COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Da Silva, 2021 ONCA 693

DATE: 2021-10-06

DOCKET: M52666 (C69670)

Miller J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Responding Party

and

Gabriel Da Silva

Applicant

Breana Vandebeek, for the applicant

Michelle Campbell, for the responding party

Heard: October 4, 2021 by video conference

ENDORSEMENT

[1] The applicant was convicted of sexual assault and failing to comply with a court order. He has received a custodial sentence of three years.

[2] The complainant was a 70-year-old personal support worker who had attended at the applicant’s home to assist the applicant with physiotherapy exercises and showering. The applicant had been injured in a workplace accident.

[3] In order to succeed on an application for bail pending appeal, the applicant must establish, per s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, that: a) the appeal is not frivolous; b) the applicant will surrender himself into custody in accordance with the terms of the release order; and c) the applicant’s detention is not necessary in the public interest. The applicant has the burden of establishing that each criterion is satisfied on a balance of probabilities: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19; R. v. Ruthowsky, 2018 ONCA 552, at para. 3.

[4] The Crown contests the application on the first and third grounds, arguing that the appeal is borderline frivolous, and that detention is necessary in the public interest.

[5] For the reasons that follow, I dismiss the application on the basis that the applicant has not established that his detention is not necessary in the public interest.

Analysis

[6] Establishing that detention is not necessary in the public interest turns on two considerations: public safety and public confidence in the administration of justice: Oland, at paras. 23, 26. Public safety and public confidence are not to be treated as separate silos: Oland, at para. 27. In this case, either public safety or public confidence considerations are sufficient to justify the applicant’s continued detention.

A. Public Safety

[7] Public safety justifies continued detention if the convicted individual is substantially likely to commit another offence or interfere with the administration of justice, and thereby endanger the safety of the public; and if detention is necessary for public safety: R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, at p. 737; R v. Stojanovski, 2020 ONCA 285 at para. 18; R v. T.S.D., 2020 ONCA 733 at para. 47.

[8] The applicant poses a sufficiently serious risk to public safety to justify his continued detention. He has a track record of failing to comply with court orders, notwithstanding that there were no incidents while he was on bail pending trial on these charges. The applicant’s charge for disobeying a court order arises out of a peace bond he entered for a previous sexual assault charge. There is a substantial likelihood that the applicant will commit another sexual crime or fail to abide by the terms of a release order, thereby endangering the safety of the public; continued detention is necessary in these circumstances.

B. Public Confidence

[9] Public confidence involves a balancing of the public interest in the reviewability of judgments against the public interest in enforcement. Factors to be considered are the strength of the grounds of appeal, the seriousness of the offences, the circumstances of their commission, and the sentence imposed: Oland, at paras. 24-25, 37-39.

[10] The seriousness of the crime, particularly when the victim was vulnerable, plays an important role in assessing the strength of the enforceability interest: T.S.D., at para. 52. The applicant has been convicted of a very serious offence: sexual assault of an elderly woman who was alone in his home in order to provide him personal care. It was a gross violation. It was not an aberration for the applicant, but the most violent and intrusive episode in a 30 year career of offending against the physical integrity of particularly vulnerable women.

[11] These are factors weighing strongly in favour of immediate enforceability of the judgment.

[12] With respect to the strength of the applicant’s appeal, the grounds of appeal – uneven scrutiny and misapprehension of evidence – do not clearly surpass the not frivolous standard, and therefore do not weigh strongly in favour of the reviewability interest. The trial judge convicted the applicant on the basis of factual findings for which the trial judge gave detailed reasons. The applicant is, for the most part, challenging findings on which the trial judge will be given the highest deference on appeal: R. v. C.L., 2018 ONCA 470, at para. 24. The claimed misapprehensions of evidence largely relate to inconsistencies in the complainant’s evidence. The trial judge, however, was alive to these inconsistencies – which he characterized as “minor” – and either reconciled them in his reasons or found them to be inconsequential. He found that the complainant was “at times confused” and her “reliability, that is, her accuracy on some points, was suspect.” Nevertheless, the trial judge found that her evidence on the core of the allegations – the sexual assault – was “consistent and reliable and I accept her evidence.”

[13] The uneven scrutiny argument is, in general, a difficult ground on which to succeed: R. v. Jones, 2018 CarswellOnt 11703, at para 8. The trial judge gave reasons for believing the complainant’s evidence. He also gave reasons for disbelieving the applicant, whom he characterized as a “remarkably poor witness,” particularly inconsistencies between the applicant’s police statement and his evidence at trial as to the nature and extent of his disability at the time of the incident. The trial judge found that at trial the applicant was overstating the degree of his disability and did not believe him. Neither was the trial judge persuaded by the applicant’s evidence that it was the complainant who was the aggressor, and initiated sex with him in the hope that the applicant would reward her with a generous tip. The trial judge gave the lengthy and careful reasons for believing or not believing the witnesses at this trial. Given the trial judge’s approach to the evidence and the deferential standard of review, this ground of appeal does not clearly surpass the not frivolous standard.

[14] At the hearing of this application, counsel for the applicant suggested that an ineffective assistance of counsel argument might also be raised in the future. In support, she provided an email exchange said to have taken place between the applicant and his counsel during trial, relating to whether the applicant should lead evidence as to his physical disability.

[15] Whether the applicant actually chooses to pursue this ground of appeal in the future, he has not yet done so. The proffered email is not in evidence on this motion, and I do not consider this potential ground of appeal in the analysis of the present motion.

[16] The reviewability interest is related to the strength of the grounds of appeal. I have already indicated that I believe these grounds to be extremely weak. I conclude that the public interest in the immediate enforcement of the applicant’s sentence outweighs the interest in releasing him pending an appeal of his conviction on the grounds stated, notwithstanding the absence of a flight risk. It is unlikely that the applicant will have fully served his sentence before the appeal is heard. The applicant can seek to have the appeal heard on an expedited basis.

Conclusion

[17] The application is dismissed.

“B.W. Miller J.A.”