Court File and Parties

Court of Appeal for Ontario Date: 20241125 Docket: M55479 (COA-24-CR-0960)

Gomery J.A. (Motions Judge)

Between His Majesty the King Respondent

and

Althea Reyes Appellant/Applicant

Counsel: Althea Reyes, acting in person Megan Stephens, appearing as duty counsel Kevin Pitt, for the respondent

Heard: November 19, 2024

Endorsement

[1] Althea Reyes seeks release on bail pending her appeal of her April 24, 2024 conviction on four counts of fraud over $5,000, three counts of fraud under $5,000, seven counts of impersonation to gain an advantage, and five counts of false pretenses, as well as the sentence she is serving for doing so. She is currently serving a custodial sentence of two years less a day. She was originally given a conditional sentence, but this was collapsed on August 23, 2024, after the applicant was found to have breached the terms of her release less than a month after she was sentenced. She is appealing both her April 2024 conviction and sentence and the August 2024 order that she be remanded into custody based on the finding that she breached a term of her conditional sentence.

[2] The onus is on the applicant to demonstrate that she should be released pending appeal. Pursuant to s. 679(3) of the Criminal Code, R.S.C., 1985, c. C-46, on an application for bail pending the appeal of a conviction, the applicant must establish that: a) the appeal is not frivolous; b) the applicant will surrender herself into custody in accordance with the terms of the release order; and c) the applicant’s detention is not necessary in the public interest: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

[3] I find that the applicant has not met this test.

[4] The conviction appeal appears to have little merit. The applicant pled guilty. She seeks to set aside her plea, principally on the basis that it was uninformed. To succeed on this ground, the applicant will have to prove that she was unaware of the legally relevant consequences when her plea was entered and that she suffered prejudice as a result of the plea: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 6; R. v. Cherrington, 2018 ONCA 653, at para. 24.

[5] In my view, there is nothing in the trial transcript that suggests confusion or lack of understanding on the applicant’s part when she entered her guilty plea. The trial judge confirmed that the applicant understood her plea and its consequences and advised her that she would have to admit the facts alleged by the Crown. Although the judge’s inquiries were not extensive, they must be considered in the context of the trial as a whole as well as the applicant’s history before the courts. The Crown’s submissions referred to its pre-trial negotiations with her, in the context of judicial pre-trials, leading to a joint proposal for a conditional sentence. At trial, the applicant made submissions about the underlying facts and the sentence, leading to the striking of one of the counts for which she was charged.

[6] The applicant’s appeal of the sentence she received in April 2024 also appears weak, given that it was the result of a joint proposal.

[7] On the other hand, the applicant’s appeal of the August 2024 order is not obviously frivolous or without merit. Although she raises various grounds in her notice of appeal of the August 2024 order, at the application hearing the applicant focused on the judge’s alleged error in finding that she breached a no-contact order by causing a subpoena to be served on the Ottawa Humane Society. The Crown did not respond to this argument.

[8] However, even assuming that one or both of the appeals could have merit, the applicant has not persuaded me that she will surrender if released. She has previously been convicted of failing to attend twice, once in 2016 and again in 2019. Adding to the risk that the applicant will not surrender again is the fact that her proposed surety, Sabrina Kiala, resides in Montreal, Quebec. The applicant has a history of failing to comply with court orders and being untruthful during criminal and civil proceedings. Her disrespect for a court order is, in fact, why she is currently serving a custodial sentence. After she was remanded into custody in August 2024, she was found to have lied to the court in an attempt to conceal her breach of the terms of her conditional sentence.

[9] Third, the applicant’s detention is necessary to maintain confidence in the justice system. Assessing the public interest in an application like this involves weighing the interest in the meaningful review of court decisions and the interest in enforcing the law.

[10] With respect to the reviewability interest, assuming the applicant’s appeals have any merit, there is some risk that they will not be decided before the applicant has served most of her sentence.

[11] The enforceability interest is high. The applicant has a significant criminal record, having been convicted of a range of offences, including crimes of dishonesty, in 2013, 2014, 2016 and 2019, before being convicted of the 19 fraud-related counts now under appeal, the breach of her conditional sentence in August 2024, and her obstruction of justice through lying to the court in October 2024.

[12] This history necessitates a robust bail plan. The applicant’s plan has two components. First, she proposes that she would stay at Valiant Recovery, an in-patient treatment program at a private clinic in Carlsbad Springs, Ontario, for 60 days. Thereafter, she would be released to live with her surety, Ms. Kiala, in Montreal.

[13] I am willing to accept, for the purpose of this application, that the applicant suffers from PTSD and addictions to alcohol and cannabis, even though she has not provided any supporting medical evidence nor explained why she cannot seek treatment for these conditions while she is in custody. Tracy Nickel, the intake supervisor and certified addictions counsellor at Valiant Recovery, testified that a bed would be available for the applicant and that the clinic has experience in ensuring that the terms of conditional release are respected. I am satisfied that, during any treatment at this clinic, the applicant would receive 24-hour a day supervision.

[14] It is what would occur after the applicant’s release from Valiant Recovery to live with Ms. Kiala in Montreal that gives rise to serious concern. There is no proposed bail plan beyond Ms. Kiala’s assertion that she can offer “24-hour supervision”. Ms. Kiala is the single parent of a 21-month-old son who herself has a criminal record, including a recent conviction for identity theft. She did not provide the court with any information about how the applicant could be accommodated at her residence; whether she would have access to the internet and phone; and how she would ensure that the applicant respects terms of her conditional release when Ms. Kiala has to leave the residence to take her child to daycare, run errands, and so on.

[15] I am not satisfied, based on Ms. Kiala’s testimony, that she has any plan to supervise the applicant in a meaningful way, particularly when she returns to full-time work outside the home in a few months. As she acknowledged in cross-examination, she expects Ms. Kiala to comply with the conditions because “she is an adult”.

[16] Given the applicant’s failure to comply with the terms of her April 2024 conditional sentence, there is a real concern that she will not comply with the proposed plan of release. The applicant offered to be subject to GPS monitoring but has not presented any evidence to suggest that any steps have been taken to secure such monitoring or to explore its availability.

[17] Although the applicant has a past conviction for dangerous driving, her record does not suggest that she is prone to violent acts. As held in R. v. Ameyaw, 2024 ONCA 364, at para. 28, however, “the concept of public safety includes being secure from frauds of the kind the appellant was convicted of perpetrating”: see also, R. v. Omitiran, 2020 ONCA 261, at paras. 20-23. As the trial judge found in sentencing the applicant, she significantly injured the victims of her fraudulent activities, affecting their physical and mental health and their ability to take care of themselves and others. Given the applicant’s extensive history of fraudulent activities, I find that there is a serious risk of the recurrence of injury to public safety were she released under the terms she has proposed.

[18] I conclude that the application falls short of establishing that the appellant should be released on bail pending her appeal. The application is therefore denied.

“S. Gomery J.A.”