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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2021-09-15 Docket: M52765 (C67177)

Before: Zarnett J.A. (Motion Judge)

Between: Her Majesty the Queen Respondent

and

I.W. Appellant/Applicant

Counsel: Mark C. Halfyard, for the applicant Jeffrey Wyngaarden, for the respondent

Heard: September 2, 2021 by video conference

Endorsement

Introduction

[1] The applicant’s bail pending appeal was revoked when he was charged with committing offences against his domestic partner, who was his surety. He now applies to be released again on bail pending the hearing of his appeal, proposing a different surety.

[2] For the reasons that follow, I dismiss the application.

Background

[3] The applicant was charged with sexual assault, sexual interference, and sexual exploitation, contrary to s. 271, s. 151 and s. 153(1) respectively of the Criminal Code, R.S.C. 1985, c. C-46.

[4] The charges arose out of a relationship between the applicant, then in his late thirties, and the complainant, a teenager who was a friend of the applicant’s daughter.

[5] The sexual assault and sexual interference charges related to sexual touching and intercourse which the Crown alleged occurred before the complainant had turned 16. The sexual exploitation charge related to the period after the complainant had turned 16. The Crown alleged that the applicant exploited the complainant’s addiction to alcohol and her impecuniosity to have her engage in a sexual relationship with him.

[6] The applicant denied any sexual relationship before the complainant was 16. He admitted to an inappropriate but non-criminal consensual sexual relationship with her after she was 16, but denied that it was the result of any exploitation.

[7] On April 30, 2019, after a ten-day jury trial, the applicant was convicted of all three offences. [1] On January 3, 2020, he was sentenced by the trial judge to five years in custody, less approximately seventeen months’ credit for pre-trial custody.

[8] The applicant has appealed his convictions.

[9] On April 17, 2020 the applicant was granted bail pending appeal, which was extended several times. C.O., the applicant’s domestic partner, was the surety named in the April 17, 2020 release order and each of its extensions, with a financial obligation of $10,000. The conditions of the applicant’s release pending appeal included requirements that the applicant reside with C.O.; that he not communicate with or be in the company of anyone under 16 unless in the presence of C.O.; that he not attend day care centres, schools, playgrounds or community centres, or swimming pools or public parks where persons under 16 were likely to be; that he not possess weapons; that he “keep the peace and be of good behaviour”; and that he surrender into custody as prescribed.

[10] On August 18, 2021, the applicant was charged with committing two offences against C.O., assault and uttering a threat (the “New Charges”). The applicant denies any assault or making any violent threat. In his affidavit, he says: “We did get into a verbal argument on August 17, 2021, which resulted in her leaving the residence, with our 8-month-old. She had my boss’ tools in her car, which I needed for work. I did send her a text message indicating I was going to ‘kill’ her, but this was not a threat of violence, but expressing how upset I was because she had taken my tools”. He also deposed that C.O. has since recanted her allegations.

[11] On August 26, 2021 the applicant’s bail pending appeal was revoked, on consent “without prejudice to the [applicant’s] rights to bring a new application for interim release”. In making the revocation order, Miller J.A. stated: “Mr. W. has been charged with assault and uttering threats against his spouse who is also his surety under an interim release order. All parties agree that in these circumstances, regardless of whether the allegations are true or a fabrication, the current surety is no longer suitable and bail must be revoked”.

[12] On August 26, 2021, the applicant was granted bail on the New Charges by a justice of the peace, with a new surety, the applicant’s friend J.A.

[13] The applicant now applies for bail pending appeal, proposing J.A. as the surety.

[14] The Crown opposes the order, on the basis that release is contrary to the public interest in light of the concerns raised by the New Charges and the grounds of appeal which, though not frivolous, are not strong.

Analysis

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

[16] The public interest ground requires two matters to be considered: public safety and public confidence in the administration of justice. The two are not completely independent. There can be cases where, even though the applicant satisfies the public safety threshold, residual public safety concerns remain, which are considered in the public confidence analysis. That analysis involves balancing the reviewability interest (that a person is entitled to a meaningful review process before having to serve all or a substantial part of their sentence) and the enforceability interest (that judgments should be immediately enforceable). The balancing of these interests is to be measured through the eyes of a reasonable member of the public: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-27 and 47.

