Court of Appeal for Ontario

Date: 2025-04-29
Docket: M55807 (COA-23-CR-1258)
Coram: Huscroft, Coroza and George JJ.A.

BETWEEN

His Majesty the King
Applicant

and

S.H.
Respondent

Appearances:
David Friesen and Erica Whitford, for the applicant
Michael A. Moon, for the respondent

Heard: April 17, 2025

On review of the order of Justice E.E. Gillese of the Court of Appeal for Ontario, dated February 11, 2025.

By the Court:

Introduction

[1] This is an application under s. 680(1) of the Criminal Code, RSC 1985, c C-46 to review an order of the motion judge dismissing the Crown’s application to revoke the respondent’s bail pending retrial on historical sexual offences. The application was referred to the panel by the decision of Fairburn A.C.J.O. (R. v. S.H., 2025 ONCA 220).

[2] We conclude that the motion judge erred in law in concluding that the release order was a nullity. This error was material to the outcome as it led the motion judge to dismiss the Crown’s application to revoke the order.

[3] The application is granted. The release order is revoked for the reasons that follow.

Background

[4] The respondent was convicted of touching a person under the age of 14 for a sexual purpose, carrying a weapon in committing a sexual assault, and uttering a death threat. The offences were committed against the respondent’s two stepdaughters. He was sentenced to a global term of seven years’ imprisonment.

[5] On October 24, 2024, this court allowed the respondent’s inmate appeal, set aside his convictions, and ordered a new trial. The respondent then applied for bail.

[6] On October 28, 2024, MacPherson J.A. ordered that the respondent be released on bail pending a new trial. The order was made on consent of the parties. Among other things, the release order prohibited the respondent from being in the company of children under the age of 16.

[7] On January 18, 2025, the respondent was arrested at the home of his son, where he was residing with his son and his son’s three children, including a young girl. He was charged with failing to comply with the terms of the release order and the Crown applied in this court to revoke the order.

[8] The motion judge concluded that the release order was not lawful because it referred to release pending appeal rather than release pending new trial, and so was a nullity – void ab initio. There was therefore no release order that could be revoked and the Crown’s application was dismissed.

The Law

[9] The authority to revoke a release order is set out in s. 679(6) of the Criminal Code:

679(6) Sections 495.1, 512.3 and 524 apply, with any modifications that the circumstances require, in respect of any proceedings under this section.

524(3) The judge or justice who hears the matter shall cancel a summons, appearance notice, undertaking or release order in respect of the accused if the judge or justice finds that
(a) the accused has contravened or had been about to contravene the summons, appearance notice, undertaking or release order; or
(b) there are reasonable grounds to believe that the accused has committed an indictable offence while being subject to the summons, appearance notice, undertaking or release order.

[10] The test to be applied on a s. 680 application to review a bail decision was set out by the Supreme Court in R. v. Oland, 2017 SCC 17, para 61:

[A] panel reviewing a decision of a single judge under s. 680(1) should be guided by the following three principles. First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.

[11] The second of these principles is relevant on this application.

The Positions of the Parties

[12] The Crown argues that the motion judge erred in concluding that there was no lawful release order on which a revocation hearing could be based. The error was a typographical or slip error that did not invalidate the release order. Moreover, it is clear law that a release order binds an accused unless it is set aside in a proceeding taken for that purpose. Even assuming an error in the release order, it was not open to the respondent to wait until the Crown sought to revoke the order to argue that the error relieved him of his obligation to obey it.

[13] The respondent argues that he was released on a bail pending appeal order and the error was serious. He points to Appendix A to the release order, which states that the conditions in the order “remain in effect until they are cancelled or changed or until you surrender into custody in accordance with the terms of this release order.” The respondent argues that this term is found only in release orders pending appeal and means that he would remain liable to arrest for breach of the order even if he were acquitted at a new trial.

