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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220602 DOCKET: M53457 (C70655) Brown J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Respondent (Responding Party)

and

S.T. Appellant (Applicant)

Counsel: Mark C. Halfyard and Chloe Boubalos, for the applicant David Friesen, for the responding party

Heard: May 31, 2022 by video conference

Endorsement

Overview

[1] The applicant, S.T., applies for release pending the determination of his appeal from his February 17, 2022 conviction on one count of sexual assault contrary to s. 271 of the Criminal Code, R. S.C., 1985, c. C-46: R. v. Tahan, 2022 ONSC 1103.

[2] The applicant lives in Vancouver. His work takes him across the country. The offence charged arose out of events in Port Elgin on September 29, 2018. The applicant’s trial took place in the Superior Court of Justice in Walkerton before a judge alone. On May 27, 2022, the applicant was sentenced to a 28-month term of imprisonment: R. v. Tahan, 2022 ONSC 3180.

[3] Prior to the events that led to the charge, the applicant (22) and complainant (19) had not known each other. The applicant had spent the early part of the night at a local bar. Sometime after he left, he met the complainant somewhere in the downtown Port Elgin area. She accompanied him back to the residence where he was staying. They engaged in sexual intercourse, both vaginal and anal.

[4] In convicting the applicant, the trial judge found that by reason of the amount of alcohol that the complainant had consumed before she met the applicant, the complainant did not have the necessary operating mind to understand the specific identity of her sexual partner and she did not know with whom she had sex: at paras. 111, 134. In reaching that conclusion, the trial judge relied, in part, on evidence from a workplace associate of the applicant, J. As the complainant was leaving the bedroom with the complainant, she made statements to J. suggesting that she thought the applicant was the boyfriend of her best friend. The applicant was not; he was a stranger to the complainant and her best friend.

[5] The trial judge also held that the Crown had proven beyond a reasonable doubt that the applicant knew the complainant was incapable of consenting to the sexual activity: at para. 148. Although the applicant did not testify at trial, his statement to the police was admitted for the truth of its contents. The trial judge did not find credible the applicant’s assertion in the interview that he had blacked out due to intoxication for about two hours when he was with the complainant. He considered the applicant’s statement to be at odds with how the applicant appeared on a security video from the bar that the applicant had attended before he met the complainant, and evidence from a police officer who spoke to the applicant shortly after the event to the effect that the applicant appeared sober. The trial judge went further and found that the applicant was fabricating an exculpatory version of events during his interview with the police: at para. 99.

[6] The grounds of appeal set out in the applicant’s notice of appeal from conviction are largely fact-related. The applicant contends that: the finding about the applicant’s sobriety was unreasonable because the grainy quality of the video provided an unreliable basis upon which to conclude the applicant was not intoxicated at the bar; the finding that the applicant fabricated exculpatory evidence in his police statement was made in the absence of independent evidence of fabrication; the trial judge applied a different standard of scrutiny to the evidence; and the trial judge erred in finding that J., the applicant’s work associate, was partial to the applicant and using that finding to lessen the weight attached to J.’s evidence.

[7] The bar’s security video was not filed as evidence on this application. Since the transcripts of the trial are not yet available (although they have been ordered), on this application the applicant relies upon the written reasons of the trial judge.

[8] The applicant proposes release on a recognizance in the amount of $20,000, without deposit, with his Vancouver-based brother as surety in the amount of $30,000, and subject to several other conditions.

Analysis of the Criminal Code s. 679(3) Criteria

[9] An applicant who seeks release pending determination of his appeal from conviction must demonstrate that the appeal is not frivolous, he will surrender into custody in accordance with the terms of the order, and his detention is not necessary in the public interest: Criminal Code, s. 679(3).

Not frivolous: s. 679(3) (a)

[10] The bar for establishing that an appeal is not frivolous is “very low”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. As described by Watt J.A. in R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: “An appeal is not frivolous if the proposed grounds of appeal raise arguable issues.”

[11] The Crown concedes that the applicant’s appeal clears the “not frivolous” bar, however not by much.

Surrender into custody: s. 679(3) (b)

[12] The Crown also accepts that the applicant will surrender himself into custody in accordance with the terms of the release order.

Public interest: s. 679(3) (c)

[13] The public interest criterion in s. 679(3) (c) of the Criminal Code consists of two components: public safety and public confidence in the administration of justice: Oland, at para. 23. As Arbour J.A. put the matter in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48, the concerns reflecting the public interest in s. 679(3)(c) of the Criminal Code “relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability.”

