Publication Ban Warning

WARNING

The Motion 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220127 Docket: M53067 (C70153)

Lauwers J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Respondent (Responding Party)

and

A.B. Appellant (Applicant)

Counsel: James Coulter, for the applicant Nicolas de Montigny, for the responding party

Heard: January 14, 2022 by video conference

Reasons for Decision

[1] The applicant was convicted of two counts of child luring contrary to s. 172.1(1)(b) of the Criminal Code, R.S.C., c. C-46 “for the purpose of facilitating the commission of an offence of sexual assault”, and one count of making child pornography contrary to s. 163.1(2). The applicant was sentenced to 36 months concurrent for child luring and 5 months consecutive for child pornography, based on the totality principle. This sentence included a 30-day credit for restricted bail conditions, which was subtracted from the child pornography sentence. The total sentence is 41 months.

[2] The applicant is appealing his conviction and is seeking leave to appeal his sentence. He seeks judicial interim release pending his appeal. For the reasons that follow, I dismiss the application for bail pending appeal.

A. The Governing Principles

[3] Applications for bail pending conviction appeal are governed by s. 679(3) of the Criminal Code. The applicant must satisfy the court, on a balance of probabilities, 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.

[4] The Crown opposes release on the ground that the applicant’s detention is necessary in the public interest, on the basis of maintaining public confidence in the administration of justice.

[5] In R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the Supreme Court endorsed the framework for evaluating the public interest criterion set out in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), [1993] O.J. No. 2627. The public interest criterion has two components: public safety and public confidence in the administration of justice. With respect to the public’s confidence in the administration of justice, the competing interests of enforceability and reviewability must be balanced. As Arbour J.A. said in Farinacci, at paras. 41-43:

The “public interest” criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.

On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months’ imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal.

[6] In Oland, Moldaver J. elaborated on Farinacci’s approach to the public interest criterion. He noted, at paras. 31-32, that an appeal judge hearing an application for bail pending appeal should consider the factors stipulated for bail pending trial under s. 515(10)(c) of the Criminal Code, with necessary modifications to account for the fact that the conviction has displaced the presumption of innocence. In the pre-trial context the onus is on the Crown to establish that an accused should be detained in custody, but the onus rests on the applicant to establish that he should be granted bail pending appeal: at para. 35. The factors to be considered are: the apparent strength of the prosecution’s case; the gravity of the offence; the circumstances surrounding the commission of the offence; and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.

[7] Moldaver J. explained how, with appropriate modifications, the public confidence factors listed in s. 515(10)(c) are to be taken into account by the appeal judge in identifying the factors that make up the public confidence component in s. 679(3)(c).

[8] First, when considering the public confidence component under s. 679(3)(c), “the seriousness of the crime for which a person has been convicted should… play an equal role in assessing the enforceability interest”: Oland, at para. 37. An appeal judge should have regard to the sentencing judge’s reasons, and not repeat that evaluation afresh: Oland, at para. 38.

[9] Second, Moldaver J. considered the “reviewability interest”, which he identified as “the strength of the prosecution’s case (s. 515(10)(c)(i))”: Oland, at para. 40. In the appellate context, this translates into an evaluation of the strength of the grounds of appeal. In assessing the reviewability interest, an appeal’s strength plays a “central role”. Specifically, Moldaver J. endorsed the view expressed by Trotter J.A. in his article entitled, “Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion” (2001) 45 C.R. (5th) 267, at p. 270, where he explained:

[R]ealistically, most cases do not raise strong claims regarding the public interest, at least not beyond the general concern that all criminal judgments ought to be enforced.... However, when an offence is serious, as with murder cases, such that public concern about enforceability is ignited, there should be a more probing inquiry into the chances of success on appeal. It is in this context that the balancing required by Farinacci requires some assessment of the merits, separate from the question of whether the appeal is frivolous or not. [Footnotes omitted.]

[10] Moldaver J. added that judges should “examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record” and consider whether those grounds “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland, at para. 44.

[11] After assessing the enforceability and reviewability factors, the appeal judge must balance them, keeping “in mind that public confidence is to be measured through the eyes of a reasonable member of the public”: Oland, at para. 47. This reasonable member of the public “is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values.” There is no precise formula, but a “qualitative and contextual assessment is required”: at para. 49. However, Moldaver J. observed that where the conviction is for “murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak”: at para. 50.

B. The Principles Applied

[12] As discussed, the applicant must satisfy the court that his appeal is not frivolous, that he will surrender himself into custody in accordance with the terms of the order, and that his detention is not necessary in the public interest.

