Court of Appeal for Ontario

Date: 2025-09-09

Docket: M55543 (COA-24-CR-1143)

Motion Judge: Trotter J.A.

Between

His Majesty the King Respondent

and

G.S. Appellant/Applicant

Counsel

Mark Halfyard, for the applicant

Owen Goddard, for the respondent

Heard: September 4, 2025 by video conference

Reasons for Decision

[1] Introduction

[1] The applicant was convicted of sexual interference (Criminal Code, R.S.C. 1985, c. C-46, s. 151), internet luring (s. 172.1(1)(b)), and two counts of failing to comply with a release order (s. 145(5)). The trial judge determined that an appropriate sentence was imprisonment for seven years and six months. After applying various credits, the applicant was sentenced to six years and ten months.

[2] The applicant applies for bail pending the appeal of his convictions. The following reasons explain why bail is refused.

A. The Offences

[3] The offences happened between May and October of 2022. The applicant was 30 years old; the complainant was 13. They first met at a park. They communicated over Snapchat. Over the next number of months, they had oral sex and sexual intercourse on a regular basis. This usually occurred on the weekends at various locations, including at the applicant's parents' house (when they were not home), at a park, and in the back seat of the applicant's car. The applicant often provided the complainant with marijuana.

[4] They met for the last time near the complainant's elementary school on October 31, 2022. It was Halloween and the complainant came to school in a koala costume. They had sex and smoked marijuana in the applicant's car, a black Honda Civic with tinted windows. The complainant testified that the applicant ejaculated on a black shirt she had been wearing, but they wiped it off.

[5] The complainant did not have permission to be absent from school that day. School employees went in search of her. One of the school employees spotted the complainant in the Honda Civic, which had an Alberta licence plate. When the complainant saw the school employee, she initially slumped down in the passenger seat, but then jumped out of the car and ran across the street back toward the school. The applicant beckoned her to return, but she shook her head and kept going.

[6] Shortly after, the police caught up with the applicant in the parking lot of a Canadian Tire, roughly 500-600 metres from the school. His car was parked out of the way, by a row of trees and close to a loading area. The applicant had switched his Alberta licence plate for an Illinois plate. An Ontario plate was found in the car.

[7] The complainant gave a statement to the police detailing the sexual abuse. The police seized clothing from the complainant's home. A spermatozoon was found on the black shirt she wore that day; however, a male DNA profile could not be developed. A mixture of DNA was found on the cup of the complainant's bra. The trial judge accepted expert evidence that "[i]t was a trillion times more likely the mixture was a combination of [the complainant's] and G.S.'s DNA than if it was a combination of [the complainant's] DNA and a person unrelated to G.S."

[8] The police searched the residence where the applicant lived. Photographs taken from the house confirmed the complainant's knowledge of the house, especially items in the applicant's bedroom, including furnishings, his academic degree certificates, and a photograph of the applicant in a white lab coat.

[9] There was also evidence that the applicant contacted the complainant through social media at the end of November 2022. This was the basis for the charges relating to his release order.

[10] The applicant did not testify. The only evidence led in defence to the charges was the testimony of the applicant's mother, who confirmed that he was with her in Jamaica for roughly two months in the summer of 2022. It was agreed between the Crown and the defence that the applicant was out of the country during this period. The complainant acknowledged in her testimony that the applicant was away for part of the summer, but she thought the time period was shorter.

[11] The trial judge provided lengthy reasons for judgment. He explained in detail why he accepted the evidence of the complainant, who he found to be credible and reliable. He addressed inconsistencies between her statement to the police and her testimony at trial and remained satisfied with her veracity. He found confirmation of her account in the DNA evidence (discussed below), the evidence of the school employee who spotted the complainant in the applicant's car, the applicant's quick change of his licence plate that day, and the photographs of the applicant's residence that matched the complainant's description.

B. Bail Awaiting Trial and the Proposed Release Plan

[12] The applicant was released on bail pending his trial. His mother was his surety, in the amount of $5,000. However, he was soon charged with breaching his release order and detained. He spent approximately 40 days in custody before being released again, this time with additional sureties and GPS monitoring.

[13] After the applicant was found guilty on all counts on August 15, 2024, he remained on bail, subject to the same conditions, until being sentenced on September 4, 2025.[1]

[14] The applicant proposes that he be released with his parents as sureties, each in the amount of $100,000, and his close friend (who was also his previous surety) in the amount of $15,000. These amounts are significantly greater than what was pledged prior to trial.

C. Bail Pending Appeal

[15] Bail pending a conviction appeal is governed by s. 679(3) of the Criminal Code, which provides:

679(3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for leave to appeal is not frivolous;

(b) he will surrender himself into custody in accordance with the terms of the order; and

(c) his detention is not necessary in the public interest.

[16] The Crown does not submit that the appeal is frivolous, nor does he suggest that the applicant will fail to surrender into custody or that he poses a risk to public safety. The Crown opposes bail solely on the public confidence arm of the public interest ground in s. 679(3)(c).

