SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-14-18

DATE: 20140529

RE: R. v. G.P.W.

BEFORE: E.J. Koke

COUNSEL:
W. Beatty, Counsel, for the Crown

Scott Bergman, Counsel, for the defendant

HEARD: May 20, 2014

ENDORSEMENT

Introduction

[1] The applicant, G.P.W. applies for judicial interim release pursuant to section 679(3) of the Criminal Code pending his appeal from conviction.

[2] G.P.W. was convicted of sexual assaulting and sexually interfering with P.D.. P.D. is his niece and she was 15 years old when these offenses occurred; the charges were in relation to a single incident which occurred in a camper trailer while P.D.’s family was vacationing with the W. family. G.P.W. was sentenced to 9 months imprisonment on the count of sexual interference. I am advised by counsel that the count of sexual assault was conditionally stayed at the sentencing hearing.

Analysis and Decision

Section 679(3) of the Criminal Code provides as follows:

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.

[3] The applicant bears the onus of proving that the statutory requirements of s. 679(3) are met in order to be eligible for release: R. v. JR, 2000 ABCA 196, 84 Alta LR (3d) 92 at para 2.

Issues

1. Will the applicant surrender himself into custody if he loses his appeal?

[4] This point is not contentious. The applicant was out on an undertaking given to a police officer for approximately sixteen and a half months pending the outcome of the trial and he always faithfully attended at court and complied with his bail conditions. He is married, he has a supportive spouse and children and except for three convictions for driving offences between 1997 and 2011 he does not have a prior record for any criminal offences. I am therefore satisfied that he would surrender himself into custody if his appeal were to be unsuccessful.

2. Is the appeal frivolous?

[5] Previous case law has established that an appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish the likelihood, much less a certainty of success on an appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established. In R. v. Passey (1997) 1997 ABCA 343, 209 AR 191 the Alberta court of appeal held that to meet the low standard of being “not frivolous”, an applicant need only show that “his or her ground of appeal would not necessarily fail”.

[6] The applicant essentially argues three grounds of appeal. Firstly, that the trial judge erred in his assessment of the evidence and in making his findings of credibility. Secondly, that although the trial judge properly articulated the well-known analytical framework set out in R. v. W(D), 1991 93 (SCC), [1991] 1 SCR 742, he nevertheless failed to properly apply it to the facts and in essence placed the onus of proof on the accused.

[7] The third ground is that the conviction of sexual interference under s. 151 of the act is not an included offence under s. 153 of the act, which is the section referred to as “sexual exploitation”. Initially, G.P.W. was charged with sexual exploitation under s. 153 of the act. However, sexual exploitation applies only to offences against young persons. Young persons are defined as “a person 16 years or more but under the age of 18 years” in s. 153. Since P.D. was only 15 years old when the offence occurred the court convicted G.P.W. of sexual interference instead, which the court held was an included offence under s. 153.

[8] I will deal firstly with this third ground of appeal.

[9] In arguing that sexual interference is not an included offence under s. 153 the accused relies on the case of R. v. Nelson [1989] O.J. No. 1641. In the Nelson case, the issue before Justice Philp of the Ontario Superior court was whether the offence of sexual assault was included in the offence of sexual exploitation. Justice Philp held that sexual assault was not an included offence because “for sexual assault to be an included offence of sexual exploitation, all of the elements of s. 271 (sexual assault) must be elements of s. 153 (1)(a).” He held that all of the elements of s. 271 i.e. lack of consent, were not elements of sexual exploitation. Similarly, in this case the applicant argues that because the offence of sexual exploitation requires that the victim be between the ages of 16 and 18 and the offence of sexual interference requires that the victim be under the age of 16, an essential element within the offence of sexual interference is absent in the offence of sexual exploitation.

[10] The Crown argues that the offence of sexual exploitation should be interpreted in such a way that it applies to anyone “under the age of 18”, regardless of whether or not they are under or over the age of 16; in other words the part of the definition of young person which describes a young person as “under the age of 18” should be read independently from that part of the definition which defines a young person as being over the age of 16. I do not agree…this definition describes a young person as “a person 16 years of age or more but under the age of eighteen years… In my view it does not apply to persons such as P.D. who was 15 years old at the time of the offence.

