Publication Ban Warning

WARNING

The judge 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221020 Docket: M53814 (COA-22-CR-0177) Judge: Huscroft J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent

and

Jacob Hoggard Appellant

Counsel: Megan Savard, for the appellant Catherine Weiler, for the respondent

Heard: October 20, 2022 by video conference

Reasons for Decision

[1] The appellant was convicted of sexual assault causing bodily harm following a jury trial. He was acquitted of sexual interference and sexual assault concerning a second complainant. He has applied for release pending determination of appeal pursuant to s. 679 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The application is allowed for the reasons that follow.

[3] The circumstances in which an appellant may be released pending determination of appeal are set out in s. 679(3) of the Criminal Code:

679 (3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes 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.

The burden is on the appellant to establish compliance with these criteria.

[4] The Crown concedes that the first two criteria set out in ss. 679(3)(a) and 679(3)(b) are satisfied: the appeal is not frivolous and there is no flight risk; the appellant will surrender into custody as required.

[5] Accordingly, the question is whether the appellant can establish that his detention is not necessary in the public interest under s. 679(3)(c). The public interest criterion has two components: public safety and public confidence in the administration of justice: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23, 26.

[6] There are no public safety concerns that weigh in favour of detention. The Crown points out that the appellant is facing another criminal charge that predates this offence, and points to the trial judge’s reference in her reasons for sentence to risk posed by the appellant. But the Crown acknowledges that there is no substantial safety concern. The appellant has been on bail since he was charged without incident and was released following his conviction.

[7] The strength of the appellant’s appeal is relevant in determining whether his interest in having his conviction reviewed outweighs the public interest in his immediate detention. The appellant will raise several arguments on appeal, including the following:

1. The trial judge erred in law in admitting irrelevant and unnecessary expert opinion of Dr. Lori Haskell;
2. The trial judge wrongly permitted Crown counsel to argue that Dr. Haskell’s evidence supported the complainant’s credibility, contrary to this court’s decision in R. v. D.M., 2022 ONCA 429;
3. The trial judge’s charge to the jury was impermissibly imbalanced; and
4. The trial judge refused to sever charges relating to a second complainant, resulting in the improper admission of discreditable conduct evidence at the Appellant’s trial.

[8] It is difficult to assess the strength of these arguments in the context of a motion such as this. The Crown submits that some of the arguments barely surpass the not-frivolous standard. The Crown accepts that they are “arguable”, but even this is a vague standard; some issues are more arguable than others.

[9] In determining whether detention is necessary to maintain public confidence in the administration of justice, the relevant factors are: (1) the gravity of the offence; (2) the circumstances surrounding the commission of the offence; (3) the potential for a lengthy term of imprisonment; and (4) the strength of the appeal.

[10] The offence in this case is extremely serious and there are significant aggravating circumstances. The appellant has received a substantial term of imprisonment. Plainly, there is a strong public interest in enforcing his convictions. The question is, how is this to be balanced against the interest in reviewing his conviction? The question cannot be reduced to a formula. In Oland, the Supreme Court said at para. 51:

[W]here public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the “not frivolous” criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences.

[11] In all of the circumstances, given that the appellant poses no public safety or flight concerns and raises arguable grounds of appeal, I am satisfied that his detention is not necessary in the public interest.

[12] The application is granted. The appellant can be released pursuant to the terms of the draft order.

[13] I note that the appellant wishes to establish an abbreviated timetable for the appeal, so the bail period may be reasonably brief. I am available to case manage the appeal as required.

“Grant Huscroft J.A.”