Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241205 DOCKET: M55534 (COA-24-CR-0488)

Hourigan J.A. (Motions Judge)

BETWEEN

His Majesty the King Respondent

and

C.G. Applicant/Appellant

Counsel: Melanie Webb, for the applicant/appellant Emily Marrocco, for the respondent

Heard and released orally: December 4, 2024

Endorsement

Introduction

[1] The applicant seeks release on bail pending his conviction appeal. He was convicted on two counts of sexual assault. He is currently serving a custodial sentence of 6 years. The Crown opposes the request. The applicant must establish the three elements set out in s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46 on a balance of probabilities to be granted judicial interim release pending the determination of the appeal. These three elements are 1) the appeal is not frivolous; 2) he will surrender into custody in accordance with the terms of the order; and 3) his detention is not necessary in the public interest: R. v. Oland, 2017 SCC 17, at para. 19.

Analysis

[2] The not-frivolous standard sets a very low bar: Oland, at para. 20. The criterion operates as an initial hurdle that allows for immediate rejection of release order in the face of a baseless appeal: Oland, at para. 41. The Crown does not submit that this low bar has not been met. It argues that the grounds of appeal are weak, as they mostly relate to the credibility and reliability assessments of the trial judge. Further, the Crown says that the trial judge wrote lengthy and thorough reasons and his findings will be entitled to significant deference on appeal.

[3] Regarding the issue of surrender, the parties differ about whether the applicant has established that he is not a flight risk. The applicant’s counsel relied on the fact that he was on bail for approximately 3 years while he awaited his trial. Further, he has ties in the community.

[4] The Crown argues that the applicant cannot meet his onus to establish that he will surrender as required if released. It submits that he has demonstrated non-compliance with immigration orders, overstaying first his visa in 2015, and then his work permit since 2022. In addition, the applicant now faces potential removal from Canada because he is subject to an exclusion order. The Crown argues that this development and the six-year sentence increases his incentive to disappear.

[5] I am not satisfied that the applicant has established that he will surrender into custody in accordance with the terms of his release. I reach this conclusion because he is now facing potential removal. This fact and the lengthy sentence he has received increase the probability that he will not surrender into custody. While he may have an explanation for why he has not complied with his immigration obligations, it is evident that he did not take them seriously.

[6] The Crown also opposes bail on this public confidence component of the public interest criterion. This balances two competing interests; reviewability and enforceability. Achieving this balance mandates a judicial assessment of on the one hand, the need to review the conviction leading to imprisonment, and on the other, the need to respect the general rule of immediate enforceability of judgments: Oland, at paras. 25, 26.

[7] The statutory criteria in s. 515(10)(c), used to assess whether pre-trial detention is in the public interest, inform the reviewability and enforceability interests: Oland, at paras. 31-32, 36.

[8] Relevant factors may include the gravity of the offence, the circumstances surrounding its commission, the potential for a lengthy term of imprisonment, and the strength of the appeal; R. v. MacMillan, 2020 ONCA 141, at para. 13.

[9] The applicant has failed to establish that his detention is not necessary in the public interest, as I conclude that, on balance, enforceability outweighs reviewability. He has been convicted of a very serious sexual offence involving a gross breach of trust with the teenage daughter of his ex-partner for which he has now received a substantial penitentiary sentence. She viewed him as a father figure and confidante, as her victim impact statement reveals, and she has been deeply affected by the incidents which have also destroyed her relationship with her mother and grandmother.

[10] I also agree with the assessment of the Crown that this appeal appears to be weak. It is essentially an assertion that the trial judge engaged in uneven scrutiny. It is also evident that many of the arguments regarding credibility that are being asserted on the appeal were considered and rejected by the trial judge for the reasons given.

[11] For the foregoing reasons, the motion is dismissed.

“C.W. Hourigan 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.