Concerns Raised by the New Charges

[17] The parties do not disagree about the applicable principles where new charges arise. “Outstanding criminal charges are important for bail purposes, especially those that point to bail compliance issues”: R. v. C.L., 2018 ONCA 470, at para. 15. Though the applicant for bail pending appeal is presumed innocent of any unresolved charges “that does not detract from their relevance and importance to bail pending appeal” on charges on which the applicant has been convicted: C.L., at para. 16. Among other reasons, new charges may undermine confidence in the applicant’s future compliance with bail conditions: C.L., at para. 17.

[18] The fact that a person on bail pending appeal is charged with uttering a threat to kill someone can also “raise concerns about public safety and public confidence in the justice system”: R. v. D.L., 2021 ONCA 538, at para. 5.

[19] Although the parties agree that the New Charges are relevant, they disagree on what their significance should be in this case. The applicant stresses that not only is he presumed innocent of the New Charges, C.O. has subsequently recanted her allegations. Moreover, the applicant has been granted bail on the New Charges with a release plan that can be mirrored in an order for bail pending appeal. The Crown, on the other hand, points out that the test for bail pending the New Charges is different than for bail pending appeal, and stresses both the applicant’s sending of a text message indicating that he was going to kill C.O. and the fact that C.O. was his surety at the time.

[20] In my view, the New Charges are significant in this case in two ways. First, in light of them it is difficult to view this case as one where there is no “residual” or “lingering public safety concern” that attenuates the enforceability interest: see Oland, at paras. 27 and 50. And although a substantial and uninterrupted track record of compliance with bail conditions, without incident, can lend support to a bail order, the New Charges undermine that support, especially given that C.O. was the applicant’s surety under the then-existing release order. These are factors that weigh in the ultimate balancing of the enforceability and reviewability interests, which I discuss below.

The Enforceability Interest

[21] The enforceability interest in this case is high.

[22] The seriousness of the crime, including the gravity of the offence and the circumstances of its commission, play an important role in the consideration of the enforceability interest, as public confidence in the administration of justice will be undermined if the person is released on bail pending appeal: Oland, at para. 37.

[23] The applicant has been convicted of serious crimes. The sexual assault and sexual interference offences were found to have been committed against a person under 16. Sexual offences against children are “violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities”: R. v. Friesen, 2020 SCC 9, at para. 5. The sentence imposed underscores the seriousness of the offences: R. v. S.M., 2020 ONCA 427, at para. 13.

[24] As well, public safety concerns that “fall short of the substantial risk mark … remain relevant under the public confidence component” as a factor in favour of enforceability: Oland, at para. 39. Here, when viewed through the eyes of a reasonable member of the public, the New Charges give rise to that type of concern.

The Reviewability Interest

[25] Where the enforceability interest is thus engaged, weighing the reviewability interest requires a “more pointed consideration” of the strength of the appeal beyond the “very low bar” set by the “not frivolous” standard: Oland, at paras. 20, 40-41.

[26] The applicant has advanced three grounds of appeal.

[27] First, the applicant argues that the trial judge erred in not providing proper instruction to the jury in relation to derogatory emotional outbursts of the complainant while testifying, including standing up and telling defence counsel: “You’re defending a creep. You’re defending a fucking creep”, and later calling the applicant a “loser”, “rapist”, and “creep”. The applicant submits that these outbursts tainted his fair trial rights.

[28] After the first outburst, the trial judge gave the jury a mid-trial instruction that they should not consider a witness’s manner of testifying “the only or most important factor in making your decision”, and they should not use the opinion the complainant expressed about the applicant “to conclude or help you to conclude that he is a person of bad character and, therefore likely committed the offences charged because of that bad character”.

[29] The applicant argues that the trial judge should have told the jury to disregard the outbursts as irrelevant, because they were only the complainant’s opinion of the applicant’s guilt and did not assist the jury with their task, and they had the potential of distracting the jury and having them conclude that because she testified in an emotional manner it was more likely that he was guilty of the offences.

