WARNING

The Motions Judge hearing this application directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 2024-07-12 Docket: M55234 (COA-24-CR-0565)

Before: Lauwers J.A. (Motions Judge)

Between: His Majesty the King Respondent/Responding Party

And: R.B. Appellant/Applicant

Counsel: Paul Lewandowski, for the appellant/applicant Philippe Cowle, for the respondent/responding party

Heard: July 8, 2024

Endorsement

[1] The applicant was convicted of sexual offences committed against two young girls, K.H. and I.H., who are also sisters. He seeks bail pending the appeal of both his convictions and sentence. The details of his convictions, for which he was sentenced to seven years in custody, follow:

• Count 1 – Sexual Interference (I.H.) – 4.5 years in custody.
• Count 2 – Sexual Assault (I.H.) – Kienapple v. R., [1975] 1 S.C.R. 729, applied.
• Count 3 – Sexual Assault (K.H.) – Kienapple applied.
• Count 4 – Sexual Interference (K.H.) – 4.5 years of custody consecutive to Count 1.
• Count 5 – Invitation to Sexual Touching (I.H.) – 2 years custody concurrent to Count 4.

[2] The trial judge reduced the sentence from nine to seven years based on the totality principle.

[3] The applicant abided by the terms of his release pending trial. He is 71 years of age and has significant health and mobility issues. Since his sentencing he has spent most of his time in the medical ward of the detention center as a result of his various ailments. His health has declined.

[4] I deny bail pending appeal for the following reasons.

A. The Governing Principles

[5] For bail pending a conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, that: (1) the appeal or application for leave to appeal is not frivolous; (2) he will surrender himself into custody in accordance with the terms of the order; and (3) his detention is not necessary in the public interest.

[6] The Crown submits that the applicant should remain incarcerated on the third ground: his detention is necessary in the public interest on the basis of public confidence in the administration of justice. This is the only live issue in this bail application.

[7] I set out the governing principles at length in R. v. J.B., 2023 ONCA 264. 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 (Ont. C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability.

B. The Principles Applied

The applicant’s detention is necessary in the public interest.

[8] Under s. 679(3)(c), there are two components to consider: public safety and public confidence in the administration of justice: Farinacci, at para. 41. Only the second component, public confidence, is engaged in this application. Consideration of the public confidence component involves assessing the balance between enforceability and reviewability.

(a) Enforceability

[9] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, at para. 42.

[10] As noted in Oland, the seriousness of the crime figures in the assessment of the enforceability interest. 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: R. v. J.B., 2023 ONCA 264, at para. 17, citing R. v. M.S., 2022 ONCA 348, at para. 15; see also R. v. P.R., 2024 ONCA 345; R. v. Bowman, 2024 ONCA 313; R. v. C.M., 2023 ONCA 700, at para. 5; R. v. G.B., 2023 ONCA 621, at para. 10; R. v. J.C., 2023 ONCA 617, at para. 6; R. v. W.W., 2023 ONCA 328; R. v. M.S., 2022 ONCA 348; and R. v. R.B., 2014 ONCA 722. The inherent seriousness of the sexual offences against children in this case supports the enforceability interest.

(b) Reviewability

[11] As the court noted in Oland, “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40.

[12] I now assess the strength of the two grounds of appeal on which the applicant premised his argument for bail pending appeal:

1. The trial judge erred in her analysis of inadvertent collusion and in ruling the similar fact evidence to be admissible.
2. The trial judge erred in her analysis of the applicant’s exceptional health circumstances and thus erred in declining to impose a conditional jail sentence.

[13] I do not consider the third ground of appeal, that the trial judge erred in her instructions to the jury on its use of similar fact evidence, which the applicant did not pursue in argument, although counsel mentioned it briefly.

(i) The trial judge’s alleged errors in her analysis of inadvertent collusion and in ruling the similar fact evidence to be admissible

[14] I begin by setting out some of the trial judge’s reasoning in her decision permitting the similar fact evidence to apply across the counts. She was fully conversant with the applicable law. I need not recount the abuse. The trial judge noted the defence’s concessions at trial that “the descriptions from the two complainants are highly similar” and that “moral and reasoning prejudice are not at issue under these circumstances.”