[17] The framework for applying this arm was addressed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250. Once engaged, s. 679(3)(c) requires a bail judge to resolve the inherent tension between enforceability and reviewability considerations: Oland, at para. 28; R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.). This analysis draws on the statutory framework for pre-trial release in s. 515(10)(c) of the Criminal Code.

[18] Enforceability considerations under s. 679(3)(c) align with the following enumerated factors from the pre-trial release framework, with certain modifications in the appellate context: the gravity of the offence (s. 515(10)(c)(ii)); the circumstances surrounding its commission (s. 515(10)(c)(iii)); and the potential for a lengthy term of imprisonment (s. 515(10)(c)(iv)): see Oland, at paras. 37-39; R. v. Badgerow, 2017 ONCA 670, 42 C.R. (7th) 411, at para. 35; and R. v. Papasotiriou, 2018 ONCA 719, 366 C.C.C. (3d) 298, at para. 36.

[19] Reviewability considerations correspond with s. 515(10)(c)(i) of the pre-trial release framework – the apparent strength of the prosecution's case at trial. In the appellate context, the focus is reversed, the measure being the strength of the grounds of appeal: Oland, para. 40; Badgerow, at para. 37; and Papasotiriou, at para. 38.

[20] Dealing first with enforceability, the objective seriousness of the applicant's offending conduct is grave. In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 1, the Supreme Court emphasized the "profound wrongfulness and harmfulness of sexual offences against children". In this case, the applicant engaged in the ongoing sexual abuse of a 13-year-old girl. It came to an end only due to the intervention of a staff member of the elementary school that the complainant attended. And even after he was arrested, charged, and released, the applicant contacted the complainant. The seriousness of the applicant's conduct is reflected in the significant penitentiary sentence imposed by the trial judge. The enforceability interest is high in these circumstances: R. v. M.S., 2022 ONCA 348, at para. 15; R. v. N.G., 2025 ONCA 66, at para. 11.

[21] Turning to reviewability considerations, I agree with the Crown that the case against the applicant is overwhelming. The applicant did not testify. He only led evidence of a partial alibi defence, confirming his absence from the country during part of the summer of 2022. The trial judge found that this evidence was neutralized by the complainant's testimony.

[22] Counsel for the applicant submits that, notwithstanding the strength of the evidence against the applicant, the trial judge misapprehended the DNA evidence relating to the spermatozoon found on the complaint's black shirt and the mixed DNA profile generated from the complainant's bra. The trial judge found that the spermatozoon was the applicant's and that it was deposited on the shirt in the manner described by the complainant (i.e., following sexual intercourse). The trial judge further found that the mixed DNA on the applicant's bra was deposited when the piece of clothing had been removed, just as the complainant explained. Mr. Halfyard submits that the expert evidence did not support either conclusion.

[23] With respect to the black shirt, the complainant said that she had not washed the shirt before the police seized it. The forensic expert testified that, if the shirt was not laundered, there would have been billions of sperm cells on the shirt. The trial judge found that the defence suggestion that the presence of the sperm cell was caused by transfer in the laundry was speculative. He preferred the complainant's explanation for how and where it was found on her shirt, including that they tried to wipe the shirt off after the applicant ejaculated. In any event, he characterized this evidence as confirmatory "to an extent." This was in the context of detailed reasons in which he explained why he accepted the complainant's account.

[24] With respect to the DNA profile in the complainant's bra, Mr. Halfyard submits that the expert evidence did not permit the trial judge to draw the conclusion that he did about how this mixture of DNA found its way onto the complainant's clothing. But the trial judge did not rely on the expert's testimony to reach this conclusion; he accepted the complainant's account of what happened. He considered the defence theory of transfer, but reasoned as follows: "[The complainant] was wearing her bra under her long-sleeved black shirt and her koala costume. It is not reasonable that [the applicant's] DNA would end up on the inside of [the complainant's] bra cup given its location under three layers of clothing unless she removed it during the course of having sex." This does not reflect a misapprehension of the expert evidence.

[25] As for the breach counts, the applicant asserts that his convictions are unreasonable. However, Mr. Halfyard did not place any significant weight on this aspect of the case for the purposes of this bail application.

[26] Engaging in the "pointed assessment" of the grounds of appeal required by Oland, at para. 44, I am of the view that, although the appeal is not frivolous within the meaning of s. 679(3)(a), it barely passes this threshold.

[27] Enforceability considerations must prevail in this case. The release of the applicant on bail pending appeal on these serious offences, based on weak grounds of appeal, would undermine, rather than inspire, confidence in the administration of justice. In these circumstances, release is not in the public interest. Given the considerable length of the sentence imposed, this is not a case where a significant amount of the sentence will be served before the appeal is heard: R. v. W.W., 2023 ONCA 328, at para. 13. I am advised that the appeal can be perfected and listed quite promptly.

D. Disposition

[28] The application is dismissed.

Gary Trotter J.A.

Footnotes

[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 trial judge was required to address some procedural issues that ended up delaying the imposition of sentence, the details of which are not relevant to this application.