[14] The respondent argues, further, that it was open to him to attack the validity of the release order when the Crown brought an application to revoke it. Because the revocation application invoked the conditions of the release order, his challenge to the validity of those conditions was a direct response to the Crown. The respondent submits that he did not argue the release order was a nullity to escape prosecution for breaching it.

Discussion

[15] We accept the Crown’s arguments. The release order was valid when the Crown applied to revoke it and the motion judge erred in law in concluding otherwise.

[16] The error in the release order is a reference to the wrong provision of the Criminal Code – s. 679(5), which governs bail pending appeal, rather than s. 679(7.1), which governs bail pending a new trial. This error is fairly described as a slip – a minor error that is of no consequence. Such errors do not invalidate an order and may be corrected by the court. See e.g., R. v. Hansen, 2015 BCCA 427, paras 5-6 (varying a bail order that wrongly referred to bail pending conviction appeal rather than bail pending sentence appeal).

[17] There was no prejudice to the respondent. The respondent applied for bail once this court allowed his appeal and the Crown consented to the respondent’s application. The release order made clear that the respondent was being released pending a new trial. It stated at the outset that the respondent was a person “with respect to whom a new trial was ordered”. And immediately following the mistaken statutory reference it stated: “UPON THE APPLICATION of the [respondent] for release pending a new trial…”. There could have been no doubt that the respondent was being released pending a new trial and that he was required to observe the conditions set out in the order.

[18] Nothing in Appendix A prejudiced the respondent, nor would it have done so if he were to be acquitted following retrial. Pursuant to s. 764(1) of the Criminal Code, a release order to appear for trial is binding only “until the accused is discharged or sentenced”.

[19] It is important to emphasize that the respondent was required to follow the terms of the release order regardless of any mistake in it, unless and until it was varied or revoked. Like all court orders, release orders made within jurisdiction must be followed: see e.g., R. v. Kenny, para 32; see also R. v. Gaudreault, 105 C.C.C. (3d) 270 (Que. C.A.), at p. 279, leave to appeal refused, [1996] C.S.C.R. No. 230. The respondent was not entitled to make a collateral attack on the order by challenging its validity only after he had been charged with breaching its terms, and only in response to the Crown’s application to revoke it. The rule is discussed in Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2024), at s. 6:36. In short, “[c]omplaints about the order are not cognizable as a defence to mechanisms of enforcement.”

[20] There is no question that the court had jurisdiction to make the release order in question. The respondent signed the release order and agreed to be bound by its terms in exchange for being released on bail pending his retrial. That being so, the order had to be followed despite the error. The respondent made a collateral attack on the release order, not a direct attack as he argues. The motion judge erred in law in finding that the release order was a nullity and dismissing the Crown’s application on that account.

The Respondent Has Contravened the Release Order

[21] The release order listed the conditions of release clearly. The conditions included the following, which specifically prohibited the respondent from being in contact with children under the age of 16:

8. Do not be in the company of, or communicate directly or indirectly, by any physical, electronic or other means, with any persons under the age of 16 years.
9. Do not attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare, school ground, playground or community centre.
10. Do not seek, obtain or continue with any paid or unpaid activity that involves being in a position of trust or authority towards persons under the age of 16 years.

[22] The affidavit of Constable Grace Vokes indicates that she found the respondent at the residence of his son where she observed three children. Constable Vokes arrested the respondent and charged him with failing to comply with his release order.

[23] The respondent concedes that this evidence establishes on a balance of probabilities that he has contravened condition 8 of the release order. The concession is appropriately made and we accept it. Plainly, this is a serious breach given the offence with which the respondent is charged. It requires that the release order be revoked.

Disposition

[24] Accordingly, the Crown’s application is granted. The release order is revoked.

[25] The respondent is ordered detained in custody pending a show cause hearing. Given its concurrent jurisdiction over bail pending a new trial, the matter is remitted to the Superior Court.

Released: April 29, 2025

“G.H.”
“Grant Huscroft J.A.”
“S. Coroza J.A.”
“J. George J.A.”

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