Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230331 DOCKET: M54076 (COA-23-CR-0179)

Before: van Rensburg J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent

and

I.S. Applicant (Appellant)

Counsel: Myles Anevich, for the applicant Samuel G. Walker, for the respondent

Heard: March 8, 2023

Endorsement

[1] On March 25, 2022 the applicant was convicted after trial by judge and jury of various sexual offences and uttering threats. He remained on bail pending sentencing which occurred on March 8, 2023. [^1] He was sentenced to seven years’ imprisonment. He has appealed his convictions, asserting that the jury was not adequately instructed in relation to the complainant’s motive to fabricate.

[2] The applicant applied for bail pending appeal. I granted the application with reasons to follow. These are my reasons.

[3] Section 679(3) of the Criminal Code requires that on an application for bail pending appeal, the applicant must satisfy the court that: (a) his appeal is not frivolous; (b) he will surrender into custody as required; and (c) his detention is not necessary in the public interest.

[4] The Crown opposed the application on the first criterion, arguing that the appeal is frivolous. In the alternative, the Crown relied on the third criterion, asserting that the offences for which the applicant has been convicted are so serious, and the grounds of appeal so weak, that the interest in enforcement of the judgment outweighs the interest in its reviewability. Referring as well to “residual public safety concerns”, the Crown submitted that public confidence in the administration of justice would be undermined if the applicant were released on bail pending appeal.

[5] I begin by stating what was acknowledged by the applicant’s counsel: the offences are serious. They involved the repeated sexual abuse of a young person, toward whom the applicant was in a position of authority, over a period of more than three years. According to the trial judge’s sentencing reasons, the abuse began when the complainant was 14 years old with sexual touching and progressed to sexual intercourse, which occurred as frequently as the circumstances of the applicant’s work and marriage permitted. After the complainant ended the “relationship”, the applicant became rude and aggressive toward her and made threats in order to obtain information about her new relationship.

[6] In opposing the applicant’s bail, the Crown relied heavily on R. v. M.S., 2022 ONCA 348, a recent decision refusing bail pending appeal in a case involving serious sexual offences against children. In that case, Trotter J.A. extensively reviewed the reasons for judgment in the judge-alone trial and concluded that the grounds of appeal were weak. While there are similarities to the present case, each application for bail pending appeal, including where the third branch of the test is relied on in the case of serious offences, must be determined on its own merits: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 67.

[7] In considering both s. 679(3)(a) and the public confidence component of the public interest criterion under s. 679(3)(c), it is necessary to conduct a preliminary assessment of the merits of the appeal. The not frivolous threshold sets a “very low bar”: Oland, at paras. 20, 44. In assessing the merits under s. 679(3)(c), there is no requirement that the applicant prove the appeal is likely to succeed; rather the grounds must be assessed “with an eye to their general legal plausibility and their foundation in the record”: Oland, at para. 44.

[8] The applicant advanced two related arguments, both based on the trial judge’s instructions on the complainant’s motive to fabricate. According to the applicant, the trial judge provided insufficient instructions when he said the following: “[i]t was suggested to [the complainant] that her new boyfriend … may have something to do with the charges before the court. She denied that, and I leave that to you to figure out”.

[9] The applicant submitted that, once a possible motive to fabricate was in play, it was incumbent on the trial judge to provide an explicit instruction on how the jury could use such evidence in assessing the complainant’s credibility, and that the trial judge erred when he refused to instruct the jury, as specifically requested by trial counsel, that the applicant had no onus to prove a motive to fabricate. The applicant pointed to cases such as R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412 and R. v. Greif, 2021 BCCA 187, where it was accepted that, in some circumstances, it will be an error not to give a detailed instruction respecting a complainant’s motive to lie.

[10] The Crown submitted that there is no general obligation for a trial judge to provide a specific instruction about motive to fabricate, and that the trial judge’s instructions on the presumption of innocence, the burden of proof (including that the applicant did not have to prove anything), reasonable doubt, and credibility, with a brief mention of the one passage in the evidence where a motive to lie was suggested, were accurate and sufficient. The Crown asserted that, unlike the cases relied on by the applicant, there was nothing here that mandated a corrective instruction to address improper questioning or submissions by Crown counsel at trial. Moreover, the applicant’s trial counsel ultimately retreated from his request for a specific instruction, suggesting that the failure to give a more detailed instruction resulted in no prejudice to the defence.

[11] The Crown conceded at the hearing of this application that the trial judge made an erroneous comment in his discussions with counsel after the request for a specific instruction. The trial judge suggested that, although it was impermissible for Crown counsel to ask an accused why somebody would have made up allegations, it might be appropriate for a jury to ask themselves that question on the totality of the evidence. However, Crown counsel asserted that this was not a ruling and did not affect the jury instructions. The applicant argued that this error was important because it informed the trial judge’s failure to provide the instructions sought by his counsel.

[12] On a preliminary assessment of the merits, I was satisfied that the grounds of appeal raised by the applicant, while not strong, surpass the “not frivolous” threshold. I also concluded that the applicant’s grounds of appeal are generally plausible and have a foundation in the record. They rely on passages in the charge that suggested that there was some evidence of a motive to fabricate, and that the trial judge made only passing reference to the evidence without providing any instructions to the jury about how this evidence could or should be used in the assessment of the complainant’s credibility. Defence counsel asked for a specific instruction, but retreated, after a discussion in which the trial judge appears to have made an incorrect assumption about the law. While there is no general rule requiring an instruction on how the jury should use motive to fabricate in their assessment of credibility, the issue for the panel hearing the appeal will be whether the general instructions on the assessment of credibility, the burden of proof and the like were sufficient in the circumstances of this case. I note that much of the transcript, including the parties’ closing submissions, is not yet available.

[13] Finally, I note that the Crown relied on what it characterized as “residual public safety concerns”, acknowledging that such concerns alone would not justify refusing bail, but asserting that they should be considered. In this regard, the Crown pointed to the applicant’s outstanding charges from June and July 2019 when he is alleged to have failed to comply with the terms of his bail by contacting and harassing the complainant and, on a separate occasion, her co-worker. While these would have constituted serious breaches of the terms of the applicant’s release, their impact on the applicant’s bail pending appeal is blunted by the fact that the charges remain outstanding (no one could explain why), and by the Crown’s concession that the applicant has complied with the amended terms of his release for the past four years, including the one-year period between his conviction and sentencing.

[14] After considering the arguments made in this application, I was satisfied that this was a case “where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the ‘not frivolous’ criterion” such that “the public interest in reviewability [overshadowed] the enforceability interest”: Oland, at para. 51. As such, I concluded that the detention of the applicant pending appeal was not necessary in the public interest.

[15] For these reasons I allowed the application and released the applicant on bail pending appeal on terms set out in an order that had been approved by both counsel.

[^1]: The trial judge noted in his sentencing reasons that sentencing was delayed by the circumstances of the pandemic and the unfortunate failure of the probation office to produce a pre-sentence report ordered on the date of the jury verdicts.