Publication Ban Warning

The application judge 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2023-10-10 Docket: M54553 (COA-23-CR-0947)

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

Between: His Majesty the King, Respondent and D.R., Appellant (Applicant)

Counsel: Brigitte Gratl, for the applicant Jim Clark, for the respondent

Heard: October 3, 2023

Reasons for Decision

[1] The applicant is appealing his convictions for two counts of sexual assault, one count of making child pornography and one count of voyeurism in relation to the complainant who was between 13 and 18 years of age when the offences occurred. He also seeks to appeal his sentence of six and a half years in custody. The applicant was convicted of the offences on June 1, 2023 and sentenced on September 6, 2023.

[2] Pursuant to s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, the applicant must establish 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. The Crown opposes the applicant’s release primarily on the third ground.

[3] I am satisfied that the appeal is not frivolous, which is a very low bar to meet. I also accept that, if released, the applicant would surrender into custody when required to do so.

[4] The issue on this application is whether the applicant’s detention is not necessary in the public interest.

[5] There are two public interests engaged by the third criterion – the first is public safety and the second is the public confidence in the administration of justice.

[6] The Crown asserts that there is a public safety concern here. Counsel points to the applicant’s long criminal record that includes crimes of violence and breaches of undertakings, the fact that the new bail terms are essentially untested, and that the new place of residence is closer to where the complainant lives. I note that the applicant has been on bail without incident for five and a half years, that his criminal record is dated, and that he has maintained a strong record of employment. Under the release terms that were in place pending sentencing, the applicant lived with his father in Sheffield. Now it is proposed that he live with his former spouse and daughter in Cambridge, where the complainant lives. There is no real explanation for the change. I agree with the Crown that this release plan is untested, and that there is a residual concern about public safety as a result.

[7] The main issue on this application however is in relation to the second arm of the third criterion. I am satisfied that public confidence in the administration of justice is engaged in this case, given the applicant’s convictions for child sexual abuse and the imposition of a lengthy penitentiary sentence: R. v. M.S., 2022 ONCA 348, at paras. 12, 15.

[8] The public confidence analysis requires the court to assess and to weigh the competing interests in the reviewability of the conviction and the enforceability of the sentence. The Crown submits that the grounds of appeal, although not frivolous, are weak, and that the interest in reviewability accordingly does not outweigh society’s interest in enforcement.

[9] On the enforceability side, the applicant was convicted of sexual offences against a child victim, which are objectively serious. The circumstances of the offences were also very serious, involving the repeated sexual abuse of the complainant over a number of years, while the applicant lived with her and her mother, and he had assumed the role of her stepfather, and the applicant taking photographs of the complainant while he was assaulting her.

[10] With respect to reviewability, there is no real potential for the applicant to have served a substantial part of his sentence before the appeal is determined. The focus here is on the strength of the grounds of appeal. The applicant does not have to prove that his appeal is likely to succeed; rather, the grounds identified in the notice of appeal are examined with an eye to their general legal plausibility and their foundation on the record, with the court determining if the grounds of appeal “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 44.

[11] The applicant’s notice of appeal lists three grounds in respect of his conviction appeal: (1) that the verdicts were unreasonable; (2) that the trial judge erred in denying his pretrial applications in respect of delay, disclosure and under s. 276 of the Criminal Code, and respecting the introduction of evidence; and (3) that the trial judge erred by not adequately reading the transcript when answering a jury question. In respect of his sentence appeal the applicant asserts that the trial judge erred in declining to stay certain charges under the Kienapple principle, and that the sentence was too harsh.

[12] The preliminary assessment of the merits of the appeal cannot be made in a vacuum. As the Supreme Court stated in Oland, the assessment is “not a matter of guesswork”, and “[i]t will generally be based on material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, along with relevant authorities”: at para. 45.

[13] In this case the applicant’s counsel filed a memorandum respecting the merits of the appeal, addressing the various grounds of appeal. She also provided a copy of the draft jury charge, and transcripts of two of the trial judge’s oral rulings. I note that the applicant does not allege that the trial judge erred in her final instructions to the jury. Rather, the bulk of the submissions have to do with rulings that were made against the applicant in pretrial applications and at trial on evidentiary matters, and in dismissing the applicant’s s. 11(b) application. The merits memo addresses exhibits and evidence that were not before this court, and in many instances refers to errors “the details of which can only be explored on appeal”. The Crown provided a copy of the trial judge’s reasons on one of the s. 11(b) rulings (apparently there were two, but the applicant’s counsel provided neither). Overall, however, the materials on this application do not in any material way assist in understanding the grounds of appeal in respect of the applicant’s convictions. As for the sentence appeal, there is no way at all of assessing the grounds, as there is no transcript of the reasons that were delivered orally a few weeks before the hearing of this application.

