Publication Ban Warning

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 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240913 DOCKET: M55355 (COA-22-CR-0177) Copeland J.A. (Motions Judge)

BETWEEN

His Majesty the King Respondent

and

Jacob Hoggard Applicant

Counsel: Arash Ghiassi, for the applicant Catherine Weiler, for the respondent

Heard: September 10, 2024

Endorsement

[1] The applicant applies for release from custody pending an application for leave to appeal to the Supreme Court of Canada. He was convicted of one count of sexual assault causing bodily harm. I will not summarize the facts underlying the conviction. They can be found in this court’s decision dismissing the applicant’s appeal, reported at R. v. Hoggard, 2024 ONCA 613.

[2] For the reasons that follow, the application is dismissed.

The applicable law

[3] The test for release pending an application for leave to appeal to the Supreme Court of Canada is set out in s. 679 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. To obtain release, an applicant must establish on a balance of probabilities that: (a) the appeal is not frivolous; (b) they will surrender into custody in accordance with the terms of the order; and, (c) their detention is not necessary in the public interest: Criminal Code, s. 679(3); R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19. The last factor involves considerations of public safety and public confidence in the administration of justice: Oland, at para. 23.

[4] The Crown concedes that the applicant satisfies the first two branches of the test in that his application for leave to appeal is not frivolous and he will surrender into custody in accordance with the terms of a release order, if released. The applicant was released on bail pending his trial and sentencing. He was then released pending appeal until this court decided his appeal on August 16, 2024. There were no issues with his compliance with his bail orders.

[5] As a result of the Crown’s concessions, this application focuses on the third branch of the test for bail, the public interest ground, and in particular, the public confidence branch of that ground.

[6] The public confidence analysis involves weighing the public interest in enforceability of court orders against the public interest in a person convicted of a criminal offence having access to a fair process to review their conviction for possible errors: Oland, at paras. 37-51; R. v. Drabinsky, 2011 ONCA 647, at paras. 7-10.

[7] The enforceability interest is based in the principle that court orders – here the applicant’s conviction and sentence – should be enforced, and enforced in a timely manner. Where an individual is convicted of a serious offence and sentenced to a significant jail term, public confidence in the criminal justice system may suffer if years go by before the individual serves their sentence.

[8] But the enforceability interest must be weighed against the reviewability interest inherent in the right to appeal a criminal conviction. In the context of bail pending appeal, the reviewability interest is concerned to prevent a person who has a potentially meritorious appeal from the appeal becoming meaningless, if they were to serve a significant portion of their sentence only to have the conviction set aside on appeal.

[9] Although the same test applies when bail is sought pending an application for leave to appeal to the Supreme Court of Canada as when it is sought pending an appeal to this court, the court may assess the balance between the enforceability interest and the reviewability interest differently after an applicant’s conviction has been affirmed by this court. At the stage of an application for leave to appeal to the Supreme Court of Canada, an applicant has already exercised their right to appeal to this court. They have had the opportunity to advance all of their arguments as to why the conviction should be overturned. This court has considered those arguments, and the conviction has been affirmed. At this stage, an applicant is seeking to bring a second appeal: Drabinsky, at paras. 10-11. As I discuss below, this typically diminishes the weight to be given to the reviewability interest and increases the weight to be given to the enforceability interest. However, each case must be assessed on its merits. Of particular relevance will be the assessment of the strength of the proposed application for leave to appeal to the Supreme Court of Canada.

Analysis

[10] The applicant argues that his detention is not necessary to maintain public confidence in the administration of justice. He has complied with previous bail orders pre-trial and pending the appeal to this court. The Crown does not rely on public safety concerns. The applicant argues that he has put forward a strong case that leave to appeal should be granted to resolve issues of national importance in relation to the legal test to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. He argues that his interest in seeking further review of his conviction outweighs the interest in enforcing the sentence imposed on him.

[11] The Crown argues that the applicant has not met his onus to establish that his detention is not necessary to maintain public confidence in the administration of justice. He has been convicted of a serious offence and sentenced to a five-year penitentiary sentence. The Crown argues that the applicant’s application for leave to appeal is unlikely to be granted. In order to obtain leave to appeal, the applicant must persuade the Supreme Court that his proposed appeal raises a legal issue of national or public importance. The Crown argues that the application fails to do so because it raises only a fact-specific application of the curative proviso. The Crown argues that at this stage of the proceedings, the enforceability interest outweighs the reviewability interest. The applicant has already had one appeal and his conviction was affirmed. A second appeal is not a right, but rather is dependent on leave to appeal, which is sparingly granted.

[12] I begin by considering the strength of the grounds advanced in the applicant’s application for leave to appeal to the Supreme Court of Canada. The issue in considering the merits of the applicant’s leave application is whether the application raises a legal issue of national or public importance, as this is the test the Supreme Court applies in considering applications for leave to appeal.

[13] Although I am prepared to accept that the application for leave to appeal is not frivolous under the first branch of the test for bail pending appeal, in my view it is not a strong leave application. The Supreme Court of Canada will ultimately decide the leave application. However, my role as the judge considering the bail application requires me to engage in a preliminary assessment of the merits.

