WARNING

The judge hearing this motion 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231003 Docket: M54555 (COA-23-CR-0994)

Before: Miller J.A. (Motion Judge)

Between:

His Majesty the King Respondent/Responding Party

and

A.S. Appellant/Applicant

Counsel: Howard L. Krongold, for the applicant Catherine Weiler, for the responding party

Heard: September 29, 2023

Endorsement

Overview

[1] The applicant was convicted of 33 counts of voyeurism and sentenced to two years incarceration. He seeks bail pending appeal. The Crown opposes on the grounds that interim release would undermine public safety and public confidence in the administration of justice, and would therefore be contrary to s. 679(3)(c) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] As explained below, the application for interim release is dismissed.

Facts

[3] The conduct which forms the basis of the applicant’s voyeurism convictions involved a large number of victims, took place over a lengthy time period (from as early as 2011 to 2018), and required a significant degree of prior planning. He surreptitiously recorded images and videos of women in multiple locations, generally while they were showering or using the toilet. One of the victims was in an intimate relationship with the applicant, and he also filmed her engaging in sexual acts with him at a hotel. All of the victims testified that that the applicant had recorded them without their knowledge or consent, and they were shocked and horrified by the revelation. The applicant stored the video recordings on USB storage devices, indexed according to body parts, and the trial judge found he regularly accessed them for his sexual gratification. The trial judge disbelieved the applicant’s testimony that the victims knew and had consented to being recorded, and he found that the applicant had breached the trust of the women, some of whom he mentored professionally, others who were friends, and one of whom was at the time an intimate partner.

[4] The applicant has also been charged with multiple counts of sexual assault, which were initially being tried together with the voyeurism offences. The trial judge became incapacitated by illness and a mistrial was declared. The Crown advised that some of the sexual assault charges will be stayed rather than retried, but the Crown intends to retry the applicant on the remaining charges. The circumstances of the alleged sexual assaults are not in the record before me.

[5] In July 2022, the applicant was convicted in British Columbia of three counts of indecent acts and seven counts of indecent exposure contrary to ss. 173(1) and 173(2) of the Criminal Code, respectively. These convictions related to a series of incidents in the fall of 2018 and winter of 2019 in Vancouver, during which the applicant, then an RCMP officer stationed in Richmond, targeted girls walking home from two private schools in their school uniforms. On each occasion, he drove up in his SUV and exposed his penis and, at times, masturbated in front of the girls. This behaviour continued for months until he was eventually apprehended on March 12, 2019. He received an 18-month sentence and was released on bail pending appeal. It was during the execution of a search warrant in the investigation of these offences that the USB storage devices with the images related to the Ontario offences were found, and the Ontario offences came to light. Accordingly, when the applicant was granted bail pending appeal in British Columbia, the voyeurism convictions were not before the court.

[6] While on bail pending sentence in British Columbia, and after he had been discharged from the RCMP, the applicant was again arrested following events in which he is alleged to have impersonated a police officer and displayed a forged RCMP badge bearing his name and former number and a forged RCMP identification. Among other incidents, he is alleged to have yelled “police, stop her” after being passed on a trail by a woman cyclist. Complying with the direction, a bystander pushed the cyclist off her bicycle, fracturing her arm.

[7] The applicant argues that I should not have any regard to the allegations of fraud and impersonating a police officer. Although the applicant was arrested and subjected to an undertaking, he has not been charged with any offences, nearly one year after his arrest. The applicant argues that he is presumptively innocent, there is no reason to believe that he will ever be charged, and it would be unfair to draw any inference against him in circumstances where he has not had an opportunity to defend himself against the allegations.

[8] I do not agree. This is not a circumstance like in R. v. Mare, 2023 ONCA 640, where the court held that it would be improper to consider charges that were subsequently withdrawn. Where charges are withdrawn, there has been a resolution without a conviction and the allegations will never be proven. That is not the situation here. The question here is whether charges are pending. The applicant argues that I should conclude from the passage of time – nearly a year – that they are not. And even if they were pending, I should draw the inference that there is much less to them than meets the eye, otherwise the applicant’s bail pending appeal of the indecent exposure convictions would surely have been revoked.

