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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 OF APPEAL FOR ONTARIO

DATE: 20230413 DOCKET: M54125 (COA-23-CR-0254) Lauwers J.A. (Motion Judge)

BETWEEN

His Majesty the King Respondent

and

J.B. Applicant (Appellant)

Counsel: Mark Fahmy, for the applicant Mark Luimes, for the respondent

Heard: March 17, 2023

ENDORSEMENT

A. Overview

[1] The appellant was found guilty of sexual assault and sexual interference against a young complainant who was the daughter of his friend and neighbour.

[2] The trial judge accepted the complainant’s evidence that the sexual abuse continued over the course of approximately two years, when she was 10 to 12 years old, and that the appellant assaulted her, through touching and/or penetration, as many as 25 to 30 times. The final assault occurred on May 25, 2019, following which the complainant told her mother what had happened. The appellant denied that he ever sexually touched or engaged in sexual intercourse with the complainant. The appellant was sentenced to nine years on the count of sexual interference, and the sexual assault count was stayed under R. v. Kienapple, [1975] 1 S.C.R. 729.

[3] The appellant advances three grounds of appeal: 1) the trial judge misapprehended the evidence in a number of critical ways that caused her to disbelieve the appellant; 2) the trial judge assessed the testimony of the Crown’s witnesses and the appellant in an uneven fashion, which affected the assessments of credibility; and 3) the first two grounds were exacerbated by the ineffective assistance of trial counsel, whose performance fell “below the standard of a reasonably competent lawyer in the circumstances, causing the Appellant to suffer prejudice and leading to a miscarriage of justice.”

B. THE GOVERNING PRINCIPLES for Bail pending appeal

[4] For bail pending conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.

[5] The Crown submits that the applicant should remain incarcerated on the third ground: that his detention is necessary in the public interest on the basis of public confidence in the administration of justice.

[6] As the Supreme Court observed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element must be tested under the framework set out by this court in R. v. Farinacci (1993), 86 C.C.C. (3d) 32, [1993] O.J. No. 2627, per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability. As Arbour J.A. said in Farinacci, at paras. 41-43:

The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. 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. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes.

[7] In Oland, Moldaver J. reflected on Farinacci and added analytical details. He noted, at paras. 31-32, that an appeal judge considering an application for bail pending appeal should consider the factors stipulated for bail pending trial by s. 515(10)(c) of the Criminal Code, with necessary modifications to account for the fact that the presumption of innocence has been displaced by the conviction. 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. The onus of establishing that the applicant should not be detained in custody is reversed and placed on the applicant: Oland, at para. 35.

[8] Moldaver J. also considered the enforceability and reviewability interests and 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).

[9] First, Moldaver J. noted at para. 37 of Oland, “[i]n considering the public confidence component under s. 679(3)(c), I see no reason why the seriousness of the crime for which a person has been convicted should not play an equal role in assessing the enforceability interest.” He added, at para. 38, that the appeal judge should have regard to the sentencing judge's reasons, and not repeat that evaluation afresh.

[10] Second, Moldaver J. considered the “reviewability interest,” which he identified, at para. 40, as being informed by “the strength of the prosecution's case (s. 515(10)(c)(i)).” On appeal, this “translates into the strength of the grounds of appeal ... [and] in assessing the reviewability interest, the strength of an appeal plays a central role.” Specifically, Moldaver J. endorsed the view expressed by my colleague 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:

Realistically, 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.]

[11] Moldaver J. added, at para. 44 of Oland, that:

In conducting a more pointed assessment of the strength of an appeal, appellate judges will examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record. For purposes of this assessment, they will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the “not frivolous” criterion.

[12] Having assessed the enforceability and reviewability factors, the appeal judge is required to 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. Moldaver J. went on to add: “This person 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”: Oland, at para. 49. However, he observed, at para. 50: “where the applicant has been convicted of 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” (citations omitted).

C. THE PRINCIPLES APPLIED

[13] I now return to the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.

(1) Not Frivolous

[14] The not frivolous test “is widely recognized as being a very low bar”: Oland, at para. 20. The Crown concedes and I am satisfied that the appeal is not frivolous.