[11] Counsel was not able to provide me with any cases wherein a court of law dealt directly with the issue of whether sexual interference is included as an offence in s. 153. I am not prepared to say whether or not the offence of sexual interference is an included offence in the offence of sexual exploitation. However, in my view, the defence has raised an arguable issue in relation to this third ground of appeal…this ground is not frivolous.

[12] With respect to the first two grounds, the Crown points out that the applicant's appeal attacks the trial judge's findings of fact and credibility, findings that will be afforded great deference on appeal. The Crown further argues that the trial judge properly assessed all the evidence as a whole and made reasonable findings, and drew reasonable inferences from the evidence before the Court, and properly applied the rule in R. v. W(D).

[13] In light of my findings with respect to the third ground, it is not necessary for me to comment on the merits of these two grounds.

3. Is G.P.W.’s detention unnecessary in the public interest?

[14] The applicant emphasizes that this is the first time he has been convicted of a serious offence, that he is well established in Canada, and that he has the continuing support of his family and friends. The facts as found by the trial judge indicate that there was no violence or physical force used in committing the offence, that there was no penetration, that there was no grooming involved and that the offence took place over a short period of time. The defence also asks me to note that G.P.W. had no difficulty complying with the terms of his release prior to the outcome of the trial, and that terms of release could be crafted to address any public safety concerns. The defence also argued that there is a risk that G.P.W. will serve a significant portion of his sentence before his appeal can be heard.

[15] The Crown argues that the public interest requires continued detention. In particular the Crown emphasizes that the apparent weakness of the appeal, coupled with the seriousness of the offenses would undermine public respect and confidence in the administration of justice if the applicant were released pending the outcome of his appeal.

[16] Ultimately, I agree with the position of the defence. Public interest relates both to the safety of the public and public respect for the administration of justice. I do not believe that G.P.W.’s presence in the community would undermine the public's confidence in the administration of justice. In coming to this conclusion I am relying to a large extent on the fact that G.P.W. adhered to the previous terms of his release pending trial.

Conclusion

[17] The application for judicial interim release is accordingly granted. The applicant shall be released from custody, pending the hearing of the appeal, on the following terms:

a) A recognizance with one sufficient surety, his spouse C.W. ,in the amount of $10,000 with no deposit;

b) To reside with his surety;

c) Remain in the province of Ontario;

d) Notify D/C Lynn Danis #12180 of any change in address, employment, or occupation;

e) Abstain from communicating directly or indirectly with P.D. and her mother, T.D., or from going to Y[…] St., Barrie On. and P.D.’ school;

f) To abstain from possessing a firearm and to surrender to Almaguin Highlands OPP Detachment any firearm in his possession and any authorization , license or registration certificate or other document enabling the acquisition or possession of a firearm;

g) To (i) abstain from the consumption of alcohol or other intoxicating substances , or (ii) the consumption of drugs except in accordance with a medical prescription;

h) Surrender into custody at the institution from which he is released, or such other institution as may be specified in the order, by 6:00 p.m. on the day prior to the hearing of the appeal or such other day as is specified in the order.

i) Acknowledge that failure to surrender into custody in accordance with the terms of the order will be deemed to constitute an abandonment of the appeal;

j) Pursue the appeal with all due diligence;

k) Keep the peace and be of good behaviour;

l) Advise the clerk of the appeal court of his place of residence.

[18] The existing prohibition order under s. 161 of the Criminal Code is stayed but only pending the appeal and replaces with the following:

Not to be in the company of a person under the age of 16 years, with the exception of your own children (J.W.1, N.W., and J.W.2) unless you are: (1) in the direct company of an adult over the age of 21 years; (2) pursuant to a Family Court Order; or (3) with the written consent of the Children’s Aid Society;

Mr. Justice E.J. Koke (SCJ)

Date: May 29, 2014