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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231107 Docket: M54627 (COA-23-CR-0254)
Before: Fairburn A.C.J.O. (Motion Judge)
Between: His Majesty the King Respondent
And
J.B. Applicant (Appellant)
Counsel: Mark Fahmy, for the applicant Nicole Rivers, for the respondent
Heard: November 1, 2023
Reasons for Decision
[1] The applicant was convicted of sexual assault and sexual interference on August 31, 2022. On February 9, 2023, he received a nine-year sentence on the sexual interference conviction. The sexual assault conviction was stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. The complainant was his child neighbour who testified that, over an approximately two-year period, the applicant sexually assaulted her, including touching and penetration.
[2] The bail judge, Lauwers J.A., denied the applicant bail pending appeal on April 13, 2023, with reasons reported at R. v. J.B., 2023 ONCA 264. That denial was rooted in the tertiary ground under s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46: whether detention is necessary in the public interest. The bail judge concluded that the interests in enforceability clearly outweigh the interest in reviewability. As his reasons reflect, he arrived at the conclusion that a reasonable member of the public would lose confidence in the administration of justice if the applicant were to be released pending appeal.
[3] The applicant now seeks to have the bail judge’s decision reviewed before a panel of this court pursuant to s. 680 of the Criminal Code. He maintains that it is “arguable” that the bail judge committed material errors of fact or law: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 61, 64. The test for directing a panel review under s. 680(1) of the Criminal Code is set out in Oland, at para. 64:
The test, as I see it, should be relatively straightforward in its application. It flows from the principles the panel is required to apply when conducting a review. In short, the chief justice should consider directing a review where it is arguable that the judge committed material errors of fact or law in arriving at the impugned decision, or that the impugned decision was clearly unwarranted in the circumstances. [Emphasis added.]
[4] The applicant says that it is arguable that the bail judge made three errors in his decision.
The Alleged Misapprehension of Evidence
[5] First, the applicant maintains that the bail judge erred by failing to conduct a pointed assessment of the alleged misapprehensions of evidence made by the trial judge. The applicant clarified during oral submissions that his allegation that the bail judge failed to conduct a pointed assessment of the alleged misapprehensions of evidence is really a complaint about the sufficiency of reasons. He also claims that the bail judge erred by saying that this ground of appeal would represent an “uphill battle”, thereby assuming that all misapprehensions of evidence are the same.
[6] Respectfully, it is not arguable that the bail judge made this error. The task of the bail judge was not to conduct an appeal, but to examine the strength of the grounds of appeal with “an eye to their general legal plausibility and their foundation in the record”: Oland, at para. 44. In my view, that is exactly what the bail judge did.
[7] He made a preliminary assessment of the strength of this ground of appeal, all the while having an eye to its general legal plausibility. The bail judge’s conclusion that the applicant’s ground of appeal on this point was “weak” did not require exhaustive reasons. He was under no obligation to provide more extensive reasons than he did. He listed the alleged misapprehensions and demonstrated his grip on what was alleged. His assessment was that they are weak.
[8] I have looked at the points raised by the applicant and agree with that assessment. Bearing in mind that we are at a preliminary stage, I am satisfied that there was an evidentiary foundation upon which the trial judge could conclude that:
(i) the applicant deliberately tried to diminish the closeness of his relationship with the complainant;
(ii) the applicant’s evidence about knowing that the complainant was alone and sleeping on his bed, even though he did not go into the bedroom, was “unbelievable”;
(iii) the applicant’s evidence about the complainant being “the same as normal” was contradicted by his own evidence and that of her mother; and
(iv) the applicant did not deny the allegations when confronted by the complainant’s mother.
[9] My preliminary view of these alleged misapprehensions by the trial judge is that they are not so much misapprehensions as they are complaints about the factual conclusions the trial judge reached and the inferences she drew based upon the evidence before her. This is not to say that this ground of appeal could not succeed. This will be for the panel hearing the appeal to determine. The point is that, at this stage, it is not arguable that the bail judge erred in his assessment of the strength of this ground of appeal or in failing to provide more detailed reasons.
[10] Nor do I see anything controversial about the fact that this ground of appeal was described by the bail judge as an “uphill battle”. This descriptor is apt in light of the fact that, even where a trial judge is mistaken as to the substance of material parts of the evidence, the appellant must still also establish that the misapprehension constitutes an essential part of the reasoning process that results in conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, citing R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.). This is in fact a “stringent” standard, or, more colloquially put, an uphill battle: Lohrer, at para. 2.
The Alleged Error in Failing to Treat the Ineffective Assistance of Counsel Claim as a Distinct Ground of Appeal
[11] The applicant argues that the bail judge erred by concluding that the ineffective assistance of counsel claim merely “exacerbated” the other grounds of appeal, when in fact the applicant had advanced his ineffective assistance of counsel claim as a distinct ground of appeal. He points to a sentence where the bail judge summarized the appellant’s third ground of appeal as follows: “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.’”
[12] There is no merit to the suggestion that the bail judge misunderstood that the ineffective assistance of counsel claim was not a free-standing ground of appeal. Immediately before the passage quoted above, the bail judge set out the other grounds of appeal. Clearly, all he is saying in the passage that followed is that the other grounds were “exacerbated” by the fact that the applicant also received the ineffective assistance of counsel.
The Alleged Error in Requiring Evidence from Trial Counsel
[13] This leaves the ineffective assistance of counsel claim itself.
[14] The applicant argues that the bail judge erred by concluding that the ineffective assistance of counsel ground of appeal was “premature”, as there was no evidence from trial counsel.
[15] The assessment of a ground of appeal must be based upon the record. It is the applicant’s onus to establish that the reviewability interest is sufficiently strong as to outweigh the enforceability interest. As reflected in his reasons, it was clearly the bail judge’s view that the bail application was premature, absent evidence from trial counsel. In other words, that the applicant failed to meet his onus.
[16] Allegations of ineffective assistance of counsel are notoriously difficult to make out. This is not to say it is impossible to do so, but it is to say that there exists a strong presumption of competence, such that an evidentiary foundation is required to set it aside. While a bail application is not the time to argue the matter or advance a full evidentiary record, the fact remains that the dangers associated with such claims are operative at bail hearings just as much as they are on appeal and that, therefore, the presumption of competence operates on an equal footing. Such dangers rest on the fact that, following a conviction, it is all too easy to get into a blame game and make unfounded allegations about one’s lawyer: R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 142. This is why the law insists upon a presumption of competence and an evidentiary record to set that presumption aside.
[17] There is a wide range of reasonable professional assistance and the applicant for bail must present something more than bald allegations of incompetence to rebut the presumption that a lawyer has acted within that reasonable range. In my view, the presumption of competence is a material consideration on a bail application when determining the strength of the ground pertaining to the alleged ineffective assistance: R. v. C.M., 2023 ONCA 700, at para. 12. While evidence from trial counsel is not necessarily required, particularly at the bail stage, a credible evidentiary foundation is required. All that the bail judge was saying here is that there is no credible evidentiary foundation at this stage to lend support to the claim of ineffective assistance.
[18] I see no error in arriving at that conclusion – one that is supported by the sparse record as it pertains to the ineffective assistance of counsel claim.
[19] The applicant has failed to show that it is arguable that the bail judge engaged in material errors of fact or law. Although he did not advance the argument, I would add that the decision is also not clearly unwarranted.
[20] The application is dismissed.
“Fairburn A.C.J.O.”