Court of Appeal for Ontario

Date: 2025-07-24
Docket: M56125 (COA-25-CR-0763)
Judge: Peter Lauwers
Heard: 2025-07-16

Between:
His Majesty the King (Respondent/Responding Party)
and
J.L. (Appellant/Applicant)

Appearances:
Rupinjit Singh Bal, for the appellant/applicant
Maria Anghelidis, for the respondent/responding party

Endorsement

[1] Between May 1, 2022 and June 16, 2023, the applicant committed a series of offences against the complainant, his then intimate partner. After a judge-alone trial, the applicant was convicted of eleven counts: two counts of assault, one count each of sexual assault (choking), sexual assault, assault (choking), unlawful confinement, criminal harassment, disobeying a lawful order, and three counts of breaching his release order. The sentencing judge imposed a sentence of seven years; the applicant now has three years yet to serve. He seeks bail pending his conviction and sentence appeals.

[2] The applicant puts forward three grounds of appeal, which I address below.

A. The Governing Principles

[3] For bail pending conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code, RSC 1985, c C-46: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.

[4] The Crown argues that the appeal fails the first and third elements of the test. She submits that the grounds of appeal are frivolous. She also submits that the applicant should remain incarcerated on the third ground alone: that his detention is necessary in the public interest on the basis both of public safety and public confidence in the administration of justice.

[5] As the Supreme Court noted in R. v. Oland, 2017 SCC 17, para 41, the “not frivolous” criterion “operates as an initial hurdle” that “allow[s] for the immediate rejection of a release order in the face of a baseless appeal”. The court must conduct a preliminary assessment of the strength of the grounds of appeal, based on judicial knowledge and experience: R. v. Ruthowsky, 2018 ONCA 552, para 15.

[6] On the third ground, the public interest criterion, the Supreme Court observed in Oland, paras 23-26, that the public interest or public confidence element must be tested under the framework set out by this court in R. v. Farinacci, paras 41-44, per Arbour J.A. (as she then was).

[7] Under s. 679(3)(c) of the Criminal Code, there are two components to consider: public safety and public confidence in the administration of justice: Oland, para 23; Farinacci, paras 41-44. As Arbour J.A. said in Farinacci, para 42:

The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice.

[8] I am obliged to weigh the factors of public safety, reviewability, and enforceability. Although neither Farinacci nor Oland delved into public safety on their facts, Moldaver J. noted, at para. 27 of Oland: “To be sure, there will be cases where public safety considerations alone are sufficient to warrant a detention order in the public interest.”

[9] In striking the balance between enforceability and reviewability, “appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public”, being “someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, para 47.

(1) Public Safety

[10] This court has built at length upon Moldaver J.’s comment in Oland that there will be cases where public safety considerations alone will prevent judicial interim release on appeal. See, for example, R. v. B.N., 2025 ONCA 534; R. v. J.J., 2020 ONCA 280, paras 12-28; R. v. Abdullahi, 2020 ONCA 350, paras 19-24; R. v. McRae, 2020 ONCA 498, paras 27-28; R. v. Bailey, 2021 ONCA 3, paras 15, 26-29.

(2) Enforceability

[11] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci, para 43. As noted in Oland, para 37, the seriousness of the crime figures in the assessment of the enforceability interest. The applicant’s offences are undoubtedly serious.

(3) Reviewability

[12] Reviewability acknowledges that the “justice system is not infallible” in its results, such that “persons who challenge the legality of their convictions should be entitled to a meaningful review process” that does not “require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful”: Oland, para 25. The court noted in Oland that “in assessing the reviewability interest, the strength of an appeal plays a central role”: at para. 40. The grounds of appeal must “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland, para 44. The applicant no longer benefits from the presumption of innocence: Oland, para 35.

B. The Governing Principles Applied

(1) Do the grounds of appeal clearly surpass the “not frivolous” standard?

[13] The applicant advances three grounds of appeal:

1. The assistance of counsel was ineffective;
2. The trial judge erred in his assessment of consent; and
3. The sentence is excessive.

[14] The Crown argues that none of these grounds meets the “not frivolous” standard and submits that the applicant has failed to put forward a sufficient factual record for the court to make a preliminary assessment of the grounds of appeal: R. v. M.W., 2024 ONCA 866, para 8; R. v. J.C., 2023 ONCA 617, para 11.

Ineffective assistance of counsel

[15] The applicant’s counsel concentrated his submissions on the ground of ineffective assistance of counsel, who failed “to use several items available to him in cross-examination of the complainant, including a handwritten statement from the complainant, a statement provided by the complainant to a private investigator, and by not reviewing and assessing the evidence in [the applicant’s] phone for use at the trial”. He submits that the proposed grounds are arguable and weighty because the failure to impeach a witness on credibility in a case that “turned almost entirely on credibility can undermine the reliability of the verdict”, citing R. v. G.D.B., 2000 SCC 22. He argues that the impugned evidence is “specific, independent, and contemporaneous”; if admitted, it could reasonably be expected to affect the verdict.

