COURT OF APPEAL FOR ONTARIO

DATE: 20241024 DOCKET: M55422 (COA-24-CR-0613)

Zarnett J.A. (Motions Judge)

BETWEEN

His Majesty the King Responding Party/Respondent

and

R.B.-M. Applicant/Appellant

Counsel: Neill Fitzmaurice, for the applicant Emily Bala, for the responding party

Heard: October 10, 2024

ENDORSEMENT

INTRODUCTION

[1] The applicant was convicted, on January 29, 2024 after a judge-alone trial, of having committed the offences of sexual assault, assault (two counts) and assault by choking against the complainant, who was his intimate partner. The applicant also pled guilty to breach of a release order and a probation order that arose from a prior assault against the complainant. On May 21, 2024, the trial judge imposed a custodial sentence of five years.

[2] The applicant has appealed his convictions (on the offences to which he did not plead guilty) and the sentence imposed. He applies for bail pending appeal.

[3] For the reasons that follow, I dismiss the application. The applicant has not met his onus to show that his detention is not necessary in the public interest.

Background

[4] Before the offences that form the subject matter of the appeal, the applicant had been charged with a May 2021 assault against the complainant. His release order pending trial on that charge stipulated that he have no contact with the complainant.

[5] In November 2021, the applicant pled guilty to the May 2021 assault. Part of his sentence for that offence included probation with a term that he not have contact with the complainant without her written consent.

[6] In March 2022, the applicant was charged with having physically and sexually assaulted the complainant in a hotel room during a trip to Ottawa in or about late June 2021, and with having assaulted her again in a restaurant washroom in Toronto in September 2021. He was also charged with violation of the release order, “by having contact or communication with [the complainant] between June 26th and November 16th, 2021” (i.e., including when the sexual assault, assault and choking offences occurred) and with violation of the probation order, “by contacting or communicating with [the complainant] without her written consent being filed with probation between November 16th, 2021 and March 15th, 2022”.

[7] At the beginning of his trial for the June and September 2021 offences, the applicant pled guilty to breaching the release order and the probation order. He pled not guilty to the assault, choking and sexual assault charges, but on January 29, 2024 he was convicted after trial of those offences.

[8] On May 21, 2024, the trial judge imposed a total sentence of five years’ imprisonment: four years for the June 2021 sexual assault, one year each concurrent for the June 2021 choking and assault charges, six months consecutive for the September 2021 assault, and three months consecutive for each breach charge.

ANALYSIS

The Test for Bail Pending Appeal

[9] To obtain bail pending appeal, the applicant must establish that: (1) the 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: Criminal Code, R.S.C. 1985, c. C-46, ss. 679(3)(a)(b) and (c).

[10] The Crown concedes that one of the applicant’s appeal grounds is not frivolous, and that he will surrender into custody. The Crown opposes bail on the basis that the applicant has failed to show that his detention is not necessary in the public interest.

[11] The public interest ground has two branches: public safety and public confidence in the administration of justice. The latter branch (on which the Crown relies) involves balancing the reviewability interest – that a person is entitled to a meaningful review process before having to serve all or a substantial part of their sentence – and the enforceability interest – that judgments should be immediately enforceable. The balancing is to be measured through the eyes of a reasonable member of the public: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-27 and 47; R. v I.W., 2021 ONCA 628, at paras. 16, 24.

The Enforceability Interest

[12] In this case, the enforceability interest is high, due to two factors – the seriousness of the crimes and the applicant’s history of violation of court orders designed to protect the complainant.

[13] The seriousness of the crime, including the gravity of the offence and the circumstances of its commission, plays an important role in the consideration of the enforceability interest, as the more serious the crime the more public confidence in the administration of justice may be undermined if the person is released on bail pending appeal: Oland, at para. 37.

[14] The applicant has been convicted of serious crimes. The length of the sentence imposed underscores their seriousness.

[15] In her reasons for sentence, the trial judge described the circumstances of the offences this way:

[In about June 2021 the applicant] had non-consensual sexual intercourse with the complainant, his intimate partner, in which he pushed her into a hotel room, grabbed her by the throat, struck her, forcibly removed her clothing, restrained her by placing his weight on her damaged leg, pinned her hands over her head, bit her on the breast and stomach and had unprotected vaginal sex with her until ejaculation.

With respect to the [September 2021] assault, [the applicant] removed the complainant from the place where she had sought refuge, a bathroom stall in a restaurant, by pulling her by the hair.