[14] Doing the best that I can on this record, I make the following observations about the merits of the appeal. First, the applicant’s counsel did not take the court to anything that would meet the test for an unreasonable verdict (that is, one that no properly instructed jury, acting judicially, could have rendered). Instead, the focus on this ground of appeal appears to be on the various inconsistencies between the complainant’s evidence and other evidence at trial that ought to have persuaded the jury that she was not credible and that her evidence was not reliable. The verdicts were not unreasonable if the jury accepted the complainant’s evidence. Nor does the acquittal on one offence (making child pornography on one date) mean that the conviction on another offence (making child pornography on a different date) is unreasonable.

[15] Second, I see little merit on the record and submissions at this stage to the second ground of appeal, which challenges several rulings of the trial judge: her decision not to permit the defence to tender various text messages and photos, her s. 11(b) rulings, her ruling on the applicant’s third party records applications and applications with respect to questions the defence intended to ask the complainant. These were essentially discretionary decisions, and, with one exception, the applicant has not pointed to any error of law or principle by the trial judge in making her decisions. The one alleged error of law is in the trial judge’s refusal to permit cross-examination and other evidence on an alleged false reporting of sexual assault by the complainant against another person. The applicant challenges the trial judge’s rejection of the argument that the Supreme Court’s decision in R v. W.(B.A.), [1992] 3 S.C.R. 811 lowered the threshold for the admission of such evidence from other authorities such as the oft-cited decision of this court in R. v. Riley, (1992), 11 O.R. (3d) 151, at p. 154. Having reviewed the authorities, I see no merit in this submission, or for that matter in the submission by the applicant’s counsel that this court’s decision in R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521, where the collateral fact rule was discussed in detail, was wrongly decided.

[16] As for the alleged errors in the s. 11(b) rulings, although the applicant referred to two rulings, again only one set of reasons was provided – by the Crown. Even if there was some error in the time attributed to defence delay – and I emphasize that I am not persuaded that there was such an error – the trial judge found in the alternative that there was delay attributable to the COVID pandemic that constituted an exceptional circumstance that brought the overall delay under the Jordan threshold.

[17] Finally, in respect of the conviction appeal, the applicant alleges an error in answering a jury question, stating that the trial judge refused the defence request to play back a specific passage from the complainant’s evidence. A trial judge’s response to a jury question is entitled to deference, absent an error of law or a material misapprehension of fact and provided it falls within a range of reasonable alternatives: R. v. Mohamad, 2018 ONCA 966. In this case, there was nothing in the record on the application that would assist in the assessment of this ground of appeal.

[18] As for the sentence appeal, there is no transcript of the trial judge’s reasons. In the circumstances the assertion that the sentence was too severe in light of the trial judge’s statement that she had a reasonable doubt that penile penetration had occurred, cannot be assessed. Based on the review of the evidence set out in the charge, and the convictions that followed, even without penile penetration the sentence does not appear to be outside an appropriate range.

[19] Whether there is merit to any of the grounds of appeal advanced by the applicant – on a full record, and with full argument, will be determined when the appeal is before a panel of this court. My role at this stage is to conduct a preliminary assessment based on the materials filed on this application and the submissions of counsel. I am unable to say that any of the grounds of appeal clearly surpass the “not frivolous” standard.

[20] Based on my assessment of the merits of the appeal, and the fact that there is no risk that the applicant will have served substantially all of his sentence by the time the appeal is heard, the reviewability interest is not strong. By contrast, the interest in execution of the judgment in respect of the applicant’s serious offences committed against a child victim outweighs the reviewability interest and favours the applicant’s detention. Having regard to the public interest in the administration of justice together with the residual public safety concern I have identified, the applicant has not met his burden under s. 679(3) of the Criminal Code.

[21] For these reasons, the application is dismissed.

“K. van Rensburg J.A.”