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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220112 DOCKET: M53093 (C68076) Lauwers J.A. (Motion Judge)
BETWEEN
Her Majesty the Queen Respondent (Responding Party)
and
U.K. Appellant (Applicant)
Counsel: Mark C. Halfyard, for the applicant Amy Alyea, for the responding party
Heard: January 11, 2022 by video conference
Reasons for Decision
[1] On November 6, 2019, a jury found the applicant guilty of sexual assault. The trial judge sentenced him to two years less a day incarceration, followed by two years of probation, together with ancillary orders. The trial judge recommended that he be allowed to serve his sentence at the Ontario Correctional Institute in Brampton.
[2] Under the release order of Miller J.A., dated December 16, 2021, the applicant was released on bail pending appeal. His sister is his surety in the amount of $60,000, without deposit. He has been on bail without material variations since then.
[3] Among the applicant’s bail conditions are that he must remain in the Province of Ontario, reside at a certain location, and surrender his passports and “not apply for any travel documents.”
[4] While he was on bail before trial, the applicant was allowed to leave Canada twice, once to travel to Norway for three weeks for a wedding, and another time to travel to Pakistan for a month to attend another family wedding. He was also permitted to go to Montreal for a week for employment purposes. He returned to Ontario without incident.
[5] After he was convicted but before he was sentenced, the applicant requested permission to travel to Pakistan to visit his family. The application judge, Stribopoulos J., refused this request, even though the Crown had consented.
[6] Although the application judge acknowledged that the applicant had been permitted to travel before his conviction, he noted that “the circumstances have now changed. [The applicant] no longer benefits from the presumption of innocence. He has been found guilty of a very serious criminal offence and faces a lengthy period of imprisonment.” In the application judge’s view, at that point a penitentiary term seemed “rather likely.” As Justice MacPherson observed in R. v. Patterson, [2000] O.J. 3189 (C.A.), at para. 11:
Before trial, an accused person might reject flight because of the role optimism and hope play in the decision-making process. However, once convictions are entered, for [the accused] … the reality of lengthy incarceration must be a bitter pill to swallow. When optimism and hope recede, thoughts of flight might well advance.
[7] The application judge added the following: “In my view, despite his lack of any prior criminal record, the fact that [the applicant] has been found guilty and faces a lengthy sentence of imprisonment changes the calculus. For someone in his circumstances, $10,000 may seem like a very small price to pay to avoid a lengthy period of imprisonment.”
[8] The application judge acknowledged that there were many ties between the applicant and Canada, but found that the details about his Canadian situation and circumstances in Pakistan were sparse. For these reasons, he refused to vary bail to allow the applicant to travel to Pakistan.
[9] The applicant again requests a variation, but on a different basis. He asks to be permitted to go to Pakistan to resell a container load of automotive parts that he has shipped there, which is scheduled to arrive on January 15, 2022. He wishes to retrieve the shipped automotive parts and then to sell them in order to supplement his income as an automobile mechanic, which has declined significantly as a result of COVID-19. His affidavit states: “I am requesting a variation to my current bail order to allow me to travel to Pakistan for approximately a one-month period, between January 12, 2022 to February 12, 2022, and to changes to my residency clause during that period, and to permit me to retrieve my passport from the officer-in-charge”. He agrees to provide a detailed itinerary to the officer-in-charge in advance of the trip. He adds that his surety is aware of the request and has agreed to continue to act even though her $60,000 bail would be at risk.
[10] The applicant argues that the shortcomings in his previous bail variation application have now been remedied.
[11] The Crown argues that the application judge’s reasons continue to have weight and that this court should refuse the bail variation.
[12] It is common ground that the two main issues are whether the applicant would return without incident after the trip to Pakistan, and whether the public interest balance favours the variation.
[13] The first issue addresses the concern that the applicant might be a flight risk. The Crown acknowledges that the applicant has close ties to Canada. However, the applicant has dual citizenship in Canada and in Pakistan. Although he has strong Canadian connections, he also has significant connections in Pakistan. The inference the Crown invites is that the applicant could easily just stay in Pakistan. She points out that there is no extradition treaty between Canada and Pakistan and if the applicant refuses to return, nothing can be done.
[14] The Crown notes that the value of the shipment of automobile parts is $90,000. According to the applicant, these parts will typically sell for a 50 percent profit in Pakistan. In light of those numbers, the current bail amount of $60,000 does not look like much of a flight disincentive, even though it is a much larger amount than the $10,000 proffered at the previous post-conviction bail variation hearing. The Crown agrees that her flight concerns would be mitigated to some extent by an increase in the amount of the bail. Finally, she notes that there is no great necessity for the applicant to go to Pakistan. His brother, who works with him at his shop here could go, and the applicant has relatives in Pakistan who could also assist him.
[15] On the public interest issue, the Crown argues that the offence is a serious one and the sentence is also serious. The Crown relies on the decision of Thorburn J.A. in R. v. Sousa, 2020 ONCA 432, in which a bail variation was denied for an applicant convicted of a serious and violent sexual assault. She adds that the merits of the appeal are arguable but not strong. The Crown submits that it is open to this court to reconsider the merits, a proposition with which the applicant agrees.
[16] The applicant argues that the calculus presented to this court is quite different than the one before the application judge. Without disputing that this is both a serious charge and a serious offence, he points out that the application judge believed it likely that the eventual sentence would involve penitentiary time. It did not. In fact, it is expected that the applicant will serve no more than eight months in jail, assuming that his appeal is dismissed. It is unlikely that this sentence would create a sufficiently strong incentive for the applicant to abscond and abandon his life in Canada.
[17] As for the public interest balance, the applicant points out that Sousa involved a violent sexual assault on a stranger for which the applicant received a ten-year-sentence. Such an assault poses residual public safety concerns, but does not resemble the assault in this case. The applicant has complied with his bail conditions throughout. The applicant agrees that it is open to this court to increase the bail amount to enhance the pressure on the applicant to return to Canada.
[18] I do not believe that the applicant poses a serious flight risk, but I am unable to say that there is no such risk. Accordingly, I would increase the amount of the bail to $125,000. I do not believe that the public interest grounds are overwhelming in this case, as they were in Sousa. In particular, I have no residual public safety concerns about the applicant.
[19] I would therefore vary the release order as requested, except for the bail amount, which I would increase to $125,000. Order accordingly.
“P. Lauwers J.A.”