[16] As the trial judge recognized, quoting this court’s decision in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 74: “All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity and dignity are harmfully impacted while being treated as nothing more than an object.”

[17] Here, that seriousness is accentuated by the complainant’s vulnerability. As the trial judge observed in her reasons for sentence:

[The complainant] was a vulnerable victim. She was illegally in Canada. She did not speak English. [The applicant] controlled her by threatening to contact the immigration authorities about not only [the complainant], but also two of her adult children.

[18] As noted in Oland, at para. 39, even where public safety concerns “fall short of the substantial risk mark”, they remain relevant in assessing public confidence in the administration of justice and “can, in some cases, tip the scale in favour of detention”.

[19] Noteworthy in this respect is that the trial judge also found:

The [applicant] flagrantly violated both the bail and probation terms that were meant to protect [the complainant] after [the applicant] was found guilty of assaulting her for the first time. Each of these violations of court orders occurred repeatedly over the course of months.

[20] The June and September 2021 offences were committed in violation of the applicant’s release order and, until he was charged with those offences in March 2022, he continued to violate his probation order. Those orders were intended to protect the complainant’s safety but did not because the applicant did not obey them. The applicant’s disobedience of prior orders leaves a residual public safety concern.

[21] In summary, the public’s interest in the immediate enforcement of the custodial sentence imposed by the trial judge is elevated in the case of the applicant, who has been convicted of committing serious, violent offences against the complainant while in violation of a court order designed to protect her, and who has a history of disobeying court orders.

The Reviewability Interest

[22] Where the enforceability interest is thus engaged, weighing the reviewability interest requires a “more pointed consideration” of the strength of the appeal beyond the “very low bar” set by the “not frivolous” standard: Oland, at paras. 20, 40-41.

[23] The applicant submits that the case was largely a credibility contest between the complainant and the applicant. He raises three grounds of appeal alleging errors in the trial judge’s assessment of credibility.

[24] The first alleged error has to do with the trial judge’s acceptance of the evidence of the applicant’s probation officer that in March 2022, when she spoke to the complainant, the complainant was “upset”, “emotional” and “scared”. The applicant argues that although post-event demeanour is admissible circumstantial evidence, it was an error to consider the complainant’s demeanour months after the alleged offences.

[25] I do not see any arguable merit in this submission. There was no objection to this evidence at trial. The trial judge’s use of the probation officer’s testimony was limited and related to an issue that arose about the complainant’s emotional state in the months after the alleged offences and how it bore on the timing of her report to the police. The trial judge described the applicant’s position as accusing the complainant of only going to the police in March 2022 because of her irrational jealousy arising from his having just ended their relationship. The trial judge used the evidence of the probation officer to assist in evaluating that assertion and the complainant’s denial of it. She said:

[The probation officer’s] description of the complainant’s emotional state during their telephone call [in March 2022] supports [the complainant’s] evidence that she remained fearful of the [applicant]. Indeed, [the complainant’s] choice to stay silent about these events until being contacted by [a Partner Assault Response Program facilitator who then contacted the probation officer] and asked about her relationship with [the applicant] is more consistent with her account of ongoing fear and hopelessness as opposed the [applicant’s] implication that [the complainant’s] allegations arose from a jealous rage.

[26] The applicant also argues that the trial judge erred in treating an Uber receipt as supportive of the complainant’s testimony about the September 2021 assault. The complainant testified that after being assaulted in the restaurant washroom, she waited a period of time before leaving. The applicant argues that the time stamp on the Uber receipt is much later than the complainant’s estimate of how long she waited before leaving.

[27] I agree with the Crown that this submission lacks arguable merit. The complainant’s time estimates were approximate. Although defence counsel at trial did not suggest to the complainant that the Uber receipt contradicted her estimates, the argument was made to the trial judge. She considered it but found that “a person who feared for her safety might well be willing to wait for a lengthy period of time before departing from a place of relative safety.” Accordingly, she considered the receipt to be supportive of the core of the complainant’s testimony that she was the victim of an assault who feared for her safety and therefore delayed leaving. Substantial deference is owed to a trial judge’s fact-finding.

[28] Finally, the applicant argues that in assessing the applicant’s credibility, the trial judge referred to an affidavit he filed on an application under s. 276 of the Criminal Code, finding a statement in it about the length of his relationship with the complainant to be inconsistent with what he said in his trial testimony. The applicant submits that since the s. 276 affidavit was not part of the trial record, it was wrong to refer to it.