[9] The Crown assures me that charges are pending but cannot explain the passage of time other than by suggestion that there may well be administrative delays in British Columbia owing to the fact that charges in that jurisdiction must first be approved by the Crown. The fact that the badge was seized and submitted for forensic investigation speaks to the seriousness with which the Crown is treating the alleged offence.

[10] I will consider the fraud and impersonating a police officer allegations. They have not been resolved, and the actions of the Crown and police are consistent with their intention to eventually lay charges.

Analysis

[11] There are two components to the public interest branch under s. 679(3)(c) of the Criminal Code: public safety and public confidence in the administration of justice: R. v. Oland, 2017 SCC 17, 1 S.C.R. 250, at para. 23. The Crown urges that bail be denied on both branches.

[12] To be denied bail on public safety grounds: (i) an individual must pose a “substantial likelihood” of committing an offence, (ii) the substantial likelihood must endanger the safety of the public, and (iii) the individual’s detention must be necessary for public safety: R. v. Morales, [1992] 3 S.C.R. 711, at p. 737.

[13] With respect to public confidence, the court is required to balance the applicant’s interest in the reviewability of the conviction against the public interest in having the offender immediately begin serving his sentence. Assessing reviewability requires an assessment of the strength of the grounds of appeal. Enforceability is assessed through consideration of the gravity of the offences, the circumstances surrounding the commission of the offence, and the potential length of the term of imprisonment: Oland, at paras. 37-38. Even where the applicant meets the public safety threshold, residual public safety concerns may be considered as part of the public confidence analysis: Oland, para. 27.

(1) Public Safety

[14] The applicant is not an opportunist. His various patterns of offending each involve a significant degree of planning and commitment, carried out repeatedly over months and years. In the Vancouver incidents, he drove out of his way to target girls in uniform from two particular private schools. To commit the voyeurism offences, he had to repeatedly and surreptitiously set up cameras in different locations. He treasured the images he obtained, keeping the USB keys in a safe and regularly accessing them. He has a lengthy history of pre-meditated acts of domination of women and girls for the purposes of his sexual gratification.

[15] Counsel for the applicant urges that I not view the applicant through the lens of his conduct from 2011 to 2019, but rather his conduct while on bail, under the supervision of his sureties. That conduct, once one excises the impersonation allegations, has been exemplary.

[16] However, I cannot excise those allegations. They provide ample reason to believe that the applicant has carried on in a very antisocial manner while on bail, with his primary surety – his wife – either being unaware of his misconduct or unable to manage it. Her affidavit is entirely silent on the issue of the fraudulent police badge and the allegations of impersonating a police officer. I have no confidence that she, or the applicant’s other surety – his father-in-law – are able to supervise the applicant adequately and prevent him from causing further harm.

[17] The fact that the applicant’s bail in British Columbia has not been revoked is not determinative. I am required to make an independent assessment, based on the record before me.

(2) Public Confidence

[18] The public safety considerations are sufficient reason to deny the application. But I would also deny the application on the basis of public confidence in the administration of justice. The applicant’s sentence is not long – 2 years. There is a possibility that he could serve a significant portion of his sentence before his appeal is heard, thus defeating the purpose of the appeal. However, the sole issue on appeal – the constitutionality of the search and seizure of the USB storage devices on which the recordings were discovered – is a discrete issue that can be argued quickly. There is no good reason why the appeal cannot be expedited and heard within a few months. That significantly attenuates reviewability concerns I might otherwise have.

[19] The grounds for appeal, though arguable, do not appear strong. They are limited to rearguing the s. 8 arguments that were rejected at trial. No error in principle has been identified. It is not the role of an appellate court to engage in a fresh assessment of the determination of whether a search warrant was validly issued.

[20] With respect to enforceability, these convictions are part of a pattern of serious and escalating conduct. Although a 2-year sentence is not substantial, it is the longest sentence yet imposed for voyeurism offences. The applicant does not appear to have taken any responsibility or demonstrated any appreciation of the gravity of his conduct or its impact on other people. The enforceability considerations outweigh the reviewability interest, and I conclude that releasing the applicant would undermine confidence in the administration of justice.

Disposition

[21] The application is dismissed.

“B.W. Miller J.A.”