[14] The Crown submits that there are “lingering” public safety concerns that the release plan does not address: the offence was a serious one; it occurred when the applicant was travelling away from his Vancouver home; and in his sentencing reasons the trial judge commented that there was an element of predation on the facts of the case. The Crown submits the applicant continues to travel across the country for his work and points out that a few months after the sexual assault charge was laid the applicant breached his undertaking by drinking in a bar in Quebec City, where he was working on a project. The Crown contends the release plan is problematic as, under it, the applicant will continue to travel across the country for work purposes.

[15] I am not persuaded that the release of the applicant would pose public safety concerns. Apart from the one breach of his undertaking in Quebec City – to which the applicant pleaded guilty and received an absolute discharge – the applicant otherwise complied with the conditions of his undertaking for over three years. During that time, he was not subject to supervision by a surety. Following his conviction this past February, the applicant remained out of custody on his undertaking, without incident, until he surrendered upon his sentencing. As well, the applicant has no prior criminal record and there is no evidence the applicant poses a flight risk.

[16] As to the enforceability interest, the offence for which the applicant has been convicted is a serious one that has attracted a penitentiary term of 28 months.

[17] Turning to the reviewability interest, it is difficult on this application to assess the strength of the grounds of appeal (which are largely fact-based) in the absence of a recording of the bar security video and the transcripts of the evidence. In those circumstances, I see no utility in finely parsing the grounds of appeal as proposed by counsel. I am satisfied that the grounds of appeal clearly surpass the minimal standard to meet the “not frivolous” criterion.

[18] In my view, in the present circumstances the most significant factor that informs the public confidence analysis is that stated by the Supreme Court of Canada in Oland, at para. 48:

In balancing the tension between enforceability and reviewability, appellate judges should also be mindful of the anticipated delay in deciding an appeal, relative to the length of the sentence … Where it appears that all, or a significant portion, of a sentence will be served before the appeal can be heard and decided, bail takes on greater significance if the reviewability interest is to remain meaningful.

[19] Here, the applicant would be eligible for parole after serving slightly more than nine months of his sentence. Although applicant’s counsel has ordered the transcripts and, no doubt, will act diligently to perfect the appeal, I accept his estimate that it is unlikely this appeal would be heard before early next year. That is to say, the appeal likely will be heard by the time the applicant has served a significant portion of his sentence and becomes eligible for parole.

[20] In the circumstances of this case, the anticipated delay in deciding the appeal tips the balance in favour reviewability overshadowing the enforceability interest. Accordingly, I am satisfied that the detention of the applicant pending the disposition of his appeal is not necessary in the public interest.

Analysis of the Release Plan

[21] The parties have filed a draft release order. Three terms are in dispute.

Frequency of reporting to the police

[22] First, the Crown proposes, as Condition 14, that the applicant report by phone to Saugeen Shores Police Service every second Tuesday between the hours of 9:00 a.m. and 4:00 p.m. and advise them of his current location. Applicant’s counsel suggests that monthly reporting would be sufficient. Given that the applicant lives out-of-province and travels frequently as part of his job, I think the bi-weekly reporting condition is reasonable.

Curfew

[23] Second, proposed Condition 13 would require the applicant to remain in his residence between 10 p.m. and 6 a.m., whether he is in Vancouver or working outside of Vancouver, subject to several exceptions. Applicant’s counsel submits that while the initial undertaking contained a similar curfew, it was lifted after about nine months by way of a July 4, 2019 variation order and should not form part of the release order.

[24] I am not persuaded of the need for the curfew contained in draft Condition 13. The initial curfew condition was lifted in July 2019 and the evidence discloses that the applicant has complied with his conditions of release since that time.

Suitability of the proposed surety

[25] The final issue concerns the applicant’s proposed surety, his brother, who is two years his senior and also lives in Vancouver. The brother proposes to act as surety in the amount of $30,000, without deposit.

[26] The Crown submits that the brother is not an appropriate person to act as surety as he lives outside of Ontario and has no assets in Ontario that could be seized in the event of a forfeiture order.

[27] In support of that position, the Crown relies on two cases: one a Chambers decision of a judge of this court, R. v. Martin (No. 2) (1980), 57 C.C.C. (2d) 31 (Ont. C.A.); the other the decision of a panel of the British Columbia Court of Appeal in R. v. Fleming, 2007 BCCA 219, 238 B.C.A.C. 317. Before considering those cases, some brief comments are required about the legislative history of what are now certain sub-sections of s. 771 of the Criminal Code.