[29] The Crown concedes that this ground of appeal is not frivolous, but argues it is not strong. The trial judge identified the same inconsistency in other parts of the applicant’s trial testimony, and also identified numerous other reasons to reject the applicant’s evidence.

[30] I agree with the applicant that a trial judge errs when they refer to matters not properly in evidence as though they were part of the trial record – this is a misapprehension of evidence. But for a conviction to be reversed based on a misapprehension of the evidence, a stringent standard must be met. The error must go to substance rather than detail and must be on a matter that is essential to the trial judge’s reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, 8; R. v. Kwok, 2023 ONCA 458, 427 C.C.C. (3d) 462, at paras. 54-58. If the error does not play an essential part in the reasoning process, there is no miscarriage of justice and a misapprehension of evidence ground of appeal will not succeed: Lohrer, at para. 8; Kwok, at para. 54; R. v. Saunders, 2024 ONCA 552, at para. 8.

[31] Given that the trial judge identified the same inconsistency in parts of the applicant’s trial testimony, it is difficult to see the identification of the same inconsistency in the s. 276 affidavit as essential to her reasoning process.

[32] The applicant argues that the s. 276 affidavit may have played a role in other conclusions of the trial judge, even if she did not cite it on any other point. Counsel for the applicant does not have the s. 276 affidavit and therefore cannot do better than to raise this as a possibility. However, the onus is on the applicant to establish that release pending appeal is warranted. Something more than the possibility of a meritorious argument is required to surpass the not frivolous standard. A misapprehension of evidence argument must be based on the judge’s actual reasoning process, not on “the purely hypothetical possibility that the trial judge’s mistake might have implicitly affected the verdict, even when the impact of the error on the judge’s actual reasoning process cannot be determined from the judge’s reasons”: Saunders, at para. 14.

[33] This ground of appeal, while not frivolous, does not clearly surpass that threshold.

The Final Balancing

[34] As indicated above, the enforceability interest in this case is high due to the seriousness of the offences, the circumstances of their commission, and the breach of the prior court orders which leaves residual public safety concerns.

[35] The applicant points to the fact that after his arrest for the June and September 2021 offences, he was released on bail without incident. He argues that this recent history should provide confidence that his proposed bail pending appeal conditions [2] will be obeyed. I do not accept that argument.

[36] Although there is an uninterrupted record of compliance with the terms of the applicant’s bail pending trial for the offences that are the subject of the appeal, he has a record of non-compliance with the terms of his bail and probation for the prior assault – that record is recent, not dated. Importantly, he committed the offences that are the subject of the appeal while in violation of a prior order. To repeat what the trial judge said in her reasons for sentence: “The [applicant] flagrantly violated both the bail and probation terms that were meant to protect [the complainant] after [the applicant] was found guilty of assaulting her for the first time. Each of these violations of court orders occurred repeatedly over the course of months.” In light of that track record, a reasonable member of the public would not have the necessary degree of confidence that bail pending appeal conditions would be obeyed.

[37] On the other hand, the reviewability interest in this case is influenced by the absence of strength in the grounds of appeal. At least one of them is not frivolous, but they are not strong – none clearly surpass the not frivolous standard.

[38] Moreover, in balancing the enforceability and reviewability interests, the timing of the appeal is relevant: Oland, at para. 48. The appeal could be heard when the applicant will still have considerable time left to serve on his sentence. Accordingly, the reviewability interest is partially preserved even without release until the appeal is heard.

[39] Viewed from the perspective of a reasonable member of the public, the enforceability interest predominates and outweighs the reviewability interest given the less than strong grounds of appeal, the seriousness of the crimes, and the “lingering public safety … concerns”: Oland, at para. 50.

DISPOSITION

[40] The application for bail pending appeal is therefore dismissed. Upon perfection of the appeal, the applicant may apply for an expedited hearing date.

“B. Zarnett J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The proposed bail conditions include GPS monitoring and that the applicant reside with his current intimate partner who will be his surety. He has, however, never previously resided with the proposed surety (who was not his surety pending trial). As Crown counsel points out, GPS monitoring shows where someone is, not what they are doing. The applicant does not argue that the bail conditions are such that they would suffice even in the absence of confidence they would be obeyed.