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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211222 DOCKET: M52947 (C70000) Zarnett J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Respondent

and

K.K. Appellant/Applicant

Counsel: Delmar Doucette, for the applicant Natalya Odorico, for the respondent

Heard: December 8, 2021 by video conference

Endorsement

Introduction

[1] The applicant was convicted of sexual assault, uttering threats, and two counts of assault contrary to ss. 271, 264.1(1), and 266, respectively, of the Criminal Code, R.S.C. 1985, c. C-46. He received a global sentence of two years less a day and three years of probation. The applicant now seeks to be released on bail pending the hearing of his appeal from conviction.

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

Background

The Convictions Under Appeal

[3] The events which give rise to the convictions under appeal occurred on two separate occasions in 2018. The complainant was the applicant’s then domestic partner.

[4] Three of the counts on which the applicant was convicted arose from events on May 28, 2018 — sexual assault, uttering threats to cause bodily harm (including a threat to choke the complainant to unconsciousness), and assault (involving hitting the back of the complainant’s head and breaking one of the complainant’s fingers). The fourth count related to events that took place in or around August 2018 — an assault involving headbutting of the complainant.

[5] The applicant was charged with these offences on February 12, 2019. He was convicted on September 24, 2021 after a trial before a judge alone. (The applicant was acquitted on a fifth charge). On December 3, 2021, the applicant was given a global sentence of two years less a day and three years’ probation.

Other Offences Committed by the Applicant

[6] The applicant has a criminal record with offences that both predate and postdate those at issue on his appeal.

[7] In 2005, he was convicted of obstruction of a peace officer and assault causing bodily harm. In 2006, he was convicted of uttering threats to cause death or bodily harm. In 2012, he was convicted of assault. In 2013, he was convicted of assault causing bodily harm, failure to comply with a probation order, and mischief under $5,000.

[8] On December 3, 2018, the applicant pleaded guilty to other offences against the complainant: assault, forcible confinement, uttering threats, and mischief under $5,000. He was sentenced to 25 days in custody (in addition to 117 days of credit for pre-sentence custody), a 12-month conditional sentence order, and two years of probation.

[9] In May 2020, the applicant pleaded guilty to a charge that, in March 2020, he assaulted his current domestic partner, J.L. He also pleaded guilty to two counts of failure to comply with a probation order, and to one count that he failed, in April 2020, to comply with a condition of his release order relating to J.L., namely the no-contact provision. He was sentenced to 18 days in custody followed by 18 months of probation (with 42 days of credit for pre-sentence custody).

[10] On November 17, 2021, the applicant pleaded guilty to and was convicted of one count of breaching a no-contact order in relation to the complainant. He was sentenced to 45 days in custody.

The Application for Bail Pending Appeal

[11] The applicant applies for bail pending appeal to be effective when he is released from custody on the sentence he is currently serving for breach of the no-contact order relating to the complainant. He proposes J.L., his common-law partner, as his surety.

Analysis

[12] 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 release order; and (3) his detention is not necessary in the public interest: Criminal Code, s. 679(3)(a), (b) and (c).

[13] The Crown opposes the order, on the basis that the applicant has not met his onus to show that his detention is not necessary in the public interest.

[14] The public interest ground requires consideration of two matters: public safety and public confidence in the administration of justice. The two are not completely independent. In some cases, even though the applicant may satisfy the public safety threshold, residual public safety concerns may remain to be considered in the public confidence analysis. That latter 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.

The Enforceability Interest

[15] The enforceability interest in this case is animated by three considerations — the seriousness of the crimes, residual public safety concerns, and the applicant’s failure to follow court orders and terms of release.

[16] The seriousness of the crime, including the gravity of the offence and the circumstances of its commission, plays 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.

[17] The convictions under appeal are for offences committed against a domestic partner, and involved violence.

[18] Counts 1-3 relate to a prolonged violent incident in May 2018: the trial judge found that when the complainant refused to have sex with the applicant, the applicant put his hands around her throat, and threatened to choke her to unconsciousness unless she had sex with him. He then struck her repeatedly in the back of her head while she covered her face with her hands. At one point, he tore her phone from her hands, breaking her finger. He then forced vaginal intercourse on her as she was crying, knowing that she did not consent. The other count relates to an incident that occurred in or around August 2018: the trial judge found the applicant headbutted the complainant when she tried to escape the camper/trailer they were living in, and while she was pregnant.

[19] In addition to the seriousness of the crimes, 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. Although the applicant’s criminal record before 2018 is dated, it includes convictions for offences that involve violence. More recently, the applicant was convicted of offences against the complainant, including assault and threats, that are not the subject of the appeal. He also has an even more recent conviction for assault against his current domestic partner, J.L.

[20] The applicant’s counsel argues that the violent offences all occurred before May of 2020, when the applicant was addicted to cocaine, and that he has made significant strides to conquer the addiction since then. However, the Pre-Sentence Report for his sentencing, dated November 10, 2021, found that “standardized risk assessment tools place him at a high risk of reoffending, particularly in the area of domestic violence.”

