WARNING The motion judge presiding over this hearing 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220119 Docket: M52958 (C70015) Before: Tulloch J.A. (Motion Judge)

Between: Her Majesty the Queen Respondent

And: T.M. Appellant/Applicant

Counsel: Katie Heathcote, agent for counsel for the applicant Craig Harper, for the respondent

Heard: November 24, 2021 by video conference

Reasons for Decision

[1] On April 7, 2021, following a judge-alone trial in the Superior Court of Justice, the applicant, T.M., was convicted of sexually assaulting his intimate partner and choking her to overcome resistance to the offence. He was sentenced to four years’ imprisonment.

[2] The applicant now seeks release pending appeal on the basis of an alleged misapprehension of evidence, and, more particularly, that the trial judge made substantial errors in her assessment of the evidence and in her credibility assessment.

[3] The Crown disagrees and opposes the applicant’s release on the basis that the pending appeal is frivolous, as well as on the tertiary ground that it would be contrary to the public interest.

Facts

[4] At the applicant’s trial, the court heard evidence from the complainant and a police officer. The defence called no evidence. The Crown and defence agreed that if the trial judge accepted the Crown’s evidence, then the offences would have been made out.

[5] The underlying facts as found by the trial judge and on which the convictions are based are as follows. The complainant and the applicant were involved in a domestic intimate relationship from sometime in 2014 or 2015 to August 2016. On July 5, 2016, the complainant’s father passed away, and the funeral was held on July 7, 2016. On July 9, 2016, two days after the complainant’s father’s funeral, she was in her bedroom resting when the applicant entered the bedroom and told her that he wanted her to be “more of a girlfriend to him” and more attentive. The complainant indicated to the applicant that she wanted to be left alone, but the applicant would not take “no” for an answer.

[6] The applicant tried to take off the complainant’s yoga pants and a black spaghetti-strap shirt. He forced her legs open and pushed himself on top of her. Her pants were ripped in the struggle. The complainant was crying and said “please don’t do this to me”. The applicant had his hand around her neck and pinned her down, so she was not able to breathe. She testified that she felt absolutely defeated.

[7] The applicant penetrated the complainant vaginally. He was not satisfied and told her to turn around. She said no. The applicant, in response to her refusal, punched her in the side of her body and forced her to turn around by her hair. This caused the left side of her face to hit the wall. He tried to bite the complainant’s face but bit her hand instead. He then forced anal sex on her. She stated that it hurt, and she did not know how long this lasted. The complainant had sore ribs but did not receive medical attention.

[8] The applicant did not testify.

The Applicant’s Criminal Antecedents

[9] The applicant has a long criminal record, dating back to 1985, as well as a history of violence against domestic partners. The offences for which he has been previously convicted include offences of violence, such as assaults, assault causing bodily harm, crimes of dishonesty (theft and public mischief), participation in a criminal organization, illegal transfer of a firearm, possession of proceeds obtained by crime, failure to comply with court orders while on release (four convictions), and failure to comply with probation.

[10] Of particular relevance to this application for release pending appeal, are the applicant’s previous convictions for very serious assaults against intimate partners. There are two sets of such convictions, all of which involved different intimate partners and different time frames.

[11] The first convictions against an intimate partner involves a set of offences committed between 2002 and 2010, which resulted in convictions in 2013 for assault, aggravated assault, assault with a weapon, and uttering threats. The underlying facts for this first series of offences involved the applicant striking the complainant with a piece of wood which caused the complainant’s arm to be fractured. He was also convicted of choking the complainant, and of grabbing and throwing her on the bed. This series of offences resulted in ongoing physical difficulties to the complainant.

[12] The second set of offences involving an intimate partner resulted in the applicant being convicted of assault causing bodily harm on October 16, 2018. On February 25, 2018, the complainant returned home from church to find the applicant in her residence. They engaged in a verbal argument. Without warning, the applicant punched the complainant directly in the face, knocking her unconscious. She regained consciousness as he dragged her across the kitchen floor by her ankles. The applicant proceeded to choke her with his hands around her neck, and then placed her in a bear hug from the front, making it extremely difficulty for her to breathe. He pushed her up against the kitchen cupboards, causing her to strike the back of her head on the cupboard handle. He then began choking her around her neck again. Throughout the assault, he made threatening comments to her, and she lost consciousness at least one time. This offence occurred while the applicant was on bail pending trial for the instant offences. His sister was his surety at that time. The applicant pled guilty.

Proposed Sureties

[13] In this application for release pending appeal, the applicant has submitted a proposed plan of release, in which he proposes as sureties his sister as well as his new wife, who he has been married to since June 13, 2021. None of the affidavits of the proposed sureties for this application referenced the applicant’s criminal record or addressed his past breaches of court orders. They did not address what would be different this time around, after the applicant has been convicted for yet another series of offences involving another intimate partner.

Analysis

[14] An application for release pending appeal is governed by s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46. The applicant must satisfy the court that:

a. the appeal or application for leave to appeal is not frivolous;

b. he will surrender himself into custody in accordance with the terms of the order; and

c. his detention is not necessary in the public interest.

[15] The applicant bears the burden of meeting each criterion on a balance of probabilities. As the applicant has now been convicted, he no longer benefits from the presumption of innocence: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 35.

Section 679 (3)(a): The Appeal is Not Frivolous

[16] The “not frivolous” test is a very low bar: Oland, at para. 20. It is not, however, non-existent. The applicant must provide an outline of his argument supported by legal authority and a factual underpinning so that the court can determine whether the applicant has met the burden under s. 679(3) (a). In essence, the applicant must show the proposed appeal raises arguable issues: R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38. If a judge is unable to determine on the record before the court if the onus has been met, the applicant has not established his or her onus of proof that the appeal is not frivolous.