[28] Sections 770 and 771 of the Criminal Code set out the forfeiture procedure available upon the default of a person to comply with an undertaking, release order or recognizance. Section 771 provides for the hearing of an application against the principal and/or surety for the forfeiture of the amount set out in the undertaking, release order or recognizance. If granted, the application results in a forfeiture order “with respect to the forfeiture of the amount that the judge considers proper”: s. 771(2). A forfeiture order makes the principal and their sureties judgment debtors of the Crown, each in the amount the judge orders them to pay: s. 771(3).

[29] What is now ss. 771(3.1) of the Criminal Code describes the mechanics of enforcing a forfeiture order: once a forfeiture order is made, it may be filed with the clerk of the superior court and, if an order is filed, “the clerk shall issue a writ of fieri facias in Form 34 and deliver it to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or has property.”

[30] Prior to 1972, the wording of the provision – then s. 705(3) − was different. It provided that upon the making of a forfeiture order, the clerk of the court shall issue a writ of fieri facias and “deliver it to the sheriff of the territorial division in which the order was made.” That language was amended to the present version by the Criminal Law Amendment Act, 1972, S.C. 1972, c. 13, s. 60.

[31] The reason for the amendment was explained during the June 1, 1972 session of the Senate Standing Committee on Legal and Constitutional Affairs, which was considering the amending bill. Mr. D.H. Christie, Assistant Deputy Attorney General, explained to the Committee, at p. 8:20 of the proceedings:

This is a very technical amendment. It was pointed pointed out that under the law as it now exists the writ of fieri facias has to be delivered to the sheriff in the territorial division in which the order was made. It often happens that the accused has no assets, or does not even live in that division. This is now amended so that the writ of fieri facias shall be delivered to the sheriff of the territorial division in which the person against whom the order is made has property, resides or carries on business.

[32] The Criminal Code, then and now, defines “territorial division” to include “any province, county, union of counties, township, city, town, parish or other judicial division or place to which the context applies.”

[33] It was against that statutory history that the decisions upon which the Crown relies – Martin and Fleming – were made.

[34] In Martin, the Crown Attorney in the City of Ottawa was not prepared to accept as sureties two persons whose security consisted of real property located across the river in Quebec. An application was brought before Thorson J.A. for directions, which he dismissed.

[35] In obiter, Thorson J.A. expressed “a serious doubt about the effectiveness of any order for the release of a person where it is implicit in the terms of the order for his release that some security will have to be put up by a surety, but the only security that is or can be put up is real or immovable property in another Province”: at p. 33. He went on to explain:

It would appear to me that the relevant provisions of Part XXII of the Criminal Code [1] (in particular ss. 704 and 705 [2] [am. 1972, c. 13, s. 60] and the definition of the expression "clerk of the court" in Part XXII) [3] when read together make it impossible to give effect to an order for release in the circumstances described above, for the reason that the surety is not "put at risk" of having his property taken in execution in the event of a default occurring on the recognizance resulting in its forfeiture. If this is so, then it seems clear that the surety cannot be taken to be a "sufficient" surety.

[36] In Fleming, bail was granted by a Supreme Court judge on the condition the accused provide a surety in the amount of $100,000. The accused proposed a surety from outside the province, whom a justice of the peace refused to accept. The Supreme Court judge ended up ordering bail with a $100,000 cash deposit. The Chief Justice ordered a review of the bail order pursuant to s. 680(1) of the Criminal Code to consider whether the Supreme Court judge was wrong to refuse an out-of-province surety.

[37] A panel of the B.C. Court of Appeal concluded that the Supreme Court judge was right to find that the proposed surety was insufficient. In addition to referring to s. 771(3.1), the panel pointed to s. 772(1), which states:

Where a writ of fieri facias is issued pursuant to section 771, the sheriff to whom it is delivered shall execute the writ and deal with the proceeds thereof in the same manner in which he is authorized to execute and deal with the proceeds of writs of fieri facias issued out of superior courts in the province in civil proceedings.

