlled by the existence of court orders. Having regard to the relative weakness of the appeal, to release Mr. Visscher under these circumstances would undermine public confidence in the administration of justice in the eyes of a reasonable, thoughtful, and dispassionate member of the public, fully informed of the circumstances and respectful of society’s fundamental values.

[18] For these reasons, the motion for bail pending appeal is dismissed.

“G.R. Strathy C.J.O.”