[17] The applicant submits that the trial judge misapprehended the evidence, and as such, the appeal is arguable. I disagree. A close examination of the applicant’s proposed ground of appeal within the context of the evidentiary narrative leads to the conclusion that there is no merit to this ground of appeal. The legal test for a misapprehension of evidence was succinctly stated by this court in the case of R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict… If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[18] The Supreme Court of Canada in the case of R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, clarified the test for misapprehension of evidence as enunciated in Morrissey:

Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

[19] The basis of the applicant’s argument is in an affidavit by a lawyer, Arden Ross, who asserts that he reviewed the trial notes of the applicant’s trial counsel as they pertain to the complainant’s evidence. From that review, he concludes that the complainant’s evidence is irreconcilable, as the complainant gave evidence indicating that the applicant remained “inside” of her while he punched her side and grabbed her by the hair, forcing her to turn over onto her stomach during the described sexual assault.

[20] The trial judge dealt directly with this submission and the concerns raised by the defence. She considered the totality of the evidence, and she addressed the concerns and perceived inconsistencies:

The defence in submissions takes issue with the chronology of these events and questions whether all of those things she described could be happening at once, such as the forced vaginal intercourse; the hand around her throat, the punch to her side, the attempt to bite her face. The difficulty with this submission is that this was not put to the witness. She maintained in her evidence that all of these events took place and some inconsistency in her evidence as to whether the accused was standing or on the bed with her when he was forcing anal intercourse, and whether her top was ripped off or just ripped does not detract from her evidence overall.

Her evidence in relation to the incidents of July 9th, 2016, is detailed and straightforward, and any minor inconsistencies do not concern any material issues.

[21] In my view, this is a complete answer to the applicant’s ground of appeal based on a misapprehension of the evidence. It is clear from the above excerpt that the trial judge understood the concerns raised by the defence, she turned her mind to the complainant’s evidence on the issue in concern, and she addressed the fact that the complainant was not cross-examined on the perceived inconsistencies with this portion of the evidence. It is clear that the trial judge considered the defence arguments in her weighing and assessment of the credibility and reliability of complainant’s evidence, and in the end, she was satisfied beyond a reasonable doubt that the Crown had discharged its burden of proof.

[22] In my view, the applicant’s proposed ground of appeal does not go to the substance of the evidence. The sole issue at trial was the credibility and reliability of the complainant’s evidence. The complainant was the only witness who testified on the issues pertaining to the elements of sexual assault that the Crown was required to prove. The applicant chose not to call any evidence, which was his right. Unfortunately for him, the only credible evidence which the trial judge was left with to determine the guilt or innocence of the applicant was the unimpeached evidence of the complainant.

[23] The proposed ground of appeal which the applicant has couched under the rubric of a “misapprehension of the evidence” goes to the detail rather than the substance of the evidence and was clearly not material, but rather peripheral, to the reasoning of the trial judge. The trial judge gave very clear and detailed reasons why she accepted the evidence of the complainant, and why she was not left with any reasonable doubt by the arguments of the defence. In my view, the very low test of “not frivolous” has not been met by the applicant in this case.

Section 679(3)(c): Detention is Not Necessary in the Public Interest

[24] Furthermore, even if the ground of appeal were arguable, I find that pursuant to s. 679(3) (c), the applicant has not discharged his onus of establishing that his detention pending his appeal is not warranted in the public’s interest.

[25] An assessment of the public interest requires an assessment of public safety and public confidence in the administration of justice.

[26] “Public safety” involves an assessment of the secondary ground concerns governing pre-trial release under s. 515(10)(b) of the Criminal Code, R.S.C. 1985, c. C-46. As explained in R. v. Stojanovski, 2020 ONCA 285, at para. 18, bail will be denied if the following conditions are met: (i) the individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety. A history of breaching court orders is an “important factor in gauging” how an applicant will perform on bail: R. v. L.D., 2021 ONCA 786.

[27] Public safety concerns, standing alone, can justify refusing bail in the public interest. As pointed out earlier, the applicant has a significant criminal record for violence and for breaching court orders. In addition, he now has two sets of convictions for intimate partner violence, one of which was committed while on bail and awaiting trial for the instant charges. By virtue of the applicant’s criminal antecedents, there is a clear indication that the applicant poses a substantial likelihood of committing a subsequent offence, which could endanger the protection or safety of the public. As such, I am satisfied that the applicant’s detention is necessary for public safety.

[28] The second category, “public confidence,” requires an assessment and balancing of the competing interests of enforceability and reviewability. The interest of enforceability is assessed with a view to the seriousness of the crime: the more serious the crime, the greater the risk that the public’s confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: R. v. T.S.D., 2020 ONCA 773, at para. 52; Oland, at para. 37. The reviewability interest considers the strength of the appeal, having regard to the general legal plausibility and evidentiary support for the proposed grounds of the appeal: T.S.D., at para. 56; Oland, at paras. 40 and 44.

[29] In my view, the enforceability interest is significant in this case and overrides the reviewability interest. The applicant was convicted of a very serious and violent sexual assault against his intimate partner. He also has a history of intimate partner violence and of breaching court orders.

[30] I acknowledge that, more likely than not, the appeal will be heard before the applicant has served his sentence, and as such, the interest of reviewability militates in favour of release pending appeal. However, as I explained earlier in these reasons, in my view there is no prospect of success on this appeal, as the proposed ground of appeal lacks merit.

[31] Accordingly, the public interest in maintaining confidence in the administration of justice militates in favour of enforceability in this case.

Disposition

[32] For these reasons, the application for release pending appeal is dismissed.

“M. Tulloch J.A.”