(1) Not Frivolous

[13] The applicant raised five grounds of appeal. The primary ground of appeal, which was argued at length, concerns the proper interpretation of s. 172.1(1)(b). This section provides:

172.1(1) Every person commits an offence who, by a means of telecommunication, communicates with

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person;

[14] The offence alleged to have been facilitated in this case is sexual assault under s. 271. The applicant argues that “the trial judge erred in treating the offence of child luring pursuant to section 172.1(1)(b) in this circumstance as ‘luring’ for the purpose of any of the enumerated offences, rather than the specific offence of ‘sexual assault’ as pleaded in counts 1 and 2 of the Information.” I will elaborate on the applicant’s argument below.

[15] The second ground of appeal is that the trial judge erred in law by convicting the applicant “on the standard of recklessness when assessing whether the essential element of knowledge of the individual’s age was proven beyond a reasonable doubt, while recklessness cannot be a substitute for knowledge in these particular offences” (emphasis in original).

[16] The third ground is that the trial judge erred in law “by constructively treating the failure to take reasonable steps to determine the age of the complainant as an independent pathway to conviction.”

[17] The fourth ground is that the trial judge failed to “actively engage with the steps and perceptions of someone acting in [the ‘ Daddy-Dom-Little-Girl ’ online] community”, with its distinctive set of rules and roles, as providing a defence regarding the complainant’s age.

[18] The fifth ground is that the trial judge erred by improperly taking “subjective notice of the complainant’s age by using his own independent observations of her in court and the exhibit evidence to conclude that a reasonable observer would only view this individual as a ‘prepubescent child’, and treating the mens rea of these offences as being objective in nature.”

[19] In my view, the strongest ground of appeal is the first one, and I will focus on it in these reasons. The other grounds are much weaker, and their cumulative force adds little. That said, “the ‘not frivolous’ test is widely recognized as being a very low bar”: Oland, at para. 20. I am satisfied that the appeal is not frivolous.

(2) Surrender into Custody in Accordance with the Terms of the Order

[20] Before his conviction, the applicant was on bail for several years, and compliance was not an issue. The Crown does not oppose the bail provisions.

[21] I am satisfied that the applicant would surrender into custody in accordance with the terms of his release.

(3) The Public Interest

[22] There are two components to consider under s. 679(3)(c): public safety and public confidence in the administration of justice.

(a) Public Safety

[23] While the offences are undoubtedly serious, I find the public safety concern to be negligible. The applicant has a strong incentive to abide by the terms of any release, as he did in complying with his pre-trial bail, given the appeal. I am satisfied that the applicant has demonstrated on a balance of probabilities that he is not a public safety threat and will not likely commit further offences if released on bail pending his appeal.

(b) Public Confidence in the Administration of Justice

[24] As outlined above, the public confidence component requires courts to strike a balance between enforceability and reviewability.

Enforceability

[25] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at para. 42. Several factors in this case weigh heavily in favour of enforceability and against the release of the applicant. The seriousness of the crime, as noted in Oland, figures in the assessment of the enforceability interest.

[26] The applicant was convicted of egregious child luring under s. 172.1(1)(b) on two counts, “for the purpose of facilitating the commission of an offence of sexual assault,” and on one count of making child pornography contrary to s. 163.1(2). At sentencing, the trial judge found: “In this particular case, the child luring committed by [the applicant] was particularly serious and involves a high level of moral blameworthiness.” However, he added: “While the communications were graphic and continued, I did not find the offender was grooming the child to eventually meet. He was using her for online sexual gratification.”

[27] The trial judge pointed out several aggravating factors, including “the length of time the luring went on, the existence of an actual 13 year old victim, which was expressly conveyed to [the applicant] by the girl and the officer posing as the girl and yet he failed to desist, and the transmission of sexually explicit material, including a video of himself masturbating to a real 13 year old child”. He concluded: “in the circumstances, the sentence, even for a first offender, must be a penitentiary term, even if… it is imposed in the period of the Covid pandemic.”

[28] The trial judge also referred to mitigating factors, noting the absence of a prior record, a positive pre-sentence report, the applicant’s history of secure employment, and “a supportive family who are aware of the offences.” He considered positively that the applicant “has undertaken some counselling and is prepared to continue with counselling.” The trial judge noted: “There appears to be genuine remorse for the consequence of his actions.” Despite these mitigating factors, the trial judge saw fit to impose a significant penitentiary sentence of 41 months.

[29] To conclude, in my view the enforceability interests weigh heavily against release. The offences were very serious, there were aggravating factors, and the applicant was sentenced to a lengthy term of imprisonment.

Reviewability

[30] Moldaver J. noted in Oland, at para. 40, that the strength of the appeal plays a central role in assessing the reviewability interest. In my view, while a preliminary assessment of the strength of the appeal reveals that the grounds of appeal are arguable, they do not “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, at para. 44.