[30] However, the mid-trial instruction cautioned the jury about placing emphasis on the way the complainant testified — which arguably addressed the risk the applicant raises that the jury would conclude he was likely guilty because of the emotional manner in which she gave her evidence. And it instructed them not to use her opinion that he was a person of bad character — such as a “loser” or a “creep” or even a “rapist” — to infer he committed the offences, which arguably addressed the risk arising from the opinion of him she expressed.

[31] Second, the applicant argues that the trial judge erred in allowing the Crown to lead a prior consistent statement of the complainant, and in not instructing the jury on its limited use.

[32] In the examination in chief of the complainant’s father, Crown counsel asked if the complainant had ever told him about what happened between her and the applicant. Upon receiving a positive response, Crown counsel asked the following question: “I don’t want to get into anything about what she told you, okay, that’s for her to have told the court. So, I don’t want to hear from you about what it was or words that she used. But my question for you is, that she told you about these events with [the applicant], when was it that she came out to you with this information?”

[33] The response given was about a time, not about what was said.

[34] The applicant argues that prior consistent statements are presumptively inadmissible, as “a falsehood does not become true through repetition”: R. v. D.C., 2019 ONCA 442, at para. 19. Although there are limited exceptions and purposes for which such statements might be admitted, he submits that the trial judge did not articulate any basis to allow the statement to be led, and if there was a basis, the trial judge failed to give a limiting instruction to the jury about what use they could, and importantly what use they could not, make of the statement.

[35] However, there are significant differences between this case and D.C., in which the Crown led evidence of the detailed content of the prior statements and its closing address invited the jury to infer truthfulness from consistency by comparing what the complainant said in court to the content of the prior statements: D.C., at paras. 8-12, 15-16, 28. It was in that context that this court said that the dangers associated with prior consistent statements were engaged, and the absence of a limiting instruction was fatal: D.C., at para. 29.

[36] Here, the father was specifically asked not to say what he was told, nor did he. The jury would not have been able to compare the content of the prior statement to the complainant’s trial evidence in order to engage in prohibited reasoning and infer truthfulness due to consistency of content. At this stage, the applicant has not suggested that the Crown asked the jury to infer truthfulness from consistency. Even assuming the statement was improperly admitted, it may be difficult for the applicant to argue that this amounts to a reversible error.

[37] Finally, the applicant submits that he was prejudiced by a misstatement by Crown counsel in her closing to the jury. The applicant argues that the jury was invited by Crown counsel to speculate that the applicant had access to certain premises he leased at a date about a month earlier than the lease commencement date, because the landlord had given early access to a prior tenant.

[38] The trial judge instructed the jury that the prior tenant’s evidence about early access was that he had been given it a day or two early, reminding the jury of the actual evidence.

[39] In my view, the appeal grounds, while arguable, are not strong.

The Final Balancing

[40] As indicated above the enforceability interest in this case is high due to the seriousness of the offences. The enforceability interest is not attenuated by either an absence of residual public safety concerns, or by an uninterrupted record of bail compliance, given the New Charges.

[41] The reviewability interest in this case is influenced by the strength of the grounds of appeal. They are not frivolous, but they are not strong.

[42] Moreover, in balancing the enforceability and reviewability interests, the timing of the appeal is relevant: Oland, at para. 48. The appeal has been perfected and scheduled to be heard in February 2022, when the applicant will still have considerable time left to serve on his sentence. Accordingly, the reviewability interest is partially preserved even without release until the appeal is heard.

[43] Viewed from the perspective of a reasonable member of the public, the enforceability interest predominates and outweighs the reviewability interest given the less than strong grounds of appeal, the seriousness of the crimes, and the “lingering public safety … concerns”: Oland, at para. 50.

Conclusion

[44] Accordingly, the application is dismissed.

“B. Zarnett J.A.”

[1] The applicant had also been charged with uttering a threat in relation to the same complainant. He was acquitted of this charge.