Publication Ban Warning
WARNING
The judge hearing this motion 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220606 Docket: M53479 (C70684)
Before: van Rensburg J.A. (Motion Judge)
Between: Her Majesty the Queen, Respondent and D.S., Applicant
Counsel: Lydia Riva, for the applicant Rebecca Schwartz, for the respondent
Heard and released orally: June 3, 2022 by video conference
Endorsement
[1] The applicant seeks bail pending appeal. He appeals his convictions of two counts of sexual interference and two counts of sexual assault for which he received a sentence of seven years in prison. The convictions are in respect of historical sexual assaults on the complainant, T.S., who is his niece. The events occurred during the 1990s, commencing when T.S. was about four years old and continuing for several years.
[2] The onus is on the applicant to meet the requirements of s. 679(3) of the Criminal Code to establish that the appeal is not frivolous, that he will surrender himself into custody, and that his detention is not necessary in the public interest. If he is released, the Crown and the applicant have agreed to the terms of the draft order, that include the applicant’s wife acting as his surety.
[3] The applicant was on bail with his wife as surety for three years before his trial and for five months post-conviction. The proposed terms of bail pending appeal are somewhat stricter than the terms of his pre-trial release, including a weekly reporting requirement.
[4] There are a number of grounds of appeal which can be summarized as the trial judge having given uneven scrutiny to the Crown and defence evidence, insufficient reasons, and an unreasonable verdict.
[5] The application is opposed on the third ground. The Crown, referring to the test in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, contends that the applicant has failed to establish that his detention is not necessary in the public interest.
[6] There are two prongs to be considered. First, the public confidence aspect, which entails a consideration of reviewability (which in turn engages the merits of the appeal) and enforceability (which engages consideration of the seriousness of the offences and other factors). The second prong is public safety.
[7] The thrust of the Crown’s submissions is on the first prong. Both counsel reviewed the grounds of appeal in some detail: they concern the trial judge’s treatment of the evidence of the three witnesses. Crown counsel concedes that the appeal is not frivolous, but contends that the grounds are weak.
[8] In my view, based on my review of the reasons for judgment, and counsel’s argument, at least the ground respecting the trial judge’s assessment of the complainant’s credibility may have some merit. There were several inconsistencies in the complainant’s testimony, which the trial judge resolved at least in part by concluding that she feigned memory loss to protect her uncle, drawing a parallel to a victim of domestic assault and rejecting the complainant’s own explanation, offered in cross-examination, that she had memory gaps brought on by drug use.
[9] While it is difficult to assess the strength of any of the grounds of appeal without transcripts (having regard to the fact that the grounds deal with the trial judge’s assessment of credibility and reliability), I am not prepared to say that the appeal is weak, such that enforceability would outweigh reviewability in this case.
[10] I turn to the public safety component of the public interest. While the events leading to the applicant’s conviction were extremely serious, they occurred in the 1990s. The applicant has another conviction for sexual interference (after he touched the crotch of the ten-year-old nephew of his then girlfriend) which occurred in 2011, and for which he received the minimum sentence after a guilty plea in New Brunswick. The applicant was on bail before trial and between his trial and sentencing without incident. In the circumstances of this case, I am satisfied that the terms of the consent order, which include provisions restricting his access to persons under the age of 16, would meet the public safety interest.
[11] For these reasons, bail pending appeal is granted on the terms of the draft order, which I hereby approve.
“K. van Rensburg J.A.”