[15] The focus of the defence’s submission at trial was on “collusion and/or tainting.” Counsel bases this bail application on the strength of the argument on appeal, which is that: “the Crown has failed to discharge its burden to prove that the evidence of the complainants was not tainted.”

[16] The argument turns on the effect of K.H.’s evidence that she was present for a telephone conversation. The trial judge set out the facts:

[20] A.L. was asked about the call K.H. described her father receiving while the family was walking home from school. A.L. confirmed that this call was from Family and Child Services of Renfrew County (“FCS”). He took the call while he and his wife were walking their children home from school. This was the first notice the parents had that the respondent was being investigated. No details were provided in this phone call, but receiving it prompted the parents to call I.H. down to the basement and ask her about the respondent.

[22] As stated above, K.H. recounted, with specificity, her father receiving a phone call that resulted in her plans to stay with the respondent changing. A.L. confirmed that the phone call was from FCS and that receiving it prompted she and her husband asking each of their daughters about the respondent, resulting in the disclosure. However, A.L. also had a specific recollection of who was present and not present when that call was received. According to A.L., K.H. was not present when FCS called her husband on March 10, 2020.

[23] A.L.’s recollection is supported by uncontroverted facts. As of March 10, 2020, when this call occurred, K.H. was not attending the same school as her younger brothers. She had changed schools in September 2019 and now took the bus to school. As a result, A.L. testified that there was no way K.H. would have been present when that phone call occurred.

[17] This evidence gave rise to the defence’s primary argument at trial, which the applicant argues again should justify granting bail:

[24] The respondent submits that the likely explanation for the discrepancy between A.L.’s evidence that K.H. was not present for this phone call, and K.H.’s specific recollection of overhearing this phone call is that K.H. has adopted a false memory. The respondent further submits that this should cast doubt on the independence of K.H.’s recollection of the sexual assaults. In other words, if K.H. has created a false memory of the phone call, she may have created a false memory of being sexually assaulted.

[25] The respondent further submits that the possibility of tainting of K.H.’s evidence with this false memory, even unintentionally, means that the Crown has not discharged its burden to prove that collusion or tainting did not occur.

[18] The defence took the position that, “as sisters, sharing the same bedroom, there was ample opportunity for unintentional collusion,” but the trial judge held that “mere opportunity” of collusion was not sufficient, citing R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 43-45. Shearing involved two sisters but there was evidence of some communication between them and with others. There was no other evidence of sharing of information, unlike in R. v. T.D.A., 2017 ONCA 910, at para. 9.

[19] In my view, the trial judge positioned the issue correctly and was alive to the defence argument. She said:

[30] I agree with the Crown that K.H.’s evidence of being present during the FCS phone call is a collateral issue to the incidents described by both complainants; however, all the defence has to raise is an air of reality to the allegation of collusion, even if unintentional, for the Crown to be required to disprove collusion on a balance of probabilities: R. v. C.D., 2023 ONCA 790, at para. 12.

[20] The trial judge’s analysis led her to conclude:

[36] I do not agree with defence that if K.H. adopted a false memory of being present during the FCS call to her father, she likely adopted false memories of being sexually assaulted for three reasons. First, it is not my role to make a finding of fact that K.H. has created a false memory. It is open to the jury to accept K.H.’s version of events and reject A.L.’s testimony that K.H. was not present.

[37] Second, K.H.’s evidence of the alleged incidents, while very similar to I.H., was not exactly the same. K.H. describes the respondent’s actions as becoming more serious each time. K.H. also testified to being compelled to touch the respondent’s penis. I.H. specifically denied touching the respondent’s penis.

[38] Finally, unlike the cases that have been put before me where there was evidence of the sharing of information (see R. v. T.D.A., 2017 ONCA 910, at para. 9), there was no such evidence here. Both I.H. and K.H. denied ever discussing these events with one another. A.L. also denied ever discussing these events with her daughters. Those denials are sufficient for the Crown to meet its burden of disproving collusion.

