COURT OF APPEAL FOR ONTARIO
DATE: 20251201
DOCKET: M56475 (COA-25-CR-1470)
Paciocco J.A. (Motion Judge)
BETWEEN
His Majesty the King
Respondent/ Responding Party
and
R.B.
Appellant/ Applicant
Alefia Ghadiyali, for the applicant
Andrew Hotke, for the respondent
Heard: November 28, 2025
REASONS FOR DECISION
[1] R.B. seeks release pending appeal after receiving a global eight-year sentence for sexual assault and sexual exploitation offences found to have been committed against the complainant, who was an adolescent and lived with R.B.’s family at the time of the offences.
[2] Section 679 of the Criminal Code, R.S.C., 1985, c. C-46, governs the application for release pending appeal. The applicant must establish the three statutory criteria in s. 679(3) on a balance of probabilities: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19. The elements include:
(a) The appeal is not frivolous;
(b) The applicant will surrender into custody in accordance with the terms of the order; and
(c) The applicant’s detention is not necessary in the public interest.
[3] R.B. submits that he meets his burden on all three criteria. He advanced two grounds of appeal before me. The first alleges that the trial judge misapprehended evidence which could have given rise to a finding of hostility and motive to fabricate by the complainant against R.B. The second alleges that the trial judge inappropriately relied on a Crown witness who recanted the corroborating elements of her evidence during the trial.
[4] The Crown does not dispute that the appeal is not frivolous but submits that it barely meets this threshold. It agrees with R.B. – who has no other criminal record, who complied with bail conditions since his arrest in 2020, and who has ties to the community – that he has established on a balance of probabilities that he will surrender into custody in accordance with the terms of the order if he is released pending appeal. The Crown takes no issue with the proposed terms of release and concedes that there are no residual safety issues. It opposes R.B.’s release pending appeal arguing that he has not met the final precondition for release imposed by s. 679(3) by showing that his detention is not necessary in the public interest. Specifically, the Crown submits that he has not met the public confidence requirement of showing that the interest in appellate review of the challenged decision outweighs the public interest in the immediate enforcement of the judgement.
[5] In R. v. Robson, 2025 ONCA 497, at para. 15, I noted that:
[A]s Moldaver J. made clear in R. v. Oland, at para. 29, detaining individuals who are apt to attend court and who are not likely to commit offences pending appeal is an exceptional outcome. It is only in rare cases that individuals who will attend court if released, and who do not pose a serious risk to the public, should remain in detention pending appeal when they have real arguments to make before it can be finally resolved whether their punishment is appropriate. [Citations omitted.]
[6] The Crown does not contest this principle, but stresses that the seriousness of the sexual violations R.B. was found to have committed by exploiting a vulnerable adolescent over a prolonged period, as reflected by the lengthy sentence imposed, raises the public interest in immediate enforcement. It argues that in these circumstances a more pointed assessment of the merits of the proposed appeal than whether grounds are simply frivolous must be undertaken to determine whether those proposed grounds of appeal have sufficient strength to overcome the enforcement interest: Oland, at paras 40-44; R. v. C.L., 2018 ONCA 470, at para. 20. I agree but the standard needed is also specified in Oland, at para. 44. If the grounds of appeal “clearly surpass” the non-frivolous standard, they may support release pending appeal.
[7] I am satisfied that the proposed grounds of appeal clearly surpass the non-frivolous threshold and it is in the public interest for them to be argued before R.B. is made to begin serving a sentence based on the decision he challenges. There is real viability to his claim that the trial judge may have misapprehended the evidence of motive. A more difficult task for R.B. will be demonstrating this error, if found to have occurred, was a material error undermining the trial judge’s credibility assessment. However, a court could conclude that it was material to the decision to convict, given the weaknesses in the complainant’s testimony identified by the trial judge. This is especially relevant given the trial judge’s reliance on the testimony of a Crown witness who recanted part of her corroborative evidence in a situation where the trial had to be reopened because that witness approached the investigating officer to indicate she wished to change part of her evidence. I am in no way predicting success in this appeal, but instead recognizing that there is a strong public interest in having the appeal adjudicated before requiring R.B. to serve the lengthy sentence that cases of this seriousness rightly attract.
[8] The application for release is granted on the terms jointly proposed by the parties.
“David M. Paciocco 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.