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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20230920 DOCKET: M54526 (COA-23-CR-0942) Zarnett J.A. (Motion Judge)

BETWEEN

His Majesty the King Responding Party/Respondent

and

G.B. Applicant/Appellant

Counsel: Herman Jackson, for the applicant David Friesen, for the responding party

Heard: September 15, 2023 by video conference

Endorsement

[1] The applicant applies for bail pending his appeal from his convictions for sexual interference and invitation to sexual touching, contrary to ss. 151 and 152, respectively, of the Criminal Code.

[2] The applicant was convicted after a judge-alone trial. The trial judge found that the applicant had touched the complainant H.B.’s vagina and forced her to touch his penis on multiple occasions between the time she was 7-8 years old until she was 13 or 14. H.B. is the applicant’s daughter.

[3] The trial judge imposed a sentence of 4 years in custody, less a credit of 75 days for pretrial custody and imposed certain ancillary orders.

[4] To succeed in obtaining bail pending appeal the applicant must establish that: (1) the appeal is not frivolous; (2) he will surrender himself into custody in accordance with the terms of the release order; and, (3) his detention is not necessary in the public interest: Criminal Code, s. 679(3)(a-c).

[5] The applicant argues that he has met his burden. The Crown opposes the application on the basis that the applicant has failed to show that the appeal is not frivolous and, in any event, has failed to show that his detention is not necessary in the public interest.

[6] As I would deny the application on the latter ground, I address it first.

[7] Whether detention is necessary in the public interest requires consideration of two matters: public safety and public confidence in the administration of justice. The public confidence component involves balancing the reviewability interest (that a person who challenges the legality of their conviction is entitled to a meaningful review process before having to serve all or a significant part of their sentence) and the enforceability interest (that judgments should be immediately enforceable). The balancing of these interests is to be measured through the eyes of a reasonable member of the public: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-27 and 47.

[8] The seriousness of the crime, including the gravity of the offence and the circumstances of its commission, plays an important role in the consideration of the enforceability interest. Public confidence in the administration of justice is at greater risk of being undermined if the person convicted of a serious crime is released on bail pending appeal: Oland, at para. 37.

[9] The enforceability interest in this case is high.

[10] The appellant occupied a position of trust and authority in relation to H.B. He was convicted of committing serious sexual offences against her over a number of years. Sexual offences relating to children are “on the higher end of the gravity spectrum in the context of bail pending appeal applications”: R. v. J.B., 2023 ONCA 264, at para. 17; R. v. M.S., 2022 ONCA 348, at para. 15.

[11] Where the enforceability interest is thus engaged, weighing the reviewability interest requires a “more pointed consideration” of the strength of the appeal beyond the “very low bar” set by the “not frivolous” standard: Oland, at paras. 20 and 40-41.

[12] The appellant raises two grounds of appeal.

[13] First, he argues that the trial judge erred in his application of the test in R. v. W.(D.), [1991] 1 S.C.R. 742 while assessing the evidence of the applicant, and in doing so reversed the burden of proof.

[14] In my view, nothing has been put forward on this application to suggest that this is anything other than a weak ground of appeal. In his reasons the trial judge both articulated the principles in W.(D.) and expressly applied them.

[15] The trial judge described the principles in W.(D.) in this way:

The guidance in W.(D.) provides as follows:

a. first, if I believe the evidence of the accused, then I must acquit;

b. second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and

c. third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[16] The trial judge applied these principles in acquitting the applicant of charges involving two other complainants. In respect of those charges, he did not believe the applicant’s evidence, nor consider it to raise a reasonable doubt, but he was not satisfied beyond a reasonable doubt on the basis of the evidence he did accept of the applicant’s guilt on those charges.

[17] The trial judge followed the same path of reasoning, with a different result, in respect of the charges involving H.B. He did not believe the evidence of the applicant and was not left in a reasonable doubt by it. He found H.B. to be a credible witness whose evidence was not seriously challenged on cross-examination. He considered, and concluded, on the basis of the evidence that he did accept, that the applicant’s guilt had been proven beyond a reasonable doubt.

[18] The trial judge gave two reasons for rejecting the applicant’s evidence. First, citing R. v. J.J.R.D., 2006 ONCA 800, [2006] OJ No. 4749 (C.A.), he noted that it is possible for a trier of fact to reject an accused’s evidence because they accept that of the complainant beyond a reasonable doubt. Second, he stated:

But I do not reject the accused’s evidence solely for this reason. There are also inconsistencies in his evidence regarding the stairs in the play fort [where some of the sexual contact occurred]. His evidence that he was never alone with the complainant H.B. in the play fort is also implausible.

[19] Neither a failure to follow the principles in W.(D.) or any reversal of the burden of proof is apparent in the trial judge’s approach. Although the applicant takes issue with the trial judge’s view that there were inconsistencies in the applicant’s evidence regarding the stairs in the play fort, this is actually a complaint about the trial judge’s processing of the evidence, findings of fact, and credibility, all of which attract significant deference on appeal: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 23, leave to appeal refused, [2017] S.C.C.A. No. 274. The record for this motion does not allow a determination to be made that the trial judge’s identification of inconsistencies or his use of them fell outside of his proper fact finding and evidence evaluation role. The onus is on the applicant in this type of application to do so.

[20] The applicant’s second ground of appeal is that the trial judge erred in dismissing his request for a stay of the charges against him based on what he argued were disclosure failures of the Crown.

[21] The trial judge found that the Crown’s disclosure had not in every respect been timely and complete − rather, he termed it “sub-optimal”. But he found that prosecutorial misconduct had not been made out, and that the applicant had not been deprived of a fair trial or opportunity to make full answer and defence, because, for example, the late disclosure was still in time for use in cross-examination or was of little probative value.

[22] A stay is a remedy of last resort, to be granted only in the “clearest of cases” when no other remedy can address the harm: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-31 and 36-40. The trial judge’s determination that no such harm was present here and thus to refuse a stay is entitled to deference on appeal: R. v. Graham, 2020 ONCA 692, at para. 18.

[23] The record on this application does not show any error in the trial judge’s refusal to grant a stay that would displace appellate deference to that decision.

[24] Therefore, even accepting that the grounds of appeal meet the “very low bar” of not frivolous, they cannot be considered as clearly surpassing it. The grounds of appeal are, on the record for this application, weak.

[25] When considered from the standpoint of public confidence in the administration of justice viewed through the eyes of a reasonable member of the public, the enforceability interest in the matter clearly outweighs the reviewability interest. Moreover, denying the application at this time does not necessarily completely negate the reviewability interest. The appeal should be able to be heard before the applicant has completed his sentence.

[26] The applicant has not shown that his detention is not necessary in the public interest. The application is dismissed. Upon perfection of the appeal, the applicant may apply for an expedited hearing date.

“B. Zarnett J.A.”