[21] To summarize, the trial judge found that the Crown had met its burden of proving that the evidence of the complainants was not tainted on several bases. First, the trial judge noted that “there is no evidence of actual collusion.” She relied on the cross-examinations of the two complainants and stated: “The complainants were cross-examined extensively and both denied ever discussing these incidents with one another.” She added that “K.H. was also not present when I.H. disclosed.”

[22] Second, the trial judge noted that there were differences in the evidence of the two complainants, because K.H. described the applicant’s action “as becoming more serious each time.”

[23] Third, the trial judge accepted denials at face value, as she was permitted to do in her gatekeeping function:

Both I.H. and K.H. denied ever discussing these events with one another. A.L. also denied ever discussing these events with her daughters. Those denials are sufficient for the Crown to meet its burden of disproving collusion.

[24] The trial judge’s conclusion that there was no air of reality to the allegation of collusion, actual or unintentional, including K.H.’s evidence about the FCS telephone, did not require the Crown to disprove collusion on a balance of probabilities. Taking the lead of the Supreme Court in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 111, the trial judge considered that “[i]f the evidence amounts to no more than opportunity, it will usually best be left to the jury.” The jury, in full possession of the evidence and the argument concerning false memory, convicted the applicant.

[25] While these 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. These grounds of appeal are very weak. I base this view on the following factors:

1. The trial judge’s decision to admit the similar fact evidence was discretionary and attracts appellate deference, and the applicant has not pointed to an error of law, principle, or a palpable and overriding error of fact committed by her. Instead, he challenges the perspicacity of the trial judge’s discretionary decision.
2. The trial judge’s discretionary decision as gatekeeper to leave the issue of collusion to the jury, including the false memory allegation, was consistent with authority and attracts appellate deference.
3. While similar fact evidence is a difficult area of the law, simply asserting that the trial judge made an error in the applicable principles of law is not sufficient. Similar fact evidence is frequently used. There must be more than a mere assertion that it was wrongly admitted. Such an assertion could be made in all such cases with the same ease by which an appellant might assert a claim that the trial judge gave the evidence uneven scrutiny.
4. Contrary to the applicant’s description of the trial judge’s analysis as “cursory”, as I noted above, she gave the matter careful scrutiny. She did not “toss it aside as if it was a non-issue.”

(ii) The trial judge’s alleged errors in her analysis of the applicant’s exceptional health circumstances and in declining to impose a conditional jail sentence

[26] As the respondent pointed out, leave to appeal sentence is required, which places an additional burden on the applicant, although counsel did not explain how that should affect this application for bail.

[27] The sentencing judge directly addressed the applicant’s health circumstances and took them into account. She noted that there is “no evidence that the applicant will not fully recover from [a procedure the applicant must undergo] or that the correctional facility is unable to provide the nursing care he needs during this recovery.” She added:

[16] [The applicant] also has a history of cancer. He has been in remission for many years. There is no evidence that this past medical history of cancer will be impacted by a custodial sentence.

[28] The trial judge based her decision on the principle that in sexual offences against children, denunciation and deterrence are of primary importance, citing R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3.

[29] The applicant has identified no error in principle in the exercise of the trial judge’s discretion in sentencing. This ground of appeal is also very weak.

C. Disposition

[30] Given the seriousness of the crime, as reflected in the sentence, the interest in enforceability is strong. The applicant's appeals of conviction and sentence are weak and do not “clearly surpass” the minimal standard required to meet the ‘not frivolous’ criterion, as required by Oland. By contrast, the Crown’s side in this appeal is strong. The interest in reviewability is weak.

[31] The balance of the competing interests of enforceability and reviewability in this case comes down in favour of enforceability. A reasonable member of the public, informed of the seriousness of the conviction and the weakness of the grounds for appeal would lose confidence in the administration of justice if the applicant were released pending appeal.

[32] I find that the detention of the applicant is necessary in the public interest and dismiss the application for bail pending appeal.

“P. Lauwers J.A.”