[38] After referring to those two sections, the panel wrote, at para. 6:

The process is limited by the territorial jurisdiction of the criminal court that issued the writ. Nothing in the provisions just noted permit a B.C. court exercising its criminal jurisdiction to enlist the services of sheriffs in another province. Nothing in the provisions grant British Columbia sheriffs the right to operate extra-provincially. Thus, if a surety puts up property in another province, the property would not be at risk and the surety therefore insufficient.

[39] Relying on Martin and Fleming, the Crown submits that the applicant’s brother is not an appropriate person to act as surety as he lives outside of Ontario and has no assets in Ontario that could be seized in the event of a forfeiture order.

[40] The applicant submits that Fleming was wrongly decided and should not be followed for several reasons.

• First, Fleming’s analysis ignores the breadth of the definition of “territorial division” in the Criminal Code, which includes any province. Accordingly, the language of s. 771(3.1) that the clerk of the court deliver the writ of fieri facias “to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or has property” is sufficient to permit the clerk in one province to transmit the writ to a sheriff in another;
• Second, the writ of fieri facias delivered by the clerk is not the writ of execution or fieri facias used under provincial civil rules of procedure, but a form specific to the Criminal Code – Form 34 – which, by its terms, is directed “to the sheriff of (territorial division)”, a broadly defined term; and
• Third, Fleming creates a situation where no one could propose an out-of-province surety unless they posted a cash bond. This would be contrary to the restrictive approach to cash bonds directed by the Supreme Court in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 67 (h), when the alternative exists that the accused or their sureties have reasonably recoverable assets available for pledge to the court to justify the accused’s release.

[41] I am persuaded by the applicant’s submission that I should not follow the obiter in Martin or the decision in Fleming. While the court in Fleming wrote that nothing in ss. 771(3.1) or 772(1) of the Criminal Code would permit a court in one province exercising its criminal jurisdiction to “enlist the services of sheriffs in another province”, in my respectful view the plain language of the Criminal Code grants such authority.

[42] As appears from the legislative history of s. 771(3.1) and its predecessor described above at paras. 30 and 31, the 1972 amendment to the predecessor provision – s. 705 – was designed specifically to deal with the situation where the accused, or his surety, has no assets in the “territorial division” in which the forfeiture order was made. The provision was amended to recognize the practical reality of a mobile Canadian population and enable the clerk of the court to deliver the writ of fieri facias to the sheriff “of each of the territorial divisions in which the principal or any surety resides, carries on business or has property.” As well, s. 771(3.1)’s enforcement mechanism does not rely on provincial forms of writs of execution or fieri facias, but uses a type of writ of fieri facias tailor-made for criminal forfeiture proceedings that is directed “to the sheriff of (territorial division)”. Since the Criminal Code includes in its definition of “territorial division” any province, s. 771(3.1) enables the clerk in the territorial division in which the forfeiture order is filed to deliver a Form 34 writ of fieri facias to the sheriff in each province where the accused, or his surety, “resides, carries on business or has property”.

[43] In my view, the authority for a clerk of the court to direct a Form 34 writ of fieri facias to a sheriff in another province to further the enforcement of a forfeiture order is patent on the face of the statutory language in s. 771(3.1) chosen by Parliament to express its intention and is consistent with furthering the administration of the national bail scheme created by federal statute. As Trotter J.A. observes in the Law of Bail in Canada, loose-leaf, 3rd ed. (Toronto: Carswell, 2022) at §13:19, forfeiture orders “are enforced by writs of fieri facias, allowing the assets of the judgment debtors to be traced to any territorial division.” I also accept the applicant’s submission that such an interpretation of s. 771(3.1) facilitates the restrictive approach to cash bail directed by the Supreme Court in Antic.

[44] Consequently, I do not regard the fact that the proposed surety lives in Vancouver as precluding his suitably to act as surety. I am otherwise satisfied that the applicant’s brother is an appropriate person to act as surety.

Summary and Disposition

[45] I am satisfied that the applicant has established the criteria for release set out in s. 679(3) of the Criminal Code. I grant his application. Subject to the deletion of proposed Condition 13, I approve the draft release order and an order is to go in that form.

“David Brown J.A.”

Footnotes

[1] Now Part XXV. [2] Now ss. 770 and 771. [3] The definition has not changed since the 1972 edition of the Criminal Code. It is now found in s. 762(2): “‘clerk of the court’ means the officer in column III of the schedule in respect of the court designated in column II of the schedule.” In the case of the Court of Appeal for Ontario, the Schedule now designates the Registrar of the Court of Appeal; in 1972 it designated the Registrar of the Supreme Court.