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

[15] I am satisfied that the applicant will surrender into custody in accordance with the terms of his release, as he did before sentencing.

(3) The Public Interest

[16] Under s. 679(3)(c), there are two components to consider: public safety and public confidence in the administration of justice. The Crown focused on the second component, public confidence, while expressing “residual” public safety concerns.

(a) Public Confidence

[17] As discussed above, consideration of the public confidence component involves striking the balance between enforceability and reviewability. The seriousness of the offences plays a role in the court’s assessment of this component. This court has identified sexual offences relating to children as being on the higher end of the gravity spectrum in the context of bail pending appeal applications: see e.g. R. v. M.S., 2022 ONCA 348, at para. 15.

(i) Enforceability

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

(ii) Reviewability

[19] As Oland notes, “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. A preliminary assessment of the strength of the appeal reveals that, while the grounds of appeal are arguable, in my view 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

[20] It is important to note that the appellant does not argue that the trial judge made any errors in her self-instruction on the applicable law. The appellant’s first ground of appeal is that the trial judge misapprehended the evidence in a number of critical ways that caused her to disbelieve the appellant. The trial judge said she was left with the impression that “in several important aspects, [the appellant’s] evidence was strategic, implausible, and not forthright.” The four “important aspects” of the applicant’s evidence that the trial judge cited in her reasons for rejecting his credibility were: (1) the applicant’s attempt to diminish the closeness of his relationship with the complainant; (2) the applicant’s evidence about the complainant being alone and sleeping on his bed but that he did not go into the bedroom when she was taking a nap, which the trial judge found to be “unbelievable”; (3) the applicant’s evidence about the complainant’s demeanour before she left his apartment after the alleged sexual assault, which the trial judge found to be “implausible and illogical”; and (4) the applicant’s lack of an explanation for not denying the allegations when being confronted by the complainant’s mother.

[21] A trial judge’s credibility assessments “are accorded very considerable deference on appeal, as long as the trial judge has sufficiently explained how significant discrepancies that could undermine credibility and reliability have been resolved”: R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251, at para. 34. The trial judge provided thorough reasons for why she did not believe the applicant’s evidence. While it is not for me to decide at this stage whether the trial judge misapprehended the evidence, the applicant – like most appellants arguing credibility errors – will likely have an uphill battle on this ground of appeal.

[22] The appellant’s second ground is that the trial judge assessed the testimony of the Crown’s witnesses and the appellant in an uneven fashion, which affected the assessments of credibility. This is the “uneven scrutiny” ground.

[23] Where a judge has applied uneven scrutiny, it amounts to an error of law because there has not been a fair trial: R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 18 & 43. Justice Doherty has explained the “uneven scrutiny” appeal ground in R. v. Howe (2005), 192 C.C.C. (3d) 480, at para. 59 (Ont. C.A.) as follows:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. (Emphasis added.)

[24] Uneven scrutiny is “notoriously difficult to prove”: R. v. B.T.D., 2022 ONCA 732, at para. 54, citing R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. This is for two reasons: (1) credibility findings are the province of the trial judge and are given a high degree of appellate deference, and (2) a high standard is required to ensure that “uneven scrutiny” is not used as a means by which to reassess trial judge’s credibility assessments: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39.

[25] A trial judge’s reasons must be read as a whole, in the context of the evidence, the issues and the arguments: G.F., at para. 69; B.T.D., at para. 90. To succeed in displacing the deference owed to trial judge’s credibility assessments, the record must indicate a different standard of scrutiny, “as well as something sufficiently significant, such as rejecting the appellant’s testimony for speculative reasons”: B.T.D., at para. 55. In other words, there must be an error in principle in the judge’s credibility assessment: B.T.D., at para. 55.