[16] The Crown argues that the applicant has failed to adduce sufficient evidence to overcome the strong presumption of trial counsel’s competence because he does not describe the contents of these materials nor the alleged contradictions they would have raised. There is only “a bald assertion that these items would have assisted in his defence” because “they show that [the] complainant had repeatedly expressed her support for [the applicant] and verbalized her belief that [he] never harmed her during [their] relationship.”

[17] The applicant has not done much to develop this ground in the normal way beyond informing trial counsel and securing the applicant’s waiver of privilege. I give it little weight at this time.

Consent

[18] The applicant submits that the trial judge erred in his assessment of consent. The trial judge’s finding that the complainant did not consent is factual and attracts appellate deference: R. v. K.K., 2021 ONCA 929, para 27. More importantly, these findings are well rooted in the evidence.

[19] During sexual intercourse, with the complainant’s consent, the applicant would often choke her. In several instances when her breathing was constricted, she either felt as if she was going to fall unconscious or fell unconscious. She confronted him about excessive pressure and her fear that he might kill her. He agreed that he would not choke to excess. But he “engaged in in excessive choking on 5-10 subsequent occasions”. On one occasion the applicant and the complainant engaged in bondage in which he applied duct tape to her, including her mouth. She was unable to object. She lost consciousness on that occasion.

[20] The trial judge instructed himself on the principles of law concerning consent set out in s. 273.1 of the Criminal Code and the relevant caselaw. Consent requires “actual active consent throughout every phase of the sexual activity”: R. v. J.A., 2011 SCC 28, para 66. In assessing the instances set out earlier, the trial judge concluded:

On the evidence before me, [the complainant] told [the applicant] that she did not want to be choked in a fashion that constricted her breathing, causing fear of death and making it impossible for her to talk. Despite this very straightforward declaration, he, on 5 to 10 other occasions, choked [the complainant] until she turned blue. He simply did not have consent to engage in sexual intercourse while choking [the complainant] to the noted extent.

Consent cannot be said to exist where a party undertakes conduct that would make it impossible for another person to bring the sexual interaction to an end. Hence, every time [the applicant] prevented [the complainant] from objecting, he vitiated any consent he had. With the loss of her ability to speak, [the complainant] lost her ability to either oppose or consent to sexual activity.

[21] I am not persuaded that this ground of appeal surpasses the “not frivolous” standard.

Sentence

[22] The applicant concedes that this third ground of appeal is not yet developed. The transcript of the sentencing judge’s reasons is not yet available.

(2) Is the applicant’s detention necessary in the public interest?

[23] The Crown submits that there is a “substantial likelihood” that the applicant will commit an offence or interfere with the administration of justice if he is released on bail pending appeal. His release would endanger the “protection or safety of the public”, thus rendering his continued detention “necessary” for public safety: Abdullahi, para 19.

[24] The Crown argues that the applicant’s conduct in this case, and in a prior case of intimate partner violence with a former partner, establishes a substantial risk. She argues that the record shows that “the applicant has demonstrated a persistent pattern of breaching court-imposed release conditions, including no-contact, no-attendance, and house arrest orders, across multiple release regimes and involving two separate complainants.” She adds that “[t]hese breaches were not technical or isolated; they were repeated, flagrant, and in some instances involved further intimate partner violence while on strict release orders with conditions intended to protect their safety.” She notes: “The record shows that the applicant resumed contact with complainants almost immediately after being released, undermining the integrity of the bail system and the protective function of court orders.”

[25] The person most at risk is the complainant. The Crown quotes her Victim Impact Statement, which was tendered at sentencing:

During the months leading up to the trial I felt hopeless and powerless because of [the applicant’s] relentless contact since his arrest. It is terrifying for me to understand that he does not respect my boundaries and wishes for no contact even from inside the jail. If he were to be released, I have much doubt he would respect the no contact order between us.

The complainant expressed her fear that the applicant’s release would endanger her own safety and that of her family. This fear is not unreasonable.

[26] The Crown argues that the release plan offers little security. The separation distance between the complainant, who lives in Mississauga, and the applicant, who would reside in Toronto, is easily traversed. The Crown submits that GPS monitoring reveals where a person is, not what they are doing, and will be of little assistance in preventing non-compliance in the circumstances of this case: R. v. Stojanovski, 2020 ONCA 285, para 24; R. v. J.J., 2020 ONCA 280, para 27. She points out that the applicant repeatedly breached conditions while on house arrest with GPS monitoring “despite repeatedly being on one of the strictest forms of release”. The Crown casts doubt on the capacity of the sureties to control the applicant.

[27] I return to the three factors of public safety, enforceability, and reviewability. In this case public safety carries the most weight, followed by enforceability. Together these two factors trump reviewability. I am instructed to “keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public”, being, “someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, para 47. Such a person would expect bail to be refused. The risk to public safety is too high.

[28] For these reasons the bail application is dismissed. I am mindful that the applicant has already served a substantial part of his sentence. The reviewability factor supports the proposition that his appeal should not become moot because of the passage of time. For that reason, I direct that the appeal be expedited.

“P. Lauwers 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.