[14] The applicant argues that disputes in various appellate and Supreme Court of Canada decisions about whether the proviso should be applied to a particular set of facts show inconsistency about the legal test to apply the proviso. The applicant argues that this inconsistency shows there is an issue of national or public importance that would merit granting leave to appeal to allow the Supreme Court of Canada to clarify the legal test for application of the curative proviso.

[15] In my view, there is a difference between the legal test that applies when considering the application of the curative proviso and the fact-specific application of the proviso in individual cases. The legal test that applies when considering the application of the curative proviso is well-established. I am not persuaded there is real dispute in the case law about the legal test to apply the curative proviso. Differences of application of the curative proviso to particular factual situations do not raise an issue of what the legal test is. As a result, I do not see a strong case that there is an issue of national or public importance about the test to apply the curative proviso. In the absence of an issue of national or public importance, the application for leave to appeal is weak. Ultimately, the application for leave to appeal involves the fact-specific application of the curative proviso to the applicant’s appeal.

[16] My assessment that the application for leave to appeal, although not frivolous, is weak, diminishes the strength of the reviewability interest. Leave to appeal is granted sparingly by the Supreme Court of Canada. Because the reviewability interest at this stage is contingent on leave to appeal being granted by the Supreme Court, which I assess is unlikely, the reviewability interest is diminished.

[17] The reviewability interest is also diminished by the fact that the applicant has had the opportunity to exercise the right of appeal to this court, and his conviction has been affirmed. At the stage of a first appeal to this court, the reviewability interest may be given primacy and an individual released pending appeal to allow them to exercise their right to appeal and not serve a significant portion of their sentence while doing so. However, the applicant has now exercised his right to appeal. A unanimous panel of this court has considered all of the arguments advanced by the applicant and upheld his conviction.

[18] The flip side of these considerations is that the enforceability interest is higher at this stage of the process than before the applicant’s appeal to this court was decided. The offence that the applicant has been convicted of is very serious. That factor standing alone does not lead me to find a high enforceability interest. Individuals who have been convicted of serious offences are regularly granted bail pending appeals to this court. Indeed, the applicant was released on bail pending his appeal to this court. What distinguishes this application is that the applicant has already exercised his right of appeal to this court and lost. This fact changes the balance between the reviewability and enforceability interest. The interest in enforcing the conviction and sentence imposed on the appellant is increased now because his arguments to challenge the conviction have been considered by this court, and the conviction was unanimously affirmed.

[19] The fact that leave to appeal is required as a condition of the applicant having access to a further appeal also increases the weight to be given to the enforceability interest at this stage of the proceedings. The applicant seeks a second appeal. Unlike the first appeal, the second appeal is not an automatic right. It requires the granting of leave to appeal by the Supreme Court of Canada on an issue of public or national importance. The public interest in enforcing the sentence imposed on the applicant is stronger where his ability to move forward with a second appeal is contingent on the currently uncertain question of whether he will obtain leave to appeal.

[20] Finally, given the relatively short time frame for the Supreme Court to decide an application for leave to appeal, denying bail at least until the leave application is decided will not render the applicant’s attempt to seek further review of his conviction meaningless by requiring him to serve most or all of his sentence before the leave application is decided. Applications for leave to appeal to the Supreme Court of Canada are typically decided within three to six months. The appellant is facing a five-year jail sentence. He has served approximately one month of that sentence since this court’s decision was rendered on August 16, 2024. He will still have years to serve when the Supreme Court decides the leave application.

[21] At this stage of the proceedings, where the applicant’s conviction has been unanimously affirmed by this court and it appears unlikely that he will be granted leave to appeal, I am satisfied that the public interest in enforcing the sentence imposed on the applicant outweighs his interest in a second review of his conviction. If the Supreme Court of Canada grants leave to appeal, the balance may change and a reassessment of the applicant’s bail status may be warranted.

[22] Before closing, I briefly address the applicant’s argument that hardship caused by his being held in protective custody at the Toronto South Detention Centre (the “TSDC”) is a factor that should weigh in favour of granting release pending the determination of the leave application to the Supreme Court of Canada. In my view, that factor is too uncertain to bear significant weight in the public interest analysis. It does not appear likely that the applicant will remain housed at the TSDC much longer. His sentence is a penitentiary sentence. In the normal course, he will be transferred to a federal institution to serve his sentence. There is no information before me about whether protective custody will be required in a federal institution or the conditions of such confinement. Although it appears that the applicant’s transfer to a federal institution will not occur until after another trial he is facing, it does not appear that he will remain at the TSDC. The applicant is scheduled to face trial in northern Ontario beginning on September 23, 2024 – in less than two weeks. Crown counsel advised that the Crown intends to obtain a judge’s order to have the applicant transferred to the North Bay Jail for the duration of that trial.

Disposition

[23] The application is dismissed. The dismissal of this application is without prejudice to the applicant’s right to reapply for bail pending appeal in the event the Supreme Court of Canada grants leave to appeal.

“J. Copeland J.A.”