[26] The inquiry into whether there was uneven scrutiny is fact-specific. The question is whether the trial judge applied different standards to the evidence of the Crown and the defence. In B.T.D., this court allowed an appeal and ordered a new trial based on the trial judge’s unbalanced approach and analytical errors in the credibility assessments in a sexual assault case. The court found that “ the trial judge criticized the appellant’s evidence as contrived because of its detail but accepted the exact same level of detail in the complainant’s version as a mark of credibility and reliability, without explaining why she drew this distinction based on the same factor”: B.T.D., at para. 61. The trial judge assessed the appellant’s evidence through an “unforgiving lens” but “tolerated and failed to analyze serious discrepancies in the complainant’s evidence”: B.T.D., at paras. 62 & 69.

[27] The court observed that the unfair treatment of the appellant’s evidence led to a reversal of the burden that lies with the Crown: B.T.D., at para 67. Similarly, in Gravesande, at para. 42, this court found that the “trial judge’s reasons demonstrate a degree of scrutiny of the prosecution evidence that was tolerant and relaxed as compared to the irrelevant, tenuous and speculative observations largely about collateral matters applied to unfairly discount the appellant's evidence.” [1]

[28] The Supreme Court has not yet ruled on whether “uneven scrutiny” is an independent ground of appeal. In G.F., without deciding the issue, writing for the majority, Karakatsanis J. expressed “serious reservations about whether ‘uneven scrutiny’ is a helpful analytical tool to demonstrate error in credibility findings”: at para. 100. This is because in cases that have accepted the uneven scrutiny argument, it is often “tacked on to” a specific error in the trial judge’s credibility assessment such as insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable or overriding error, or an unreasonable verdict: G.F., at para. 100. Misapprehension is precisely what the applicant is alleging in this case. That must also be the ground on which uneven scrutiny rises or falls.

[29] As outlined above, a credibility error arising from a misapprehension of the evidence is difficult to establish. The uneven scrutiny argument does little to change the character or chance of success of the main thrust of the applicant’s appeal: that the trial judge wrongly disbelieved the applicant’s evidence while accepting the evidence of the Crown’s witnesses, including the complainant.

[30] The applicant’s third ground is that the first two grounds were exacerbated by the ineffective assistance of trial counsel, which led to a miscarriage of justice. This ground is also problematic, for the reasons set out by Pentelechuk J.A. in R. v. R.Y.M., 2022 ABCA 148, at paras. 19-23. The applicant was seeking bail pending appeal in a case involving sexual assaults of two children, which rendered the enforceability interest high. Pentelechuk J.A. found that the “reviewability interest engages a more pointed review of the merits of the case”: R.Y.M., at para. 20. One aspect of the complaint was the adequacy of the cross-examination of the complainants. The test for establishing the ineffective assistance of counsel is strict because of the “strong presumption of counsel competency”: R.Y.M., at para. 21. Of particular pertinence is that in R.Y.M., although the appellant had waived solicitor-client privilege, there was as yet no evidence from trial counsel “as to discussion held and advice provided”: at para. 22. The deficiency is the same before me. There is an insufficient factual basis on which to found this ground. It appears to be premature.

D. Disposition

[31] I see the applicant's appeal as weak. It does not “clearly surpass” the minimal standard required to meet the ‘not frivolous’ criterion, as required by Oland. I see the Crown's side in this appeal as strong.

[32] Given the seriousness of the crime, as reflected in the lengthy sentence, the interest in enforceability is strong. The interest in reviewability is weak, as I have explained.

[33] The balance of the competing interests of enforceability and reviewability in this case come down in favour of enforceability. I have no hesitation in saying that a reasonable member of the public, informed of the seriousness of the conviction, would lose confidence in the administration of justice if the applicant were released pending appeal.

[34] I find that the detention of the applicant is necessary in the public interest and dismiss the application for bail pending appeal. Pursuant to s. 679(10) of the Criminal Code, I order that the appeal be expedited.

“P. Lauwers J.A.”

[1] The Court of Appeal has also found uneven scrutiny in these cases: R. v. Kiss, 2018 ONCA 184, at paras. 82-108; R. v. Rhayel, 2015 ONCA 377, 22 C.R. (7th) 78, at para. 100-106; R. v. TT, 2009 ONCA 613, 68 C.R. (6th) 1, at para. 74; R. v. Owen (2001), 150 O.A.C. 378, at paras. 2-3.