[21] These kinds of concerns are in some cases attenuated by a strong history of compliance with bail terms pending trial, and by the release plan.

[22] But in this case, the applicant committed an offence against J.L. while awaiting trial on the offences under appeal. As well, he has a number of convictions for breach of probation and breach of the terms of his release.

[23] As for the applicant’s release plan, J.L is prepared to serve as his surety, under a release plan that contemplates them living together. They have a child together, and she has three children from a prior relationship. She advised the Pre-Sentence Report writer that she no longer fears he would resort to violence against her and that he has a good relationship with her children. He is a source of financial support for her and them. The applicant and J.L. also both depose that he has successfully abstained from cocaine use in part due to J.L.’s encouragement and support. The applicant has started receiving medical counselling for his cocaine addiction.

[24] The Crown expresses particular and marked concern about the release plan proffered by the applicant, given that the surety, J.L., has been a recent victim of domestic violence by the applicant for which he was convicted in May 2020 (see above, at para. 9). The Crown argues that, among other things, the fact that J.L. is a victim of violence and is dependent on him for financial and childcare support raises a concern as to whether the applicant would abide by J.L.’s directions and whether she would feel safe to report any breach. This is significant, including because he has a history of breaches of court orders and release terms.

[25] Generally, a victim of a bail applicant’s violence should not serve as surety: The Honourable Justice Gary T. Trotter, Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2021) at 7:10. The applicant argues that J.L. has shown a willingness to report prior misconduct by the applicant, including against herself, and the evidence indicates she is a positive force in the applicant’s life. Accepting this evidence and that each case must be judged on its own facts, I nevertheless do not consider the other concerns that animate the enforceability interest set out above to be materially attenuated by the release plan, when it is viewed from the perspective of public confidence in the administration of justice.

The Reviewability Interest

[26] 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 and 40-41.

[27] In my view, the appeal grounds, although rising above the “low bar” of being not frivolous, cannot be considered as clearly surpassing it. They each take issue with the trial judge’s processing of the evidence; findings of fact and credibility attract significant deference on appeal: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 23, leave to appeal refused, [2017] S.C.C.A. No. 294.

[28] The trial judge believed the complainant’s evidence. He did not believe the applicant, and found his evidence did not raise a reasonable doubt. He was satisfied on the evidence he did accept that the Crown had proven its case beyond a reasonable doubt on the four counts on which he convicted the applicant.

[29] The applicant argues that the trial judge employed stereotypes in rejecting the applicant’s evidence that the only sexual contact was initiated by the complainant, who pushed the applicant onto a chair and, against his will, performed oral sex on him while he protested, “This is wrong”. In my view, this will be a difficult argument. The trial judge noted that this description of what occurred was a change from the applicant’s previous two descriptions of the events given earlier in his own evidence, and that the applicant “was making this up”. Moreover, he found it difficult to believe that, given the size differential between them, the five foot one, 130-pound complainant could do this to an unwilling person who was approximately one foot taller and 100 pounds heavier. He considered the complainant’s version of the circumstances, including that the applicant had said, “This is wrong”, while he was sexually assaulting the complainant, to be believable.

[30] The applicant also argues that one of the Crown witnesses contradicted the complainant’s evidence concerning whether she appeared to have injuries or look dishevelled after the May 2018 encounter, but that the trial judge failed to treat this as a direct contradiction. Again, I would not consider that a strong argument. The trial judge found that witness not to be reliable, noting his recollection for detail was lacking. Although the applicant complains that the trial judge speculated that the lack of ability to recall was due to the passage of time, in my view, this argument still faces the same significant obstacle that confronts those directed at a trial judge’s factual findings.

[31] The applicant also argues that a Crown witness who testified about the August incident said she did not see any violence, and this contradicted the complainant and justified an acquittal on this charge. The trial judge, however, accepted the complainant’s evidence that the applicant headbutted her, rejected that of the applicant, and noted that “[s]imply because [the witness] may not have seen this does not mean it didn’t happen”; the trial judge was satisfied beyond a reasonable doubt that it did happen. Although the applicant argues that this was not a proper application of R. v. W.(D.), [1991] 1 S.C.R. 742, I am not satisfied that is a strong argument.

The Final Balancing

[32] In my view, the essential factors here are that the applicant has been convicted of serious crimes of domestic violence; he has other convictions and committed an offence of domestic violence while awaiting trial on these charges; he has been identified as having a high risk of re-offending in the area of domestic violence; he has a history of non-compliance with probation orders and terms of release; and the grounds of appeal, while not frivolous, do not clearly surpass that standard.

[33] When considered from the standpoint of public confidence in the administration of justice viewed through the eyes of a reasonable member of the public, the enforceability interest in this matter outweighs the reviewability interest.

[34] The applicant has not established that his continued detention is not necessary in the public interest.

Conclusion

[35] Accordingly, the application is dismissed. Upon perfection of the appeal, the applicant may apply for an expedited hearing date.

“B. Zarnett J.A.”