The Strength of the Appeal

[31] As noted above, the applicant’s main argument is that “the trial judge erred in treating the offence of child luring pursuant to section 172.1(1)(b) in this circumstance as ‘luring’ for the purpose of any of the enumerated offences, rather than the specific offence of ‘sexual assault’ as pleaded in counts 1 and 2 of the Information.”

[32] In other words, the applicant takes the position that the Crown was obliged to prove the mental element or mens rea attached to sexual assault in order to get a conviction. The applicant asserts that because the trial judge found that he “had intended never to meet with the complainant because he valued his anonymity”, it was therefore “impossible [for him] to have ‘facilitated’ the offence of a sexual assault”. Putting it in other words: “The purpose of the communications could never have been intended to facilitate the commission of the offence of sexual assault, if there was never an intention to meet in person.” The applicant cites the Supreme Court for the proposition that: “the accused must be shown to have ‘engage[d] in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences’ with respect to the underage person who was the intended recipient of communication” (emphasis in original): R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 32, citing R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173.

[33] First, in my view the applicant overstates the trial judge’s finding. Second, he misconstrues Legare.

[34] In his reasons, the trial judge found a reasonable doubt that the applicant was working towards a meeting with the 13-year-old complainant. He said:

The prospect of a meeting is not the sine qua non of the offence as contemplated by s. 172.1 of the Code. Even when no meeting is arranged, an accused can “facilitate” a sexual offence with a young person.

The accused may have spoken about a meeting in Kingston to continue the narrative and he may have ultimately arranged to meet the young person if the communications had continued, but I accept his communications with the young person at that stage were part of the narrative only and he wanted this to be an online anonymous relationship. In his conversation with Detective Wohlert, it was the Detective who was driving the meeting discussions. The accused did not terminate that discussion and, as I said, he may have ultimately wished to meet the young person, but he has raised a doubt that he had intentions at that time to meet the young person.

[35] Contrary to the applicant’s assertion, the trial judge did not find that the applicant intended to never meet with the complainant.

[36] The applicant highlights para. 32 of Fish J.’s reasons in Legare, which I more fully quote here:

[T]he intention of the accused must be determined subjectively .... As Doherty J.A. stated in Alicandro, at para. 31, the accused must be shown to have “engage[d] in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences” with respect to the underage person who was the intended recipient of communication. [Italics and underlining in original.]

[37] However, these words must be taken in context with para. 25, which initiates and conditions the ensuing discussion, including para. 32:

[38] It will immediately be seen that s. 172.1(1)(c) creates an incipient or “inchoate” offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey. [Emphasis in original.]

[39] I note that in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, Moldaver J. cited Legare and affirmed, at para. 40, that “[t]here is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of the designated offences”. See also Professor Hamish Stewart’s article, “Legare: Mens Rea Matters” (2010) 70 C.R. (6th) 12. Both counsel agree that they were unable to find any cases that take the approach the applicant proposes.

[40] I would not say the applicant’s case is frivolous. But it is weak in view of Fish J.’s clear language in para. 25 of Legare. It is not the mens rea of the specified offence sought to be facilitated – in this case sexual assault – that the Crown must prove. It is sufficient for the Crown to prove facilitation itself, which “includes helping to bring about and making easier or more probable – for example, by ‘luring’ or ‘grooming’ young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person’s curiosity, immaturity or precocious sexuality” (emphasis in original): Legare, at para. 28.

Discussion

[41] I turn to the factors to be balanced. I see the Crown’s position in the appeal as strong, and the applicant’s as weak. These vile crimes are grave, and the applicant has been sentenced to a lengthy term of imprisonment.

[42] While it is relatively rare for a bail pending appeal application to be resolved on public confidence considerations, this is one of the “difficult cases ... in which the public confidence component is raised”: Oland, at para. 30. The interest in enforceability is very strong. The interest in reviewability is not.

[43] Ultimately, although the reviewability interest still supports release, the applicant’s conviction on three serious counts mitigates the strength of the reviewability interest. In short, the enforceability interest outweighs the reviewability interest in this case. Were the applicant to be released pending appeal, I have no hesitation in concluding that a reasonable member of the public, informed of the egregious circumstances, would lose confidence in the administration of justice.

[44] I find that the detention of the applicant is necessary in the public interest and dismiss the application for bail pending appeal.

[45] I am mindful of Arbour J.A.’s comments in Farinacci, at para. 43, that the court must keep in mind a situation in which “denial of bail would render the appeal nugatory, for all practical purposes” because the sentence will have been largely served before the appeal is resolved. I therefore order that the appeal be expedited, pursuant to s. 679(10) of the Criminal Code.

“P. Lauwers J.A.”